•
5
^^
IN THE CUSTODY OF TME
BOSTON PUBLIC LIBRARY.
SHELF N°
i AOAMS
WE allow of the Printing and Publilhing of the
Book Intituled, yi General Abridgment of Law
and Equity, Alphabetically digefted under proper
Titles, ^c. By Charles Finer, Efq;
W. Lee.
W. Fortefcue.
J. Willes.
E.Probyn.
F. Page.
Law, Carter.
J. Fortefcue A
W. Chappie.
T. Parker.
M.Wright.
Ja. Reynolds.
The. Abney.
T. Burnett.
//:/j^72 ^^y^y.ii2y>'^^-
General Abridgment
O F
LAW and EQUITY
Alphabetically digefted under proper TITLES
WITH
NOTES and REFERENCES
to the WHOLE,
^y CHARLES VINER, m
Favente Deo.
ALDERSHOT in Hampfliire near Farnham hi Surry ;
PRINTED for the Author, by Agreement with the Law-Patefitees.
-y^
ADAMS
J. ^
A
TABLE
OF THE
Several TITLES, with their Divifions and Subdivifions.
^Onufance of Pleas,
Removal. What a good Caufe. O
Refummons.
Lies, In what Cafes. Q_
Removed, What, On the Refummons. R
PIead;ng,s after Removal. P
Its Orif^inal, and how confidered, and of
what it confifts. A
What is, or may pafs as fuch, and by what
Words. B
In what vefpeft Copyholds partake of the
Nature of Freehold.s. C
How it differs from a Cull^omary Freehold. D
Of what Things it may be. E
Grants,
W^hatfliall be faid to pafs by the Grant,
Things e:ccepted or rcferved. F
By whom it may be made.
By Domini pro Tempore, or Pcrfbns
not having lawful Titles. G
Good,
Where the Manor is divided, H
By Jointenants. I
Voluntary Grants. Good. And how con-
fidered. K
To v/hora it may be made, L
At what Place it may be made. L. 2
How. M
Several Copyholds by one Copy, N
Operation of the Grant, and what pafTes
thereby. O
Cuftom, Purfuance thereof What is. P
Pleadings, P. 2
Grants in Reverfion, In what Cafes. And
Pleadings, P. 5
To whom Copyhold granted for his
own Life, and the Lives of others
Ihall defcend. P. 4
In what Cafes the Lord may retain as
an Occupant, P, 5
Where the Eftate granted fhall be
fubjefr to the Incumbrance &c, of
the Lord, Q_
Power of granting; it deftroyed. R
By what Aft.
By the Inheritance being fever'd from
the Manor. S
Decrees in Equity as to the foregoing
Heads, relating to Giants of Copyholds. T
Surrender, What it is ; And how confidercd. U
At what Time. W
Place. X
Where there are feveral Surrenders of
thefime Lands by the fame Perfon,
to different Vks^ which fliall
take Place. Y
What amounts to a Surrender. Z
Of what it may be. A. a
To whofe Ufe it may be. B. a
By whom, and to whom. C. a
Feme Covert, Infant &c. D, a
How.
Conditional and charging the Eftate. E, 3
By Attorney. F. a
How the Attorney fhall doit. F, a. 2
Without faying to whofe VSe,
How the Admittance may be. G. a
Abfolute To what Lord. Diifeifor. H. a
To the Ufe of a Will, I. a
Take. Who; by the Defcription. And
what is Certainty fufficient, K, a
Neceflary In what Cafes. L, a
Want ot Surrender, or defeftive Sur-
render fupplied. In what Cafes. M, a
Operation and Effeft. N. a
Difcontinuance, In what Cafes it fhall be O. a
In refpeft of the Eftate of the Surren-
deror, p. a
Manner of the Surrender. Q_ a
Limitation. In future, and to
Perfons uncertain, R. ^
What paffes. By what Words. S a
Boufid by a voluntary Surrender made
out of Court, rp
Prefentment of a Surrender, and at wha ' *
Time.
Entry. Good or not. Variance. W, a
Not prefented. What Elfeft it has. X. a
Relieved in Equity. Y. a
What EfFeft a Releafe or other Deed
will have. Z. a
Pleading Surrenders. A. b
Admittance.
Where the Eftate fhall be in the Perfon,
who has Right to be admitted Tenant,
before Admittance, B, b
In what Cafes the Eftate Ihall not be out
of Surrenderor till Prefentment or Ad-
mittance of Surrenderee. B. b. z
In whom the Eftate fhall be faid to be be-
fore Admittance of Surrenderee, and
whether, wfien admitted, he fhall be
faid in by the Lord, or by Surrenderor, C. b
Entry before Admittance, By whom ;
and how feifed. And what they may do. D. b
What fhall be faid an Admittance, E. b
According to the Surrender ; or
How the Lord is confidered as to his
Power of admitting, and whether the
AdmiflTion is different from the Sur-
render. How it fhall operate. F, b
Neccflary. In what Cafes. And the Ef- '
feft thereof. G. b
Where the Lord may inforce a Mort-
gagee Surrenderee to be admitted. H b
New Admittante. I b
Wha:
A TABLE of the feveral TITLES,
Wliat gaffes by it. How much fhall be
faid xn pa's by the Surrender, and the
Effect of an Admittance, though on a
void Piefentment. I b. z
Good.
By whom it may be. I. h- 5
When. K.b
How. L. b
By Attorney. M. b
At wlmt Place. N. b
In vefpe6t of the Eftate granted. O. b
Of one enure to another. P. b
In Cafe of Death of Surrenderee before
Admittance. Q: b
Where the Cudom is to defcendtoche
youngeft Son, or is Gavelkind &c. R b
How far it is binding to the Lord. S. b
E elation ; to what Time. T. b
Pleadings of Admittances. U. b
Fine.'!.
InwbatCafes And to whom W.b
How much fliall be paid, and where one
or fiverah X. b
Cert.iin or uncerrain. Y.b
AflefTed or demanded. How^. Z b
"When due. A. c
Remedy for them by the Lord. B C
For whom after the Lord's Death. C.c
Forfeiture.
In what Cafes, and the Effect thereof. D. c
What is. E. c
W iiteafance. F- c
As making Leafes. C c
Exceeding the Licence. H.c
By making a Grant &c. as at Common
Law. I. c
Committing; Wafte. ' K.. c
By Inclofure or Building. L.c
Treafon or Felony. M. c
Konfeafance.
Not coming in On what Summons or
Notice. And how Advantage may be
taken of it. N. c
Refufal to do Service. O- c
To pay Fines. P- c
Nonpayment of Rent. Q; c
By what Perlons. Infant, Non Compos &c.R. c
Perfons not in PolTefiTion. K. c. 2
Of one the Forfeiture of another. S. c
Who, as Lord &c fhall take Advantage. T. c
At what Time it may be taken. U. c
Where one, and what Tenautfhall take
Advantage of the Forfeiture of an-
other X. c
Of how much it (hall be. Y.c
Of Part, in what Cafes it fhall be of the
whole. Z. c
Difpenfation, or Excufe thereof. What
is ; and by whom. A , d
Entry by the Lord In what Cafes without
Prcfentment.
Relation To what Time.
To the King.
Equity. Relief. In what Cafes.
Pt-ovcd. How.
Extiiguifhtnent thereof
()i the Incidents to it, Frank-fiank.
liy Forfeiture. H. d
Lord.
Sufficient to give Licences. I. d
Actions and Suits.
V\ hat Tenants may have in general, in rc-
Ipcct of the fame Land. K. d
Againll the Lord. L, d
R
C.
D
h
E,d.
F.
a.
Implead, or be impleaded. How. M. d
by tlic Lord againfl the Tenant. N. d
Acts of Parliament.
Extend to Copyholds; in what Cafes. O. d
Agreements. P. d
Between Lord and Ten.inti _ Pd
Between 7'enants and others relating to
Copyholds. (^d
Attorney. What Services may be done by
Attorney. Rd
By-Laws S. d
Charitable Ufes. T. d
Common. U. d
How Lord or Tenant are interefted
therein. W. d
Cottages built on the Waftc. X, d
Court Rolls.
What Interefl the Tenant has in them. Y.d
Cuftomary Court. Z. d
Cuffoms. Good.
Provei How. A. c
Purfued. In what Cafes they muft be. A. e. 2
Good, and Extent thereot. General
or fpecial, A e j
Unufual and interfering. A. e. 4
Defcent or Purchafe. B. e
How. Pofleffio Fratris. C. e
DifTcifin. What is. D. e
Dower. In what Cafes. And hov/ reco-
vered.
Entails. E e
By Statute De Donis &c. F. e
By what Words. F. e. 2
Dock'dor barr'd. G. e
Pleadings &c. G. e. 2
Ficies levied of Copyholds. G. e. 3
Frank Bank. AndTenancy by the Curtefy.
In what Cafes ; And what it is; And
how conGdcred. H. e
Widows of what Perfons fhall have it. H. e. 2,
How. And Pleadings. H.e. 5
Guardian of Infants Copyholders. Who
fhall be. I- e
Infranchifement.
The Eflefts thereof, either as to the Land
or the Eftate in it, or the Incidents
thereto. K. e
Equity. _ K. e. 2
Jointcnants and Tenants in Common, L. e
The King, fn what Cafes he fliall have
Copyhold Lands. L. e. 2.
Leafes by Cuflom, and without ; And who
bound by thetn. M. e
By Licence ; And without. Good. And
how it operates. N. e
Pleadings. N. e. 2
Lord of the Manor. His Power .is to de-
termining DiffUtes between the Copy-
holders. N. e, J
Lunitick, Ideot &c. N. e. 4
Mortgages and other Charges. Kow they
fliall alfed: a Copyhold. O. e
Prefcription by Copyholders. Good. And
How. P. «
Remainders. Limited How. Good, And
of Contingent Remainders. P. e. 2
Rent incroach'd. Q; t
Trees.
Interefl: of the Tenant in Trees, flanding '
or cut, or Windfalls. R. e
Lord or Tenants Power as to catting them
down. R. e. 2
Remedy for Tenants as to Trees cut hj
the Lord. AndPJcadings. K. e- j
^^^^fL^^^^iH^^;]^^
TSh^""'*"' ^''''' ' And m whaTcafes. R. e.
What fhali be faid to be a Truft oF Co
pyholds. And Cui« concerning them. S
Ureshmited where Good. Hdw conftrued. T
rleadmss. :;
Wills. " "^^ e
Good And what Words in Will extend
to Copyhold.s where Teftator held
Freehold and Copyhold,
Equity.
Of Bills in Chancery.
Difputes between Lord and tenanr
Coroner*
HU Antiquity and Qualification
Jileftion.
Duty and Authority.
Authority 5 Where joint or feveral •
And where the Ad of one Sec. is effec-
tua!, and fhall bind or charge the other
Inquifitions before him.
'i raverfe thereof.
Punifhed for Mifdemianot-s in his Office in
Civil Lafes.
Where Writs iliall be direfted to the Co-
roners.
Difcharged or removed; For what Caufe
Anci How. And what determine his Office
Punimed.
Corporation.
Commencement thereof By what Means '
And by what Words and Names; And'
by whom & e contra
feveral Sorts. And
or Perfons it confiils.
What it is.
By whom made.
Of what Perfons.
Of what Place.
Of what Name.
By what Words.
Founder. Who.
Capable of what. Confidered. How
Diflolution and the EfFeft thereof
How and by what AS.
Cuftoms.
Confirm'd. How.
I'Jew Charter and Egc<as thereof
H
of
And of the
what Per/bn
A.
B
C
D
E
F
H.
H. 2
H. ;
I
Aftion,. by or a^ainft them. What. And
how hablemrheir private Capacity.
''hrc5"4i:n''°^p°^^"°"'^"'^--^
Inter fe
Joinder in Aftions. In what Cafes, or
Appearance of Corporations to Aftions
For Variance.
Things done to or by the Head, or any
Members of the Corporation. In what
P if,' 'r ^'" ^^'^''^ '° '^°^^ *" their
1 olitick or m their Natural Capacities Z
Things done by the Head withoutTe
J^ody s joining. In what Cafes ihall
ifand good. ,
Pioccfs againft Corporation. R »
PJeadings and Proceedings. cl
. Mifnofmer. ^ n *
Of the Introduaiion of, and Original of Cofis
To whom, and againit whom given. ' A
informer.-. " .
In what Cafes ^- *
F°"' not facing on to ciial. ^ *
R
S
ir
X
Y
Pleadings.
Incidents,
Without Grantor Prefcritjtion.
What they may do, and' what muft be
done under the Corporation Seal. G i
Afts done by them good or not, being not
done by the whole Body. G,
Grants to or by a Corporation, and by '
whatNamesthey may tate.Mifnofmer&c G.a
Good or not. q ^
To what Perfons it iliall be faid to extend G 6
Actions.
Obligations and Cnntrafts made to or by '
Corporations li.ibie ; Who, where the
Head is remov'd, and Pleadings. G -r
What they may do without Deed K
Deeds by them How to be executed. K. i
What Adtiops or Kemedy the Succef-
for may have for Thirgsdonein
Time of his Prcd^cefTor. K s
What fliail go in .Succeflion. L
Election and Amotion of Officers or Mem-
bers ; Ar.d at what Time ; And How. M
By Virtue of a New Charter. >j
Pleadings by or againfl Officers as to the
Eleaion &c. q
Pcope rty of Goodj of Corporations in whom
it SuxU be laid to be. And Pleadings. O. 2
In what AiSions
Replevin.
Writ of Error.
On Demurrer
Where Defendant, or one or more of the
J)efeiidantsfhallh.iveCorts.
In Inferior Courts.
'^o'^r'su^s'^'' "^''"^ "'"■^ ^'^ ^^^^'^^ A'^'°"S
Coifs and Damages; In what Cafes: And
what Cofts ; Double or Treble. '
1 o Ufhcers and Minifters of Tuftice where
they are Defendants. •' ^
En!' % J"' "° "'"'•^ ^°^« '^^^ Damages
How aflelTed or tried. "
Given at what Time.
Increafed. In what Cafes
Payment. Inforc'd How. Or New Adlions
Itopr.
In Chancery.
„ Cottagegs.
^ Co53ennnt*
How. And in what Cafes On what Deeds
Upon what Deed the Plaintiff" might have
Debt or Covenant.
What Words will make an Exprefs Cove-
nant. '^
In what Cafes the Heir or Ex-e<?utor ffiall be
bound by exprefs Covenant of the Tefta-
tor, without naming them
Where it lies againfl an Executor, tbouch
not named. °
In Law. In what Cafes the Law will
create a Covenant.
Without the Words of the Party
What u a real and perfonal Covenant G
W hat a ContraCf, ar.d w hat a Covenant. G
What Perfons ffiall have Advantaee. Th-
Heir. °
Affignee. J
Perfons Coming in by Aft in Law, or
not named.
Who, and againff whom.
Bound thereby, ivho fhall
naming. The AfTicnee.
Extent of Covenant to Difcharg^
3
B
C
D
E
F
G
H.
K
L
M
N
O
P.
Q.
A
B
C
D
G
F
2
J
H
K.
K,
be without
L
L 2
T<»
Conufance of Pleas.
Br
fai-ice
conu 6. 3f conufancctiEijfanteD to bcijclD bctauc tbc 'B.iiiUT, if n»t
.„,.je pi 27. Aainn be brOUlTDt agnimt che Baili;!, rijiS IS l\GOD CaUlC tO UCillOUg
rr's^c per tlje [?!ca, bccaiife Ijc cannot be Ijis oian nmc, s f;, * 9. 19. 6.
* Roll Teems to be miTprinted (9) for (6^ The holding the P'ea before himfelf is no CauTe to re-
move the Plea ; for the Plea may have Writ of Error if &;i;. Br. Caufe de Remover &c. pi. 39. cites
3 5 H. 6. 54.
* Br. Re- 7. Failure of Right in a iTrancIjifc 10 ffooti Caiifc to tcmo^c*
fummons pi. * j j f)^ . 27. Ij* t Si 31). 0. 20.
tj. cites S. C. '^ ^
Br Corufans, pi. 16. cites S.C. Br. Voucher, pi 161 cites S. C. Fitzh. Refura-
mons, pi. 1 1 cites 1 1 H 4. zi S. P. [but u Teems it fhould be 1 1 H. 4. ^7 b. pi. 52.]
i Br. Conufaiis, pi. 27 cues S.C.
in AfTife the Bailiff of the Franchife demanded Conufance of rhe Plea, and had it, and after Re at-
t,rch»!e7it Vi3sfasdhsCiiuCe the Bailiff bad Jailed of Right, and w.is Pone per Vad' ha Cjuod liM^ueUi ilU
fit, Sec. m eodem Statu 6cc and thac ijalliii ihi de recie drJUiaiil, and vjuud habeac Corpora Jur". 6cc. iir.
Conulance, pi. 41. cues 26 Alf. 67.
* Br. Re- 8. (As) 3if a Foreigner be vouched in H iFrancIjirc, tIjijS 10 a pon
Tummon., pi. QTjj^jrj^ jq fj;n]oiij; ^ tor ifailuve tijcve. * II lp» 4. 27- b» 8. fx 6. 20.
9. CltCSS, t^. ^ . ^
Br. Conufans, pi. i6. cites S. C. Br Voucher, pi i6i. cites S.C. Fit7.h. Refum-
mons, pi. li. cites H H, 4. zi. [but it feerns mifpritited, and that it fliould be 11 H. 7. 27. b. pi. 52.]
9 So if a Plea bC plCaUCH that bears Date out of the Jurifdiclion. 8 j^^
6. 20.
10. 31f COnurnnCC be to be held before the BailifFof an Abbot, (ajS
it feem0 to M intenOCU) anO a real Aaion is brought againll the Ab-
bot, anD tlje '"^bbot laich, thac he hath the Land ot the Gilt of the
King, and prays Aid ot the King, tW Ajall ttOt be an? Cailfe tO re=
nioue tijc pica, for Ije IjatI) not failco of Rigljt tljerc i for be niaj?
Ija^e QiD at tlje inutn;, ano tlje Buijj map feno to toe Jiuaiccg to pro--
ccen to 3uDBment, a0 lucil a0 m I5anca. 21 en* 3- 38. b* aD=
)UQ!JCO.
Br. Conu- II. 3!f tljE? tDllI err voluntarily in a Thing ot which a Writ of Error
fan.s pi 27. lies, and this can be reformed by it, tb50 Rjall HOt U CaUfC tO tCmO'OC
ti.es S.C. tlje pea. Contra 8 jip. 6. 20.
Br.Conufans 12. As if tl)CP tOiU not grant the View where the View lies, tlji0 i^
p!.j7. cites j^Q ^j^jj^jj-g^ 8l>6.20.
Br.Conufans i ^ gut if tljC? ZXt IJOUintartIp in fuch a Thing, of which a Writ of
pi. 27. cues g^^Qj. j,^g ^^^^ ^^^j. ^^^ bg reiormed by it, t|)I0 fljall be gOOO CaUfe ta
rcmovic it. 8 p, 6. 20.
Br.Conufans H- ^s if tl)Cp will not record a Detault a0 tljep OUffbt, or tuill not
pi 27. cites give ludgmenc, tl)i0 i0 5000 Catifc to rcmoue it,becaure no Wut of
^ c. (grtor Ite0 UJitijout Juoijnient, nor tlje error of tlje 2:5cfault Uiilt
not appear ot i\ccorD to be reformed, s ip, 6_ 20.
Br. Conufans, 15. J.f ^^' r^oi^g be done to a Tenant or Det'endant that goes but in
pi 27 cues £,ei^y^ g|g it feejiijj to be intcnueb, tW 10 no Caufe of iaemoiial,
for he is not at Prejudice, bCCailfC IjCljat!) tlje li)0{reiriOn Of tlJClanO.
8 p. 6 20
16. 3f conufance be granten, antJ tlje Bailiff will not read the
Writ there, ttI0 gOOD Caule of Refunimons. i8 (£♦ 3- 31- b,
Fir/h. Co- 17. 3n an action, if tlje jfrandjifc IjatI) Conufance granten, anti
nur.in,s,pl.S6. in tlje JfranCljifC tlje Delendant plcids Villeinage in the Pkintill, t!)I0
cites s. G. j^ jjogg ^j^^^^fCe Qf^^ Ecfunimon,^, became tljis cannot be trieo tljcce.
26 CD, 3- 73- b.
18. h the Land be Fritnk-Fee, and the Tenant is iiuplcadcd in
jiiuiau Demcfue, it is a good Cauic to remove the Parol to the
Common Law^^ becaufe he Clauas to bo!d iit common Laiv^ and he Jhall
JhilV
Conufance of jPlcas.
pt'-Ju his Caitfe at the Day in Bank. Br. Caule a Remover, pi. 17. cites
21 E 3. 32
19. Demife of the Lord 0/ Ancient Demeftie for Term of Life by Ltvc'
ry without Deed, is fufficient Caufe to remove the Plea out ot' Ancient
Demefne to the Common Law by Kecordare. Br. Caufe a Remover
pi. 10. cites 50 E. 3. 24.
20. So of a Fine or Charter of the Lord, or Deed of the Lord to
hold at Common Law. Ibid.
21. The Parol removed out of Court Baron, becaufe there were only
four Suitors ■■, theretore qusre what Number fuffices when there are no
more. Br. Caule a Remover, pi. 35. cites Regilter lol. 11.
22. \V\\exe A Mm recovers Dan/ages mJJife of Pre lli- Force, and the Rr Recogni-
Defendant is not fufficient in the Franchife, this may be removed and ^-^ns, p' 15-
executed in another Court. Br. Caufe a Remover, pi. 54. citesF. N. B^
23. Where he that claims Conufince, Ihall not hold Plea of Matters *'^*' ^^^
wherein himfelf is Party j See Tit. Judges (A) per totum.
(P)
Plcadlncr after Removal.
o
I- TiF a Pea be remOlieO out of the Lords Court for Caufe, tlje Br Caufe de
1 Caule i|3 tcaijeriabie* 12 i), 4. 13. b, Remover&c.
pi I ? cites
S.C— Fit7,h. Ciue le Remover 8cc. pi. -. cites S. C Jfter Refummons om oC the Franchife for
faihue of rhe Ki.^hr, rhc Bailiff came and traven'd the Caufe and hi.s Challenge was entered upon the
Elloign which was caft by the Tenant upon the Relummons, Br. Gonufans, pi. 66. cites "9 E. ". 17.
2. In Precipe quod reddat, Conufance of Plea was prayed and granted
to the Franchtfe, and alter the 'tenant fued Refumnions, becaufe the Court
failed him of Right, and the Demandant was effoined, and the Bailiff
came and faid, that he would traverfe the Caufe, and pray d that {^fu-
fer hoc venit, &c.) be entered upon the F.Jfotn, and fo it was, Dies Datiis
ultra. Br. Caufe a Remover, pi. 20. cites 39 E. 3. 17.
3. In Refummons, the Baililisof N. demanded Conufance, and the g n M
Demandants faid, that at another time they demanded Conufance and had it, pfgg n|°i m*
and at the Day jailed o{ Right, becaufe they fuffered the Tenant to he ef- c'nesSC Br.
famed where he had Attorney, and the Tenant demanded the View, and they Iffues joines,
would not make h.m a Precept to view, and alfo where there were two'^-'^ *■'""
Baililfi, who ought to fit, the one came and the other not, and all the ' *
Points were fullered in lUue, and becaufe in a Manner the King is Par-
ty, and therefore may altrm the Jurifdiftion of the Court the Iflue was
fufiered upon al), and this upon Relummons in new Original, as it
leems, and there the lenant was not compelled to join zvith the one or the
other; Contra 34 H. 6. And in this Cafe it was alleged, th.it the
Dmnandant was nonfutted in the Franchife, and yet the Illue was ta-
ken ut lupra. Br. Conufance, pi. 10. cites 40 E. 3. 11.
4. li Conufance of Plea be granted to the Bailiff of a Franchife,
and he fails ot Right, it is a good Caufe to remove the Plea, and upon
the Refummons this Caufe f:all be jhe'ixn, and the Bailiffs may traverje the
Caule, Quod Nota j viz. they may demand Conufance again, and
there the Caufe Ihall be fliewn, and the Bailifls may traverle \z, Br.
Caufe a Remover, pi. 8. cites 34 H. 6. 48.
5. Note, that where Conufuice of Plea was granted, and Refum-
mons fued for failure of Right, the Buililis may demand Conufance again,
and then the Demandant fball /hcw how they failed, &c. the Biiliffs fhall
tYuVirfe ike Caufe, ai,d upon this, by the belt Opinion, the tenant ought
to
^ Conufance of Pleas.
to join tn this IJJue wtth the Demandant or 'with the Bailiffs, and // he
joins with them, and it is found with the Demandant it is peremptory to
the tenant ; Contra if he joins to the Demandant^ for there the Deman-
dant can't have Judgment againft him where the IfTue is tound with
himfelf againft a Stranger, and not againll the Tenant. Br. Conufance,
pi. 5. cites 34 H. 6. 53.
( QJ) Conufance.
Kefummons.
In what Cales it lies.
J. A Fter Conufance \% granted, if there be good Caufe after to re-
J\ move the Plea, a KcriimmOUlS fljall \sZ fllfD (it tljE COUtt
tDljcre tl)e ©ristnal sxm conimenccD. 8 ^, 6. 20. 18 c 3- 31- iJ«
2. But when it comes there, if no Caufe appears, it fhall be remand-
ed. I €"0, 3 ai' lJ»
Br. Refum- 3. In Formedon the Bailiffs of S. have Conufance of the Plea, and
rnons, pi 9. fi^g tenant vouched aForeigner in the Franchife, theDemandant fball have
cites S.C. Resummons ; for this want of Power is failure of Right, and the Bai-
litts ihall never have the Conufance again, Quod noca inde bene. Br,
Conulance, pi. 16. cites 11 H. 4. 27.
4. Where a Bai/ijf has Conufance, and he himfelf is Party ^ it is a
good Caufe to fue Refummons ; per Cotton. Br. Conufance, pi. 27.
cites 8 H. 6. 18,
(R) Conufance.
Remover.
Refummons.
[What fhall be Remov'd on the Refummons.]
S.P andper. i. TX 110^15 COnuranCC 10 granted tO fl iTtatlCljirC out of C. B.
Hank if he y^ flnn tljctE i!2i a foreign Voucher, aiiD tDeteiipoti t!)e Dc*
F anchife" ntantJaUt fUC0 a Refummons in Banco for ifailUte Of EtgUt tlj£CC, no-
ard after the thing Ihall come of the Record in Banco but the Ongmal, anU tIjC
p.roi h re- pflttp fljaU fac flt latgc to pleau anp Iplea* 1 1 1). 4- s?- b*
into Bjrk, there the 'Tenant may ■vouch another. Br. Refuminons, pi. 2T. cites S. C— Br.Conurans, pi. ipj
cites S C and it is ("aid there, that thouj;h Rcftimmons be fued out of Franchife in Bank after Cohu-
lance granted, yet nothing done in the Franchife ftiail bs of Record in C. B. but only the Original.
2. In AfFife of Mortdanceftor in Chefter, the Tenant vouched Foreign-
er, and Record fent into Bank, and there the Tenant made Default,
and therefore the Record remanded to take the Alfife. Br. Caule a
Remover, pi. 21. cites 8 All] 22.
3. W here the ylilwn is brought m Bank, and L. has Conufance of the
Plea, ii^A failed the Party of Right in their Franchfe iy Foreign Voucher,
Foreign Plea, &c. Refummons lies to reduce it in Bank ; lor there ic
never Ihall be remanded into the Franchile ; per Hill and Hank. For
Onti-
Copyhold. t
Connfance is granted upon Couditm, Quod ceteris Jiot Jujlicia^ alioquin
rtdeant. Br. Certiorari, pi i6. cites 1 1 H. 4.
4. If Record be removed out of the County or Frarichife into Bank,
nothing /hall be of Record in Bank bat the Original. Br. Caufe a Remov-
er, pi. 47. cites 2 H. 7. s.
5. But where Record is fent into a Franchife by Connfance of Plea grant"
ed to them, there all the Record of the Bank Ihall be of the Record
in the Franchife. Ibid.
For more of Connfance of Pleas in General, See JftnC0 (C) JUDp (A)
prOljilnttOn, KefunimOlliS, lUllUeifitp, and other Proper Titles.
Copyhold.
(A) Its Original, and how confider'd, and of what it
confifts. And the leveral Sorts.
I. ^^lOpyhoId Tenants were tenants in Villeinage. Br. Tenant per Co-
^^ py, pi. 2$. cites F N. B. fol. 12. (C)
2, Such cuftomary Inheritances Ihall not have by the Law any other
collateral Qualities but fuch as concern the Defcent of the Inheritance which
other Inheritances at Common Law have ; for as without Cuftom fuch
Eltate at Will cannot be defcendible, fo neither can it have any colla-
teral Quality or Incident to other Inheritances at Common Law i for
Copyholders have Eftates of Inheritances fecundum ^uid, viz. to be
defcendible by Cuftom to their Heirs, and not to be determined by the
Deaths, nor fubjeft to the Will of the Lord as other Eftates at Will are
but are «of Eftates of Inheritance/?«/i//(r;/£>", viz. to all other collateral
Qualities, but fuch as Cuftom has allow'd, or are incident to them.
4 Rep. 22. a. Mich. 23 & 24 Eliz. C. B. the 2d Refolution in Brown's
Cafe.
3. Though a Copyholder has not in Judgment of the Law but only Gilb Treat
an Eftate at \^'ill, yet Cuftom has (o eftablifti'd and fix'd his Eftate of Ten. 145.'
that by the Cuftom of the Manor it is defcendible, and his Heirs ftall '^""S.C.and
inherit it, and fo his Efiate is not merely ad Voluntatem Domini., but ad ron''f^^h^^^'
Voluntatem Domini fecundum Confuctudtmm Manerti ; refolv'd per tot, fee"msto'be
Cur. 4 Rep. 21. a. Mich. 23 & 24 Eliz. C. B. in Browne's Cafe. becaufeupon
tates Villein Tenures were ufually referved, and thofe Eftates were given to Villains ; ^here'fol-^ n!^
other Eftates could be granted to them, but at Will; for otherwife they had been infranchifed arir
feems; but to prevent the frequent Ending of thefe Eftates they granted them in Fee but vet at rl <•
Will of the Lord ; and according to my Lord Coke, notwithftanding fuch Grant the'v were inri^J u
attheVviUot the Lord, who oufted them when he pleafed, without any Reafon whichbeinTa
very great Inconvenience it feems it w^s altered by lome pofi.ive Law (tho' that does not appear^
..h,ch preferved their £ b.tes to them, doing their Services, but yet lelt them as it found them to
have Eftates only at Will. — 2 New Abr. 457 m totidcm Verbis, without citing it out of Ld Ch
D. Gilbert. ° .
4. Though
5 Copyhold.
♦^Soitan 4. Though lome Tenants by Copy of Court Roll have an Ellate of
eiromcus Inheritance yet they ha-ve nothing but at the IViil of the Lord according to
'{udpment ^^^ Conrfe 'i'tbe Coinmon Law^ for if the Lord ouffs them they have no other
^l^raCo- Remedrbiit to file the Lord by Petition* 3 Rep. 8. a. Palch. 26 Eliz. in
^p'yhoider, he Scacc'. Heydon's Cafe.
can'iot have . /- i t j f
a Writ of falfe Judgment, hut muft fue to the Lord by Petition to reverie the Judgment ; per Cur.
4 Rep 21. b. Mich.z4 & 25 £lii. C. B. cites 13 R. 2. Tit. Falfe Judgment, 7.
5. A Copyhold cnn/ifls of Jtx principal Grounds or Circumltances, iH,
There imilb be a Maiior for the Maintenance of Copyhold, zdly, A
Citflom for the allowing of the fame, sdly, There mult be a Court holden
for the Proof ot the Copyholders, 4thly, J Lord to give the Copy-
hold. 5thly, yf7e«^«? of Capacity to take the Tenement. 6thly, The
^'huig to be granted which mult be fuch as is granrable,* and may be held
of the Lord according to the Tenure. Calth. Reading. 2,3.
6. It appears by a certain Book intitled, De prifcis Anglorum legi-
bus tranflated out of the Saxon Tongue by jMaller Lambert of Lin-
coln's-lnn, that Copyholds were long before the Conqiicjf^ and then called
by the Name of Book-land as you may fee in the beginning of the Book,
in the Treatile de Rerum & Verborum explicatione ; and by Mafter
Brafton, an ancient Writer of the Laws of England, who in his Book
writeth divers Precedents and Records ot H. 3. ot Allowance that Co-
pyholders of cullomary Tenants doing their due Services, the Lord
might not expel them according to the Opinion of latter Judges in the
Time of E. 3. & E 4. And it appears by Mailer Fitzherberi's Abridg-
ment, they were preierved by a fpecial VVrit for that Purpole, and the
Lord thereby compelled to do right. And in the Time ot H. 4. 'Te-
nants by the Virgc, which are the fame in Nature as Copyholders be, were
allowed by the Name of Sokemaines in Franktenure, and in the Time of
H. 7. were allowed Aid of the King for Defence ot their Eflates. Calth.
Reading, 3, 4.
7. There is no Copyhold Land but at firfi was Demefne Land ^ per
Ley Ch. J. 2 Roll Rep. 236. Mich. 20 Jac. B. R.
8. There are three manner of Copyhold Lands befides the two Sort3
o^ old After and new JJler; Alter ligniiies an Holt, Chimney, or a Flew.
Now thofe Copyhold Lands which had long Time ufually a Houfe on
them, they were called old Alter Lands, but thofe which but of late
had Houfes built on them were called new Alters, from the Houte
newly ere£led on them ; and in old Records the Baftard eigne did
plead, that he was Filius Askarius, as much as to fay, born in the
Houfe, or in the fame Family ; and io are the ancient Records which
he had feen, and fo Britton calleth him ; belides thefe, he faid, there are
three kinds of Copyholds which he had known in his Praflice. i. Terra
Nattva^ and this was alfo called Bond-Lands^ becaufe held by Villains.
2. Cnftomary^ and this was held by free Tenants. 3. Menfalis^ and call-
ed alio Dominica^ befides by this the Lord's Table is niaintain'di P^r
Ley Ch. J. And per Richardfon, fome Copyhold Land is called Poad-
Land and fome Molland^ a Molli Redditu, from the little Rent re-
ferved. 2 Roll Rep. 236. Mich. 20 Jac. B. R. in Cafe of Smith v.
Reynard.
9. Copyhold is nothing but a Tenancy at Will in the Eye of the Law.
3 Lev. 94. Mich. 34 Car. 2. C. B.
10. Copyhold Lands are not holden of the Manor, hut are Parcel of
the Manor itj'elf, which conlilts of Demeliies and Services ; Arg' and of
this Opinion were Treby Ch. J. and Nevil, and Rooksby Jiillices, but
Powell J. contra ; for one fays in common Speech, that Copyhold Lands
are held of the Manor. Ld. Raym. Rep. 44, Pafch. 7 W. 3. C. B.
in Cafe of Britde v. Bade.
II. Co
Copyhold. 7
II. Copvholds, though now lupporced by Cultom, were at firft ejla-
llilhed by Ad of Parluivunt^ as all other Parts ol the Common Law were
till the Records of them came to be loft^ per Lord Macclesfield.
Chan. Prec. 574. Trin. 1721. in Cafe of Sir H. Peachy v. D. ot So-
meffet.
(B) What is, or may pais, as Copyhold j and by what
Words.
I. A S to the Cuftom that certain Tenants within the fame Manor,
l\ have ufed to have Lands, &c. to them and their Heirs in
Fee-Simple, and Kee-Tail, or tor Life at the Will of the Lord, there
mult be three Supporters^ the ilh is 1'ime^ and that muft be out of Me-
moiy of Man, which is included in the Word Cultom, fo as Copy-
hold cannot begin at this Day. The 2d is, that the tenements be Par-
cel of the Manor ^ or withm the Manor. The 3d, that it has been demis'd
and demifable by Copy oj Court Roll, lor it need not be demis'd Time out
ot Mind by Copy of Court, but if it be demifable 'tis fufficienr. Co.
Litt. 58. 6.
2. And III, a Manor may tegranted by Copy. 2dly, Underrsooods withoutthe
Soil, fo the Herbage or Vejiare of Land, sdly. Generally ail Lands and
Tenements within the Manor, and "juhatfoever concerneth Lands or 'tene-
ments^ as a Fair appendant to a Manor may be granted by Copy, &c.
Co. Litt. 58. b.
3. The Opinion of BraiEton and Fleta, both confenting in one, that*S. P. by
Copyhold Lands is Parcel of the Lords Demefne, wants not modern Au- Chambei-
thority to fecond it ; lor 15 Eliz. in the Exchequer, Coke fays he |^'J^j^'^^y
finds it adjudged in the Cafe of a Common Perfon, howfoever it is other- Cafe i: wiu
wife in the King's Cafe, That it the Lord of a Manor grants away not pafs the
omnes terras fuas Dominicales, the Copyholds Parcel of the Manor, Copyhold
pafs by ihefe general Words. Neither doth this want Reafon to con- |f,g"oth^r^'^
firm it i tor in the time H. 3. and E. 2. when Bracton and Fleta lived, Demcfnes;
Copyholders were accounted mere Tenants at Will^ and theretbre after a But Hitch-
foit their Lands were reputed to continue Itill in their Lords Hands ; amfaid.that
And now tho' Cultom hath afforded them a furer Foundation to build ^"^'^^^^^^^^^
upon, yet the Franktenement at the Common Law telling in the Lord, Pe,.fon, it
it can be no Itrange thing to place the Lands under the Rank ot the will not pais
Lord's Demefnes. But Lord Coke fays, to deliver his xMind more free- theCopy-
ly in this Point, he thinks that howfoever, according to the ftrift Rules V°^^^ -^^^
of Law, thefe Copyholds are Parcel of the Lords Demefnes, yet in Pro- other De-
pricty ot Speech (if Propriety can be in Impropriety) they are themefnesto
more aptly called the Copyholders Demefnes i for tho' the Franktenement <"upply the
be in the Lord by the Common Law, yet by the Cultom the Inheri- ^^^^^^^
tance abideth in the Copyholders ; and it is not denied, if a Copy- ^ j^q,] j^Jp^
holder be impleaded in making Title to his Copyhold, he .may jultly 256, Mich,
plead, <^uod eft feilitus in Dominico fuo, with this Addition, Secun- lojac. B. R.
dum confuetud' Manerii. Therefore Lord Coke _ fiys,_ he concludes, ^"^^^^'^^^°f
that howfoever the Common Law valueth the Title of the Copyhol- j^'^ynard.
der, .yet he has fuch an Intcrelt confirmed unto him by Cuflom, that it is
the Lord having no Power to relume his Lands at Pleafure, they arefaidin Lex.
(tho' improperly) call'd (yet perhaps truly accounted) the Lords De- Cult 92^ w
niefnes, and that in the Eye of the World ; howfoever it be in the j,,^^ j/^ f^^J
Eye of the Law, that rhofe Lands alone can properly challenge the ^..^^/j «/;
Kame cf the Lords Denielnes (if anv Lands in the Pofleliion ot infe- Xn </fwf/;.«
g Copyhold,
Copyhoia rior Lords m:iy properly challenge that Namt-) which the Lord
Lands will j-giervech in his own Lands, tor Maintenance of his own Board or
rit paG, it rj-^Vjjg jjg it; his walle Ground, his arable Ground, his pafture
L^-o Ground, or his Meadow i be it is his Copyhold which he hath by
ntisfy the Efchcat, by Forfeiture, or by Purchafe ; or be it any Part ot his
Wordsofhispcggi^ylJl of which my Lord Col<e fays, he muft fpeak a Word by
Grant It ^^^ ^^^ not to prove that it is Demefne, tor Manilelta probatione noa
mX be' un- indigene, but to Ihew you in what Senfe it is taken, and how far it
dei-ftoodof extends. Co Confip, Cop. 32. S, 14.
that he holds by Copy, or elfe it thwarts the Cafe before ; and the Reafon U, becaufe Copyhold
Lands do not pafs by fuch Conveyance, but by Surrender. It Copyhold Land efcLvat, and are in the
J'.nid's H.indi, and he , grants omnes Terr.^s fuas DomiKif.iIrs, qaxre it they fti all pals. It feem.s every
Thine demtlable by Copy mull be Parcel of the Manor; tor the Cultom can only extend to the
Manor, and the Pleading i» r.uod infra Manevium, ScC. Gilb. Tieai. otTen. 295.
4. A CuHom to make a Copyhold muft be of Neceflity in the fame
Manor where the faid Copyholds are lo granted, vii. that the fame
art;, and have been 'Tune out oj Miiid only demifed^ and demifeable by Co-
fy of Court Roll; for otherwife the Lord cannot grant it by Copy,
becaufe he cannot begin a Cullom at this Day. But ij it have been
hy like Time granted by Copy, thd Jinte tt came to the ]/)rds Hands, yet if
the Lord never Dcnufes the Jame by free Deed or otherwife, but by Copy,
then he may -well grant again the fame by Copy, for it is neither the
Perfon of the Lord nor the Occupation of the Land, that either
makes or dellroys the Copyhold, but only the Ufage and Manner of
demiling the fame y for the Prefcription of a Copholder conlills neither
in the Land nor in the Occupier, but only in the Ufage. Calth.
Reading, 16.
5. If Lands have been demifed by Copy by the Space of 60 Tears, and
yet there he fume altve that remember the fame occupied by Indenture, this
is not a good Copyhold. Calth, Reading, 19,
6. And if Lands have been demifed by Copy but 40 Tears, and there
is none altve that can remember the fame to be otherwtfe demtfed, this is
a good Copyhold, for the Number of Years makes not the Matter, but
the Memory of Man. And it is not 60, 80, or 100 Yeats, that makes
a Copyhold or a Cullom, tho' it makes a Limitation. But fuch cer-
tain Number of Years makes only a Likelihood, or Prefumption of a
Prefcription ; that is, that it commonly happens not that any Man's
Memory alive can remember alone fuch a Number of Years, but if any-
chance to be alive that remembers the contrary, then fuch Prefcrip-
tion muft give Place to fuch Proof Calth. Kneading, 19.
n. Lord of a Manor feifed of Land which was Ancient Copyhold
Leafes it for ^00 Tears, ^nd 3 Yea.rs afzeT grants it by Copy to another,
who was admitted tor Lives, and paid his Fine. S. purchates the
Manor, and got the Leafe alligned in 'Lrult for him (tho' he knew how
the Matter was at his Time of Purchafe) and the Copyholder had fe-
veral Years enjoyed the Land quietly as Copyhold, l^ecreed that the
Tenant by Copy ihall hold according to his Grant. N. Ch. R. 26. 10
Car. I. Hutchmgs v. Strode.
So Land 8. Copyhold Lands enjoyed as Freehold for 60 Tears and more, and
which had had palled by Deed and Fine as Freehold Lands, yet being prelented
hizn enjoyed by the Homage us forfeited, being fold as Freehold by Fine at Coi^-
Gwliw Vas "'°" ^^'^■> ^bereby the Lord of "the Manor granted over to other Per-
aiiowed. f'^ns and their Heirs, tho' it was the Ignorance ot the Copyholder,
Toth. 160. from the long Enjoyment of an Anceltor, and his and the Court Roils
cites 21 El. being loft ormillaid, a Commiiiion was decreed to let out Boundaries
TcareJ. .-^°^"^'"Sui^ the Copyhold Lands from the Freehold of other Per-
fons..
Copyhold.
fons. Fin. R. 462. Mich. 32 Car. 2. Wincle and Walliborn, & aV^ofor^o
V. Carpenter and Pisburgh. ^f^y was
T-. 1 T^ - T- • n allowed till
recover d at Law. Totlv 106. cites Tnii 27 Elii. Bafpool. v. Roberts. Toth. 107. cites 22 and
23 Eliz I Freeman v. Penny.
cyo where Lands had gone 5 /ciij-/ as Copyhold of Inheritance it was allowed. Toth. io5 107
9. Whatever may pafs ly Deed isclthoiit Surrender (tho' it be requir- 3 Salk. io».
ed that the Deed be inrollcd in the Lords Court) can be no Copyhold, ?'■ }• ^- ^ '™
and whatever may pafs by Surrender in the Lords Court, Secundum j^""''^'"^"-
Conluetudinem Manerii (but Non Sccandmn Voluntatem Domini) is no
Copyhold i per Cur. Cumb. 387. Mich. 8 W. 3. B. R. Smith v. Page.
10. Lands Time out ol xMindpaiied by Surrender ^ and Copy of Court Roll z. Vent. i4'^.
and the Grant was always teuend' fecandum Confuetud" Manerii^ but ne- S. P. in Cafe
\er had the Words Ad voluntatem Domini. Refolved that they are °^ i''^"^.'^"
not Copyhold but a Cujlomary Freehold. Carth. 432. Mich. 9 \V. 3 ^' '^'^^^'^•
B. R. Gale v. Noble.
11. Where a Cujicm is that all Lands held of that Manor floall pafs by
Surrender and Admittance.^ yet the Lands may he Freehold:^ and the Man-
tier of Conveyance ts cuftomary., in as much as Livery is not rcquiiite.
Holt faid the Freeholds thcmlclves can never be Parcel of the Ma-
jior, but 'tis Service i Qjjiere. 11 Mod. 53. pi. 28. Pafch. 4 Ann.
B. R. Anon.
(C) In what Refpe61: Copyholds partake of the Nature
of Freeholds.
I. npi HOUGH Copyhold Land be governed by the Rules of the 2, New Abr.
_1_ Common Law coucerning Defcents, yet it partakes not of the Tit. Copy.
Nature oi Freehold Land in other Refpefts ; for it is not Jffets in the hold(B)45S.
Heirs Hands ^ neither f jail a Woman be endowed .^ Husband 'Tenant by Cur- ?' ^y" 1°"'
re/j', unkfs by fpectal Cujlom ; neither Jhall a Defcent toll an Entry. The buTwit^hout
Reafon feems to be, becaufe the Eftates of Copyholders were at firft citing Ld.
only Eftates at Will, and at the abfolute Difpofition of the Land, and *-''• ^- '^^"
there hath not lince been any Provifion for thofe particular Cafes ; for ''^"'
my Lord Coke lays, that Copyholders have only a Fee-ftmpk fecundum
quid ; that though they are Tenants at Will, yet their Eftates (hall def-
cend to their Heirs, and not to be determined by their Death, and not
to be fubjefl to the Will of the Lord as other Eltates at Will are,
(which it ieenis was introduced in tavour of them by fome pofitive Law,
though no Footfteps of it appear now) but not fimpliciter to have all the
collateral Qualities of Eftates in Fee-limple at Common Law, in which
Refpefts that pofitive Law feems to have left them ac large as before.
Gilb. Treat, of Ten. 149, 150.
(D) How it differs from a cuftomary Freehold.
I. rip HE great Difference between Copyholds and cuftomary Free-
X holds -which pafs by Surrender is, that the Copyholder is in by
the Demifeofthe Lord; but in the Cife of cu/fomary Freeholds, the Lord
D is
lo Copyhold.
is only an Injfriiment, and that infle^Jtng a 1'ttle to a CopyhoM E([ate^ it
IS ftijficient to jbf.v a Grant from the Lord; but in ciiftomary Freeholds the
h.Jiate of the Surrenderor niiijt he fhewn^ as that che Surrenderor was feiz.-
ed in Fee, and furrendered to the Lord, and he granted &c. per Hole
Ch. J. I Salk. 36J. pi. 4. Hill. 4 Ann, B. K. Crowther v. Oldfield.
This in Roll
1 his in K.011 .,_,,. . ,
is Letter (A) j^gj Qt qjuhiU Thtngs it maybe.
i.r-pYTHES map \)z tcmirable bv Copi) of Ccurt^HoII, accartiinjj
V - " - 1 to tl)c Cuftom of tijc ^annor, fur tijcp uinp be Iparccl of a
popham a5j,ttai'> (as It feeaisi) as lucll as a Rent-charge Contra. 13. 43 €11?.
theyJie 05. E* i3£tlUCen Sands and Drury.
Cro. E. 814
pi. ;.SC
not grant
ab
is
ed
Supplement toGo.Comp Cop 82. S. 17. cites S. C. and fays it was objc-aed, that Tithes were not
Ci-antaWe by Copy, becauCe it" isagunft the Natu-e of Tithes, and none could have a Property in
them before the Council of Lateran, and therefore it was impolliblc to have any Culloin fb ro £;rant
them But it was refolved, that they might be granted by Copy, if tliere had been a Cuftom Time
out of Mind fo to grant them. Gilb. Treat, of Ten. ; i ;. cites S. C. but mal;es a (>iire
l\Io -55. pl. 43^^ per Cur. in the Cafe of Hoe v Taylor, Tithes may be furrendered by C^opy if the
Cuftom permits it. Cro. E 41 ;. pl. 5. in Cafe of Hoe v. Taylor, it was faid to be adjudged in
^ir 3io!)n J5OUrne'0 Caf e, thataGrantof Tythesby Copy was good,
2 Tonfura prati \m\> bc tiemirabic lip Copp of CoiirtEoil, accort!=
(ng to tljc cuftom of a ^anor, by Preicripcion. p. 43 eeiij. 05= E. pec
(jDaujUpe*
The Lord 3. underwood, tuitl)3ut t!je @DH,ma))bc nemtfaWc bp Copj)» Ca
IndTis Heirs Underwood in M. Wood Annuaiim fttccidend' by 4 or 5 Acres at leafl-, adjudged a good
Grant and is exclufive of the Lord ; and note, they took the Wood Annuatim fuccidend' by 4 or
Acres to be the Order appointed for cutting, and not to go in Reflraint of the Grant. Mo. 555.
bI 480 'Pafch 56 Eliz- B. R. Hoe v. Taylor. — 4 Rep. ;o b. 31. a. pl. 23. S. C. adjudged, that 1:
mav bv Cuftom be demifable by Copy ; and Judgment afSrm'd ; For it is a Thing of Perpetuity
to which Cuftom may extend, becaufe after every Cutting it will grow again Ex ftipitibus. Cro.
Elix 41' pl - S C. adjudged, and affirm'd in Error. jenk. 2-4.pl. 95- S. C accordingly.
Supplement to Co. Comp. Cop. 82. S. 17. cites S. C. Gilb. Treat, of Ten. 20S, cites 4 Rep. 31.
S. P. Ibid. 314. S. P.
__ 4 Rep. 4. myz Herbage ot a^eftitte of lanti map be nemifablc bp Copp,
3i-^-j^"^^'"=Co. Lit. 58. b*
againft Taylor.S.P. rcfolv'd. Jenk. 274. pl. 95. S. C. & S. P. -Co. Comp. Cop. 54. S. 42. S. P.
and cites S. C.
A cufiomary 5. ^ Manor map be temilable bp Copp. Co. lit. js. b;
be granted by Copy, tho* fuch Lord cannot hold a Court Baron to have Forjeitures, and hold Plea in a
Writ of Right. Cro. J. 259. pl. 20. Mich. 8 Jac. B. R. King v. Stanton.— Jenk, 274. pl. 9,. vS P.—
And fuch Manor may have ciijlonury tenants, for as well as there may be a Tenant at Will of a Manor
at Common Law, fo there may be Tenant at Will according to the Cuftom of the Manor ; Refolv'd.
Cro. T. 327. pl. 4 Mich. 11 Jac. B. R. Moore v. Goodgame. Bulft. 13;. Goodgroom v. Moore.
S, ti." but S. P. does not fully "appear. 11 Rep. 17. a. Mich.^ 10 Jac. Ncvil's Culc, S. C. relblv'd
clearly, per tot. Cur. that a cuftomary Manor may be held by Copy, and fuch cuftomary Lord may
hold Courts, and grant Copies, and fuch cuftomary Manor will pals by Surrender, and Admittance,
and Fines fliall be paid upon Admittance, as well upon Alienation as upon Decent, and that may
be cuftomary Lord Mefne, and Cuftomary Tenants in Cafe where the Melhalty is a Tenancy at Will,
accordin"' to the Cuftom of the Manor, as where there is Tenancy at Will at the Common Law of a
Manor • and if fuch cuftomary Manor be forfeited, the Lord fliall have the Culioms and Services
is appertaining thereto. Yelv. 190. Mich. 8 Jac. B R. The King v. Staverioii, S. P, And it
faid, that luch a Cullomary Manor cannot hold a Court Baron ; For he cannot have any Frank-
tenants
Copyhold. 1 1
tenanrs to held of liim, bccauTe a Copyhold Manor is not capable of an Efcheat of FreelioM, for
that which comes in lieu of another ought to be of the fame Nature, and fo the Freehold efcheated
fliould be Copyhold which is repugnant and impoffible.— Bulft. 57. 5S. S. C, all the f;ourt agreed
clearly againit ths Court Baron Supplement to Co. Comp. Cop. 79, S. 15. Gilb. Treat, of Ten
act. 202. cites fame Cafes and fays that a cuHomary Manor may beheld by Copy of Court-Roll'
ad voluntat' &c. and Inch a Lord may Rrant Copies ; but it feems it muft be of fuch Things as
have been ufu.dly dcmifed bv him ; for it (ecms he cannot grant all his Demefnes by Copy, without
they have been ufually demis'd ; For tho' they have bc-cn dcmifed Time out of Mind by 'the fupe-
rior Lord by Copy, that will not warrant his Demife by Copy, becaufe the Cuftom muft be, that
Time out of Mind they have been granted per Dominum Manerii, now they have not been grant-
ed by him that is Lord of the Manor, tho" they have by the fuperior Lord. Thi.s Cafe feems to
prove, that a cultomary Manor to hold Courts &c. may be without any Freehold Services and it
may as well be objeCtcxl again If fuch a Lord's holding Courts, that he hath no Manor, becaufe no
Freehold Services, but it feems he may have Freehold Services.
6. Any thing that concerns Land , mti)> tlC sraittCtl Uj? Cop^. C0» lit Generally
»o U all Lands
" * * and Tene-
ments within the Manor, and whatever concerns Lands and Tenements may be granted by Copy,
Co. Litt. 5!>. b Any Profit of any Parcel of the Manor may by Cuftom be granted by Copy ;
Kefolv'd. 4 Rep. 51.3. in Cafe of Hoe v. Taylor. Jenk. 274. pi. 95. S. C. & S. P. Gilb
Treat, of Ten 514. cites S. P. out of Ld. Coke, but favs, that this muft be meant where they are
Parcel of the Manor, and not to extend to incorporeal Things in grofs ; for they are no Parcel of
the Manor.
It feems by Littleton, that only Lands avd Tenements are demifable by Copy, and therefore if the
Lord of a Manor will grant Revt charge, or the Office of Steivciriijbip, or Bailiwick of his Manor by Copy,
or a Common p,rofs by Copy, thefe be not good Grants, becaufe they lie not in Tenure, and alfo becaufe
the Cuftom does not extend unto them, but Common appendant to a Tenement, or Copyhold Lands,
may be demifed with the Tenement by Copy. Calth. Reading, 54.
7. Market, Fair, and Pifcary, may be granted by Copy. Mo. 355. Cro. C. 413.
pi. 4S0. Pafch. 36 £Iiz. in Cafe of Hoe v. Taylor. pi 5 in S. C.
he knew a Market within the Manor of Crookehorne, in the County of Somerfet, to be demifed
by Copy.- 4 Rep. 51. a. in pi. 25. S. C. and the fame Inftance given. ■ Jenk. 274. pi. 95. S,
P. Suppliment to Co. Comp. Cop. 82. S. 17. cites S. C. Co. Litt 58. b.
8. Any Profit Parcel of a Manor ^ may by Cuftom be granted by Co-
py ; refolv'd. 4 Rep. 31. a, pi. 23. Pafch. 37 Eliz,. B. R. in Cafe of
Hoe V. Taylor.
9. Common and prima Vejttira Prati may be granted by Copy, be-
caufe they are Parcel of the Manor, but what is not Parcel of the Manor
cannot poffibly be demifed fecundum Confuetudinem Manerii ; per Pop-
ham Ch. J. and therefore he held, that lythss could not, which was the
principal Point ; but becaufe upon the Verdift it did not appear that it
had h^tn granted by Copy 'Time out of Mind, it was held, that no Title
was found for the Defendant who claimed theTythes by Copy of Court-
Roil, and therefore 'twas adjudged for the Parfon, Plaintiff Cro. E.
814. pi. 3. Pafch, 43 Eliz,. B. R. Sands v. Drury.
10. Things that lie not in Tenure are not granted by Copy, as Rents, Gilb. Treat,
Bailrjuicks, Stewardjhips, Common in Grofs, jidvowfons in Grofs, and fuch °.^ ''""'• 3'^
like ; but an Advowfon appendant, a Common appendant, or a Fair appen- s'p^Forfirft
dant, may pafs by Copy, by realbn of the principal Thing to which no Rent cati
they are appendant, and generally what Things foever are Parcel ofbereferv'd
the Manor, and are of Perpetuity, may be granted by Copy,- according °"' of them,
totheCultom. Co. Comp. Cop. 54. S. 42. caTbe n"'
Diftrefs tak-
en upon them, and then they are not Parcel of a Manor v/hich confifts only of Demefnes and Servi-
ces; But then it will be objedtcd, that a Rent Service is Parcel of a Manner, and grantable by
Copy, for a Manor may be granted by Copy, but a Rent-Service may be diftrained for ; and if it
be granted by Copy, it cannot be granted alone, but Lands muft be granted with ir, upon -tvliich a
Diftrefs may be taken ; and as it is Part of a Manor, it is held of fome fuperior Lord ; But it feems
a Rent-Service alone cannot be granted by Copy, no more than Rent-Charges, or Commons in grofs,
which yet may be granted by Copy, as they are appendant to any other Thing. No Service can
be rcferved or due upon the Grant of incorporeal Things, fo that no Court can be kept by the
Grantor, noAtter.dai.ee being due from the Grantees of incorporeal Inheritances; fo as to them
there
1 2 Copyhold.
there is no Lord, and conkqiicntly they cannot pals by Surrender and Admittance, and fo arc not
gr'antablc by Copy.
11. Demcfne Lands which isoithin finie of Aftnwry have been occupied bj
the Lord himfdj\ or his Farmor^ is not g(.)od to be granted by Copy,
becaufe ot the Newnefs of the Grant, ya by Continuance of Time it may
be good Copyhold, when the Memory of the contrary is worn away,
as hath been faid before ; neither can the Lord that granted fuch a
Copy, put out his Copyholder durmg his Lite that granted the lame,
becaufe he Ihoutd not be received to dilable his own Grant. CaUh.
Reading 54, 55.
12. If a Copyholder furrenders his Copyhold into the Lord's Hands mere-
ly to the life of the Lord^ Calthorpe doubts whether the Lord may grant
this again by Copy, as he may where it come.-^ unto him by Forieiture,
or by Efcheat, becaufe it is made Parcel in Demelme by his own Ac-
ceptance, and not by the Aft of the Law ; Qusre. Caltii. Read. 55.
And cites it jj. K Copyhold may be of a Mill; adjudged. 4. Le. 241. pi. 393.
V. Harris 14- A Lcafe of the Freehold by a Copyhold to a Stranger is good between
the Lord and the Stranger ^ per Cur. Keb. 15. pi. 43. Palch, 13 Car. 2.
B. R. Garrard v. Lifter.
15. Grant oi Hajle by Copy is void, unlefs {o granted Time out of
Mind. 3 Keb. 124. Hill. 24 Car. 2. B. R. Lilhop of London v.
Row.
16. A Lord of a Manor may make nrju Grants of Part of the Manor
to hold by Copy ; admitted, and a Cafe was cited to the Purpofe. But
Lord Chancellor faid, that in the Cafe cited luch Grants were made
ivith Confent of the Homage j that the Queltion in the Principal Cafe is,
whether there be a Cuftom to do it without the Homage, and that mull
go to Law, and then it will be conlidered by them, how far a Cuft. >m to
make fuch Grants without the Homage, be a good Cuftom. Sel. Chan,
Cafes in Lord King's Time, 62. Mich. 12 Geo. i. Hughes v. Games.
(F) Grant. What fhall be faid to pafs by the Grant.
Things excepted, or referv'd.
I. TF the Lord of a, Msluot grants his Afanor for Tears, except Bofc. and
j|^ Stihbofc. growing in certain Copyhold Ground, and the Lelfees by
his Steward granteth a Copyhold, within which Mannor there is a Cii-
flom, that every Copyholder may take -within his Copyhold, Woods and Un~
derisjoods growing upm the "Ground for necefj'ary Fuel; notwithftanding this
Exception in the Leafe of the Manor, the Copyholder may cut down
the Woods or Underwoods according to the Cultom, for though the
Leffee of the Manor in refpeft of the Exception could not meddle with
the Woods or Underwoods, yet the Copyholder may, lor his Title is
grounded upon the Cuftom paramount the Exception. Co. Comp. Cop.
54. S. 42.
2. It a Copyhold be granted to a Man & Hceredibia, an EJiate Tail
does not pafs Jor want of the Words de Corpore i and if a Copyhold be
granted to a Man & Liberis ant Pucris fnis de Corpore, an Eftate Tail
does not pafs for want of this Word Heirs ; lor what Eftates loever are
Intails lince the Statute De donis Conditionalibus, were Fee-limples
conditional bclore the Statute, without the Word Heirs, and theretore
no
Copyhold. 1 3
no Intail (ince the Statute j and ior the fume Reafon, if a Copyhold be
granted to a Man^ and to the Ijjties Maks of bts Body, an Eftate for Life
only palies. Co. Comp. Cup. 59. S. 49.
3. li a Copyhold he gra/ited to a Man without exprejffiug any certain
EJiate, bylnpiication ol Law an Eltate lor Life only palfes. Co.Comp.
Cop. 59. S. 49.
4. And if I grant a Copyhold to 3 habendum [ucceffive, they are Join-
tenants^ unleis bvipecial Cultom the WordSueceffive makes their Eftatea
leveral. Co Comp. Cop 59. S. 49.
5. It'the A'/w^ by his Stezvard grants a Copyhold ^0 a Man and his
Heirs Males, or Hars Feiuak, no Fee-limple palfes, becaule the Lord
never intended to pals fuch an Ellate. Co. Comp. Cop. 59. S. 49.
6. If a Copyhold be granted to an Jbboty and his Heirs^ an Eltate for
Life only paiies. Co. Comp. Cop. 59. S. 49.
7. If a Copyhold h^ granted to a Man and to his Heirs, as long as J.
S.jhaU live, this is only an Ellate pur auter vie, and a Render limited
upon this Eltate is good. Co. Comp Cop. 59. S. 49.
8. But il"a Copyhold be granted to a Man and to his Heirs, as long as
fuch a 'tree jh all grow in fuch a Ground, this is a good Fee, and a Ren-
der limited upon it is void. Co. Comp. Cop 59. S. 49.
9. If a Copyhold be granted to J. S. and J. N". ^ HiSredibtis, they
are Jointenantstor Lite, and no Inheritance palies unto either, becaufe
of the Uncertainty, tor want of the Word fuis ; but if a Copyhold be
granted to J. S. only S Hu^redtbus, a good Fee-limple pafles without
the Word fuis. Co. Comp. Cop. 59 S. 49.
10. It the Lord makes a Leafefor }"ears of the Manor (excepting all
Woods and Underwoods) and the Leiree makes Grants by Copy according
to the Cultom, the Copyholder Jhall have Wood in thefe Woods according to
the Cujlom. 8 Rep. 107. Mich. 6 Jac. B. R. Bon ham's Cafe.
II.. A Copyhold was of Lands in Fee ; the Lord by tiie Cuftom had,
as a Profit apprender, the Ctit of the Woods and Underwoods growing on
the Copyhold. The Lord grants all the Woods and Underwoods grow-
ing, and which ajterwards fhould grow on the faid Copyhold Lands to
A. and his Heirs, whether this Ihould not merge in the Copyhold, being,
as was faid, only a Profit apprender. The (^ueltion was, If a Copyhol-
der pays a Rent to the Lord, and the Lord grants, or releafes this Rent to
his Tenant, this Ihall merge in the Copyhold ? Sed non allocatur. Vern,
R. 21, 22. pi. 14. Mich. 168 1. Faulkner v. Faulkner.
C7 Copyhold. Roll is Let-
Kxrant. r^^-J\.y^
By fwhom it may be made. [By Domini pro Tempore ^J^^J^
or not, or Perfons not having lawful Titles.]
i.nn|)C Lorn tljat Ijatlj a lauimii Cffatc in tlje c^anor, be Ije Leffee for
JL Tenant for Lite or Years, CCtUint by Statute-Merchant, Staple, Years grant-
Eiegit, ccnant at will, oc eiincDian m Cijiiialrj), ma)? srantCopiegi for^^' Lives.
iiccortJtng to Cuffom* do* lit. 58- b, and hdd
good ; For
ihe Cufiom tlrou^shcut England is, that the Lord for the 'fime beine may drmife by Copy, &c And
this notwithftandingthat he has only Durante Bene— Placito, or at Will ; Quod Kota. Br. Tenant
by Copy &c. pi. 27. cites 4 Ma 1. — 5«« it was held, that fuch LelTce of the Manor cannot de-
mife, rererving * lefs than the ancient Rent, but mujl referve the ancient Rent er more. Br. Ibid, cites
E 5 Ma-
I A Copyhold.
c Ma 1 S P relblv-d, 4 K^P- ^5 b. pi. 7 Trin. 26 Eli.. B.R. in Cale cf Chukt v.
tennvte'ather Gilb. Trc.r. of Ten. iS,. cites S. C. accordingly, prouded the ^>,c,e,>t Re„ts,
clfloL and Serines be referred ; for if the £ftate a Copyholder hath .n Lands be an Elhte that hath
been dcmifed. and dem.feable Time out of Mind by Copy by the Lord u is (ufficient to fup-
port his Elbte by Cuftom, To that no Ellate is required to be in the Lord, but only that the Copy-
hold Lands fhould be demifed, and demifeable Time out of Mmd by the Lord for the Time being,
fo that be he but Lord it is enough ; fo that the Culfom, which warrants thefe Eftates, only; re-
quires that they fhould have been demifed, and demifeable by the Lord for the Time being, but itrc-
ouires no Eftate to be in that Lord in particular, fo that he be but Lord and Cultom is the Lite
and Soul of a Copyholder's Eftate, for the Copyholder doth not derive his Ellate out of the Lords
Eftate (for then it would determine with his Eftate) but from the Cultom which only requires a
lawful Lord tor the Time being, and therefore no Regard is had to the Perfon of the Lord —And
if (^opyhold f/c/je-t^j, or comes into the Hands during their Time, any of them may regvant u at the
Will, rendiing the ancient Rent, Cultoms, and Services, and the Lord, who has Inheritance, fliall be
bound thereby. 4 Rep. 23. b. S.C.
If Tenant 2 IBUt DifTeifors, Abators, Intrudors, Tenants at Sufferance, CclH-
purautervie j^q^- ^^^^^^ CoDlcEi to UWO tijofc tljiit i)a\)C Eigljt. €0. Lit. 58- b. Co>
De«h"o'f 4- ^ttmcn Koufea>,d Arurs. 05, il. 24. aOjUOgra 151 tijc Cflfc Of a
ceiiyqu"Vie Cciiaut fli; guiftcuincc*
of a Manor i r /v 1 1
continues in the Manor, and holds Courts, andmakesvolutary Grants by the Copy, thefe fhall not
bind the Lcdbr; For he was Tenant at Sutterance without any lawful Intereft ; and VS'rit of Entry,
ad Tv-rminum nui prsteriit lies againfl him, and fo he is a Deforceor of the Manor. 4 Kep. 24. a. b.
pi 9. Pafch 19 EUz. S. C. KI0. 256, pi. 569. S. C adjudg'd ; fo when the Heir grants a Copy-
hold^ and af erwards alTigns Dower, the Feme fhall avoid the Copyhold 2 Le 45 pi 59.
S. C. adjudg' d, Kifi. Ow 27. Roufe's Cafe S. C. adjudg'd Nifl. S. P. per Cur OMter. Mo*
112. in pi. 2-; 2. S. P. in a N Ota by the Reporter, i Rep 140. b. at the End of Chudlcigh's
(^afe S. P. a<^reed Poph 71. S P. Bridgm, 51. If a Man leifed of a Manor in which
afe divers Copyholds demifeable for Lives is diffeifcd, and the DilTeifor grants a Copyhold, being
void, for 5 Lives, this is not good to bind the Diflcifed; otberivife it is 0} a Copjhold of Inheritance,
becaufe it is necelfary to admit the next Heir. Calth. Reading, 49.
Cro. E. 661. 3. JJf Tenant in Dower Of a COppIjOlU ^nUOC grants a Copyhold
pi. 10. Gay jjj Reverlion tO OllOtljCl*, where by the Cultom it may be granted in
&s p held Reveriion, tljis ©uaiit lljaU 111110 tljc l)m aftcc tf)E DentD of tlje
accordingly JfeUie, tljO' tljC EClierflOtl l3C not executed in the Lite ot Tenant in
by Popham Dower i jfor vlji9 Id all oiie uiitlj a ©rant in l^oflcffion, tJjc Cuftom
atid Clinch ; yjartantuis an Cftate in Kcijetfion. p, 4^ <i;U5* '23, E* bctuiceu
and 1 opham r^ j d
raid,th.titis<^^'y''^^''^^^J^-
row without
Queftion held to be good, tho* not executed in the Life of the particular Tenant, who granted, al-
though it was doubted in the E, of Arundel's Cafe D. 54;. Trin. 17. Eliz. But if a Feme be
endow 'd of feveral Copyhold Tenements, fhe cannot grant Part of them by Copy in Pofleiiion or
Reveifion ; for one, who has a particular Ellfate in a filanor, cannot grant a Copyhold by Parcels, or
demife Parr, and retain the Refidue himfelf ; per Popham. Cro. 66z. pi. 10 in Cafe of Gay v. Kay.
(itiardiatiirt 4. [So] Jf Guardian in Socage JjrantjS a COpDijOlD in EeUGtfiOll
Socage held accorOing to tbc Cuftom of tljc S^anor, tW fljail U a gooo ©rant,
a Court m jino btiio tijc iiDato, tljo' it corned not in li^oJeffion During tije
Name and Bouagc of tljG tiBaro, fot IjC'ld Domtnud pro Ccmpore, ix 2 j^z,
granted Co- 05* attH ^ 3 SAC. 15. tlCtlDCen Shapland and Ridler, aHjUUgCD*
pies in Re-
verfion, and held good againft the Heir. Ow. 115. i Jac. C. B. Shopland v. Radlen. The Cuf-
tom of the Manor was to admit for Life, the Remainder for Life, and there being only a Copyhol-
der for Life in PolTeirion, the Guardian in Socage, during the Heirs being under 14, admitted one
to the Remainder for Life, and held good, becaufe he had a lawful Literefl. Godb. 14;. pi 1-7. Sap-
Ian V. Ridler. S. C. Cro. J. 55. pi 27. S. C. adjornatur. — IbiJ. 98. pi. 28. S. C. adjudg'd that the
Grant was good. 4 Le. 25S.pl.q85. S. C. adiud;;'d good. S. C. cited Suppls.TiJut to Co. ' 'o mp.
Cop 82. S 17. S.C. cited per Cur. Lord Raym. Rep. 151. Mich. 8. W. 5 C. 3. in Caf^- of
Wade V Baker. S. P. by Lord Comm ilTioner [ckyl accordingly. 2 Wms's Rep. 122. Hill. 1722 in
delivering the Judgment ot the Court, in Cafe of tlie Lord Ch. f. Eyre v. the Co.iiitels of Sliafts-
bury, that Guardian m.iv grant Copyholds in Rever/ion. 2 New .^br. 6S4. cites 8 W. 5. C- 8
La<ie V. Barker, that a Guardian in Socage mav grant Copyholds in Reverfion according to the
Ciiffom of ihe Minor, tho" they * come intoPofTcltion during the Non-Age of the Infint.
♦ It fcems mifprinted and that the Word C'lot) is omitted.
5. 3f
Copyhold. 1 5
5. IfnlorDofii a9anoc devifes bp f)t0 !©iU itt ttDntmsy, that hiss. p. and it is
Extcutor Ih.ill grant Copies according co the Cultom, fOL' j|ii)a}>ntCnt Of f'le fametho'
Dcbt0, aim Dies, tlje ercciitac, tija' Ijc ijatlj no eilatc ni tlje " "t^"" ."?-
q5anoi-, map niaUe oi^rants accorDusn; to tijc CullOir ottijc ^anor* xUcoJi^
^, 7. 8 eu> D« $^j)anurcnpt citcQ Co, Lit* 58. !)♦ was void.
Arg' 2 Le, 45
cites J7 Elii Stowley's Cafe ■ Gilb. Treat, of Ten. 190. S. P. : — ^.Eep. 28. b. S. P. per
Cur. that the Grant is good j F'or alter the Afl'cnt of the Executors, lie is in by the Devife. »
Co. Com p. Cop. 47. S. 34 6. P.
6. If a BiJ/iVp grant cuftoniary Lands by Copy, and dies, the Copy*
hold is not determined by his Death, lor he was Dominus pro Tempore,
and this Grant Ihall bind the King, and the Grantee (the Temporalties
being in the Hands of the King) ihall have Aid of the King. 4 Rep.
&i. b. in Brown's Cafe cites 4 H. 6. 11. and 21 H. 6. 37.
7. If a Manor be dev il'ed to one, and the Devifce enters, and ]}iakcs Co. Litt. 58
Copies, and tbeii the Devtfe is jortnd to be void, thofe Copies if they are t>. S. P.
new and voluntary, and not made upon Surrenders, are void; per Pop-
ham. Ow. 28. cites 7 Eliz.
8. Fccffcc of a Manor tipon Ccudition makes a voluntary Grant of Co- Bendl. 290;
pyhold Eltate accordmg to the Cuftom, and after the Condition is p'- 1S9. S.
broken, and the P'eortbr re-enters, yet the Grants by Copy Ihall Hand.'-'- J^"^-
4 Rep 24. pi. 8. Palch. 26 Eliz. B. R. Anon, cites D. 342. [b. pi. 55. ^f sxfrc-'
Trin.J 17 Eliz. The Earl of Arundel's Cafe, folved,
that if the
Feoffee before or after the Condition broken, and before Entry for the Condir ion broken, grants a Copy-
hold, the Gr.-intor fhall not avoid this Copyhold, for the Copyholder is in by Dominus pro Tempore^
and parainourit the Grant It a Leafe be m idc for Tears of a Jltwor, the Lcale to be void upon the
Breach of a certiini Condition, if the Condition be broken, and afterwards the Leflee before the Entry of
the Leflbr grants Eifates by Copy, thefe Grants fhall never exclude the Lcflor, for prefently upon
the Breach of the Condition the Leafe is void ; but had ihe Afanor been granted for Life, in Tail, or in
Fee, Ld Coke thinks the Law would have fallen out otherwife; for before Entry the Franktenement had
not been avoided, and wherefoever a Man may enter and avoid any Eflate of Franktenement upon the
Breach of a Condition, the Law adjudges nothing to be in him before Entry, and he may waive the
Advantage which he might take by the Bneach of the Condition if he will, and therefore, notwith-
ftanding the Accruer of the Title of the Grantor; yet before this Title be executed by Entry, the
Grantee has fuch a lawful Intereff, that wh.n Effate foever he grants by Copy in the Interim, Ihall
ftand good againll the Grantee. Co. Comp. Cop 4S. S. 54 Gilb Treat, of Ten. 1S7. S. P. and
yet it is a Rule, that when a M.in enters for Condition broken he fhall be in of the fame Eftate he
was in before, and therefore fhall avoid all mean Charges and Incumbrances; but the Copyholder
doth not claim his Elfate out of the Lord's Grant, but out of the Culfom, and if the Grants were
made after the Condition broken, yet it is all one ; for before Entry the Feoifee has a Jav/ful Eftate,
and the Feoffor may waive the Advantage of the Condition broken ; But if a Leafe be made of a
Manor for Years upon Condition to be void npon the Breach of a certain Condition, and the Con-
dition is broken, no voluntary Grants made afterwards Ihall bind the Lcflor, becaufe the Eftate of
the Leffee is void ; but if it were for Life 8cc then the Grants were good.
9. A Lord/o)" Life^ or any other particnlar Tenant that hath an Tnte-Ibid/ay,',
reft in a Manor, may grant Copies in Reverfion^ though they be not ex-^]"^ "^^■?
ecuted in the Life ot the Grantor. Mo. 147. pi. 292. Hill. 26 Eliz.jj^g "com.t"
Carew's Cafe. of Wards,
Mich. 58 &
59 Eli?,, in V^"elih's Cafe 5 and that in the fame Cafe of Welfh it was fo adjudg'd afterwards in B R.
Pafch. 41 Eli?., upon a fpecial Verdidt return 'd tliere. Mo. 95. pi. 256. Hill l4Eliz S. P. and
Wvay, and Dyer, and all the Juflices of C. B. held the Copy not good, but Manwood and Pop-
ham held e contra ; but they all agreed, that if it comes into PofTeffion before the Death of Tenant
for Life, that then it is good To make fuch Grant good, there fhould be a Cuftnm to enable
the Lord to grant in Reverfion. Mar 6. pi. i :;. Pafch. 1 5 Car. Ld. Coke fays, that if there be
Lp/Jpc ]or lean ot a Manor, and he erants Lands hy Copy in Reverfion, that tinlefs the Reverfcn hapf'-n in
Pojfejj'on hefcre the Leafe jor Tears expires, tie Grant is void; the Reafon feelns to be, becaufe nov/ he
makes a Grant, which is only to t.tke E^ect after his Eftate ended in Point of PotTeflion, and fo will
bind the future Lord's Intereft, but let his own be at large without any Grant bv Copy, which by
Conftruftion they will not admit, but take the Rule ftritfly, that he that is Dominus pro Tempore
of a particular Eftate mnft grant in PotVeffion ; and to this Purpofe is %f}Vtl Of flDr.'OrO'l? Caft ;
but it is agreed on all Harids, that if it ccme in Pofleflion during the C'nntiniiancc of the f.ord's Ef-
tate, that it is good i but there is the taft Of (StlJ'l). i^SJ', where it was held good notwithftanding
it
i 5 Copyhold.
i' did not com.: in PollelTion ; and rhere it was laid, ihat i- w.is Cuitom only warranted the Grant,
■which mi^-ht as well warrant a Grant in Revcrfion as Pof eflio i, and if the Cluftom will warrant the
Gram of a Fee. liniple in PolTcilioii by Tuch pirticular Tenant, why not a Reverllon in Fee ? And
the like RefoUuio:! was made In fe)ir ^itlT (LfirfUl'^dlotf. It fecras the firft Ground of this Law,
that the Lord tor the Time being mii^ht ^rant Copyhold tftates, w as, becaufe Copyholders were on-
ly Tenants at Will, and io thoa;^h the Lord pro Tempore had bat a particul ir Eft.te, and yet
granted the Lands in Fee, yet that was no Prejudice, but rather an Advantage to the Lord that was
to have the Minor, in refpect of the Jjervice he was to have done him afterwards, and if he had a
Mind hr. mi^ht put oat his Tenant at his own Pleafure ; tiut this Uncertainty of the Copyholder's
Eftare being found inconvenient, it was afterwards adjudged, that he fliould retain his Land, and not
hel'ubjectto the Pleafure of the Lord, but the other Part ef the Law was left as before, viz., that
Lords for the Time being might grant Lands in Fee tho' thtry themlelves had but a particular Eftate,
and this Cullom being continued to this Day, is what warrantsthe Grants by Copy ; For it is nioft
certain thole Ellates that are granted by Lords that have a particu'ar Intereft, cannot be derived from
the Interert of the Lords, for it they were, they mult determine when the Lord's £fta;e determines,
for nemo plus Juris dare &c therefore where there has been a Cuitom that luch Laufls have been
"ranted Time out of ^Ti:'d by Copy in Fee by the Lord, there the Cullom gives the Eftare, and
the Lord is but (^ultom's Instrument to convey even where he has them in his own Hands, and
may, if he pleafes, retain them, Gil b. Treat, of Ten. 191 192.193.
I o. If the . G)tiief7 be Tenant for Life of a Copyhold A'fanor^ and a Copyhold
oi^lnherkunce tfc heats to her, Jhemay grant it again to whom Ihe pleafes,
and this (hall bind the King, his Heirs, and Succeflbrs tot ever j for
Ihe was Domina pro Tempore, and the Cullom ot the Manor Ihall bind
the King ; adjudged. 4 Rep. 23. b. Trin. 26 Eliz. Clurk v. Penny-
feather.
Ow. 4. Bragg 1 1. A. feifed of a Manor, in which were Copyholds, dies, leaving M.
V. Brook, S. his ^'/V/ow, who demanded the ^d Part of the Manor jor her Dower, by
C. heldac- ^j^g ^ame of loo Mcfuages, 100 Gardens, zaoo Acres of Land &c. and
r"db"^i^'~ ^''^ accordingly endowed of Parcel of the Demefnes and Parcel of the Ser~
pl°i5(5.'' '"ices of the Copyholds, and afterwards Ihe granted a Copyhold, and if
Bragg's Cafe, this was good was the Q^ueltion ; for if Die had a Manor the Grant was
S. C.hcldac- goud, otherwife not ; but held, that it was not ; for though Ihe mighc
cordingW,^^ have demanded a 3d Part of the Manor, yet by demanding it by the
but if fhe had Name of 100 Mefuages &c, Ihe could have no Manor ; for a Manor mull
made a De- be claimed by its Name of Incorporation, as Anderfon termed it, and not
jnand of the yj-herwife, and then 100 Mefuages &c. cannot be faid to be a Manor,
Ma^^r dien ^"<^ ^^ ^^^ Grant by her, who had no Manor, is void ; per tot. Cur. Goldsb.
jlie t^id had 37. pi. II. Mich. 29 Eliz,. Brook's Cafe.
Jtlanor, and
mi^ht tiave kept Courts, and granted Copies. And the Pleading in that Cafe was that fhe did re-
cover the 5d Part of the Manor Per Nomen of certain Mefuages and Acres and Rents wliich was
held to be no Recovery of the ;d Part of the Manor. — By Dower of the 5d Part of a Freehold
Slanor fhe fhall have a fpecial Court Baron, bccaufe (he is in by Aci of Law ; admitied ; Arg'.
Skin. 195.
4Rep. 2vb. 12 A Grant of a Copyhold by an hifatit is good, for the Copyhol-
p'- 'p,^"p" der is in by the Cuftom, and ihall bind the Infant i as a Prefentation by
R Qark v ^^ Intent to a Church is good, Noy. 41. 43 Eliz,. Reeve v. Martin.
Pennyfeather
S. P. per Cur. &c. of Nuw Compcs. 8 Rep. 65. b. S. P. per Cur. The fame Law of a Feme Covert.
4 Rep. 2;. b and 8 Rep. 63. b. — But the Baron and Feme ought to join in the Grant ; per Walmf-
Icy, J.Cro. J. 99 pi. 28.— Co. Comp.Cop. 46 S. 34. S. P. — Gilb. Treat, ot Ten. 1 84. cites lam: Points.
Tenant in Tail of a Manor wherein Copyholds are demifable for Life See.
for a certain Rent; The Copyholder for Life dies, and the Lord de-
snifes it by Indenture for 21 rears, rendrin^ the ancient Rent &c. and by
the better Opinion of the Court it is good, within 32 H. 8. Ear it is
not any Prejudice to the lliue as to the Rent. Noy. 106. Mich. 43 and
44 Eliz. C. B, Ld. Norris's Cale.
14. He
Copyhold. 17
14. He chat enters on Condition to retain till fatisfied^ cannot gran: Co-
pies ; per Walmfley J. Cro. J. 99. Mich. 3 Jac. B. R. in Cafe of Shop,
lane v. Roydler.
15. R. B. Efq; being feifed of th6 Manor of H. for Life, within Gilb. Treat,
which are many Copyhold Tenants, granteth theStewardfliip thereof by of Ten. 295.
Deed under his Hand and Seal to VV. S for Life, with a Fee of 1 o s. |96. cites
for executing thereof, and atterwards becomes Lanatick, and non com- ' '
pos Mentis, and io found by Inquilicion, and thereupon committed to
£. C. Efqi find others under the Seal of this Court. Refolved by the
Ld. Ch. J. Hobarc, and Ch. B. Tanfield, that the fiid Committees cannoc
grant any Copyhold Eltute, for that they themfelves by Law have no
Elbite in the laid Manor, nor are Lords thereof for the Time being, but
tbefaid Lunatick by his Steward niay grant Copyhold Eftates according
to the Cuitom of the fame, whereupon it was decreed accordingly.
Keverthelefs it was ordered, that the faid Steward Ihouid grant none
without the Privity t)f the Committees, nor before the Court was acquain-
ted therewith, and give Warrant tor the granting thereof ; but note,
this was in Difcretion, and the Grant by the Steward good in Law,
and this meerly by way of Caution, ibr the Benefit of the faid Luna-
tick, and Juriidiition of the Court. Ley. 47, 48. 9 Jac. Blewit's
Cafe.
16. 1{ Tenant ^t Will oi a. Manor grants Copies, and referves Rents
and Services, thofe Rents and Services are annex'd to the xManor after
the Will determin'd, though the Lord of the Manor does not claim by,
or under, but above him, and without any Privity of Eftate ; per Cur.
II Rep. 18. a. Mich. 10 Jac.
17. Le[jee for liars of a Seigniory^ afttr the 7'erm expired when he was Ow. 28.
become Tenant at Sufferance, m^y take a Surrender ; per Doderidge ^"^'^^ *'
J. 2 Roll Rep. 181. Trin. 18. Jac. B. R. fays 'twas adjudged in B. R.
18. In voluntary Grants made by the Lord himfelf^ the Law neither re~
fpeiieth the Quality of his Perfon^ nor the Quantity of his Ejlate ; for be
he an Infant, and fo through the Tendernefs of his Age infufficienc to
difpofe of any Land at the Common Law, or non compos Mentis, an
Ideot, or a Lunatick^ and fo for want ot Common Reafon unable to traf-
fick in the World, or an Outlaw in any perfonal Affion, and fo excluded
from the Prote£lion of the Law, or an Excommunicate &c. and fo re-
trained ab omnium fidelium communione, or at leall a Sacramentorum
participatione, nothwithftanding thefe Infirmities and Difabilicies, yet
he is capable enough to make a voluntary Grant by Copy. Co. Comp.
C<^. 46. S. 34.
19. If a Feme Seigniorefs take Baron^ and they ty^o join in. anxluntary
Grant by Copy^ this Iball ever bind the Feme and her Heirs, and yet
flie is not fui Juris, but fub potellate Viri, becaufe the Cuftom of the
Manor is the chiet Bafis upon which ftands the whole Fabrick of the
Copyhold Eltate. Co. Comp. Cop. 46. S. 34.
20. If a Manor is granted Condition, and before the Ccndition is broken
the Land is granted by Copy, then the Manor becomes forfeited, and the
Feoffor entreth, yet the Copyhold Eftate remains untouched becaufe
lawfully eftablillied by Cuftom, and yet all mean Eftates and Charges
whatfoever granted by the Feoffee at the Common Law were voidable
upon the Entry of the Feoffor ; for we have a Ground in Law, that
when an Entry is made for Breach of a Condition, the Party to all In-
tents is in the fame Plight that he was in at the Time of the making of
the Eftate. Co. Comp. Cop. 46, 47. S. 34.
21. If the Zorrt? or he (whofoever he be) that makes a voluntary Grant
by Copy, has no lawful Intereft in the Manor, but only an ufurped I'ttle,
his Grant Ihall never fo bind the right Owner, but that upon his Entry
F he
1 5 Copyhold.
he may avoid them, otherwife we ihould make Cuftoni an Agent in A
>\'rong, which the Law will never fufier. Co. Comp. Cop. 47. S. 34.
22. It a Dijfcifor of a Manor dies jeifcd^ notwithitanding his Heir comes
in by ordinary Courfe of Defcent, yet becaule the Tort commenced by
his Anceltor is Itill inherent to his Eltate, if a.uy Copjbo/d EJ ate he
p-r anted by the Hetr, it may be avoided by the DiJJcifce immediately upon hia
Recovery, or upon his Entry. Co. Comp. Cop. 47. S. 34.
23. So it a Dijfhfor enfeoff a Stranger of the Manor^ notwithllanding
the Feoffee come in by Title, yet no Grant made by him of Copyhold
Land thall ever bind the Diireifee no more than a Grant made by the
Diifeifor himfelf Co. Comp. Cop. 47. S. 34.
^'!]^- '^''"^' 24. Wtenant in 7'ail of a Manor difcoinuiiies and dies, and after the
S P and cues Difconttnitee grants Copyhold Eftates^ the Heir recovering in a Formedon
S. C. in the Defcender may avoid the Grants ; tor though the Difcontinuee
comes in under a jult Title, yet his Interefl being determined by the
Death ol the Tenant in Tail, the Continuance of the Poirelfion is a Tore
to the Heir, and Acts done by Tortfeifors tending to the Dilinheritance
of the right Owners Cuftom will never fo ttrengthcn, but they may be
annihilated. Co. Comp. Cop. 47. S. 34.
So if lie alone 25. If a Man feifed of a Manor in right of his Wife aliens the Manor
grants Copies ^^^^^^^j^ any Grant made of Copyhold Eltates alter his Death may be
feelm'tharaf- ^^'oi'i^'i by the Feme upon her Entry, or her Recovery, in a Cui in
ter his Death Vita. Co. Comp. Cop. 47. S. 34.
fhc may a-
void them ; For he had nothing but in Jure Uxoris. Gilb. Treat, of Ten. 31a.
Gilb Treat. 26. A Man feifed of a Manor in Fee has IlTue a Datightev, and dies,
ot Ten. 189. j^jg if'ijT^ privement enfeint of a Son ; Ihe makes Grants by Copy, and af-
terwards a Son is born ; voluntary Grants made by her are good, iot
llie was Legicima Domina pro Tempore. Co. Comp. Cop. 47. S. 34,
QY[}3 27. Feoffee of a Manor on Condition to enfeoff' anothev the next Day,
Treat, of makes voluntary Grants by Copy, this Ihall bind. Co. Comp. Cop. 47.
Ten 1S9. s. 34.
S. p. For ^^
he was Dominus pro Tempore-
So, if he 28. Lord of a Manor commits Felony, and after Exigent granted hepaffes
were con- away Copyhold Efiates, and then is attainted, his voluntary Grants "are
via by Ver- g^g^j . ^qj j^g yj^^ Dominus pro Tempore, though by Relation the Ma-
feffion Ibid, "or was forfeited from the Time of the Exigent awarded. Co. Comp.
i_Gilb. Cop. 47. S. 34.
Treat, of
Ten. 189. both the fame Points.
29. If a Manor be granted ivith a Feme in Frank-Marriage, and thers
is a Divorce had Catifa pracontra^ns, fo that now the Interelt of the Ma-
nor is granted to the Feme only, and by Relation the Marriage is void
ab initio, yet becaufe tht Baron was legitimus Dominus pro 'tempore, any
Copyholders Eftates granted before the Divorce remain good. Co. Comp.
Cop. 47. S. 34.
30. If a Man efpoiifes a Feme Seigniorefs under the yige of Confent, and
after pe doth difagree, though the Marriage by Relation was void ab-
initio, yet Copyholds granted before Dij'agreement jhall never be avoided^
Caufa quafupra. Co. Comp. Cop. 47. S. 34.
Glib. Treat. 31. If an Infant infeoffs mQ of a Manor, though he may enter upon
"s^s'p^^ me at his Pleafure, yet Grants made by me by Copy before his Entry
fays that in Ihall never be deleatcd by any fubfequcnt Entry. Co. Comp. Cop. 48.
this Cafe, S. 34.
and in Cafes
ot Grams m.ide after the Condition broken, the Grantor hatha dcfe:ifibk Title, and yet the Eflates
are
Copyhold. 19
avegood that are gianted to the CoppyhoKicrs ; yet my * Lord Coke lays, that it any one has a tor-
tious or dct'cafible Ell.itc, fubjcct to the Attion or Entry of anotiicr, his voluntary Grants fliall not
bind. To reconcile this, it feems my Lord Coke mult be underllood, that when any one hath an
Elhtcj to which another has a Right at prelcnt, that the Owner of fuch a defeafible Eftatc cannot
make voluntary Grants, but the lut.int and the Feotior have no fuch Right ; for the Feoffees in bothi
Cafes have lawful and rightful Eft.ites in the Land till they are defeated, and before they are de-
feated the Feoffors have no Right.
♦ 4 Rep. Z4. a. pi, *;. Trin. 26 Eliz. S. P. unanimdufly agreed in B. R. in Cafe o£ Clarke v. Penny-
feather.-
32. If a ParfoH after Iitftitiitiofi, and before Iiidulfion^ a Manor being
Parcel of bis Glebe Lands., grants Lands by Cepy, and after is indttiled^
this admitting of the Copyholders is no binding Act; tor though as to
the Spiritualities he be a compleat Parfon prefently upon the Inltitution,
yet as to the Temporalties he is not compleat before Induction. Co.
Comp. Cop. 48. S. 34.
33. So tf n Parlbn be admitted.^ infiitiHed, and inditffed, bat does not qjjj^' j'^^^^,
fabfcribe to the Articles ^cconXing to the 13 Eliz,. and grants Lands by ^f Xcn. 190.
Copy as before, this Grant Ihall not conclude the fucceeding Incum- 191.S.P. but
bent, becaufe his Admillion, Inltitution and Indu£tion, were wholly %s Quire
void in themfelves. Co. Comp. Cop. 48. S. 43. """*="•
34. But hid the PurCon been deprived for Crime of Herefy^ or for being
mere LaicHs, although he be declared by Sentence to be incapable of a
Benefice, and fo his Prefentment void (ab initio,) yet becaufe the
Church was once full, until the Sentence declaratory came, although
the Deprivation Ihall relate to fome Purpofes, yet becaufe the Prefent-
ment is not in itfelfvoid, furely a Relation Ihall never be fo much fa^
voured as to avoid a Copyhold Eftate in this kind. Co. Comp. Cop.
48. S. 34.
35. If a Manor he granted pur dHterVie, and Cejitty que vie dies., and
the Grantee continues ftill in the Manor, and makes Grants by Copy,
thefe Ihall not bind the Grantor of the Manor, for immediately upon the
Death of Cejltiy que Vie, the Grantee was but a Tenant at Sufferance., and
had no Manner of lawful Intereft ; for a Writ of Entry ad Terminum
qui prateriit lies againil him as againlt Deforceor. Co. Comp. Cop. 48.
S. 34.
36. kndi fo \i ^ Tenant for Life of a Manor makes a Leafe for Tears of
the fame Manor, and dies. Copyhold Ellates granted by the LefTeeafteC
the Death of a Tenant lor Life are voidable by the firll Leflbr. Co.
Comp. Cop. 48. S. 431.
37. Grants made an Alienation in Mortmain before the Lord Paramount
has entered for a Forfeiture fliall not be defeated. Co. Comp. Cop. 48.
S. 34-
38. A Lord to grant or allow a Copyhold muft be fuch a one as by
Littleton's Definition is feifed of a Manor, fo that he mult be in Pof-
fejfion at the Time of the Grant., for although he have good Right and
Title, yet if he be not in Polfeflion of the Manor it will not ferve; and
on the other Side, if he be in PolieiFion of the Manor, though he have
neither Right nor Title thereunto, yet in many Cafes the Grant and
Allowance of fuch a Copy is good, as Dominus de Fafto^ fed non de
Jure ; And in fome Cafes a Copyhold fliall be adjudged good^ accord-
ing to the Largenefs of the Eltate of the Lord that granted the fame,
and in fome Cafes Ihall continue good for a longer Time than the Eftate
of the Grantor was at the Time of the Grant ; But that is to be under-
ftood in Cafe of Neceffity, otherwife it will not be allowed. Calth.
Read. 48, 49.
39. If a Man have a Title to enter into a Manor for a Condition broken^
and he grants a Copyhold of the fame Manor (being void) at a Court
Baron, this is a good Grant, lor the keeping of the Court amounts to
an Entry into the Manor. Cakh, Reading. 49.
40. A
20 Copyhold.
so. A Man fcifed of a Manor for Lfe 'whcretintois Cipjboldof hiheritanci
kiojnnig, and ■a. Copyholder furrenders to the Ufe of a Sirangti in fee^ the
Lord may grant this in Fee, and this Grant ihall bind liim in the Re-
verlion; but if the Copyholds axq demifeabk jor Lives, it is otherwife,
for then he cannot upon Surrender grant the fame longer than the Lite
of the Grantor. But if the Lord of a. M^nor for I'ems , or during the
Minority of a Ward, of which the Cop)-holds are demifeahk jor 3 Liycs
fiiccejjivcly, and not furvivingly, in this Cafe, if the Copyholder dies,
the Lord may grant the fame being void for 3 Lives at his Pieafure,
and this Ihall bind him in the Reverlion, or the Heir of his full Age.
Calth. Reading. 50.
(H) Grants by whom. Good. Where the Manor is
divided.
J. r t^'^Enant in Dower of the ■^d Part of a Alanor has a Manor, and majr
' \^ keep Court, and grant Copies. Godb. 135. pi. 156. Mich. 29
Eliz. in Bragg's Cafe.
Gilb Treat. 2. The Lord by his oivti AS cannot make of one and the fame Manor, at
of Ten. ^^9^^ Common Law, zfeveral A^anors, conftfting of Demefnes and Freeholders -,
S^C "llTs ^"^ he may by his own hSi make a cujiomary Manor, coniifting of Copy~
tliacwhen holders, to hold Courts, and make Admittances and Grants of Copy-
rhe Giant is holds. 4 Rep. 26 b. Trin. 3oEliz. in a Notaofthe Reporter, at the
of all the £j^(j of the 3d Refolution, in the Cafe of Melwich v. Luter, fays it may
Lands °thefe appear by the Judgment in that Cafe.
is ftill but
one Court for Copyholders, which there was in EfFeft when the Manor confifted of Freeholders.'
4 Rep 2<J.a. 3. A. was Lord of the Manor of C. which extended into B. and C. 8ce.
b. [pi. 12. and in B. were divers Copyholders for Life. A. fiiffered a Recovery of
Melwich V. ^^g Manor, excepting the Land in £. Afterwards A. conveyed the Part
S'^tlTaT «'>^'^'^ extended into B. to J. S. and A. and J. S. kept a Court at B. and
this was a the Steward granted a Copyhold, being a Copyhold for Life, to the Plain-
good Copy. tiff. Refolved, that the Grant was void, becaufe there was not any fiich
^"r ^^^T Manor of B. before or now ; and per Anderfon, if fuch Severance had
thatTt'wasa ^^en ot Copyholders of Inheritance, the Copyholders and their Heirs
ftrange Ihould have had it, but it can never be fnrrendered ; for Surrenders are
Judgment, by Cuftom, and therefore they ought to be in the Court of the Manor,
and never and a Surrender to the Lord himlelf in his Houfe, or out of Court, is
by Direftion f^o"^ good, quod Beaumont concelfit. Cro. E. 442. pi. 6. Mich. 37 &
ot the Court, 38 Eliz. C. B. Bright v. Forth.
and that in
Error brought thereon in the Exchequer Chamber, the Opinion of the Juftices was, that it was er-
roneous, and that thereupon the Copyholder compounded, and took only his Corn, and relinquifiied
the Title. Cro. E. 443. in S. C. Cro. E. 205 the fame Kem.irk in a Nota there, at the End
of theCale of Melwich v. Luther, mentioned there by the Reporter, as told him bv Ewen.9, who
was of Counfel in the Caufe. Gilb. Treat, of Ten. 197. fays, that there are Precedents that
fuch Grantee of the Inheritance of Copyhold Lands cannot keep Court no more than the Gr.intce of
the Inheritance of one Copyhold, and takes Notice of what is mentioned in Cro. E. as above, of the
Opinions of the Juftices and Barons in the Exeh^n'jer Chamber, and th<it the Parties compounded.
5. A,
Copyhold.
2 1
4. A. feifed of a Manor conlilting of Services" Demelnes, and 50 * 4 Kep. 26.
Cipy holds, grant to B.the Moiety oj 20 oi them &c and afterwards cotj- ^ "■'■ ^- P^-
jDind his jormer Grants and granted the Moitty of the Manor A's E ''•''■Pia
ItacecametoC.andii^s. toD andthen C. and D. hold a Cotirt,' an7:U,Zp/n.
Join in the Grant oj the Lopyholas to maintain the Grant. It was argued er, in the
that betore the Grant to E. it was a compleat Manor, and while fuch it'^'^'"^ °*'
h.id 2 Courts (vii ) a Freeholder's Court, and a Copyholder's Court, fo SL"'
that by the Grant ol the Moiety ot 20 Copyholds, the Freehold Part PaTh "7
ol the Manor is not touched, but only a Moiety of 20 Copyholds and Eliz- c' k
io a Cop)hold Court might be held for 20 Tenements, and as to thef^ "^^
ether 30 they may remain as they were before ; but as to the Moiety ofcf'l u
20 Tenements, they might keep Court alone, and grant Monties ,^^^i^^\,^\'X^l''^
the vnire Intercjt ot 20 Copyholds had been granted, then they might ^4- b. 25 a.
have held Courts, and xhcDitlercnce is, between one Tenement being granted 55 & 54 E-
and.„wre ; lor li more than one be granted, then the Grantee may hold ''I'A?; 1
Courts, and make Admittances, this being /,r the Benefit of the Tenants ■ 26 b Ne^^le
fo that t had it been tor 20 Copyholds it had been good, whereas this igv. Jackibn,
ot a Moiety ; had it been ol a Moiety of all they had been Tenants in'^-^Z
Common, and might have joined in keeping Courts, and if fo, why not ?°" q'??"
when a Moiety ot 20 is granted? the Court advifare vulc, but in- —But f«
clined tor PlaintiJf accordingly. Skin. 191. p]. 6. Trin. 36 Car. 2. C the Cafe of
B. Lemon v. Blackvvell. Bright v.
Forth, fu-
pra, pi. 5. and the Notes there. '
(I) Grants by Jointenants.
l.r-pjrO JointefiantsofaMancr. One grants a Copy; the fame is void ^ If there be
jL for he is not Dominus pro Temporci per Anderfon Ch T Le^ Jointenants
234. pi. 316. Mich. 32 & 33 Eliz. obiter, in Cafe of Lancafter v. Lucas.' hoM^'^ne"
the whole, but if there be two Jointenants of a Manor, and a Copyhold efcheats, one ort"hem' mTy
grant this Copyhold, and his Companion fhall never avoid any Part of it Co Comp Cop 48 S
^trT~J''"'n'"'''"'°-^°'-?'''"'"'' °' ^ Manor, and a Copyhold efcheatsi one may grant ihe
whole, for he is Dominus pro Tempore, and is feifed Per my and Per tout. Gilb. Treat of Ten.
(K) Voluntary Grants. Good. And how confidered.
'■ IA7 ^,^ ^ Copyhold Lands come into the Lord's Hands bv EC-
y V cheat or Forfeittirc, he may grant them by Copy, rendering
greater Rent, but not when he admits a Tenant. 2 Roll Reo 256
Mich. 20. Jac. B. R. Smith v. Reynard. ^' ^
2 If the Copyholder (voet) (will) [but it fhould feem rather (poit)
may] pnviledgeany to aa Trees, the Lord may in his new Grant rei
Jtratn It upon Condition, and yet the Copyhold is not deftroyed by it
2 Roll Rep. 236. Mich. 20 Jac. B. R.Smith v. Reynard ^
G
(L) Grants
2 2 Copyhold.
(L) Grants of Copyholds. To whom they may be
made.
I . ' B ^ H E fame Perfons that are capahle of a Grant hy the Common Law
JL are capable of a Grant by Copy, according to the Cuitoin of
the Manor. Co. Comp. Cop. 49. S. 35.
2. An Infant, a Man non fanx Memori^^ an Ideot, a Lunatkk^ an
Oatlaw, or an Excommunicate, may be Grantees of a Copyhold Eltate.
Co. Comp. Cop. 49. S, 35.
3. The Lord himfclj may take a Copyhold to his own Ufe. Co. Comp.
Cop. 49. S 35.
4. One -Jointenant may receive a Copyhold irom the Hands of his
Joint-Companion, because it pafTcs by Surrender, not by Livery. Co.
Comp. Cop. 49. S. 35.
5. A Feme Covert may be a Purchafor of Copyhold, and this Purchafe
fhall ftand in Force until her Husband difagrees. Co. Comp. Cop. 49.
S. 35-
6. Hefliall be faid a Perfon fuffjcietit to be a Copyholder, who is of
himfelf ak/e, or by another, to do the Service of a Copyholder ; as an Infant
may be a Copyholder ; tor his Guardian, and Prochein Amy may 'do the
Services J So a Feme Covert and her Husband fhall do the Service ; But a
Ltinatick, or Ideot, cannot be a Copyholder, becaufe they cannot do
the Service themfelves, nor depute any other, and the Lord fhall re-
tain the Copyhold of an Ideot, and not the Queen. Calth. Reading.
51, 52-
7. A Bond-Man or Alien horn may be a Copyholder, and the King or
Lord cannot feife the fame. Calth. Reading. 52.
8. But a Man cannot be a Copyholder unto a Manor, whereof he himfelf
is Lord, although he be but Dominus pro ^ermtno Annorum, or in Jure
l/soris. Calth. Reading. 53.
Jhi.'i in Roll
(D)lnfoi. (L. 2) Grant. ^/ (what Place it may be made.
499
See (,N. b)
I. rj^^ e Lord of a CopvljoID {^anot map himfelf grant a €0-
X PPljOln at any Place' out of the Manor. CO. 4- 26. b, DC
tiUtZlX Mefwich and Later.
(M) Grants. How they may be made, and of what.
Foi- the i.TFthe Lord grants to his Copyholder the 'Trees growing upon the
GiMtit as to ^ Lands, and ^vhich fhall after grow, with Liberty to cut them dozvny
^'^hTT^i ^"^ carry them away, he may juitiry the cutting of the Trees which
RiowVc'er- are growing, and it Ihall not be a Fbrleicure of his Copyhold, be-
wai-ds is' caufe the Lord hath by his Grant difpcnlcd with it, but he cannot cut
void. Mo. ^own the Trees which Wall thereafter grow, as it was (aid by Piowden
s^-ip'"34. and
Copyhold. 23
a;;dTopham. Supplement to Co. Comp. Cop. 80. S. 13. cites Pafch. ^"-^^G.
12 Elii. in B. R. Mo. 94. , 29. pi. 57-
M- h iiEliz C B Anon S P. as to a r.c.ife of Lands and Bargain and Sale to the Leffee of thr
Woods growing, but th.u was not (as it fccm,) of Copyhold Lands.
2 O/ie ivho has a particular E/ate in a Manor cannot grant a Copy-
hold h I'^^cels, or dmtjc Part, and retain the Rf due hnnfelj ; and
therefore if a Feme be endow'd of feveral Copyhold Tenements, Ihe
cannot grant Part of them by Copy in Pollclhon or Reverl.on , per
Popham! Cro. E. 662. inpl. 10. Paich.41 Lhz.B R. ^_
I If the Steward dmuujhes the Ancient Rent and Services tis a void
Copy. Cro. E. 669. pi. 13. Mich. 41 and 42 Ehz. B. R. m Cafe of
^'TlilhQLordoi a Manor having ancient Copyhold in his Hands will
IV a l^ci^Aoi Feoffment, or hy ^ fine, grant this Land to one to hold at
the mil of the Lord according to the Cnftom, yet this cannot make a
eood Copyhold. Calth. Reading. 47. , . . . o ■ „n- /,»
^ . In Grants made upon Forjeitnres &c. the Jnctent Services vmjt be
refe'rved, and the Cujhnis alfo. The Reafon ot this feems to be b«:atife
there is nothing bat Curtom to warrant the Grant by Copy, which
ouaht o be llriaiy purfued as to the ElUtesCuftoms Services and
Tenure or elfe it is not the Eftate that was demifed betore , Eat y^t
SSr^'anBuS th°ert°i b'ein^iSailp :ars to be'\he old Eilate , but
thenM^fZnsanezvFJlateb^ Copy, fince it is an Eftate againrt com-
mon Righ, fnd warranted only by Cnftom, that muji bechi^y purfaed
Tbirui tie Heir Lord Coke fays, * if the ancient Cuftonis and Ser- , ^o. '
vices be not referved, the Grant by Copy will not bmd the Heir orco.p. Cop.
Succeflbr This being fpoken fo generally, feems to intimate plainly, 5.. S. 41.
that i the Anceftor hath a Fee in the Manor and he grants withou
obfervingthe Cuftom, his Heir may avoid it, becaufe it being a Grant
aS fommon Right, the Cuftom mutt be purfued. (Quaere Cro. E
662 Ron Ab. 499) Befides, he puts Heir in the fame Equipage with
luci, and if he means with the Confent ot Dean and Chapter, then
a Sop had as much Power as an Anceftor; if he means without the
ConS Vet it is not that Ihould avoid the Grant, but the Non-refer-
vation of\he Ancient Tenures. And /. /nV? /. the Law in this
pont that iftheRent be referved in Silver, where anciently it was in
fdd or layahk at two Feajis, where anciently .f «;«5 payable at
^fl?eaft, l?it t^o Copyholds ifcheat, one ufually dejnifed for .os and
the o'S OS. ind he demfes both for 30 s. fo ;/ 3 ^^^es efcheat held by
Ts andhe grants one by hopy, referving is. this 'J ^l^g^^f^' ^°^^^^^^
Cuftom, which is the only Thing that warrants fuch Grants, mult De
purfued! Gilb. Treat, of Ten. 185. 186. 187.
(N) Grants. How feveral Eftates are granted In one
Copy.
Seifed of Copyhold Lands of the Part of his Father, and of other
Copyhild Lands ./ the Part of his Mother, and thereof died
feiTed^hisSonand Heir is admitted by one Cop/ and one Admit-
tance it that Son dies without Illue, the Copyholds Ihall decml fv-
raUy, 'the one to the Heir of the Part of the Father, the other to^ e
^•A,
2 4- Copyhold
=—■ ' ' • ' — ■ ' ■■—-■■-■ ' --■- ■-..-. _ ^ ^
Heir of the Part of the Mother. Arg' 3. Le. 109. pf 158. Trin. 26
Eliz.. B. R. in Cale ot Tavcrner v. Cromwell.
3 L?. ICO. 2- The Tefiifid' p.r J/itiqiia Scrvttia &c. in the lingle Copy, conti-
pl 158 Ta- j^^gg fiig feveral Tenures, tho' the Parcels are ail put into otie Copy
Cromwell, Refolvfd. 4 Rcp. 27. 6. pi. 15. Trin. 26 Eliz. B. K. Taverner v.*
S. p. biu not Cromwell.
yet refijlv'd.
Cro. E. 779. 3. F/ww afTefTed feverally where the Copyholds are feveral, and
^'.'''' H^'" the Demand mult likewife be feveral, 4. Rep. 28. a. pi. x6. Mich. 42
mond', s G."^nd 43 Eliz. B. R. Hubbard v. Hamond.
& S.'p. re-
folv'd ; for perhaps the Heir may accept the one at the Fine aflefled, and refufe the others upon (uch
Fines Mo. 621, 625. pi. 851. S C. held accordingly. And a Reat denied of one jorfeits that
Copyhold, and not the other ; Arg' Het. 6. cites Tavenier's Cafe.
(O) Grant. Operation thereof. And what Eftate and In-
tereft palles thereby.
1. nn HOUGH the Quantity of the Lord's Eftate in the Manor be
X not refpeaed, yet the Quantity of his Ellate in the Copy-
hold is regarded i for if a Copyholder in Fee ftinenders to the Ufe of the
Lord for Life, the Remainder over to a Stranger ^ or referves the Reverjiott
to himfelf^ it the Lord will grant this by Copy in Fee, whatfoever fi-
liate the Lord has in his Manor, yet having but an Eitate tor Life in
the Copyhold, no larger Eitate Ihall pafs'than he himfelf has 3 Quia
nemo poteft plus Juris in alium transferre, quam iple habtt. Co. Comp.
Cop. 47. S 34.
2. What ABs foever are not confirmed by Cufiom^ but only Itrencrthen-
cd by the Power, Authority, and Interelt of the Lord, have no longer
Cuntintiance than the Lord's EJlate continues j and therefore it 1- held
that if a 'tenant for Life of a Manor grants a Licence to a Copyh Ider to
alien^ and dies, the Licence is deltroyed, and the Power of Alienation
ceafes. Co. Comp. Cop. 47. S. 34.
3. It' a Copyholder for Life, Remainder over in Fee to a Stranger, ftirren-
ders in Fee, and the Lord admits accordingly, yet an Eitate for Life only
pafles. Co Comp. Cop. 48. S. 34.
4. So it the Lord of a Manor grants a Copyhold for Life where an Efiate
in Fee is warrantable, and the lame Grantee fiirrenders in Fee to the Ufe of
a Stranger, and the Lord admits him,fecundumEffefftmfurfum-reddittoms,
JLd. Coke thinks no Fee pajfes^ for tho' the Lord's Admittance may prima
lacieleem to amount to a Contirmation ot the Ellate furrendered, the Re-
yerhon refts m him to difpofe of according to the Cultom ; As where a
Lellee ot Years, at the Common Law, makes a Feofhnent in Fee, and
makes a Letter ot Attorney to his Lelfor to deliver Livery and Seihn
who executes it accordingly, though the Lelfor be ufed as an Inllru!
ment to perform the Will of the Lelfee, yet this being his voluntary
Afct, the Law takes it as a Confent for the palling away of the whole
Inheritance. But if you look narrowly into both Cafb, you ihall find
the Ditlerence, in the latter Cafe by the Feofiment the Fee is develled
out ot the Lelior, and therefore a Confent will ferve to transfer the
Reveriion but in the former Cafe, the Reverlion is not pluckt out ot
the Lord by the Surrender, and therefore an implied Con Cent h too weak
to remove ic, Co. Comp. Cop. 48. S. 34.
;. If
Copyhold. 2 5
5. lizha Lord in open Court doth grant Copyhold Land, and the Ste-
ward makes no Entry thereof in the Court Rolls, this is not good, tho'
ic be ne\er lb publickly done, nor no collateral Proot can make itgood.
Calth. Reading. 47.
6. But if the lenant ham no Copy made unto him out of the R.0II, or
if he lofe his Copy, yet the Rolls are ftill a fufHcient Title for his Copy-
hold, if the Rolls be alfo lojf, yet it feems that by Proof he can make this
good. Calch. Reading. 47, 4S.
[P] Cuftom. This in Roll
Pnrfmme. p Letter ( L)
^J'%7t mall be laid a Furfuance of tfje Cujlom.
Copyhold.
infol. 511.
'1
jf tijC Cuftom Of tlje S^anOC be, That the Lord may demife the CmE. 575.
Copyholds in Fee, he may demife them for Lile, V^ears, or in P'- ^o- S '^
Tail, foe tljEfe €ttntc£j arc incmocti uiitljtn a ifec iuljicO i$ tie greats '^'""^"s p
cr» ^icl). 37 €li?» 13. E» iJctiDCcn *^««?o« ano -e^r«j, aoitiDueii -, by two juf-
atm tiiere fam li}? l^opljam, tijat it lua^ fo afitecD petCunam atst* tices, tiie
aibau'si Cerm. Co. lit. 52. u* abftntjild
accoi-dinglv, becauTe Omne niajus continet in fe minus. Godb. 20. pi 16. Pa(T;h. 16 Eliz. C. B. Anon.
. 4 Rep. 25. a. pi. 5. Mich. 5 5 & 56 filiz. B. R. Giavenor v. Todd, S. P. adjudg'd.
2. SoiftljCCuftom Of tlje{il5t1ltOClJC, That the Lord may folum- Cm. E. 37-:
modo demife his Copyhold Land in Fee, JCt tljC HOtll may demife it pi- 20. S. G.
for Life, Years, or in Tail, though there were never any fuch Eftaces but ftatesit
made before, fOl* tOC l®Ortl Solummodo id nOt tO be taliCn fO ttrtCtlD tO mifableTn
rcatain tlje Lorn from tl}i0 Libertp, Uiljictj tlje Latu gtlie^ Ijim ifgon Fee or for
tlje general Ciiftoin, but tljat be \ym S)oUimmoQO to grant in Jfee, Life, soium-
MjiCb does not take away the Liberty which the Law gives, g^ldj. "°'^° ^^ '^^"
^7 CU?. 015. K» bCtlUCCn Stanmon antl Barns, aUjUbgeD, UlljlCl) in= Manus^Do-
tratuc OiH* 36 Cli?. Hot. 492- ^^. lit* 52- b* n^ini, and
the Lord
dcmifcd it to A. for Life, Remainder to B. in Tail, Remainder ro C in Fee ; and refolv'd that rhe
Rem.iinders were good, and the Remainders and the particular Tenant make but one Eftate, and it
beinf; found that the Cuftom is, that it fhall be granted Solummodo ea capienti, it is void therein,
wheiefore it was adjudg'd accordinp;Iy for the Plaintiff. S C. cited Arg. 2 Ld. Raym. Rep.
P97 Ibid.S. C. ciied loot, by Holt Ch J. S. P. by Holt Ch J -.nd circd S. C. i Salic,
189.- Gilb. Treat, of Ten. 508. cites S. C. held accordingly ; but puis the Cjfe, th.it fuppofe '\l
had been fhewn and pleaded, that he could not grant any otherwife ; and fays Qiizere of that.
3. 3!f tbC Cullom be. That Copyholds may be granted for three S. C. cited
Lives, a Copy may be granted to three lor the Lives of two ItDttljUl X\)Z ^^ ^\
Cuaom, for tbcre 10 not anp Jncon^jenience to tlje lotb, tljoiigl) itpj'^and'^'
be foe tlje lite of anotljtr, for tbcrcfljall notbeanp ©ccupmupib.d. looi,
tijElCOf, but tljC Lord Ihall have it, it the Tenants pur auterVie die, liv- 1002. by
ing th€ ceituy que Vies ; ano tl;!6t0 uot a greater Gfiatc tban for tbrcc |^'J' J-
libed > but'it i!3 for ttoo lii^esi, uiijidj ijs lcf0 tljan tlje Cuftom Uiar=in fuch cairc
rants. ^. i j Jn. 05. K. betH'ccn i en anD Howeii, per Curiam. be granted
to A. for
Life, and to B. durante Viduitate fui ; for where the Cuftom warrants the greater Eftare it warrants
the lelTer, efpccially here, becaull- this is alio an Eftate for Life, but limited, and as it were condi-
tional. Cro E. 52';. pi. 1 1. P. (oh. ;6 Ehr.. B. R. Downs v. Hopkins. 4 Rep. 29. b. :;o, a. pi
ly. S. C. adjudged.- Supplcmiiic to Co. Comp Cop. 81. S, 16. ci;es S C. ^S P. & S. C-
H cited-
26 Copyhold.
cited by Holt Ch J. I Salk. is'9. Gllh. Trtat. of Tai 207. cite^ S. C- but fays it is not good
Vice vcrl'a.
4. If Cuftomary Land hath been of ancient 7'ime grantable in Fcc^
and now ol late I'ime jor the Space of 40 7 cars hath granted the fame
for Ltfe on!j, yet the Lord may, ii he pleafe, refoit to his ancient
Cuftoin, and grant it in Fee. Le. 56, pi. 70. Falch. 29 Eliz.. C. B. Kemp
V. Carter.
Supplement j. If cullomary Land within a Manor hath been grantable in Fee, if
to Co. Comp. jjQ^ jj^g ^-^j^jg cj'i;l^gats to the Lord and ht: grants the fiuic to another for
ffi'^ci^tes ^^J^^ "^^^ ^''"^^ ^^® holden a good Grant, and warrantable by the Cuf-
5.C torn, and Ihould bind the Lord ; tor the Cultom, which enables him to
grant in Fee, ihall enabie him to grant ibr lile, and ajter the Death
of the Tenant jor Life, the Lord may grant the fame again in Fee, lor
the Grant for Life was not any Interruption of the Cultom &c. which
was agreed by the whole Court. Le. 56. pi. 70 Pafch. 29 Eliz,. C. B.
Kemp V. Carter.
Ld. R;iym. 6. Cultom in a Manor to grant Lands by Copy to 2 or 3 Perfons for
Rep 994- their Lives, Habcnd" fticcejive &ic. Grant to A. Habend' to him during
S.C. ad-^ the Lives of A. B. & C. is warranted by the Cultom. i Salk. iSb,
g^Sulk I Si. Hill. 13 VV. 3. B. R. Smartie v. Penhallow.
pi i.S. G.
adjud^'d, but Powell J. doubted. 6 Mod. 65. S. C. and the Grant held good.
(P. 2) Cuftoms. Pleadings.
2. A Cuftom is alleged g'fw^ /»/r^ maner pradiclmn talis habetiir nee
Jf\_ non a toto Tempore ciijus ^c. non exiflit, habebattir Confuetudo (viz.)
quod qnihbet Tcnentes pradiliorum Tenementormn vocat Collins &c. ha-ve
tifed to have Common in fuch a Place of the Manor, this was held well
-as well for the Form as the Matter, and that fuch a Prefcription might
be applied to one Copyholder. For Copyholders cannot prefcribe by rea-
fon of the Bafenefs of their Eftate in their own Names, but in the Name
of the Lord, as to fay, that the Lord of the Manor, and all his Ancel^
tors, and thofe whole Ellate he hath, have had, in fuch a Place for him
and his Tenants at Will &;c. as 22 H. 6. 51. a. and this lliall ferve
when a Copyholder claims Common or other Profit in the Land of a
Stranger ; but when he claims Common or other Pro/it m the Soil of the
Lord, he cannot prefcribe tn the Name of the I^ord, nor in his oivu Name,
hut proitt fupra. 4, Rep. 31. b. 32. Mich. 18 & 19 Eliz. B. R. Foillon
V. Cr ache rode.
2. It was pleaded, that the Copyholders of the Manor of B. C. that the
Lands where demtfed and demifable Time viit of Mind ; but adjudg'd ill,
becaufe it is not certain whether they were demifed jor 2'ears, Ltje in
Tail, or in Fee; and it was alfopewn, that the Lands were granted by
the Steward, but did not /hew his Name which is ilfuable. Sav. 131. pi.
205. Pafch. 36 Eliz. The Archbillwp of Caterbury's Cafe.
3, Copyholders in alleging a Cultom need not Jhcw their F.flates in
Certainty, but if any Tenants of Freehold at Common Law will claim
any fuch Benefit, they ought to Ihew their Ellate, and the Names of
the Tenant in Fee by a Que Eltate ; per Saunders ; Arg' 2 Saund.
326. Palch, 23 Car. 2. in Cafe of Hcskins v. Robins.
(P. 3) Of
Copyhold. 27
(P. 3) Of Grants in Reverfion. Where. And by ^^^^q, ,
whom. And Pieadhigs. ■314.'
■ N Trcfpafs ; the Defendant pleaded, that the Place -juas Copyhold, and 3 Le. 225.
^ that a Grant was made to S. who granted it to him, &c. The Plan- ^■- ^°3;
t'ltt' replied, that bejore the Grant pleaded hy the Defendant, ^. Z. w^?i ei|j c'a
Leffee Jor Life, according to the Ciifiom oj the Manor, and that the Ciijlom Anon, but
ts, that the Lord may grant Copies as well in Reverjion as m Pojle[/ion,'^-^- audit
and that M. being Lord of the Manor, granted a Copy in Reverjion to '^^^ anfwef-
the Plantitf before the Grant made to S. and that after the Death o/'coulrdof
J. L. he entered &c. The Delendant rejoined, that there is a Ctijloiu the other
in the Manor, that the Lord may grant Copies in Reverjion, by the . ^- Side, that
^reement and Confent 0} the 'tenant in PojJe[fion and not otherwife, abfqiie t^is Cuftom
Iwc that they are grantable Modo & Forma ^ and upon Demurrer ™fj|^{iYBe-
Walmlley Serjeast argued, that this Rejoinder was ill and repugnant, ginning, and
for the \\'ords (if any Copy may be granted) imply, that there is mig'^t be
fuch a Gallon 1, and then the Traverfe of the Cullom is void, and fo S'"^'^*^'^'^ o^
is tlie Cullom itfeU. Goldsb. 103. pi. 8. Mich. 30 & 31 Eliz. Plimp- of tl,e Com-
ton V. Dobynett. mon Law, "
that a Re-
naindei- lliould not be without the Affcnt of tlie particular Tenant, and fo the Cuftom might be good.
The Court delivered no Opinion in tlie Cafe, but it was adjourned. Godb 140. pi. 171. Anon, but
S. C. argued, fedAdjornatur.— Supplement to Co Comp. Cop 84. S. 19. cites S.C. and that it was faid,
that this Cuftom might be good, for it might be fo agreed and granted by the Lord at the Beginning,
upon the Creation of the Manor ; and that it feemcd to be grounded upon tlie Reafon of the Common
Law,thataRemainder Hiould not be without theAlTent of the particularTenant, and to commence with
his Eltate, and that therefore it was a good Cuftom. Quxre the Cafe ; for it was not refolved, l\Iich.
51 Eliz. inC. B. Nels Lex. Man. 93.pl. 11. cites Gouldsb. 105. S.C and that it is a void Cuf-
tom, but this feems to be his own Opmion only, and not warranted by either of the Books above
cited. And 5 Nels. Abr. 555. pi. 5. cites S. C.
2. U ^Man(\fWQ.sfi.\d)hefeifed of a Afanor^ whereof there are di-^^^'^etTes
vers Copyholders admtttable for Life or Jor Tears, and he leafes the Manor ^°'^^^^''^°^
to another for Term of Life, the. LelFor [Lellee] may make a Demiie by ^f^^"°aC
Copy in Reverlion, to commence after the Death of the firft Copy- pyho'ld''in°"
holders, and that is good enough ; but the Cullom of fome Manors is B ever/ion,
to the Contrary, and that is allowed, Heth 54. Mich. 3 Car. C. B. ^""^ ^^f"^'
Davies v. Fortefcue. 'I'L f'"
happens the
lerm is ex-
pired, the Grant is void ; and/> Ld. Coke takes the Law to be, if the Lejfee furreKclers his Termf and then
fore his Leafe Ihould have ended in Point of Limitation the Reverlion falls, yet the Grantee fliall
not have it Co. Comp. 48. S. 54.
3. There ought to be a Cujiom to enable a Lord of a Manor to grant Gilb. Treat,
a Copyhold in Reverlion. JVIar. 6. pi. 13. Pafch 15 Car. Anon, of Ten. 505.
cites S. C.
and fays. If this be underftood where Copyholds arc only grantable for Life, it feems reafonable e-
nough ; but where they have been granted in Fee, there if the Lord grant to one an Eftate for Lifej
that he m.^y not afterwards gr.mt the Reverfion in Fee to another, feems very unreafonable.
(P. 4) To
28 Copyhold.
(P. 4) To whom Copyhold granted for his own Life,
and the Lives of others fliall defcend, or go upon
Death of Grantee.
I. A Took a Copyhold Eftate/or the Life of himfelf and B. afid C. and
^^j^. dies. His Son, who was neither ot the Nominees, enters, en-
joys, and dies inteftate. J. S. adminiftered to the Son. There is no
Cuftom in the Manor that the firlt Taker might furrender, nor have
they any Cuftom where the Copies run fuccelfive. Lord Jefferies de-
creed for the Adminiftrator, Vern. 415. pi. 394. Mich. 1686. Howe
V. Howe,
TS.fit\ [P- 5] Surrender to an Ufe.
in foi. 504. Ad}mtta?icc.
\And hi what Cajes the Lord /hall take as a}2 Occu-
pa?7t gf^.]
S. p. by I. TJf a Copyholder in Fee farrendefs to the Ufe ofanother for Life,
Walmfley. J|^ ^q j^^qj.^ p^-,|j[gg ff Ol„ |jj„^ ^^t jjjjjj^j. j,jjij ^^^^^ jjjj C?im [WWV
ii'Tn pi. ten in aft* Co, 9- ^arg. poDget 107, pec Cohe,
4. — -Cro. C.
205. pi. lo. Mich 6 Car. B. R S. P. per. Cur. For in fu:!i Ctfe the Surrenderee is in Quafi by the
Copyholder, and by his Death the Copyholder fhall have i: again.
Ibid, fays 2. 31f Jl Baron feifed in the Right of his Feme for Life of a Copyhold,
the Cafe was |-|jg Reverlion being grantCD to B. tljE Remainder to C. tor their
^h^^'^h'Ta Lives; anH tl)E Baron furrenders to the Ufe of B. for his Lite, tCI
ron andVe!' lUljOUl tljC lOtH gCnntiS It fOt W KfC, ann fa he is admitted Tenant,
me would and alter dies, til tljtjS CSfC ttjE Baron Jhall not have it again during the
veieaie all Life of his Feme, inafmiict) 00 f}c Ijat!) DifuulTcii Ijiuirelf Of It, aim c*
iithtTo c C'^""''t ija^^ i^ mtving tljc lite of tlje Jf einc luitijout tOe ©uritnocc
but the Lord Ottlje ifCme, aun tljeCCfare tlje Lord Ihall have it as an Occupant 511=
lyouid not ring tljc Lift of tl)E IBacotu D, 9 €!♦ 264. g), 38.
receive it,
nor hold a Court for that Purpofcj that in Mich. Term after it was decreed, that the Lord hold a
Court 8cc. or avoid the PofTiffion. — S. C. ciied Ci-o. C. zuj. — S. C cited per Cur. 2 Kcb. 824. in pi.
41 Mich. 25 Car. 2. B. R. in Peeble's Cafe GUb. Treat, of Ten. 24c, 241. cices S, C. that C. pray'd
to be admitted, and his Copy ivas cum acciderU pcfi Ahrt' fnrfum-red' vel Forisfac' of tie H oman ; and ic
was the Opinion of the Jullices, that he ought not to be admitted; but tiie Lo;-d may retain it in
liis Hands as an Occupant. The Reafon i.s, becaufe the Interelt of the Feme was concerned, who
had not furrendred ; but there was this further in the Ciife, that Baron and Fem- would have rc-
leafed their Right to the Reverfioner, but the Lord v,ould m.t hold a Court tor it ; but it was de-
creed in Chancery, that he Ihould cither hold a Court or quit the Pon'eifion. ,
Cro. C^204. 3, 3f a Copyholder for Life furrenders tntO X\)Z danUS OftljC lOrH,
t.inft "^ '° '''' ^K''^ •'■ '^•.^^ ^^^'^'^ foiioiDjs, nun tljc loro grants; it aftcc to
L;,rde,S C. % ^. to l;at)e to Dim tat Dl? Lite, anO J. S. is adir.icccd accordingly,
aHjud5:-d in and aftECdies, \\\ tl)I0 CilfC chi.s Ih.iJl not revert td tliC fiClJ Copi'ljOl'
B.R. for in jcc foc Life, fot Ije tjatli tuljollp mnrnileD !unjfeifbi»'tiie ^xitrcnDcr,
luchcafeof j^m, x\)%x%Xm x\)z IgrD fljali tjavt it, ^\z% 7 car. ui Camcca
®cac=
Copyhold. 29
gicaccauii, btmttn Kin- anD Lodo-, ntJuiOffcli in n mtit of €uot i i sm-render
niiD tljc 3iron;nicnt in 15. U. luljicl) mas tljccc Qincn accarOtnglD pec f^^^ 0^"^
curiam, upim ^r«unient at tljc iSav, luasi noiu aft'inncti pec Cue* surrenderee
pc^tec iputrou, luijoinclnicD c contca,aiii]irw?o«,uji)a DoufateOtljeceof* is merely m
by the Lord,
and not by the Copyliolder who fun-endered But if a CoppyhoUer in Fee furrenders to V'lC of ano-
ther for Life, who is admitted, lie is in (^uilfi by the Copyholder, and upon his Death the Copyholder
fliall liave it again ; and fays, that the Judgment in B R. was affirm'd by all the Juftices of C. B.
and 'arons of the Exchequer. Ibid. . Same Diverfity taken, Arj;' Poph. 99. Hill 56 Eliz. in Cafe
of Bullock and Dibler.- Jo. 229. pi. 5 . S. C. adjudged S. C cited by North Ch. J. Mod. 200^
pi. ;i. Parch.27 Car. 2. C. B. fliysthis is to be underflood of Copyholds in fuch Manors where the
Cuftom warrants only cuftomary Elfates (or Life, and is not applicable to Copyholds granted for
Life with a Remainder in Fee Freem. Rep. 192. pi. 19(5. S. P. by North Ch. J acccordingly. •
Gilb. Treat, of Ten. 240. cites the Cafe of King 7 Loder. That if there be a Co/j^fc/iVer/or Life, and
he furrenders tothe Ufe of nncther for Life, viho is accordingly admitted, and then dies, yet the Surrenderor
fliall not be admitted again ; for by the Surrender he pafled away all his Eftate, and had no Intereft
left in him. If the Surrenderor had died, it feems that the Eftate of Tenant for Life was not ended, for
then the Lord would have two Deaths to depend upon, either of which would bring him to the Eftattfj
and yet but one Perfon that had an Intereft.
{ Q^) Where the Eftate granted fhall be fubjea to the
Incumbrance &c. of the Lord.
t. "T ORD and Copyholder for Life ; the Lord grants a Rent-charge ont
I J of the Manor whereof the Copyhold is Parcel ; the Copyholder
ftirretidreth to the Ufe of A. "who is admitted, he fhall not hold the Land
charged. 4 Le. 118. pi. 236. cites it as adjudged lo Eliz,. C. B.
z. h there be 7'eua?tt by the Ciirtefy^ or Jor Life or Tears of a Manor,
and a Copyhold comes to his Hands by Forfeiture or Determination^ and af-
terwards he binds himfelf in a Statute, and then demifes the Copyhold Land
again, this Copyhold ihall be liable to the Statute, becaufe it was once
annexed to the Freehold of the Lordy and bound in his Hands. Mo. 94.
pi. 233. Pafch. 12 Eliz. Anon.
3. Lord and Copyholder for Life ; the Lord grants a Rent out of his Supplement
Manor whereof the Copyhold is Parcel, the Copyholder furrenders to the^o Co. Comp,
Ufe of A. who is admitted accoidingly, he fhall not hold it charged ; *-'°P?'7- S*
but if the Copyholder dies, fb that his Ellate is determined, and the Lord ^ q^
grants to a Stranger de novo to hold the faid Lands by Copy, this new Te-
nant fhall hold the Land charged j and fo was it ruled and adjudged in
C. B. Le. 4. pi. 8, Mich. 25 & 26 Eliz. Anon, cites it as adjudged lo
Eliz.
4. In a Replevin i the Cafe was, that Henry, Earl of Weflmorland, Supplement
was feifed of the Manor of Kennington in Fee, and granted a Rent- to Co. Comp.
charge to VVm. Cordell, afterwards Matter of the Rolls, for Life, and ^j^, g'^' tl
afterwards a Feoffment thereof to Sir John Clifton, who granted a Copyhold BuTqujer'e~°
to Sands/br Life, according to the Ciijlomot' the laid Manor, the fame be- thatCafe,
ing an ancient Copyhold. S'n ]6hn d.ie.Aiiiikdi the Rent is behind; Sir a^^d vide
Wm. Cordell died; Hempiton as Bailiff of Cary, Executor of Sir Wm. jj^'"^'^^^'^
Cordell dil^rain'd for the Arrearages upon the PofTelfion of Sands, and EarlofWeft-
ic was clearly holden by the whole Court, that the Poffelfion of the morland's
faid Copyholder zvas not chargeable to dijirefs upon this Matter, for the Cafe ; for
Copyholder is not in by him who ought immediately to pay the Rent, ^^''^^ '^'*
but is alfo in by the Ctiflom. 2 Le. 109. Trin. 27 Eliz. B. R. Sands v. thlt'lthehe-
Hempllon. mefnesoiz
Manor iver.?
nfuirlly let for Lives hy Copy, and the Lord granted a Rent-charge to Y D pro confdh impendindo for Life,
.ind afterwards conveyed the Manor to J 'S. in 'tail The Rent w.is behind, and the Grantee of the
Rent died, and the Eseattors oj the Or.wiee dijlrained for the Arrear.igei ; and there it was adjad;ed,
1 that
Qo Copyhold.
tlMt the ( om holder ftould hold llie L:iiids charged, Supplement to Co. Comp- Cop, S7 S 21. citeS
" Le 59. Hill iS Elii. C. B. Earl of Weftmorland's Cale. zLe. 152. pi. 1S5. the Executors of
Cordel v. Clifton. 5. C. in tbtidem Verbis ; Le. 59 S- C. in totidem Verbis. Gilb Treat.
of Ten. 174. cites S. C. of .Sands v. Hempfton, and fay.s, that that Opinion, ai it feenis, was upon the
firft Hearing of the Caufe, for the very Cafe is reported quite contrary by the fame Reporter; and ic
is faid to be refolved by all the judges but Fenner, that the Copyhold fhould be charged with the
Rent-charge, for the Ctifiom m ro Part of his Title, hut only affohts how he pall hold ; and fince it was
charged in the Lord's hands, it is plainly within the Intent and Meaning of the Aft, as well as the
VVords to be charged in the Copyiiolder's Hands, audio this Purpole there is a Cali: in Dyer ad-
judged • bur if the Cafe were adjudged, that the Lands fhould not be charged in the Copyholder's
Haiid.s on that Realonj that he doth not claim only by and from &c. but by Culfom, yet that would
never warrant lo general a Conclufion, that xht Statute -^l H.^. cnf 37. in no other Part lliould ex-
tend to Copyholds, and that if a Rent were granted out of a Copyhold in Fee, and the Grantee died,
that his Executors fhould not have Debt or dillrain j but turn the Tables, and if the Adt of Pjrlia-
ment doth in Point extend to Copyholds, as Lands that are claimed by &c. and that which in this Cafe
only doth make a Doubt is over-ruled, then this is a firong Aigumeni, that in orher Cafes where that
is not which occafioncd the Doubt, the Statute fhall extend to Copyholds, el'pecially fince the Att
was made to remedy an apparent Wrong, and doth no Harm either to Lord or Tenant.
5. Lord of a Manor, where Copyholders are for Life, grants a Rent"
charge out of all the Manor; a Copyhold efcheats^ the Lord regrants it by
Copy ; per Omnes, nili Fenner J. he Ihail not hold it charged, becaufe
he comes in above the Grant, i. e. by che CuitorK ; the fame Law oi Sta-
tutes, Recognizances, Dowers ; but the lo Eliz. U. 270. per tot. Cun he
lliali hold it charged, but 2 Brownl. 208. 5 Jac. C. B. in Cafeof Sammer
V. Force, fays this has been denied in Cafe of Swain v. Becket.
6. Itleemed to Coke Ch. J that it a Copyholder be of 20 Acres, and
the Lord grants Rent ontof thofe 20 Acres in the Tenure and Occupation
of the Copyholder and names him, there if this Copyhold efcbeat, and
be granted again, the Copyholder fliall hold it charged ; for that 'tis
now charged by exprefs Words. 2 Brownl. 208. Trin. 5 Jac. C. B. in
Cafe of Sammer v. Force.
Gilb. Treat. 7. If the Lord of a Manor acknowledges a Statute, and then grants Lands
of Ten. 189. jyy Copy, and afterwards the Manor is delivered to the Cognizee in Extent ^
f '"b Lo^rd ^^^ Grant cannot by this be impeach'd. Co. Comp. Cop. 47. 8. 34.
iaysMoor[Mo. 94 pi 255. Pafch. 12. Elii. Anon.] is againfV this, and that thereare Cafes where
the Grant of a Rent charge, in fuch Cafe, fhall bind the Copyholder; but there is fome Different
between the 2 Cafes ; for in Cafe of a Rent, the Lands were only chargeable, and before the actual
Charge were granted over ; (vide Mo. 811.) and therefore may be compared to the Cafe where a *
Ivlan makes voluntary Grants, his Wife (hall not be endowed ofrhole Lands, becaufe the Copyholder
is in by the Cufiom, which was long before the Title of Dower accrued to the Woman. It feems the
Reafon of this Cafe is, becaufe the Woman had no Title of Dower to thofe Copyhold Lands while
■were in the Hands of Copyholders, and the Cuftom warrants the granting them again, fince they have
been always grantable by Copy, and the Eftate would be delfroyed it file were dowable of them ;
QuGerc ot the Cafe of the Statute; | but if the Heir before AfTignment of Dower grants Lands by
Copy, then it feems flie may avoid that ; for fhe had tlien a perfett Title of Dower to ihofe Lands.
♦ Co. omp. Cop. 47. S. 54. S. P.
•f Co. Comp. Cop. 47. S. 34. S P.
8. Thofe 'Things which take the Efence hy the Lord's Grant and Intereji
have no longer Continuance than his Intenjl has, and therefore it the Lordy
Tenant for Life oj a Manor, licences the Copyholder to alien, and dies, the
Licence is gone. Gilb. Treat, of Ten. 190.
9. Grants 7nade after Alienation in Mortmain, and before the Entry of
the Lord, are good. Gilb. Treat, of Ten. 190.
10. The King grants a Manor in Fee-farm ; the Lands and Goods of
Copyholders are not liable to the Rent, becaufe they come in by Prelcrip-
tion, which is before the Rent. Gilb. Treat, of Ten. 310.
[R] What
Copyhold. 3 1
[R] What AS: or Thing will hinder, or deftrojy the
Forj:er to gra?it by Copy. .Jh^^.Kon
in fol. 49S.
■ Jf tljC King be feifed of a Manor, of which Black-Acre is Patcel, See tit. Pre-
^ anti ocanfaLile bp Copv in Jfce, atiD this comes to the King ropative
dtijCC bv Elcheac or Surrender, ailO at'tCt tljC King leafes tljC faiD ^^^'^^ P'- 5-
Eiack-Acre to % %. foc lUc, iiot taliiitii; Bottce tljat it iDa0 Dennf= BuVnerand'
able by Copp, tljis i£S a soon ©cant, tijdu xtj tijc liLinn; OiD not luiato the Notes
ttjnt !t iwas ncniifablc bp copy, ann b^Cbnleciuence it ujiU Ocftroj) there.
tlje poicei* to grant it bp Copp at a!ip '<hmz af^. rr, ffj tbat tlje l^inn;,
ot anp ottjcc ILocD of tlje i^anor, cannot grant it bp Copo ancr. %.
I J Car. 05. E* bettuecn Doandife anD A^umrs, pec Ciiriania ritolUeD
upon (Ebitiencc at tijc CiBar, biic tijep oircrtco im iiurpto fiuu a fpe=
cial 3i)crriict, ann tljc 2urp gaiiE a general Dcroict agamft tijcir Di^
rmion.
2. 3if il Copyhold in Fee comes to that Lord by Elcheat or Surren- And fomay
der, pet tljere ijS no JmpeHtmcnt, but tlje LocD map after grant it 't'^/S"*
again bp Copp. S^. 15 Car. 05. E. betiuccu DouncH£e ann Mmors^ ^here it ef-
per Curiam, upon CUitience at tije OSac* cheats to the
Queen by
Attainder of Felony, and that without any Special Warrant ; For it is. warranted by the Cuftom, and
the Queen, her Heirs and SuccefTors are bound by it ; But he ougli t in Duty to inform the Lord
Trealurer &c for his better Direftion. 4 Rep. 50. a. pi. 2. Trin 41. Eliz. B R. the 2d Refolution
in the Cafe of Harris v. Jays. Cro. E. 699 pi. 13. S C. adjudi^ed If a Copyhold eftheats
to the Lord, and he keeps it feveral Years in his Hands, during this Time it is not demifed but de-
mifuble ; For the Lord has Power to demiCe it again. Co Litt. 5S. b 4 Rep. 51. pi. 24. Mich. 18
& 19 Eli?.. B. R. in French's Cafe, S. P. and fo if he leafes at Will only. Gilb. Treat, of Ten 208,
209 S. P. S. P. agreed by the Juflices, 3. Le. loS pi. 158. Trin. 26 Eliz. B. R. in Cafe of Ta-
rcrner v. Cromwell. Co. Comp Cop. 66. S. 62. S. P.
3. [But] if a Coppljoiu comeja into tlje lpanii0 of tlje Lorn in ,f ce s p- 4 Rep;
iiP CrCljeilt or €)UrCCnOCr, anO the Lord leafes it by Parol for OUe ^: ^/ P'o^*'
^ear^ orljalfan^ear, or lor any certain Time, It canne\jec be.^EiizB
granted bpCopp atter, but tljis pomer to grant bp copp 10 tufjoUp r. French-s
DeCtcopeD. ^. 15 Car. 06. R. bcttucen DouncUffe tm Mmors^ petcare.-if in
Curiam, upon CDioence at tije Bar rcfolDeo. the Lord
f;rants away Eftate by Deed, it is an Extinguifhment. Co. Comp Cop 66. S. 6z. S. P.- Gilb. Treat.
of Ten. 208. S. P. bccaufe during thofe Eftates it was not demifed or demifable by Copy.
4. A tortious Interrupt! Off, as if the Lord is (tijeifed, and the D i/Jei for ^^pp^smcnt
dies feifed, or if the Land he recovered by jalfe VerdiCi^ or erroneous J udg- ^*^°;^^°"'^-
meat againft the Lord, tho' during the Recovery, or belbrethe Judgment j,?^^ p—
reverfed, the Land was not demifed or demilable, yet atcer Recon- Gilb. Treat,
tinuance it is grantable again by Copy. 4 Rep. 31. a. pi. 24. Mich, of Ten. 209.
18 & r9 Eliz. B. R. in French's Cale. citesS. c.and
fays, that fo
it feems if the Difleifor had made a Feoffment in Pec.
5. IC 'Land forfeited or efc heated is extended upon a Statute, or Recog- Co. Comp.
nizance acknowledged by the Lord before any new Grant made, or if^op ^^- ^
the Feme of the Lord in \\'rit of Dower has this Land alfigned to her,g j * I"
though thefe Impediments are yiilions in Law, yet in as much as thefe j^ (Jq Comp.
are lawful Interruptions, the Land can never be granted again by Copy. Cop. S2. S.
4 Rep. 31. a. pi. 24. Mich. 18 & 19 Eliz. B, R. in French's Cafe. ''^■,^- ^.r
of Ten. 209. S. P. and eites S. C.
6. A
^2 Copyhold.
6. A Copyholder in Fee mam ed the Se/gmorcJ}^ and alter they lufier-
eda Ccmnion Recovery ^ which was to the Uleof chemlelves tbrLite, Re-
mainder over ; held per 3 J. that the Copyhold was extin61, for by the
Recovery the Baron had gained an Ellace ot Freehold. But all held
that the Intermarriage only fufpended it. Cro. £. 7. Trin. 24 Eliz. B. R.
Anon.
7. Tenant by Copy in PolTeffion released to the Grantee of the Freehold
of the Copyhold all his Right in the Land; per Anderlon Ch. J. this
does not extinguifh the Copyhold. Cro. E. 21. Trin. 25 Eliz. C. B.
Anon.
a Roll 271. 8. Baron feifed of a Manor in Jure Uxoris Icafes a Copyhold, Parcel
pi. I, 2. S. thereof, yor Tears hy Indenture^ and dies, this deltroys not the Cultom as
of Rulle"^^ to the Feme, but that after the Death of her Baron Ihe may demife ic
V Conings- by Copv as before ; fo of 'Tenant for Lije of a Manor, if he lets a Copy-
by. — The hold. Parcel of the Manor for Years, and dies, it fliall not deftroy the
fame of 7i- Cuitom as to him in Reverfion; per Popham and Fenner Jultices upon
ofTuch Ma- Evidence. Cro. E. 459- (bis) pi. 7- P^l^h. 38 Eliz. B. R. Coningsby v.
nor. 2 Roll Rusky.
P -S Eliz. [>. R. per Cur. So of a Bijitop, or of the King, or of a 'fenant for Tears of a Manor,
2 Roll 197. PrjErogative. (G. c) p 3. So of an hf,i>it Ihld. Gilb. Treat of Ten. 28;.
cites S. C. and fays that by the fame Reafon it feems that the Heir may demite it a^ain by Copy ; and
fo if a Tenant for Life of a Manor Icales a Copyhold, Parcel of the Manor, for Years, and dies, this
jhall not deftroy the Cuftom as to him in Reverfion.
Co. Comp. 9. If a Copyhold efcheats, and the Lord makes a Feoftncnt in Fee on Con-
Cop. 66. S. ditiofi, and enters for the Condition broken, it Ihall never be Copyhold
i,z.S. P ao-ain, becaufe the Cuftom or Prefcription (which was the Caufe of the
S. P. 4 Rep. 'pgj-i^jjg .^j,(j fupported it) is interrupted, and that being once broken is
French's become remedilefs, C. L. 202. b.
Cafe. -Gilb. ^ , , ^
Treat of Ten. 20S. S. P But if he ?y/i»/i EJfate for Life only he may afterwards grant the tee
by Copy, according to the Cultom. [But it feems it is meant of a Grant for Life by Copy.] Le. 51$.
pi. -o. Pafch. 29 Eliz. B. R. in Cafe of Kemp v. Carter. —So it Copyhold efcheats to the Lord, and
he aliens the Manor by Fine, Feoffment, or otherwife his Alienee may regrant the Land by Copy,
for it was always demifed or demifable. 4 Rep. 51. b pi. 24. Mich. 18 6c 19 Eliz. B. R. in French's
Cafe. But if the Lord keeps the Land in his Hands for a long Time, he or his Heirs or Affigns
may regrant it by Copy at his Pieafure. Ibid. 31. a.
See Tit. _ 10. K Bifhop Or Tenant in Tail 8cc. lets Copyhold Lands hy Deed indent-i
Prerogative ^^ . ^he Ilfuc or Succeffor may grant this by Copy again, yet they may
i^and\he ^* m^ks. Leafes according to the Statute to bind. Gilb. Treat, of Ten.
l^otes there. 3 1 1.
4. Rep. 31. II. Copyholds muft be always demifed or demifable. Arg. Hard. 98.
French's cites D. 30.
Cafe.
Adjudged 12. If a Leafe for Years be granted of the Copyhold it felf ^^' Domi-
that ii the nils pro Tempore^ or for half a Tear, it deftroys the Copyhold. Cro. C.
Sefor 521. pi. 22. Mich. 14 Car. B. R. in Cafe of Lee v. Boothby.
Years, or for
Life, or other Eftate hy Deed, or without, it can never be granted again by Copy. 4 Rep. ;i French's
(^jfe And by the lame Reafon a Releafe upon that Leafe will pais the Freehold and Inheritance to
him. Gilb. Treat, of Ten. 209.
Jo. 449. S. 13. If a Leafe be made of the Manor, and nj a Copyhold by exprefs
"C. butthat '^^ },aj,je, yet this will not extinguilh the Copyhold, though u was before
t^L^te^^ the Leafe furrendered to the Lord, for when he leafes the Manor it is
P.uelis'^ni included as a Parcel of the Manor., and the naming the Copyhold is ftirplii-
lield, that it y^z^Cj and it remains aiyvays as Parcel, and is demifable by Copy as ic
Ueftroyed Wa»
Copyhold. Qo
was before. Cro. C. 521. pi. 22. Mich. 14 Car. B. R. Lee v. the Power
Boothby. of Granting.
-_, - „ ^ Gilb. Treat,
of Ten. 209. cites S.C. Co. Comp. Cop. 66. S. 62. S. P.
14. But if he, though he had been butDominus pro Tempore, or for On Lee and
Haifa Year (though by Parol) had made a Leafe for I'ears of the Copyhold ^°°^^^y'^
itftlf it had deftroy'd the Copyhold, ibr it was then during the Time ^^'^ " ^^'^
fevered Jrom the Marnr, and fo could never afterwards be deniifable again c|f T^h^t'^
by Copy. Cro. C. 521. pi. 22. Mich. 14 Car. B. R. Lee v. Boothby. a Le^feflr
Lands that arc Copyhold, particularly ivithtit taking Notice it -j;as CopyloU, is good for the Rent of
the Copyliolder, and after the Leafe fpcnt, the Inheritance t.ikes Place and fevers the Copyhold from
being granted by Copy after during the Leafe, but when that is fpent it is Parcel again, which was
agreed in Evidence to the Jury at Bar, in an Ejedment on Sir George Sandy's Patent, and Verdi6h for
the Defendant. 5 Keb. 91. pi. 55. Mich. 24 Car. 2. B. R. Cholmley v. Cooper and Ward.
15. If a Copyholder purchafes the Manor, he may grant the Copyhold
again ^ but if he puts the Copyhold from the Freehold 'tis gone. Cart. 24.
Palch. 17 Car. 2. C. B. per Bridgman Ch. J. in delivering the Refolu-
tion of the Court, in Cale ot Taylor v. Shaw.
16. It Copyholder furreiiders to the Lord without declaring any Ufe^ the
Copyhold extinguiilies, as on a Surrender by Tenant for Life to him in
Reverlion ; per Holt Ch. J. Wms's. Rep. 17. Hill. 1700.
17. The Cuftom ol a Manor was to grant for 3 Lives Habend' fuccef-^
five fictit ncminantiir ; a Grant is made to A. B. and C. J. parchafes the
Manor ^ and the Queftion was, whether there being a Cultom giving Power
to frultrate the 2 Remainders by Surrender A. by his Purchafe had ex-
tinguifhed them ? but held to be no Merger or Extingiitpment of the E-
ftate between the Cnjlom of dejlroying the Remainders is confined to the
Formality of a Surrender, and the Purchafe of the Manor, though it be
between the Parties a Surrender, yet it fliall not be conltrued as fuch to
other Purpoles, viz. to deftroy the Remainders ; per Cur. 6 Mod. 67,
Mich. 2 Ann. B. R. in Cafe of Smartle v. Penhallow.
(S) Grant &c. How ; Where the Inheritance is fe-
vered from the Manor. How it fhall be, and what
fliall be done.
I, "¥ F the Lord of a Copyhold Manor makes a Feoffment of a Parcel
\_ of his Manor which is holden by Copy for Life, and afterwards
the Copyholder dies, though now the Lord has not any Court, yet the
Feoffee may grant over the Land by Copy again ; per Ayliff J. Le. 289.
pi, 394. Trin. 26 Eliz. in Lord Dacrcs's Cafe.
2. Where the Inheritance of a Copyhold is fever'd from the Manor,
as by being granted to a Stranger, the Copyholder cannot furrender or^j,,^ '^T^^zi
devife the iame, but that xx-jhall defend to his Heir ; for fuch Surrender of Ten. 194,
after the Severance of the Inheritance from the Copyhold is void, be- 195.
caufe the Lands were not Parcel at the Time of the Surrender, and a
Devife only cannot transler fuch cultomary Eftate ; for there can be no
transferring but by Surrender into the Hands of the Lord according to
the Manor. 4 Rep. 24. b. pi. 10. Mich. 33 and 34 Eiiz. B. R. Murrel
V. Smith.
4. Alter the Severance the Copyholder /;«// pay his Rent to the Feoffee,
and Ihiill pay and do all other Services which are due without Admittance 9'°' ^^^ ■i''
TV- pl. 20. S C
^ "*" &S.P,h£!d,
34 Copyhold.
and Fenner orholdingot any Courc, as plowing the Demefnes of the Lord,Herioc&c.
J. uid that £^J y^jn- q| Q,uru, anci Fine on Aiienarion or Admittance aie gone j tor
fuvTendet ""^ ^^^ Land Of Tenement may be alien'd ; for as the Copyholder has
hi^ Fftate to ibiiie Benetii; by his Severance as appears before, fo has he great Prejudice,
the Giantee for now he * cannot lurrcnder or alien his El}:<ice, becaufe he cannot alien
ot the Free jj. [^m by Surrender in Manus Domini fcvviciortim as the Cuilom has war-
ifr of'thV^ ranted, and this he cannot do, nor the Feolfee cannot make Admit-
Grantee, be- tance or Grant ot the Copyhold, lor he is not Dominus pro Tempore.
caufe he had Ibid. 25. a.
the Revel-- ^ g^^ 'twas reiolv'd, that fuch Forfeitures as were Forfeitures before the
tha"t'he'^"^ A'-.'^rawt?, as making ot t'eoliment or Leale, Walte, Denying of Rent &c.
could not aie Forieiiures alfo alter Severance ; i'o if the Land was of the Nature of
fuirenderro Borough Englilii or Oavelki.'id before the lame Cuitom, all other C/^-
tl;e Gr.intee jlornswhtch run with the Land (hall remain alter Severance. Ibid. 25. a.
to the Ule *' ' •'
of another, nor the Grantee c.mnot grant it bv Copy to another, f) tli.it the Copyholder muft always
keep it in his Hands ; but qusre ot this ; and the other Juftices gave no Opini ,n o\ thi^ Point. .
Ihid. fays the ( ourt held, that though the Heir may. enter without Admittance, yet l;e fliaji pay his
ufu.il Fine, and do all hi.s Services except Suit at Court. Gilb. Treat of Ten. 196. cites S. C.
of Cro. as to the Fine, and ;i^k:s how th-U can be when there is no Admittance ? 4 Le. 150. S. P.
but held, that Heriors, and fuch otlicr Cafua'ties, are gone. Bell v. Langley.
* He may furrender to theGrantf-e of the F"ieehold to the Ufe ot the Grantee; per Fenner T. Cro.
E 252. pi. 20. S. C & S. P. Ibid 499. S. P. by Popham and Cicixh.
S. C. & S. P. 5. If fuch Copyholder v/ill alien, it mujl be by Decree in Chancery againlt
T-'^"^. ^''f' him and his Heirs, but by this the Intereit ot the Land is not ujuad
Ten^'id'- ^^^ ^'^^ Perfon only. 4 Rep. 2$. Murrell v. Smith.
196. and
fays, that fo it is, if the Land were of the Nature of Borough-Ent^Ufh it flill remains {6 ; and there
is no way for fuch a Copyholder to alien but by Decree in Chancery againft him and his Heirs.
6< If the Lord grants a Copyholds and after Severs this Copyhold from the
Manor, by granting the Inheritance to a Stranger ^ though now one of the
chief Pillars of a Copyhold Eltate is wanting, viz. to be Parcel of the
Manor, yet becaufe the Land at the Time of the Copv holder's Admit-
tance had this neceliary Incident, this Severance.^ being a Matter ex p^ft
Faiio, cannot amount to the Definitiion of the Copyhold, elpecially being the
folc Ait of the Lord himfelf. Co. Comp. Cop 46. S. 34.
(T) Decrees in Equity as to the Heads foregoing, re-
lating to Grants of Copyholds.
I.' I ^ HE FMhtT fettled a Manor, referving only an EJlate to himfelf
1 for Life, Remainder in 'Tail to his Son, He alter marries a fecund
Wife, anA fettles Part of the fame Manor on her, and then died, Jhe fir^
•viving who enjoyed it for the greateft Part of her Lite, during which
Time floe granted fever al Copyhold EJlates to the Tenants, who enjoyed
the fame under fuch Grants, and particularly a Copyhold Eltate to one
A. tor his Life, and after his Death Ihe granted the Reverfion to the
F'lantijf. Not long betoreher Death the Son, as Tenant in ^^\\,brought
an EjeBment againft her, but confirmed the EJlates which Ihe had granted
to the Tenants by figning their Copies, but rejafed to admit the Plaintiff"
upon the Grant ot the Rcveriion. Decreed, that in regard A. had en-
joyed it all his Life-time, and that theDelendant, the Son, had confirm-
ed the Eltates of the other Tenants, the Plantilf Ihoukl be admitted,
and
Copyhold. ^ 5
and hold his Eftate likewife, according co the Grant made by the Wi-
dow. N. Ch. R. 32. Lippiac v. Nevill.
2. A. pollelied of Copyhold Lands for one Life in PofTeffion, and
three Lives in Reverlion, died, leaving E. his only Daughter, who
was the only Survivor, and married ).S. who contrafted with the
Bi/ljop 0/ iV. Lord of the Manor^ after the Rcjioration^ for two Lives in
Reverlion for 40 1. and was admitted and held the fame after his
Death for feveral Years, 'fhis Manor in the RebelUon was granted
to Corbet^ and Corbet's Widow now pretends a Right and fays that
Bifjop Tbornbary (the Bifijop before the Rebellion) granted the P remits
for three Lives m Reverfioii alter E's Death to IV. R. one of whom has
ticely obtained a Verdia: in Ejeflment, hut J. S\ fug^e/h, that IV. R's
Copy (it any fuch was) was fmrendrcd by Letter'of Attorney,'^? a
Court held by Corbet, in the late Ufarpation^ and a new Effate granted for
Lives in Reverfton who are fince dead, but that Defendants havino- got
the Court Rolls, Letter of Attorney, and Surrender, do conceal the
famei The Court direded a new Trial, and the Defendants to produce
the Letter ot Attorney and Surrender made by V\^. R. and the Injunc-
tion to continue to quiet the Plantift"'s Pollelfion till Trial had and
the Plantiftto give Security to be approved by the Mafter to anfwe'r the
mefne Profits to Corbet's VVidow, in Cafe the Verdift iliould go againlt
him. Fin. R. 41. Mich. 25 Car. 2. Pitt v. Corbet & aP. Fin, R. 80,
3. Afeifedof a Copyhold in the Manor of D. fells to B. B.piirchafes^- C.
the Manor, and by a 1' articular in which this Copyhold was not included
B. fells the Manor to C. the Copyhold was 25 1. per Ann. and C. never
claimed it in llx Years, but then claimed it and reco\ ered at Law-
it palling as Part of the Manor ; per Lord K. tho' the Particular given
in by B. to C. was much beyond the Valuer yet lince C. neither treat-
ed for this Copy ho li, and other fmall Parcels of 20 1. lo s. &c. value
&c. as in B's Particui r and Conveyance, this 25 1. per Ann. would
not have been omitted if C. intended to buy it, or B. to fell it and
decreed lor B but B. to pay the Rent Arrear, and for the future' hold
it in all refpefts lb as Copyhold lubjeft to Forfeiture, and uncertain
Fine &c. as it was before the Regrant to him by Copy &c. 2 Chan,
Cafes 194. Pafch. 26 Car. 2. Taylor v. Beverfham.
4. A. Tenant by Copy to him and the Heirs Males of his Body par- Je!Ines C.
chafed the Fee-fimple to him and his Heirs, and afterwards for a valuable ^^^^^^ t°
Confideration, . iz. 300 1. fold to B. who was in PofFeflion feveral Years, SSbt but
and died, leaving C. a Son. Ld. Chancellor thought the Conveyance thar the Co-
good againfl the Heir ; for the Copyhold hein^ fevered from the Manor, pyhold was
there is no Means to bar it but by Conveyance at Common Law • the 1'^^&'^ tho'
Entail is not within the Statute of VY. 2, but Ld. Chancellor 'took IL-'^'p''^''*
Time to advife. 2 Chan. Cafes 174. Hill. Jac. 2. Barker v. Turner. was depend.
fpecial Verdia at Law. Vera. 45S. Parker v. Turner.
(U) Surrender. What It is, and how confidered,
I. A Surrender is a Thing executory, which is executed hy the fiihfe-
Jf\ qiient Admittance, and nothing at all is in veiled in the Grantee
before the Lord has admitted him according to the Surrender, and
therefore if at the Time of the Admittance tne Grantee be in Return
i^aiura, and able to take, that will ferve. Co. Comp. Cop. 50.
S. 35.
q6 Copyhold.
Gilb. Treat. 2. This word (Surrender) is Vocdbiiliim Jrtis, and therelbre where a
of Ten. 294. Surrender is needtlil, if this one VV^ord be wanting, all other iVords ufed
cites this fay- ^.^ (jr^/V;^r)' Conveyances are ineffual and infulftcient to convey any Copyhold
Coke- but EJlate; tor ii a Copyholder comes into Couit, and oHers to pafs his Co-
reems'econ-pyhold by Word of Grant, of Gilt, of Bargain or Sale, or fuch like,
'•■a- 1 doubt he will fail of his Purpole, tor as he is tied to a lingular Form
ofAlTurance, io is he retrained 10 peculiar Words in his Allurance.
Co. Comp. Cop. 51. S 39.
3. A Surrender (ivbere by a ftibfeqiient Admittance the Grant is to receive
his Perjeffion and Confirmation) !S rather a manifefting the Grantor's In-
tention, than of pajffingaway any Intereji m the Pojjeffton, tor till Admit-
tance the Lord takes Notice of the Grantor as Tenant, and he fliall re-
ceive the Profits of the Land to his own Ufe, and ihall dilcharge all
Services due to the L.ord ; but yet the Intereji is in htm., but fecitndiwi
quid, and not abfolutely ; for he cannot pafs away the Land to any
other, or make itfubjeSi: to any other Incumbrance than it was fubje£t
to at the Time of the Surrender, neither in the Grantee is any Manner
of Intereft in veiled before admittance 3 for it lit enters he is a Trefpaffor,
and puniihable in Trefpafs, and if heftirrenders to the Ufe of another, this
Surrender is merely void, and by no Matter ex poll P'a6lo can be confirm-
ed i for though the firlt Surrender can be executed before the fecond, fo
that at the Time of the Admittance of him to whofe Ufe the fecond Sur-
render was made, his Surrenderor has a lufficient Interell as abfolute
Owner i yet becaufe at the Time of the Surrender he had but a Poffibility
of an Interell, therefore the fubfequent Admittance cannot make this
A£l good which was void ab initio. But though the Grantee has but a
Poffibility upon the Surrender, yet this is fuch a poffibility as is accom-
panied with a Certainty, for the Grantee cannot poffibly be deluded or
defrauded of the Effe6t of his Surrender, and the Fruits of his Grant, for
if the Lord refufe to admit him, he is compellable to do it by a Sub-
poena in Chancery, and the Grantor's Hands areever bound from the
difpofing of the Land any other way, and his Mouth ever Hopped from
revoking or countermanding his Surrender. Co. Comp. Cop. 51. S. 39.
Suvrender of 4. Surrender is but in Nature of a Deed-Poll rather than an Indenture,
a Poffibility and enures by way of Limitation of Ufej Arg. Saund. 151. Pafch.
wT/of 20 Car. 2. in Cafe of Wade v. Bache.
Grant ; per
Coke Ch. J. Roll R. 51S. in Cafe of Lane v. Pannell.
ThisinRoU (W) Copyhold.
is Letter (E) {^Surrender. )
At what Time,
Cro E 662 i-TiF tl)CjC0lJt Baron and Feme Copyholders to them and the Heirs
pl. 1 1. Col- X ot the Baron, anH tlje Baron dies, tljC Heir Of tljE IdarOlt may
chin V. Col-furrender his Revedlon mtO rl)C J>inn0 Of tlUO €;CIUint0 Of ttjC (^a»
chin,s.c. not out Of tlje Court, tuljo uv tijc Cuifom Ijnlic pouiec to tahc
pood'' @UrrCntJeC0 betore Admittance, and during the Lite of the Feme ;
^ ■ anti tijtss 10 a ijoon ©urrcnner, foe tl)c Kciiccfion tuass caff upon
fjimDi? DcfCEiit before anp iarmiittancc. I?. 41. eii% "B^E. be=
tweeu Caichm antJ Caichin, ati)uogcri»
2. The Heir before Admittance may furrender to the Ufe of another.
4. Rep. 22. b, the 3d Point in Brown's Cale.
3. After
Copyhold. 37
3. Alter the Death ot Tenant ibr Lite he in Remainder may, with^
cut any Admittance furrender the fame Land ; for the firlt Admit-
tance was fulficient. 4. Le. m. pi. 226. in Time of (^ Eliz,. Hegger
V. Fellton.
4. It a Copyholder in Fee fiirrenders to the Ufe of B. and his Heirs,
M. before yld>iiittance cannot furrender to the Ufe of another^ for be-
lore Admittance B. had nothing, and his Copy, upon which he is
admitted, is his E\idence by the Cullom, and before that he is no
cultomary Tenant, fo he can transfer nothing to another^ adjudged.
Yelv. 144, 145. Mich. 6 Jac. VVilfon v. Weddal.
5. The Heir may furrender belore Admittance ; Arg' 3 Lev. 3 27. ^ P- ^ecauft
Hill. 3 W. & M. in C. B. Glover v. Cope. he is in by
•^ '^ Courfe or
Law, for the Cuftom, which makes him He'r to the Eftare, cafts the PofTcffions of his Anceftors
upon liini Yelv 14,. Mich. 6 Jac. B R. in Cafe of Wilfon v. Weddal.- 1 Brownl. 145. S.
C ad'iudi^'d but it feem^ to he only a Tranfl.uion of Yelv fo where a Surrender was to A. for Life
and after to the Ufe of B. in Fee; A. was admitted and died ; B. may furrender without any new
Admittance. 4 Lc. iii. pi. 225 in Time of Q_ Elij Hegger v. Felfton.
[X] Copyhold.
Surrender. This in r oil
At what Place, infoi. 500.
t. \ COpPljOinet maj^ rumnllCi: into the Hands of the Lord oflm^Elix.
/\ Court, luitljout ii piicticiilat Cuftom to toaccant it. Co.^.A"^''
lit. 59* n. b. coitti-a Co. 9. 76. b. [ndi^fS
that without
a Prefcription a Surrender of Copyhold Land could not be out of Court, aor an Admittance out ot
Court, neither to the Lord himfelf nor to his Steward, but in divers Places it is ufed by Ctiftom
fo to be, and there upon the doing of Fealty, and the paying of the Lord's Fine, fliall be prefent-
ed by the Homige to be done at the next Court, and all thefe things they faid are to be done by
the Cuffom, and in that Cafe it was faid by the Lord Dyer, that a Surrender out of Court mii'ht be
to the Lord himfelf, to go by way of Extinguifhment. Supplement to Co. Comp. Cop. 69. S. 5. °
2. But ^Z cannot rUttCntlCC tO tljC LOCH into the Hands of Tenants, A Copyhol-
or the Reeve, OC OtIjCCSi Ollt Of COUCt, without a particular Cultom. ^fj ' "^cord
Co. lit* 59* ing'to the' '
Cuftom of the
^lanor, furrender his CopyhoM Lands into the Hands of two Tenants, but the Surrender was to
the Ufe of J. S. to take Etfeft immediately after his Death. In this Cafe it was refolved, that as
unto the Surrender into the Hands of two Tenants, that might be good, altho' it was out of Court,
by Cuftom. Co. Comp. Cop. 65. S. 3.
3. CfjC Steward Of tljC S^aUOt may take a ©tttrcntier Of a C0= S. P.accord-
pPljOin out of the Manor. ^\i\), 13 JaC* X, E. betUJCCn Houfego 'j,"fj'/|?;
iiho ^^M, pec Curiam. tained by
Parol only;
4 Rep. 50. b. pi. 21. Holcroft'.s Cafe. — Le. 227. pi. 509. Blagrave v. Wood, S. C. Pafch. %7, Eliz.
(\ B. fed adjornatur. ■ But held per tot. Cur. contra Godb. 142. pi i'^5. Trin gt Eli/,. C. B.
Blagrove v. Wood. Ld. Raym Rep. 76. Pafch 8 W. 3. Tukeley v. Hawkins, refolv'd that a Ste-
ward of a Manor may take a Surrender of a Copyhold out of the Manor, but cannot admitout of the
Manor, ami that a Cuftom that the Steward fliall not take Surrenders out of the Manor is a void Cu-
ftom. Ld. Raym. Kcp 159 S. C. cited by Powell J and iLid, that a Steward by Parol cannot
take Surrenders out of Court.
r. 4 Sre-
q3 Copyhold.
4. Steward ot a Mmior made a Oiiiamffiou x.o ant to taks a Surrender
in Ireland ot" a Copyholder who was tiicrc, and it was holdeii a good
Surrenders cited by Manwood. 4 Le. iii. pi. 226. in Time ot" Q.
Eliz.
5. The Steward of the Court oj a Manor in Ireland being in Knglr.nd,
Cent a Writ tn the Nature of a Dedirntis plcjiatem to one who was in Ire-
land^ to take a Surrender there of Copyhold Lands ; and the Opinion of the
Judges here, to whom the Cafe was referred to advife, anJ cercil"y their
Opinion, was, that fuch a Surrender taken by Dediinus iwis good e-
nough ; But note, that in fuch Cafe it mult be intended, that fuch giv-
in"' Power to take a Surrender, if it be to be done, it miift be alledg-
ed to be done either by Prefcription or Cujfom ; lor that Surrenders gene-
rally taken outot Court mult be by Cultom. Supplement to Co. Comp.
Cop, 68. S. 3.
2 'Boll Pep. 6. Baron mid Feme Copyholders in Right of the Feme ffrreiider cut of
?^7- S.C. Court into the Hands of the Steward^ and Ihe was examined by him.
bucD. P. i^ho' jn an Ejeftmenc brought it was not proved, that he was Steward
by Pattnt, nor that there was any fpecial Cullom to warrant it, yet it
was relblv'd per tot. Cur. to be good ; and Mouncague laid he had
known it fo adjudg'd. Cro. J. 526. pi. 2. Pafch. 17 Jac= B. R. Smith-
Ion V. Cage.
Comytis's 7. Where a Stetaard oi a. Manor has a Po'ivcr to make a Deputy^ and he
Rep 84, 8j. j,i^i]^(s B. his Deputy, and B. by writing under his Hand and Seal make C.
f^'^-'i'.f'y and D. his Deputies, jointly and fevcrally to take a particular Surrender
tlie Sun-en only, D. took the Surrender out of Court to the Ufe of the Surrenderors
der was ^ood Will. Per tot. Cur. this IS a good Surrender. Ld. Kavm. Rep. 658.
— See Tit. f-^i-ch. 13 W. 3. B. R. Parker v. Kett.
Steward of g Steward of a Copyhold Manor may without Cujfom take Surrenders
om s. ;. ^^^^ ^. Q^^^^j^ j-Qj. fy^ fj^j^ jf^.g Power of the Lord, and the Lord may do it ;
& per tot. Cur. there is as much Reafon that the Steward ihould take
Surrenders out of the Manor as the Lord, and that he ihould do it out
of the Manor as out of the Court, i Salk. 18. 4. pi. Trin. i \\^&M.
C. B. Dudfeild v. Andrews.
This in Roll [Y] [Where there are y^s^fTj/ Surrenders of the fame
^vV^r*" ■ X^Wi to different Ufes. Which Ihall take Place ;
(E) pi. 2. in
foi.499,500. and how. J
Lane 99. [i.] J Jf 3 Copyholder in Fee furrenders into the Hands of CCCtiliU cu-
Gooch's J|[ ftomary Tenants to the Ufe oi his Wile in Fee, nnB -titer, before
'^^be'sc"' any Court, the faid Copyholder furrenders the fame Lands into the
& s^P. ad- Hands of other * cullomary Tenants, to the Ufe of his Wile for Life,
mitted. tfjC Remainder to another m Fee, aitlt ^t the next Court both Surrenders
are prefented, flnH t!)C Steward admits the Wife according tothe fecond
Surrender, t\fl.<a 10 a ffooQ ^Dmittance, attti t!jc itBifcfiiaU Ijaue It but
for jLife, ann fo it iis a pon jSiCniain5ct> ip. s |a. ^caccauia, an-
This in Roll [2.j Jf a COPpfjOlDCr in Jfee furrenders out ot Court into the Hands
is(E)pl. 5. of Tenants according to Cuttom, to theUle of B. in Fee, upon Condi-
!!Lcro''c' "°"? ^^y^^ '^^^ P^y* *°^- ^° ^- ^'""^ ^""^^ of May after, itlhall be law-
pi. lo.'s.G. ful lor him to re-enter, ailO aftEt, anU betoie Payment of the 10 1.
adjornatur. furrenders into the Hands of Tenant?, to the Ufe of C. in Fee, and
— Ibid. aftEt before the faid firlt of xMav, A, pays the Money to B. and alter,
285, 2B4.pl. ' jljjt,
Copyhold. 39
ailD beiore the iiiid Ddy, A. lurrenders into che Hands of Tenants ro ^7 S.C, ad-
tne u ic ot D. in Fee, aoo tlje Ciifrom Of t(jc ?9anor is, tljat tljc ^ud ['S^v'-^
icntici'Sj liuitic out of Court into tijc Oanos of^rnant^fljaUOc HoiD jo. 506. pi
iftijcp ai'c not prcfrntcQ at tljc ncrt Court, nnn -.u the next Court the 17. s. c.heid
Surrender to B. is not prelenced, but the Surrender to D. is firlt pr^fent- aceordingiy.
ed, and utter, at tijC filUlC COUlt the Surrender to C. if, prCfCntCO i Itt X~ ^t^^"
t\0 Cafe, moil tljc luljoie £i3attcr, C. fijail Ijaljc tljc Lano i for, co. comp.
uotrntijilannniii; t\)c ^iirrennet to tlje uk of 15. upon ConQltion co? 69, 70.
iiotDimjpaiTcri out of tijc CopuljolDcr, but tijc Cftate remninco in ^- 5; cues
ijuiuiu It iG pitfenteo at tije ncrt Court, fotijat^. ijnDpaiDCts cd^
notuiitijfrantiiinj tije ^urraiUcr to tljc life of 15. to furrcuncr to tOe zsid. 61
life of €. but It luas fubicrt to be Vsoio if tijc €)nrrcnr!cr to X>. ijaD — ciib.
liccu prCiCiUcn i as if a u5an arl^iiouileogc^ a iOccD of oaargaitt atiD ^'^^^f
@);\ic, ant! after baraaino aiiD k'du to anotfjer, if tlje fecoiiij DeeD ^4" s c'
lie mrulicti, am tly: firft not, tbe icconO a9an fljall ija^e tljc LantJ ; fays, k feems
loitiS of tlje Conusance of a Jfine; tljen in tijis Cafe, t!je firlt this mmi be
^urrcuDcr not beunTprcfcntcrs, auQ fo ijoii^, tlje fecoiin ^urrcntiet ^"'?"!?°°'*
ss to be prcfcrrciD before tlje tljU'Q ^urrenocr, botlj beimv prcfentcD Lad notbe%
iUtl)c nert Court, ann tbe performance orii^on^pertoruianceofpaid, ora
tl}c Contiition 10 not material m tijc Cafe, but it is aU one agi if it court had
JjaB been abfolute luitbout anp CoaHition. a5ic0. s cat. 03. R. ^een heia
bctiueeii Baygoign aud Spitrimg, anniDLTeo pet Curiam upon a fpecial Mo'neV
was
a:)eri3icr. Ititratur ^rm. 7 Car. Sot* 374- due, and
there the
Surrender had been prcfentcd ; for it feems the Prefentment of the firfl Surrender, after the Payment
of tlie Money, had been void, becaufe the Surrender was void then, and a void Surrender cannot be
presented, and until a Surrender be prefented, it cannot bind the Intcrcfl: ot the Land ; fed quire.—
S. C. cited Arg. Pollexf 50.
3. A Copyholder in FeefnyreHderedtotheUfe cf himfelf for Life, the 4 Rep. 25.3.
Remainder to f. his Son for Life, the Remainder to the Ufe of his laji V^f-^-^-
Will, and the Admittance was fecund urn For mam Redditionn pr,£diif\ J. ^j^^^'J ^^ p^^_
dies, afterward the Father furrendcrs to the Uje of the Defendant, and died, fimple of the
■without t/iakmg a Will. It was the Opinion of che Jultices, that by the Copyhold
fecood Surrender it palled to the Defendant, and ic is as a Feoffment at'"^'"S ''™'-
chisDay to the Ufe of his Will, for it is to the Ule of himfelf, be- yj^'^f ''4
caufe he might difpofeof it by his Aft in his Life-time, and fo he might Will, re-
do in this Cafe. Cro. £. 441. pi. 4. Mich. 37 & 38 Eliz. B. R. Fitch mained in
V. Hockley. the Copy-
^ holder, and
not in the Lord. Gilb. Treat, of Ten. iSi. circs S.C for all rhe Defi^n of the Surrenderor
wa.s, that he mij^ht difpofe of it by Will, not to veil the Intereft in any Body, or to give away the
Power of dilpufing ot ic.
4. A being feifed of a Copyhold in Fee, furrendercd to the Ufe of his i Roll Abr.
Wife by the Hands of 2 Tenants, according to the Cullom, and after- 499 pl- ^■
wards furrendered the fame Land into the Hands cf 2 other Tenants to Ji^,.ft°'^s ^'^-
the Ufe oj his IViJefor Lije, Remainder to J. S. in Fee ; both Surrenders der to be''^""
were preiented at the next Court i the Steward admitted the VV^ite upon made to the
thefecond Surrender i it feems to be admitted, that ic was good Lane ^''^ '"Pc«'>
eg. Hill. 8 lac. in the Exchequer, Gooche'sCafe. and fays,
■^ -^ ■' i ' twas a good
Admittance,
and tiie Wife lliould have for Life, and the Remainder fhould be ro J. S and that it was adjudged,
11:11. S lac. in Scacc'. • ^ '^
(Z) moat
^o Copyhold.
ThisinRoH [2,1 fnjnt AQt Hiall be faid a Surrender hi Laix>.
is Letter L J
(L)infol.
501.
* S C cited I. T J7 a Copyholder in Fee takes the fiime Land ffOm tijC LOVD by
5BuIft. Si. J^ anocherCopy lor Lite, ti)t0 IS UOt aup €)ll!:mi5CU OC iDCtCC^
as adjudged j|^jf^.^tjg„ of Ijid COpPljOlB Of :ilt|)CntanCC; for a Copy hokl cannot be
Xm4 that Surrendered but by actual Surrender UlCOUlt, ti)l0 IS auTmU reQDCnS!
this latter mto tlje ipiiutis of tijc 1OC0, ann not bi? €)uriX!iQcr in iLain* ^^iclj.
Acceprance 37 (£1^ H5, bCtlUeCn Shepherd and Adann i lOljIClj UltCatUl' Dtll. 36 €!♦
was a giving j^^^j^ ^^ aQiuDgcn, Ciuoti uiOE 05. 1? 3a. * 03. K. fame Cafe,
herkance ant! tijctc It IS aDaiitteti a 8)urren53Ci: i UM tijcuc faiD, tije Revcnioa
Roll ' is in the Suirenderor, HO DltpOftUOU bCtUO; UiatJC tljClXOt
pi. 24. cites S C. as adjudg'd that it fiiould be no Eftoppel to claim other Elbtes, ard fo he fhould
jio't lofe the Inheritance ; a'ld thit the Record was brought i:ito Court and read, and the Rcifon of
the f ud?;mcnt Was, for that it was no more than if the Copyholder hid furrendcred to the Lord to the
Ufe'of himi'elf for Lite, with the Remainders over for Lives, and fo the Reverfion hi Fee fliould
continue in himlelf. Gilb. Treat, of Ten. 258. ci'.es S. C.. that il Copyholder in Fee come into
Court and there acccprs a Copy to Iiimfe^f tor Life, Kem-amd-r to his Wife tor Life, Remiiiider to
his Son for Life, this is tantamouat to 3 Surrender to the I'fe of himself &c. but he hath his old Re-
verfion in him, for there is no Ground to make a Surrender of that by Conftruftion, becaufe he has
made no Difpofuion of it ; but asthi.s Cal'e is in Rolls, it is laid that it was no Surrender, for that a
Copyhold cannot be furrendred by a Surrender in Law, but only by aftual Surrender, yet as it is in
other Places in Rolls, it is as in Bulftrode, held ro be a Surrender, but that the Reverhon was ftiU
in the Copyholder. ,^ r^ t-.
+ Roll Rep. 256. pi. 24. Mich 15 Jar. B R. Southcott v. Ad.ims, S. C. a Copyholder in Fee came
into Court and accepted by C:opy of the Lord an Elbie for his Life, Remainder to his Wife for
Life Remainder to his Son for Life. Haughton thought that this was a Surrender of tlie Inheri-
tance but Doderidge e contra, and held that the Reverfion in Fee continued inliim; but as to this
Point the Court diieftidthe Jury to find a Special Verdift, but they being ready to give a General
Verdict, the Plaintiti' was nonfuited. 5 Bulft. 80. Belfield v. Adams, S. C. accordingly.
Supplement to Co. Comp. Cop. 63. S. 2. cites S. C. If ibe Accepiarce had been only of an Eftate
for Life to himlelf who had the Fee, there might be fome Qucllion, whether this Ihould not con-
clude him of the Inheritance; Per Doderidge J. Roll Rep. 256.
Gilb. Treat. 2. [So] 3if fl COppljOlBCt Itt JfCC cnrrjes into Court, and fays, Cljat
of Ten. 257. he renounces his Copy, tijlgi tJJ HOt an? g'UrrcnDCC* ^» 37 CU 05*
llylnJZ' in tl)c fain cafe ijdo,
that fce w;7/ ^joW the Land w /ow^f)- hy Copy h:<t by Bill, on which the Lord makes him a Bill, which
Tenant accepts, per tot. Cur. it is a Determination of Copyliold. And. 199. pi. 255. Co;eman v.
Ijedill Le.199.pl. 27;. Mich. V & 52 Eliz. C. B Coleman v. Portman, S. C held clearly a
good Surrender. Gilb Treat, of Ten. 2S5. cites S. C.
T J 3. M. feifed of the Manor of D. became bound in a Statute to A. who
65. S.C iV died. The Executors of J. fiied Execution again/ Adf. Upon the Extendi
totidemVer- facias a Liberate ijjiied^ and thereupon the Manor was delivered to the Exe-
bis tutors, but was not returned. W. commanded a Court Baron to be held,
^"co^Comp ^"^ "^^-^ ^^^^ accordingly by Sufferance of the Executors^ who were prefent
Cop°77.°S. at the I'lnie.^ and in M's Prefence theyfaid, viz. we have nothing to do with
2. cites S C this Manor; per Wray Ch. J. this is no Surrender ^ lor the Words are
and Lord ^q^ addrefs'd CO M, the Conufor who is capable ol a Surrender, nor to
Coke fays, _ Perfon certain ; and this is but a general Speech. Le. 279. pi, 37S.
get'erdly?' Hill. 28 EHz. B. K. Penruddock v. Newman.
or U'otAs of tie Copyholder can pafs his Copylcld in fuch a Manner, as tLu lie fame ft.-all he accoiiKtedto
armunt 10 a good Surrender of the /nine ; bu't that ye', it rcUs upon a Difcier.cc.
4 I-ii'd
Copyhold. ^i
4. Lord pretending a For jut tire by a Copyholder in Fee ^ the Co/jy^o/^y^- Supplement
agrees to pay him 5 1. and paid it, in Conjideration whereof he was to etjJoy^°^°-^°'"P-
the Copyhold, except a Wood, for his Lile, and his Wife's Widowhood, and ^°P'^8.S
that the T£\:i'iutJhou!d have Election whether the Lands f.wnJd be a//iir'd t^^Ms '
to him iy Copy or by Bill &c. The Tenant chofe to have the Land ajfiired was a good
to him by Bill; The Lord enjoyed the Wood, and this was held a good Surrender,
Surrender for Lile only, and'that the Lord had the Wood difcharged 1"^ ^ ^°^
ofthe cuftoinary Interelt. Le. 191. pi. 273. Mich. 3 1 & 32 Eliz. C. B. u'onlefted'
Coleinaa v. Sir H. Portman. in th,. vv^jfe
for her Life.
Gilb. Treat of Ten 257, 29S cues S. C. and fays, that the Commumcr.thn in this Cafe feems to
Iiave been that w Inch caulcd rhe Surrender, for nothing elle could; and for auf^ht appears this Com-
munication was out of Court ; The Acceptance by Bill could not be the Snrrcnder in this Cafe, for
the Bill was never made of that, fo that it could only be the Communication that amounted toa Sur-
vendcr.
5. ParoUgreemeut adjudged a Surrender j Arg. 2 Show. 131. cites
Le. 181.
6. A Bargain and Sale to the Lord is a Surrender ; Arg. 2 Show. 131.
cites Jo. 141.
7. If a Copyholder or other cuftomary Tenant fhall fay to his Lord, Le. 177,
or other Perfon, in the Court of the Man or ^ I agree to farreniitr my Lands 178. pl.'350.
theie Words will not be a Prefent, or an exprefs Surrender, nor will '^'!'"- 3'
they amount to {0 much as a relinquiiliing of his Eitatci for in Truth f''^' ^' ^'
it is not any Thing in prefent but an Aft to be done in Future like untoRandars^P.
the Cafe put by Wray Ch. J. A. feifed of the Manor of D. demifeth and feems
the fame Manor at Will, that it is no Leafe, no more in the other Cafe'° ^ ^P-
ftall it be a Surrender, or a relinquiniing his Copyhold, or Copyhold ^5P~ ^'p'''
Eiiace, but yet, nonvithltanding, it will be agreed, that in fome Cafes Te" 258.
an exprefs and particular Agreement made by a Copyholder with the Cays, there
Lord of the Manor, for, or concerning his Copyhold Lands, will a- "" ^^ ""
mount to a Surrender ofthe fame. Supplement to Co. Comp. Cop. 68. fsurTnd'^^
"• ^" in Court
by Words
fliould be of more Validity thati a Surrender by Words out of Court.
8. If a Copyholder bargains and fells his Land to J. tS. and this is found
by the Homage, and J. S. prays to be admitted Tenant, yet the Heir
ofthe Copyholder Ihall avoid the Admilfion, becaufe ofthe Infulficien-
cy ofthe Surrender taking by the Words of Bargain and Sale, and not
by the Words ofthe Surrender i per Lord Dyer. D. 8 Eliz. Calch.
Reading. 57.
9. If a Copyholder comes into the Cotirt^ and defms his Lord to admit his
Son to be Tenant in his Father's Place, this feems a good Surrender to
the Ufe of his Son. Calth. Reading. 57, 58.
10. If a Copyholder will in the Prefence of other Copyholders ofthe
(iime Manor fay, that he is content to fiirrender his Copyhold Lands to the
Ufe of J. S. this is no good Surrender ; But if he fays he dot h farrender
into the Hands of the Lord to the Ufe of J. S. if the Lord will thereunto a~
gree, this is a good Surrender, whether the Lord will or not. Calth,
Reading. 58.
11. If the Tenant reigns his Interejl in the Court, into the Lord's
Hands, there withal for the Lord to do his Will, this is a good Surrender
if k be accepted. Calth. Reading. 58.
12. If a Copy holder y^ji he will be no longer the Lord's 'tenant, though
thefe Words be recorded, yet this :s no good Surrender. Calth. Read-
ing. 58.
13. It a Copyholder for Life takes m new EJlate for Life by Copy, this is a
Surrender oi his firll Eitate. Calth. Reading. 59.
M 14. But
^2 Copyhold.
14. But if a Copyholder for Life takes a Leafe of the fame by Indenture for
Lite, this is not a good Surrender of the Copyhold ; Quaere. Caleb.
15. It a Copyholder comes to the Lord and tells him, that for the Pre-
ferment of his Son in Marriage with fuch a Man's Daughter, his Willis,
to give his Land prefently to his Son, and dcfires the Lord that he would be
contented therewith, this is no good Surrender. Calth. Reading. 59.
i6. But if hefaid thefe Words in the Lord's Court, and the fame is re-
corded, or joimd by Homage as a Surrender, and fo prefented, then this had
been a good Surrender, without any other Words of Surrender. Calth.
Readin'^. 59.
Gilb. Treat. 17. If he come into Court, and fays, he is weary of his Copyhold, and
of Ten. 294. yeqtteffs the Lord to take it, this is a Surrender ; tor between the Lord
S- P- — — ^ and Tenant a Conveyance need not be according to the Cullom ot the
of Ten 2"" Manor ; for a Copyholder has no other Ufe of the Cuftom, than to con-
S. P. -' "' vey his Lands to a Stranger ; per Hobart Ch. J. Hutt. 65. Trin. 19 J:5c.
If he/.i;.r, jn Cafe of Blemmerhallet v. Humberftone.
lmer't'uf„rre>,de>; this is no Sun-eridei', for it only expreffes Iii.^ Inclination to do it, but not that he
aftually does it ; and adds a Qiiaere, if Words fpoke out of Curt will amount to a Surrender; But
any irords fpoke in CoUn hy a Copyholder, Jlje-iuing his Intention to furrender tnto the Lords H;inds, amounts
to a good Surrender. Ibid.
Gilb. Treat.
of Ten. 2S I.
esS. C. ■
(A. aj Of what a Surrender may be.
Rent was re- 1. /nOpyholdef leafed his Land for Years by Licence, and afterwards
ferved on a I. by Deed granted the Rent to a Stranger, to have during the
Siirnnder in r^^^^ ^^_ j^^q LefTec attorned and paid Rent to the Grantee ; per
£r'rende.^e' Gaudy J. the Grant is good, but now 'cis buta Rent-Seek, and it was
admitted fe- faid by lome, that the Leifor cannot farrender Kent rejerved on a Leaje for
veral Allic- y}ars iinlefs he furrenders the Reverjion alfo. Le. 315. pi. 441. Patch. 30
nations made g^- g ^ ^^^^jjj ^ Smith,
of the Land, *-"^""
wards 'the Rent was affigned over, and was fo done by Surrender and Admittanee. It was infilled,
that the- inStriftnefs the Rent would not pafs in Law by Surrender, yet the Surrender and _Ad-
niittance were Evidences cf the Agreement for the Sale ^'.d the Plaintift was a Purchafor and fo mtl-
tled. and decreed accordingly ; per Jefferies C. 2 Vern. i6.pl. 10. Hill. 1686. Spindler v. Wii-
lord.
2. Tho' it be incident to the Etlate of a Copyhold to pafs by Sur-
renders, yet fo forcible is Cujlom, that by it a Freehold and Inheritance
may pafs by Surrenders (without the Leave of the Lord) in his Court,
and delivered over by the Bailitf to the Feoffee, according to the
Form of the Deed, to'he inrolled in the Court &c. Co. Litt. 60. b.
3. Copyholder aliens Part, it feems the Lord is compellable in Chan-
cery to accept fuch Surrender. Palm. 342. Hill. 20 Jac, B. R. in C«fe
of Snag V. Fox.
(B.a)
Copyhold. ^5
(B. a) Surrender. To whole Ufe it may be.
Man may Surrender to the ufe of his Wtfe. 4 Rep.
pi. 18. Mich. 27 & 28 Eliz. in Cafe of Bunting v. Lep-
I. A Man may Surrender to the ufe of his Wtfe. 4 Rep. 29. b.
ingvvell.
2. A Surrender to the Steward to his own Ufe is good, for the Entry And tho' it
is Quod furfum-reddidit in Manus Domini, and the Steward js ^^s endea-
but the Lord's Servant, and the Surrender is to the Lord, and not to proved that
him. Cro. E. 17. pi. 43. Mich. 41 & 42 Eliz,. C. B. Erilh v. Reeves, by theC«/-
tom of the
Manor a Surrender could not be made to the Steward himfelf to his own Ufe, the Court rejefted it,
becaufc it wasagaiall Law. Cro. E. 71:. 111 S C. Supplem2at to Co. Comp. Cop. 6;. S. I. cites
S. C. Gilb. Treat, of Ten. 25i. cites S. C.
3. If a Surrender be made in Court into the Hands of the Lord or
kis Steward, it muft be tofttch a Perfon or his Ufe -jjho is in Efje^ and
capable of fuch a Surrender, or that may take prefently by Force of
the Surrender, otherwife fuch Surrender, tho' it be an aftual Surrender
made in the Court ot the Manor to the Lord or Steward himfelf, is
not good. Supplement to Co. Comp. Cop. 67. S. i.
4. li a Copyholder in Confideration of 20 /. to he paid to J. S. does
viake a Surrender of his Land to N. R. this Surrender is to the tJfe of
J. S. becaufe of the Conlideration expreifed in the Copy, and not to
the Ufe of N. R. Bat if in the Copy the Ufe be expreffed to N. R. and
no Confideration mentioned^ the Ufe exprefled fliall itand againit any
Conlideration to be averred. Calth. Reading. 37.
[C a] By (what PerfonSj and to njohom it may be This in Roil
surrendered, (O)
Fol. 503.
i.npEnant for Life Of il COpPljOlD, where there is a Remaindet ^^^"^^"^^
X over, may furCEnOeC tO tijC lOCH. CO* 9. ^atff. 1300=
Cer. 107. -^ u 1^-
2. It the Lord of a Manor for the Time being be Leflee for Life or ^j™' '^""•
for Years, Guardian, or any thdx has any particular Ffi ate., 01 Tenant^JiJ^Tc^l.
<itWtlt ot a Manor, (all which are accounted in Law Domini pro* When he
Tempore) do take a Surrender into his Hands; and before Admittance '^ become
the Leliee for Life ^w, or the * 27ars Intereji, or Ctiflody do end or tenant at
determine, or the Will is determined., tho' the Lord comes in above the hf mr'iakc
Leafe for Life or for Years, the Cultody or other particular Intereft a^s™der
or Tenancy at W ill, yet he fhall be compelled to make Admittance ^ited by
according to the Surrender. Co. Litt. 59. b. cites it as held 17 Eliz Oo<^«"dge
in the Earl of Arundel's Cafe, " J- l^ ^'^-
■D Tj ,1 -r. jUdgdinB.
R^ 2. Roll Rep 181
3. k Tenant for Life oi a. Copyhold, Remainder over in Fee to 5. z.Lc. z^p.
B. may firrender his Eftate, tf there ts no Ctificm to the contrary-, for .P'- 3^9- S.C.
the Eltate of Tenant for Lite, and of him in Remainder, are but one y '°^'.'^^'"
Eftate, and the Admittance of Tenant for Lite is the Admittance ot " '^'
him in Remainder ; held by the Barons, 4 Leon. 9. pi. 38. Mich. 33
Elii. in Scacc'. Butler v. Lightfoot.
4. J.
44 Copyhold.
Supplement 4. J. S. Was generally retained by the Lord of a Manor by Parol to be
Cop°6^T^ lyftw^n^ ot" his Manorj and to keep his Courts, adjudg'd that fuch
5. cites 8.' Steward may take Surrenders of the Cullomary Tenants out of Court;
C But fays for till he be difcharged he is Steward of the Manor as wtll by Re-
quire — tainer, by Parol, as if he had a Grant thereof by Deed. 4. Rep so
f" Tit. b. pi. 21. cited as Holcrolt's Cafe,
steward or "^
Cot3rtb(F) pi. I. and the Notes there.
5. Any one ivho may be d good Grantor in d Deed at Common Law, may
make a good Surrender of Copyhold Land, Js any Body Politick or Cor-
porate, Felons before Attainder, Bajlards, Hereticks, Lepers, Deaf, Dumb
or blind Men, being Tenants, may funcnder a Copy ; and Surrenders
made by fuch who are difabled to make a Grant at Common Law are
void. As Surrenders hylnjants,jliens, Jdeots,{'ach as are born deaf, dumb
and bltnd,Women covert withcut their Husbands See Co. Comp.Cop. s' 34,35!
Lev. i6. 6. Wliere the CuJio7n of a Manor is to ottrrender to two Copyljolder's
Bake^S^C °"^ '^ ^°"''^' ^ Surrender to the Heirs of a Copyholder before yldmittance ts
butS. P.' ■ <f^°'^' P'^'' Twifden J. the other Julbces being ablent. Keb. 25. pi.
doesnotap- 74- Pafch. 13 Car. 2. B. R. in Evidence to a Jury, Munitas v.
pear. Baker.
Glib. Treat.
of Ten. 271. cites S. P. that it is good.
[D. a] Surrender. By or to Feme Covert, In-
fant &c.
Cro. E. 90. I. A tenant for Life, Remainder in Fee to B. an Infant ; thev both
feiRlVtv. _ rl*»W;« a Surrender to J^S. in Fee. B. dies. The Heir of
Fordpan, ^ ""^y ^"^7» ^^^ ^^ ^°' P^^^ ^^ his Plaint m Nature gf a Dum tuit infra
S.C.ad- ^tatem. Le. 95. pi. 124. Hill. 30 Eliz. B. R. Knight v Foot
judged. man. ° '
It is no Dif-
continuance, Gilb. Treat, of Ten. 179 An Infant furrenders Copyhold Land.; h» m^v ►
full Agedifagree and enter ; for in Cafe where an Infant makes a Feoffment in Fee, he may enter
much more in Cafe of a Surrender ; for a Feoffment is a Conveyance which will work a n,rL,?; "
ance, but a Surrender will not. Gilb. Treat, of Ten. 261. "* Difcontinu-
A7e>,a,t 2. A Surrender by a Feme Covert made upon Examination before two
s„yre>,der of ^ich. 41 & 42 Ehz. C. B. Eriili V. Recves. / / P ^:S-
.Fe.:eCo. _ 3- But Without Efpecial Q,/om to warrant it, it is not good, becaufe
S tc is '' •! "r^"f f i^' P'°P" ^^ ^' ^°"^ '" Court , and Walmfley faid c
fecreiryto ^^f/° ^^J^dged upon Demurrer in a Lancalhire Cafe, where fuch a
beexa^ined Cuftom was pleaded and adjudged good. Cro. E. 717. p . 43. Mich 4,
by the Stew- & 42 Eliz. C. B. Enlhv. Reeves. ' ' f ^i -licu. 41
ard ; by the
Opinion of the Judges Toth. 108. cites 58 Elix. H. A. fol 420. Rich v. Erth Gilb T.e.r .f
Ten. 29 5. cites S.C. and fays, that an Examination ot a Feme Covert by the Steward onr Jr
Smi^itTS^^^^^^^^ ^'' ''-' '^ ^--. - ''- ^'-^ - a^y^^TctfLlcS^L'
4 A Feme Covert may receive a Copyhold Eji ate by Surrender from her
H«i/iW, becaufe flie comes not in immediately by him, but by mediate
Means, viz^by the Admittance of the Lord according to thcSurrender
Co. Comp. Cop. 49. S. 35. ^ "'iwiiuci.
A
Copyhold. 45
j-. A Fcjue Covert being /icretly examined by the Steward, comes into Gilb. Treat-'
Court with her Husband, and releafes by Surrender in Court to a Tenant 2^ ''"^i'.^*^''
in Polieirion; The Husband dies ; This is good to bind the Wife, ^nd '"""
the Tenant needs no new Grant or Admittance of the Lord, and affirm-
ed the Judgment. 2 Show. 82. pi. 70. Mich. 31 Car. 2. B. R. Stone v.
Exton.
6. The Surrender of a CopyhoJd Eftate hy an Infant of :^or $ Tears of
Jge allow'd of by this Court, yet the Lord of the Manor inlilted, he
never heard otany Admittance in that Manor at fuch an Age. 2 Chan.
Rep. 392. 2 Jac. 2. Naylor v. Strode.
(E. a) Surrender. Hotv. Conditional and chargino-
the Eftate.
I. 'TP I^E Father feifed of a Copyhold in Fee fiirrenders it to the life of S.C cited
_£^ his Son in Fee upon Condition to perform Covenants in an Indenture- ^^P?^^"^^^^
the Son after Admittance fiirrenders to J. S. upon Condition, that if the Son^°^°- Con^P-
fay lol. the Surrender to be void; the Son neither pays the lol. nor per- °^_q\\w
forms the Cavenants ; tht Father enters, and dies fetfed ; the Lands defend Trcau ot
■to the Son ; It was the Opinion of the Court, that by the Entry of the Ten. 260,
Father, both the Surrenders were avoided, and that the Son might well ^^^- '^"^
enter alter the Death of his Father, and avoid the Surrender made to^'^'
J. S. Cro. E. 239. pi. 6. Trin. 33 Eliz. B. R. Simonds v. Lawnds.
2. Surrender was to the Ufe of one in Fee upon Condition to pay loo 1. Gilb. Treat.
to a Stranger, and if he failed, that it fJooald be to the Ufe of a Stranger in °f ^^"' *'^°-
Fee, whether in this Cafe (upon the Tender of 100 1. to a Stranger, '^"jr^' ^'
-and he refuling) the Condition be faved, lor as much as it is to be done this Cafe
to a Stranger. The Court moved, that it lliould alfo be fpecially found, now feems
Cro. E. 361. pi. 22. Mich. 36 & 37 Eliz. C. B. Paulter v. Corn- '° ^^ ''=-
hill. y°"d3'l
Doubr, that
■ r i c • f- the Condi-
tion K raved ; for it was the Defign of the Parties that the Surrenderee fhould retain the Land ;
therefore if a Feoffment be made in Fee on Condition, that the Feoffee fhall grant a Rent-charge
to a Stranger, if the Feoffee tender the Grant, and he refufes, the Condition is faved.
3. Lord of a Manor demifed a Copyhold of Inheritance to A. on Con- Supplement
ditwn to pay 20 s. per Annum during Es. Minority, and 100 I- at his full ^^'^°-^°'^?-
Jge. A. tails in Payment, and y?mY»^^rfrtf to C. and his Heirs. The^°^J'5^P
Lord admits C. and afterwards B. comes to Age, but the 100 1. is not and Vays, it
paid to B. The Lord enters for the Condition broken, and grants to B. was Held,
by Copy, and whether his Entry was lawful, or that the Acceptance ^^^^ the En-
had rt'///)^;^^^ with the Condition, was the Queftion ; Fenner j. held,f''][ "'^^'^^'
that he might well enter, for he to whofe Ufe the Surrender is made4^Rep 2,1
comes in by him that furrendered, and not by the Lord, for the Lord b. cites i H.
is but an Inftrument to convey the Land, io the Condition is not gone ^ 5- Fol u,
but Gaudy doubted thereof, &c. cseteris Juft' abfent' adjornatun ^^.,,^•^■ —
Cro. E, 582. pi. 7. Mich. 39 & 40 Eliz. B. R. Pay v. Gibbon and of -Ten -T5
Brown. 5.-. cites '
,fay.s, that fiirely the Lords affirming the Power of the Copyholder to furrender an Eftate after the
Breach of the Condition for not paying the 20s. is a good Difpcnfation, for that Forfeiture, as well as
if he had accepted Rent after the Forfeiture, for the affirming his Power to grant over his Eftate, is as
much an Indicition of the Lord's Mind for the Continuance of the Eftate, as the Acceptance'- but
then as for the Forfeiture that accrued after the Admittance, it feems the Admittance could not pafs
away that, for the Land was charged with the Condition, into whofe Hands foever it came, and this
^ feems
i>,6 Copyhold
feetns to be Fenncr's Opinion, by the Reafon he gives f"'' '''■''f ^'^^ Ceity que I'le coming in by the
Surrenderor, the Lord by his Admittance did not pafs away his Interclt in the Condition, the Queftioti
wa5, whether the Lord had dirpenfed with the Condicio-i, not whether he had dil'penfed with the
Forfeiture of the Condition broken, for that was not broken in Part, till after the Admittance ; yet,
a Breach in Fart was a Breach of the whole Condition. A Copyholder in Fee may furrender, re-
fcrvint' Rent, with a Condition of Re entry for Mon pavment, and he may Re enter for Non-pat--
menf for having a Fee fimple according to the Cullom of the Manor, he may rel'crve whjt Profits
he plealesout of it by the fame Reafon as he may difpcfe of it as he plealcs. Gilb. Treat, of Ten.
\c^6^ 147.
4. Where a Surrender is made by A. to B. on Condition that R.JhaJl
pay 100 1. to a Stranger^ thefe Words make an Eftate conditional, and
give Power implied to the Heirs of A. to re-enter tor Non-payment,
and if there are Words which give Power to a Stranger to re-enter^ they
are merely void, neverthelefs the precedent NVords Ihall Itand and make
the Ellate conditional ; per Dodendge Serjeant ; And per Tanfield Ch.
B. Littleton lays, thatfuch a Re-entry is void, for a Re-entry cannoc
be limited by a Scrangerj Serjeant Nichols laid, that if a Surrender be
made that he fliall pay loo 1. this makes the Eitate conditional, and
gives a Re-entry to the Heirs of A. but when it goes further, and
limits the Re-entry to a Stranger, lb that it does not leave the Condi-
tion to be carried by the Law, in fuch Cafe all the Words ftail be void,
becaufe it cannot be according to the Intent ; as in Cafe of RelervaLiou
of Rent, the Law will carry it to the Reverfion, but if it be particu-
larly referved, then it will go according to the Refervation, or other-
wife will be void. Lane 99. Hill. 8 Jac. in the Exchequer, in Gooch's
Cafe.
5. A. made a Mortgage Surrender to B. but the Money not being
paid at the Day, B. entered wtthoiit any Admittance, and dcv'ifed the Co-
pyhold to his Son C. and died feifed. C. entered, and the Lord by A-
greement took the Profits tor a Time certain /» lieu of a Fine, but after
pretending the Land was forfeited, becaufe B. was not admitted, and
had paid no Fine, refufed to deliver up the PofTelfion, though the Pro-
fits received amounted to more than the Fine. A. being dead, his Heir
releafed to the Son of the Lord, but without any Contideration exprelled,
and he conveyed the Premiffes to his Father; it was held, that though
fuch Releafe had extinguifhed his Entry, yet the fame fhould entire to
the Benefit of him that had the former Right in 'Trtiji only, and for the
Ufe of C. the Plaintiff, and decreed the PoHelfion to him accordingly
againft the Defendants, and all claiming under them. N. Ch. R. 7,
8, 9. 5 Car. I. Lucas V. Pennington, W^right, and Noble.
6. The Father both of the Plaintiff and the Defendant, being feifed of a
Copyhold Eftate, furrendered the fame to the Ufe of his Will, and devifcd
it to the Defendant, who was his eldefl Son, paying his Debts, andfo much
Money to the Plaintiff, his Sifler, for her Portion, 'when of Age ; but if he
failed to pay the Portion, then floe was to have as much of the Copyhold E-
jiate as did amount to the Value of her Portion. She afterwards came of
Age, and the Defendant refufed to pay the Portion, whereupon the Ho-
mage allotted to her as much of the faid Copyhold Lands as they ad-
judged to be the Value of her Portion i but the Defendant being ad-
mitted, refufed to furrender the fame i thereupon the Plaintiff exhibited
her Bill, to have her Portion or the fiid Allotment decreed to her, and
the Court gave Day for the Payment of the Portion, and if he failed ,
then he was decreed to furrender the Allotment to the Ufes declared in the
Will. Nelf Chan. Rep. 24, 25. 8 Car. Marifon v. Marfton.
2 Chan. ,^_ ^ fhe Father of M. furrendered to W. his Nephew on Condition to
Row v' Til- T^y ^°° ^- '° ^- ^^2^5 ^"^ {tP^ died before 2.1. without Heirs of her Body,
lier. Pafch, then to W. M. dies before 21. leaving a Son ; the 200 1. was decreed
to
Copyhold. 47
to the Son, and that the Lands Itiind charged with it. 2. Chan. Rep. 54 Car. 2.
214. 33 Car. 2. Koih v. Tiller. ?.^- *^=
^ -^ Mother
died, and the Son died an Infant ; the Hu.sband of M and Father of the Child took Adminiftratioa
to thtni both, and fued the Son and Heir of W. and the 200 I. was decreed to the Plaintiff.
It is added, that A. gave his perfonal Eitatc of good Value to W. but nothing elfe of his own to M.
his (aid only Child.
8. A Copyholder furrenders to the Ufe of J.S. paying his Executor Gilh. Treat]
100 1. within i'uch a Time alter his Death ; He to whole Uie this Sur- °! ^^? ^^'^•
render is made takes by Force thereol' prefently ^ per Doderidge J. 2 ^haTthis^i
Bulil. 274, 275. Mich.' 12 Jac. a prefent *
Surrender ;
for other wife it can be of no EtFeCl.
[F. al Howl And m what Manner 2l Smrer/der ThismRoU
^ -* ' , , is Letter (G)
nmy be made. in Foi. 500.
By ^itoiyjejy.
t. A copi'ljoltscr in ftc map furrcntJctm Court by Letter of At- co. comp.
/\ torney without any Cultom, becaUfe IjC Ijimfdf Un'lXfjt tljett ^°P- 49 i*-
Ijnue furreiUJecEti 'Dc Coninuint Urn, bp tljc Common tm. UJttli= l"^' ^-^z ='"'*
out fuel) Cuftom. Co* 9- Combe is- b* refolbeo, Eid the
otherwife great Inconvenience would enfue j for how fhould Copyholders that are in Prifon o^r Ian
guifliing in Bed, or beyond the Seas, Surrender but by Attorney ? A Copyholder in Fee made a
Letter oj Jt torney to two ^euatitj of the Manor, to furrender his Copyhold out of Court to tie Vfe of 7 S and
his Heirs ; they furrendered the fame accordingly, and at the next Court brought in the Surrender
into Court, (but no Cufiom was found to warrant fuch a Surrender.) Notwithftanding in that Cife it was
relblved, ift. That it was a good Surrender, becaufe he might do it De communi Jure without al
kgmgany Cuftom. 2dly, When the Tenants fhewed the fame in Court, and the Authority which
•was given to make the Surrender, all which they had done, was refolved to be good, and leffally done
Supplement to Co Comp Cop. 70. cites 9 Rep. Comb's Cafe. Gilb. Treat, of Ten 202 S p'
and fays, the Law allows his doing it by Attorney as an Incident to the Power which he has to (iir
render in Court. Ibid. 256. S. P. and cites S. C.
2. ]|)tii. 28 cii5. C!)apmaii'0 Cafe, cttetr [in] Co, 9. Combe 76 co comp.
it \ua0 Ijein, 'QCfjat Uiljere * \s\> tlje Cuffom a CoppljolOec out of '^'^^^-^n
Court migljt furrcnncr into tlje t>^nm of tijc loro, bi) tlje lm\M ,* ^°' ^°'-
Of tUio cuftomarj) '2Cenant0, tijat \\\ oima are but attornic0, tljat c^TXV
ije cannot furrender by Attorney to the Lord by two Tenants, fOC tijete 34 SP
t&e Cuttom, tIjat ijai t&eUBarrant tijereof, ougijt to be purfueD, — GUb,
Ten. 205. S. P. Ibid. 256. S. P. that he cannot do it by Attorney without a fpeeial Cuftom.
3. Gilb. Treat, of Ten. 236. fays^ that it is faid to be refolv'd that a
Copyholder cauiwt furrender by flttorney 'xtthoitt Deed, and cites Praft.
Reg. 136. bta that he may he adniitte'd by Attorney without Deed. But
the Ch. Baron fays, Quaere of this.
4. By Clench; Lejf e ] or Tears cannot furrender by Attorney, but he
may make a Deed purporting a Surrender, and a Letrer of Attorney to
another to deliver it. Le. 36. pi. 45. Trin. 2S Eliz. B. R. Anon.
5. A Copyholder of the Manor of Arundel did furrender his cuftomary
Lafids to the Ufe of his la ft Wtll^ and thereby devifed the Lmds to
his yoiingeji: Son mdYiisUehs, and died; the yo'ioigejf Son being in Prifoft
-makes a Letter of Jt torney to one to be admitted to the Land in the Lord's
Court tn his room, and z\{oajter Admittance to furrender the fame to the
Ufe of B. and his Heirs, to whom he had fold it for the Pajmcnt of his
JJelts ; and W'ray was of Opinion, that it v\as3 good Surrender by
Attorney ^
4^ Copyhold.
Attorney ; but Gawdy and Clench contrary ; and by Gawdy, if he
who ought toi'urrender cannot come into Court to furrender in Perfon,
the Lord ot the Manor may appoint a fpecial Steward to go to the
Prifon and take the Surrender &c. Le. 36. pi. 45. Trin. 28 Eiiz. E. R.
Anon.
6. If there be a fpecial Cujiom that a Copyholder for Life may make £-
Ji ate for 20 Tears to contlime ajter his Death, thele Eltates cannot be made
by Attorney. Co. Comp. Cop. 49. S. 34.
7. .5b it'thefe be a fpecial Cuftom, that an Infant at the Age of Difcre^
Hon may furrender a Copyhold i this Surrender being confirmed by fpe-
cial Cullom only, cannot be made by Attorney. Co. Comp. Cop. 49,
S. 34.
8. There was a C///?o;» within the Manor of Caftle-Dunnington, that
any Copyholder of that Manor may make a Writing in the Nature of a Let-
ter of Attorney to two Copyholders of the fame Manor, to furrender his Co-
pyhold after his Death. The Queltion was, whether this was good Cu-
ilom or not ? The Court delivered their Opinion, that the Cullom was
good ; and Roil Ch. J. faid, that the Death oi' the Party doth not re-
voke this Writing made in the Nature of a Letter of Attorney, for it is
Itrengthened by the Cullom, and it it not like an Ordinary Letter of At-
torney, which becomes void by the Deatn of him that made it ; for this
Cullom is a Law, and the Authority here furvives. As an Executor may
fell the Tellator's Lands, if he be impower'd to do it by the Will, and
therefore the Cuflom is good, and let the Plaintitf have Judgment Nih",
&c. Sty. 423. Trin. 1654. Roby v. Twelves,
This in Roll [F. a. 2] \_Sm're;2der by Attorney.]
rnFT5L.^ How the Attorney fhall do it.
,. TiF tf)e Lcttct of attotncp U niatie to ^m to maltc a Sutceii^
X tICt in Court, tf)C Attomies ought to purfue the Form and Man-
ner of the Surrender in all Points, according to the Cullom, a0 tIjC C0=:
ppIjoIOEt Ijimfcif oudjt to \)iCot tione, a0 if it ougljt to be bp tljc KoD,
oc otbet '^Ttjing. Co» 9- Combe 76 b. tefolbcD.
f>. C. cited 2 Clje ^ttOCnep OUgljt to mahe it in the Name of him that gave
Arg. Godb. him the Authority. Co. 9- Combe i6. b. tefolbeti.
^ ^- 3. a lettci: of attorncp Uiais maoe to ttuo to mafee a €)ittrcntier,
ant tljep Ihewed their Letter of Attorney, and then they Authoritate
eis per praediftam Literam Attornati data, furrendered it, tljiS lU aS
ttiuclj ais to fap, tljat tne, ais attomies of tf)c coppijoioet fuccenDcc,
aim bOtI) are Uiell none in the Name of him that gives the Authority.
Co* 9- Combe 77- Curia»
(G. a) Surrender. Without expreffing to whofe Ufc
it fhall be. How the Admittance may be.
t.'TF t Surrender generally Into the Hands of the Lord, not exprel/zng
X to whofe Ufe the Surrender <hall be, this Surrender is a good Sur-
render, and pall enure to the Benefit of the Lord. Co. Comp. Cop. 49.
S. 35.
2. J. w
Copyhold. 4.9
2. ]• W. a Copyholder in Fee, 10 EWi. fnrrendred his Land /;;/o Supplement
the Hinds of the Lord by the H.inds of 1'enants according to the Cuf- 5," ^°- ^°i"P-
toni &c. without [dying to ivhofe Ufe the Surrender llinuld be ; and at (-i°es C.'—
the next Court the laid /. ]V. w.is admitted H.ibouV to him and his IVije Cro. J 454.
in Tail^ the Remainder to the right Hars of J. }F. Refolved by the P'- iS. C.
whole Court Ibrthefirft Point, that the fiibfeqaent Aff Ih all explain the^^ T^y''
Surrender; tor, .(^tando abcjl Provi/io Partts, adeft Provifio Legis, and Mano« '"he" e
when the Copyholder accepts a new Admittance the Law intends that are no other
the Surrender generally made was to fuch an Ufe as is fpecified inPo^msot
the Admittance, and the Lord is only as an Inllrumenc to convey the 9''^"^ P"*
Ellate, and as it were put in Trult to make fuch an Admittance, as "^Gjib"'
he who Surrenders wou'd have him to make. Poph. 125. Trin. 15 Treat, of
Jac. B. R. Brook's Cafe. Ten. z^.^.
cites S. C.
and fays, that the fublequent Admittance explains to what Ufa the Surrender was made. — Lord
Kaym. 626. 627 Hill. ii. W. 5. S. C. cited by Holt Ch. J. and faid, that if a Copyholder furrenders
to the Lord witiiout limiting any Ufe, the Copyhold belongs to the Lord, and hit Ejlate is extinguijhed^
1,1 the fame Manner as it Tenant tor Life at Common Law releafes to him in Reverfion ; and then
the Grant will be a voluntary Grant of the Lord.
3. If a Surrender he to the Lord, quod inde faciat voluntatem^ yet by Ciif-
tvm the Surrenderor by Petition or Declaration may direii it to any Perfott
•whatever, and the Lord mujl purfue it, and there is no Eitate in the
Lord, but it remains in the Tenants Hands till Admittance of fuch
Party, and the Purchalbr may come in at any Time ; per Cur, 2
Keb. 823, 824. pi. 41. J\Iich 23 Car. B. R. in Peebles Cafe.
4. If a Surrender be made to the Lord exprejftng no Ufe, it lliall be to
the Ufe of the Lord ; for it cannot be imagined that the Surrender
was made to no End or Purpofe i and a Surrender may be made to the
Lord, and no Ufe need be exprelled. Gilb. Treat, of Ten. 239.
(H. a) Surrender. Abfolute Surrender. To what
Lord. Diileifor,
I. A N abfolute Surrender by a Remainderman for Life to aS. C.inB. R;
£\ Dijfeifor Lord's own Ufe was held not good, and the Copyhold V^jf^J^g^^''
not extinguilhed thereby, for he had no Ellate capable of a Surren- j-j, q g ^^^
der ; lor the Polleffion of the Copyholder for Life prevented a Dif- Adjomatur.
feilin, and Ho the Reverfion continued in the rightful Lord ; but had 2 Show,
the Surrender been to the Ufe of another it had been good, the Lord in ' p- ^'" '^-
that Cafe being only an Inflrument, and the Eitate not out of the 5i.°°J' ^g
Surrenderee till the Admittance of the Surrenderor. And fo a Judg- pi, 4. s. C.
ment in C. B. was affirm'd per tot. Cur. 2 Jo. 253. Pafch. 33 Car. 2. argued.
B. R. Pitt V. Moore. 1^'^°'^- ^^7-
Moore v.
Pit. S. C. North Ch. J. and Windham inclin'd, that the Surrender was not good; but Atkins T,
e contra. Vent. 5^9. S. C. argued, Sc Adjomatur. Freem. Rep. 245. pi. 157. S. C,
argued.
O (I. a) Sur-
CO Copyhold.
(I. a) Surrender to the Ufe of a Will.
t)al. -S. pi. t. * Seifed of Copyhold Lands devifed a certain Parcel of them
^•S C forhe _/\. to his Wile tor Lite, Remainder to his Brother and his
to ili'Tt in Heirs, and afterwards m Prefence of 3 Perfons of the Court faid to them,
making his / have made my Will as I would have it, and here I furrcnder all my Copy-
Surrender, holds Lands tuto your Hands accordingly, by this not all his Copyhold
fa"1n^''he^ Lands are furrendered, but thole only mentioned in his Will. 3 Le.
fuVrendered 18. pi. 43. 14 E^i^^- B- R- ^non.
all his Land
accordingly, be fhewed that his Intent wason)yto pafs thofe Lands that were devifed by the Will.
Here was no Queftion about the validity ot the Surrender which was oviy by Parol, arid into the
Hands of the 3 tenants of the Court , but it is not faid, in Court, and indeed the Cafe cannot well be
fuppofed to be in Court for then the Surrender had heen to the Lord or Steward, and there can
be no Reafon why a Surrender in Court by Words fhould be ct more Validity then a Surrender
by Words out of Court. G. Treat, of Ten. 257.
2. A. devifed that B. fhould have a Copyhold in Fee, (or devifed a
Copyhold to B. for ever) and afterwards a Surrender is made unto
the Lord to grant the Copyhold according to the Will j the Lord may
grant to B. in Fee. Godb. 137. pi. 162. 29 Eliz. B. R. Allen w
Patlliall.
Supplement 3. A. Copyholder in Fee devifed to his Wile for Life, and that fhe
to Co Comp. fhould fwll the Reverlion tor Payment of his Debts, and afterwards
S C — ^^ furrendered to the Ufe of his Wife for Life according to the JVill
GilH. Treat, and Deed [and died.] It was adjudged, that flie might fell this be-
ef Ten. 258, caufein his Surrender he referr'd to his Will, and afterwards fhe fur-
a59. S. C. rendered upon Condition to pay 12 1. this was held to be a good
Sale according to the Will. Cro. E. 68. B. R. Hill. 29 & 30 Eliz.
Bright V. Hubbard.
4. A Copyholder furrenders to the Ufe of Ws laft Will, and he af-
terwards malces a W^ill, the Lands do not pafs by the Will^ hut by the
Surrender ; for the Will is only declaratory of the Ufes of the Surrender.
Bulll. 200. Pafch. 10 Jac. Semain's Cafe.
Litt Rep. 5. Copyholder in ¥qq furrenders to the Ufe of his laji Will, which he
2%. The Jgid, fr)g --juould leave with his Partner Adofs ; Mofs dies ; he recites the Sur-
E "^ S C ^^"^^^3 ^"^ makes his Will. It feems the Devifee fhall have the Lands j
for thefe Words, (that he would leave in the Hands of his Partner Mofs)
are only Words of De7nonJiration, and no way operative or reftritJive of the
Operation of the Surrender or Devife ; and it is a Rule in Law, when
an AEt is to be done, with Reference to another Thing, which is
impoffible, illegal, or variant, the A61 ihall Hand, and the Reference
be void. Gilb. Treat, of Ten. 258.
6. A Surrender was made to a Fe?ne Covert, of Copyhold Lands, with
Power referved to her to furrender it tofuch Ufes as pe by Writing, or Lafi
Will, in the Prefence of i Witnefjes fhould dtreCi ox appoint. She made
a Will in Purfuanceof her Power executed in thePrefence of 3 Witnelles,
and gave it to her Daughter and Heir. Afterwards Ihe made a Surren-
der, together with her Husband, to the Ufe of her Husband and his
Heirs ; But this was made in the Prcfence of 2 Witnefles only, who
fubfcribed their Names (as V\ imelles f) but the Deputy Steward, who
took the Surrender, had fet his Name to it. On a Bill by the Husband
after the Wife's Death to eftablilli this Surrender, who would have the
Steward to beconlidered as a third Witnefs, the Daughter, the Defen-
dant, pleaded a Title by the V\ iJl; and alfo demurred, tor that the
Plaintiffs
Copyhold. 5 1
Plantifl's Title, it' any, was only at Law, and he might bring Eje£l-
nients. Ld. Chancellor leemed to think the Plea good, as a Plea ot the
]>tendant's Title, and the Demurrer good likevvile, as a Demurrer to
the PlaintitFs Title. But at lalt he over-ruled the Plea, and allowed
the Demurrer. Abr. Equ. Cafes 42. Trin. 1728. Cotter v. Layer.
7. If a Copyholder after Admittance furrenders the Lands to the Ufe I^>id. cites 2
of his Laft Will, and gives them to J. S. but the Will is not attefted A^omly''
by any VV^itnefs, yet J. S. is well intitled to the Lands ^ per Ld. Chan- General v.
cellor. Barnard. Chan. Rep. 11,12. Pafch. 1740. Tuftnell v. Page, Bains, and
Ld. Chan-
cellor faid, that the Reafons, tliat the Party is in by the Surrender and not by the JVill, and therefore It
is good, the' thcie be no Witnefs at all ; but that it is neceflary that the Will be in Writing, and if
it be fo, it is fufficient if it be fign'd by the Party. And fo it is where a Perfon is intitled to the
Trull of a Copyhold, tho' there was no Surrender at all to the \JCc of the Will, nor the Will attefted
bv any Witneffes, yet it is fufficient to give the Truft of the Copyhold Eftate, per Ld. Chancellor,
and faid, that this is merely the Cafe of a Trulf, and the Teftator could not make a Surrender of it.
Ibid. II, 12, 15.
(K. a) Surrender. Take. Who ihall take by the
Defcription. And what is Certainty fufficient.
Averment.
l.T[ T is not neceflary that upon Surrenders of Copyholds, the Name of
X. the Party to whofe Ufe the Surrender is made, be precifely let
xlown, // k)' any Manner of Circumfiance the Grantee may be certainly
known, it is fufficient .^ and therefore a Surrender made to the Arch-
bipop of Canterbury^ or the Lord Mayor of London, or the High Sheriff of
Norfolk, without mentioning either their Chriftian Name or Surname,
are good enough, and certain enough, becaufe they are certainly known
by this Name without tarther Addition. Co. Comp. Cop. 49. S, 35.
2. So if I furrender to the Ufe of the next of my Blood, to the Ufe of
viy Wife, to the Ufe of my Brother or Sijler, the Surrenders are good
without any Additions, becaufe the Grantee may certainly be known by
thefe Words. Co. Comp. Cop. 49. S. 35.
3. But if 3 furrender to the Ufe of 3 or 4 of St. Dunjtan^s Parifh, not
naming the Panfhioners by their Names, this Surrender is utterly void.
Co. Comp. Cop. 49. S. 35.
4. If a Copyholder will furrender to the Ufe of the right Heirs of J.
S. he being alive, this is void, becaufe it cannot take EfFe6t according to
the Jntentot the Grantor ; tor he would have the Grant to be executed
prefently, which cannot be, in regard that J .S. can have no Heir till
after his Death. Co. Comp. Cop. 49. S. 35.
5. A Copy was granted to J^. S. and his Son (without naming his But where
Name;) Heavers, that at the Time of the Grant >5?f ^^(/ but one Son ^^^^^'^V'^
only, and 'twas adjndged a good Limitation to that Son. Cro. J. 3 74. {d^uj'ie/ "
pi. 4. Mich. 12 Jac. B. K. Cob v. Betterfon. njt g°od f^p
the Uncer-
tainty. Ibid cited per Coke Ch. J. as 29 Eliz. Winkmore's Cafe. Gilb. Treat, of Ten. 24".
cites S. C. accordirgly, but adds, that Coke fays, that if a Man and he has more Sons of tha't
Kame, this Incenainty may be helped by Averments, but if a Man furrenders to the Ufe ofliis
Fi iend or Coren, this is void, and not to be helped by Averment, for the Uncertainty ; So if the
Surrender be to the Ufe ofl. S. orl N. Co, Comp Cop. 49 . S. 5;. the Same Point in totidero
Verbis.
(L. a)
5 2 Copyhold.
A
(L. a) In what Cafes a Surrender is neceilary.
Copyholder cannot transfer his EJiate but hy Surrender \ the Reafon
_ _ is, becanfi he has only an FJlate at JVii/, ivhich is determined when
he takes upon hiin to grant it over; tor that is a plain Declaration ot his
Intent, that he deligns to hold the Land no longer j fo that he mull
furrender to the Lord, and then he may grant another Eltate at VV ill.
Which now the Lord is compellable to do to him to whole Ufe the
furrender is made. Eecaufe the Copyholder now has that fettled In-
terell and Ellate in the Land, that his Heirs Ihall inherit the Land,
whether the Lord be willing or not ; and fo a Copyholder hath Power
over his Eftate, and not the Lord i theietore 21 E. 4. Brian laid, that
if the Lord enter upon his Copyholder, he might have Trefpals. So
tar it is now Irom being a Determination of the Copyholder's Eltates.
Gilb. Treat, of Ten. 146.
2. A Copyholder in fee furrender'd to the Ufe of his Will and devifed
his Copyhold- Land to his Jf ife, and that ifjhe had any Ijjue by him^ the/i
to flic h IJJne at the Jge of zi Tears, and if he had no Ijftte by her, ihenjte
to chafe 2 jittornies, and they to make a Bill (f .Sale of the Lands to her bift
Advantage; the Court held that Ihe hath Auchority by the \\ ill to name
2 Attornies, who Ihall fell, and that they may make Sale and the Ven-
dee lliall be in by the Will, and there needs not any new Surrender.
Cro. J. 199. pi. 30. Mich. 5 Jac. B. R. Brent v. Sheppard.
3. l.S.a. Copyholder in Fee fold all his Copyhold and other Lands to J. C.
by Indenture of Bargain Sale, and the Lejfee of the Manor entered and
took Polieffion, and atterwards J. S. died feifed, and W. S. his Son and
Heir was admitted upon Prefentment of the Humage, that his Father died
feifed, and that the fatd W. was his Heir, and atterwards IV. S. furrendred
to the Ufe of the Plantijff,who was admitted and brought FjeBment; It was
agreed that tho' a Copyholder cannot convey his Copyhold Eltate to
a Stranger without Surrender and Admittance, yet he may grant it to
This is jijg j^gyd of the Manor out of Court by Bargain and Sale, becaufe the
™d'^(hould Cullom is not between the faid Lord and Tenant, but between the
be Chan. Tenants ihemfelves only ; and Judgment for the Plaintiff. Win. 66.
Cafes 59. 67. Pafch. 21 Jac. C. B. HalFet V. Hanfon.
■—5, Chan. ^ j)_ agreed for the Pure hafe of a Copyhold, and purfuant to that Agree-
inTotidcm ^^^^ ^ Surrender was made out of Court to his Ufe, then he devifed all his
Verbis. I^ands to R. B. &c. and died before Admittance j 1: was decreed that the
Copyhold Lands Ihall pals becaufe the Tellator had a Title in Equity
to recover them, and the Vendor flood feifed for him till a legal Con-
veyance could be made. 9 Mod. 75. Marg, cites * 2. Chan. Rep. Trin,
15 Car. Davie v. Beardlliam,
5. If a Copyholder furrenders his Copyhold, he cannot have it again
unlefs by Surrender. Mar. 2t. pi. 48. Pafch. 15 Car. Anon.
For the 6. Copyholds;;/ Adurtgage may be devifed whho^t xht Formality of a
Mortgafjor Surrender to the Ufe ot a laft Will, tor the Copyholder has only an
l^^^^y:^'"'*'''^ Equity of Redemption. Vern. R. 69. pi. 65. Mich. 1682. Brcat v.
IV hereof to Beit.
make any
Surrender. Ch. Prec 512. in Cafe of Greenhill v Greenhill Toth. 142 cites Mich. 14 C.r
Hi<»hg:«e V. Highgate S. P. 3. Wms'i Rep. 55S. pi 56. Trin. 173J King v. King and £;mi,-.
S P.
7. Surrenderee of Copyhold Lands afftgns them^ together with Freehold-
Lands, to J. S. Per Lord Chancellor the Copyhold could not pals but by
Siir-
*
Copyhold. 5^
Surrender only and not by Conveyance. 2 Ch. Cafes 43. Hill. 32 &;
33 Cur 2. Knight v. Cook.
8. Ciijf ciliary Lands njoithin the Coiuity Pa/ati/ie of Cornwall^ the' they Ch. Prec-
pais by Leai'e and Releaie, yet by the Cultoni cannot be .devifed 2^q p'
without a Surrender, yet one, who has an equitable Interejt only^ and not ^(gp ,„ ^^
the legal Eftate, may (^^TO/?' them without mailing a Surrender. 2 Vein.
R. 679. pi. 604. Hill. 1711. Greenhill V. Greenhiii.
9. Where a Perfon pnrchafes Land in the Name of another, or has only 9- Mod. tfS.
an equitable and net the legal Efi ate ^\\q may devile the lame without a 5' ^Z"*^ ^^"
Surrender; per Parker C. 10 .Mod. 519. 529. Mich. 10 Geo. i. in HoTfe of
Cane. AcherJey v. Vernon. Lords.
10. hn Equity of Redemption of a Copyhold mdy be devifed without
being fumndred to the Ufe of a Will. 3 \V'ms's. Rep. 358. pi. 96. Trin.
1735. King V. King and Ennis.
(M. a) Surrender. Want of Surrender, or defective
Surrender. Supplied in Equity. In what Cafes.
i. A Copyholder in Fee Surrenders ?o the Ufe o^ one, and to his
X\_ Heirs, upon Condition of Redemption, writes down his Debts,
and '■joilleth Eart ol" his Copyhold to be fold jor Payment of bis Debts al-
ter his Death j one of the Creditors payeth the Money at the Day to
the Mortgage^ who neverthelels inrolleth the Surrender atterward,
this other Creditor complains againft him and the Heir in Chancery,
and had a Decree that the Copyhold ihould be fold for the Payment of
Debts, and the Remainder of it (if any were) Ihould defcend to the
Heir, for altho' the Devife of the Copyhold be void, yet to take ic
from the Surrenderee, (who held it only for Money to be paid) and
to pay him and the other Creditors therewith, hath good Warrant in
Equity, and the Heir hath no V\"rong, for that it was gone from him
by the Surrender lawfully. Gary's Rep. 9, 10. cites 41 Eliz;.
2, A. purchafed a Copyhold for the Lives of himfelf and B. and C. his
Sons. A. alone paid the Fine. A. agreed to furrender all his T'ltle to J. S.
•who paid the Purchafe Money agreed upon. A. died before any Surrender
made. Then J. S, died. His Executors brought a Bill againll the Sons
of A. to compel them to furrender the Copyhold according to the
Agreement ^ and decreed accordingly. Chan. Rep. 272. 18 Car. 2.
Greenwood v. Hare.
3. A. coienanted with the 7'rnjlees to fettle Freehold Lands on himfelf and ^ r i^' A
M. his IVife for Life tor Part of her Jointure, Remainder over, and f^^f- j|^
to furrender certain Copyhold Lands to the fame Ujes, and in going to make Wms Rep.
a Surrender he fell Sick by the Way, but made a Letter of Attorney 249 i" Cafe
to others to do it, but died before it was done. The Remainders °*^*"k°°'*
limited were to the Heirs Male of the Body of A. by M. Remainder to "' ^'
the Heirs Male of his Body, Remainder to B. Brother of A. and the Heirs
Male of the Body of B. Remainder to the Heirs of A. The Heir Male
of B. prayed a Conveyance of the Copyhold ; Lord Keeper faid, that
if A. had had a Son by a former \Y\ic, no Relief could be had againft
him upon this Covenant, which as to the Plaintilf was meerly volun-
tary, and if A. and B. where both living, B. could not inforce A.
to execute the Covenant tho' M. might, and difmils'd the Bill.
Ch. Cafes 243. 14. January 1674. Beliingham v. Lowther and Went-
worths
P 4. Sap-
54- Copyhold.
Kin. R. 3S8. Tiin. 30 Car.
the Dsjenda fit's Father for the
of a Copyhold hjhte^ the Plaintiff paid the piirchafe A^oney, and
4. Supplied in Favour ot a JoifJtteJs.
z Marlovv v. Maxie & al'.
c. The J'hn/iti{f ha.\'ing cofitrailed rjith the Dejefidant's Father for the
and <iny Surrender ii/ade, the Dejeiidaiit^s bather dud. This Courc
decreed the Delendant when he came ot Age to Turrender efteftuaily the
PiemiHes to the Plaintiff; and the Lord cl the Manor prelentiy to ad-
mit the Plaintilf Tenant to the Premiik-s. Chan. Rep. 218, 219. 33
Car. 2. Barker v. Hill.
6. Surrender being to one Copyholder only -ivus {applied againltthe Heir in
Favour of the younger Children. \ cm. 132. pi. 120. Hill._i7b2.
Hardham v. Roberts.
7. By the Q^ow of the Manor of "i elminiter Piinia in Devonlhire,
et'ery Copyhold Tenant of that Manor may^ m the Prcfence of t-ivo JVuaeJes,
nominate his Sncccfjor^ and luch Nominee ihall enjoy the Lands alter
him lor Lile, and ihe Perfon -who iwviinaies may except any Part of the
Lands to my other Perfon, yet the NominLC continues Tenant to the Lord
for the -whole, but the Perfon to ifhom any Part is excepted pall enjoy any
Part during his Lfe i and if any Tenant dies feifed, leaving a IViJe, and
makes no Nomination, then the ll-'ife /hall have the Tenement during her
Life elfe it goes to the Lord ; a Copyholder by his Will intending to give the
great cfi Part of his PJlate to his Godfon, and the other Part to his Wife,
the IVife perfuades him to nominate her to the ivhole, and that Jhe would
give the Godfon the Part defign'd jor him; Decreed againlt the Wife,
notwichftanding the Statute of Frauds and Perjuries. Chan. Prec. 3.
pi. 3. Hill. i6b9. Devenilh v. Baines.
8. Chancery will help the want ot a Surrender in Cafe of a Purcha^
for; per Hutchins. 2 Vern, 165. Trin. 1690. in Cafe ofHitchox v.
Sedgwick.
Bur A de- 9- Equity will fupply the want of a Surrender oj a Copyhold as well
viied his for an Elder Son as a lounger, in Cafe of Gavelkind Copyhold, if it ap-
CopyhofAhs- pears to be the Intent ot the Will, that the Eldeit Son Ihould have
lag Borough ^j^^ Copyhold, paying aLegacy thereout to the Toimgcji Son ; Per Lds. Com-
Sldeft miffioners. 2 Vern R. 163. pi. 152. Trin. 1690. Bradley v. Bradley.
HOTfes in London to his Youngeft Son. The Houfes were foon after burnt down and the Younf^eft
Son never entred upon them. The Court therefore as thii Cafe <U!as circHn:]lanc'd would not fupply
the Defeit of a Surl-cnder. 2 Vern R. 265. pi. 251. Paich. 1692 Cooper v. Cooper.
10. A Copyholder in Fee, having Ilfue two Daughters, devifed a
Copyhold EJlate to his J^ounger Daughtir, whereby her Fortune ii:as made
much more conjidcrahle than the eldejt Sifter's, and there being no Sur-
render made to the Ufe of his Will, the Queltion was, Whether
that Defe£t ftould be I'upplied in this Court; lor altho' that Deleft
is generally lupplicd, where it is ibr a Provilion ibr a Wit'e or Child,
yet in this Cale, in Cafe it were not fupplied, her Fortune would
have been equal to her other Sitter's and the Copyhold would have
defcended equally to them both; yet nocwichltanding it was fupplied
here, being intended a Provilion tor a Child, tho' it made her fupe-
rior to her elder Sifter in Fortune. Ex Relatione M'ri Foley. 2 Freem.
Rep. 234. pi. 305. Baker v. Jennings.
11. Decreed that all Deviles by Copyholders /or ;i7£ Ufe of Children
vr Creditors, and all Charges made by them upon their Lands for the
Benefit of Children or Creditors, will be good in a Court of Equity,
though there was no Surrender to thefe Ufts. 3 Salk. 84. pi 5. P:dcri.
1I^V. 3, Pope .Seal", v. Garland.
12 A
Copylioici. 5 5
12. h younger Sv/i brings a Bill, and fur mi fes that a Copyhold which his
Father had dcvifai to him by Will a'^i furraidercd ro the life ot his Will,
or iiouever that being lor the Advancement of a Child, it ought to be
made ••'■ood here. He made no Proof ofany Surrender, nor that a Court
was called tor that Purpole, nor any Froof'thatany of the Court Rolls
vvereloll (which was pretended) and he-was well provided for, without this
CopjhuJd, and the elder Brother wjs in Pojjejftori 20 Jmn^ by Confent of
the I'hnii'ilf ; io the Kill was diliuiUcd, with Colts. Abr. Equ. Cafes,
123. PaRh. 1700. James V.James c <: a ■ u . Vem. 62.-.
13. Chancery ought not to luf:ply the want ot a Surrender in va- ^ c. cited in
vour of a Grandfoii, but only of a Son or Daughter, and not then the Caic ot
neither if it was tu difinherit the ddejl Son, but prior Provifion is not Linon-
material, In Donio Procerum, by which a Decree of Lord Somers's was ^^''"(|?^| ^'^j
reverfed. i Salk. 1S7. pi. 6. in Time of VV. 3. Kettle v. Townlend. pa"|.|^3nd"
. Upon citing the Cafe of Kettle v. Townfend by Mr. Pooley, in die Cafe of 21att0 IJ. ©uUaF,
Mich. I70i. the Alaftci- ot the RolLs then in Court with Ld. K. Wri^'ht faid, that it was his <->P'"'°"'
tliat I'uch a Dcvife without a Surrender ought to be made good to GranA-ChiUren as well as to Chil-
.1r'en, and that if the lame Cafe was to come on then in tlie Houfe ot Lords it would be fo ruled, and
that he h.id and would decree it fo. Wm.s's Rep (>i.
And in a Note there add;d to the Report of the Cafe of Watts v. BuUas, it is faid, that the |ike
was declared by Ld. Harcourr, in the Cafe ot ^frCfaoiU' ij. Kaili", Trin. 1712, and the Note lays
that it is ob'.ervab'e that the Cafe of Kettle V- Townfend being cited before Ld. Cowper in the La.e
of flirfakfr t. 3!xCb!llfcn, (Mich. 171 7) his Lordfhip doubted thereof, in ^•egird that the Graw^r^-
ther h' tie .-'ci 0/45 El!Z- foy niahit,viunr. the Pcor, is bound to maintain his Grami-ChiU, wlucti tie laia
he believed was not taken Notice of in that Cafe. Ibid. 61.
14. Cefly que frufi of a Copyhold devifed it to his JViJe, and the Truf-
tees were 'decreed to lurrendcr accordingly. 2 Vern. 498, 499. pi. 449.
Pafch. 1705. Burkit v. Burkit.
15. A Mortgage Surreuder was made to A. to fecurc 200 1. but was
not preiented at the next Court, and fo was void according to the Cu-
ftom of the Manor. Sume Years after the Mortgagor (the Mortgage
Money not being paid to A.) agrees to (ell to B. for 400 1. bat B. having
Notice of the (oriiter Surrender takes a Surrender in Cs. Name who had no
Notice and agrees to become the Purchafor, and pays the Conlideration
Moneys and upon a Bill for Relief by A, againlt B. and C. C. pleads
his being a Purchafor without Notice, the Prefentment of his Surrender
arid Admittance, and the Non-prefentment ot the Surrender to A. till
long after. Adjudged that this Notice was fufficientto atiecl C. and de-
creed C. CO pay A's. Money or furrender to him j and though C. did not
cMiiploy B. to purchafe lor him, or kiaew any thing of it till after B.
had agreed and taken the Surrender in B's. Name, yet he approving it
afterwards made B. his Agent ab Initio. Decreed at the Roils and af-
firmed by Lord Cowper. 2 Vern. 609. pi, 547. Pafch. 1708. Jennings
V. Moore, Blincorne & al'.
16. Chancery will not fupply the want of a Surreuder of a Copy-
hold for a Devtfee to dtfinhcnt an Heir at Law i per Tracy J. 3 Ch. K.
187. Trin. 7 Ann. Litton, alias, Strode v. Falkland.
17 It will help no further than a Son, a IVifc, ot a Creditor , per 5 Chati.
Trevor Ch.J. andLd. Chancellor. 3 Chan. Rep. 187, 188. (Trin. 7 Ann. J;? ^;^^;^
that fo it is of Charitable Ufes.
iS A on the Marriage ofB. his Son makes a Feoffment of certain 2 Vem.^;^.
Freehold Land^ h the Name of fnch and fiich Farms in Truft jvr B. tor [J^^^-;;^.^'
Lite, then to his intended Wife tor Life, then to his firlt Son &c. and ^^jj^,. ^^^y.
lor want ot fuch lifue, then in Tnijl jor the right Heirs of B. It hap- jj, thnno-
pened, that H Jcres, Part if one of thofe Farms, zv ere Copy held, and there x\x\r^^^^^
was a Covenant in the Deed, that A. /hould furrender thofe 8 Acres to the "^^^f^
Ufes as the Freehold Lands were therein limited. B's. W ife dies with- ^^.^^,1^ '^
out lfluc_, {o that Ti uil of the Fec-limple was in B. who morrga^es the ^^.i .f;;,^.^
F;ir:ui the Decree
56 Copyiiold.
Fanu of iL'hich the « yicrcs ivere Parcel by the Name of jiich a Farin^ with
the general VN'ords^ All and lingular tlie Lands and Tenemencs, Pared
thereol, or ufuaJly occupied therewith <!<cc. but does not mention the 8
Jicrcs oj Cu-pyhold by Name^ nor ts there any Covenant m the Mortgage Deed
tofiirrender them. B. dies, and his Heir conveys the Equity of Re-
demption CO the Mortgagee, and afterwards A. at the Rcquelt of the
Hcirol B. furrenders the 8 Acres Copyhold to J. S. to whom A. was
indebted by Judgment. Upon a Dilpute between the Mortgagee and
J. S. it was laid, per Cowper C. that the Copyhold Lands were never
by the AJortgage under any fpeci/ical Lien, and that the Mortgage re-
citing the Settlement in which the Copyhold Lands appear, and the
Mortgagee taking no Care to get a Conveyance ol them, nor fo much
as naming them, helhouJd hold, that if the Freehold Lands were iul-
iicient the Copyhold liiould not pals by the J3eed, though there was no
Creditor or Purchafor in the Cale^ and il' lb J. S hath both Law, and
the better EqiiHy on his Side ; And he rely'd upon that lublhmtial DiHe-
rence, where there is a [■pecifick Lien, and 'inhere not, which dillin-
guilhes this Cafe Irom chat of 'Cl/aplOr )i. HBljCClCr, where the Cop%hold
was Ipecifically bound by the Mortgage. Cr. Lqu. R, 13. IJiH. 7'Ann.
Oxwith V. Plummer.
19. Bill to have an Account of the real and perfonal Ellace of their
Father, and a Partition ol: his real Eitate.
I'he Cafe was, B. having leveral Freehold and Copyhold h2.Tids,devifes
all his Lands, Goods and Chattels to his three Sons, equally to be divided be-
tween them, and devifes over and above this 100 1. 10 his EldeJ}, provided
he gives a lawful, good, and general Releafe to his two younger Brothers,
and by his Codicil appoints, that if one of his younger Sons jLottld die or
marry in his Minority without Confent oj his Executors, then his Portion to
go the other younger Son.
2d Point, if the Copyhold Lands ihall pafsby hisDevifc without a Sur-
render to the Ufe ol his Will? Ld. C. was of Opinion, that the Copy-
hold Lands do not pafs by the Devife lor wantol a Surrender to the Ufe
ot the Will, though in the (ale of younger Children, becaufe there are
Freehold Lands to fatisjy the Words of the Utll. MS. Rep. Mich. 12 Ann.
Cane. Bullock v. Bullock.
20. Andrew Burton was feifed of Freehold, Leafehold, and Copy-
Defeftivc hold Land, and fo leifed made a Surrender of his Copyhold to the Ufe
Surrender of ^y f^^^ Jajl lYiH (\\t delivered the Surrender to his 'Tenant of the Copyhold
a Copy To_^ |-^,^^ ^y^j Qj^^ Qj the cttfioniery Tenants of the Manor'\to be prefented at the
ofahft "'"■>'*^ Court, but took it back jroni him, and both the faid Andrew and his
"Will fup- Tenant were at a Court held jhortly ajter, but did not prefent the Siirren-
plied, cfpe- ^^.^>^ whereby he devifed his Copyhold to Andrew his Eldefl Son, and
ktsfJ/ir ^^^^ ^"^'^ ^^^^ ^/^'-f I^ody, the Remainder to Cornelius' his 2.d Son,
Belepof who was by a zd Venter and the Heirs Mate of his Body, Remainder to
the Devifors Barton his ^d Son and the Heirs Male of his Body, Remainder to his
Children. Qijufi right Heirs. The Devifor died, leaving the Jaid 3 Sons and one
Fb 18 ' Daughter, who was by the Jirji Venter the eldeji Son entered M^ovwhQ
\'-\\. Lloyd Copyhold, and received the Rents and Profits of u during his Lite, but
V 'Burton, did not prefent the Surrender, and died without IJfue, whereupon his
S-C. Sijler oj the whole Blood, Wite to the Detendant Floid, claimed as Heir
\y ■' P P "^^ ^^"""^ ''' ^^^ Brother, whom fhe conceived to be feiled in Fee Ibr
2S,-. by the Want of a Surrender ; the Tenant attorned to the Deferldant in right
I.d. Chun- of his Wife, whereupon the Plaintill, 2d Wile of Andrew the Fa-
c:llor, Trill (-her^ brought her Bill as Guardian to her two Sons, Cornelias and
'';__-^'/y{^" Barton, to have the Copyhold according to the Will- the Counfei
Sirloh'n 1"^ the Defendant inlifted, that the want of a Surrender ought not
Tr.vor, at to be fupplicd in this Cafe, becaufe theyanger Sons have an ample Pro~
t'K- l^oll-S ill V!/ic<;i
Tr.m. 171 J,
Copyhold. 57
•ui/fon hy the JVill, heftdcs the intended Gipybold, and that the Court of antl affirmed
Kquicy lupplics the want of ii Surrender againll the Heir at Law only ^ ^^'^ ^'^■
where the intended Eltate is the fole Provilion made for thofe to whomi^'j^^j^^.'*'^
fuch Eitates are devifed ; they further injijhd, that tho' the Court 1713. and ia
will fupplv the want ot a Surrender tor the Benefit of younger Chil- a Note there
dren where there is a fufficienc Provifion for them belides, yet in this ^"i '^^ ^^j"
Cafe it ought nor, becaule the Atls of Andrew the Father, fabfeqiient ed'[A]'he
to his making the Surrender, amount to a Revocation of it, and m an ifeft cites the
his Dclign to be, that the Surrender Ihould not be prefenced, as his^ C. fi-om
taking It back from his Tenant to whom he had given u to prefent, and '^^ ^d^' ^
his neglecting to prefcnt it at Court at which he was prefent, and had IfJ^.^ clbgly
an Opportunity to do it, but Trevor, M after oi: the Rolls, decreed for
the Plantirt, and as to there being a luffiicent Provilion by the Will ior
younger Children belides the Copyhold, he faid that the Parent was
the only Judge of that, and as to thofe A£ls of the Teftator, which
it was laid amounted to a Revevocatun of the Surrender, he laid they
did not, and that if it had been the Teltator's Defign that the Copy-
hold Ihould not be furrendered to the Ule of his Will, he Ihould have
I evoked it, and oblerved that there zvas not fu much as Parol Evidence
of a Revcc^iiiori. This Cauie was reheard before Harcourt Lord Chan-
cellor, who affirmed the Mailer's. Decree, and that the Defendants
ihould join in a Surrender purfuant to the Will. MS. Rep. Mich. 12
Ann. Cane. Burton v. Floid and Ux'.
21. It was deny'd to be fupply'd in Cafe of a Wife to whom the Huf-
band devifed it by his Will, it being fuggelted, that ih.' was other wife
amply pro^jidedfor out of the -Teltatofs Freehold and perfonal E/late, but the
Heir at Law had no other Provijton but the Copyhold which was but 30 1.
per Annum, whereas the ProviJion for the Wife was according to her
Fortune, whicli was upwards of 3000 1. but the Court lent it to the
Mafter to inquire into the Facls and report it fpecially before they
could make any Decree in it. G. Equ. R. i2i. Mich, 2 Geo. i. in
Cane. Bifcoe v. Cartwright.
22. A. feifed of Copyhold Lands, and alfo of aconfiderable Eftate in
Fee, which he had fettled on a Papift, contrary to the Statute of \iS
12 W. 3. Cap. 4. to furrender the Copyholds, lor he had made a Letter
tj Attorney to W. R. to furrender them, and the Steward or T'enant rejufed
to accept the Surrender, tnftjiing that they ought to keep the Letter of Attor-
ticy, upon which they broke off, and no Surrender was made ; And
Cowper C thought this a lucky Accident in Favour of the Heir, which
Equity ought not to deprive him of any more than if the Copyholder
•jlv\Ax.\\q1^ox<\\iz<X difagreed about a Fine, which had prevented a Sur-
render, and that this being a voluntary Conveyance was not to be alfifted
in Equity, as a Conveyance to a Wije or a Child woaid be, but it did not
appear that A. had done all in his Power to make the Surrender, and there-
lore the Court declared that the Title to the Copyholds was in the Heir.
Wms's. Rep. 354, 355 Trin. 1717. Vane v. Fletcher.
Z3. But if the Heir had done any Thing to prevent the Acceptance of the
Surrender it had been material ; per Cowper C. Ibid. 355.
24. Sir Charles Rawley devifed Copyhold Lands to his Daughters,
without lurrendering them to the \Jk ot his laft Will and died ; Carew
Rawley his Son and Heir entered and mortgaged them for 400 1. the A^nrt-
gagee affigned his Mortgage to one of the Plaintiffs. The firll Quelaon
was, whether the Want ot a Surrender ihould be fupplied for the Bene-
fit of the Daughters, leeing they had a very large Provifion belides the
Copyhold Lands ? The fecond was, whether the Mortgage which was
taken and aliigned without Notice of Sir Charles's Devik, ihould be firlt
dilcharged^ (-owper Ld. Chancellor, as to the firft decreed that the
Want of a Surrender Ihould be fuppiied for the Benefit of the Daughter
Q^ not-
£;8 Copyhold.
notwithlhmding their other Provilion, becuule ihe F.uher was the beA
Judge what was a fufficieiu Provilijn lur chem. As to the iecond he
decreed, that the Mortgage being liad without Notice Ihould be tint
dilcharged, there having been Laches in the Daughters. MS. Rep.
Mich. 4 Geo in Cane. \V eeks v. Gore.
Ibid. 157. 15. A. had Ifiue two Sons B. and C. B. died, leaving H. aSon. A. be-
"^murfon '"S ieifed in Fee of Freehold and CopyholdLands,devis'd allhisMefuages
to. itovO, ^"d Lands, whether Freehold or Copyhold, /o H hisGrand[on andHcir at
in Ld. Har- Laiv^orLiJe^ Remainder to thejirji and other Sons of H. in ?(?/7,Remainder
couit'sT'ime, ;(, £)^^,^^/f;.^ 0/ H. in Tail ^ Remainder to C. m Fee. A. died withouc
15 ftid to be ^^2j^i,.,g any Surrender to the Ufe of his Will, but had made other Pro-
H—- \('mi\'^'''f!on jor C. FI. died without Iffue, but furrender'd the Copyhold to
Fep^iS;. the Ufe of his Will, and devis'd it to his Mother in Fee. It was de-
pl -I. S.C. t^reed at the Rolls, that this being no prefent Provilion intended for C.
Ainham ''' ^'^^ ^^^^^ °^ ^ Surrender fliould not be fupply'd ; But Ld. C. Talboc
Decreed' ac- revers'd the Decree, and orderM the Delecl to be fuppliedi and as to
cordiiigly. other Provilion being made for C. he laid, that it had been olten held
herej that the Father is the fole Judge uj the ^uanticm of the Proviftvn^
and as to this Remainder to C. not being to be intended as a prefent
Provilion, he held this to be a Provilion, though not fo good an one as
a prefent Provilion; That in this Cafe it could not be laid, that the
Heir was dilinherited, tor when this Remainder is to take Place, C.
then becomes Heir at Law himfelf by the Default of Ilfue of H. Nor
can it be faid that there is an Heir unprovided for j For though he is
made only Tenant for Life, yet there are Limitations to all his Ilfue,
who are to take before C. the Plaintiff. Cafes in Equ. in Ld. Talbot's
Time, 35. Trin. 8 Gto. Cook v. Arnham.
16. The Defefl: of Surrenders has been fupply'd even where the Copy-
hold intended topafs has made hut Part of the Provifion, and fo not liable
to the Objeftion of leaving the Child utterly unprovided for in Cafe the
Deledl was not fupply'd ; For the Court has never yet enter'd into the
Conlideration of the Quantum proper for each Child j Per Ld. C. Tal-
bot. Cafes in Equ. in Ld. Talbot's Time, 36. Trin. 1734. in Cafe of
Cook V. Arnham.
So in Cafe i,y_ j\_ feifcd of Freehold and Copyhold Lands, devifed all his Real
i/wufnot be '^"^ Perfonal Eftate for Payment of his Debts, but made no Surrender of
fupp\y'd° the Copyhold. The Perfonal Eltate and the Freehold were not fuffi-
Abr Equ. cient to pay the Debts. Ld. Cowper would not fupply the Defeii:, be-
Cafesii^. pi. caufe the Words did not exprefs the Copyhold, or ihew any Intention
16 ^Rafter ^° P^^^ '"^ ' ^"'- ^^ ^^^ ^^'^' ^^'^^ where there was no Freehold at all the - j
V. Stork^ ^"^ Mailer of the Rolls had fupplied the VjtkSi of a Surrender. Ch. Prec.'
407. pi. 275. Trin. 17 15. Challis v. Casborn.
It is the Cir- i S.Surrender is not to be fupplied where it will put the younger Chil-
umftances (jj-g^ in better Condition than the Elder. Mich. 1729. in Cafe ot Rofs v.
c
of the Cafe t> _ r.
that induce i^OlS.
the Court to \
do it, for they will not to do it in all Cafes. 2 Freem. Rep 115. pi. Ii3. agreed Hill. 1690.
Anon.
This the 19. One byf^'ill charges all his Wordly Eflate with his Debts, and dies
Reporter ad- y^^-y^^ 0/ Freehold and Copyhold EJiates, which he particularly difpofes of by
butobf^rU"'/'^^ W';// ; the Copyhold, though not furrendered to the Ufe of the Will,
if it were ' fhall yet be applied to the Payment of the Debts Pari paliu with the
but an Equi- Freehold ; and it had been fufficient if the Teftator had only faid, /
t.ibleChirge, ^^^j.^^ ,^y, Copyhold Land -with the Payment of my Debts ■■, in which Cale
Eibte^of^he El""-y ^^^^"-^ have fupplied the Want of a Surrender. 3 Wmi's. Rep.
Copyholder 96,97. Hill. 1730. Harris V. Ingledew.
hid defcend-
cd to the Heir, that would have mid; it nccsfury that the Heir fliou'd be a Pivry, becaufc othcr-
Copyhold. 59
wife the la<);.il Elt.itc ot the Copyliold couM r.ot be conveyed to a Purchifor ; but if it had appeared
(which lie thinks did not) tlut the Heir at Liw hjd, iiice the Teftator's Death, conveyed away all
the Copyhold Eltate, then indeed the Grantee of the Heir being capable of conveying to the Par-
chafor, It might not be neccllary to make the Heir a farty. 5 VVnib's Rep. 97.
20. Bill by the PJaiiitifls for an Injunflion againft the Defendant,
eldell Son of a Copyholder, to make good the Delect of a Surrender of
a Copyhold in Favour of a /I///, "d.'bci-d}' the Father gave this Copyhold,
and all other his Eft ate for the Alaintenance o[ the Plaintiffs^ his younger
Children^ till 21^ and then to be divided aviongji the Plaintiffs^ and the
Defendant to have a Share. Lord Chancellor faid the Rule is, when the
eldelt Son is totally diJinherited not to interpofe, and this is very near
to a total Diftnherifon^ the Eldelt not being to have any Thing till the
Youngell are of Age. Injuntlion deny'd. MS. Rep. Mich. Vac. 1733,
Hicken & al'. V. Hicken.
21. If a Man (/t'w/w all his Lands, Tenants, and Hereditaments in
Dale, in Trufi^ to pay his Debts and Legacies, and the deflator has fome
Freehold and fome Copyhold Lands, there, only the Freehold Lands ihall
pafs ; for his Will mull be intended of iuch Lands and Tenaments, as
are deviieable in their Nature J otherwile if the Teltator had furren-
dred his Copyhold Lands to the Ufe of his Will, becaufe this lliews he
did intend to devife his Copyhold ; but even in the firft Cafe, if the
Freehold were not fiifficient to pay his Debts, when the Teltator devifes ali
his Lands in Trult to pay his Debts, it feems rather than the Debts
ftouid go unpaid, that the Copyhold ihall in Equity pafs. 3 Wms's
Rep. 322, 323. pi. S3. Trin. 1734. Haflevvood v. Pope.
22. where a Man devifes his real FIJI ate to be fold to pay Debts and cer-
tain pecuniary Legacies, and fubjeff to his Debts and Legacies devifes his
PerfonalFJiate to his Sijler, this Court will not fupply the Deleft of a
Surrender of the Copyhold to the Ufe of the Will \ithe other EJiates
fufficeto pay the Debts. Cafes in Equ. in Ld. Talbot's Time. 78. Pafch.
1735. Mallabar v. JVIallabar.
(N. a) Operation and Effe£i: of a Surrender.
1. A Copyholder made a Leafe for Tears, with Licence ^c. rendering , l^ j_^_
XjL Rt^^ty and afterwards he furrendered the Reverfton, with /^£ pi. 247. Hill.
Eent, to Ufe of a Stranger who was admitted ; It was held by Rhodes 29 E^'^-
and Windhanijulliccs, that the Surrender and Admittance were in Na- ^.^ Anon,
ture of an Inrolment, and fo amount to an Attornment, or at leaft do ^' '^ y" ,.'^5*'
fupply the want of it. i Le. 297. pi. 408. Hill. 28 Eliz. C. B. Anon.
2. Tenant for Life, the Remainder in Fee of a Copyhold, he in the I-e- i'/4:,P^*
Remainder made a Leafe by Parol ; Tenant for Life, and he in ths Re~ ^'f?- ^' "
snainder, join in a Surrendtr to the Ufe <f him in the Remainder in Fee i
It was the Opinion ot the Jultices, that the Leafe was good againji hitn
in Remainder, and that by the Surrender of theTenant IbrLife to the Ufe
of him in the Remainder, his Eltate is drown'd in the Fee, and as it
were extinct, and cannot hinder the Leafe to have Operation. Cro.
E. i6o.pl. 49. Mich. 31 & 32 Eliz. B. R. Dove v. Wiliiot.
3. The Fee-Simple of a Copyhold fiirrendred to the Ufe of a Man's Will hniihiZ-it-^
remains in the Copyholder, and net in the Lord. 4. Rep. 23, 3 Palch lenderor
39 Eliz. B. R. Fitch v. Hockley. ihail have
■' the Profits,
Noy 152^
Hill. 5 Jac. C. B. Allen v, Nallx. Cro.E, 441, 442. pi. 4. S. C Gilb. Trear. of Ten
519, 52c. cites S. C«
4 Jf
6o Copyhold.
4. h a Copyholder furrenders his Land to the life of a Strati<rer iff
Coufideration that the fame Stranger pall Marry his Daughter before %ich a
Daj, if the Marriage fucceeds noc, the Stranger cakes nothing by
the Surrender ; But if the Surrender be /« Conjidemtivn^that the Stran-
ger Jh all pay fuch Sum of Money at fuch a D.iy, tho' the Money be noc
pa:sd, yet the Surrender ftands good. Calth. Reading. 36,37.
4. Rep. 25. S A Right or Coiiditicn cannot be given or determined by Surreii-
b. Kitev. der, but by Releale. Cro. J. 36. pi. 11. Trin. 2 Jac. B. R. Hall v.
(Tueinton. Sharbrook.
6. Copyholder made a Surrender ?o Z/?^ Ufe of his p:cofid Son for Life ^
after the Death of him and his Heirs ; adjudged no good Surrender*
lor tho' it be good in a Will, yet hnplication is mt good in a Surren-
der ; And in Copyhold Cafes a Surrender to. the Ufe &c. ts no Ufe but
an Explanation how the Land Ihall go. Bfownl. 127 Mill k \ac
Allen V. Nalh. • ^ J •
7. It there are fm [joint] Copyholders and one furrenders to the Ufe of
his mif and makes his W^ill &c. and dies, there Ihnll be no Survivor-
jhtp ; cited by Coke Ch. J. as adjudged. Noy. i^z. Hill. 5 Jac.
8. Surrender and Admittance in Court 'are pnblick Jifs, whereof
every Tenant may take Notice^ and if Copyholder tlirfender the Re-
verlion-of 2 Parts of his Copyhold in Leafe, the Surrenderee may a-
vow after Admittance without Attornment. Lev. 4.0 Trin i^'Car
2. B. R. Bluck V. Mole. ^ " ^
9. Surrenderee of Copyhold is within the Equity of 32 H. S. 3. to
bring De^r or Covenant againfl the Lelfee. i Sulk. 185. pi. 2 Mich
3 W. & M. B. R. Glover v. Cope. ^ F • ^^-^i^"-
10. Admittance relates to Surrender, and Surrenderee'.s 'title began
by the Surrender, i Salk. 185. pi. 3. Pafch, 5 & 6 V\^ & M. B^^.
Eenlbn v. Scott..
Supplement 1 1- Copyholder in fVf furrendered into the Hmds of the Lord /o //&e
to Co Conip. Ufe of hinifelf and the Heirs Male of his Body, but died without Jdmit-
S Pin'caf''^'^^"-"P°"'^'^^^""^"^^''" I"^ was unanimoufty refolved, that without
v/'here"the'^ Admitance on the Surrender he continues feifed in Fee as before; for the
Copyholder Lord could otherwife have no Remedy for his Fine «Scc. Holt's Rep.
docs 165. pi. 10. Trin. 5 Ann. Brown v. Dyer.
furrender
his Copyhold in the Court of the Manor to the V^e^ of the Lord himfelf (which he may do) there bv
luch a Surrender, the Lord is immediately vefted in the Lord w irhout anv other;ACt do.ne or required
bccaufe the Lord cannot take a Surrender to make thereof an Admittance to himfelf. *
(O. a) Operation and Effed of a Surrender. In what
Cafes it lliall be a Dilcoiitinuance.
I. A Dmltting the Copyhold Lands may be inraii'd, then a Sur-
l\ render thereof by the Tenant in Tail is a Diicontinuance to
put the Iffue to his Jffwn i for he muft take it fubje6f to all the Incon-
veniencies which an Ellate Tail at Common Law is fubje6t to. Cro E
717. pl.43. Mich. 41 and 42 Eliz. C. B. Enih v. Reeves.
2. If therehath beenaC«y?o/« in & Mmox that Plaints pould he profe-
ctited there in Nature of real Aci mis, \i a Recovery be had upon fuch
Plaints againfi Tenant in 'Tail, it is a Difcontinuance ; for Jince the
Cultom warrants the Recovery, it is an Incident to fuch a Recovery
by the Common Law, that it Ihould be a Diicontinuance, which it feems
is drawn Irom the Nature of the Thing; That a Judgment given in a
Court ot Judicature ought not to be avoided, but by Matter of as high
a Ka-
Copyhold. 6 1
a Nature, viz.. by a Recovery in a Court oC Judicature, and noc by the
Kntry ot the Party that hath Right. Gilb. Treat, of Ten. 176. 177.
3. There are Cafes that a Surrender is a Difcontinuance of an Eftate
Tail in Copyhold Lands, and my Ld. Coke fays, that a Surrender by
Ciifioni may bar an Ellate Tail ; But thefe opinions for difcontinuing by
Surrender do not feem to be grounded upon that Reafon Or Auchorityj
as the contrary Opinion is ; for there are more Caufes againft it than for
it. Gilb. Treat, of Ten. 178. 179.
(P. a) Surrender, Good in rerpe(3: of the Eftate
of the Surrenderor.
\ . A Woman Copyholder for Life took a Husband^ the Reverjion of the
J~\ faid Copyhold '-s}as granted to 3, viz. to A. B. and C. cum acc'i-
'derit pojl Mortem, Surfwin-Kedditionem, orForisfaff' for their Lives fuccef-
lively according to the Cultom ; the Husband furrcndred to the Ufe of
A. for Life^ to whom the Ld. granted it by Copy for the Life of A. and A.
and £. died. It feems to divers Juftices and Serjeants that C. fhall noc
be admitted ; thr ajter the Death oj' the Husband the Wife may enter, or
have her Plaint in Nature of aCui in Vita, but during the Life of her
Husband the Ld. may retain it in his own Hands in Nature of an
Occupant, after the Husband. But further the Husband and the Wife
•would have releas'd to C. arid the Ld. would not receive it, nor hold a
Court, but he was cnjoin'd in Chancery to hold Court, or to avoid
Pofieinon. Dyer 364. pi. 38. Trin. 9 Eliz. Rofwell's Cafe.
2. Surrender by the Heir before Admittance is good, but this Ihall not After the
prejudice the Lord of his Fine by the Cullom of the Manor due to him j^"^*^ °^
on Defcent. 4. Rep. 22. b. pi. i. Mich. 23 and 24 Eliz. C. B. Brown's LifT"^e,
KJi.iS. mainder-niait
L ' . J. . before Ad-
mittance may furrendeir the Land, for the firfl Admittance was fufficient. 4. Le. iii pi. 225. in the
Time of Queen Eli/-. Hegger v. Fclfton. -The Heir of a Copyholder before his Admittance hejd
by the Copy of his Anceftor, and fb he has Title, but a Surrenderee can have no Title before Ad-
mittance; Arg. Sty 146. Wich. 24 Car. B. K. in Cafe of Barker v. Denham.
jC
3. If a Adan feifed of a Copyhold in Right of his Wife furrenders it to Mo. 595. pi.
the Ufe of another in Fee, who is admitted accordingly, and the Baron Si 5. s. C.
dies, this is no Difcontinuance to the Wife or her Heirs, but that the ^f.^'^^^^'^ ^/
VVite may enter, and neither flie nor her Heir fliall be put to fue a Cui ^j^J^ becaufe
in Vita. 4 Rep. 23. pi. 4. Pafch. 35 Eliz,. B. R. Bullock v. Dibley. no Livery
was made of
fuch Eftate nor, can a Warranty be annexed to it for the Benefit whereof a Difcontinuance is ad-
mitted. AndcitesS.P. adjudg'd Mich. 52and 5; Eliz. C. B.Foxley v.Cofen. Supplement to Co.
Comp. Cop. 80. S. 15. cites S. C. — Gilb. Treat, of Ten. 177. cites S, C. accordingly ; for by the Sur-
render he gives up no more than he had, and therefore could not give away .his Wife's Right ; tho'
before Entry fhe cannot be faid to be Tenant, becaufe the Surrenderee is by the Lord's Admittance
made his Tenant, and this hjiot like * a FeoffmaH at Common Law, which being fo notorious a Way of
conveying Eftate.s, the Wife's Entry was t.iken away, the whole Eftate being palled away to the
Feoffee for the Benefit of Strangers, who could never have known whom to have brought their
Prxcipe againft, if the Eftate did not paf; by fo notorious a Conveyance ; and lif file ftill might havs
cntrcd they could never know whether fhe were a Trefpaffor, or in whom the Freehold was right-
fully vefted. But in Cafe of Coryhold Lands, as there is no fuch Inconveniency, fo the Nature of
the Convevance will not admit of fuch Expofition ; for a Surrender is but a giving or yielding up that
JEftate one hath from another; and it i.s in the Natyre of Things impofTible to furrender more than one
hath." Cites Cro. E. 717. [per Cur. Mich. 41 and 42. Eliz. in the Cafe of Eriftj v. Reeves.
Poph. 5S. 59, S C, adjudged accordingly.
R 4 Sur-
52 Copyhold.
For the Fee~~rs;;^er by Cdpyholder to the Ufe oFhimfelf for Life then ot his
fimpleottheg^^jfor Lile, then the Remainder to the Uje of his Idjl IPiIL _ His Son
Copyhold ,. ^^Q Copyholder mny ag^'ia funender the EJfate ill Fte it he will,
bdngUrnued Qi • f^^ ^^^^ Surrender ; Per Wahnfley and Anderfon J. fed
hiswm?" :SjoJnatar. Cro. E. 44- pL 4- Mich. 37 aud 38 Ei.z. C. B. Ficch v.
remiinedin J^Qclcley.
ilddSfand not in the Lord. 4 Rep* ^3- a- P'- «• S- C adjudged.
Mo. 41J5 pi. 5, 'Tenant for Life, Remainder in Fee; Tenant for Life was admitted ;
tJ58. Tiping The Remainder-man furrendered to J. S. in Fee, living the Tenanc
V. Burning. ^^^ j^ife, and held good, tho' not aaualiy admitted. Cro. E. 504. pi.
judg'd.be- 29. Mich. 38 and 39 Eliz. B. R. Gyppin, ais. Keppin v. Bunney.
Cafe^the Ld is nor toh.ive a new Fine on the Death of his Tenant for Life, but where the Lord is to
Iiave a Fine'there muft be a new Admittance. Goldsb. 95. pi. 9. Kipping's Cale S. C argued.—
Cro. T. -I. Auncclm V. Auncelm, for the Admittance of Tenant tor Lite was the Admittance ot
l,im' in Remainder, and both malies but one Ellate.
S.C. cited 6. A Copyholder in Fee 15 Feb. made a Leafe {or Tears hy Licence^
G lib. Treat. ^y^;c/j Leaje was to conmei/ce at Mich. follo-juing. The Leffee entered, and
of Ten. 249 ^,^"g polfefs'd before the May following, and afterwards, viz, 8 May, the
tha7it wia Copyholder fnrrendefd, the Reverfion to divers Ufes^. Refolved, that
bureifin, the Entry was a DifTeifin, and fo the Grant ot the Reverlion iioc
and foit good. Litt. Rep. 17, 18. Hill. 2 Car. C. B. Selby v. Berke.
iecmsthat °
the fiinxndcr was void,
So of aSur. 7- A Surrender by a Copyholder, who is oufted of the Pojeffion,
vender by dJing the OufteT palfes nothing; yet no Dilleilm could be becaule
Rav.^in- the Freehold was in the King, who cannot be difleifed, and it the
^-nnian for ymrenderor enters afterwards, his Eitate is regained. Clayt. i. Aug. 7.
hfouEf Nelfon V. Rennington.
forK'^'forbv his Entry he is a Diffeifor, and has no cuftomary Eftate in him whereof to rnake a
tor i^ite , '°'"y""^ ' „ r. Car 2 C B Bird v Kir C— Cart ;27. S. C. but no Judgment
^TTnfpo'nt ' I-T nant by Cop?- £ Polfeffion be diffeifed the Ke.lrfl alfo is lur.Jo a %„.l,
iT^ic^ Si^iTdells^r gooTz'Jo. 1 54. Parch. 33 Car. z. B. R. in Cafe ot Put v. Moor.
Cart. .53. 8. In Ejeaments the Leflbr of the Plaintiffclaimed under a Surrender
Bird V. made by \V. Kirby, who had an EJiate m Land ajter tbe Death of hts
Kirby.S.C. j.'^^;^;,/ but entered during his Lite, and thereby became a Dtlfeijor^
and this Eftate being now turned into a Right, he made a Surrender to
the Lelfor of the Plaintiti; which being found by ipecial Verdift ; it was
- adiudged the Surrender was void ; 'twas pretended at the Trial, thac
the Father, who was Tenant for Life, had fuifered a Common Reco-
very in the Lord's Court, and fo his Eitate was forteited, for which
the Son may enter, and then his Surrender is good ; But per Cur.
without a particular Cuftom for that Purpofe the luftering a Recovery
is no Forfeiture; but if 'twas, then the Ld. is to enter and none elle
can, and fo Judgment was given for the Detendant. 2. Mod. 32. Palch.
22 Car. 2. C. B. Kren v. Kirby. tt u j' a.
Q A Copyhold is granted in Reverfton after 2 Lives, Habend polt
Mortem, furfum-redditionem &c. of the Tenants tor Life; The J-^^-
ants for Life fell their Eftate to A. ^ud fnrretider to the Ld. to the end that
he may admit A. the Vendee; the Copyholder in Reverfion enters and
brinAan FMiment, and recovers at Law ; A. brings his Bill, and has
Reliet becaufe the Surrender being only to admit A. the Furchalor,
it was'againft Confcience that the Reverlioner Ihould enter. 2. Freem.
Rep. 118. pi. 134 Mich. 1 69 1. Anon.
Copyhold. 63
(Q^ a) Surrender. Good in lefyed: of the Manner of
the Surrender.
I.TF the Ld. makes a Leafe for Life to the Copyholder by Parol, this ds- Gilb. Treat.
j^ terniincs the Copyhold, ij Ltiery he made, iut other-wife if it ts lyoiTtn. 28 j.
Deed only ; per Hyde and Jones. But by Jones, if it be a Leafe iorf^^lf-^-
Life, the Copyhold is gone without Livery upon it; Quod non fuit LiVery be
negacum. Lat, 213. Mich. 3 Car. Anon. not made
only an
Eftate at Will pafles, and an Eftate at Will cannot merge an Eftate at Will
2. Co'venant to make a Surrender of Copyhold Lands to A. and his Contra in
iJeirs is not perjormed by a Surrender into the Hands of 2 Tenants, but it the Cafe of
mult be an efteftual Surrender, and 'tis not fbtiJl 'tis prefented in Court. ®^^"P ^r
Sty. 256. Pafch. i6ji. Shann v. Shann. and Ibid. 280. Trin. 16.^7. c^a bu^t'"
B. R. Shan v. Bilby. upon Error
in B. R.
TwilHen J. held it no Performance ; but Keeling Cli. J. lield that it was, but Judgment was affirm-
ed on another Point. Lev. 295. Trin. 22. Car. 2. ■ i Mod 62. Turner v. Beany, S. C. and Judg-
ment affirm 'd Nifi &c. — Ibid, cites Hill. 21 Car. Treburn v. Purchas adjudged, that where the A-
greement was for a Surrender generally fuch a particular Surrender is naught.
3. Special Verdi£t found that Surrender was made by A. totheUfeof
B. and his Heirs, to the Ufe oj fuch Per [on as A. fhotdd name by his lafi
JF/7/, this by Twifden is ill, in that no Ufe can beo« a Ufe, altho' ic
being not executed by Statute ; but the Verdift finding further, that H.
nominated by the lajl Wilt of A. had furrendred tmto B. the Court conceiv'd
no Doubt in the Cafe. Judgment for the plaintiff Nili. Keb. 627. pi.
107. Mich. 15 Car. 2. B. R.. Leaper v. Booth.
4. Cultom, that where an Eftate is granted by Copy for 3 Lives to Where It is
A. B. and C. that xhtfirfl Life named may bar the Remdinders, this muft ""'^^ 5^^
be by a Surrender according to the Cuftom ; for z Surrender by Implication j-^if ^ fmaif
(as A's. joining in a Fine with the Lord to the Ule of M. and N.) is not Matter
a Surrender fufficient to bar the Remainders of B. and C. Adjudged in would do it,
C. B. and affirmed in B. R. 2 Show. 130. pi. 109. Mich. 32 Car. 2. B. R. Y i"' ^«
T (T- I /i_ J r y •> the Intercfts
Zmzan v. Talmalh. of B, ^^d C.
concerned.
Ibid. 151 S. C. Raym 402. S. C. adjudged and affirm'd in Error. Jo. 142. S. C. adjudg'd
and Judgment affirmed. Poll. 561. to 572. S. C. argued by Pollexfen againftthe Judgment in
C. B. but that Judgment was affirm'd.
(R. a) Surrender. Good. In reipe£l: of the Limita-*
tion, And where it is in Futuro. And to Perfbns
uncertain.
1. A Surrender of a Copyhold in Fee?;;^' he for looo Tears, and it is
./j^ very good if the Lord -laill admit, but if he refufes there is no
Remedy but in Equity, and Equity will not compel the Lord to admit
on fuch an unreafonable Surrender, for the Executors fhould pay no
Fine for Admittance. Cumb, 445, Trin. 9 W. 3. B. R. Anon.
2, A
64-
.opy
hold.
a
Ciu. E 29. 2. A Copyholder in PofielTion furrendered the Reverlion ot his Copy-
pi i.S. C. Y]o\k Poji Mortem [nam to an Uf'e &c. It was adjudged, that nothing
".''''"¥'*c Diilled thereby. 4 Le. 8. pi. 36. Trin. 29 Eliz. Clamp v. Clamp.
vo'ia*-''For when one is Teifed in Fee he cminot by any Matter in Rift Rive away the Inheritance af-
ter hh Death, and fo leave a particular Ellate itl liimfelf, but peradventure it may be done by Mat-
ter of Record.
4 Le. 8. 3. Replevin i 7. S. and M. his Wife Copyholders in Fee of a Houfe,
pl. 36. S.C.j^nfi'ja Acres of the Nature of Borough Englilh ; J. S. died. M.furvi-
■~T h ^' -yer^, fl«^ takes Husband J. C. and by bim hath l[Jue the Plaintiff and
Coke Ch Defendant. J. C. and M. his Wife farrendrcd the Land by name of the
l.°Roll ' Re'vo'Jion after the Death of J. C. and M. his Wife., to the Vfe of the Platn-
Fep. 158. tiff and his Heirs. M. died, and afterwards J . C. died. The Deten-
-54- — -■ "d^nt, the younger Son, enters as Heir by theCuitonii It was the Opi-
fe?eundem nion of the Court the Surrender was not good by the Husband and Wile,
a Bulft. ' by the Name of a Reverfion after the Death ot x\i. and J. C. lor that J.
a/j. • c. had nothing in the Land, and it is abfurd that J. C. by a: meet Grant
,vC. cited (ij'ouid have an Eft-ice for Life who had nothing before, and Judgment
Saund^j^i. ^^^ ^.^_^^ ^^^^ ^j^g Defendant. Cro. £. 29. pl. i. Trin. 26 Eliz,. ii. K.
.s fi cited Clampe v. Clampe.
A\i,' Show.
X^arl, Cafes 205.
Supplement 4. J. a Copyholder fiirrendred to J. S. (or Life., and afterwards to the
TO Co Comp.,./,^; Heirs of A. and then he made another Surrender of his Reverlion
Cop. 67. ^ ty the Ufe of W. R. in Fee, and died ; J. S. and the right Heir d A.
I. cites^S. C.^^^^^^^ ^^_^ Coke a Co unfel argued, that by thefirll Surrendernothing
i^l-^ll..— remain'd in him, but the Fee was referved to his right Heirs, and if he
oilb Treat, h^d not made the fecoud Surrender of the Reverlion, his right Heir
ofTcTi 256 ^;^.pyi(^ have been in by Purchafe, and not by Defcent, and the Common
b"rtMl«s a Difference is^ where it is made wthe Ufe of the Surrenderor himfelf for
QuJl'e.^" Z/'f, and ajtervjards to another in Tail., Remainder to the right Hetrs of
J he Surrenderor for Lije &c. For in the firjl Cafe his right Heir pall be m
by Defcent.^ and in the Other by Purchafe, 1 Le. loi. Pafch. 30 Eliz.
B. R. in Cafe of Allen v. Palmer.
r E -S5 5- Copyholder for Years or Life furrendred to the Ufe of A. and his
s c. but' no Heirs &c. adjudged the Surrender good, and the Uk void. Mo. 352.
judgment, pl. ^-j^. Hill. 36 Eliz,. Portman v. Willis.
— Gouldsb.
iiy. pl- 2.3- S' ^- '°^'^ ^-^^ ^°^^ not appear
S. C. cited 6. A. furrendered to the Ufe of B. iti Fee in Condition to pay 100 1. to
Gilb. Treat, j ^_ ^^^ q^ Pailare, then to the Ufe of W. R. in Fee ; whether this be
***^7f " h^*^ g°°^' ^'^^"S ^ Fee upon Fee ; The Court fpake not much to it, but re-
fc"ems7that commended the finding it fpecially, ytt Beaumond J. conceived it
for the Rea-to be good enough, for it lliall be as an Ufe limited on a Feoffment,
Ions there ^^^ tliefe Ufes Ihall arife out of the firft Surrender. Cro. £. 361.pl,
before given ^^^ . ^c 37 Eliz. C. B. Paulter V. Cornhill.
it cannot be ■^^' ^ ^ '
compar'd to r tl-j ^
the Cafe of a Feoffment to Ufes. See Ibid. 245, 246.
7. Wlfnrrender to the Ufe of him that pall le Heir to J. S. or to the Ufe
ofJ.S's.next Child yOr to the Ufe of J. S's.neat hife, though at the Time
of the Surrender J. S. had no Child or Wile, yet afterwards he has a
Child, or takes a Wife, his Heir, his CiiiJd, or his Wiie may come
into the Court, and compel the Lord to admit according to ^he Surren-
der. Co. Comp. Cop. 50. S. 3;.
8. So
Copyhold. ^c;
5
8. So it I lurrender to the Life oj htm that pall come next in to Pauls af-
ter fuch an Hour; whole Fortune foever it is to come firlt, the Lord mull
admit him, and I fhail never avoid it. Co. Comp. Cop. 50. S. 3J'.
9. The lame Law is, if I lurrender to the Ufe of him that J. S. fhall
nominate^ or that I m)fclf §jaU fwminate to the Lord at the next Meeti»g%
Co. Comp. Cop. 50. S. 35.
10. Eitates of Copyholders fhall hs direSied according to the Rules of
the Common Law^ and therefore a Surrender made to take Effeft after the
Death of Surrenderor is not good, as a Freehold cannot begin in Futuro
or at a Day to come. Supplement to Co. Comp. Cop. 69. S. 3.
1 1. If a Copyholder //i';Tf;/^«f-j 2 Acres of Land into the Lord's Hands^
the one to the Ufe of J. S. and the other to the Ufe of J. N. and does not name
in certainty ivho fhall have the one Acre^ and who Ihall have the other, the
Limitation of this \Ji'Q is void lor this Uncertainty. Calth. Read-
ing, 3I'
12. Surrender by A. to have after his Death in the Ufe of his Child ' Ro^' ^^P-
then inVentre fa tnere^ and if theChild die before his full Age of zi Tears or '°9' ]}%
Marriage, then I fiirrender the faid Lands to the Ufe of t,/y Coufm J. S.\^ the
his Heirs and Afftgns, this Surrender to J. S. is merely void, ibr he can- Court in-
not make fuch a conditional Surrender to operate in Futuro, and fo the clined that
Intant being born, and dying afterwards, the Defendant claiming firom 'J^^u*'!!
the Heir at Common Law to the Intant hath good Title, Cro. J. 376. been to the
pi. 2. Mich. 13 Jac. B. R. Simpfom v. Southern. Ufe of his
Will, and
by the Will the above Eftates had been limited, they fhould be good A. was jacens in Extre-
mis, and lurrendered. Godb. 2154. pi. 364.. Simpion's Cafe, S. C refolved. And that it cannot
be good, becaufe it was to commence upon a Covdition precedent, which was never perform'd ; And
therefore the Surrender into the Hands of the Lord was void ; For the Lord takes only as an Inftru~
ment to convey the Lands to another. 2 Bulft. 272. &c. S. C adjudged. — S. C, cited Mar. 178. pi.
25<J. Supplement to Co. Comp. Cop. 67. S. i. cites S. C. Supplement to Co. Comp. Cop. 81. S.
15. cites S. C. and that the Surrender into the Hands of the Lord is void^ becaufe he takes it only
as an Inftrument to convey it over.— Gilb Treat, of Ten. 244, 245. cites S, C. and fays it
feems not grounded upon (b f;ooJ Reafon as the Refolution is in Cro. 9. For Surrenders are not to
be conftru'd fo favourable as Wills, (tho' Coke fays they fhould be taken according to the Intent
of the Surrenderor) neither is there the fame Reafon ; for a Man may as well order a Surrender in
his Lite-time, according to the Rules of Law, as he may any Deed to pafs away a Freehold Eftate,
fo that the Intention of the Party hath not lo rtrong an Operation in a Surrender as in a Will, and
therefore that Reafon will not fupport a Fee upon a Fee in that Cafe, as it doth in a Will. — « —
Gilb. Treat, of Ten. 247. fays, that Coke in his Copyholder fays, that a Man may furrender Co-
pyholds immediately to the Ufe of an Intant in Ventre fa mere, for that -a. Surrender is a 'fhing oie-
cutory, and nothing vejfs before Admittance , and therefore if there be a Perfon to take at the 'Time of the
Admittance it is fuficient, which feems to be reaibnable, and to carry no Inconveniency with it ;
for it is not like a Grant at Common Law ; for there if there be no body to take, the Grant is void,
becaufe the Eftate mu(t be fbmewhere, and the Grant puts it out of the Grantor ; but in Cafe of a
Surrender there is no Inconveniency at all, for the Surrenderee hath nothing till Admittmce, but
the Eflate is in the Surrenderor. Hnt then it feems, that if the Surrenderee be not in EiTe before
the Admittance that the Surrender will be void, for it feems to be implied by Lord Coke ; for he
fays, that if at the Time of the Admittance the Grantee be in Rerum Natura, that will ferve, which
implies, that the Admittance is to be made after the ufual Manner, not that the Admittance time fimll
be put off till there he fuch a Perfon, for then it would have been to no Purpofe to have faid, that if
there be fuch a Perfon to take at the Time of the Admittance &c. for there is no Queftion but
that it V ill ferve, if the Admittance muft be ftavcd oft till there be fuch a Perfon, and no Queftion
but the Grantee will be in Rerum Natura, if the Admittance be to be put oft, and fo he need not
have made a Queftion, If he be. Sec. and if he never come in Effe, then the Admittance-time wiii
be eternally put oft, the old Surrender ftandgood, and no body be able to difpofe of the Copy-
hold Eftate. Tho* at the Time of the Surrender the Grantee is not in Eile, or not capable of a
Surrender, yet if he be in Elle, and capable at the Time of the Admittance, that is fuiScient. Co.
Comp. Cop. 50. S. 55.
13. If I furrender to the Ufe of B. after my Deceafe it is not good ; Per Noy 1 52.
Warburton and Daniel. Brownl. 41. Trin. 6. lac. in Cafe of Dunnal ^''i 5 -JfC'
^ ., ^ •' C. a. Allen
V- ^lies. v._Nafti,that
'tis good,
tho* one cannot preferve the fame Eftate to himfclf ; for the Eflate is in the Lord, and the Surrenderor
Jlj.tit fake the Profits during his Life, and after the Lord muff admit B. according to the Directions
cf the Surrender. ■ — -Brownl. 117. S. C. adjudged that (.to the V\'t of the 2d Sou Life) after
5 -the
66 Copyhold
• Ik Dead, ot the Tenant and his Hcii'S is rtot good in a Surrender ; For tho it be good in a VS il) yet
1 Mpliwrion in a Surrender .s not good, and in Copyhold Cafes a Surrender to the U(e &c. is no Ufc,
but an Explanation how the Lind fliall go Clayt. pi. ^6 An^. .6;; before Damport Ch. B.
HolfwortlA Cafe ir was held, that fuch Surrender was good by reajor. of the UJ!om ot the Mapor>
(which was W'akefteld) but that olherwife it Is by the Commw Lau;
Ibid, cites it 14, A Surrender cahnot be made to commence at d Day to come, anf
awdjudg'd j^Q^^; than a Livery ; fefoived. Godb. 265. pi 364. Mich. 13 Jac.
^' ^''i'; B. R. in Simpfon'sCafe.
Clark'i Cafe.
S P Por ^S- If li Copyholder in Fee doth furrender his Copyhold Lands into
where theLi- the Landsot'che Lord, tothe Ufe of hmfelj a?idbis Hars ; refolved, that
mitationof in that Cafe, becaufe the Limitation of the Ufe to him who had it be-
the Ufe is fore was void, the Surrender thereof to the Lord himielf was aifo void,
render is^"""" Supplement to Co. Comp. Cop. 67. S. i. cues HiJl. 17 Jac. B. R. Bam-
void Godb. bridge v. W^hitton.
165. pi ;64
Mich. 13. Jac. B. R. in Simpfon's Cafe.
Cro.C. 7,66. 16. A. furrenders to the Ufe of B. and C. his Sons, and the longeA
pi. 4^S.C Liver of them, and for Default of Ilfue of the Body of B. then tothe
favs" was at youngell Son of M. his Sifter, and fays, this furrender' d not to take Efe^
7ut^Mrtci\-^ till after my Death, thefe VN^ords are void, and contrary to the ?re-
der was mifles ; agreed per tot. Cur. Jo. 342. pi. i. Trin. 10 Car. B. R. Seagood
good, and y HonC.
being repugnant to the Premiffes Jliall be rejefted as idle and void, and fliall not deftfoy the PremiC
fgs,_^ S. C cited Arg' j. Mod. 267.^ Gilb. Treat, of Ten. 244. cites S. C. and fays that this Sur-
render was held to be void to M's. youngeft Son, becaufe the Contingency did not happen in the
Life of the Surrenderor, and a Man cannot furrender to take Etfed after his Death ; but fays, it
W3S not refolv'd abfolutely that a Fee cannot be limited on a Fee.
Saund. 149. 17. A Copyholder in Remainder after an EJiate for Ufe in B. furrender' d
S. C. it was fg ^ hy ijfg (y^ho was Copyholder for Life before) the Remainder to
argued, that ^ ^'^^^ j^^jj ^^^ ^^ ^jj ^j^^ Juftices, praeter Twifden. Sid. 360. pi.
Eftate limit- 3. Pafch. 2oCar. 2. B. R. Wade v. Bache.
void, yet the Limitation to J. S. was good, and adjudg'd that the Efiate of f- S. was gocd byvjay
ofprefent EJlate, but not by way of Remainder. 2 Keb. 341. pi. 12. S.^C. adjudgU Glib;
Treat, of Ten. 249. cites S. C.
If a Copy- 18. Copyholder furrenders to the Lord, to the Intent that the Lord
^^'^^J'^^f^''' fiall adtmt A. whom he intended to marry, after Marriage ; until Marriage
the Ufe of ° ^0 ^^"^ Ufe of himfelfand his Heirs, and after Marriage to the Ufe of hnn-
j.S. .indhis f elf and A. in Tail; Per tot. Cur. it is good enough to limit a Remainder
Heirs until upon a contingent Fee in Copyholds, as in Cafe of Mortgages ot Copy-
h= ^^'' holds, a Surrender in Fucuro is good, for the Freehold remains in the
TndaW the Lord. Freem. Rep. 267, 268, pi. 293. Hill. 1679. C. B. Bendy v,
faid Marri- Delamore.
age then to
the Ufe of them two in Tail fpeclal, if after they do marry, then is the Sunen 'er to th:m' in
Tail, and till then to him in Fee. Calth. Reading. 31, ■^^■
19. K Copyholder in Remainder farrendred his Remainder to the Ufe of
the 'tenant for Life, and after his Death to the Ufe of himfelf and his Wfe
&c. and though the Limitation for the Life ot the Tenant tbr Life was
void, and fo by Conlequence by the Common Law the Remainder would
have been void aifo, yet it was held, that in Cafe of Copyhold itfhould
be taken as a mediate Settlement upon the Husband and Wife after the Death
of the Copyholder for Life. Lord Raym. Rep. 626. per Turcon J. Hill.
12VV. 3. cites Cro. J. 434. 2 Roll Abr. 67. Brookes v. Brooke.s, and aifo
I Saund. ijT.Wade v. Bache,
(S.
a;
Copyhold. 67
[S. a.] What palles by the Wotds of a Surrender.
J. •^Opyholder furrendred to the life of B. for Mofiies paiti, hut limited
\^ no FJlate, and there was a Cujiojn^ that the Party to whom the
Surrender -juas made pouhi have a Fee, and adjudg'd a good Cullom. Arg.
Roll Rep. 48. cites 6 Eliz;. Thettenwell v. Bunney.
2. R. B. furrenders to the Ufeof Margaret and Robert without limiting S C, cited
cf any FJ^ate; Here they have but an Eftate for Lives, for thefe Eltates 4 Rep^ ^^■
ftall be direSed according to the Rules of Law, unlcfs there be a fpecial -frin Vs'^-
Cuflom within the Manor, as thofe Words, Sibi et fuisy 01 Stbi et Ajjig- lii. as lately
vatis &c. may by Cnjioiii create an EJiate of Inheritance. 4 Rep. 29. a. adjudged ac-
pl. 18. Mich. 27 & 23 Eliz. Bunting v. Lepingwell. !!l^A?well
Eftates as Defcents of Copyholds to be guided according to the Rules of Common Lawi as a neccf-
fary Confequence upon the Cuftomary filiates ; To that if a Surrender be made to the Ufe of one, he has
tvat an Eftate for Life u-nlels rhere be a Cuftom to the contrary, for by Cuftom a Uie limited to otit
& Jnignatis fuis is good to pafsa Fee ; A furrender to one & tribut /Iffignatis fiiii, adjudged but an
Eftate for Lite, but in fome Cafes Eftatcs in Copyhold Lands are not guided according to the
Rules of C-aninon Law. Gtlb. Treat, of Teti. 14^) Hj- "tes 4 Rep. 29. b. Bunting v. Lep-
ingwelL
3. A Copyholder furrendered to the Ufe ef a Stranger for ever j it was
made a Quaere, if an Admittance by the Lord of the Surrenderee be good
in Fee to him and his Heirs, it being by a bare Surrender only, but in
Cafe of a Devile by fuch Words it had been good. Godb.137.pl. 162.
29 Eliz. B. R. Allen v. Patlhall.
4. If a Copyholder furrenders to the Ufe of his right Heirs, the E^ateGWh Tx■ea^
will remain in the Lord till the Surrenderor dies, for then, and notbefore,*''^"^?- *5^»
the right Heir will be known ; Per Coke a Counfel. Arg. i. Le. 101.5 Qand
pl, 13,3. Pafch. 30 Eliz. B. R. Allen v. Palmer. S. P. by
Coke, but fays Q«*re of this.
5. A. a Copyholder in F'ce furrendered to'the UJi of his laji J^'ill,'^^-^14?^'
and devifed to B. his Wife lor Life, Remainder to C. his Son in ^ail,^^^^^^^^^
Remainder to D. his Son in I'ail. B. and C. are admitted. B. dies, j^^iy^. .'
C. dies without Iffue. D. is admitted, and C. furrenders to the Supplement
Vk of E. the Defendant, and dies without Iflue; Per Cur. the to Co^Comp;
Heir may enter before Admittance, for Wray faid, when the Sur- °l^^^l ^ q
render is to the Ufeof his laftWiJl, this at firlt is the whole Fee, "'
but when he devifed the Land for Life, or in Tail, and does not 7ned-
iile with the Reverfton, by this the Reverlion never palled out ot him to
the Lord, but delcends to his Heir, and helhall have it without any Ad-
mittance. Cro. E.148. pi. i7.Mich. 31 & 32 Eliz. B.R. Bullen v, Grant.
6. An uncertain Surrender of what Eftate is to pafs, may by Cuftom be G'lb. Treat,-
afcertained by the Lord, and he may grant to the Cefty que Ufe in Fee. ^hes Cro' e'
Cro. E. 392.' pi IS- Pafch. 37 Eliz. C. B. Brown v. Folter. ^^^ S. C,
for the
Lord is Chancellof in bis own Court, and Yo not utircafonable for cl-.e Lord to deterraine what
fliall pals.
A. furrendred to the Ufe of B. but did not fay what F fiats he fLould Cro. E. J9Z.
;, but there was a Cufioin that in fuch Cafe the Lord upon fuch Sur- ^jjd^accovd-
7-
have, ^ _ _^^^^ ^^^^^
render might admit him tn Fee, and adjudg'd a good Cuftom. Arg. Roll jngry^per'
Rep. 48. pi. 17. cites 37 & 38 Eliz. Brown v. Fofter. tot. Cur. atid
the Intereft
cf the Land being betwixt the Lord and the Copyholder, it is net unrcafotiablc that upon fuch an
Unceriainty the Lord may alceitain it. Supplement to Co Cofrp. Cop. 8j. & jy. ^iCites S C- and
jakej
f ■ I II ■ iriiii ■■inw ai— III — ri —
($8 Copyhold.
takes Notice that it was objected that the Cuftom was unrfa'onahle, becaufe it was to charge the
Land with a greater Elhte than the Copyholder gave ; to which it was anfwer'd, that the Cullom
■uras good, beraufe the Lord is Chancellor in his own Court, and mi^ht difpole thereof, when (he Te-
nant leaves it uncertain j But Lord Coke fays Qu^re, to; the Cale was tiot relolv'd.
8. A Copyholder furrender'd to fach Ufes as the Lord fljoti Id appoint ;
the Lord limits the Ufe to J. S. for Life. Refolv'd that the Fee pall re~
fait tothe prft Copyholder^ and that he by hisWill may difpofe ot it. Lite.
Rep. 26. Arg. cites Pafch. 35 EJiz. C. B. V\^ rot's Caie.
S. P. cited as p. A Surrender to A. ^ tribtis Affignatis fuis gives nothing in In-.
adjudg d, tereft, or otherwife by Courfe of Law betore Admittance, and by the
only an Ef- Death of A. the Copyhold is deterviittd. Yelv. 16. Mich. 44 & 45 £liz.
tate far Life. B, R, in a Nota at the End of the Cafe of Arnold v. George.
Gilb.Tteaf
of Ten. 243. Co. Comp. Cop. 59. S. 49. S. P.
4 Rep. 29. 10. If the Limitation of the Ufe le ^^eneral^ then the Cefty que Ufe
a b. pi. 18. ja]^gg but an Eftate for Lite, and theretore Littleton e.xpreHes upon the
& zSEhz. L)eclaration ot the Ufe the Limitation of Ellate^ viz. in Fee-limple, Fee-
the 2d Re- tail &c. Co. Litt. 56. b.
folution in
Cafe of Bunting v. Lepingwell, unlefs there be a particular CuRom to the contrary within the Manor,
As thofe Words Sike & fuis, or ftbi ftp" JJj'ignatts &c. may by Cuftom make an Effate of Inheritance : and
it was obfcrved, that Eftates in thofe Cales limited upon Surrenders are always annex'd to the tltates
of him to whom the Surrender is made, and that the Surrender to the Lord is always general with-
out limiting any Eftate. Gilb. Treat of Ten. 206 cites S. C. and S. P. for a Surrender of the
Eftate gives up all the Copyholder hath to the Lord. Put the Cafe then, that the Surrender was
made to Lord for Life, to the XJfz of another for Life, what Eftate would the Lord then have ?
vhat could he make over ? or Qu^re, v/hether the words (for Life) would be of any Significancy
tho' he that is admitted be in by the Surrenderor. Yet may a Man Surrender to the l^fe of his
Wife, for fhe takes the Eftate from the Lord, aS an Inftrument to convey the Eftate to her and
fo it comes not within the Reafbn of other Cafes, that they being but one Perlbn cannot contraft •
for he gives the Eftate to the Lord, and he admits the Feme to it.
11. The Lord cannot grant a larger EJiate than is expreffedin the Limi-
tation of the Ufe ; As it two Jointenats be in Fee, and one out of Court ^ ac-
cording to the Cullom, furrenders his Part to the Ufe uf his lafi Will, and
dcvifes his Part to a Stranger in Fee^ and dies ; at the next Court the
Surrender is prefented j by the Surrender and Prelentment the Join-
ture was fevered, and the Devifee ought to be admitted to a Moiety, tor
now by Relation the State of the Land was bound by the Surrender. Co.
Litt. 59. b.
12. l{ I furrender a. Copyhold to a Adan and his Heirs, and he reciting
this EJiate, re-furrenders tn the fame Manner to jne that I furrendered to him,
not making any Mention of my Heir i yet this Recital feems fufficienc
to pafs a good Fee-limple. Co. Comp. Cop. 58. S. 49.
13. It I ftirrender to you as large an EJiate as J. S. has in his Manor
of D. and he has a Fee-Jhnple in his Manor, it is tome what probable that
an Eftate in Fee-limple thould pafs, by realbn of his Relation, without
the Words Heirs. Co. Comp. Cop. 5S. S. 49.
If H Copy- 14- It a Copyhold be furrendered to a Mjn y femini fuo H^reditabiH
hold be de Corpore, or to a Man & H^ercdibas ex ipjo Procreatis, or to a Man /«
granted to a Frank-marriage with his Wife, in theie Grants an Eftate Tail pailes in
ht"f/e^rs''' ^^^ ^^^^ without the Word Heirs, in the fecond without the W ord Bo-
M>les, or dy, in the third without either. Co. Comp. Cop. 59. S. 49.
Ueirs-Fe-
rt.ttes ; if to a Man & -^anguini fuo Hareditabili ; U to a Dean and Chapter, or to a Maytr or Commo.
turltv, •without iirij exfrefs Eftate, or without a Limitation ot fome inferior Eltatc, in all thcfe Grants
a pe'rfeft Eftate 111 Fee pafles. Co. Comp. Cop. 58. S. 49.
Gilb. Treat. 15. A. feifed in Fee furrendered to the Uie of hi.s lift Will, and hy
of Ten. ^/j ifiii devifed to his Wife his Copvbuld Lands, and ifj^e hattno IlJ'ue
25S. cues ' * J ■> -", '
S. C. that
Copyhold. 69
that t\\sx\ Jhe pali chufc tiao Attornks^ and they to make a Sale of my Lands
to her bejl Ad-vantage &c. She had Elbte for Liie, and not having any
IlFue, has not any Intereft todifpofe, but has Authority by his Will to
nominate two to fell, and they may make Sale, and the Vendee Ihall
be in by the firll Will, and there needs not any new Sunender. Cro. J.
J99. pi. 30. Mich. 5 fac. B. R. Beal. v. Shepherd.
16. If a Copyholder furrenders lor Lite, there gaffes from him tios'S.t^. lo'i,
tnore than fuffices to make the FJiate^ and the reft remains to him. .Brownl. ^- ^- ^- ^^ .
181. Trin. 9 Jac. Bicknall v. Tucker. '^l^f^J^ "
Podger's
Cafe S. C. 2 Brownl. 157 S.C. and S. P. by Coke Ch. J.
17. Surrender of Copyhold is not to he refemhled to furrender atCotmnon
Law; for if Copyholder in Fee furrenders to the Ufe of another lor
Life, nothing more palfes from him than will ferve the Eftate limited
to the Ufe, and he that makes the Surrender Ihan't pay a Fine for Re-
tfdmittance to the Reverlion, for this continues always in him. 9. Rep.
107. in Marg. Podger's Cafe.
18. If a Copyholder furrenders his Copyhold of Inheritance into the Gilb. Treat/
Hands of the Lord, (0 the Ufe of J. S. paying of a 100 1. to his Exeaitors"^. ^^'l-
within fttch a Time after his Death, he to whofe Ufe this Surrender i&lit^lsc'
made takes by Force of this prefently j Per Doderidge J. 2 Built. 275. and fays.'
Mich. 12 Jac. that if it be
not a pre-
fent Surrender it will be of no EfFedt.
19. A. feiftd of Copyhold Land in Fee hy Licence demifed the fame by Brownl.
Indenture to S. the Piaintitf for 20 Years. A. furrender'd the ReverJ/on '7^- S. C.
of one Moiety to B. to which he was admitted, and then furrender'd iheV^'^^'^'
Reverjion of the other Moiety to C. who was alio admitted. Refolv'd, that jntiy.^f^ *
the Surrender by the Name of a Reverlion was good in this Cafe, though Gilb. Treat.
the Leafe was not madeby Surrender, (which had beendireftly derived, of Ten. i6z.
and that according to the Cuftom out of the cuftomary Eltate) but by ^""^•j^-
Indenture; for ftill it is the Leafe of the Copyholder, and not of the tho^-'j-^^.^'
Lord; Refolv'd. Hob. 177. pi. 203. Hill. 14 jac. Swinnerton v. Miller, intereft may
pafs by
Kame of Reverfion (for any other Name to give it will be hard to find) yet perhaps he hath not in
flriftnefs fuch an Eftate in him. However that be, it feems the Particular Tenant holds of the
Lord ; therefore if the Tenant in Fee of a Copyhold furrenders to one for Year.', it feems to me that
the Tenant tor Years /hall hold of the Lord, for by Admittance the Lord takes him for hisTc-
rant ; but if the Lcale be made by Indenture, there it feems he holds of his LelTor ; for he is
not admitted Tenant to the Lord.
20. A Feme Copyholder in Fee came to Court, and offered to furrender
to J. S. and bis Heirs, htit fl.-e dejired to retein an EJlate to herfelf for Life,
and the Steixard entered^ that (be ftirrendcred the Reverjion of her Copy-
hold to J. S. ajter her Death, and it was adjudged an ill Grant, becaule
there was not any Reverlion, cited per Harvey J. Hill. 2 Car. C. B. ia
Cale of Selby v. Becke. Litt. Rep. 18. as one Drewell's Cafe. .
21. Surrender with the ^ipptirtenances will pafs Land. Surrender of a There was
Mejfuage and three Acres will pafs more Acres if divers Copies fuccef- ^5JS^^''°^"^
fively have been fo; Per Harvey. Het. 2. Pafch. 3 Car. C. B. Black- fgT
hall v. Thursby. ^onds to
viJ.icb divers
Lands apferf/riTjing, the Tenant furrendered the faid Me^tiagt called Symcnds, <-^-ith the Jpfurtenances,
and all \\\s Right therein ; per tot Cur. notliin^ Ihall pafs but the Houfe, with the Orchards, Yards,
and Cui-tcliige, and Gavden, by thefe VS'ords (Cum Pertineniiis) Cro J. 526 pi. 2 Fafch. 17 Jac.
C ii, Smithlbn v. Cag<; Gilb. Treat, of Ten. 294, 295. cites S. C
T 22. A
yo Copyhold.
Lf !;5. zz. A and liis Wite Tenants for Life of a Copyhold, Rcmain.ier co
S C no ^ j^i p-^g fuirendered thus, viz. Aiy Lands m H. which "isutrL my li'ijVs^
v'ls^LTvcn in '^"^ "^"'^ hersjor Life, I give to the Heirs of the Body of my fatd IVife^ if
the principal that he or they live to 14 Tears of Age^ and for want of fnch Heirs then io
Pnint, but ^. S. and his Heirs. The Hushind died without lifue, the Wife m-ar-
thcCuuie ried again, and had lil'ue which lived to 14 Years of Age. The Wife
w be"ad died. Qusre, if the Words of the Will will pafs any Eftnte to the
jouvn'dinto IfTuc? Court divided. Raym. 162. Mich. 19 Car, 2. B. R, S.aow v.
the Exchc- Cutler.
quer Cham- r> • r 1 1 j c • r
fcer but the Reporter fuppofcs it was agreed between the Parties, for he heard no more of it after-. .
xj:\rAi. Sid. 15;. pi. 2. S C. reports that the Court held it clear, that Divife to an Infant when
be fliall be born, or to a Dauglitcr when fhe fhall be married, are good, and the Land fhall de-
scend to the Heir in the mean time. -Keb. 752. pi. 47. S. C. adjornatur. .Ibid 800. pi. 67.
S. C. that the Devife was good, and Judgment for the Plaintiff Niu. Ibid. 851. pi. 55. S. C.
fays, that all doubted that the Devife was void, and Devife to an Infant en Ventre fa mere has been
a wavering Point in all Ages; Adjornatur.
See cf.) (T. a) Where Tenant fhall be bound by a volantaiy
Surrender made out of Court.
S C cited I. T F a Copyholder languifhing in Extremity furrendreth out of
Gilb. Treat. \_ Court to the Ufe of hts Cvujhi, tn ConJ'i deration of Confangv.inity^
of Ten. oj- to the Ufe of his Son, in Conftderation of Natural Love and Affedion.^
270. and ^^^ recovcreth his Health before Prefentnient, this Surrender is perad-
by*'Lord venture revocable or countermandabie. Co. Comp, Cop. j:i. S. 39,
Coke's fay- Anon.
ing a Sur-
render out of Court it feems, that if it were made in Court it would not be revocable, for then he
Inew'd a more fettled Dcfign, and by his faying before Prereutrnent, it fecms that it it was pre-
fcnted it is not revocable ; for then the I^and is bound. — If a Copyholder furrender in Extremis to
the Ufe of himfelf for Life &c. if he grows well again, the Surrender Jfoa// y?fl»</, becaufe he has referved
an Eftate to himfelf ; per Wray Ch. J. Le, 100. pi. 128 Pafch. 50 Eliz. B. R. in Cafe of Rom-
ney v. Eve.- Gilb. Treat of Ten, 270, 271. cites S. C. and fays that this feems to warrant
the a forefaid Opinion of Coke.
2. But if it be granted upon vahialk Conftderation, a.s for the Difcharge
of Debts, or for a Sum of Money paid, though it be made out of Court,
yet it is as binding as any Surrender whatfoever made in Court. Co.
Comp. Cop. 51. S. 39. Anon,
ZunerM)[^- ^] ^^"^^^^ ^^^^ t>e fald a good Frefentment of a Sar-
in Foi. joi. render, and at ivhat Ttms.
sef(K)pi. I. /^S>. 4- l^ite ant! duiuton 25. '2Cl)e Cuftom of tt)e ^anar was,
J, S.C. The \^^ that a Surrender out of Court Ihould be prelented in Court , %
Prefentment Copyholder furrenders aCCOrUinffT? "P"" Condition, atlB this is pre-
materiar ' fented abfoiuteiy, atiU tcrolijco, tijat tl)C l^cerentment vi Mm,
muft be ac-
cording to the Tenor of the Surrender. Co. Comp. Cop. 51, 52. S 40. Gilb. Treat, of Ten. i6;.
fays, that tho' the Prefentment be made wrong, yet if Admittance be tnide according to the Sur-
reader, the Admittance is good.
2* CfiT*
Copyhold. 7 1
2. Co* 4. 15lllltinff 29. b» Copyholder in Fee furrenders out of Mic/i 27 5c
Court, and dies betoie it is prelerucd in Courr, ))tt t\)Z ^UttttHitt bC- ^^ ^''^' '^'^'^
ing pielenced alter his Death, according to the Cultom, 10 frOOD Sl^f^ Rcfolu-
ijjrcmuicn ; but if it ijati not been Done nccotDinn; to tije CiiftanucarcofBun-
It ijan not been goon i ano tf tlje Tenants, b^ luijofe iMim tlje g)iit="nK ^ Lep-
tcnoec U)a0 uinDe, die, pet if ti)!0 upon good Proot 19'nrercntcD, it is'"g^^" —
jueUenoiiglj* Co* lit, 62. "^ sPdrtd
*» Bulft 2 1 c
— S. C. cited Bi-idgman 51.— If it be prefented by any other Copyholder at the next Court it is well*
enough, the Copyholders who took the famj being dead ; Held per tot. Cur. and cited Bunting's
Cafe. Cro. J. 40;. pi. i. Tnn. 14 jac. B. R. in Cafe of Frolfel v. Welfh. Co. Comp. Cop.
51. S. 40. fays the Prelentmeut niuit be made by the fame Perfons that took the Surrender. Gilb.
Treat, ot Ten. 26;. cites Lex Cult. 157 that a Surrender muft be prefented by the fame Perfons
that took It; fo iays Coke, but chat thu is not literally true, will appear from what he fays in ano-
ther Place, that it he that took the Surrender die, yet if Prelentment be mide of it, it is fuffici-
cnt ; and it is laid in Lex Cuft. to have been held by Wadham Windham, that if a Surrender be
made to one Tenant, and prefented to have been made to another, yet that is nothing to vitiate
the Surrender ; it the Suneiider be prefented by any Body, and Admittance thereupon made, it
leems_ to be well enough, for it is known that there was a Surrender ; and if the Prefentment flxojld
te void, yet the Admittance is good enough without it.
3- 31f tijere be two Jointenants in Fee Of 3 Copi'fjOlU, tlttH one fur-
renders his Part out ot Court intO tlje pmXi^ OHiji lOCD, to the UCe
of his laft Will, and aftet devifes it to another in Fee, anil Die0, BttD
after, at tlje nett Court, tW is prefenteD, tfje Debifee Ojall babe
it i fot no'iabj) delation tbc Jointure tuass febereD, nnb tije emz
of rbe laub bounb bi^ tbe ^urcenbcc* mci}, 2. 3. bu, ^, 05^
Conftable'0 Cafe, citeb, Co. Lit* 59- b.
4. Within the Manor ot P. there was a Cii/om, that if any 'Tenant of 5 Rep. 88.
the Adanor aliens Lands holden of the Manor by Writing or Feoffment or Perryman's
devifeth it by his IVill, or fanenders it into the Lord's Hands to theUfe '"'^i^ \- ^' . .
cf any ether, that fuch Alienation^ Feoffment^ Devife, or Surrender ufed, TreafonaWc
and ought to be prefented at fome Court of the Manor there holden within a Cuftom
Tear after fuch Alienation, Feoliment &c. It was objected it was no ^ And. 125.
good Cultom i all the Court except Anderfon held it to be a good Cu- P'' '?'' ''"'^'
Itom, and allowable, and agreeable to Law; for it is good Reafon the Bow-e^r S.C.
Lord fhould know his Tenant, for otherwife it may be fo fecret that
the Lord or other may not know who is the Tenant. Cro. E. 668. pi.
55. Fafch. 41 Eliz. C. B. Parman v. Bowyer.
5. If the Surrender be not prefented at the next Court (after the Death 4 Rep. 29.
of him that made it) according to the Cuftom, then the Surrender be-^-.P'- '8.
comes void, and fo it was clearly holden. Pafch. 14 Eliz. in the Com- '"'J'cr *' ?
n^on Pleas. Co. Litt. 62. a. '^^,.t
_ _ . y. . ,, .^.,, r« . .^ tion in Cafe
of Butitmg V. Lepingwell Gilb. Treat, of Ten. 207. S. P. Co. Comp. Cop. 51. S 40 S P
and that fo It mull be by the General Cuftom of the Realm ; but by fpecial Cuftom in fome Pla
ces it will ferve at the 2d or 5d Court.— Gilb. Treat, of Ten. 264 S. P. and fays the Reafon ofthis
feems to be to prevent Difputes ; for if an old Surrender might be trumped up at any Time it
•would defeat any After-Charges made by him that furrendered, which Charges would appear to' be
good enough, fince he is Tcrtenant, and continues PofTefTion, and the Surrender could not be known
But now let but the Purchafor ftay a Court or two, and then he may be fure to know whether there
xs any Incumbrance ; for if the Surrender is prefented, then it appears, and lie need not meddle ■
if it be not prefented, he knows it is void, and fo may proceed. '
6. By the Surrender out of Court the Copyhold Eftate pafles to the
Lord under a/t-fr^? Condition that it be prefented at the next Court, accord-
ing to the Cuftom of the Manor, and therefore if after fuch a Surrender,
and before the next Court, he that made the Surrender dies, yet the
Surrender ftands good, and if it be prefented at the next Court, Ccfty
que Ufe fnall be admitted thereunto. Co. Litt, 62. a.
(W.a.
"72 Copyhold,
iTi'lVieaKjC^'- ^] What E//tty of the Surre}jder and Preftntmejit
i^io\.^o\, Ihallbe^oo^. [Variance.]
But if the 1. Cd. 4. il<(t^ annClUmtOn 25. 3 Conditional Surfender is pre-
Picfcntment feiuvd, ilUlJ tljC Steward in entriiio; tlJCCCOf omits the Condition, p£t
V* 'i'Vl'^H . it i2( l)ciD, %m upoji fuffictent Pcoaf tljeceof, tije S)iia-£nncc ajail
neitcourt notfccnijoirscti, but tlje Koii ihaii be amended, atiU tt)c EoU fljatl
by the Copy, itot couciiioe tijc ipiictp to gtijc Ctiit!cncc aganift it*
hold Tenant
(who took the fame out of Court accordinp; to the Cuftom) omits the Condition the Prefentment is
void. Refolv'd 4. Rep. 25. a pi, i u Pafch. 31 Eii^. B. R. the S.C. Supplement to Co. Cortip.
Cop. 80. S. 15. cites S.C. Gilb. Treat, ot Ten. 179. cites S.C. Co. Comp. Cop. -ji. S. 43.
S. P. Gilb. Treat, of Ten. 918. cites S. C. that Ld. Coke fays, that Prejentmer.ts of Surrenders
ought in all material Points to eufne and agree ivitb the Surrenders tl.cmfelves, elfe the Surrender, Prefent-
ment, and Admittance thereupon will be void, which ftenis reafonable ; tor if the Prefentment in
Matter differs from the Surrender, the Lord hath no fuffioient Notice of the Surrender, and then the
Admittance upon it muft in Keafon be bad, and not help out the Prefentment ; for it the Lord knew
the true Surrender, perhaps he would never confent to fuch a Surrender ; and tiie true Surrender
ought to be known ; that the Lord might know his Tenant, and from whom to take his Services.
The Admittance cannot help out, for that was grounded upon the Prefentment ; but if the Lord had
Motice of the true Surrender, the' the Prefen-m.-nt did differ, yet it feems reafonable the .^dmittancc
iliould enure; and when a Man is admitted, he i-; in by the Surrender ; ied quxre, Wliere it is faid
that if the Prefentment differs in Points rrliterial from the Surrender, that there the Admittance, Pre-
fentment, and Surrender are all void; It feems this mull be underftood, if the Time for prefentinc
the Surrender be part, for if there fliould be a Prefentment and Admitt.ince made contrary to the Sur-
render, fure this will not make the Surrender void before the utm.jfl Time allowed by Law for the
Surrender's being prellnxd ; for it is no Reafon to fay, that be.-aufe t~he Prefentment is void, that there-
fore the Surrender is void, for the Surrender depends not on the Prefentment, tho" it may be void,
becaufc not prefented, but not becaufe ill prefented ; So that it after fugh ill Prelcntment and Admit-
tance there fhould be good Prefentment and Aamittar.cc, it feems the Surrender, and ail the other Afts
will ftand good.
For this En- 2. Mifcntry of the Date of the Court of the Manor fhan'c prejudice
Mat'tlr of ^^"^ ^"^y- " ^ ^^- ^^9' P^- 39-^- '^^^"- ^^ ^^'^- ^- ■^- -Burgefs v.
RecoVd" Fofter.
but is but
an Efcroll, anj on IfTue joined of the Time of the Surrender, or of the Court, it fh.in't be try'd by th
Rolls, but by the Country. Ibid. 4 Le. 215. pi. 34S. S.C. intotidem Verbis. 4 Rep. 21 <
pi. 543. S. C. in totidem Verbis.
An Entfy j. Where a Surrender was made upon Condition, and the Steward
^<vard'sBook i" '^he Entry ow/'/j ?^^ C««c/;;/o«, yec upon fufficient Proo/ of i: the Sur-
anda parol' render fhan't be avoided, but the Roll Ihall be amended, for the Roll
Proof by thePJant conclude the Party either to plead or give in Evidence the Truth
Foremanof of the Matter. 4 Rep. 25. a. b. pi. 11. Pafch. 31 Eliz. B. R. Kite v.
y„,;,ad- Queinton.
mitted as ^^
^ooA Eiiidence^ that a Feme Covert /»r>-c;7rfsrf(^ her whole El^ate, though the Surrender on the Rs///fif-
Jered, and was only (as was alio the Admiffion) of a J>Ioiety. 2 Vern. R. 5S7. Hill & Ux'V.
Wiggot.
Sapplerncnt 4.Where theAfmttance difers fmn the Surrender the Ellate of the new
Cop°7..°sl''P°.Py^°H^'' *h^^^, ^*^ guided by the Surrender, lor alter Admittance he
<J. andSi.S. is in by Force ot the Surrender, as where the Surrender was abfoJute
i5.citctS. and the Admittance is on a Condition. 4. Rep. 28. b. pi. 17. Trin. 33
C. Co. Elii. B. R. Welhvick v. Wyer.
Comp. Cop.
52, 5-,. S 41. citesSX. -Roll Rep. 238. 5.7. 458. Lane v.Pannel — Covenant in a Settkmivt to
lurrender Copyhold Lands to the Heir Males, but the Surrender by a Mijiake ■u.-.u entered on the Roll
to the Ufc of the Heirs General, this Surrender was decreed to be vatated, a.".d a new Surrender
B.uile ^CkOidi'ig to the Settlement. Fin R. 154. Bread v. Brend.
(X. a)
Copyhold,
TO
/ -^
(X. a) What Effe6l the Surrender has, where there is
no Frefcntment.
i.TF Copyhold Lands are furrendered into the Hands of the Ld. of the
j^ Manor, and he in the Prefence of his Tenants, out of the Court
grants the fame to another, and the Steward enterctb the fame into the
Court Buok^ and mahcth thereof a Copy to the Grantee, and the Ld. dies
before the next Court, this is no good Copy to hold the Land j But
if the fame Surrender and Grant be prefented at the next Court in the
Lijeof the Lord, and the Grantee admitted Tenant, and a Copy made
to him, this is a good Copy. Calth. Read. 46. 47.
2. II I fnrrender out ot Court, and die before Prefentment, it Prefentment 4 Rep. zq.
be made after viy Death ^ according to the Cultom, this is fufficient. ^ Bunting r.
3. So tf he to whofe Ufe the Surrender is made dies he j ore the Prefent- Lc ping well
tnent^ yet upon Prefentment made after his Death, according to the
Cullom, his Heir fliall be admitted.
4. And fb li \ furrender out ol: the Court to the Ufe of one for Life, the
Surrenderor and the Leff'ee for Ltje dies before Prefentment^ yet upon Pre-
ientment made, he in the Remainder Ihall be admitted.
5. And fo \i I furrender to 2 jointly, and one dies before Prefentmetit^ the
other fhall be admitted to tlie whole.
6. The fame Law is, if thofe, into whofe Hands the Surrender is made,
/lie heforc the Prefentment, upon fufficient Proot in Court that fuch a
Surrender was made, the Lord Ihall be compelled to admit accordingly j
and if the Steward, the Bailiff, or the Tenants, into whofe Hands the
Surrender is made, refufe to prefent upon a Petition, or a Bill exhibited
in the Lord's Court, the Party grieved ihall find Remedy. But if the
Ld. will not do him Right, he may both fuethe Ld.and him that took
the Surrender in the Chancery, and Iball there find Relief Co. Comp.
Cop. 52. S. 40. cites 4 Rep. 29. b.
7. Copyholder in Fee furrcndred into the Hands of 2 Tenants ac- j ' i *?];
cording to the Cullom of the Manor, to the Ufe of another and his y/vVelcb^
Heirs, to be prefented at the next Court ; no Court was held for 30 Tears S. P. and
afterwards, within which Time the Surrenderor, Surrenderee, and the 2 ^^^^ to be
T'enants all dud. The Heir of the Surrenderor entred, and made ^^i^^i^'q'''*
Leafe for Years according to the Cultom of the Manor. Adjudged that },g|j j^^j (,
the Leafe was good. Godb. 268. pi. 372. Mich. 14 Jac B. R. Anon. the Sur-
render into
the Hands of 2 Tenants, nothinj; part until it was prcTented in Court, and that in the Interim the Inte-
reft remain'd to him who made the Surrender, which Intereft defcended to the Heir who is Leffor to
the PlaioiitT, and that hs well might enter and make the Leafe (being but a Year) without the Ld"s.
Licence, or without fhewing any fpecial Cuftom ; And the Acceptance of the Rent by the Hands of
Celluy que Ufe gives not any Intereft unto him, until this Surrender be prefented in Court ; for the
Culiom is ftri£t, which ought to be oblerved ; But they held, that ifjias 7iot cf Necejfity that the Parties
•wio took the Surrender jhcu'd pefent it ; and altho" they be dead, and the Party who made it is dead, yet
(as the Cuftom is found) if it be prc/entedby any other Copyholder avhen the next Court is held, it is well
er.iugh; and he may thereupon be well admitted. — Gilb Treat, of Ten. 265. cites S C, — Supplement to
Co. Comp. Cop. 69. S. 5. cites S. C. and fiys it was refolved, that the Leafe for Years was well
made, hecaufe beTore !uch Time that the Prefentment was made in Court of the Surrender, the In-
lereft of the Copyholder did remain in the Surrenderor, and his Rij^ht defcended unto and upon his
Heirs and he might take and receive the Rents and Profits of the Lands; for that no Perfon can have
a Copyhold, or a Copyhold Eftate, hut flich a Perfon who comes into the fame by Cuftom of
she Manor, viz. by Admittance of the Ld which in this Cafe Cefty que Ufe did nor do — Bridgm.
4VS. C. adjudg'd.^ 9 Bulft. 214. Rofewell v. Welih. S. C adjudg'd. Roll Rep. 415. pi. j.
& C. adjudg'd.
8. A Surrender is not effeStial till it is furrendered, in Court ; per
Roil. Ch J. Sty. 257. Palch. 1651. in that of Shann v. Shann,
U (Y. a)
74
Copvhol<
(Y. a) Want of Pfcfcntmeat Relieved in Equity.
'A
Cop\-linldcr vn Marria^
ze <??rf
bac did not ; atcer he j arreudrsd by way
cd to fettle on the Wife for Life^
<^f
Mortzage to A.
for Money L-nt, and then furrendred to the Ufe of his Will, ;ind then
by N\ illdev iled to his Wiie lor Life^ Remainder to hii> Daughter in
Fee, and dies. A's Surrcndc-r was /lot prcfefittd at the next Court, but
theNVile got hcrfelf admitted. The Wile being in by Agreement pre-
cedent to the Plaintilf's Title, the Court would not impeach her Eltate,
but as to the Daughter, her's being purely a voluntary Eltate, 'twas
ordered, that unlels llie would pay the Plaintiff his Money, he lliould
hold and enjoy the Premilfes againit her. Ch. Cales 170. Trin. 22 Car.
2. Martin v. Seamore.
2. Copvholder in P'ee furrendred to the Ufe of Mortgagee in Fee,
and became Baukriipt before Prefefttmei/t, and there never was any Pre-
fentment niadej per Covvper Chanc. tho' the Surrender was void in
_ Law for want of a Preientment, and that might be the Laches of Mort-
licPurcLifccrS^S^^ '" ^'^^ procuring it, yet the Surrender iiuas a Lien, and bound the
Ibid Land in Equity, and an Alfignee of the Commilfioners of Bankruptcy
3-!y Jcl of ought not to be in a better Cafe than the Bankrupt, who was plainly
r.xrnament ]^q^^^^ \^ Equity by this defective Conveyance. 2 Salk. 449. pi. 2.
tSecJom Mich. 3 Ann. in Cane. Taylor v. Wheeler.
J^Ianor all Siirrenders v.crc ro be void if not prefcntcd virhin t2_ Months ^ftef they were roadc,
and'in this Cale more tluin 4 Years paiTsd before 'twas prefented which was after the Copyholder's
Death -on a Bill by the iMortf^ngee againit the Allignees and the Heir, 'twas de.Teed by Ld.
Cowner,t!iat the Defendants pay the Plainiilf his Principal, Intereft, and Colls, or to he fcreclofed and,
the Plaintirt'to be admitted to liold and enjoy af^ainlt Defendants. 2 Vern. 564. S. C. 11 'Hov. iqab.
And cone
llrr^blc al
Keyortcr,
he became
-S.C. cited VVms's..Kep. 2S0
Ch. Free. 524- • ^- '^ ^'^^"^ •'^■'S'
-S C. cited 2 Vern. 610. ■
G. Equ. K. 14.
-S. C. cited tef Mr. Verncn.
(Z. a) What Effe6: a Relcafe, or other Deed, will
have as to Copyholders.
Supplemcrt ^ yj Eleafe by Copyholder to one that ptirchafed the Fee of the Ld. ex-
Cop.°7v 'r K. tinguiihes the Copyhold. Le. 102. pi. 145. Pafch. 30 Eliz. B. R.
S cites S.C. Wakefield's Cafe.
. Per
Anderfon contra ; But Snagg Teemed to think it did. Cro E. 11. pi 2 Trin. 25 Eli?. B. Anon. ■
Eelcafe by a Copyholder to the Ld. is good ; per Twifden. Keb. SoS. in pi. 77. Gilb. Treat, ot
Ten. 2S9. cites S. C.
.Supplement
TO Co. Comp.
Cop So.
cites S. C —
Gilb. Treat,
of Ten. 179,
1 So. cites
S.C.
Co. Litt.
59. 60. a.
N P. accord-
i. ?lv. S.
2. If a Man is admitted to a Copyhold, and is a Copyholder in Pof-
feffion, fo that a Releafe of the Cultomary Right may enure to him,
and becaufe the Ld. is thereby at no Prejudice, lor he has had his Fine
upon the Admittance of the prefent Tenant, and he to whom the Re-
leafe is made is in by Title, viz. by the Admittance of the Ld. t,be
Releafe enures by ivay of Extingtiijbment oi the Right of the Copy-
holder, and is a' Bar to" him, Rcfolv'd 4 Rep. 2j:. b. pi, 11. Pafch ys.
Eliz. B. R. in Caieof Kite v. Queinton.
P. Arg. 2 Browal. 175.
-Cro. J. 101. pi. 52. VVhitton v. Willian-.sS. P.
3. But if Copyholder be oufled by one by Tort, there his Releafe by
Deed CO the DiUcifur or other Tori-tea\or does not tran>ler any R-ighf,
nor
Copyhold. 75
nor bar him, firll: becaufe he has not any cuftomarv Elkte whereupon
the Releaie of the culiomary Ri^^hc may enure ; And zdly, It will be
to the Prejudice ot' the Lord i lor thereby he will lule 'his Fine and
Services, and in it is utterly void. Ibid.
4. Copyhold liitcrcjl cannot be transferred by any other jifuratice than by
Copy of Court Rolf, according to the Culbm. Co. Comp. Cop. 50.
b. 36.
5. If I will exchange a Copyhold with another, I cannot do it by Gilb. Treat,
an ordinary Exchange at the Common Law, but we mult furrender to of Ten. 293.'
each other's Ule, and the Lord admit us accordingly. Co. Comp. Cop. '^""^■^■
JO. S. 36.
6. It I will devifea Copyhold, I cannot do it by ^\"iIl at the Common
Law, but I mull furrender to the Ule ot my lalt Will and Tella-
inent, and in my Will 1 mull declare my Intent. Co. Comp. Cop. 50.
i>. 36.
7. If I am onjlcd by a Copyholder, a Rekafe made to him to him is Gilb Treat.
vjoid, becaule it would be a Prejudice to tlie Lord i and belides there of Ten. 29;.
0 cultoinary Right upon which the Releafe may inure i Jiiit a Re- '^'^" ^- ^- ^
as no
/eafe inuring by the way of cxtinguijbing, where no Prejudice accrueth to thc%l^^^\^
Lo-.-d^ will lerve to drown a Copyhold Right ; and theretbre if I/«;-m/- mcscan pafs
der out of Court upon Condition to the Ule oi J. S. and the Prefcntment is ^Y Leafcand
made abfohite in Court, and the Admittance framed accordingly^ this Ad- ^^'='''''^'
mittance and Prefentment dirtering Irom the Effeft of the Surrender are r^°ar"Vr-
both void ■■, yet becaule upon the Admittance the Lord is fatisfied of his Surrender?
Fine, and lb nothing at all prejudiced, and belides, here is a cullomary for a Rc-
Righc upon which the Leale may be grounded ; 1 ma\- by a Releafe at '^^^^ '•annot
the Common Law fufficiently confirm this void Eltate. ' And lb upon Co'^^^h^ fd
the fame Reafon, if I am oufted of a Copyhold, and the Lord admits him Eilate!°
according to the Cuftom, a Releafe made by me at the Common Lavv
will extinguifli my Right ; But if make a Leafe for Tears of a Copyhold
J cannot by my Releafe pafs my Reverjion^ becaule this Releafe inareth by
"say of Inlargement to transfer an Interell, and not by way of Estinmith-
nient to drown a Right ; but my Way is to furrender my Rev'erlion
into the Hands of the Lord, and he to grant it over to the Letfee. Co.
Comp. Cop. 50. S. 36.
8. A Copyholder farrendered upon Condition, and afterwards by Deed Supplement
releafed the Condition ; Refolv'd, that this is good, for a Right or Con- to Co Comp.
dition cannot properly be determined or given by Surrender, or other- ^°P- ^° S.
■wife than by Releafe. 'Cro. J. 36. pl. ii.Trin. 2jac. B. R. Hall v. Shad- s^c '!!!_.
^^°°^'- 4 Rep. 25.
Kite V. Queinton, S. P. . Co. Lirt. 59. a. S, P.
9. If there are two Joint Copyholders, and one of them releafes to theHet 150,
ether, this is good without any Surrender or Admittance of him to whom ^^'ch.' 5
the Releafe was made, becaufe the firll Admittance was of them, and ni""' ^ ^,
every of them, and the Ability to releafe did arife from the firii Ad- Cafe^'s ^p*
znittance. Win. 3. Pafch. 19 Jac. Wafe v. Petty. • agreed ac-'
cordinglj-j
per Cur.
lo. If a Copy holder releafes to the Lord, it extinguiHie," the Copyhold Jo 41,42,
though it be contrary to the Nature of a Releafe to give a Polleflion P'- ^- f^'^-
Kiirr (Se Trin to Tnr in Cnlp nf Rlpmpr_Wo(rf>r tr lJ„,„U„w1. — « verhalTct r.
Hutt. 65. Trin. 19 Jac. in Cafe of Blemer-Haii'et v. Humberllone
Hombcr-
& S P. VS^in. 66, 6-. Pafch. et Jac. C. B HafTet v. Hanfon, S. C.""^'
II If
76 Copyhold.
Ira Ccp)hol,i- xi. li a Willi comes into a Copyhold torcioully, and is admitted by
^1- comei to ^j^g Lord, and alterwaids he makes a 'Leafe tor 3 Lives, which is a
hi £^fif^ ForteicLire ol his tltace, vet it he that has the pure Right to the Copy-
leemsitmuft hold releales to the VV^rong-doer, it is good ; box till_ the Lord enters
hzby Jd- he is Tenant in Fait ^ Per Yelverton ; but \\aker teemed ot another
pittance. Opinion, and theretore the Reporter fays Qusre what Benefit he ihall
^cafel'ill^' h^^^c by the Releale. Brownl. 149, ijo. Mich. 19 Jac.
not operate
at all) and commits a Forfeiture, and then he that hath Right reU/rfes to him, this ITiall hinder the Lord's
Entry, becaufc now he haih, as it were, another Kftate ot which he liath committed r.o Forfeiture ;
fed quxre. Glib. Treat, ot Ten. 25^.
Lid Copyholder be oufted lb as the Lord of the Manor b difliifed, and the Copyboldsr releafes to
the Diffeilor, Mihil ojienitur. Le. 102. pi. 135. Palch. 50 EVic. b. R. VVakct'ord's Cale.
4 Rep. 25. 12. Copyholder is oujied, and fo the Lord difieifed, and the Copyholder
p't'l,"'-" releafes all his Right to the Dijleifor, and dies. His Heir enters, and
Ehx b"'r ^n»^j !?rf//)a_/i againit the Difleifor, who pleads his Franktenement, and
Kite V. by the Court the Releafe is clearly void, the Dilieifor never being ad-
Ojiinton, niitted Copyholder. Hetl. 150. Mich. 5 Car. C, B. Mortimore's
iS. P ve- /•', (,,
lolv d, be-
caufe the Difjeifor h,rj no cuflomary Efliti: or ivhich the Kt'eitfe of the cunomarv Right may enure ; and
iilf'o it will be prejudicial to the Lord, who thereby will lole his Fine and Services Glib. Trcit.
olTen. ib'o. cite.s S C. — ■ Le. loi. pi. 135 i*a(i:li. ;o Eiiz, B. R. in Wakeford's Cafe.
Supplement to Co. Comp.Cop. '75. S. iJ. cites S. C. Glib. Treat, of Ten. 203 cites S. C. & S. P-
i.nd fays, thnt the Reafon of this fcems to be, that though a Releafe cannot in its own Nature pafs
i. wav a PoUciTion, yet it mjy amount to a Signification of the Tenant's Mind to hold the Land no
iOiigsr; lor .t Copyholder is a Tenant at Will, and therefore rlioiij^h the PoiielTion be not granted, any
Tiling amounting to a Determination of the Copyholder's Will is fliHicient to cvtinguifh his Copy-
hold, but no Rii;ht to a Copyhold Eftate i.s extingtuihed by Releafe, but where the Perfon that hath
the Copy liold Elhue comes 10 it rightfully, bccaufe of the Prejudice the rightful Lord would beat,
for in this Cafe he would lo1e in his Dam.jges againft the DilTcifor, the Fine due for Admittance, and
ihcre would be a Tenant brought in againft his Will, and an Eftate or Will, grantable by Surrender
or.-ly, pals by Dilfeifin and Rflcale.
I?. Releafe to a Tenant in Pofleffion by a wrongful Title, by a Feme
Covert in Court^ who was examined fecretly by the Steward, there need
no new Admittance. 2 Show. 83. pi. 70. Mich. 31 Car. 2. B. R. Stone
V. Fxton.
(A. b) Pleadings. Surrenders.
Le 227. j_ T3^ E A in Ejeament that the Lands -were Copyhold, and that
Wood^V'c. J^ ^- ^^^ T'enant furrendred them ifito the Hands of ^. the Steward
but adjorna-to the Ufe of C. the Detendant, and that C. was accordingly admit-
tur. ted. B. replies, and concludes with cihfjne hoc that A. is:as Steward.
Held to be no good Ilfue, for it /.bonla be Ahfque hoc that B. made
any Surrender. Cro. E. 260. pi. 45. M. 33 and 34 Eiiz. B. R. Wood
V. Butts.
2. I'his is the^t7/i?m/ Ciijiom oi thu Realm, that every Copyhol-
der may furrender i» Court, and need not allege any Cultom there-
tore. Ho \i out of Court he furrender to the Lord hmifelf, he need not
allege in Pleading any Cullom, but it he furrender out of Courc
into the Hands ot the Lord,, by the Hands oj 2 cr 3 ^c. CcpyholderSy
on by the Hands of the Bailiff' or Reeve £iV. or of any other, thefe
Culloms are particular, and theretore he mult fkad them. C, Litt,
3. A.
Copyhold. 7 7
3. A. covenanted to ftirrender to B. Copyhold Land upon Reqtieft jB.j^jj ^g^
afligned i Brcach^thnt he did not ftimnder it into the Hands of two Te-s. C. ad-
tiants of the Aianor, this is not fufficient, for he may furtetider it into thejudg'd, and
Hands of the Lord, or in Court, and the furrendr'ing into the Hands '^y^"^^
of two Tenants, is only a. particular Way. Sty. 107. Trin 24 Car. j°3°i^
B. R. Freeborn v. Purchafe. Pafch. 9 Car,
in Cafe of Sims v. Lady Smith. Sty. 107. cites 9 Car. Sims v. Walker.
iJnReplevin, the Defendant made Cognizance^ for that M. -was feifed in
Fei of a Chfc, fared of the Manor of L. which Clofe he demifed to R.
for 99 rears, and being feifed of the Reverfton according to the Cufiom of
the Manor, (omitting ad voltintatem Domini) he farrendred it into the
Hinds of the Lord according to the Cujiom &c. and upon a Demurrer it
was adjudged, that the Cognizance was infufficienc ; for the alleging
that M. was leiled in Feefecundum Confjetudinem Manerii, without
iaying ad 'volantatem Domini, mult intend it a Freehold, which could
not be convey 'd by Surrender in Court and Admittance, without a
fpecial Cuftom to pafs them in that Form. 2 Venc. 143. Hill i «5c 2
W. & M. in C. E. Rogers v. Bradley.
[B. b] Copyhold. Ad?mttame. In what Cafes the.TLmef""
Ijlate fhall be //; the [Ferfon txiho has the Right to k^^^^ '"^^'^
admitted] Temnt before Admittance.
1- TJF tlje CultomOf a^anorfie, that the wife OfCbCrp COpp= ♦ Hurt. 18.
1 ftOlOCC foe Life ihall have her Free-Bench Of tijC Cciiemcnt Of T"n.6. Jac,
fjet i;u0l3aiH), DumCnftn $ foia Wtxxt after t^e Deatlj of t&e 15a= L5 ^''^
ran, tlje JLaui caftg tlje Cffate upon tlje m\% fo tfjat flje fl)aU Ijaue 2Zu her
t\)z Cttate before anp ^Omittance i ano ina)J mafee a leafe for a Free Beneh,
^ear ais anotljcr Cbppljoincr map. '2Cr. i6 3ia. 015. ia» betuieeti"'"' ?'"/''"'
*jurdan and Stone, flgcecD pcr totamCurlamtipoit CUtlience at tlje '"dthlh^'
I5ar* i|)Obatt'0 Reports! 244. \izmzt\\\ Howard and Eartlet, T^ZZste-^ard re-
Curiam J aim tljecc citcn. !?♦ 16 31. 11 Eeniiington'is cafe ao^/v^'', where-
brought an
Ejeflrment, and whether the Aftion lay, fhe not being admitted (for it was agreed that no Fine was
due) was the Qucftion. Refolv'd, that her filiate arifes out of that of her Husband's Eftate, and if
her Admittance had been neceflary, fhe did all in her Power to procure it, and were an Efiate it
created by Ciijlcm, thai pall be an Admittance in Law .
■\ Hob. 181. pi. 21S S. C. that this Eftate is caft upon her and vefted by Law. 2 Roll Rep.
17S. Trin. 18 Jac. B R. Walter v. Bartleet S. C. but S. P. does not clearly appear. Cro. T.
575. Vk'aldoe v. Bartiett, S. C. and S. P. feems to be admitted. Palra. iii. Waldor v. Barklcy
6. C. and S P. feems to be admitted.
II Noy 29. Rcnnington v. Cole S. C. and S. P. adjudg'd. Becaufe no Fine is due to the Lord.
2. The Heir of a Copyholder may enter and ha'De an ABion of
^refpafs before Admittance. A Dtfcent floall not hind the Heir of
a Copyholder. He may furrender unto a Stranger before Admit-
tance. Supplement to Co. Comp. Cop. 71. S. 5. cites 4 Rep. [23. b.
Trin. 26 Eliz. B. R.] Clark v. Pennyfeather.
3. A Copyholder furrendered to the Ufe of J. S. and the Lord oi^^vf^imtnx
the Manor, ivithottt any reafonablc Caafe, rcfufed to ad?nit him i adjudg- " '^°'^°'^P'
ed that he cannot enter without a fpecial Cultom to warrant it, for ^-"^^ I^q '
till Admittance the Surrenderor continues in PoflelRon. Cro. E. 349.
pi. 2ry Mich 36 & 37 Eiii. Berry v. Green.
X 4 Sur-
-7 0 Copyhold.
2 Bulft 5V' ^. Surrenderee before Admittance has neither Jus in Re, nor ad
^ *■'■. ^'^' Rem, nor has he any Remedy ii" the Lord retufts to admit ; per Hole
Mosf?prCh. j. Show. 87. cites Cro. J. 368. [pi. Patch. 13 juc. B. R.] Ford
1137 S c, V. Ho5.i.ins.
relblv'd ac-
cordingly.
Supplement 5. Ciijfom ^c. that a Copyholder might ftirrendcr out of Court into the
to Co C.o^V- Hands of two cnjhmary -Tenants, to the Ufe of another, and that at the
C.op_. 70^ ^ ^^^^ Court the Surrenderee ttfed to be admited j a Surrender was made unto
aiidiays, it the Hands of the Steward out of the Court, but the Party, to whofe Ufe ic
wasrefoly'd was made, died bejore the next Court ; It was inlilted, that he dying be-
in this Cafe, fQj.g Admittance, he cannot he faid to be a Copyholder within the Cuf-
''^fa'^Co '"^- '^"'"j """^ ^y Coniequence cannot be poffefled of the Copyhold Ef-
holder with- tate j and it fo, then the Heir of the Surrenderor is in by JDelcent, and
in the Caf- fliall hold by the Cop 3/ of his Anceftor; Roll Ch.J. faid, that this Cafe
torn; for by (jiffgi-g from the Cafe of furrendering into the Hatids of Tenants, for ic is
lanc'^the"' ^" "^^ ^^^ Hands of the Steward out of Court, which is good, and that
6un-enderee the Lord's Acceptance of his Rent is an Admiffton ; But Bacon doubt-
hath no Pof- ed ; Sed adjornatur. Sty. 145, 146. Mich 14 Car. Earker v. Den-
fcffion, and h^n|_
in by Defcent' and holds by the Copy of his Anceftor, ard fo the Cefliiy que Ufe is not a perfeft
niir compleat Copyholdci-, and it may be compared to the Cafe where a Man makes a Feotfment in
Fee of Lands, and mikes Livery within the View, it is no perfed: Livery till he doih enter into ch:
Land^ hut the Fccftor may pun i fit a Trcfpafs there done in the Interim, for it is but inchoatum
until 'he enter; And fo it is in Cafe of a Copyholder, the Suriender is but quafi inchoatum, as
before, till he be admitted to the Copyhold.
6. A Surrenderor of Copyhold Land continues feifed till the Admittancs
of the Surrenderee, and the Perfon to whofe Ul'e the Surrender is
made is not Cefty que Ufe in the mean Time, but when admitted he
is in by Grant from the Lord; per Holt Ch. J. Wms's Rep, 17. Hill.
1700 B. R. in Cale of Filher v. Wigg.
7. In the Cafe of a Surrender to the Ufe of A. the Lands were found
to hefurrcndred into the Hands of the Lord hirnfelf in full Court, and that
the Lord ajjcffed a Fine upon the Surrenderee, but never admitted him ^
Adjudged per tot. Cur. that the Heir of the Suirenderee had no Title,
for that the y/z^/e of the Surrenderee /j wholly by the Copy of the Court
Roll made from the Entry upon the Court Roll, which before Admit-
tance can'c be ; but in Cafe of a Defcent the Heir may furrender be-
fore Admittance, becaufe he has a Title by Defcent, but the Lord in
this Cafe Ihall have a Fine, ii Mod. g$, pi. 4. Pafch. 5 Annae
B. R Brown v. Dyer.
[B. b. 2] In what Cafes the Eftate fhall not [be
out oj Surrenderor till Frejentmoity or Admittance of
Surrenderee^
1. TiF bvtije Cuiiom of tlje^anac tijc Copp!)oir> m^x to defcend
This in Roll J[__ to the youngelt Son, anO ttjC Copyholder in Fee furrenders jt to
f ^lTp?''2 in '■'^^ ^'^^ of himfelf and his Heirs, auO dies before any Admittance Upotl
Pol. 502. ■ tlje ^urrcnticr, anti tijc voimgelt ©on fira tx\xzi% t\sz elocH cannot
jufftfp W ^nttp upon xm iJCfoce ^omittance. ^» lo Jia. %. e»
aOjU5ffeo.
2. 3f
Copyhold. 79
2. Jf a COppIjOlOCC furrenders OUt Of COlirt into the Hands of Te- T'"' '"Rol^
nants, aCCOrUing to Cliaam, to the Ufe ot anocheri MorC t!ji0 ^«^ '' {-"'f
rennet isi prcfenteD at tlje ne,ct Court, or anp aiiuuttauce of Ijim to _BridVm
laOafe ufe tljlS ©UCrCntJCC 13 maDC, tlje Eltate continues in the Sur- 49. Frofetc
renderor. iT0ICl}. 14 lil. 15, K* betlDCeil F>c/a'J ^»r/ mip, peC CU= ^' ^al Je
rtain. ciooke,
DoderiHge, ard Haugfiton J. agreed the S P. ; Bulrt-. 214. S. C. adjudged. Godb. 26S.
pi. 575. S. C. adjucig'd, that a Leafe nude by the Heiv of the ."-urrenderor was good. Cro.
J.' 403. pi. I. S. C. aajiidged S. C. cited Bridgm. 83, 84. S. P. admitted. Afg. Sty. 146.
3. But in tijat Cafe, it" the Lord admits CCftUP qUe life foe IjiS ^e= Th^'" R°"
Jiant, and accepts the Rent from him as his Tenant, ttjC Eltate Ihall be _£j ^^g'^ns'*"
in him, before any Prelentment ot the faid Surrender at the next Court ^[.,3^ jj^g
t? tlje Cenant^, bccaufc tijc Lorn 10 not at aap prcjuoice bp tijis, words (and
imwQ fatiijfieD OfS Dunes', mijicij tg tlje Cauif, tijat tlje (Sftate 10 ^^"p';)
not ui tlje CcUup que Hfe upon a a)urrcni!cr before aonuttancc, (Jv ac^p
il9tcl). 14 3ia» 13> K. betiueen i-i-o/c^/^v/ ami Wei/b, pec Curianu tance of.)
Godh.
i6S. p). 373. S C. at^reed, that if the Lord takes Knowledge of the Surrender, and accepts the
Cuftomarv Rent a< Rent due from tiic I'enani: being admitted, this fliall amount to an Admittance ;
but othei-vvife if he accepts it as a Du'y generally. 3 Built. 214. Sec Rofewell v. Welfhe
S. C. and S. P. admirttd. Roll Rep. 415, 416 S. C. and S. P. by Haughton J. accordingly,
but Doderidge a:id Ciooke e contra Bridgm. 52. S. C. and S. P. by Haughton J. but the
others contra Cro. J. 403. pi. i. S. C adjudged for the Heir of Surrenderor. Supple-
ment to Co, Comp. Cop. 69. S. 3. cites S. C. fiys it was doubted by the Juftices, but not rerolv'd
■whether the Acceptance of the Rent by the Lord at the Hands of the Celty que Vie did amount
to an Admittance ornot. S. P. admitted, arg' 2 Sid. 61. Gi lb. Treat, of Ten. 266. citesthe
fame Cafes, and fays. If we look into the Reafon ot the Thing, we may conclude, that any Thing
that exprefles the Lord's Confent to the Surrender, fhould amount to an Admittance ; for it is his
Confent only that is requifite after the Surrender, to make the Surrenderee a Tenant ; and what
Matter i-s it whether that be done by a Dominus conceffit & Admiflus eft, or by any A£t that
-mounts to as much ?
4. If a Copyholder /}/rrf«^trj his Land to the Ufe of J. S. and the
Lord grants the fame to J. S. accordingly, and thereupon he enters, yet
he is no good Copyholder till he be admitted j but // J. S. appears at
the Lord's Court, and pajfes on the Lord's Homage, or the Lord accepts his
Rent or his Fine for the fame Copyhold, then he is become a good Co-
pyholder without any further Admiffion. Calth. Reading. 63.
(C. b)
In whom the Eftate fhall be faid to be before
Admittance of Surrenderee, and whether, when ad-
mitted, he Ihall be faid in by the Lord or by Surren-
deror.
s. TXT HEN z Copyholder furrenders to the Ufe of another, and the Gilb. Treat.
V V -^"'"^ admits him, he is in by the Surrenderor. Refolved, 4 of Ten. 241.
Rep. 27. b. pi. 15. 1'rin. 26 Eliz. B. R. Taverner v. Cromwell. andff 's^'
that this be-
ing fpoke 10 generally cannot by any fair Conflruftion but extend to all Surrenders, either by Te-
nant tor Life or in Fee ; but that in the Cafe of Jiing \i, jdorD [iloDtT] it is adjudged, that if a Co-
pyholder for Life furrenders to the Ufe of another for Life, who is accordingly admitted, that he is
in from the Lord, and not from the Surrenderor ; [Sec [P. 5] pi. 3. and the Notes there] but Ld, Ch.
B. Gilbert fays, Quare well ot this Matter ; for the Tenant for Life has not fuch filiate as to be al-
lowed to grant for Life to another ; but when a Copyholder in Fee furrenders to the \Jh of another
tor Life, he is in Quafi by the Copyholder ; this is againft Ld. Colce, and, as it feems, againft Reafon,
lor the Lord is but an Inftrument to convey, therefore he is compellable to grant according to the
Sur-
8o Copyhold.
Surrender, and no Charge by Him, while it is in his Hands, fhall be of afiy Force; and be that fur-
rendered fhall pay the Services, and tlie Words of C'oke are general, that he fhall be in hv the Copv-
hoider in Admittances upon Surrender ; yet Coke f:iys in another Pljce, that by Surrender to the
Lord out of Court the Eftatepalleth to the Lord under a fecret Condition, rhat it be prefented at next
Court; but it hath been adjudged fince, that by Surrender to the Lord by the Hand.s of two Tenants
notliing paiTed, but the Intercft remained in him that made the Surrender^ and there can be no Diffe-
rence where the Lord takes himleU by the Hands ot two Tenant^, and if it be in the Lord, how cati
the Copyholder pay the Services, or take the Profits after Surrender, or make another Surrender ?
iTut'ter^°" [D. b] /rbnt: Perfo^js may e?iUr before Admittance, and
(N)inFoi. /j(5,^ they iliall \>q je'tjcd oi it, and in what Manner it
fhall dejcend.
Mich. z% I. /n©. 4 'Braini! 22. b. rcfottjcli, tijat if a cuffctniarp €ffatc of
& ;i Eh/.. ^ jnljcntancc ticfcentijj to ttjc Heir ije may before iviDuiittiincg
Refblulion! ^^^^'. ^"11 tilltC tljC li)i:0fit5.
— Adjudged
accordingly, and that he may bring Trefpafs before Admittance. 4 Rep. 25. b. pi. '7. Trin. 2') Elli/,.
B. R. the ift. Rcfolution in Cafe of Clarke v. Pennyfeatlier 'Noy. i-yZ. Simpfon v. Gibliar.
S. P Arg. and the better Opinion of the Court fcem'd to be fo Lane io. Palch 4 Jac. in the
Exchequer, S. P. admitted by all the Barons.
Mo. 12^ pi. 2. Co. 4. "Brotune 22. [b,] at»)ii0n;ct!, rl}at tt)cre n)an be sPoffeffio
i ;2. Rot. Fratris bcfotc SlQmittance.
ti20. 1 rin.
i; Eliz,. Anon, feems to be S. C. the Copyliolder had granted a Lcafe for 12 Years by Licence rend-
ring Rent, and died, le.iving a Son of two Months old and aDaughter by one Venter, and aDaughter by
another Venter. The Death of the Father wa^ prefented, and that the Son is Heir, and his Age. Af-
terwards the Son, (^ before any Rent Day incurred, or any Admittance to the Copyhold, for any
Guardian afTign'd) died. Adjudg'd that the eldelt * Daughter is fole Heir, and that the Defcenc
of the Reverlion upon the Leafe for Years before Day of Payment of the Rent is PofTeffio Fratris
quae facit fororem elTe Hsredem.^Co. Comp. Cop. 55, S. 4 i. S P. and cites S. C. But // the Leafe
had bien determined living the Son by the frfl renter, and afterivardi he had died before any aBual Entry
made, the Law would have fallen out otherwife, becaule tliere wa.s a Time when he might have
lawfully entred. 4 Rep. 21. pi. i. Browne's Cafe fays, that the Copyholder had lllue a Son
and a Daughter by one Venter, and a Son by another Venter, and died, and then the eldeft Son
died before Admittance, and adjudg'd that the Land fliall dcfcend to the Daughter of the whole
Blood. [And it feems that the Cafe in Moor as above i.s mil printed in the Hating of it,] •
Co. Comp. Cop. 51. S. 41. and Supplement 71. S. 2. cites S. C. according to 4 Rep. ut lupra.
* The Poflcflion ot the Termor Ihall be the PolTcfTion of the Heir. D 2yi. b. Marg. pi. (Sy.
cites it as adjudg'd 25 Eli?,. Rot. 1229, Holmes v. Facie.
In what 3D. 12 €U 291. 69. accorbinclp bp ttoo 3tif?ice£ii iinti tijece alfo it
^'iTh'T ^ inais ijem bptUJO Jutticesij tljat iutjere, aftec tijc Dcatlj of tije Jfattjer,
PofTeffio tt]e COppljOlD delcends to the Son, witliin Age, flUD ttjC Cuttody ol the
Fratris. See Land is committed to his Mother bv the Lord QUUmg; \)l^ I^OUajjr,
more at \jj\)Q CntetlS, anU aftCC tl)e son dies before any Admittance, pet ttjijS
[C. e] Infra. Pojjeiiion ot tIjC Q^OtljCt", a^ Guardian, gives the actual Polieliion to the
Son, and therelore l}ifi Siller of the half Blood cannot be Heir to
him.
Supplement 4. R, B. furrender'd to theUfe of himfclf and his M. Wife without
to Co. Comp ijnntiiigaiiy hfate^ il the Lord make Admittance to M. and R. and to
Cop. 72^ S.^ the Heirs of R, this is but an Admittance to them ior their Lives, the
for after the Rcverlion over to R. B. and the Reverlion doth not remain in the Lord,
Admittance the Surrei'der into his Hands is general. 4 Rep, 29. b, pi. 18 the third
tticy are in Rclblution in Cale of Bunting v. LepingucU.
him who
nude the Surrender, and not by tfic Lord.
Copyhold. 8 1
5. Copyholder in Fee having IJftte tivo Sons^ R. and T". fiirrendred his Cro. E. 690.
Lands to the life of R. for Life, and afterwards to the Ufe ofT. in Fee, both P'- .' \
the Sons 'T. bcvjg inithin Age, fiirrendred the Lands to the life of IV. in Fee, Fonipan "'
v:hn was admitted. R. and 7t died, but 7! left Iffne A. who was admitted, S. C. adjudg-
and entred upon W. the Surrenderee ; and it was adjudged lawful, and e^l the En-
that he fliould not be put to his Plaint in the Nature of a Dum fuit in-l''y '^wf"';
fra ^tatem. Le. 95- pl- 124- Hill. 30 Elii. B R. Knight v. ¥ooi.,^^lJ^'^-
man. but a Con -
veyance by
Matter of Faa and no Higher and may bring Trefpars before Admittance.
6. ThiTitgh the Heir be not admitted, yet he may enter and take the It wasad-
Pro/its, and ?nake a Leafe according to the Cuftom, or bring an Aftion '"'"ed by
ol Irefyafs againft him thatdifturbs him ; but if the Lord require his^^,^' thatTf
Fine or his Services, and the Heir refuf'ed to do them, this may be aaCo'pyhol-
Forjetture of his Copyhold, but until lawful Seijin made by the Lord >ier Curren-
(becaufe it belongeth to him) the Heir may intermeddle with the Pof- ^^^' '° ^^^
leliion, albeit he be not admitted by the Lord where it is an Eftate ofyoun°erS
Inheritance by the Cuftom. Poph. 39. Hill. 36 Eliz. B. R. Bullock v, and die's, °"
Dibley. this younger
Son cannot
brinp; an Aftion til! Admittance ; but if the Copyholder had defcended to the Heir he might have
an Aftion before Admittance. Lane 20. Palch. 4 Jac. in the Exchequer, Anon.
7. A Copvhold was granted to A. and his Wife and their Heirs. A. Cro E. 90.
dies. The Uile dies. The Lord admits a Stranger. The Heir of the Knight v
Wite enters and brought 'Trefpafs againft the Stranger, and held good s°p'^^"-
without Admijfion. iSoy. 172. Simfon v. Gillion. Buis zi6.
cites 4 Rep.
25. b. Penny feather.
8. If Copyholder furrenders to B. and the Steward will not admit him. Supplement
and B. enters and Occupies the Land, and the Lord brings Ejeifment, [? ^°- Comp.
B. though not admitted, may plead Not Guilty, and Ihall have a Ver- ^^ci'Js' S^C
diO:, Qusere Rationem, tor in relpe£l of the Pofleffion it feems the that it ftiail
Lord's Title is eldeft ; for his Title to the Freehold is good and law- be found
lul, and confequently to the Profits of the Freehold, unlefe another can ^^^'"^^'^^
make Title to the Profits which in this Cafe fcems difficult without ^n^^^^ ^^^'-^
Admittance. Qugere if the Realbn is not that the Lord is Particeps Cri- Particeps
minis fuppofing him not to futter the Steward to admit B. Yelv. 16. Criminis,
JVlich. 44 & 45 Eliz. B. R. Arnold v. George. ^""I"^^ "
^T ^•' ° fhall be in-
tend that the Lord would not fuffer the Steward to admit him. [And Lord Coke makes no Qnaire
of it] Gilb. Treat, of Ten. 275. cites S C. and takes Notice of a Nota there, viz. that the
Surrender was but of a Copyhold to him, & tribus Aflignatis fuis, fo that by his Death thcEftate
in the Copyhold determined &c. This is a very flrange Report, for the C^ires and Reafons of the
Cafe confound it, and the Lord Ch. Baron fays, it feems to me, that the Realbn of the Cafe was,
becaufe that after the Surrender the Eftate continued in the Snrrenderor, and not in the Lord ; and
fo the Pofleflion of the Surrenderee was illegal againft the Surrenderor; yet it was good againfl e-
very Body elfe, and fo againft the Lords Leflee ; for when the Lord refufes to admit, the way is to
compel him in Chancery, and no Aftion upon the Cafe lies againft the Lord for Non Admittance.
'Ti.s faid in Lex Cuft. 1 58. that an Aftion lies for the Surrenderor 5 fed qusre ; indeed the Reafon
given was, becaufe the Surrenderee hath no Intcreft which the Surrenderor hath.— The Lord
of a Manor has thit Prerogative in his Copyholds, that no Starger can be his Tenant thereof, with-
out his fpecial Aflent, and AdmiflTion, and ibr that Caufe a Copyhold pall not be liable to ar.y Execu-
i'wnt of Statutes or Recognizances, neither pall be .^ffets in Debt or Formedon, neither is contained in
any of the Statutes aforenamed ; for if it were, then (liould the Lord he forced to have a Copyhol-
der whether he will or no, which is againft the Niiture of a Copyhold ; and therefore a Stranger
can never enter tho' a Surrender mjde to his life be accepted, except he be admitted Tenant, but
ttheruife of the Heir, for he may enter and take the Profits before the Admittance after the De<ith
of his Father. Cahh Reading, 61, 61.
Y 9. Lord
8 2 Copybold.
Supplement ^. Lord of a Manor fcifes a Copyhold without Catife, and grants it to
t^CoComp. ^_ j. j„ p^e_ J. S. died ieifed, and his Heir is admitted. The firft
cites s'c. '" Copyholder dies, and his Heir enters and furrenders to the Ufe of a
Stranger. Refolved, that a Dejcent of a Copyhold llian't take away
the Entry of another Copyholder that has Right, and that the Heir en-
tering without jidmittance his Entry is lawful, and being in, his Sur-
render is good before Admittance. Cro. J. 36. pi. 10. Trin. 2 Jac. B.
R. Joyner v. Lambert.
10. Thcfe Admittances upon Surrender differ from Admittances upon
Defcents in this, that in Admittances upon Surrender nothing is veiled
in the Grantee before Admittance, no more than in the voluntary Ad-
mittances 5 but in Admittances upon Defcents the Heir is Tenant by
Copy immediately upon the Death of his Anceftor, not to all Intents
and Purpofes, for perhaps he cannot be fworn of the Homage before, neither
can he maintain a Plaint in the Nature of an Affife in the Lord's Court before^
becaufe till then he is not compleat Tenant to the Lord, no firther torth
than the Lord pleafes to allow him ibr his Tenant. Co. Comp. Cop.
53. S. 41.
11. And therefore if there be Grandfather, Father, and Son, and the
Grandfather is adtnitted, and dies, and the Father enters, and dies before
Admittance, the Son pall hai^e a Plaint in the Nature of a JVrit of Aiel,
and not an AJJtfe of Mortdancejler ; fo that to all Intents and Purpofes the
Heir, till Admittance, is not compleat Tenant, yet to moll Intents,
efpecially as to Strangers, the Law takes Notice of him as of a perfe£t
Tenant of the Land inllantly upon the Death of his Anceilor, for he
may enter into the Land before Admittance, take the P refits, punijh any
Tr-efpafs done upon the Ground, furrender into the Hands of the Lord to
whofe Ufe he pleafes, fatisfying the Lord his Fine due upon the Def-
cent, and by Elloppel he may prejudice himfeii of his Inheritance. Co.
Comp. Cop. 53. S. 41.
? Le. 527. 12. The Heir may recover in Ejcffment upon his Anceilor 's Ad-
in Cafe of mittancc. Vern. R. 392. pi. 364. Hill. 1685'. in Cafe of Dancer v.
Glover v. g^^^^^
Cope
Lc. 100. -r. «
Rumney v. Eve. N. Ch. R. 107. Arg.
This it! Roll
is Letter (X) [E. b] /fkat lliall be faid ^;; yld^ittame.
in Fol. 505.
*Cro. E. !• Tif a Copyholder in Fee furrenders to the Ufe of another^ and aftCC
594. pi- ^^ X ^^ another Court Ceiluy a que Ufe t\}C ©UrrcnUcr Uia0, furren-
,9 Elil ^^rs the Land to the Ufe of another, tW fljal! ElUirC 00 an ^timit'
B R. Gyp- tancE upon tlje ficft giurcentiet;, ana aftcc asi a gmtrenoec -, tot by
pin V. Bun- the Acceptance of the Surrender he is admitted to be Tenant. SI)!!^'
rhJ's.tSn- f^f"^*' 38, 39 €Il?. 05. E. bettDCen * Keping and Bunning, J^aftfj, 41
der m th^" €!(> 15. E. ftt t Calcljin'gi Care.
Ca(c was
made by a Remainderman in Fee, where the Tenant for Life had been admitted ; and Popham faid,
that Tenant for Lite and he in Remainder have but one Eftate in Law, and therefore the Admittance
of the one fhall fcrve for the other ; to which Fenncr J. agreed; but becjufc the other Juftices were
abfentitwasadpurnM Mo. 465._ pi. 658. Tiping v. Bunninj;, S C. adjudg'd, that the .\dmit-
tarice of Tenant for Life is the Admittance of him in Remainder Gouldvb 95 pi. 9. S. C &
S. P. arpued S P rcfolv"d. Mo. 558. pj, 488. Trin. 36 Elii. Deli v Higden, -See (P h)
pi I and the Notes there.
■| Cro. E, 662 pi. 1 1. S. C. but S. P. docs not appear.
Copyhold. 8 3
3!f cl Copyholder furrenders to the Ufe oi
fays, tliat by the fame_ Reafon that the Acceptance of a Surrender before Admittance amounts to an
Admittance, the Admittance of (uch a Surenderee's Surrenderee is a good Admittance of the firttSur
j-enderee See [B. b. 2] pi. 3. S. C. and the Notes there.
. S. Brownl. 14}
to S C ^<^-
3. It nSmrcfider be of a Copyhold to J. S. and hefore Admittance J
Mb fnrrmder the Land toV/.R. who is admitted^ yet nothing pafi'eth Lu
\V . R. by this Admittance. Refolv'd ; For J. S. had nothing, and the f^F^' ''"'
Admittance ol VV. R. Ihail not be taken by Implication to be the Ad- beonTy a
iiiittanceolhinifeli. Yelv^ 145. Mich. 6 Jac. B. R. VVilfon v. Wed-Tranffation
dall. of Yelv.
Plement to Co. Comp Cop. 70 S. 4. cites S C. Gilh Treat ofTen. 259. cite. S. cT^TcordinK-
r*^' Th Copyholder furrenders his Efate tothe Ufe of J. S ivho furre.ders the f.„,e to 7 iV and the
Lord admits ^ N. this is good, for the Acceptance of the Surrender of J. S is in Uvarf Admittance
t c ntn "^^ Ba|J-, ' ^^''-M't ''%'• 'tJT- -Cafeof£ll<in\,Waftell ^utDod dge
J. contra. 3 Buls. 237. &c. Mich. 14 Jac. Eawlmlon v- Greaves, S, P. dubitatur.
^f "i^'^^a ^^"^ ■^'"" °^ ^ Copyholder is to be admitted, the Words
Admjjuseft are only ufed, and not the Words Domimis concefftt, which
Jaltare the ^^^ords oi Grant of the Lord ufed upon every Surrender, and
the Reafon is, becaufe the Anceftor of the Heir had the Copyhold E-
ftate belore. Arg. 3 Bulf. 216. Mich. 14 Jac. in Cafe of Rofvvell v.
VV eJln.
5. A CopyhoIder/«nvW>W oat of Court ^ according to the Cuftom of 3 Bulft. i;-.
the Manor, which at the next Court was prefented, and Entry thereof made ^- ^- ^uns
by the Steward wiz. Compertum ejl per Homagitim Sc but no Admitt.mce ■,^'^f^'\
Mitrw^rdsCeJiuyqne Vfe furrenders before Admittance, and the firll Co! end ed W
pyholder furrenders to the Plaintiff j Haughton Jullice held, that he MediatiL,
could not furrender before Admittance, and the Entry of the Surren- — 5"PPle-
deree doth not make an Admittance, tor this being the fole Aft of the ?^'"' '"r^"'
Steward, fhail not bind the Lord, and it is not like to the ufual Form of S?. cTt
an Admittance for that is, Dat Domino de tine, fecit Fidelitatem &.S°C.' and
Admiliuseft inde tenens. Doderidge J. agreed. Poph. 127, 128. Mich ''^v^'" ^^^
14 Jac. ±5. K. Rawlinfon V. Green. theOpi
cites
.union
of the Court
AccZ^J!ir^''^Tf^^^^'''F'^'^ '"P'''^ P"^=* Admittance to the Copyhold ; for ft Th,
Kn^^nTT f u '*^",™'"' ^/ '^= ^'"^^^'^ f™'" the Homage was no more than what he was
Durv h.L h'.r'' ^^^"^J^-^g^, of the Court, zdly, The Entry of it in the Roll was but an Osfce o
Duty being but an Evidence for the Lord, as alfo for him to whofe Wt the Surrender was and fo
was the Delivery of tiie Copy to J. S. the Ceftuy que Ufe ; but none of thefe Thh,"s did fmulv t£
Confent or 'W ill of the Lord, th.nhe Ceftuy que Ufe fliould be admitted, or have the LandTaccorS
h^Lf\f"'"'?^'\f'^- '" '^''^ Things togelher do not imply any Admittance, for allof them mar-
be done, though no Admittance be in the Cafe. Gilb. Treat of Ten 268 cites S P J^ 7^
the Entry ofCompertum eft per Homagium doth not make an Admittance?ffr thTonly'kews tfc
was a Surrender but implies no Affent to the Surrender; but the Entry of Dat Domino p^ro fine &fe
cit Domino Fidel. & Admif that is the Admittance. It is faid, that in this Cafe, the Surrendef wa",
prefented, and the Surrenderee accepted, and a Copy granted him, and he furrendered a Ain and Tw
Surrender was prefcnted, and a Copy granted, and he^ccepted as a Copyhold TenantT^f thisVafe no
thing IS laid to berefo ved, but the Court faid, that he to whofe Ufe the Surrender is made had n«^
hu'^ if tm r' ^^TT^^'r' ^"' ''^^y ^^'■'^ "°"^'"S '° '^' P°i"^ whether he were adm^ t^' o t"
buti feem,s that in that Cafe theve is a very good Admittance, for he was accepted as T^nL and i
fliould think It was that made him Tenant, and not the Entry of it in the Roll. '
J'-^'"Pfl"€R"'t^y the Lord of one to whofe V{^ a Surrender is Sty ,45
made «j oj hu fTenant belore any Prefentment of the Surrender at the S P. by
next Court, this will veft the Eftate in the Surrenderee: but if the Lord ^o" Ch 7.
accepts the Rent as a Duty generally it is otherwife. Godb. 269. pi. 3 7 . . 7"." " '''=
Mich. 14 Jac. C. B. Frofwell v. Wellh ^'^"^ '■^-
"• ceivcs Rent,
Fwc before Admittance, a.^re if this will not amount to an Admittance. . i Mod. 70 p[ 'f " "
7. Though
g^ Copyhold.
7. Thongh the ajl'tjing a Fuie be no Admittance, yet if the Steward
accepts a Fine of him fo ajjefs'd^ as of a Copyholder, this a good Admittance
of him; Arg. 3 Bultl. 239. Mich. 14 Jac.
SP per S, If the Lord/2?;r^ to the Copyholder you have furrendered to the
Haughton J. Ufe of A. to which Surrender I agrce^ this is good, and lliall make him
inCaieof tQ i^e a good Copyholder, per Haughton, to which the Court agreed,
win 3 E^i^'^- 2 '9- ^^'ch.' 14 Jac. in Cafe ot Role well v. Wellh.
n, HnX&li.-'i. 9 If a Copyholder //«T67irt't;r.f his Eftate totheUfeofJ. D undthe
Wich. 14 Lord meeting with himfdith fiich a Surrender is made to your Ufe^ to which
Jac- I do agree, or am content therewith^ and that you Jh all be my 'tenant, thefe
Sayings ihall amount unto good Admictances, and ftiall malce him to
be a "good Copyholder without any other Admittance, per tot. Cur,
3 Buht. 232. Mich. 14 Jac. in Cafe of Elkin v. Waltell.
10. Winch faid, xh'ix. zhz yldmtttance oi the Lord, vii. the Leffce of
the Manor, amounts to a Grant to him who had a Title^ but it is othewife if
It is to him ivho was in by Wrong, as by Dijfcifin, cites 4 Rep. 22. which
was granted by all the Court. Win. 67. Pafch. 21 jac. C. B. in Cafe
of fJallet V. Hanfon.
11. If a Surrender be to the life of J. S. and afterwards J. N'. is ad-
wilted, the Confcnt of J. S. afterwards makes this a good Admittance;
Per Glyn Ch. J. 2 Sid. 61. Hill. 1657.
iVcrn. T20. 12. A. furchafes a Copyhold in his own, his Wife, and Daughter'' s
5} '"^BMl^ A^a;wj, and afterwards /wn-fWrt'^ri it for the fecuring a Debt to J. S. J. S.
hn.u'ht hy is not intitled to any Part of the Lands, it being an Advancement for
] s"3gai,ift the \\\k and Daughter, and the Husband and Wife taking one Moiety
He Wife thereof by Intireties. Chan. Free. i. Hill. 1689. J3ack v. An-
and p.iugh- j^g^g_
(( 1- aftef the
huiband's Death was difmifled, but without Cofts.,
1 3. Admittance by Virtue of a forged Letter of Attorney in the Name of
a Copyholder to furrender a Copyhold to the Ufe of f. S. and the Attorney
furrenders accordingly, whereupon J S. is admitted, is a void Admit-
tance; Per Macclesfield C. 2 Wms's. Rep. 77, 78. Trin. 1722. in Cafe
of Hildyard v. S. S. Company and Keate,
is Letter [F. b] ^fldat fhall be faid mi Admittance according to
ioi. '503. (i Surrender^
[Or rather, How the Lord is confider'd as to his Power
of admitting, and where the Admiilion is dilierent
from the Surrender, How it fhould operate.]
S. p. and he I. HP]^^ Lord is but an Tnftrument tO flliniit CClflip ClUC HfC ; FOC
that is ad- X no mote pafleg to tlje LociJ tdnn to rciue tl)c limitation of
Th.fi,h t!)CHre; ann Cettiip que «fe \M\\ Oe iss aDniitteD fljall be in bp
jeclto the" t)im tijat mane tlje ©urrcnoet, ano not bp tljelotn. Co. lit,
Chai-ges of 59* U*
the Lord.
4 Rep. a-, b. in pi. 15. cites it as adjudged Hill 35 Eliz. C. B. in Cufe of Taverncr v. Ciomwell.
2. 3f a 99an furrenders to the Ufe of T. S. .-ind J. D. for their Lives,
tljC Remainder over to another, anU J. S, and J.' D, are admitted in
Fe'e,
Copyhold. 85
Fee, pCttljijJ fljali not ilttCt tljeiC Cftate, but thev- lluU be leifed ac- Roll Rep.
cording to the Surrender, ^p HepOCtSS, 14 J\a, Lane and Panml aO' ^^8; P'- 9-
Ibid. 3(7.
pi. 2B. S. C. adjornatur. Ibid. 4;8. pi. v S. C. adjudged per tot. Car _ Gilb. Treat, of Ten:
250. cires S. C. and makes large Obftrvatioiis thereupon, which fee there. '
3. If J. furreniier to the Ufe of J. S. for Life^ and the Lords admits The Lord
him in Fee, an Eftace lor Life only paffes. Co. Comp. Cop. 53. s. "^^^'^ °"'y
41. cites 4 Rep. 29. Bunting v. LepingvveJl. PowerT^
4. So if J. f-trroider ivuhotit meiitionuig any certain EJfate, becaufe made Ad-
bv Implication of the Law EJiate for Life only Pajfcs, tho' the Zor^^ mi trances ac-
fjmits in Fee, no more does pafs than the Imph'cation ot . Law will c^fding to
warrant. Co. Comp. Cop. 53. S. 41. cites 4 Rep. 29. Bunting v, ^^^ amlfo*
Lepingwell. far a, he
5. It ]. firreiidcr with the Refervation of a Rent, and the Lord admits, executes
ftot referi)if!g any Renty or referving a kfs Rent than J referved upon the ^|^^' F?^^^
Surrender, this Admittance is wholly void. Co. Comp. 53. S 41. l^^^^ ■^^^~
cites 4 Rep. 29. Bunting v. Lepingwell. good • but
6. But tj the Lord rcfer-ves a greater Rent, then the Refervation /j where he
"jotd only for the Stirplafage, and the Admittance fo far current as i^ go" beyond
agrees with my Surrender. Co. Comp. Cop. 53. S. 41. cites 4 he'^^afts"'^'^
Rep. Bunting v. Lepingwell. without a
Warrant,
and it is void; Bu" \f r\\c Surrender be nbfohite, and tie Jdmittance conditional, t\\z Admittance is
}!;ood, and the Condition is void ; If ihc Surrender ht conditional, and the Admittance ahfolute, that is
void; \{ ihc Surretiiler he to the [^fe of J. S. and the Lord admits J. N this is void, and he may af-
terivards admit J. S. If he admits J. S. and a Stranger, J. S. takes all, for the Stranger's Admittance
is void. The Realbn of thefe Diverfities are, becaufe v.'hen the Lord Afts contrary to his War-
rant or Power, his Att.s are void, but when he Acts according to his Power is one Thing, but be-
jond it in another, for what he adls according to his Power he hath a Warrant, but tor what he
acts beyond he hath no Warrants, and fo it is void. Gilb. Treat of Ten. iSo, iSi.
7. If J. ftirrender upon Condition, and the Lord omits the Condition,
the Admittance is wholly void ; But if my Surrender be ahfolute, and
the Lord's Admittance be conditional, the Condition is void, but the Ad-
mittance m zW Joints &\k IS good. Co. Comp. Cop. 53. S. 41. cites
4 Rep. 25. Kite v. Queinton.
8. A. W. furrenders to the Ufe of W. W. and his Heirs ; the Steward
admts W. TV. and Joan his \V'//f, and their Heirs. The Lord here
by the Cuftom has but a cuilomary Power to make an Admittance
Secundum Formam & Efletlum furium-redditionis, and this is not like
the Cafe of Feolfees at the Common Law, and tho' the Lord grant
the Eftate to another, all this is without Warrant, notwithftanding
the Lord may make an Admittance according to the Surrender.
4 Rep 28. b pi. 17. Trin. 33. Eliz. B, R. Weftwick v. VVyer.
9. So if a Surrender be to the Ufe vf one for Life, and the Zor^ admits
him to have and to hold to him and his Heirs, yet he who is admitted
has but an Eftate tor Life, and in the Cafe above, the Admittance Ihall
enure only to the Baron, without an Efpecial Cuitom, or other fpecial
Matter, which is not in this Cafe. 4 Rep. 28. b. pi. 17. Trin. 33 Eliz.
B. R. Weftwick v. Wyer.
10 If a Copy holder /?«Tf»^frj- ro the Ufe of J. S. and the Zor^ after Supplement
fuch Surrender grants the Land to Cefiy que Ufe and a Stranger, all Ihall toCo. Cowp.
enure to Cefty que Ufe. 4 Rep. 28." b. Trin. 33 Eliz. B. R. Weft- J,°PiJ,'s^C-
wick V. Wyer.
II. 'The Reajcn of thefe Diverfities are thefe i where an Authority is
given to any one to execute any Aft, and he executes it contrary to the
Effect of his Authority, this is utterly void ; But if he executes his
AuchoriiVj and withal goes beyond the Limits of his Warrant, this is
2i void ;
86 Copyhold.
h,'
•void for that part only wherein he exceeds his Authority. Co. Comp,
Cop. 53- S. 41.
If the Copy- 12. Where the Lord admits in another Manner than the Surrender ap-^
holder Sur- poi„ts 'cis void. Brownl. 127. Hill. 5 Jac. in Cafe ot Allen v. Nalh.
Lands ivithout a Condition, and the Lord admits the Tenant u^on a Condition, the Condition is void ;
For that after the Admittance the Surrenderee is in by him that made the Surrender, and not by
the Lord. Supplement to Co. Comp Cop. 71. S,6. cites 4 Rep. 32 £Iiz.. Weltwick's Cafe.
13. Copyholder that comes in 'voluntary Grant ftiall not be fubjefl
to the Charges or Incumbrances of the Lord betbre the Grant. 8,
Rep. 63. b. Mich. 6. Jac, in Swayne's Cafe.
14. A Copyholder Jiirrenders to the Ufe of B. and his Heirs. The
Steward admits hitn to him^ and the Heirs 0/ his Body. Nocwithllanding
this Admittance the Ellate Ihall be to him and his Heirs according
to the Surrender i per Mountague Ch. J. 3 Eullt. 240. Mich. 14
Jac.
15. The Lord of a Copyholder is only an Inllrument to admit the
Copyholder, and ought to admit him according to the Surrender, or other-
wile the Admittance is not good. Sty. 462. Mich. 1655. ^- ^'
Hether v. Bowman.
GilS. Treat, jg, l{ 2. furrender he to the Ufe of J. S. and J. N. is admitted, and
f>iTcn.z69. J ^ confents, this is a good Admittance ^ per Glin Ch. J. 2 Sid. 61.
bm fays' ^'^^- ^ 65 7- in Cafe of Blunt v. Clark.
Qu.£re of 17. It leems that the Prefentment oi a Surrender in Court is only
this. ly isoay of Injiru^ion to let the Lord know of the Surrender, and according-
ly he may admit, lor it is apparent that a Prefentment is not of Necef-
fity, becaufe the Lord may admit out of Court, and any Jcf of the
Lord's coufenting to the Surrender will atnount to an Admittance, which
plainly Ihcws that a Prefentment is only to Ihew there was fuch a Sur-
render ; for if it were of Neceffity, then there could be no Admit-
tance out of Court, nor any A61 implying the Lord's Confent would
be tantamount to an Admittance ; and then if we go to the Reafon of
the Thing, fince the Eltate is only to be furrendered to the Lord,
and by him transferred to the Surrenderee, if he accept the Surrender,
and grants an Admittance, which is ail that can be done, what need is
there of a Prefentment, and of what Ufe can it be, for the Homage
to prefent a Surrender, in order for the Lord's Admittance, when the
Lord may take Notice that there was luch a Surrender, accept it, and
admit accordingly ? The Eftate, as it was derived from the Lord, fo
it muft be furrendred to him, and the Prefentment makes no Part ei-
ther of the Surrender or Admittance j in icfelf it is nothing but a
Notification that there was fuch a Surrender, which if the Lord takes
Notice of without a Prefentment, it fruftrates the End of a Prefent-
ment, and the Prefentment is no ways of Ufe j therefore it feems, that
if a Surrender be made, and then a wrong Prefentment be made of
this Surrender, and then Admittance is made according to the Sur-
render, that this is good ; for only the Prefentment can be void, and
then there is an Admittance upon a Surrender without any Prefent-
ment, which for the Reafons before feems to be very gocd. Gilb.
Treat, of Ten. 262, 263.
(G. b)
Copyhold. 8'
(G. b) In what Cafes an Admittance is Necellary. And per U. "*
the Efle6i: thereof.
I. Tp\ k Copyholder having a Son about Jive Tears oldy fttrrendred ^^'^^- '^^^^'^'
\_J* &c. that the Lord might grant de novo to the Ufe of himfelf for °[te^s"'c —
Lije, and afterwards to the Ufe of his JVife, during the Nonage of his Son, ibid. 516.
and afterwards to his Son tn Tail. D. foon after died, before he was ad- cites S. C,
mitted but his Widow was admitted accordingly, and married again. Ic
was held, that xht fecondHusband jhould have the Lands during the Infancy
of the Son, and need not be admitted^ for he is not in of any new Eftate buc
in the Eltace of his Wife as Allignee, 3 Le. 9. pi, 22, 7 Eliz, C. B.
Dedicot's Cafe.
2. If a Copyholder furrendcrs to theUfe of another for Tears, and the '^,'"^,\/'&'
Le£ie dies, his Executors ihall have the Relidue of the Term without any cites's. C.''^
Admittance; Arg. Le. 4. pi. 8. cites it as adjudg'd, 8 Eliz. C. B.
3. Where a cvjiomary KJlate defends to the Heir he may enter before
Admittance and take the Profits, and he may furrender to the Uf'e of ano-
ther before Adniittance, but not to prejudice the Lord of his Fine due by the
Cuftom upon the Defcent. Refolv'd. 4 Rep. 22 b. Mich. 23 & 24 Eliz.
C. B. the 3d Refolution in Browne's Cafe.
4. Lord of a Manor of which Bl. Acre is held by B. by Copy in Fee, '^^^'X'\\-
according to the Cullom, made Feoffment of Bl. Acre to J. S. The Co- Beaie^v.
pyholder dies. Though J. S. has not any Court, fo that the Heir can- Langley
not be admitted, nor the Death of his Anceftor prefented, becaufe hut^-^
one 'tenant, yet per Cur. the Copy Ihall bind J. S. and the Ceremony of
Admittance is not necefTary in this Cafe. 4 Le. 230. pi. 364. Mich. 29
Eliz. C. B. Bell V. Langley.
5. Surrender is but a Conveyance by Matter of Faft and no higher;
fo that if an Infant Copyholder furrenders and dies, his Heir may enter
and bring Trefpafs before Admittance. Cro. E. 90. pi. 17. Hill. 30 Eliz.
B. R. Knight v. Fortipan.
6. It the Death of the Ancejlor be not prefented, nor Proclamation made,
the Heir is at no Mifchief, though he comes not to be admitted, not-
withftanding his being of full Age. Le. ioo.pl. 128. Pafch. 30 Eliz. B.
R. in Cafe of Rumney v. Eve.
7. If a Copyholder dies, his Heir within Age, he is not bound to ^ Le. 20 p5.
come to any Court during his Nonage to pray Admittance. 3 Le. 221. 84. s! c. in
pi. 294. Palch. 30 Eliz. B. R. Anderfon v. Hayward. totidem Ver-
8. It the Death of the Ancejlor be not prefented, nor Proclamation made, ^"'
the Heir is not at any Mifchief if he does not come in and pray Admit- ^ ^5 ^°- .P'-'
tance, altho'he be of full Age, 3 Le. 221. pi. 294. Pafch. 30 Eliz. B. totidem Ver-
R. Anderfon v. Hayward. bis.
9. Cejiy a que Ufe ihall not enter nor have A£iion before Admittance, Gilb. Treat.
unlefs there be afpecial Cujlom for it. But till his Admittance the Surren- of Ten.
deror may have A £1 ion of Trefpafs againll any who enters. Cro, E. 349. s'c "sup
pi. 2j. Mich. 36 & 37 Eliz. B. R. Berry v. Green. plement to
Co. Comp.
Cop. %z. S. 6. S. P. as to the Entry cites S. C.
10. A Surrender of a Copyhold was to A. £? trihus Afftgnatis fuis ; by
the Death of A. the Eftate in the Copyhold was determined, and he to
whom the Surrender was intended had nothing in Intereft, nor other-
wife by Courfe of the Law before Admittance. Yelv. 16. Mich. 44
S.<. 45 Eliz. B. R. in a Kota there, at the End of the Cafe of Arnold v.
George.
II. If
88 Copyhold
" II. it a L'.opyiiolder will ftirrender to the L/je of the Lurd^ the Incerell
bt the Copyhold is fufficienrly velkd in the Lord immediately upon the
Surrender, without any Admittance ol the Lord, becaufe the Lord can-
not admit himfelf. Co Comp. Cop. 51. S.^ 38.
12. It the Lord will make a vdiintary Grant of a Copyhold no Surren-
der is requiilte, for by the Admittance of the Lord according to ths
Caltom t"ne Copyholder is fufficiently fettled in his Land without any-
other Ceremony. Co. Comp. Cop. 51. S. 38.
" 13. If a Copyholder will farreitder in Court to the Ufe of a Stranger,
befidesthe Surrender the Admittance is requilite ; and it the Surrender
be made otit of Court into the Hands of the Lord himfelf, which the gene-
ral Cuilom will warrant, or into the Hands of the Bailiff, or two Te-
nants of the Manor which by fpecial Cuftom only is warrantable j be-
fjdes a Surrender, two other Ceremonies are requifite, the one a true
Prefentment of the Surrender in Court by the lame Perfons into whofe
Hands the Surrender was made, the other is an Admittance of the Lord
according to the EfFeft and Tenor both of the Surrender and PrcfenL-
ment. Co. Comp. Cop J I. S. 38.
14. If the F.fiats of the Lord dctcrmifies after the Siirrtuder of a Copy-
hold, hiforc an Admittance, yet the Surrenderee ihall be admitted ; So
if a Ma.n furrenders to theUfe of his lajl Will out oj Court according to the
Cuftom, and dies kfore Prefentment, yet at the next Court the Devi iee
ought to be admitted. Co. Litt. 59. b.
Nov ip.Hill. i^_ If a Woman intitkd to Frank-Bank comes into Court, and prays her
T 5 Jac. C. B. ^^- y „j,,>^ jfjfate, and pc is denied the fame, Warburton and flutton
and" c'oie°" thought the Law would fiipply the Admittance which was refus'd to be
s. r.adjudg- inade to her on her Prayer. Hob. 181. pi. 218. in Cafe of Howard v.
«d' Bartlet.
16. The Lord may avoiv upon the Heir for Rents and Services before Ad-
tnittance, but he is not compleat Tenant before Admittance, for he can-
not maintain a Plaint in Nature of an Alfife before Admittance, but it
feems he may have Aliife of Mortdanceilor upon his Anceftor's Admit-
tance. Gilb. Treat, of Ten. 271.
S. P. But if 17. Two Jointenants, the one dieth, the other fhall have all by Sur-
a Copyhol- vivor, without paying a Fine, or being admitted. Gilb. Treat, of
der having ^ g
and tliey a're admitted, and then the one of them dies, the other muft ne;ds be admitted for the o-
iher Moiety, for Ihe takes the fame by Delcent. Calth. Reading. ($4.
18. It was ruled by Holt Ch. J. at Brentwood Summer AfTizes, 10
Will. 3. upon Evidence at Nili Prius, that if Copyhold Land ht fitrren-
dered to the Ufe of a Will &c. and afterwards the Will devifes this Land to
B. and his Heirs^ upon Condition that he pay loo 1. within 6 Months af-
ter the Death of the Devifor to J. S. if the Money ts not paid, J. S. ought
to be admitted, then he mti/l make an a8iial Entry bffore he can ftirrender •
and therefore in the prefent Cafe, a Surrender made by J. S. before ac-
tual Entry was held ill. Ld. Raym. Rep. 726. Clerke v. How.
19. A Copyholder makes a Surrender in Court into the Hands of the
Lord, and theZonf doth afjefs a Fine, this is no Admittance by Implica-
tion. This ftirrender was tn the Ufe of himfelf for Life, then to his Wife for
Lfe, and then to them in tail. Remainder to the Heirs of his Body &c.
no exprefs Admittance was made. The Wife enjoys her Widow's FJiate
by the C:i(lom &c. The eldeji Son and Heir of the 'Body cj the Surrenderor
IS admitted generally as Heir, but not as to the Eftate tail ; then he makes
a Mortgage and dies, leaving Iffue, who ts admitted, and the Mortgagee
recover' d in Ejeclment, for the Son was admitted to the Fce-limple, for
the Eftate in Fee and fame Right remain'd in him till Admitrance upon
che
Copyhold. S^
the Surrender, for this Fee-finiple defcended upon the Death of the Father
to him, as his eldefi Son and Heir ; but had the eldejl Son and Heir been
admitted to the EJiate Tail^ he cotdd not have raade the Mortgage. HiJL
5 Ann. B. R.
(H. b) Where the Lord may inforce a Mortgage-Sur-
renderee to be admitted.
' Orf gage furreader to fecure 700 1. at 6 Month's end was made
_ _ into the Hands of the Lord. The Money not being paid the
Mojcgugee and Mortgagor were both willing the Money Ihould lie,
and dclired the Lord that the Surrender Ihould be taken up, and a nevv
one made lor 6 Month's longer ; but he inlilled^ that the Mortgagee
iLould come in and be admitted, and rcfufed to accept a neia Surrender,
and called Courts, and made Proclamations i but before the third Pro-
clamation the Copyholder brought a Bill againft the Lord, but the
Court would not decree, but to try at 'Law what the Cuftom was.
aVern. 36S. pi. 330. Mich. 1699. Tredvvay v. Fotheriey.
(I. b) In what Cafes a New Admittance muft be.
I. T F a Copyholder he for Tears^ and makes his Executor, and dies, the Gilb. Treat.
_|^ Executor fliall have the Term, and that without any new "l^^'^^"'
Admittance; Per Brown and Dyer Jultices, but Weilon e contra. 3 s'c bu"
Le. 9. pi. 22. 7 Eliz. C. B. in Dedicot's Cafe. faysjthat
the Opinion
feems reafonable ; Foi-_ they continue the Poffeffion of the Teftator, and have it only to his Uie.
2. Copyholder furrendered to the Ufe of A for Life. A. is admitted Cro. E.
and dies; he in Rcverfton may enter without a new Admittance; Per '4^- P'- J'-
Wray. Le. 175. pi. 244. Hill. 31 Eiiz. B. R. in Cafe of Bullen v.|; p_ ,fjj5
tjrant. accordingly.
GilE.*
Treat, of Ten. 151. cites S. C. but adds a Quxre.
3. Where the Lord is to hai)e a Fine there mufl: be a new Admittance. Cro. E. 504,
Mo. 465. pi. 658. Pafch. 39 Eliz. B. R. Tipling v. Bunning. g: ^?^-
Banning S. C. Gouldsb. 95. pi. 9. Kipping's Cafe S. C but S. P. does not clearly appeal
in either of the faid Books.
4. If a Surrender of a Copyhold be made to the Ufe of a Stranger for
Lije, and the Lord makes a Grant thereof to the fame Stranger in Fee,
this Ihall not bind the Heir of the Tenant, but that he may enter after the
Death cf the Grantee, for he took the Land by the Surrender, and not
by the Grant made by the Lord, for the Lord is but an Inltrument of
the Conveyance of the Land ; for if 1 make a Surrender unto the Lord ea
Intentions that he Ihall grant over unto fich a Man^ if the Lurd voill not
grant the fame, / 7nay then re-enter, but the Stranger has no xMeans to
enforce the Lord to grant the fame over unto him, but he may maintain
Trefpafs againft the Lord, if he doth iuiftr me to re-enter, and this is
the Opinion at this Day. Calth. leading 6i.
A A 5. In
QO
'o!3vho[d.
This was, 5. Jn Cafe ot a Relcrc :o n 'I cmut \n ?offt\J\onhy icrongful Titles
a Relca'e x.\i<i\c Deeds no new Grund or Admittance or the Ld. and il the right
in Couvt tenant had b&cn adniicted, the other had been outi Per Civr. 2 Show.
^J^lTllo^l- Pl- 70. Mich. 31 Car. 2. B. R. Stone v. Ex.011.
■ivas ex- .
amined by the Srcward privately. Ibid.
Calthrop's g, A Copyholder may fanendcr to the Ufe of another f;pf?/ Condttm^
Keading6o, ff^^t if the Smraideror pay ftich a Sim oi Motiey at fuch a Da) the Sur-
^^' ^' Yendtr to be void; after the Admittance of fttch Stm-endcrte^ tf the Surren-
deror pay the Money, he may re-enter, and ftali have the Land without
any new Admittance, or any new Fine, for he is in of his old Eltatc i
fo he may lurrender, referving Rent, and that if the Rent be not paid,
he may re-enter, and there no Fine or Admittance is to be had ; but in
Cafe where the Day of Payment of Money by the Surrenderor is pail,
fo that he hath only an Equity of Redemption, there it^feems he
muft pay a Fine, and be re-admitted. Gilb. Treat, of Ten. 259,
260.
jLctter^°" [I. b. a] fVhat Thing may pafs by Admittance.
CT)inFoi. ^Or rather, How much iliall be iaid to pafs by the Sur-
^°'^' render and the EiTe6l of an Admittance, though on
a void Prefentment.]
Ibid. The I. "P\ 8 €1 251. [b, pL] 92. 'ISarnUJClI covenants to afTure all hi^
Beyon fhys |_J • Copyhold Lands tO 21. \\\\Xi nftCC \)t furrenders OUt Of COllCt,
th;K thofe {jf coijjjinfj; to tl)£ CUftOm, divers Parcels by particular Name, tljC Sur-
Words'of render is enrolled accordingly, with a Concluhon, by the Name of all
Per°Nomen his Copvhold Lands there, \f>ZX, DlCt, atltl nl(00, 110 ItlOtC fijnll pafS
of all his i3p it tijau uiljat tDa0 namcQ in tljc S)urrcnlicc.
Lands &c.
vere not really in the Note of the Surrender taken by the Steward, and whetlier more than is
particularly mentioned in the Surrender ihould pafs by its bcinc; fo prelented and enroll'd was much
debated in feveral Courts for 24 Years; Dyer held, that no more ftiould pafs than the Surrendei:
cxprefs'd particularly, and a Decree was made accordingly by the Lord V\'cntv.orth, Lord and
Chancellor of the faid Manor, Unde poftea fe pccniiuit. But neverthelefs, diverte others agreed to
the faid Opinion for Law. Ibid. Winter v. Jeringham. S, C cited Gilb. Treat, of
Ten. 138. 239.
2. €0» 4- "^^tt antl dUintOn 25. 3 ^m\ lei admitted upon a void
Prefentment, yet tCfCliJeD, tfjflt IjC f)atl) a aiftomatj) (EftatC \\\ POf-
fCfTiOn, antl is in by Title, and capable of a Releale fcOUl 1)101 tljat
IjatljtbeKigijt.
2 Roll Rep. 3. Several Copyhold Lands were appertaining to a Mefluage, which
^27. S.C. Aleffuage, cum Perttnentiis, were furrendred to the Lord, and the Sur-
butS. P. renderee was admitted ; all the Court held that it is all one in Cale of
appear. Copyhold and Freehold, and that only the Mefuage, Curtilage, Or-
chards, and Tards, and Garden pa/f'cd by this Surrender. Cro. J. 526,
pl. 2. Pafch. 17 Jac, B. R. SmithJbn v. Cage.
(i- b. 3)
Copyhold. 91
[I. b. 3] Copyhoia. ™;;"e^'
AdwhtcTfjce upon a Surreuder, ^^> '" ^«'-
jy;^ 'zt/^o/;^ It may be.
t. A DnifttiSnCCei lliaOCtit) DifTeifors^ Abators, Intruders, Tenants 4 Kep. 24 a.
/\ at SuJierance, or others thut have delealible Titles, tlCC gaOD ?'• ^i-''^^'^'''
an;amft tijorc tlint fjauc ntttljt, ftccnufE tijis Uia0 a latDfiU act, ano b^r.^^
tljCl> IDCI'C compellable tO 00 it* CO. lit, 5S. I), Cafe ofRous
V. Artois.
, '-M0.ZX6. pi. 5<59. S C and S. P. adjndg'ii, and fo if the Heir before Affignmeiit of Dower
grants and admits to a ("opyhold upon a Surrender thereof, he is only in fuch Cale an Inttrument
of Conveyance by the Surrciider, and does not depart with any Intercft ; Agreed by all the Juf-
ticcs. — —2 Le. 45. pi. 59. S. C -i Rep. 140 b. S. P. accordingly by the Reporter in a
Motaat the End of Ghudleigh's Cafe. S. P. Ar^. 5 BuHf. 215. cites 4 Kep 24. in Cafe of
r.larke V. Pennyteather. Mo. t i 2. S. P. p;r Cur. If a Manor be deviled to -one, and the
Devilce enters and makes Copies, and then the Devife is found void, yet the Copies upon Surrender.'?
ni-ade by luch Devilce are good ; per Popham . Ow. 28. cites 7 £lii.
2. Jf t{jCl)illeifor of a Manor accepts a Surrender of a Copyholder Of
SnljCritnUCe, to the Ufe ofanother and his Heirs, and he admits Celtuy
que Ule accordingly, tljld 10 tXOOD, ailtl fljall biilt! t{)C DllTeiree* \^,
40 C1 15, E. between MarUH anQ Rr^e. pec [tJiipljauu Co. 4. 24.
3- Jf a Cop) holder of Inheritance furrenders to the Diiieifor of the
Manor, ut Dominus inde faciat Voluntatem fuam, nuSi t\)Z Difleifor at
the fame Court rcgrancs it to the Copyholder in Tail, with a Remain-
der in Fee, Of in OLijeC fanner, according to the Intention OftljC
^utrcnucr, it fecniss tljiis fljail binti tijc DilTeircc ; "But qu^re,
4. 3ifa Copyholder tor Life, or in Tail, furrenders to the Difleifor
of the Manor, to the Ufe ofanother for Life, or in Tail, tljtS fljalJ
not iJino tlje Diffcifec, \X 4° ^1> 'B. E* in Jgartin's Cafe*
5. But if A Coppljoliiec foe life fucccnoer^ to tlje DitTetfar ofs. p.4Rep.
t{)e S15anOl*, to the Ufe ofanother for Life of A. anB tl)e DifTCifOC '■'^- ^ ?'• ^■
aomitjj {)im accorBinsip, tW fljaU binn rljc Dilfeifee. SibiDcm*
6. 3if a Coppljoinec oftljeSlnfjcritancersie^, ann t|)i0Dcfceitli0tO4Rep.24.
ijiS fXIl'lS, a Tenant at SuHcrance of the Manor, tljOUgt) Ije ftatt) nO ^- pI,"' "^^^
JalUftll Cffate, may admit the Heir, miH t|)I0 fl)atl ftinO Ijim tljat K in Cafe
l3atl) ElJjljt* Co* 4* 24. 58. b. of Gierke V.
Pennyfefither
S. P for fuch Afb? are within the Cuftom and lawful, et quodam Mode Judicial, and to do which
he may be compell'd in a Court of Equity, and therefoi-c ftall bind him, that has the Right.
% 3]f tlje locD pro €;empore of a Coppljoin ^anot U Leffee for ♦ see (g)
Lite, or fOt Years, Guardian, or other tnat hath a particular Intereft,P'- i^- S. C.
or Tenant at Will of a Manor, ailtl accepts a Surrender, and aftCi: Kore^there
before Admittance the lefleC fOt llfC Die^, Ot tlje ^eat^, Interelt, ^ gee {Q ) '
or CiiHoBp is ended ot neteruu'nctJ, or tlje l©ill U Hetetmineo, ?• 4 s. c.
t J0ug!j tlje nert lor5 comes m paramount tlje leafe for life or ""Ji^ '^e
2ieay0, CufioBv, or otber particuiac Jntereft or 'STenancp at l©tU, ^'" '^^'■*"
pet tje fl)aU Ije compellen to matie iSDmittanceg accocmncr to tlje
(g-ucrenBer. n 3/a. in tlje lorn * ^n/^/^^jy Cafe IjelO; ntco Ca»
lit. 59- 1). '^u I 3ja. Eot» 854. betteeen t shopiand anD R>dier^ m
tlje Cafe of a (^uaroian in S)Occag:e aojuogeti,
[K, b]
p2 Copyhold.
This in Roll fK. bl V^' hat y'lclmnta^/ce ihall be p-ofli, and by lijhom
is Letter (S.)l- -" q^ ^ aJ.L^^'T'-
info!. 504. cC e contra. And at what i/zi!?^.
See CO. b;
See(W. a) i/n© 4. MC fllttJ fiDtUmtOU 25. It 10 pUt, -^Cljat if 3 Conditional
Z!_!l5u^ \^ Surrender be pVefeUteB $£*
plementto Co. Comp. Cop. 80. S 1 5. cites S, C. that the Sui-renderee being dead the Ld. admitted his
Heir but the PreTentment of the iiunender being (as of an Abfolute, and not as of a Condition.tl
Suriender) withcut taking Notice of the Condition, it was refolv'd to b; void ; But if the Conditional
Surrender had been preftnted it had been good, tho' it was entered on the Roll.
Adjudged 2. D. 8 ^£1. 251. [a. pi.] 90. aC0ppl)OiB!0 furrendered tO tljC
Ibid. ^ l^Ottl, ad Intencionem that he Ihall grant it to him for Lite, with a
Hauchett's p^^^i^ainder over, if tl)E Party that furrenders die before Execution
^'^' tIjCtEOf !)?.0i pet tfje Grant of the Remainder after by the Lord is good.
3. Co* 4. i^ite anil Ciuinton 25* ^ CopvijalDei: furrenders to the
Ufe of j. S. in Fee i J. S. dies betore Adniircunte, HWO It t^ aDilHiteO,
ti>it Ui S3cti; liia0 toell aDnitttcti after Ijis DcatD, asiii t't)*; Luca
Cel\C atcb tije Cafe, 29. b, 'CiC!)ai tjiS Heir Ihall be admitted.
(L. b) Admittance. How it may be.
Oo. T-4;* ^ T5 "^^ Copyholder in Fee furrendered to the Ld. by whom B. tvas
pi. I. 'Brooks Jj- adnntted, habendum to hnn and his Wife in I'ail, Remainder over i
V. Brooks fv lt_ vv as agreed per Cur. that this Admittance was good to the Wife,
*^- .A'^i^^j^jjj'iho' ilie was only named in the Habendum, and not in the Premilfes,
there that tho' it be otherwife in Gafe ot Feoffment and Grant ; But this Cafe ot
in many Copyhold is like the Caie of a Will, or of frank Marriage, which will
Jtlanors p_^jg [[-jg Ellate, tho* the Party is onij nam'd in the Habendum j and
«therForms.}uf^g™ent accordingly. Poph. 125, 126. Trin. 15 Jac. B. R. Brook's
of Grant or Caie.
I^iniitation.
Supplementto Co. Comp. Cop 71. S. 6 citesS. C — Ld. Raym Rep. (>zf>. Hill, ii W. ^ Holt
Ch. f. cited the Cafe of Brookes in Poph. 125. and the faying of Popham, that the Cafe of a Copyhold
refembles the Cafe of a Will, but fays the Report of Cro. J 4,4 mrdces no Mention of any fuch
Thing, and that the faid Part ot Poph. Rep. being reported by an uncertain Author ought not to be
regarded.- But in Cro. Car. 366. i. Jones 542. Seagood v. Hone, wlicre a Copyholder furrendred to
the \5^i. of A and B. and the Survivor ofthem, and for want of Hluc of the Body ot B. Remainder to
T. S. and his Heirs ; it was held, that B liad only an Eftate for Life j for an Eftate for Life being
limited to him by e.vprcfs Limitation, he fliall nave no higher Eftate by Implication, and tho' perhaps
it mi^ht have been enlarged by Implicatio-.i in a Devife, yet it fhall not be fo in a Surrender or Con-
veyance, which fliews the Difference betv/een a Surrenderof a Copyliold and a VN'ili.and that the Sur.
render is like any other Conveyance at Common Law. Ld. Rayni. Rep. 630. Hill iz W. 3 per Holt
Ch. T Gilb. Treat, of Ten. 2-?9. cites Poph. and Cro. J. and fay.s, that the fubfequent Admit-
tance explains to what Ufe the Surrender was made Gilb Treat, ol Ten 243. Tiys, that fincc
the [udges thought that the Baron did not take before the Habendum any more thin the Wife, and that
this Cafe docs not fully prove, that a Pcrfon may take that is named after the Habendum when there
is another only named in the Premiffes, for when both are named in the Habendum only, the Admit-
tance would be to no Purpofe, it both could not take ; and perhaps at Common r.^aw, if there be no
Body named in the PremilTcs Habendum to 2, they fhal! both take, elfe the Deed could have n»
Effeft but an Admittance to one Habendum to him and anothar, may be good ; fed quasre.
[M. b]
Copyhold. pQ
\\L bl [^ddmttlance.l How. l^dml i;j ivhat Cafes! by ThhinRoii
T ^^ C J^, -^ -' -^ is Letter
Letter oi ^ilor/hy, (U)
i.rTp.|)(2;= Ld. may refufe to admic by Attorney CEffltP tl fjUC UtZ H
± '^urtcnucr of a Copi>f)0!ri isi niaDe, becaufe Ije aitgijtto no *^j~ '^'■^^'•
Fealty, UlijtCi) cannot be done by Attorney. C0» 9- COUU Co?«^j'j°5,, sV-!!;
C7/6'. 76. Ibid. 269.
s. p. .
A Copyholder may take an Eftate in the Copyhold by the Surrender of another Copyholder into the
Hands of 2 Tennnrs of the Manor by Guftom, but then this Surrender muft bcprefented in Court
and he to whole LTe the Surrender was made mult pcrlbnally appear in Court, and there be admitted
to the Land; and he cannot be admitted by Attorney Supplement to Co, Comp Cop. 83 S. 18. .
Copyliolder ou^lic not to be admitccd by Letter of Atrorney, for he ou^ht to A Fealty at the Time
tof his Admittance, 'Ujhkh can't be done by Attorney 2. Chan. Rep. 56 21 Car. 2. Floyer v. Hedgingham
2. [Bat] If the Ld. will admit IjilTT by Attorney it is good. CO 9. Gilb. Treat.
COilllJe 76. of Ten. 255.
S. p. Admit-
that tance by tlie Ld. in Court and out of Court feems to be de Communi Jure, and therefore it may
be done by Attorney.
3. A Copyholder of the Manisr of the Earl of Arundell did fiirrender Supplement
his Cuftomary Lands to the Ufe of his laji JVill, and thereby dcvifedthe t^ Co Comp.
Lands to his youngeji Son and his Heirs ^ and died \ the Tonngtfi hang in iS*^citesSC
Prifon mahs a Letter of Attoniey to one to be admitted to the Land in the and that he'
Ld's Court in his room, and alfo after Admittance to fiirrender the fame fhould have
to the Ufe 0/ B. and his Heirs to vjhom he htxd fold it for the Payment of his P''°c"J'e<i the
Debts, and Wray was of Opinion, that it was a good Surrender by poinf°Mr
Attorney, but Gawdy and Clench contrary ; and by Gawdy, if he Steward to
who ought to furrender cannot come in Court to furrender in Perfon, have gone te
the Ld. of the Manor may appoint a fpecial Steward to go to the Prifon and ^'^^ Prison
take a Surrender &e. Le. 36 pi. 45. Trin. 28 Eliz. B. R. Anon. l°ave been
admittedj
and afterwards to have Sarrendred the Lands.
4. What Pcrfons foever are capable of a Grant by dopy may well take by
Attorney, not that the Lord pall be enforced to admit any one by Attorney.^
becaufe upon every Admittance there is Fealty due by the Party admit-
ted, which is a Duty fo infeparably annexed to the Perfons, that ic
cannot be defcharged by Deputy, and therefore no reafon the Ld. Ihould
be inforced to admit by Attorney j but if he will admit him it ftands
good. Co. Comp. Cop. 49. S. 35.
5. C. Surrender'd to the Ufe oj J. S. and his Heirs upon Condition that ifGWh.Ttezx.
C. pay Sool. fiich a Day the furrender to be void. J. S. died before the"^ '^^". ^*^^'
Day without being admitted, his Heir being then beyond Sea. A Neigh- t ?<*, *^"^'
botir came and iC-is admitted tn the Name oj the Heir. This Heir return' d
and confented to the Admittance by bringing an Aftion againit another,
and Judgment tor the Plaintiff; for this is a good Admittance. 3
Sid. 61. 62. Hill. 1657. B- R- -Blunt v. Clark.
B h [N. b]
94 Copyhold.
[N. b] Admittance. At what Place it may be.
This in Roll I. r-pjr)!g Lord OftljC C^aitOt may make Admittances out ofQEnstj-f
i^'pTv ^ aUD out Of the Manor nia CO. lit. 6g. Jj. '^'
I P. refolved 4 Rep^, 26^ b. the laft Refolution in pi. i z. Trin. 50 Eliz. B. R. Melwich v I u
ter Glib. Treat ot Ten. 205. cites S. C. Ibid -01 cites S C and f h
feems to imply that_ the Lord may make by Copy Grants and Admittances at a Court held o'fiX' \U
nor, or elfl-, where is theDifterence between the Cafe of ilie Lord and bteuard ; and in the nevt r,r"
but one It IS refolved, that it the Steward at a Court held oft the Manor make any Gnnts o7a^
tances, they are all void, but he %s nothing of the Lord ; In hi.s Comment, upon Li'ttleron h r '^"
the l^ourt Baron mud be held upon the Manor, elic it would be void - - S P aar.-^H Zt^ T'^
Haughton, and Dodcridge. Bridgm. jz. Mich. 14 Jac. ' ^ ^^ *-''°°'^«.
5 Snlft. 214. Rofewell v. Welch, S C . Roll Rep. 41?, pi -< S C R.;^. r^ n
V. Walfte, S. C. — , Bulft 2,4. S. C. but I do not oblcrle tt Vame Poli^^.t,^^: 49- Frofeft
The admuting a Copyholder i. ,.t .., J,,,.,.! ^ff, ^<^^ '^^^^^^t:ly^':i^slZ:;
there who are JudL;e,s; and ♦lucl, a Court may be holden out of the Precinft of rhr\r ^ °"
Piea^. hohien , Quod fuu Conceilum per foe. Cu. Le. zSp. Jh ^^"U^i.f ^^. ^ U.
Diicrcs's Cafe
* See the Notes at pi. i. fupra
r:^'c::i.j,J;/l^:^^f^[:^^^^ Co^n Baron, a„, ,ra„ts cujlon.ry
Cop.69. cites ^f'^^ ''y.'-fy °^ Court RoJ], ^without Authouty of the Lord cr HiJ-
,. ^. Stc^vard, this is a good Grant. Br. Tenant per Copy. pi. 26. cites H. 2
4. Contr^ if he dees it out of Court without fuch Authority. Ibid
S- Unt the H,gh-^teward may admit by Copy out of Court bv fnmP
£«^r.,nde, .1 he has not Special Authority^^om the iS to ^demTiJ
But Gawdy 6. A. had tivo Manors and zratited a Com'hold rfnjiP ^t th^r..* r j
Ltraid fr, --- I^ vvas adjudged a void ctntfi^^T^annon^ra c(pf
coSr' hold according to the Cultom of a Manor whereof it is not Parcel Sed
ithadbeen per Popham Ch. J. Cro. E. 814. to have been adiud>jed in Ou AW,
well enough Time, in Cafe ot the D. of Suifoik. ''"J^agea in i^. Alary s
it it had
been fo tifed 7ime out of Mind. Ibid.
r.J'K.^'^""^T'l t ^ Copyh/dcr is not any judicial Aft for there need
th t J le- J-^^ '^^ Steward ot a Manor holds a Court out of :t all the Gra.t. ..^
^.TL fnnttances therejnade are ^oid , for the Court S" the M nor oThrr
is the 4th be held within the Manor: Refolv'd ner tot Cnr . » ^, ^^
Kerohuion Mich. 27 & 28 Eliz. B. R.' Clilton v Molineux ^ ^^^ ' '' '' ^^^ ^4'
inMelwichs ^''"tuA.
Cafe. [4 Rep. z6. b, pi. 1 2 ] — Gilb. Treat of Ten. 203. cites S. C.
10. But
Copyhold. pr
ear.
10. BtU relblv'd that by Ciijiom the Court may be held out of the Mam-, Gilb. Ticar
and that Grants and Admittances made there are well enough ; As di- of'Tcn. 205.
vers Abbots, Priors &c. ufed to hold Courts in one Manor for diverfe '^"" ''> ^"•
feveral Manors, and good by Cuftom. 4 Rep. 27. a. pi. ij,. Mich zi — ^' '*'
& 28 Eliz. B. R. Clilcon V. Moliaeux. ^ ' ^ ^ • ^ P" Cu,-.
y-ro. \^. 5"7«
at the End
of pi. 4. Ti-in. 10 Car. B. R.
1 1. In Cafe of a cuftomary M-tnor zvhere the QpyhoJd Tenements arc di- GilbTrcar,
'V.'ded from the Rc/tdae if the Manor , the Lord or his Steward may grant "^ Ten. 203.
Copies out ot Court as well as in Courts Per Cur. Cro. £, 103. pi 10 '^k%^^' *
Triij. 30 Eliz. B. R. in Cafe of Mel wich v. Later. fe/, oJ^irc.
■ i t Js
held, that ;/ the [nherU.ince of Copyholds he eratitedto om, he may hold Courts where he wiU for it is no
]onj;er a Court Baron, and that the Lord or his Steward may grant Copies out of Court as' well as in
Court, and as tlic CM'c is reported by Croke, the Grant was at a Court lield at another ISIannr ■ but
at Coke reports it, though the Gr^nt be at another Place, yet it is not laid to be done at a Court ,
lo quxre, whether a Srf ward may nrike Grants by Copy out ot Court ; but if a Steward can anUrL
dsr-Hieward cannot. Gilb Treat, of Ten. 25 5, 236. '
12. The Lord himfelf may make a Grant or Admittance of a Copyhold Cro E loz;
out oj the Manor at what Place he p/eafes, but the Ste'duard cannot do it at P'- 'o- S. C.
any Court holdcn out of the Manor. 4 Rep. 26. b. pi. 12. 30 Eliz. the j.th rTT".''^^
Refolution, inCaieofMelwichv.Luter. ^ cSt-
„ , . . , ... ported by
Croke, U is there laid, that if the Lord grants a'voay the Freehold of his Copyholds, the Grantee may held
Courts where hewiil to ri:.):ke Jdinitiances und Grants ; if then a Giant by Copy or Admittance fhoulil
be made at a Court held off the JManor, though it be a Court Baron, why'lhould it be void ? Since
a Court Baron contains in it two Courts, one for the Freeholders, the other for the Copyholders, and fince that
for the Copyholders, as to granting Copies, &c. may he held off the Manor, there is no Reafon, that becaiife the
Court Baron is voul, that therefore the .Jdmittance pould, tor they are as two difiinB Cuiirts and the ''d-
mittance had been good, had the Court been only the Copyholder's Court; and if we look back to the Reafon
of the Thing, if an Admittance may be made at a Place off the Manor, why not at a Court held off
the Manor, for ;/ is no judicial JiH ; if it were, furcly it muft ot NecelTiiy be done in Court
and therefore it was held per tot Cur. that a Court to do thele Things might be held off the Mai
nor ; It is not diltinguiflied in this Cafe between the Grant of the Lord or Steward but Coke j^
exprefs, that Grants by Stewards at Courts held oft' the Manor are void, Ideo qusrs de hoc
Gilb. Treat, of Ten. 302, 303. " '
13. A Lord may make a Grant or Admittance of a Copyhold out of the
Manor at what Place he pleafes, but the Steward cannot, at a Court held
ot the Manor, make any Grants or Admittances j and in Coke's ill Inlh
58. a. he fays, that a Court-Baron cannot be held off the Manor, unlefs
the Lord hath 2 or 3 Manors, and hath ufaally kept Court at one for
all i which plainly Ihews, that a Lord cannot make Admittances or Grants
at a Court held off the Manor, no more than tlie Steward ■■, For Coke fays,
that it the Court-Baron be held off the Manor, it is void, and he there
fpeaks of a Court-Baron as including the Copyholder's Court, where
the Steward is Judge ^ but, as hath been faid before, 2. Lord may make
Admittances or Grants out of the Manor at what Place he pleafes which are
Coke's Words, and mult be underllood not at Court but at fome
other Time or eile he contradicts himfelf. Gilb. Treat, of Ten.
14. If the Under-Steward make Admittances it is good, but if it be out
of Court it ought to be by a fpeciai Cultom. Arg. 4 Le. 244, pi. 35';^
Fafch, 8 Jac. C. B. in Cafe of £. Rutland v. Spencer.
15. The Honour ot Hampton had many Manors within it, as O. P. (X
&c. J. S. was a Copyholder of the Manor of P. and furrendered into the
Hands of two Tenants ot the Manor of P. according to the Cuilom of
thait Manor, to the Ufe of VV. S. his Son, and died. The Surrender
was prefented at the next Court, and the Stile of the Court, and recirai
of this Surrender in the Copy raa.de out was thus^ At the Court Baron of
the
96 Copyhold.
the Honotir of Hampton J. D. and J. N. tenants ojtke Honour of Harapton^
do prefent that J. S. did farrender into the Hands of the fjjo Tenants of the
HonourSc. Per 3 Juftices agai nil Jones J. this is good enough ; for
P. being in the Margin it fliall be faid a dillinft Court of icfell: j tor an
Honour confifts of many Manors, yet all the Courts tor the Manors are
dijimti^ and have feverul Copyholders, and although there is for all the
Manors but one Court, they are Quafi feveral and dilliinft Courts. And
it was ufual, in Time of the Abbeys, to keep but one Court jor many Ma-
nors. Cro. C. 366. pi. 4. Trln. 10 Car. B. R. Seagood v. Hone.
16. J. S. was feifcd of the Manors of A. and B. and about 20 Years
llnce fold A. toW. R. and nowW.R. brought a Bill againll a Copyhold
Tenant of A. for a Rent of 8 s. payable out of a Copvhold held ot the
the Manor of B. and though it appeared from the Manor-Rolls of Ba
from H. 8. to Car. i. that the Copyhold was held of the Manor of B,
and though it was admitted by the Plaintiit that the Copyhold ivas held
of the Mancir of B. and not of the Manor of ^t/. and Plaintilr' had no other
Evidence of Title to the Rent but that it had be'en paid near 20 2 ears., yet
the Court decreed him the Arrears, and growing Rent, and deny'd De-
fendant a Trial at Law ; and per Wright K. utter fo long Payment of
£0 Years a Grant of the Freehold of the Copyhold from the Lord of the
Manor of B. fliall be prefumcd. 2 Vern. R. 516, 517. pi. 465. Mich. 170^-.
Steward v. Bridger.
(O. b) Admittance. Good. In refped of the Eftate
granted.
n'Rep. 29. I. /^Opyholder bargained and fold his Copyhold, but fheiaed not
^■^■J'"p V-i ''^^'^^ Eflate, and furrendered it to the Ufe of the Bargainee,
and the Lord granted it to the Bargainee in Fee ; it was good., and
the Bargainee Ihall retain it in Fee ; laid it had been fo adjudged in
Lippingwell v. Bunting, and of that Opinion was the whole Court in
this Cafe, that a Cullom was good and allowable (being ufed) that
when the Tenant doth not appoint the Eltate of Celty que Ufe that
the Lord may ; the Interell of the Land being between the Lord
and the Copyholder it is not unreafonable that upon fuch uncertainty
it may be afcertained by the Lord. Cro. £. 392. pi. 15. Pafoh. 37
Eliz. C. B. Brown v. Forller.
This in Roll rp. bl In what Cafes the Admittance one /hall be of
IS Letter(Y) "- -■ , , J J
infoi. 505. the Other,
* 4 Rep. 25. I. Tjf a COpP!)OHiet; Surrenders to the Ufe of one for Life, tl5C Re-
a, pi <J. ^ mainder to another, t!)E Admittance of the Tenant for Lite is an
hucklev Admittance for him in Remainder alfojbeCaUfCtljCPaCCtiUt mz CifatC,
s. p but it ano but one ifine iis Due focbotl), anD if tljcre ougljtta be an
is not the siiianttance of Ijim in Ecuiainnec alfo, tljis tnotiio be ioiD, be-
Adnnttance (-j^nfg x\Qt\)\\\S(, paffcQ bffotc amiitttancc, nnD fa t!je pacticiUac €U
ReSer tatG uioiUD bc mecmineo l^ctatv tijc ji^cmamuec mm commence.
Copyhold. P7
Co. 4— 2 $ 23. * Fitchews Cafe atJjuntrcti. <^k% 38 e? 39 €\x^, %, ^j<^»^ to pre-
ijCtlUCCn t Keping and Bunning^ OUtiltatUr. JU'i'ce the^
Fine which was due by the Cullom of the Manor according to the Opinion in Brown's Cafe, [4, Rep,
22. b] Cro. E. 441. pi. 4. S. C. but S. P. docs not appear. ■ •* i^
\ See (E. b) pi. i. and the Notes there.
2. A. Sun-endercd to his Wife during the Nofiage of his Son^ and then D, 2^1. a.
to his Son in Tail &c. and died i The VV^ife is admitted accord- P' 9?- HilT.
irigly, Marries, and dies. The Heir at her Admittance was hut Jive\ j','-^' ^^'
Tears old. The fecond Husband Ihall have the Land during the Non- to'be's^G.
age of the Infant, ti>r the VVife had her faid Eflate to her own S C.
life, and then her Husband furviving her Ihall take, and that wich-'^',^^'^ ''V
out any Admittance, tor that he is not in of any new Eltate but in ch"^/"^"
the Ertate of his \\'h't as AHignee, but if ihe had been only Guardian Vaugh. 185;
or Prochein Amy it had been otherwife. 3 Le. 9. pi. 22. 7 Eliz. C. B. accordingly.
Dedicot's Cafe. ir~*^''>
Treat of
Ten. 272. cites S.C. held accordingly by ajufticcs Ibib. 511J. citesS. C.
3. Admittance of 7'enant for Life is Admittance of him in Remaifider,4 Rep. 23,
b'fecaufe the Fine is intire, and no new P"ine due for Remainder-man i^P'; 5-
But otherwife it is of him /« i^fwr/^o«. Mo. 358. pi. 488. Trin. 36 2^i"jj.n^S C
Eliz. Dell V. Higden. but s. P. "'
does not
appear.' Cro. E. ;;2. pi. i-;.S. C. but S. P. does not appear. Supplement to Co. Cotnp,
Cop. 72 S. -. cites S. C. and S. P. S C. cited 5 Lev. 508, ^.cq. 4 Rep. 22. b. in Brown's
Cafe S. P. refolved. Ibid. 25.3. pi. S. P. in Cafe of Fitch v Huckley. 2 Brownl. 901. Pafch.
7 Jac. C. B. Warren v. Packman S. P. refolved. S. P. adjudg'd ; For <zvhere the Lord is to have a
J/«e there murt be a new Admittance. Mo 465. pi. 65S. Palcli. 39 Eliz. B. R. Tipping v. Bun-
ning. Cro. E 504 pi 29. Gyppyn v. Bunney, S. C. and by Popham the Tenant for Life, and he:
in Remainder have but one Eftate in Law, and therefore the Admittance of the one fhall ferve
for the other.^ Goldsb. 95. pi. 9. S C. and S. P. Arg. Supplement to Co Comp. Cop. 72.
S. 7. cites S. C- and S. P. as held accordingly. The Cafe of Dell v. Higden, as it is reported
by Moor, is alfo contrary to the Cafes before ; for there it is faid but one Fine is due, bat other-
wife it is of a Reverfion, which Diftinftion is laid quite crofs to what it is in the Cafes before, and
fcems to have been a Miftake in the Reporter ; for as it is againft the Cafes before, fo it is againft
Reafon. The fame Cafe is reported by Lord Coke, and no luch Refolution is mentioned in Ids
Report of it, and it is obfervable, that nothing in that Cafe as reported by Moor, feems to have
been either upon Reafon or Authority, but one Point, which is the lingle Refolution, as the Cafe
is reported by Lord Coke. Gilb. Treat, of Ten. 1S2.
4. Copyholder of Inheritance //^cr^w^i'ci^o the XJfe ofM. his ?r//tf /or Supplement
Life^ Remainder to C. his youngefl Son in Fee. The Wije was admitted, ^oCo.Com?.
but the Son refafed during his Mothers Life, and afterwards, without ^'^'J;^; 5 ^'
heing admitted, he fiirrendered to the Ufe of the Plaintiff', in the Life-time ^^-j^'^^'
of his Mother. Adjudged, that the Admittance of the Wife was the 22. b. Mich-
Admittance of the Son in Remainder, for Ihe being admitted to the^l&H
particular Eftate, the Remainder depends on that, and vefts without |''^^j^^g
other Admittance i for both make but one Eftate. Cro. J. 31. pi. i. p' 1,^^ '
Trin. 2. Jac. B. R. Auncelme v. Auncelme, that it fliall
not bar the
Lord of his Office wWch he ought to have by the Cuftom S. P refolv'd, 4. Rep. 23 a. pi. 61
Pafch. »(S Elix. B. R.V'itch v. Huckley, but not to prejudice the Lord of his Fine due by the
Cuftom^accoiding to t&e Opinion in Brown's Cafe. Supplement to Co. Comp. Qo^. 72. S. 7;
cites S. C. . '
5. If he in Remainder tnakes a Leafe for Tears before his Omittance,
the Jdmittance of ihe7ermor fhall be good to this Purpofe for him in
Remainder i per Yelvercon J. to which Fenner J. agreed.' Bulft. 42..
Mich. 8. Jac. in Cafe of Eyiiff r. Chopiey.
C c 6. A
p8 Copyhold.
2 Lev. 107. 6_ A Copyholder /7/>''''''^^'^^''-f ^^ ^^-'^ Ufe o^- ftvcrul Perfons for I'tiars juc-
^ ^- ^""^ f^iv, the ^Remainder hi Fee to J. S. VVyld held, chat an Admittance
■-udfred ac- ot' a particular Tenant is an Admittance ol' all the Remainders cj
'coi^'^ingly. all Purpoles, but only the Lord's Fme ^ and if the Cuftum be, thvit
Mod the Fine paid by the Hrlt Tenant fhall goto ail the Remainders, then
'^r '^' /^' ^"^^ Admittance of the firft Man is to all Intents and Porpofes an Ad--
Tn^mftit mittance of all that come after. In this Cafe the Polieilion of the
accordingly. Leliec is the Pollelfion of the Remainder-man. Mod. 102 pi. 8. Mich.
Venc 25 Oar. 2. B. R. Blackburn v. Graves.
260. Batmor
V. Graves S. C refolvcd.
7. Surrender to J. iS. and his Hehs, if J. S. dies his Heif is in
without Admittance, per Hale Ch. J. who laid there had been diver-
llty ot Opinions, but the better Opinion had been according to the
Lord Cckes Opinion. Mod. 120. pi. 22. Palch. 26 Car. B. R. in Cafe
of Blackburn v. Graves.
8. Surrender to A. for Life, then to his Wife for Life, afid the .Survi.»
vor of them, and after their Death, then to the Ufe of his lajl Wdl^ and
fi)r want of fuch Will, then to his own right Heirs. A. itas admitted
i3c. and made his VV^ill, and devifed all his Elf ate Real and Perfonal
to his Wife, and after his Death, and devifed the Remainder to be di-
vided by G and H. (whom he made Executors) between his Relati-
ons, according to their Difcretion. In Ejectment it was Ibnnd that
G. and H. entered with Intent to divide the Ellate according to the
Will, but were not admitted. The Queltion was, what veiled in
them beiore Admittance, and what pafl'ed by the V\ ill. Held, that
Admittance of Tenant for Lite upon a Surrender is Admittance of
thofe in Remainder. 5 Mod. 306. Mich. 8 W. 3. Warfop v. Abell.
Co Comp. g jf ^ Copyholder fnrrenders to the Ufe of his lafl Wilt^ and by that
Cop. 50. s. (i^rjtji^ in fg 2, and the Lord admits one, this Ihall enure to both, for
' ' '■ ' when he is admitted, he is in by the Surrender, which he cannot be
unlefs he be a Joint-tenant ; for that is his Title by the Surrender.
Gilb. Treat of Ten. 312, 313.
(C^ b) Admittance of whom it may be ijn Cafe of
Death of Surrenderee before Admittance.
S. C. cited I. y^ Surrenderee to him and his Heirs dies before Admittance, his\
4 Rep 29.
b S. P.
4 Rep 29. J-i^ fjgi^ jjiay i;g (idmited. 4 Rep. 25. a. pi. 11. Pafch. 31 Elii.
Br;;;:ptoa B. R. Kite v Queinton.
Ch. J.
Mar. 159. at the Bottom. Mich. 17. Car. S. P. agreed for Law, it feems that he is in by
Pefcent, [when he is admitted] or at leatt by Force of the firft Surrender, and To itt Nature of' a
Defcent. 1 Sid 6i- cited by Glyn Ch. J. Hill. 165^. B. R. in Cafe of Blunt v Clark -Gilb,
Treat, of Ten. 207. cites S. C. & S. P. for upon Admittance the Eftate is in Cefly que M'!^ from
the Surrender by relation.
2. If a Copyholder according to the Cuflom doth farrender into the
Hands of 2 Tenants to the Ufe of J. S. and his Hens, and afterwards
the Copyholder dieth before the Prefentment be made of the Surrender
by the Tenants, and the Lord before the Prefentment accepts of the Rent
of J. S\ generally, but not as a Copyholder, the Heir of the Surrenderor
may enter into and upon the Lands, and receive the Profits thereof to
bis own Ufe, for that nothing velleth in che Surrenderee before Ad-
mittance,
Copyhold. pp
mittance, and the Inheritance of the Copyhold is in the Heir Qaali
by Defcenc. Supplement to Co. Comp, Cop. 79. S. 13,
3. Ctiftom was tor a Copyhold to defcend to the younge'll Sort, and not
to the eldett Brother; ^ Copyholder farrendred the Land to another and
his Heirs but bcfo-re Admittance, Surrenderee dies, leaving two Sons and
the Quellion was between the two Sons, and adjudged that the e*ldeft
Son ihould be admitted, becaufe the Cuftom was, that the Ellate
fhould defcend to the youngelt Brother, and there -xas no EJfate in the
Anceftor to defcend ; and therefore the eldeji Son mtift have taken as Pur-*
chafer-^ but according to the Report I have of the Cafe, the Court
faid, that if the Ciifiom had been laid to have been Borough Enrrli/h the
eidell had been excluded, for the Law takes Notice o'i '^Borough
Engliih and Gavcli<ind Cullom. 6 Mod 121. cited by Hole Ch. J.
as Hill. 1659. Fane V. Barr.
(R. b) Admittance. Where the Cuftom Is to defcend
to the youngeft Son, or is Gavelkind &c.
I. A Surrender was to the Ufe of J. S. and his Heirs of Copyhold Sty. 14?.
Jf\_ Land,defcendible according to the Natureof Borough Engliih. Mich i+
J. S. died before Admittance ; The Court held, that the Right would de-^ ^^'^- ^- ^^
fcendto the youngejl according to the Cultom. Mod. 102. pi. 8. cites it n'^'^h'" "'
as the Cafe of Baker v. Dereham. S C. bUt
not appear. Supplement to Co. Comp. Cop. 70. 8,4. cites S C. but S. P. does not appear. »
S. P. by Glyn Cli. J. (bat the youngeft Son Ihall have the Land, becaufe he is in by Defcent, or at
leattby Force of the firft Surrender, and /o in Nature of a Defcent. 2 Sid. 61. Hill kJct Bluntv
Clerk. — Vent. 161 . S. P. by Wilde. ' ''
2. Ctiftom was for a Copyhold {^of every 'tenant dying feifed, Wms's VVms's Rep.
Rep. 66.] to defcend to the youngejl Son, and not to the eidell Brother. ^^- ^- ^■
A Copyholder furrender'd to B. and his Heirs, but before Admittance HdtCh" T
B. dies, leaving t-euo Sons. Adjudg'd that the eldeft Son ihould be ad- as adjudged
mitted, becaufe the Cuftom was, that the Eltate Ihould defcend to the in C. B. in
Youngeft, and there was no Eftate in the Anceftor to defcend ; cited per ^^ Bndg-
Holt Ch. J. as the Cafe of ifane M. aBatt* 1659. But he faid, that ac- between""'''
cording to the Report he had of the Cafe, the Court faid, that tf the Hate "and
Cufiom had been laid to be Borough Engli/h the eldeft Son had been ex- and
eluded, and the youngeft mufi have been admitted ', for the Law takes ^^'^^y^''*'
Notice of Borough Engliih and Gavelkind Cuftoms. 6 Mod, 121. j^jf- ^^^_
Hill. 2. Ann. B. R. in Cafe of Clement v. Scudamore. tice of Bol
rough Eng-
liHi isthe Reafon why in Pkadim; that the Lands are Borough Englifli, you need not fet forth the Nature
of the Cujlomfpecially. Wms's Rep. 66. Marg fay^ it feems to be S. C, as is cited 2 Keb 158,
159. by Name of Pain v. Herbert. Vent. z6i. in Cafe of Batraore, alias, Blackmore, v. Graves"
per Wild J. faid it was fo held.
3. If the eldcfl Son, where there is Borough Englifh, be admitted, he Holt's Rap.
is a Copyholder De Faffo, and he has a good Title againft all Mankind '^5 *-^'
but the youngeft Son, and by Virtue of it may maintain an £je£imeat.
Trin. $. Ann. Brown and Dyer.
(5. b)
loo Copyhold.
(S. b) How far the Lord is bound by Admittance.
r. ^TJrrender to the Ufe of A. upon 'frtijr till Money paid^ and that after
(j A. fliail furrender to B. A. having received the Money refufes to
furrender to B. The Lord decrees a Surrender, by A. to B. B. refufes.
The Lord may feize and admit B. lor in fuch Cafe be is Chancellor
in his own Court ; Per tot. Cur. Le. 2. pi. 2. Hill. 25. El. B. R.
Anon.
2. Baron and Feme Copyholders for Life^ the Baron furrendercd to tlie
Lord who granted the Land over by Copy to a Stranger ; the Baron
died ; the teine recovered and entered, and furrendered to the Lord ;
the Stranger fliall have the Land, and not the Lord himfelf againlt his
own Grant. 4 Le. 88. pi. 186. Pal'ch. 26 Eiiz. B. R. Anon.
3. A Copyhold Cultom is, that a Woman lliall have her Free Bench,
^lamdin fe bene ge[ferit^ and live chafie^ and llie is Incontinent, ot which
the Lord hath not Notice, and the Lord admits her Tenant, it was held
that it ihould bind the Lord, though he had not Notice of the Incontinency.
4 Le. 240. pi. 390. Mich. 3 Jac. C, B. Wheeler's Cafe.
4. It feems, that when a T^ en ant for Life makes a Surrender in Fee ^
though nothing can pafs by the Surrender but what he hath, yet it feems,
that when the Lord admits the Surrenderee according to this Surrender,
then he has a Fee ; for the Lord has an Eltate to pafs a Fee-limple. Gilb.
Treat, of Ten. 178.
(T. b) To what Time the Admittance Ihall have
Relation.
Cro. E. 606. i> A Seifed of Freehold and Copyhold makes a Leafe of both for Years,
pi. 6. S. C. x\. * rendring Rent, and after he grants the Reverfion of the Free-
^^°- hold, and makes a Surrender of the Copyhold to the Ufe of the fame
54^pl^J' perfon, and an Attornment is had of the Freehold, and the Prefentmenc
1; Rep. 57. of the Surrender for the Copyhold is not made until a Year alter, yec
58, pi. 24. he in Reverlion Ihall have an A6Hon of Debt of all the Rent^ for thePre-
S. C. ■ fentment of the Surrender is but a Perteftion of the Surrender belbre
^°'*j^- '|^;^_made. Lane. 33. cites it adjudged 41 Eliz. B. R. the Cafe oi Collins v.
ding's Cafe, Harding.
S. C but the
Point of Relation does not clearly appear in any of the faid Reports. The Admittance relates to
the Surrender, and Surrenderee's Title begins from thence. 1 Salk. 185. Bcnfon v, Scot. 5 Lev,
385.S. C. 4 Mod. 251. B.C.
Jo. 451. pi. 2. The Jl'lfe of a Copyholder dying feifed is to have his EJlate for Life ;
4. S. C. and f^g becomes a Bankrupt, and the CommiJJioners bargain and fell this Land by
^^^■^^^^ Deed inrolled. Tbc Baron dies. The Feme is admitted, and AfterwuTd
Ihall not be the Bargainee is admitted ^ and it was held, that the Copyholder was no
faid to have Tenant after the Deed inrolled, for the Bargain &c. binds and bars his
died feifed Eftate, and the Bargainee is barr'd only to take the Profits until the
°*^''h(l°^din Admittance, which is lor the Lord's Benefit in refpcft of the Fine, and
Ac VendeeT not for the Copyholders, and though between the Bargain and Sale,
and
S.
Copyhold.
lOI
:. ' , TW^iJ7dieZ~atKrhis W ite is admitted, yec ;j;f;;^j'°^,^,,;
and the Inrollment, the Tem"^^ m^^^ Lord the Eltate lliali veft in the L.feofthe
^hen the Bargainee is ^;'"^^^^\^^^>„'7, ,he Bargain and Sale, and fliall Copyholder.
Bargainee, and Ihall have ^f ^'°" "^l^i,^>d by the Cuftom. Cro. C.
f6f 56;'V^^Hiir X5 C.^ B^R^ycites 7 E.^6. Br.Titie JnroIn.ents.
(U. b) Pleading of Admittances.
nJr my in Pkadwg allege this ^V^^^f^^^'J^id enfue, for if the Copy-
avoid the Inconveniences ^^a^ther^ile^^^^^ either that
holder fliould be driven in Pi^^^ing o Ihew ^.^dable, or fince
was made before the Memory ^^ ^ f"'/j";^l ° '\^, ,h.s Reafon the Law
the Memory of Man and ^'^^^^ Cullom ^aU to ^^^_^^^ ^^ „,,;;
has allowed a Copyholder m Pleading to^/^.^ j ^^^ ^^^^^^^
upon a Defcent upon a frrcnda^^asa f^^^^^'J^^^^ Co. Comp. Cop.
/nd that he entredand^^^l^J'tl^^otn^^^^ 23 &24Elu- C B.j Brown's
53. S. 41. cites 4 ^^P- ^^' •-
Cafe. , , .!,,. p,,. Ancedor -was feifed in Fee at the For he h
2. Bat the Heir cannot plead ^\^^^\flf^l\ MaL^ according to the Tenant ^
WUlc^ the Lord h' '^'^y:ifZhfdJ ■^d%Z^^.l the Copyhold de- ^^^^
Cujlom of the Manor, f^-'f^'^"^^^^^^^ but a particular l,,„,.ai.^
fcended upon htm, becaufe in Truth luch ^V^ . ^ jefcendible by to the Cui-
Intereft at Will, in Judgment ot Law, aitnougn ^^^ ^^ ^^^
Cuftom. Co. Comp. Cop. 53, .4. S. 4- ^^^^^^ ,^,,,,,,,„3.owne.£r•
3. I„,W.. Admittance by a Stew.d ^^.^^ ^^St^s_
name. Cro. E. 392- pl- ^S- ^^i^n. 37 ^
«':;. When a copyholder fcrrenderstocheUfe of ano^^^^^^^^^^
render, and in a riatm tn irje .tv«p» j (\,yrffider. tor the Lord is Tivemerv.
Effeaum furlum-redditioms. bupplemenc to v.u. f r /
cites Co. Taverner's Cafe Stewards, as well as in- Admit-
5. In Admittances '^^^e by Under-Stewards as ^^ ^^^^ .^
tances made by^he Stewards themfele^iMS|ood ^ 3^^^^^ „,
the Copy, ^"d-^'^^,^n>W°i^^ny5^^^^^^^ «.//? >7, ;hac
Co.Comp. Cop. 57'^-46-
I02
Tbis in Roll
Copyhold.
. W [W. b] Wh,t Perfons ftall p,y F,«es, artd to
5° 5' whom.
there pafles . /A UlljCII tIjC Ldlee dies, fte fliall no7n;J p o^herfor Life,
ro more mittancc to the Reverlion far rf rmfH.n.r, ^J ^ ^'"^ ^"'^ ^ Re-ad-
Ses'Er ^^^^S- l^tJOget; 107. ' ^^^ '^ wntmueD aiuiap;^ i,uji„u Co. 9.
eLT.:::, .he reft remains in the Surrenderor B.owhI. :St, Bicknal . Tucker. S. C
IHJ-..^.5t?c h^S If ^Sff: :r&j - T'-/'M' '^
and favs, Upon the Defl-ent, and he is a TVnVnr h n -^"' ^'"^ ^"e to him
<iu.re. his Anceitor beio.'.geth to Mn. ^Rep S ^IJ' \V\' ^opy made "
:>.;' L^d in ^- ^- ^'^^ 3d Relofution in B^^L^ffaVe ^'^ ^^ ^'"'^- '' ^ H £iiz,
.^C.emuftad.i...re.heHeirh.p.dhisP.e.3ndin.does,.h.Remed,there.^
de^ ^S:^^^^^^y^^ hi. in Remain,
iminder due to the Lord' by the Cuftom R ^'"' '''^"^ ^'"^ '" Re-
36 Eliz. B. R. Fitch v. HuckJey ° ^ ^^ ^^^ '• P^" ^- ^^^^h.
ScotlIdTXi',^no?;:;^.;V'n:^en:ii^;inf ^-^^^^^ ^^e Borders of
//.. Lord by Aheulln^ brEy™th whr/h^"'''?''/i ^^^ ^^^«.^^ ?/'
othern-ife the Lord might wea^rv the T.^ k " ?' ^^ °^" ^od," foi
but it may be Fine uncer^tl 'on ,£ ^^f,^^^^^ ^'-'"^ -"' Alienations,
upon Death as Difcem, ior thatk is the Aft r f ''^ ^'"^"^' =^^ ^^^11
£: Mic^'tcJ^f h JtS^ ^
-U-. he^afonable. ar^:l-%^Tgt^i-^/o^^^^^^
^cS||; l.L':[ln^:i; t ^SrSl^^ ^^-ge .Alteration ofthe
\7s.l'± Chan^^ebf the Lord'ought tofrovv^fthe'la" f'V '/ ^l"^"^^ ^^«
Gilb.Treac. Fine Can be due, but when the cLZll \ ,^°'^* otherwife no
of Ten 275. the Cuftom is good as bv ?he D.f f TA^'ir°\' ^■>' '^' ^^ "f God, there
^J- S- C/ Chancery referred t'oPopham^^^^^^^ '{ A Lord ^nd this a'pon a Cafe S
^^ fon &c. 'and Al the Jud^i ?f ""^eiean^t 7nn f^T^f^"- -'^^ Ander"
i^'hethera folv>d, and fo certified into tL Chinee ' hnr ^^T^r^^'^ ^'^ '^'
IIZ^ ^^^^^- "^" ^^^ Tenant a Fine is^ du'e^ tS t^Ti^t^^'JT ^^"
Rightaponthe Alteration of the Lord bvDfirh • ,Vr - - . JV- •
admuM and p.y a Fine. "^^SJ. cyrs'?/"''""' ""^ ''»" '^
Guardian aail neither b!' Jt^'JI '"'"i '•'"'"■ "" 4« 'f 14, fch a
but a I'arrnor of rhe Profits a„dl'.rnnr'">' w '^'"'' '=='=''*" ^e is
8. By
Copyhold. 103
8. By fpecial Cuftom Copyholders are to pay Fines upon Licences
granted unto them to demifc by Indenture, but by general Cullom
they are to pay Fines only upon Admittances. Co. Comp. Cop. 62.
S. s6.
9. If the Lord having a Copyhold by Efcheat^ Forfeiture^ or other A Fine is
Means, makes a 'voluntary Admittance, a Fine is due unto the Ld. Co. due upon
Comp. Cup. 62. S. 56. Admutancd
'■ '■ upon a Vor
luntary Grant. Gilb. Trea'. of Ten. 515. cites Co. Comp. Cop.
10. if a Copyholder ///rr^Wcrj ?o r^t' C^ff/"^ J/r^»_g-fr, and the Lord
admits, a Fine is due to the Ld. Co. Cornp. Cop. 62. S. 56.
11. If a Copyhold ht granted to one and his Heirs durante Vita, ^nd
the Grantee dies, and his Heir enters as a fpecial Occupant, where by
the Cuftom of the Manor a Copyhold may be extended, upon tho
Extent the Party lliall be admitted, and Ihall pay a Fine. Co. Comp.
Cop. 62. S. 56.
12. If the Copyhold Lands of a Bankrupt be fold according to the
Statute of the 13 Eliz. cap. 7. the Vendee fhall be admitted and pay 3
Fine. Co. Comp. Cop. 62, S. 56.
15. If a Copyhold be granted upon Condition, and the Condition be
broken, and the Grantee enters, he lliall not be admitted, neither pay
a Fine, becaufe upon the Breach of the Condition and the Entry, he is
to all Intents in St^itu quo prius^ as ii' no Grant at all had been made,
Co. Comp. Cop. 63. S. 56.
14. li a. Copyholder in Fee furrcndcrs for Life, referring the Reverfton^
and the Le^ee for Life dies, the Copyholder Ihall not be admitted to his
Reverfion, neither ihall he pay a Fine, becaufe the Reverlion was never
out of him. Co. Comp. Cop. 63. S. 56.
15. If a Copyholder be dijjeifed, and then enters upon the Diffeifor, oj*
recovers ly Plaint in the Nature of an AJife, he fhall not be admitted,
neither fhall he pay a Fine, fbr he continues Hill Tenant by Copy, not-
■withftanding the Difleilin ; But where hy a Plaint a Copyhold is recovered
upon the Accruer of a new Title, "where he that recovers was never admitted ^
nor paid Fine, there upon his Recovery an Admittance is requiiite, and
a Fine is due ; As if a Copyholder diedfeifed, a Stranger abates, and the
Heir recovers hy Plaitit in tlie Nature of an Affifc of Mortdanceltor, upon
this Recovery he fhall be admitted, and pay a Fine. Co, Comp. Cop,
63. S. s^:
16. li I take a IVife with a Copyhold in Fee, tho' by this Intermarriage
there accrues a prefent Intereft to me, yet becaufe I am feifed not Jure
Proprio, but Jure Alieno, therefore I fhall not be admitted, neither
Ihall I pay a Fine. Co. Comp. Cop. 63. S. s^-
17. The fame Law is if Jhe be a T'erfiior of a Copyhold, for tho' the
Term by the Intermarriage be fo veiled in me that I may difpofe of it
without controul, yet becaufe before Difpofal, I am poliefled of it but
in the Right of my Wile, therefore I Ihall neither be admitted, nor pay
aFine. Co. Comp. Cop. 63. S. $6. cites Pi. C. 418. b.
18. KaCopyholdhe furrendred for Life, the Re?nainder to a Stranger,
tho' the Admittance ot Tenant for Life be fufiicient to irtveft the
Eftate in him in the Remainder, yet upon the Death of Tenant lor
Lite, he in the Remainder Ihall be admitted and pay a Fine. Co. Comp.
Cop. 63. S. 56.
19. So if a Copyhold he granted to 3 habend' fucccffive, where by Cuf-
tom SuccelFion is in force, if any one dies, he that next fucceeds fhall.
be admitted, and pay a Fine. Co. Comp. Cop. 63. S 56.
20. It z Copartners, or Tenants in Common of a Copyhold be, and the
me dies, and the other has all by Defcent, he fliall be admitted, and
Ihall pay a Fine ; But if 2 Jointeuants be of a Copyhold, and one dies,
ths
1 o/j- Copyhold.
the other Hull have all by the Surviorlhip without Admittance, or pay-
ing a Fine, becaufe Jointenants to all Intents and Furpofes are leifed per
my Sc per tout. Co. Comp. Cop. 63. S. 56.
Gilb. Treat. 21. Upon Admittance ot"a Feme to her Widow''s EJlate by the Cujlom
of- Ten. 209, no Fine is due to the Lord. Noy. 29 Hill. 15 Tac, C B in Gale of
210. makes Rennington v. Cole.
a (Quaere or °
this, for tho' rhe Eftatebe adjudged in the Woman, yet that is no Argument that flic (Tiall pay no
tine, for the Ellate is In the Heir by Defcent, and yet he (liall pay a Fine, and both are com'pel
hble to be admitted, and then w hy fliould they not pay a P'ine ? So of Dower and Cuvtefy Ibid ^lo
-— — " a Copyhold defcends, and the Ld. admits the Heir, where by the Cuftom of the Manor'the
Wife IS to have Dower, and the Husband is to be Tenant by the Curtefy of the Copyhold eithei-
of them fliall be admitted, and lliall pay a Fine to the Ld. Co. Comp. Cop. 62. pi. S. ^6. '
But if a mne 22. Surrender to A. for 7'ears, Remainder to B. The Lord may
.yffejedfor aflefs one Fme tor the particular Eltate, and another lor the Remain
£/.^ "there '}^' ' ^^^ per VVylde J. he need not till his Eltate comes into Poireffion
is an End V ent. 260. Tnn. 26 Car. 2. B. R. Batmore, (alias, Blackburn') v
of the Graves. ^ '
Bufinefs ;
tho' it it be afTefs-d only /»^ rt /p<rr/,V«/.7. £/?.,/. the Lord ought to have another ; per Hale Ch 'T
Mod loz, pi. 22_Parch 26 Car. 2. B. R. in Cafe of Blackburn v. Graves. -Aiod. loz pi 8 S
C. Cjud. 1 reat, or 1 en. 151. cites S . C. '^
23. The Court doubted whether the Cuftom was good as to the
claiming an Alienation Fine upon an Alienation for Life, becaufe bv that
the Tenure ot the Lands aliened is not altered i for the Reverlion is
Itill held as betore by the fame Tenant. 2. Vent, i? j Hill i and 2 W
and M. in C. B. in Cafe of Holland v. Lancafter
r-rt i" V^P^^^/e'-dia in Ejectment the Cafe was, the Father being
Jetfedof a Copyhold m Fee, fmrendred it to the Ufe ofhimfelfand his IFife
pr Life, Remainder to the Son (the now Defendant) in 7'atl ; the Father
oiid Mother m admitted, and paid a Fine, and being both dead, the Be-
Jendant pray d to be admitted to the Remaifider, which was done, and a
tine of s^ I Jet upon him, which was demanded, and a Day and Place
appointed for the Payment of it, which he did not pay, and faid that he
thought that none was due, he being admitted by the Admittance of bis
Father and Mother, Tenant for Life, and therefore refufed to pay it •
Adjudged that no Fine is due, unlefs there is a fpecial Cuftom for it'
and what Ld. Coke fays 4 Rep. 22, 23. b. that fuch Admittance Ihall
not prejudice the Lord in refpea of his Fine, is to be intended where
fuch Fine is due by Cuftom for the Admittance to the Remainder
bni without JpectalCupm none is due. 3 Lev. 308, 500. Trin 3 W Rr
M. inC. B. Barnes V. Corke. ^ » :5 V- -^"n- 3 W.&,
25. The Admittance of tenant for Life is an Admittance of him in
Remainder as to veji the Efiate, but not to prejudice the Lord of his Fine,
laith Ld. Cokei therefore upon the Death of Tenant for Life, he Ihall
be admitted, and pay a Fine ^ for tho' his Eftate of Tenant for Lifb
vefts, ye he was never Tenant to the Ld. for the Admittance to which
he pays his Finei But if 2. Copyholder in Fee furrenders to the Ufe of
one for Life, and the Tenant for Life dies, he may enter without any new
Admittance, or paying any Fine, for he had his old Eftate in him
and he was admitted Tenant before ; yet it was faid by Ponhim in
f Uppin nnO ^WXmn Cafe, that one Fine is due in fuch ^i? Cit i^
but oi little Authority, tor the Point of the Cafe was, whethe/the Ad-
mittance of lenant lorLile was the Admittance of him in Remain
der, and becaufe it was made an Objeaion, that if it were, the Ld
wouldlofethe Fine which Popham anfwers by fiiying, there is none
due in fuch Cafe, which Objedion Ld. Coke anfwefs by fayU th"t
Treat of Ten' iSi'lsl'" ^'^^■^^""^"^^•^-'"^"^ >'" ^ ^'^- is due':'GilL
26. Where
Copyhold. 105
26. Where the Culiom is for a Copyholder s Lands to be extended,
the £,\/t;/^w" fliall be adiiiitted and pay a Fine. Giib. Treac, of Ten.
315.
[X. b] Fines. How much fhall be paid. And where
one or feveral. ThisinRoU
IS Letter
(Z) pi. 2. in
■I
if a Copyholder in Fee furrenders to t\]Z HfC Of one for Life, tge Cro £.504.
Remainder to another for Life, tl)0 Remainder to another in pi- 29-
Fee, i)P ti)t0 but one if 1112 ts Mti foc tljc patti'culat (£aate0, anu^ypp'" ^
tiie EmiaitiBvr^ nee but one Cftate* $?3ictj, 38 ^ 39- 03. i^, tjp fee^sTo be
lli)Opljum* S. C. and
Popham and
Fenner thought that only one Fine was due ; but becaufe the other Judges were abfent adjornatur.
Mo. 46^. pi. 6sS. Tipying v. Bunniiig S. C. and S. P. and therefore there needs no new Ad-
mittance; But when the Lord is to have a Fine [by the CuHora fuppofe] there anew Admittance is
neceflary. Gouidsb. 95. pi 9. Kipping's Cafe S. C. argu<;d hue S. P. does not appear. The
Fine paid by Tenant for Life is intire and no new Fine is due for him in Remainder but other-
Wife iris of him in Reverjicn. Alo. 3 jS. pi. 4SS. Trii). j6 Eliz. Dell. v. Higden.
2. It is decreed hyAffent^ that the Defendant being Lord of the Manor
of Alderfwafly, Hull have for a Fine of a Copyholder upon a Surrender,
one -iohok Tear's Valtie^ as the fame is reafonably -joorth^ according to the
ufual Rates ofLands in that Country. Gary's R.ep. 77. cites 18 & 19
Eliz. Blackwell & al'. v. Low.
3. If two Joint end fits, or two tenants in Common^ or tenant for Life^
and he in the Remainder^ join in a Grant of a Copyiiold, one Fine only
is due, and it ihall enure as one Grant only ; So tf a Surrender be made
and after a Common Recovery is had by Plaint in the Nature of a Writ
of Entry en le poft, for the better Alfurance one Fine only fhall be
paid. Co. Comp. Cop. 63. S. 56. cites 4 Rep. 27. b. Hubbard v.
Hammond,
4. If one Copyholder has diverfe feveral Lands feverally holden lyfeve- Cro. E. 779;
ral Services by Copy, the Lord ought to demand feveral Fines for every Par- P'- ' 5 •
eel which is fo feverally holden, for the Tenant may refufe to pay the Hamm nd
Fine for one Parcel, and pay the Fines for the others. 4 Rep. 28. a. s.T.^nd '
Mich. 42 & 43 Eliz. the third Refolution in Cafe of Hubbard v. Ha- S.'p. re-
Kiond. folv'd ac-
cordingly,
. Mo. 622. pi S 5 1. S. C. refolv'd accordingly.
5. If two feveral Copyholders join in a Grant of their Copyholds hy one
Copy, or if one Copyholder, having feveral Copyholds, grants them by one
Copy, yet the Grantee Ihall pay feveral Fines, for they ftall enure as fe-
veral Grant. Co. Comp. Cop. 63. S. 56.
6. 5/. I2J. %d. was held an unreafonable Fine for admitting a Sur- Supplement
renderee to a Co//-^^f, and an Jcre of Pafiare, being Copyhold of Inhe- '° ^o Comp.
ritance ; for this is not like to a voluntary Grant, As when the Copy- *^°'' ■'^''- ^•
holder hath but an Eitate for Life, and dieth, or if he hath an Eftate in s°c"!^
Fee-fimple, and committeth Felony, there Jrbitrio Domini Res of imari G\lb. Treat.
debet ; but when the Lord is compellable to admit him to whole Ufe °f" Ten.
the Surrender is, and when Cejttii que Ufe is admitted, he ihall be in by ^r'^' I'l^
him who made the Surrender, and the Lord is but an Inllrument to pre-"'"
fent the fame ; And therefore in fuch Cafe, the Value of two Years for
fuch an Admittance is unrealouable, efpecially when the Value of the
E e Cottage
!.3
1 06 Copyhoki
Cottage and one Acre of Failure is a Rack at fitcy three Shillings by the
Year, i-^ H.ep 3. Mich. 6 Jae. in Willowe's Cafe.
7. If a CopjbiiU dfl beats, the Lord ought to increafe and improve his
Fine beibre he regrants it, or he has no Remedy aftervt^ards, for he is
not compelled to grant it again, and fo may imve what Fine he will.
Arg. Het. 6. Fafch. 3 Car. C. B. in Cafe of Palfon v. Manne.
Ibid. 95. 8. A moderate Year's Value is a reafonabk Fine in Cafe of i^ 7'enant-
Popliam V. j(jaht upon every Alienation or Death of the Tenant, or Death of the
S^p^^r Lord, and the Defendants to give Notice of every Alienation at the
Car I. Lord's Court, and the Fine how aflefled not to be taken as a Fine cer-
where the tain, and a Mailer of this Court to fee the faid Fine. Ch. Rep. 33.
Fines had ^ Car. I, Middleton V. Tackfon.
not been "^
certain, the Court upon Precedents produced, and efpecially the Principal Care of Middleton v. Jack-
fon decreed, tliat an improved Year's Value, in a moderate way, fhall be given and accepted from
the Tenant to the Lord tor a Fine.
It was a- 9. In Trcfpafs, the Queftion wa?, whether the Lord might afTefs t'wo
greed by all j'^^y.^ ^^^ ^ji Isalj's Value of the Land according to the Rack-Rent for a Fine,
'xivithTthe ^^^ ^°'" Non-payment enter for a Forfeiture ? And all the Court held he
Cuft'cviiof could not, for it is unreafonable; and that one 7'ear and an halj's Rent,
f.me Manors according to the improvd Value, is high enough, but that the Tenant
" V'>ie of 4 niitfht refufe to pay two Years and an half ; and Judgment accordingly,
r ) ^'"""'r. Cro. Car. 196. pi. 8. Trin. 6 Car. B, R. Dow v. Golding.
he rcafonnhly
Set ■ as in the Manor of H.and C ivhere the Ctiflcm is for a Stravger to pay a Fine upon his j^dmit-
l.-ncelo a Copyhold ; Hat if once a Tenant, he pays a Fine no more; and Dolben cited a Gafe ot
Pm'ent the Prothonotary, v/ho was a rich Alin, and purchafed a Houfc in C. and 5 Years Value
vvHS fet for a Fine ; and the Mutter was difpnted, and came to a Trial ; and it was held to be a rea-
fonable Fine, and that in fuch a Cafe he might have fet 7 Years Value. But in the principal Cafe,
which was in Cafe of an Infant the other 5 Judges being of Opinion that the Infant was not bound
bvthcCuftom, the Lord Ch. J. confented, that a Judgment given in C. B. fhould be affirmed.
Freem. Rep, 496. pi. 670. Mich. 1(539. in Cafe of King v. Dillington.
Fin. R. 264. 10. Renewing Copies after Expiration of 99 Years abfolute without
S c but any Payment of Fines upon Death or Alteration to the Lord, limited
decreed to ^'^ ^'^° Teur's Valuc. z Chan. Kep. 134. 19 Car. 2. Morgant v. Scuda-
renew with more.
in one Year
after the Leafes expire, or return from beyond Sea, or attaining 21.'
11. Upon a Writ of Error the Queftion was, whether a Cudom fbf a
Copyholder upon his Admittance to pay a 7'ear s Value of the Land, as
it is at the Time of the jidmittance, were a good Cultom and ruled in C.
B. that it was a good Cuftom, and the Judges in B. R. inclined that
it was a good Cultom. Freem. Rep. 494. pi, 669. Pafch. 1682.
Anon.
12. An Alienation Fine was fet forth to be due upon the Alienation of
any Parcel of Lands or Tenements held of the Manor of M. to have a
Tear and half's Rent, by -juhichthe Lands or Tenements fo aliened isaere held-j
So that if the 20th Part oi an Acre be aliened, a Fine is to be paid, and
that of the whole Reut, for every Parcel is held at the Time of the
Alienation by the whole Rent, and no apportioning thereof can be but
fublequent to the Alienation, and this the whole Court held an unrea-
fonable Cuftom i and as it is fet forth, it could not be othervvife under-
Itood, than that a Fine Ihould be due, viz. a Year and a half's Rene
upon the Alienation of any Part of the Lands held by fuch Rent.
2 Vent. 134, 135. Hill, i & 2 VV. & M, in C, B. Holland v. Lan-
cafter.
13. Tenant
Copyhold. J 07
13. Tenant for Life^ and he in Remainder, join in a Grant ot their Co-
pyhold i but one Fine is due. Gilb. Treat. ot'Ten. 316.
14. So if a Surrender be made, and after a Recovery is had by Plaint j
in the Nature of a Writ of Entry in the Polt, for the better AlFurance;
but one Fine is due. Gilb. Treat, of Ten. 316.
(Y. b) Fines. Certain or uncertain.
I. A Fine is not to be decided hy Witnejfes, but by Court Rolls,
Jt\ and ordered to go to Hearing upon them. 10 Jac. li. B.
fo. 176. Toth. 167, Hopton v. Higgins.
2. To prove a Cnjiom for uncertainty of Fines, and not to be certain
two Year's Rent, there ought to be ftewn Court Rolls, and that in
Cafes ol Defcents that upon fuch Admittance they have ufed to pay
above two Year's Rent ; But Rolls, to prove Uncertainty of Fines
(tho' in Cafes of Defcents) if the P'ines are under the Value of two
Years Rent, they are no Proof at all, lor the Fines mufl be above
two Years Rent ; lor it is a good CuUom to pay for Fines upon Ad-
mittances, the Value of two Years Rent or under, and the Proofs
miifi be in Cafes of Defcent; for in Cafe of a Surrender or Pur chafe of a
Copyhold the Lord may take -what Fine he --jjill, but fuch Fines are no
Proof of taking uncertain Fines by the Cultom bat it mufl be in
Cafes of Defcent. Per tot. Cur. ablente Fleming Ch. J. 2 Built. 32.
Mich. 10 Jac. on a Trial at Bar Allen V. Abraham.
3. Held in Chancery, that where by Jncicnt Rolls of Court it appear-
ed that the Fines of the Copyholder had been uncertain from the
Time of King H, 3, to the 19 H. 6. and from thence to this Day-
had been certain. Except 20 or 30 that thefe few ancient Rolls did
defiroy the Cuflom lor certainty of Fine j But if from 19 H. 6. all
are certain except a few, and {o uncertain Rolls belbre the lew lliall
be intended to have efcaped, and fhould not dellroy the Cuftom for
certain Fines. Godb. 265. pi. 365. Trin. 13 Jac. in Cane. Lord
Gerard's Cafe.
4. There is fcarce a Copyhold in England but the Fine is really
•uncertain ; For if the Rolls make it appear that fometimes a lefs and
fometimes a greater Stan has been paid for a Fine, this is a Fine uncer-
tain J Per Richardlbn J. to Harvey privately. And he faid, that he
was of Counfel in a Cafe where the Jury found that the Fine was cer-
tain, and afterwards by Bill in Chancery it was decreed upon fearch
of the Rolls to be a Fine uncertain, and that this is now the Ordi-
nary Courfe by Decree in Chancery. Litt. Rep. 2$z. Pafch. 5 Car.
C. B, Anon.
5. Whether Fines be certain or not to regulate the fame, the moft
Number of Court Rolls are to determine, and the Time. 14 Car.
and Mich. 15 Car. Toth. 167. Burralbn v. Walfh.
6. A former Decree was confirmed, and an Award by which the
Commons and Indofures between the Lord and his Tenants, and Land in
the Bill mentioned were bounded and afcertained, and the arbitrary
Fines reduced to a Certainty, and enjoyed and paid accordingly till De-
fendant, who had now purchafed the Manor, refufed to be bound by
it. Fin. R. 154. Mich. 26 Car. 2. Meadows v. Patherick.
7. In Replevin, the Defendant avowed for Damage feafant j the jbij 250,
Pkntiff in Bar of Avowry pleads that it is a Cop\hold &c. andi5i.S.C
that there is a Cullom &c. quod quselibet Perlbna &c. qus ad- E"oi- was
j^,lj^^ brought of
io8 Copyhold.
thisjudg- niifla fuit &c. to a Copyholder, folverec & Ufi & confueverunc
B^R and ^^^^^^^ ^'^ ^^^ ^""^'^ ^^^ ^ Fine t ant am dmartorum Sammam quant am
thejuft'ices 'I'errx valebant fer Annum 'Tempore Admifflo7i'is pradicl' & fur ceo De-
feem'd to murrer. Levinz, J. faid, that this Quefiion had been inclulively re-
agrcetothe folved 40 Times, viz. in all Cales where 2 Year's Value had been
?"db*°^" adjudged reafonable, and faid, that he did not fee any Difficulty in
Levinsfbut alltifing the Fine, lor the Lord might have the Value enquired" by
for the the Homage, and if the true Value was not alfelied in that Cafe,
Manner of the Party might have taken Iffue^ Adjudged for the Plantiff. per tot
Cuftom"'" Cur. Skin. 247. 250. pi. 2. Hill. 1&2 J. 2. C. B. Titus v. Perkins!
Curia advifare vult. 3 Mod, 152. S. C. in B. R. and the Cour: affirmed the firft Judgment
and all held the Cufton-. good.
(Z. b) Fines. How to be alTcilecl or demanded.
Aj[o (^23. i_ yp divers Copyholds defcend to one, the Lord can't demand o»f
s'c.'& X ^^"^ ^°'' '^h'^'" al'^ but he ought to demand feveial Fines For
s' p._4 perhaps the Heir may accept of the one at the Fine alielied, and re-
Rep. 28. fufe the others on fuch Fmes, Cro. E. 779. pi. 13. Mich 42 & 43
1 >6- El iz. B. R. Dalton V. Hammond.
Hubbard
V.Hammond S. C. and S. P- And if all fuch Copyholds are furrendred to the Ufc of another
and his Heirs, Tcnenn' per antiqtia fervitia inde debita & de Jure confueta, there, as vas refolv'd
in Tavernor's Call-, the Tenures are leveral, and therefore the Fines ought to be feveraJly afisli'd
and demanded. 4 Rep. 28. a pi. 16 Mich. 42 & 43 Elii. B. R. Hubard v. Hamond.
Supplement 2. The Court and the Jurors fhall be Judges of the Finey whether
toCo. Corop. jf ]:)Q reafon able ornoty without Suit in Chancery. Mo. 623 pi 8?r
TO n?e's' Mi'^h. 42 & 43 Eliz. B. R. Dalton v. Hammond.
S. C. and
S. P. that it fliall be determined per Arbitrium boni Viri, and the Court and Juftices of it iTiall be
Judges of the Reafortablenefs of the fame, if it be pleaded that the Fine demanded by the Lord
or the Diftrefs for it be unreafonable and exceffive. 13 Rep. 2. 3. Mich. 6. Jac. C. B. in Wil-
lowe's Cafe S. C. refolved, and that alway.s when R eafonablenels is in Queftion, the lame ihall
be determined in the Court where the Aftion is depending.
3. A Cullom that a Copyholder for Life may nominate one or two
that fhail have the Copyhold Lands after his Death lor a Fine to be
ajfeffed by the Homage if they cannot agree with the Lord is good,
Noy. 2. Yelmefter Cullom's Cafe.
4. A Cujiom to fay -what Fine the Homage potdd fet was ruled to be
good ; and fo held in a Cafe Hill. 6. Jac, C. B. Rot. 1613. Freem.
Rep. 494. pi. 669. fays it is cited in the Lord Ch. J. Hale's MS. in
Lincoln's Inn Library.
5. By the Cuftom of a Manor of a Fine was due to the Lord for
a Licence to the "tenant to alien. It was agreed by all, that the Lord
may a£cf:; a Fine out of the Manor^ and likewife he may make tt paya-
hie out of the Manor and Judgment accordingly ; But if it had been
for a Forfeiture, the Court laid it might have been other-TSJtfe. Lord
Raym. Rep. 44. 45. Pafch. 7 \V. 3. C B. Yaxley v. Rainer.
[A.c]
Copyhold. 109
[A.c] [Fines.] 7f^f
yit what Tme due. ^^a)
t. A if ine for an annnttancc of a CoppIjoltieL* 10 not Bae before where the
/\ atlUllttiinCC, but atcer Admittance. CCUlt 4 !JaC» CB* E» ^^^'"e '^ «'•-
betuieen i'tp a^d Rogers, agrecH* ^^^.j^i ^^^
to tender if
cnhh Pr.vjertoke admitteii, otherv/ife the Lord is not bound to admit him. Cro. £,779. pi. ij,
ISJich 4Z Sc 4; Elix. B. R Dalton v. Hammond. Mo. 615. pi. 851. 6. Che ought to bring it
with him to the Couit and pay it before Admittance, and if he be not ready to pay fuch Fine it is
a Forfeiture, othei wile if the Fine be uncertain, but there he ought to pay it in convenient Tinje
after the Lord has aifclTed it, and if he does not pay it, it is a Forfeiture.-^ Cro. E. 779. S. P.
Supplement to Co Comp Cop 7';. S. 10. cites S. C. and S. P. accordingly. 4 Rep. 28. at
pi. 16. Habbird V. Hammond S, C. & S. Pi Gilb. Treat, of Ten. 205. fays that as this
Cafe is reported by Crooke, it is faid, when a Fine is certain, the Heir ought to tender it upon his
Prayer to he admitted ; As it is reported by Cook, it is faid no Fine is due till Admittance, and that
Admittance is theCiufe ; and as Crcoke reports it, ^o has Mo. 617,. and if he does not pay it, it is
a Forfeiture. This feems to contradict what he faid before; for if it cannot be a Forfeiture till
Admittance, the Demand of the Fine muft be of the Perfon of the Tenant to make a Forfeiture ;
fo of Rent. Freem. Rep. 49(5. Mich. ii')S9 in Cafe of King v. Dillington, S. P. faid to be ac-
cordingly. 4 Rep- -8. a pi. 16. in Cafe of Hubbard v. Hammond Popham Ch. J. fays it was
adjudg'd in one Sands's Cafe, that no Fine is due to the Lord, either upon Surrender or DefcenE
till Admittance, for the Admittance is the Caufe of the Fine, and if after the Tenant denies to pay
it, is a Forfeiture ; And that fo it was refolv'd by Wray and Periam Juftices of Aflife in Suffolk,
between Sir Mich. Bacon and Flatman. — Supplement to Co. Comp. Gop- 74 S. 10 cites S. C.
2. The Heir of a Copyholder vsithift Jge is not bound to come to 4 Le. ;
any Court during his Nonage to tender his Fine. 3 Le, 221. pi. 294. P'- ^*-
Pafch 30 Eliz. B. R. Anderfon v. Hayward. ^J°^'^'
3. Prefcription that Copyholder ftiall pay a Fine on Change of every i{ti\. n-;.
Lord was ruled a void Culiomby all the Judges, for Lord may change Arg. cites
his Manor every Day, but if it be that after the Dei.nh of the Lord a ? G. accord-
Fine be paid, it is a good Cuftom, for it is the A6t of God. Arg, Litt. Admit'taTCc*
R. 233. Mich. 4 Car. C. B. cites Armftrong's Cafe. of Tenant
for Life is
the Admittance of him in Remainder becaufe they make but one Edate ; but the Lord (hall have a
Fine for the Remainder-man's Intereft, but the Remainder-man need not pay it till after the Death
of Tenant for Life, for then he becomes Tenant to the Lord Mich. 8 W. 5. B. R. per Holt cites
Mod. 120. Blac! bourn v. Greaves, and adds, that the Admittance of Tenant tor Life is the Admit-
tance of him in Remainder, fo as to veft the Eftate, but not to prejudice the Lord of his Fine, for
after the Death of Tenant for Life, be in Remainder fhall be admitted again. Quaere. Gilb. Treat,
of Ten. 158.
4. There is no Fine due to a Lord fo long as he has a 'Tenant. 3 Ch.
R. 36. Pafch. 21 Car. 2. in Cafe of the Attorney General v. Sands.
5. The Defendant and others were the Plaintift''s Tenants in the Fortifcue
3Sorth, and the Duke claimed a general Fine upon the Death of the late ^^^'^^.^?'
Dtitchefs i and a great Number of Tenants denying the Duke's Right ^2 Gea i
to fuch a Fine, as being only Tenant for Life by Settlement &c. the in B. r' the
Duke brought his original Bill toeftablifli his Right. The Defendants Duke of
by Anfwer inlifted, the Duke was not intitled to a general Fine as next ^'^'^\^^^J'
admitting Lord ttpon the Dtitchefs's Death, and Detendants brought a .J'^^^c
Crofs-Bill to be relic, ed againlt the Duke's Demands, and to ellablilh fays, it was
their Rights. agreed, rhat
a Cui^om
F f Upoa
I I o Copyhold.
(\JJu,on ^f'"^ whether the Duke was .j.tuled co a general Fine upon the Dcaca
theChai-ge oi the Ducchels as nexc ad.'Tiitting Lord, or nor.
of every 'Ld. Ard upon Trial at rhe liar of B. R. the lalt Term it was found f r
- -S'"' tmit' ni '°'rr ^'^'^^"^>' 'fr^'^ ''' ^^^^^ ^ufaJ::fj::
Cnaon.;hur^^'^^''i'%^"^'I,§JS^' ^; the general fnie, and decreed rhe Tenants to
tl.at the P^y the Fines airefled, referving a Liberty to fuch of the Tenants as
Court a. ftould think fit to try the Reafonablenefs oi the Fine aflefs'd aoon Eieft!
S £' ^^ l^: '^:^f^p ^^^ Duke at the Pen] of forfeiting the^r SS.
Lord is only ^^ ^^P- ^^^'^h. Yac. I73J. Sommerfec (Duke) v. Freame & al* & e
Tenant for <-On:ra. ^ "*
L'.fe, or
Tenant by the Currefy fuch Curtom is good.
(B, c) What Remedy lies for the Lord for his
Fines.
Dfbt ivill
he for a
Fine upon
'■ T ^1^}°'^ ^^"^ ^^'"g ^^'o« of Debt againft the Copyholder fof
— ^- bv.n4 ^,Ei"^.^/V'H"''T^"^'^Y^^^^"i"^^^^-' and^ not denied
an Admit- ^> ''n}', and Twifaen fa.d mat fo it was held by Foller f i c Tac which
tance to a was not denied but ic was faid, that the Opinion of Bacon was' e Con
a?.te"Jiy 'SoJ.t ^'^ ^'^ ^'^ ^^^^'^ ^3 Car. ..B.V. inCafcof V^heeler";.
all Carth.
^2. Mich. 1 W. & M. in B. R. in a Nota, in the Cafe of Shuttlewcrth v Garnet Pilh
the PofTefCon, and refufl-s to be ad nk S". : t the Lord'^flaf have n\f f ' "h' 'j? "f 7'^
Kcporrer thinks he cannot v.aive the PoSn which rn n^^W ^^^t for the F u,e ? and the
Record, or . that Cafe of Copyhold uJtl^:t^:'^.;'J^^\J^ J .L^entTin^'
S'ren^S: ^- ^^ I ^^^^Y^''^^ ^" ^'? ^^"'■^ '^' F'"^ 's ""ai". and his Heir
Z75. cites ""^'l^^^f^-f^^//'"". ^usre it the Lord may have Aftion of Debt
,<< C. and againft him tor this Fme; The Reporter fays it feems to him that he
fays It feems cannot, inafmuch as he reiufed to be admitted and waived the Poffeffion
'hat the r ' 't'^lJ'^^'u^' ^ ^"^'^ ^^ '° '^^ ^^'^i^^'" °^'^he Poireflion, becaufe
Heir may 1.°"^^ ^old that he cannot waive the PofTeffion ; for, being an Inheritance,
tvaive the intereltdelcends, and therefore Precipe quod reddat lies againft the
.HoffeiSonin Heir at Common Law before his Entry. Sid. ?8 pi. 26 Mich i? Car
Record or ^^ '" ^ ^'"'^ '"^ '^^ ^"'^ °1' '^^ C^^^ of VVheeier v. Honour. '
iu the Cafe ot Copyhold Lands in the Lord's Court ; and if he may do it, then no Fine is due.
3. It is not De communi Jure that if the Tenant refufes to pay the
I'lne that he JorJe:ts his Eftate, for in fome Places the Lord fbaU reiCe
^.^.^//M^^^^ Arg.and feems admitted. Skin.
2JO. Hill. I & 2 Jac. 2. C. B. Titus v. Perkins
4 II the Lord demands more than he ought, he may make his De-
mand de novo for the Judge, in Cafe of ^greater Bemand than is due^
ought not ^o adjudge as much as is due to the Lord, and bar him from
the Rehdue, but ought to adjudge agamji kirn for the Whole, and that
bis
Copyhold. J I f
his Entry w as tortious if he had entered, and put him to a new De-
mand i Per Herbert Ch. J. Skin. 249. Hill, x & 2 Jac. 2. C. B. in Cale
ol Titus V. Perkins.
5. 9 Geo. I. cap 29. S I. Enafts, that where any Perfons under the yf^e
of 2 1 Tears, or Femes Covert, jhall be tnutled by Dejlent or Surrender to the
tffe of a liji Will, to be admitted 'Tenants of any Copyhold TenententSy fuch
Infant or Fane Covert in their proper Perfons, or fuch Feme Covert by her
^ittorney, or fuch Infant by his Guardian, then his Attorney (for which
Purpofe they are i/»po-Ji'erd by Writing to appoint Attcrnies) jhall appear at
one of the three next Courts which Jhall he kept for fuch Manor, whereof
fuch 'Tenements pall he Parcel, and ft all there tender themfehes to be ad-
mitted Tenants^ and in Default of fuch Appearance, and of Acceptance of
fuch Admittance, the Lord or his Steward, after three Courts holden and
Proclamations made, may nominate at any fubfequent Court, any ft Perfan
to be Guardian or Attorney for fuch Infant or Feme Covert for that Purpofe
only, and by fich Guardian or Attorney may adtnit fuch Infant or Feme Co'
vert, and impofe fuch Fine as might have been impofed, if fuch Infant had
been of full Age, or fuch Feme Covert unmarried.
6. S. 2. The Fine fet thacon may be demanded by the Bailiff, by a Note
Jigned by the Lord or his Steward, to be left with fuch Infant or Feme Covert,
or with the Guardian of fuch Infant, or Husband of fuch Feme Covert, or
with the Tenant of the Tenements to which they were admitted ; and if the
Fine be not paid to the Lord or his Steward, within three Months ufter De-
mand, the Lord may enter upon fuch Copyhold EJl ate, and hold the fame,
and receive the Rents, but without Liberty to fell any Timber till by fuch
Rents he be paid the Fine with Co/Is, although fuch Infant or Feme Covert
happen to die before fuch Cojls and Fines be raifed; of all ivhich Rents received
the Lord Jhall yearly on Demand render an Account, and pay the Surplus to
fuch Perjon as ffjail be intitled.
7. S.7,. As feon as fuch Fine and Coji pall be fatisfed^ or if after fuch
Seifure and Entry the Fine and Cofts fhall be tendered, then fuch Infant or
Feme Covert or other Perfon intitled may enter and take Poffefjion ; and tf
the Lord, after the Fine and Cojis fatisfied, or tender\l fhall refiife to de-
liver PopeJJion, he (hall be liable to make Satisfaiiionfor all Damages and
CoJis.
8. 6". 4. Where any Infant or Feme Covert pall be admitted to any Copy-
hold Tenements, if the Guardian of fuch Infant, or Husband of fuch Feme
Covert, pall pay the Lord the Fine and the Cofts, then the Guardian or the
Husband, their Executors Sc may enter into, and hold the faid Copyhold
Tenements, and receive the Rents till they be fatisfied all the Money they
pall disbar fe on the Account aforefaid, notwithftandtng the Death of fuch
Infant or Feme Covert.
9. S. b. If the Fine be impofed in any of the Cafes before mentioned (hall
not be warranted by the Cuftom of the Manor, fuch Infant or Feme Covert
Jhall he at Liberty to controvert the Legality of fuch Fine^ as they might have
done if this Ail had not been made.
(C.c)
1 1 2 Copyhold.
(C. c) Remedy for Fines after the Lord's Death. For
whom it lies.
Canh.90. I. rnp HE Lord afleflTed a Fine upon Admittance of a Copyholder of
^'P' j^' _L Inheritance and died. Executors brotight an Ajfum^h^2.nd hclA.
cordingly", P^^" sjufticcs, that it lies; But Holt Ch. J. contra, becaufe it is a Duty
by thi-ce ' arifing out of an Inheritance, Cultom, or Tenure ; but by the other
Jiifticesa- three in this Cafe the Fine is kn, and does not depend on the Inheri-
ginitHolt tance, bu tis as Fruit fallen. 3 Lev. 161. Trin. 1 VV. & M. in C. B,
Comb. 151. Shuctieworch v. Garnet.
S c. ad- _
]!! ged by three Juftices, contra Holt, that an IndebitatU'i Aflumpfit lies for the Lord of a Copyhold
J^ anor for a Fine ; but this Cafe does not mention that the Aftion was brought by, but agjjnrt an Ex-
icutor. — ; Mod 259. S.C, adjudg'd by three JulHces, contra Holt Ch. J. for he htld, that if the De-
/endart h^d died indebted to another by Bond, and had not Aflets befides that would lkti»fy this Kjne,
il the Executor had paid it to the Plaintiff, it would have been a Devaftavit in hiffl^
/ndif the 2. The Heir can't enter for a Fine in his Anceftors Time ; but per
Feu- dies \{q\x. Ch. J. if it were forfeited and demanded he may. Show. 35. Tnn,
p v°mentof ^ ^^^- ^ •'^^- '" ^^^^ of Shuttleworch V. Garret,
fuch cuftom-
ary Fine, Adtion lies fjr his Adminiftrator. Ibid.
(D. c) Forfeiture. In what Cafes. And the Effect
thereof.
Lord Coke i. TTCTHERE a Copyholder is outlaw'' d the King fliall have the
fays that y\ Profits of his Copyhold Lands, and the Lord has not any
holder'' be R-^medy for his Rene. Arg. Le. s^. at the End of pi. 126. Mich.
outlawed or 3oEliz.
excommuni-
cated, upon Prefentment the Lord fliall have the Profits of the Lands It is faid in Lex Cuft. 210.
that if a Copyholder be OK/Zawuii «w a Per/onal J&hn, it is no Forfeiture of his Copyhold, but the
King fliall have the Profits ; Quaere of this ; For then how can the Lord have his Services paid
him? Quasre, if a Copyholder forfeits any Thing in Utlawry, unlefs for a capital Crime. Gilb.
Treat, of Ten. 227.
Hetl. 127. 2. A Copyhold 13 not determin'd or forfeited by Outlawry. Litt.
cites S. C, Rep 234. Arg. cites it as adjudg'd 44 Eliz.
3. All Forfeitures may be reduced into thefe Heads ; either voluntary
Afts done to the Prejudice of the Lord, or negligent or wilful Refufal to
do and pay his Duties and Services to the Lord, which by the Laws and '
Cuftoms of the Manor he ought to do and peribrm. Supplement to Co.
Comp. Cop. 74. S. 9.
4. An Entry before Admittance is no Forfeiture, without a fpecial
Cuftom pleaded, but the Heir may malce a Forfeiture for Non-payment
of the Rent, as the Cullom was there pleaded before Admittance. Calth.
Reading 60. cites 30 H. 8. Dy. 41. 16. there,
5. li t\\Q 7'enants have tifed to have Common of Pa^ure in their Lord's
fFoodSj for Horfe-Cattky and they pat in their Neate-Cattlef and dejtroy the
Woods
Copyhold. 11^
IVoods, this is an Abuieri but it is hut fineabk^ and no forfeiture of the
Common^ which they might have rightlully ufed, no more than if they
have Common lor a certain Number of Bealls in the Lord's Soil and
they will exceed the Number ^ this abufe by their Surcharging is only
fineable, and no forfeiture. Calth. Read. 26.
6. Where the Law gives the Lord other Recompefjce it never will ^utr. ioi5.
make a Forfeiture. Litt. Rep. 267. Pafch. s Car, C, B. Pallon v ^C. ando^
Utbert. 'thcW
Upimon
^ TT ,» „ were ail the
Court. — Het. 5. Pafion v. Manne.S. C adjomatur.
7. By Forfeiture Copyhold is extingtitfhed^ and lb determined Aro- MS. Rep.
Skin. 8. Mich 33 Car. 2 H. R. ' "' Trin. 7-Gca
8. The Cafe of a Copyholder was compared to the Cafe of a Tenant at HenryPea-
Wtll, viz,, that which would be a Determination of the Will at Com- chy v the
mon Law, is a Forfeiture ot the Copyhold. 11 Mod. 94. pi a Arg Duke and
Mich.5 Ann. B.R. Anon. t r ;»• &• Outchefsof
9. Sir H. P. Copyholder inFee of Lands held of the Manor of Petworth ^°"'"'"-
in the County of Sullex, which belonged to the Defendants in 1693,
makes a Settlement of them on his Marriage with Jane Jan6t, in Truft for
himfelffor Life, then to Jane for Life, then to thejirfi and every other Son
of that Marriage tn Tail Male fttccefjlvely &c. The Premilfes were after-
wards furrender'd to the \}{t& oi the Settlement, which Surrender was
accepted by the Defendant, Lord of the Manor, but no Admittance tipn it^
nor any Fine that appeared i Sir Henry had Iflue the other Plaintiif his
eldeft Son, and Jane died. The Bill charges, that the Defendants pre-
tending that the Plaintitis, by leafing a Meadow, Part of the Copyhold^
•without Licence from them, contrary to the Cultom of the Manor, had
forfeited the faid Copyhold Meadow to them as Lords ofthefaid Manor,
who infilled upon the faid Forfeiture, and brought an Ejeftment againfi
the Plaintiff, Sir Henry, to_ recover the PolTellion ^ the Bill therefore
prayed to be relieved againll the faid Forfeiture upon Payment of
Colts &c.
The Defendants by their Anfwer infift, that the Cuftomof the Manor
was eftablifh'd by Decree of this Court 36 Eliz. yet the Plaintiif, Sir
H. Peachy, 25 January 1714, had made a Leafe of this Copyhold
Meadow to one Allen for 11 Years, 13 1. per Ann. without Licence
from the Defendants, and they do inlilt upon this Leafe as a politive and
wilful Breach of the Cuftom, and alfo, that the Plaintiff had forfeited
feveral other Copyhold Tenements by grubbing up Hedges, Topping, and
Lopping Ttmber Trees, and digging Quarries &c.
The Plaintifs, upon this, bring a fupplemental Bill, and charge, that
the feveral Leafes ref err' d to by the Anfwer were made by one Dee, then
Steward to the Defendants &c. and were made without any Deftgn to pre-
judice the Defendants, and as to the Pretence of Wafie they charge, that
about 25 Tears ago the Defendants did fell feveral Timber Trees to feveral
Copyholders, and among the reji fmnc to the Plaintiff', with Liberty to carry
them off in 15 Tears, which was the fame Timber, and no other j that as
to Hedges grubb'd up, they were fuch as grew between Copyhold Lands on
hoth Sides, and not between Copyhold and Freehold.
The Anfwer to this Bill admitted Dee to be Steward to the Defendants, •
and put the other Matters in Iflue,
Counfel for the Plaintiffs cited feveral Cafes of Relief againft For-
feitures in this Court, and particularly in the Cafes of Copyhold, CCC
13. IptgfacD, Tempore Harcourt C. B'iil brought to be reliev'd againit
a Forfeiture of a Copyhold, in which Cafe Mr. Vernon cited feveral
Cafes for the Piaiiitili,(lcil) CftOmaSD* J^Otter,! Chan. Cafes 95. where
Relief was decreed in Cafe of voluntary IVaJle (Sed Vide the Cafe whe-
^ g cher
11^ Copyhold.
ther the Quellion was voluntary Wafte or not) jf^aflj "0, tlje (£arl Of
2!)£rbP 20 Feb. 4 Ann. per Cowper C. Bill to be relievM againlt a For-
feiture" of a Copyhold by feJJr/ig of 'Timber^ there the Queltion was, if
the Timber was imploy'd in the Repairs of the Copyhold or not } And
after an Ejeftmenr brought, and one Verdift for the Copyholder, and
another Verd id lor the Lord, the Copyholder was reliev'd in Equity
upon Payment of the full Value of the Timber felled, and the Cofts
of Law', and in Equity, he was reitorcd to the Poflellion of the Copy-
hold.
CUUWOrC l3. IRiltlCn in Cane, a J^uaker Copyholder refufcd to do Fealty ;
the Lord leiled lor the Forfeiture, and the Qiiaker wasrdiev'd. In the
principal Cafe ot COP. % IMfOXXi, Harcourt C. difmis'd the Bill, but
that was upon the ipecial Circumftances, it appearing that there had
been 30 Years Obltinacy in the Tenant, and Refufal to repair, and do
Homage, and that the Lord had made leveral OiFers &c. if he would
repair &c.
iJBljiftlCt ^' CilS05 per Coventry C. S. a Surrender made and pre-
fented in Court, but a Forfeiture inlifted on, becaufe the Surrender was
not made to two Tenants of the Manor, the Plaintiff was relieved pay-
ing the Fine, and the Lord paid Cofts. ^fjcllp 5). i^tlfau per Coven-
try C. S. a Forl'eiture inlilted on for leafing without Licence^ the Copy-
holder was reliev'd, and the Lord decreed to account lor the Prohts,
and rellore the PolieHion. lUCa0 Ij, IpenninStOlt, the Cafes of Cor
ll, 'BCOlDU, and ^atl!) ^» jfUllCC were cited, where an Entry ioi Non-
payment of Rent by Copyholder was reliev'd againlt in this Court on Pay-
ment of the Rent.
Counfel for the Defendants argued, that at Law this is a Forfcicure,
and that two Points were to be conlider'd in the Cafe,
lit. If the Court can relieve at all in fuch a Cafe ?
adly, If it be reafbnableto doit in the prefent Cafe?
This is different tirom the common Cafe of Forfeitures for Non-pay-
ment of Rent or Money, which are Matters depending on the Agree-
ment of the Parties, and for which, if a Circumllance is flipt &c. a
Compenfation may be made. Here the Copyholder is by Cultom but a
Tenant at Will, and his Leafe without Licence is a Determination of
his Will, and confequently of his Eftate, fo as to relieve here is in Effect
to relieve againlt a Cuftom, and totally alter the Nature of the Copy-
holder's Eftate. The Cafe of COj; ailD 'BtOtUlt cited for the Plaintiff
had fpecial Circumllance, the AJJignment of the Leafe there (which makes
the Forfeiture) was made for Paytuent of Debts, and that was the Reafon
the Court there reliev'd againlt the Forfeiture. The Cafe at Law Jikeft
to this is, where Tenant lor Lite makes a Feoffment, or levies a Fine,
the Reafon of the Forfeiture is, for that the Tenant takes upon him to
grant a larger Eftate than his Intereft will bear. The Cafe of ^OCgatt
§. SiCUlianiOCC was no more, than whether the Lord Ihould be at Li-
berty to let what Fine he pleas'd, or be reftrained by the Court where
the Fine was arbitrary, and the Lord was limited by the Court to two
Years Value. As to the Cafe of djaumiS iJ* ^i^OCtet i Chan. Cafes 95.
there was fome Difference about the Value of the Timber felPd, but the
Chancellor declar'd he would not relieve in Cafe of wilful Wafte, and
referr'd the Caufe to the Biihop, the Defendant, though he afterwards
dire£ted an lil'ue to try if the primary Intention of felling the Timber
war to do Wafte, or as the Order was worded, to try whether the W^afte
was wilful or not, and the Plaintiff was releiv'd upon the 2d Verdidl for
him. COi: % IpigfOrH was of Permiffive Wafte.
This Cafe is very ftrong againft Relief upon the Circumftances of it j
For the Plantift' in 1694. made no lefs than 3 Leales without Licence,
and it is in Proof he endcavour'd to make a Mutiny among the Te-
nant j
CopyJiold. 1 1 <;
nants of the Manor, by diirwading the Homage liom prefenting Per-
fons who had tdl'd Timber, which are very great Aggravations ia
the Cafe.
And as the Law is with the Defendants, and there are no Precedents
in Equity of Relief in fuch Cafes, and if there were, thefe Aggravati-
ons would Exempt this Cafe from thofe Rules, there ought to be no
Relief here. It was alfo Urged by Mr. Mead tor the Defendants, thac-
as this Cafe was, the Plantirt" was not proper for Relief in Equity,
That this Cafe did not come within any of the Rules touching Re-
lief againll Forfeitures in this Court. The mofl general Rule that he
could find was laid down in <ZOX illtU KUITeII'S CSfC 2 Vent. 352,
that a Forfeiture lliould not bind where a Thing may be done alter-
waids, or a Compenfition made for it i As where the Condition is to
pay Money, or the like, and the Relief given in that Cafe was on
the want of a Circumliance only ; And as to the Cafes of Relief a-
gainft Conditions of Re-entry for Non-payment of Rent, and of
Mortgages Forfeited &c. they have gone upon this, that fuch Con-
ditions are as Penalties againll which this Conrt will relieve j but
there are many Cafes where a Court of Equity will not give Relief
againll Forleitures, as the Cafe of 15ZXtiZ iinU JtOCD JfalHlatttl, per
Somers C, and afterwards in Dom' Proc. ntibere the Conditiofi is prece-
dent to the verting of the Eltate, this Court will not relieve againft
the Breach thereol, tho' in many Cafes it will relieve againll a 6W;^/-
tion fubfeqiietit hy which an Eltate is to be divelled, becaufe that falls
under the Rule of Compenfation, and fuch Conditions are not favour-
ed. So was the Cafe ot ,frj? \}, POUtCC i Chan. Cafes 138. i Mod.
300. per Bridginan C. S alfilled with the Judges, v/here Relief was
refufed againll the Breach of a Condition. It is a Itronger Cafe here,
becaufe the Condition here is annex d to the Kfiate by the Laiv^ and. not by
Ad: of the Party, and if therefore Relief Ihould be given in this Cafe,
it would be to make a new Law ; For by the Law a Copyholder is no more
than a 'Tenant at Wil/, ftibje^ to the Ciijhms of the Manor, which if he
hreaks, his Efiate is by Law Forfeited. It is true, (according to the
Cafe of jfOCH aUD rpOgUtll^, Cro. 368. and ^©EKUJICU'gl Cafe^ 4 Co.
28. b.) that Chancery can alone compel the Lord to hold a Court for
the Admilfion of a Copyholder; So this Court has reliev'd where a
Lord and his Steward had by a Fraud got a Freeholder to be admitted,
as by Copy of Court-Roll, .as in the Cafe of rpanunOnU l3. Slinp,
per Parker C. but in the Cafe of S)mitl) ailtl UX* U* Dcatl 8115
Cljaptei of ©t. \?m% ailD i^Ugle, per Jetleries C. and re-
ported in Pari. Cafes 67. A Bill was brought to compel the Lord of
a Manor to receive a Petition in Nature of a Writ of faife Judgement
to reverfe a Recovery in the Ccui t of the Manor, whereby an Eltate
Tail was barr'd under which the Plantiff claim'd, the Bill was Dif-
miffed, and the Dilmillion affirm'd in Dom' Proc'. There is no Cafe
where a Copyholder has come for Relief againll a Forfeiture but up-
equitable Circumltances, and in this Cafe all the PlantifF's Equity is,
as he fets it out in his Original Bill, that the Leafes were made by
Miftake &:c. and in his fupplimental Bill, that the Leafes were made by
the Under-Steward of the Manor, and he offers to pay Colts at Law,
and in Equity, to be reliev'd ; Now as to the Pretence of Ignorance or
Miflake, the Copyholder is bound to take Notice of the Tenure at all
Events. As to tl.e Cafe of Ball) % tU Catl Of DCCbp, there were
equitable Circumltances, fo in the Cafe of CUHmOCe M, Ka^EUj of
the Quaker's refufing to do Fealcy, and thereupon the Lord enter'd
for the Forfeiture, probably there were fome fueh Circumltances, for
the Lord might be aware of his Perfwalion, and might take an unjull
Advantage, and Conditions annex'd to Copyholds feem in the Eye of
the Law to be diilhcnt Irom ihofe annex'd to Freehold.^, as in the
Cafe
J 1 5 Copyhold.
Cafe in Hardrefs ; That the King can't take Advantage of the For-
feiture of a Copyhold Eltate in Cafe ot Treafon, becaufe the King
can't be admitted as Tenant to any Lord.
As this Cafe is compofed of many Ingredients of Forfeiture, among
which zve voluntary Wajfe, and alt en fig the Boundaries, thofe^o to the
JDi/inherifon of the Lord, and the Definition of his EJtate and Manor y
efpccially when, as in this Cafe, they are repeated, and the Gales where
Relief lias been given are generally of one lingle KSi of Forfeiture,
and that extenuated by equitable Circumftances, but belides all the
reft is in Proof here that the Plantiff, Sir Henry Peachy, has excited
the Tenants at feveral Courts to break the Cuftoms of the Manor &c.
by declaring that they were Badges of Slavery, and that he was for
Liberty, and the like. And he mentioned a Cafe cited by Attorney
General, as decreed in the Dutchy Court, where they would not relieve
aga/nft a Forfeiture for ■plowing up an ancient Meadow, and concluded
that this Cafe did not come within the Reafons of Relief upon the
foot of Conipeniation.
Reply by Chefliire Serjeant ; He cited the Cafe in i Rolls Abr. 854.
PiCriSlJ* QiCliP nut! IpOmC, reported in Owen, 641. Le. 126. Hul-
band feifed in Right of his Wile for Life of the Wife, inteolFs ano-
ther to the Feotlee, his Heirs and Alfigns, ad folum Opus et Ufum
of the Wife during her Life ^ it his there doubted if this be a Forfei-
ture, becaufe of the kit Words, (during her Life,) which feems
applicable to the whole Sentence precedent, Ut Res Magis valeat quam
pereat, but he fubmitted fuppofing that to be a Forfeiture at Law, if
this Court would not relieve againft it, and put the Cafe of Tenant
for Lite levying a Fine fur Conufance de droit come ceo &c. and
declaring the Ufes of it by Deed precedent or fubfequent, to be fuch
as Tenant for Life might lawfully majce, if the Reverlioner in that
Cafe fliould enter for the Forfeiture, whether this Court would not
relieve againft it.
Mr. Talbot inlifted in his Reply for the Plaintiff, that there were
divers Inftances of Relief given her againft the Breach of a Condition
by Copyholders, viz. Relief given in Cafe of Non-payment of a Fine^
that is, Relief againft the Breach of a Condition in Law. In the Cafe
ofCO.Cll* |)iO>fOrO Inhere was this Circumftance againft the Plaintiff,
that he came here lor Relief after the Lord had been 9 Years in PolFef-
fion under the Forfeiture, and though the Leafc by the Copyholder be
a DilTeilin to the Lord, yet it is fo but at his Eleftion, and the Fine
for the Leafe is capable of being afcertain'd fo as the Lord may have a
Recompence.
As to the Objection that the Leafe is a Determination of the Will of
the Copyholder, and confequently 01 the Tenancy, it is polfible when
the Tenants were meer Tenants at Will it might be fo underftood, but
Time and judicial Determinations have changed the Nature of their
Intereft, and they have fomeching very near, if not properly an Inhe-
ritance i and as to the Cafe of Tenant for Life making a FeofTment, it
is hard to imagine that he can do it without intending to prejudice the
Inheritance, which may therefore incapacitate him for Relief, but a
Copyholder that looks upon himfelfas Owner of the Inheritance on fuch
grounds, cannot be fuppofed to have any fuch View in lealing, efpecially
when the Leafe takes Notice that the Lands are Copyhold, as in the
prefent Cafe, and lince the. Leafe is only a Difl'eilin to the Lord at his
own Eleftion.
Refolutio Curiae; A Copyholder is conlidered at Law as a Tenant at
Will to all Purpofes, except the Continuance of his Eftate, but it is
true, there have been many favourable Relblurions for the Benefit of
the Copyholder, by which he has got an eftablifh'd Eftate, and the
Lord
Copyhold. 117
>
Lord cannot determine his Will otherwife than as the Cuftorh aFlowsj
fonnerJy the Tenant was to perform all his Services while he conti-
nued Tenant, which was at the Lord's Will, but the Will cannot
now be determined but where the Cuftomdoch allow it fo to be, and
in the Cale ot' Tenant's mdlc'-ng a greater KJiatcthan he laivfully rnay^
that doth ddirnnm his Will ; tor it is an Ufurpation upon the Right of
the Lord, -md the Cafes of Tenant for Life leafing pur atiter vie, or Te-
f) ant for a great Nninber of 2'ears leafing for Life, have been held Forfei-
tures, not from any Notion oj their intending Damage to the Inheritance,
but as it is a quitting or difclatming their antient Right which is thereby
determined, and this is the Gale here. Now the Queition is, What there
is to relieve upon in Equity in this Cafe ? To fay this is a hard Law
is to repeal it here ; it has been admitted on the Part of the Plain-
titis, that in the Cafe of Walte, where the Place wafted and treble
Damages are recovered, there can be no Reliel, tho' the treble Da-
mages are more than a fufficient Recompence to the Revcriioner, buc
that they fiy is by a Statute Law ; it is true, but there is no Dif-
ierencc in a Common Law Cale, if there were, it would confound the
Law ; It is true, in Cafes ichcre the Condition annex'd is as a Security
to haije a Thing done, this Court can relieve tn Cafe of Non-performance,
becaufe the Thing may be done thd" not perhaps at the fame Day or Place
&c. the Party for whofe Benefit the Thing is to be done has all that
he in Confcience can ask, but this Caie cannot corns under the Noti-
on of a Compenfation, the Lord here is not hHrt,fo cannot be made amends ^
lilt iP fldnds on the foot of the Nature of the Tenants RJlate. This Court
has relieved againfl: Forfeitures for Non-payment of a Fine, or of Rene
by the Copyholder, the Forfeiture there is conlider'd only as a Secu-
rity to the Lord for his Fine, or his Rent, and the Thing is done in
Etle£l and made up as advantageoully for the Party, tho' it varies in
Circumftance of Time, Place, cr the like j nor can the Law in this
Cafe of Forfeitures be called a harlh Law for the Copyholders, becaufe
it has given them in other Things fo many Advantages &c. This
Cafe is llronger than any that have been mention'd, it makes nothing
iot the Plaintiff that the Lords Stewards was a Witnefs to the Leafe,
for it is not pretended that he was fo with the Duke of Soraerfet'a
Notice, and the Plantitf indeed put Confidence in him, but not the
Defendants, and it would be flrange if his Afts fhould be conftrued to
prejudice thofe who' did not truft him ; here have been no iefs than 3
Leafes made at dlflereht Times, and it won't avail that it is takea
Notice of in the Leafes, that the Lands are Copyhold, fo long as
the Ground of the Forfeiture is the Tenant's granting a larger Eltate
than he can grant without Licence from the Lord, and it is certain
that a Repetition of thefe Afts would in Time deftroy the Manor, and
the Plaintiff's Difcourfes (which are proved) exciting the Tenants to gee
rid as it were of their bale Tenure, is a Circumftance againfl him. I
fee no et^uitable Circumftance in this Cafe to vary it from what it
would be at Law ; it was proper enough for the Plaintiff to come here
to difcOT-er what were the Forfeitures inlifted on, that he might be
prepared at a Trial to defend againft them, but now that Difcovery is
had it is merely at Law upon the Queftion, Forfeiture or no Forfel-
tHie .' I cannot relieve the Plaintiffs.
H h [E. c]
1 1 8 Copyhold.
JJ;n" [E. c] mat A^or Thiug ihali be a Forfeiture,
Letter fD.)
in fol. JO/.
JF tl CopplbOlQEC comes into Court, and fays he renounces his
Copy, tw 10 not a«p jfacfetttire. £^, 37 ^U 'B, fa l)elQ.
r
(F. c) Forfeiture by Misfeafance.
^.LeioS. i,'V7'0rgingnew Ciiftoms\s,ii¥ox{^e\tmQ, for it tends to the Difherifon
pi.i5S. Jj oi the Ld. Arg. Het. 7. cites D. * 228.
Eliz. B. R. Taverner v. Cromwell, S. P. argued, but at lenj^th the Court v,ifhed the Jury to fiid
the I'becial Matter, aiid to refer the lame to the Court whether it was a Forfeiture or not." — * Tnis
feems I^lifprinted.
2. Outlawry IS no Determination or Forfeiture of Copyhold Eftates,
Het. 127. cites it to have been fo adjudged 44 El.
3. If a Copyholder in Prefefice of the Court fpeaks irreverent Words of
the Lord, as that the Lord exaReth and extortctb unreafonable Fines^ and
undue Services, this is finable only, but no forfeiture j and if he fays in
Court, that he will devife a Alsans no longer to be the Lord's Copyholder ^
this is neither Caufe of Fine nor Forfeiture ; lor perhaps the Means that
he intended was lawful, viz. by pahing away his Copyhold j Et Ubi
fenfus Verborum eft multiplex, Verba femper funt accipiendain meliori
fenfu. Co. Comp. Cop. 64. S. 57.
Calth.Read- ^ ^i ^ Steward fljews a Court Roll to a Copyholder to prove that his
^^^^^'''^'^' Land is holdenhy Copy, and the Copyholder fays he is a Freeholder,
and lliews a Deed pretending thereby to procure his Land to be Free-
hold, and tears in pieces the Court Roll, this is a Forfeiture ipfo fafto.
Co. Comp. Cop. 64. S. 57.
5. A Forfeiture is not induced by any Collateral thing, but by fome
Aft that is a Dilinhericance to the Lord and therefore an A£f: that makes
a Forfeiture ought to be againji the Cujioni ; for his Eitatc is fix'd by
the Cuftom as long as he does the Services and obferves the
Cuftoms. Het. 7. Palch. 3 Car. Arg. in CafeofPaflon v. Manne.
Het. 5.Par- 6, The Forfeiture of a Copyhold is always by fomething done to the
^°^ o'n^^^' Copyhold Land it felf, i'o z. Copyholder inclo/tng Part, where the Lord by
and the' Cujiom claims a Fold-Courfe over the Lands of hus Copyholders, is no
Court faid, Forfeiture, becaufe this is Fold-Courfe of the Lord's which is no Copy-
it is to be jriQid^ and 'tis better for the Copyhold, and makes the Land better, and
prefumed, ^^^^ beneficial for the Lord ; and this F'old-Courfe is a Thing that
Land was Conimenceth by Agreement, and it is but a Covenant and not a CommcH
made better Right^ And Forfeitures (which are Odious) ihall be takin itrictly lor
by this In- the Ld. Hutt. 102. Pafch. 5 Car. Pafton V. Utbert.
dofure if
It be no: exprefsly alkg'c, to be Contrary fed adjornatur.
7. Defacing of Landmarks is a Forfeiture. Gilb. Treat, of Ten. SiS,
[G. cj
Copyhold. I [ 9
[G. c] Forfeiture by Misfeafance j As Making (D^^'j^p^"'^
Leafes. 7 «n ^oi.
507.
i.TJF a COppIjOiOCt leafes his Copyhold for 4 Years by Parol, to Cro. E. 49S.
X commence ac a Day to come, tlji0 10 a JfOtfntUrr, tIjOUgtl It tZ ^^'^-.f^
not in poircirion, nor Dp Jnnentute, noc im been a Diireifm if Uict) Sd byaii
Cftatc Iiao i3ccn ffrantea lij? a tenant ati©iU, foe Oe IjatJital^cnj unices to
to Warrant
it. For he has no Authority by Law to make fuch Eftate ; And tho* this is a Leafc to begin at a
future Day, and the Leffee has not entrt.d, yet it is a Forfeiture prefently ; for it is a good Leafe be-
tween the Parties, Mo. 592. pi. 50S. S. C, and S. P. agreed by all that it wa.s a F"orfeiture,
whether the Lefec had entred or not becaufe ir was an illegal Contract made to the DifTierifon ot the
Lord. Supplement to Co. Comp Cop. 74. S. 9. cites S. C. and S. P. accordingly, tho* the Leafe
isgood as between the Parties. — ■ Roll Rep. 75. Mich. iz. Jac. Coke Ch. 9. cites it adjndg'd it5
C. I"*, in Willows's Cale, that a Fine of i 1. impos'd upon a Copyholder for admitting him, the Copy-
hold being but of the Value r)r ;o -i, a Year, was very outragious, and confequentiy void. Gilt>.
Treat, of Ten. 219. cites S. C, that it is a Forfeiture, becaul'e ot the unlawlul Contraft made to tljc
Lord's Difiierifoa.
2. 3lf a Coppljclocc leafes ijid Coppljolu to nnatljcr, to have antJ Jhis in
rOljOlp to IjUn lorone Year, and fo ironi Year to Year duiing the^ j (^-^
Lite of the Lellor, referving tO tljC IClTOi; in CUCrp .^Cac the 2;th Day )^-^^./v>y^
oi March, tlji^ 153 a * loifeiitirc, foc ti)i0 igi a Icafc tor tiuo J^ears at * foi. 508 '
leafr, referijins one Dap i fo tljat a ijceatcr €iiate tijan far one oor>o
^ear paffCf) in Jnterctf , auDtije Refervinga D.iy in every Year isf^'ft-^'S-
butashiic to aijoiti tije iforfeitiirc* ^iclj. n lac* 15. R* uvmtn wlToA
Lutterel and Wejhver. C. adjudged
accordingly.
•And Ibid. Fleming Ch 'J.' faid, that if he had refevv'd a ^^onth at the End of every Year,
•"■- " b j-.*""-i — - ..^-, .. - - _. ...- ^.^,j i ,...■ ,
it would have been all one a,s referving a Day, and a Foilcuure clearly. Cro. J. 50S. pi, 5.
S. C. adjudged per. tot. Cur. without Argument.
3. If a Copyholder that may leafe for three Years bp tf)C CUltOm, Thi,s in
leales for three Years, and fo Irom three Years to three Years, tiJi nine J^°y C^ )
Years, tljig 10 a jf orfcitute, for tljtp i!3 a leafc for fir ^ear0 at tbe ' ^ '^■
ieaff. 1p>» I. 3ac, ntUock's cafe abjiiUficD* _^ . .
4- !jf a Copyholder for Lite agrees to make three fcveral Leafes by J^'^J^ in Roll
Jndenture, Clie to commence after the other, tIjCre beUIOi two Days ^^^l"^!^ '2-
between the End of the Firll and the Commencement ot the fecond, j,, j,^ pi/
anU fo between the fecond and tlie third, ailH after IjC mahe0 t!}emi5 s. C.
aCCOrCtngly, anQ feaJs them at one Time, tl)l0 IS a JfOrfeitUre, for ^udgM---
t})i0 i0 an apparent jFraisn, nnu a greater eifatc tban for onefcXdred
■^m paired prcfentlp. i^» 7 Car. 05* R» between M^thruis and i^H^,}^, -^
hheaton, aBjitugeo lipon a fpectal Deroict, 31 mv^felf being ne Con^ r^- and nc
filio Clucrenti0, antratur mh 4 ^ar* Kot* 496* . J„;^^"^°j;,'^_
ing the Life of the Copyholder, exccpth:?. one Day at tie Evd of every Tear, for the Copyholder to enter,
and this only to avoid a Forfeiture, this isa Forfeitute. I. Bulft. 215. Trin. 10 Jac. Lutlerell v. Wefton.
Flemming. Ch. J faid, that if he li.id referved a Month at the End of every Year, it would have
been all one as refevving a Dav, and a Forfeiture clearly. Buls. 215 S. C. — Cro. J. 90S. pi. 5. S. C.
adjudg'd. Gilb Treat. of Ten. 218. citesS. C. and fays it was adjudg'd, thatihc 2d. Leafe was
a Forfeiture ; for it is not Warranted by Cultom, and fo being out of tl.e Cuffom. it is, as every other
Leafe for Years, a Forfeiture , for th.o' it be not to commence till after the firlf Le-ifc ended, yet the
Land is charged with a doiihli- Intereth one in Prifenti, the other in Futuro, whicli is ag^inft the
O.i(*otr, and lb a Forteitur-. 2dlv. h'was adjudged this Leafe was void agaitift the Ld who had the
V"^ ' ■ L^tad
i 20 Copyhold.
L'.'id bv the Sui-i-ender, and wlicn the Ld. enters by Force of the Surrender, he is in by Tide para-
mount the Lea'e. fcut it r,:ems the fiiil Lclll-e )1i..ll enjoy liis Leafe, or elfe it were in the Power of
the Lord to defeat bib own Grant ;. There i<; notliinp; faid of this, but the Cale in Roll i.-, That
Leafeswei-e rxecuted i.t one and the {'..ma Tiiiie, and then the LcDee, bein« Particeps Crirfjiilis
nriv rei-haps forfeit ; and as the Cafe is re(orttd by the rcll, the Leale was made to him to commeiice
in Pc'verllon and fo he is as much Pavtv to the Wrong as in the other Way ; and fo it I'eems the Ld.
may enter prcfcntly. See ( T. c ) pl/5. S. C. and the Notes there.
This in Roll 5. Jf a COppIjOrCCL* innliC0 nLeafe for Years by Licence of the
(D.)is pi. Lord, ti)C Lellee may -.illign it OlJCL*, or make an under Leafe, without
''^- any new Licence, fOC tijC 3iilterCll Cf tljC LOrfl Midfi UifCljarSCQ fc?
ti)C fiVtt Licence; Ip, 12 3ia» €* Wmm Johnjon ami Smart, peC
Ciiuaui.
6. A Copyholdfer makes a Lcafu either for Lile or Years of his Copy-
hold Lands, which is not warraiiud by tke Citjhvi of the Manor • Now
altho' fuch Leafe ilull be a good Leale betwixt the Copyholder and his
Leifee, and he Ihali not avoid his own Leafe, yet as unto the Ld. it is
a Forleiture of the Copyhold and of his Eltate, and the Ld. Ifidll take
Advantage of fu ch P'oifeiture, and may enter upon the Land.s leafed.
Supplement to Co. Comp. Cop, 74 S. 9. cites .4 Rep. Aiurrers Cale.
7. A Lcafc for 2 cars of Copyhold Lands by Indenture, »;• h ParJy
is a Forfeiture unlefs there be an e.xprels Ciijfom to warrant n, and that
Cui\omnmil be T'lmc out of All /id. Cro. E. 351. pi. 3. .Mich. '56 and 37
Eliz.. B. R. Jackman v. Hoddellon.
8. Copyholder m.ade a Leafe for 3 Lives, and Lhcry, and the Survi-
vor of the 3 continued in Pojjfffion 40 }7ars, but becaufe no Livery
appearedon the Deed to have been made, it \va3 no Forfeiture of which the
Kin<7 who was the Lord could take any Advantage. Godb. 269.
pi. 374 Mich. 5 Jac.
Pj.^a /,f.r/e p" If a Copyholder makes -3, Leafe for \ Tear , according to the Cu-
'"•■ ""^ ^^'"■' ftom, and covenants, that after that Tear ended he Jhall have another Tear,
""ifmin J-,!- and lb in this manner De Anno in Annum during the Space of 10 Years ;
',.mn iltirwq this is no fuch Leafe as will make a Forfeiture of his Copyhold Ellate^
TO Icavs is j^jj. j.j^^{. he h;is no lawful Leafe here but for i Year only, and it is only
clearly a , ^^ Covenant, agreed per tot. Cur. BullL 190. Pafch. 10 Tac.
good Leale ,/,■', t i •'
for , o Years, Hamlen V. Hamlen.
and lb a
orfeiti;
-Supplement toCo. Comp
Forleiture. Ibid. Cro. J. 501. pi. 6. Lady v. Mont3|»nc's Cafe S. C. and Same Points accordingly.
~ "omp.Cop. 74. S.9. cites S. C. — Gilb.Treat of Ten. 219. cites S. C. but faysQuEre,
and See the Book ; For the Words Co'vei:a!it atni Grant make a Leafe Sec. but in another Cale it was
held that thefe Words by Conrtruction might make a Leafe where the L:)nds might be let ; but
othei-wife where the Lands could not be let, which Diftinftipn feems very reafonblc ; for the Words
themfelves donot import a Le.iie, and would be a vcrj^ injurious Conftruction to make them a Leafe,
and fo a Forfeiture, when they only import of themfelves a Covenant. — A Leafe, tliat will make a
Copvbolder forfeit his Eftate, oup;ht to have a certain Beginninf; and End, or elfe it is a void Leafe,
andean oonvey at moft but an Ellate at W411, which is no Forfeiture. Gilb.Treat. of Ten. 218.
cites S. C. and S. P. per tot. Cur. U
.Supplement 10. A. Copyholder for Life hath Licence of the Lord to make a Leafe for $
to Co. Comp. years, if he livefo long, and makes a Leafe for 3 Tears ■withottt Limitation,
s'^^ cit-s y^"^ ^'- '^ "° Forfeiture of his Eftate, becaufe the Leafe without any fuch
S. G but if Limitation to the Eftate Ihall determine by the Death of the Lelibr, and
he had been therefore not" material, but if it had been with a Limitation, that // y. .S".
MOopyhoi- ^^^ ij^,^,^ fo long. That Peradventure had been material ; wherefore ic
itliad been ^as adjudged for the Plaintiff: Cro. J. 436, 437. pL 7. Mich. 15 Jac.
u Forfeiture B. R. Worledge v. Benbury.
of his Eaate
to have made fuch an abfolute Leafe, becaufe he had done more than he was liccncel to do by the
Law ; And fo it was adjudged in Hall and Arrowfmi[h's Cafe, which fee in Pjpham's Rep.
XI. Infant
Copyhold. X 2 f
11. Infant Copyholder in Fee leafcs for l^ictrs without Licence^ rcndri tig Godh. -6 j^. '
a Rent ; and at full /ige he accepts the Rcnt^^ and after oulls his LelFee, P'-456S. C
who brought an Eje£lione Firmae and agreed by the Court, i. That a adl^n .'tur'^
Leafe for Years by a Copyholder, although that it be a Forfeiture, yet •>. 157;
it is no Dilfeilin to the Lord. 2 That the Leafe is not void but void- p'- 2- S. C.
able, and may be affirmed by Acceptance and Judgment for the Le/Tee ^'^Hs'^'*'^"'*
for Years. And agreed that fuch a Forieiture, does not bind an Infant. menA^ffifm-
Noy. 92, 93. Trin. 2. Car. B. R.. Alhfield v. Afhfieid. ed by all the
Jufticesand
Bavons in the Exchequer Chambef. Lat. 199. S. C. agreed that ir was no DifTeifm to the Lord,
and adjudged that tae Leafe was not void, but the Lcflee iiad }ud{»ment againit the Infant.
If the Copyholdei- innf<e a Lealc it is a Forfeirure, yet it is no Difffiftii to the Lord, which is plain
from the Cafes that f:iv fuch a Leafe is good ngaiiifi every Dody Lit tie Lord, for ir could not be a Leafe
at all if it were a DiiTeiiin , It is a Forfeiture, berauie the Copyholder has broke the Cuftom of the
Manor, by brinf;ii;g in a Tenant without any Admittance, but it is no Dilltifin in Favour of the
Lord fince the Copyholder hath fuch Elhte as may iaft much longer than the Leafe, and not a baie
Leafe at Will. Gilb. Treat of Ten. 217, 2i3.
12. A. Copyholder for Life beifig indebted loo 1. and one P. S. being bound
with him for the Debt, A. executed a Deed to P. by zvhich he did covenant y
grant, and agree with P. &c. that he Jhonld have and enjoy his Copyhold
Lands for 7 Tears, and fo from >] to '] Tears, for and during 49 Tears, if
A.jhould fo long live, but to be void, if the fa id 100 i. was paid by A. &c.
It was inlifted, that this was not a Leafe fo as to entitle the Lord to a
Forfeiture ; the VV^ord (Covenant) or the Words (to have, hold, and
enjoy) in Cafe of Freehold will make a Leafe, but ifconltruing it to
be a Leafe will work a Wrong, then it is only a Covenant, and no In-
terell vefts, therefore this Being in the Cafe of a Copyhold, fhall never
be conftrued to be a Leafe, becaufe it would work a Wrong both to the
Lellbr and Leilee, for the one would tbrfeit the Eftate, and the other
would lofe his Security i The Court inclined that it was a good Leafe,
and confequently a Forfeiture of the Copyhold, that the Meaning of the
Parties mull make Conilru6lion here, and that feems very Itrong that it
is a good Leafe; but they gave no Judgment. 2. Mod. 79. Pafch. 28.
Car. 2. C.B. Richards v. Seely.
(H. c) Forfeiture. Making Leafes exceeding the
Licence.
I. "jT O R D grants a Licence to his Copyholder to grant a Leafe for The Juftices
I J 20 Tears from Michaelmas next, and the Copyholder makes a 'aid, that
I^afe to C. and afterwards ([but before Michaelmas) makes another Leafe Leafe*j°"
to B. for 21 Tears each by Indenture^ the Jultices doubted, if making^o;^i,„ /„,^
the fecond Leafe be a Forteiture, but Anderfon Ch. J. thought it a For- re/?, ^.nd
ieiture. Mo, 184. pi. 329. Mich. 26 Eliz, Anon. ii^x^h ^fi'P-'
^ "^ pel, but if
the Lord being a Stranger to the Eftoppel may affirm this Leafe againft the Leffor is the Doubt. Ibid.
. Sed Ciuxre, for the Leafe was void in Point of Intcreft, and only worked by way of Eftoppei
betwixt the Parties, and if no Intereft pafled, how could it be a Forfeiture ; yet had the firft Leafs
been furrendered, the fecond Leafe would have taken EfFeft, and then the Land had been charged
with a Leafe without Licence, bat till that happened the Land was charged with nothing in Point
of Intereft, and this iiot like the Cafe of a future Leafe, for there the Land is bound prefently, and the'
this may happen to be a Charge, ycixhe SuppoJ:ti«n is foreign^ and ought not to be intended to work 3
Forteiture. Tre/t.of Ten. 2ao.
I i 2. Lord
122
Copyhold.
it jj.5c--^at .:^A<t-a
2. Lord licences his Tenant to make Leales lor 21 7 cars , Tenant makes
2 Leafes to two leveral Peribns for the Term, if the Lord may affirm
the 2.4 Lcafe againlt the Ldlbr is a Doubt. Mo. 184. pi. 329. Mich. 26
Elu. Anon.
This prove? g. There is a Difference between a Copyholder in Fee and a Copy-
j^^^^^^S*^"" holder for Life, for if the Lord licences his Copyholder in Fee to make
fcent and ~ ^ Leafcyor 3 Tears, if ke Irce fo long, and he makes a Leafc abfolutely,
not by his this is no Forfeiture ; for this Leaie Ihail be a good Intereft againlt the
Admittance ; ^cir of the Copyholder, but other wife of a Copyholder for Lite and in
Yx may have |^Q|.}j Cafes the Condition is void, and the Lelfee is in by the Copy*
Ejeament, holder, and not by the Lord. Ow. 73. Hill. 38 Eliz. B.R. *H'addon
or may fur- V. Arrowfmith.
render be--
fore Admittance. Arg 5 Lev. 32^. in Cafe of Glover v. Cope. — ^ — ♦Poph, 105. S C. j-eports this
Point juft Vice Vei-fa, viz. that a Leafe fo made by Copyholder in Fee abfolurely where the Licence
■was limited, had been a Forfeiture, because he did more than he was licenced to do ; but a Leafe fo
made by Copyholder for Life makes no Forfeiture, and they agreed, that fuch a Licence cannot be
made void by Condition hibfequeat to undo that which was once well executed, bur there may be a
Condition frecidcnt united to it, becaufe in fuch Cafe it is no Licence till the Condition is performed,
but the Licence before mentioned is not a conditional Licence, but a Licence -with a Lwiitaiiar., and
therefore had not been of Force if the Limitation which the Law m^kes in this Cafe had not been,
■I'ld the Limitation in Law is preferable to a Limitation in Deed, where they woric to one and the
fame £fFe<5l, and not dirt^erent. Hall v. Arrowfmith, S. C. If Cupyhohier j or Life bath Licence H
let j or ^ ll;cirs if he fo long lives, and he ieall-s for 5 Years abfolutely, it is no Forfeiture of hi.sEtf.ite :
but otherwilt in Clafe of a Cop\l older in Fee. Poph. 105 Hill. 38 Eliz. Hall v. Arrowlmith. Giib.
Treat, of Ten. 280. cites S. C. & S. P. accordin^iy, but fays it is otherwile had the Copyholder h.-id
a Fee and the Limitation had been during the Life of a Stranger. The Words (.if he lives fo
long) are but to fliew how long the Lcafe is to continue, which is no more than what the Law
appoints, and fo it is good enough, and t!iey are but Words of Surplufage and no more than f what the
Law fays, and if they had been infeited in the Leafc it would have been in vain; had it been in the
Cafe of a Copyholder in Fee it had not been warranted by the Licence, for then the Intent would be
to give him Licence, but !:ot to hurt the Heir, and without thofe IVords in the Leafe the Heir Jl:cu!d he
bound, and the Leafe good; but it is otherwife of a Copyholder for Life, for the Law without thofe
Words determines the Leafe by hi.^ Death. Cro. E. 461. 4.62. pi. S. S. C.
_ j S. P. But if it had been wi:h a Limitation, ;/ J.S. had li'jed fo htig, that perhaps had been mate-
rial. Cro. J. 437. inCafeof Worledgc v. Bcnbury.
. [I. c] Forfeiture by making a Grant SCc. as at Com-
mon X^avv.
ro ) '"s^"" i-T Jf a CCppIjOitiCf bargains and felJsthe Copyhold tO EttlOtljet inPee,
pi. II. in .1 anD after tljc Deed is not inroiied, pct tljis>i0 ti jfocfeiturc, for
Pol. 508. -It tootilti ijatic BctctmineD a leaft at mill, terns i^aDg bv a Icffce
If a Copy- atj©iiu Contra ^. 3B 39 en?, 'B, K*
holder bar-
gains and fells by Deed indented and inroiied 'tis no Forfeiture of his Copvhold, of which the Lord
can take any Advantage. Godb. 269 pi 37^. Mich 5 Jac. in the Exchequer, cites it to have been
fo adjudged in London's Cafe. Supplement to Co. Comp. Cop. 76. S. 10. cites S C. accordingly ;
becaufe the Copyhold did not pafs by the Deed. And in that Cafe it was cited to be adjudged'
in London's Cafe, that if a Copy- Tenant doth bargain and fell his Copy ■.Tenement by Deed indented
and inroiied, that the fame is no Forfeiture of the Copyhold of which the Lord can take any Ad-
vantage ; And fo it was holden in this Cafe. Godb. 169. pi 374. Mich. 5 Jac. Anon.
This in Roll 2. SoifaCoppIjOincrmaltClESa Deed of Feoffment with a Letter
i7_ifte °^ Attorney to make Livery, tljOUfff) IJUetJ? hZ llOt UiaDC aCCOtO'
mJkes a mfilP, PCt t\0 Iff S Jf OCfCttUtC*
Charter of
Feoffment, or a Deed of Demife for Life, but makes no Livery, this is no Forfeiture, becaufe no-
thing pades, and therefore no Alienation, but otherwife it is of a Leafe for Years. C». Litt. 59.3.
■ Gilb. Treat, of Ten. 220. cites S. C, and favs, that by a Leafc for Years an Intereft palVes
by
Copyhold. 12 2
hy t!ie Delivery of the Deed, and therefore it is a ForRitiiic. Gilb. Treat, of Ten. 320'
cites S. C.
3. "But otherwifc Jt fCCm.0 It (6 if it bC without a Letter of Attor-ThisinRoll
ney, tOr It teffS III IjUU ilt all CmiEjS tO pCtftCt it, aillirofjiS3l©lUl!3 ^i) is
not pcrfcftEii t!ii tt ijs Done. Q9tcl> 38, 39 €U id* K, Co. lit* 59-p'p' ;• — •
agi it feeing it 1^4 to be iitteiiBeti* ciench. j,
3 Le. 109. -Gilb. Treat, of Ten, 523. cites S. C It wi<; adjii%'d in the Exchequer, that
where the King w.ts Lord of a Manor, and a Copyholder within the Tiid Manor made a Leafe tot
5 Lives, and fnade Livery, and afterwards the Survivor of tiie 5 continued in Poffeffion 4oyears • And
in that Cafe, becaufe that no Livery did appear to be made upon the Endorfeinent of the Deed, (al-
tho, in Truth there wa.s Livery made) that the fame was no Forfeiture of which the King fljould
ti'.ktt any Advantage. Godb. 26^. pi. 374. J\Iich. s Jac. Anon.
4. Entry en le Pcft againll an Abbot, who faid that his Predeceflbr
leas'd the Tenements to the Demandant, Habendum at VV^iil, by Copy,
who enteoff 'd the Demandant, by which the u4tjlot ente/d for Aliena^
tion to the Di/inheritance of his Hotife^ and admitted lor a good Bar, by
which the Demandant faid, that his Grandfather was leifed in Fee,
abfque hoc that the Predecellbr leafed Prout &c. Br. Entre en le Per
pi. 33. cites II H. 4. 83.
5. A Surrender by 'Tenant for Life to the Ufe of another in Fee^ is not Mo. 755;
any Forteiture, for it palles by Surrender to the Lord, and not by Li- P'; '°5'^- ,
very. 4 Rep. 23. a. pi. 4. Pafch. 35 Eliz. B. R. in Cafe of Bullock fp ' -J'^'.
V. Dibley. Supplement
to Co, Comp.'
Cop. 75. S. 10 cites TS C. but ftates it, that befides tbe Surrender he made Livery of the Land,
and that it is no Forfeiture for the Reafon above. • Such Surrender in Fee is no Forfeiture, be-
caufe the Surrenderee comes in by Admittaiicc, and the Lord hath difpen fed with him. Cart. 2^3.
Ver Cur. Hill. 2(5 & 27 Car. 2. C. B. Bird y. Kirkby. . Gilb Treat, of Ten. 178. cites Bul-
lock V. Dibley, that it is no Forfeiture ; For it may be feen by the Court Rolls who is Tenant, ami
fothe Stranger is at no Lofs to fue.
6. Tenant by Copy cannot alien his Land by Deed, for then the
Lord may enter as into a Thing forfeited to him. Litt. S. 74. But
when a Man has but a Right to a Copyhold, he may rckafe it by Dscd
or Copy to one that is admitted Tenant de fafto. Co. Litt. ^■9. a.
7. The making of a Deed alone, unlefs fame Thing pafs thereby is no
Forfeiture j As if he maice a Charter of Feoffment^ or a Deed of Demife
for Life, and makes no Livery^ this is no forfeiture ; becaufe nothing
pafles, and therefore no Alienation j But otherwife 'tis of a Leafe for
J'ears. Co. Litt. 59. a.
8. If a Copyholder for Life ftirrenders in Fee this is no Forfeiture^ be-
caufe it did not pais by Livery. Co. Comp. Cop. 64. S. 57.
9. If z Copyholder for Life fttfers a Recovery hy Plaint in the Lord's A. I'enant
Court as Copyhold of the Inheritance, this is a Forfeiture ipfo fa£to. {^ ^'f ?/ *
Co. Comp. Cop. 64.' S. 57. kl&
to B. in Fee;
A. fuffers a Common Recovery. Refolv'd per tot. Cur. that without a particular Cuftom this is no
Forfeiture of the Eftate, but if it be, it is the Lord and none elfe that can enter. 2 Mod. 53. Pafch.
27 Car. 2. C B. in Cafe ot Kren v. Kirby. Cart. 237 Bird v. Kirkby, S. C. & S. P. held accord-
ingly per tot. Cur. — Freem. Rep. 192. pi. 195. Kirby's, alias, Kirk's Cale S. C. fays it was eonceived,
that the fuffering b Recovery in Fee was a Forfeiture of the Eftate for Life ; but tliat the Lord fliould
hold it during the Life of him that committed the Forfeiture.^ Mod 199. pi. 31. Bird v. Kirk
S. C & S. P. held accordingly ; For the Freehold not being concern'd, and it being in a Court
Baron where there is no Eltoppel, and the Lord who is to take the Advantage of it, if it be a For-
feiture , being Party to it, it is not to be refembleti to the Forfeiture of a Free Tenant, and that Cuf-
tomary Eftates have not (iich accidental Qualities as Eflates at Common Law have, unlefs by fpecial
Cuftom." Gilb. Treat, of Ten. 220, cites 5. C. ba: fays it was otherwifc adjudged in the Cafe
of Bird V. Keck Ideo Qu«re.
10. If
1 2 A. Copyhold.
10. If a Copyholder makes a Ftqffhient of ail bis Lands in Dale, and
makes Livery in Charter Lands ; no Part of his Copyhold Land is
thereby forteited ; Euc if Livery be made m any Pan of the Copyhold
Land, all his Copyhold Lands are forfeited. Co. Comp. Cop. 65.
S. 58.
11. If a Copyholder hy Deed of Bargain and Sale inroUcd according
to the Statute, doth bargain and fill all his Land in Dak, having both
Copyhold and Freehold, his Copyhold is not thereby forfeited ; For
the Law will conlirue this to extend to his Freehold only, rather thao
by any over large Conftruclion make a Forfeiture in this Kind. Co.
Comp. Cop. 65. S. 58.
12. If a Copyholder by Deed inrolled bargains or fills all his Copyhold
Lands in Dale, or all his Lands in Dale generally, having no Freehold
Lands, this is a Forfeiture. Co. Comp. Cop. 6$. S. 58.
13. It a Copyholder makes a Bargain and Sale of his Copyhold, and
k is not inrolled according to the Statute, this is no Forieiture, no
more than a Feoffment without Livery, becaufe nothing palles. Co.
Comp. Cop. 64. S. 58.
14. If a Mau grants a Farm by Name, and all his Lands &c. ufually
held occupied thcrc-^itb, and it happens that fome of the Lands are Co-
pyhold, this will not be a Forieiture; per Cowper. Ch. G. Equ. R,
14. Hill. 7 Ann. in Cafe of Oxwith v. Plummer.
[K. c] Forfeiture by Wafte.
This in Roll I. 1 jF a COppljOlUer commits Wafle againll the Cuftom Of t\)t 9^3.
(D )ispi j^ iioj;, tijt0 10 a JfaKfeittite* €o» 4- ^7- cnfton's Cafe, atimitteD.
I 5. m rol.
to8. . If a Copyholder commits Wafte voluntary or permiflive, this is a Forfeiture ipfo fafto.
Co. Comp. Cop. 64. S. 57. Voluntary ; As if he pulls down any ancient built Houfe, or if he
builds any new Houfe, and then pulls it down ngain ; or if he plows Meadow, fo that thereby the
Ground is made worfe, or lops the Trees, or fells the Loppinj;; or if he cuts down any Fruit-Trees
for Fuel, having otherWood fufficient ; ihefe and the like voluntary Wafles are Forfeitures ipfo fadio.
Co. Comp. Cop. 64. S. 57.
This in Roll 2. 3iftlje COlJpIjOmcr fuffers the Houfe to decav, atttJ fee tOaCltUj
CD ) js^l^ (ijigj jgi jj jf orfCltllfC* %t, 39 €\. lo, ia» bEtiUem 'Rajlell and Turner,
cro. E. 59S. aomittco* Co. lit* 63.
pi. 3. S. C.
but the Point was for burning; an Out-houle ; Adjudg'd a Forfeiture. Suffering the Houfe to be
ruinous is a Forfeiture, admitted per Cur. i Saik. iS(J. pi. 5. Trin. 10 W. 5. C B. Eaftcourt v.
Weeks.
The Defendant in Ejeftione Firms pleaded, that the Lord of the Manor did enter into the Land of
a Copyholder by reafon of Forfeiture for IFafte committed, by fn^mng the Houfis to bs iincozered, by
yet this permijiv
Ow. 17, 18. Trin. 56 Eiiz. B.R. Downingham's Cafe. Permiflive ; As if he fuffers his Houfe
to decay or fall to the Ground for want of neceffary Reparation ; or he fuffers his Meadow, for want
of mending his Banks, to be furroundcd, fo that it becomes rufliy, or worth nothing ; or his arable
Ground fo to be furrounded, that it is become unprofitable; Tliefe, and the like permiffive Walks,
are Forfeitures ipfo fafto. Co. Comp. Cop. 64, S. 57.
ThisinRoU ,, 3|f a Stranger commits Wafte Upatt tIjC C0pp})0l3, without the
(D)hpl^ Affentofthe Copyholder Ijimrclf, tW l^ HOt mW JFortCl'tUrC Of ti)2
s.'^p. as by Cftate of tlje Coppljoioci;* Co. 4. 27- ciifton's cafi agcccD.
cutting
Tices, or if another who occupies by Sufferance of Copyholder cuts tii:m, this is a For.*eiture of fhs
Copyhold.
Copyhold. 125
Copyhold. Mo. 49. pi. 149 t'alch. 5 Elii Anon. Dal. 49. pL 12. S. C. in totidcm Verbis. • .
Gilb. Treat, of" Ten. 2Z!. lays it Cuans no Forflirute, becaufe it is not the Copyliolticr's Aft ; and
fay.s, that Ld. Coke in numbiinf; peimiirive Walk docs not reckon the W arte, done by a Stranger;
And that it is _fo rerolv'd in (Llirfon'5 vLafC, but that it the Husband commits Walk in the Landsot"
the Wife, it is a i^'orfciturc ;,ind fay.s, that it feems every Forfeiture ought to be the wiltul Aftiof
the Copyholder, 1-bas it may amount to a Determination of his Will.
4. 3;fa Copyholder cuts down great Trees, (fcfliCCt, ClUlSS,^ to This in RolS
repai- ■-■- ^' 1. -1 J rr_..,-. ...i..;^i, i^ :_ i^ j , , ^ n ^ ,v „l
cordi
Jjim, vviL.iwuL aii> v^uiLwui m luuvtiiui. u* i»y* 30^ ^y \;i,Ujj XP«. It^v holder cuts
bCtlUeeit Ea/ and Harding^ pa' CUCItUU agCeCB OtlD atljUDiJCD* down Treej
without a
fpecial Cnftom for it, it is a Forfeiture by the Common Law ; Per G.iwdy and Popham, becaule it is
to the Lord's Difiiiheritance ; but per Popham, if it be found that he did it for Reparation of the
Houfe, whereby it is made better, there pcradventurc it is otherwife. Cro. E. 292. pi, 3. Hill. 55
Eliz B. R. the S C. Ibid. 499 pi. 19 S. C. the Court as to this Point were not all agreed, whe-
ther it was a Forfeiture or not, in regard it was found that he cut them for Reparations, and that
they were necelTary for that Puvpofc. Mo. 592. pi. 50S, S.C. and the Juffices agieed, that the
cutting the Trees, it not employ 'd upon Reparations, is a Forfeiture, no Cuilom being the one way
or the other.
5. So if a CopPljOlBCr cats down t\Vo great Trees (fcttlCCt, (Elm.lS,) ^hts in Roll
to repair 1)133 COpp^OiD ^30Ufe, lalHCl) 10 lU DCCaP, and en, ploys one^'^) '^P'-
of them accordir.iily, and leaves the other ready tO bC ClliplOgED, o-o E ^oo
tljougl) |)c l)ati cut '^mw mure tijnn uioura fccije \M ®iirn fot tlje pi. 19. s c
prefcnt, ^et tijis 10 mt any jTocfctture, foe a 99au cannot prectfclp sc s. r by
knoiu luljat taiu be lufacicnL C^o. 385 39 e£L 13* H* bcttecn Eaji ^^«"^y ^^^^
and Harding, peC Cunam* €t 4° $ 4^ ^i* a'OjUligCt!* cordingfy.'
, ^Mo.
595. pi. 50S. fays the Court took it, that the making Reparation.s with it, though it was five Years
after the Cutting, and after the Entry for the Forfeiture, and the Attion brought is a Difpcnfatiom
with the Forfeiture, becaufe Timber ought to be feafoned before it is employed. Ow. 0; S C,
but S. P. does not appear.- Gilb. Treat, of Tea 221. cites S. C.
6. [But] (fa COppljOlSer cuts Trees tO rcpait 1)10 iDOUfe, and aftCCThis in Ron
does not employ them accordingly, but fullers them," JiftCC tl)0 Cltt^*-^-^ '^ P'"
ting, to be putrified anti totten, tW 10 a iForfettuce* ^, 38 $ 39 Mo"T7r7i
€u 'B* ia» ftp cJiitcij. 5os; \he
firfl Refolution in S. C.
7. If there be no Cuilom to the contrary, IFaJfe^ either fermijjive or It is now
voluntan; of a Copyholder, is a Forleiture of his Copvhold. Co. Lite. ^="'^<1. that
^3- a. VVafte is a
Forfeiture;
Per Powell J. Lutw. S05. Trin. 1 1 W. ;. . Voluntary Waffe is a Forfeiture by the Common
Law, but 7:e,^Iiirc!Jt U'alte is not without a Cuftom. Noy 51. by Anderfon and Walmfley, IVIich. 37
& 3S Elii. C B. Farmer v. Ward. '
8. It was faid by Hobart, that a Copyholder may hedge and inchfe, Gilb. Treat.
hut not where it was never tnclofed bejore, and agreed by him and War- °^ ''"^"- 'i^'^'
burton, that a Copyholder may dig for Marie without any Danger of ^' " ^p^^; ,
Forfeiture, but he ought to lay the /aid Mark upon the fame Copyhold fays it feems
Land, and not upon other Land. Winch. 8. Pafch. 19 Jac. in Palton's to him that
Cale. a Copyholder
of Inheri-
tance cannot, without a fpecial Cuilom, A>/oy Mms ; neither can the Lord dig in the Copyholder's
Lands, for the greatPrejudice he would do to the Copyhold Eftate ; And iheCopvholder himlelf feerr.s
to have no Intereft in the Inheritance of the Lands. Sid. i 52. pi. 20. Trin. i 5 Car 2. B. K.
the S. P. as to Mines, Obiter, but left a Quxre. S. P. per Cur. Obiter. Hetl. 8, ia
K k 9. A
X26 Copyhold.
1\!Z ^'f'' r 9. A Cojy)hohkr fiifmd a Hoiife to fall, and repaired h ■ yet held^"
Lar is mif! be. a foofe/r/;-., and it is «o? hke to Wafte at Common La^, tor there if i^
primed and be repaired belore the Jury hath View, it is well enough ■ Skin 211
iTiouldbe in Pool and Archer's Cafe, cites Lat. 277. & Palm. 417. '
Lat 227. " " ''
Mich. 5 Car Connvallis v. Horwood, or Hammond. Palm. 417. Pafch 1 Car BR the <5 C h.„
I do not oblerve S. P. ' "^^ "" °-i'
id. Palling doivn a ruinous Honfe is a Forfeiture, unlefs there is «
Cuftom to the contrary, becaufe IVaJie lies not agatn/l a Copyholder and
yet the Lord in favour may amerce fuch a Copyholder if he will. ' Are
TrI'Tzi ■ ' '^ ^'i""^^"'l ^'''\ '^''■¥ '" "^^'^ ^i»<i^ as turning it into Hop-Ground
cltesS^C 'f =^^°;^^'^"[f' butd.ggmg or improving it in the f.me kind it nor
accordingty. Agreed by all. Litt. R. 267. Pafch. 5 Car. C. B. in Cafe of Paflon v'
in Cafe of
circs S.C. ^°l!'''''''^l ^^' ^""'^n J- ^^d it was not denied. Litt. R. 268. Pafch
^ Car. C. o.
This in Roll [L- c] Forfeiture by Building, or Inclofure,
fD) IS pi. 6.
in fol. 507.—
G>]b. Treat. I. TJF Jl COp^IjOltlCt crefts a new Houfe Upait fl COpPflOlD without
eo^din.^yrP^^'^ff^JcCcnemEnt, tljouffljije altera tijTirXre of tffi^^^^^
butfafsfhitbpit ano tijijs iss not mm m tfjc LcITce foe S^^
then it feemseil?* 03. R. UetUlCCll Qf/V/ W C^^/ ^ ''^* *-*^'''^'-^* ^S
that this
built a new Houre upon Part of th^' Landfln^d h wa'ai udg/a F^^S^-e'^F^^tho^.h'^h^^r'^'H''^-^
better, yet it is in another Kind, and cites 22 H 6. that i Leffee alters hS'^r^-'^"'- ^ "
and takes Timber for it, it is Wafte ; but it was refol/d there, ha i "e bet\er t"e l!:nd If^h '
fame kind It IS no Forfeiture or Wafte Hutt 10- Arp- ftv. rh,r i. """=" H -^^ '" ^^'^
cafe at the firft comin, of Popham to be Chief J tha^bundfngTnew Houfr. /Kifeilu-f'b'"^^^^^
It alters the Nature of the Thing, and puts the Lord to more Charges. foifeituie, bccaulc
llt.T wafal^^TT Copyholder l.:alt a ;;.a- Houfe upon the Land, and ft
nfeJi^^ wayeed to be a Forfeiture. 4Le.241.pl. 393. in Ward's Cafe ekes
new Houfe ^"^- 8 Jac. Anon. *
where none
was before, and without laying 4 Acres of Freehold Land to it, and fo within the Stttute of r„.
tages and after his Death R..„y?„„..p„/;,^y,^„^„, this is a Forfeiture. Bui I 50 Mich ^7^^^^^
i .^ f/ :/ f 3-=.^;-^.— If « Copyholder build, a Houfe, but it is .0, J.r-il is no FoS.^' n
Ch'I'pWtr;.'""""""""'""""^"""^^ ■' perFcnnerJ, Built. 5= -^S:P?by°Po7a;:
?^U/ud^g-.J,,j;j£P>;J°l^^^^^^ but nor Where it was never
Pa/ton's Sfe ' * ' '^ •^''' '^"^ " ^'^ ^''''^ ^y Hobart la
fid'^PfLt n'^" ^^'CfPyholder «-.^. a A<l;/l upon his Freehold it is a Forfeiture
iTinCait ^- ^■"- b- ^^^^g- Pl- ^3- cites [Trin^ Car. Gray v. Ulvfli ]
i'^lrSt^BTWl^^JllS^'' '-'^ "^- Poftsno Wafte !i. fori:; .d;ud,:d. 4Le .,.
Copyhold. 127
5. hiclofitrc of Land with Gaps 111 which the Lord has a Fold-Courfe Hetl. 5. Pa-
Sir 500 Sheep is not a Forfeiture; for ic is a Thing collateral to the Land,^^ ^' c r*
and a Forfeiture of a Copyhold is always by fome Thing done to theargu"^. The
Copyhold Land itfelf^ and this Fold-Courfe is a Thing which com- Court faid,"
xnences by Agreement, and is but a Covenant, and not a Common 'hat it i^ to
Right, and Forfeitures are odious in the Law, and Ihall be taken llrift- '^^ P'"^["'?^'^»
iv, and all the Court were of Opinion, that this is no Forieiture. Hutt. l3^j\^35*
103. Pafch. 5 Car. Pallon v. Utbert. bettered by
this Inclo-
fure, unlefs it be evprefsly HieK'n to the contrary ; Sed adjornatur. Litt. Rep. 16^. S C. refolr-
cfi Gilb. Treat, of Ten. 22-, iiS. cites S. C. that becaufe there wa.'! a Cuftom Jo Fine forfuch
Inclofurc it i.': no Forfeiture ; but if there had been no Cuftom to Fine it feems it is a Forfeiture, be-
caufe there is no other Remedy.
(M. c) Forfeiture. By Crimes. Convldion, At-
tainder &c.
J. TFa CoT^yholditi ht Outlawed or Excoj>n7tn'rikate •, that the Lord
^ may have the Profits ot his Copyhold Land, a Prefentment is
neceflary. Co. Comp. Cop. 64.. S. 58.
2. The Caftoni of a Manor was, that // a Copyholder commits iv/o«y Supplement
and it be pre] cut cd by 12 Homagers, that the Tenant lliould forfeit his!? *^*'-
Copyhold; fuch Prefentment was made againlt A. but afterwards at i^e y^^^'^^^'
jiffifcs A. -was acquitted ; the Lord fcifed the Copyhold ; it was adjudg-S4. S- '9'
ed no good Cultoni, becaufe in Judgment of Law, before Attainder it S.C. accord-
is not Felony. Godb. 267. pi. 370. Hill. 6 Jac. C. B, Pagington alias '"S'^-
Packington v. Huet. mi nUo.
3. Another Point was, whether the fpecial Verdi ff, agreeing with theGmin^v.
Trefentment of the Homage, th^t A. had committed Felony, did intitleCoopeV.
the Lord to the Copyhold notwithftanding his acquittal, Qusere ; for^'''-^"'^
iz was not refolved. Godb. 267. pi. 370. Hill. 6 jac. C. B. Pagington sc^'^'^'l';
ulias Packington v. Huec. to the firil
^ Point ad-
juded clearly a 5;ood Cuftom, viz. thst if any Copyholder commits Felony, he {hall forfeit to the
Lord his Copyhold, and that the Lord upon Prefentment of this by the Homage may enter and
feife the fame, but v/hether the Verdift and Acquittal fhould conclude the Lord of his Entry the
Court deliver'd no Opinion, but Curia advifare Vulr, and the Parties fubmitted the Matter t«
VVilliams J. 2 Brownl. 217. S. C. accordingly. Gilb. Treat, of Ten. 227. cites S. C.
4. Copyholder co,';-y/V? 0/^ F^/o/;^ ;&«i C/er^ allowed before Attainder jCor^vl&ion
the Court inclined Ifrongly chat it is no Forfeiture without fpccial°^J^^'^Y
Ctijtom^ but on the Importunity of Counfel it was appointed to be ^^-}enimmt
gued again. Lev, 263. Hill. 20 & 21 Car. 2. B. R. Jory v. Pawley. thereof by
the fury
vas held a Forfeiture of "he Copyhold Eftate, there being a Cuftom found, that the Lord may
feife. Le. i Borneford v. Packington. S. C. cited Lev. 265. and diftinguifhed the Cafe there
/fora this Cafe of Jory v. Pawly, becaufe there was a Cufiom found v/hich was' not found here.
5. An Outlawry of Felony is an Attainder, and in Cafe of Copyholds Lev. 155.
the Land goes to the Lord, and not to the King, and the Cuftom is good^ ^- ^^'
Caufe to leife, but fhall enfue the Trial of the Faft, and on Acquittal^^^^ ^ "^^^'^
is difcharged. Per Keeling Ch. J. to which the Crown agreed, 2 Keb.
466, 467. pi. 51. Hill. 20 & 21 Car. 2. B. R. in Cafe of Jory v.
Pawly.
6. By Attainder of Felony the Copyhold Eftate for Life is ab/blate-
ly determined, lb that afterguards the Perfon attainted is no Copyholder
aof
128 Copyhold.
nor can he ot the Homage^ or take a Surrender out of Court. 2. Jo. 189, 19a.
Hill. 33 & 34 Car. 2. B. R. Benifbn v. Stroud.
Skin S, 9. ^. In Cafe of Attainder of Copyholder for Life Frefentment is on-
pl. 9- S-^- ly for Inftruftions of the Lord, but he may enter before any Prelent-
Ch"r"held,ment 2 Jo. 189, 190. Hill. 33 & 34 Car. 2. B. R. Benifon v.
that Entry Stroud.
was not ma-
terial, but that the Eftate would be in the Lord prefently without feifure. Curia advifare vult..
5 Lev. 94. Strode v. Dennilon S C adjudfjM that the Eftate for Life was determin'd by the At-
tainder, the Copyhold being only a Tenancy at will, the Attainder determines his will, and the' the
Lord does not enter, and the Kinf, Pardonithe Felony, yet he in Reverfion tor Life mavcnter. Ad-
judg'd in B. R. and affirm "d in Cam. Scacc. 2. Show, i 50. pi. i 53. Betifon 7. Strode S. C AA-
jornatur.
8. It feems, if a Copyholder commits Felony or 'Treafon^ he forfeits to
the Lordly 'ivithout any particular di/lmi, elfe a Felon would have no
PunilLment in his Pofterity, if he had Copyholds of never fo great
Value. Coke in one Place fays, if a Copyholder commits Felony or
Treafon, he forteics his Copyhold prefently ; in another Place he fiys
he forfeits upon Prefentment ; and in a 3d place he fays the Lands
efcheat to the Lord. In none of thefe Cafes he mentions any Curtom,
but fpeaks generally ; It is a Forfeiture prelently belore Indiftmenc
or Attainder, as it feems, becaufe the Cuftora will not in lavour of
a Felon, fupport an Eitate at Will, but let the Lord decermias it, as
in Cafe of any other Eltace at Will, the Law will not give his Eitate
to the King, becaufe then the Lord would iofe his Services, Giib.
Treat, of Ten 226, 227.
[N. c] Forfeiture by Non-Feafance ; Not coming in
on what Summons or Notice. And how Advantage
may be taken of it.
ThisinRoUi. TiF a CoppljOltiei: maKCiS a IJOlUntatp mtD obftinate Abftraaion
(C.Jis pi. 7. X of his Suit from the Court of the Lord upon fufficient Warning,
in Fol. 506. tijics is a JfOCfettUCe i C|3y KepOlt^, 14 31a» * Buttevam and Pkkjiaf
♦ Roll Rep. g^jmjpjej^ cm, 13 ;jji^ '^^ ]^, bCtlUCCn t Sotithm and Adams, pec
s. c. ad- Curiam*
i^Balft. 26S. Hammond v. Wemibank. S C adiud<;'d. f Roll Rep. z$6. pi. 24. S. C.
&S. P. per Cur. ^ — 3 Bulft. So. Belfield v. Adams S. C. & S, P. admitted.
This in Roll 2. Jlf tIjC LOtH giUejj a particular Summons tO C^et? pattlCUlat CO'
(C) is pi- 6. p^JjolDCr, that he will hold a Court at a certain Place, at a certain
''^y^-^^ Time, if anp Of tljElU 00 not come at the Day, t})i|S J0 a jfCCfdtUre.
toM^ 23 m% ^itChriJlopher Hatton's CafC aDjUDgClIi CltCO
ci^ E. 505. p. 38 €\ih 15. jR, in Crifp and Frier's CafC*
in pi. 30.
Crifp V. Fryer cites S. C. againft his Tenants of Wellingborough, and S. P agreed there per Cur. — Mo,
7 so. ph 468. S. C. & S. P. cited, but fays not whether the Summons was particular or Genera!. — NoyjS.
S. C, & S. P. cited Sty. 241. cites S.C. S. P. admitted per Cur. 3 Bulft. So. Mich, i? Jac.
—Ibid. 26S, 169. S. P. admitted per Cur. But in Sir Chi ittopher Hatton's Cafe it wa.< agreed
jh.u if he could excufe his not coming upon .iny good Caufe as Sickiiefs &c it fiiould fave the For-
feiture. Cro. E. 506 Gilb. Treat, ot Ten. 21 5. S. P and lays th^t if aCopyliolder be in Debt,
and is afraid of being arretted, or is a Bankrupt, and keeps Houfe, thefe are good Excufes.
3- 'ZV^l
Copyhold. 129
3. V'llt otherwifl' It 10 upon general Summons, (at tiJCCC pCCljapSi tl)t "^'^'s ■" R"ll
Cctuiiit mux Ijat! Botice tljereon 23 ei. g)ic Ctjriffo^^*^^ '^p' ^
pi)cr ipatton'0 C.ifc, IjclD ^. jJiiCB. tctiicen K?nvr d/;^ f'^'o^-'e^rihT^"^
hmit^ per CUrlilin, Upan a general Summons in the Church, accord- ^sLfeT^or a
ing D) the Cultoni. CoUC'jj (JcntHCy 28 S. bCttUCCJl "tavemer and CnanwcU, wilful Ab-
ntiiuniixtJ, iDl)crc a general S)uninion)3 m tljc Cljuccl) m^mt ay;."^'^''""
iesitiij a ciiftom to iummoti a Court in tfje Cljurdj* cTJfes of
but in rhc laft Cafe the Summons ought te he Perfonal, or at his Houfej Or it ou{;ht to be a-cirred that'hi
hadKoti,e, and 4 O^v's Notice whs held fufficient, thouj^h Walmflcy thought there ought to be 14.
Cro. E. ;s;. p!. 10. iNlich. 56 &5'; Eliz. C. B. Tavcrncr v. Ld. Cromwell ■ Godb 142. pi. i-itf.
IJill -,6 Eli7,. Anon k-ems to be -S C. S: S. 1'. per rot. Cur. and to that Purpofe was cited the Cafe of
Ld. D.icresv. Harlcllon Le. 104.pl 139. Mich. 50 Elix. B. R. Braunch's Cafe, held per tot;
«.!i;- that general Waniinf:; within the Parifli is fufficicnt ; for if the Tenant himfeif he not reliant
nnoT) his Copyhold, but elfewhcre, his Farmer may fend Notice of the Court to him. ■ Non-ap-
pi.niiKC at Court after Suniinons is a Forfeiture of _ the Copyhold, but without Warning it is no For-
feiture, hur o.nlv Negligence ; and after Summons it is a Forfeiture without an exprefs Rcfufal, as in
C/.i^c of Rent , for the ConfequCiicc is more fatal in this Cafe, becaufe without the Copyholder's At-
tendance there can he no Court. Gilb. Treat, of Ten. 21 ^. .\nd Ibid, fays, that the Opinion that
there niull he a Cerlnial Notice is mod reafonab:e ; for as 4 Days Notice has been adjudi^'d a fufficient
'rimj of holding A Courtj how Can a Copyholder be liirainond in that Time that lives 200 Miles
off?
4. if a Copyholder dies, his * H<i\r ivithin Age, the Heir is not bound S. P. 5 Le.
to come to any Court during his Nonage to pray Admittance, or to ten- ^^t. pi. 294.
der his Fine ; And if the Death of his Aiicejlur be not j>refe»ted, nor Pro- ^^^''''0' u
cldtnationiniade^be IS not ataiiy Mifcbief, though he le of full Jge ; per Anderfoti i-
Cur. Le. ico pi. 12S. Pafch. 30 Elir.. B. K.. in Cafe oi Rumney v. Havward.
Eves. S. C intoti-
4 l^ %r). pi S4. S. C in tntidem Verbis. Giib. Treat of Ten. 2i6 cites S. C.
♦ This is altcr'd by Statute 9 Geo. I. Cap. 29. which Sec.
5. If a Man be fo weak and feeble that he cannot travel without Danger^ S. P. cited hj
cr \i he bath a great Office &ic. thefe are good Caufes of Excufe. Arg ^"P^^*" *-■■*
Le. 104. pi. 119. Mich. 30 Eliz. B. R. in Sir John Braunch's^,^^^- '"
Ciie V. ^'t '**
'-""'-' have been
agreed 2"*
EUs. in Sir Chr. Hatton's Cafe againft the Tenants of Willingborr>ugh.- — -^Gawdy J. faidj if the Co-
pyholder be impotent the Lord may fet a Fine upon him, and if he will not pay the Fine it is reafoit
that he ihould forfeit his Land. Le. 104. pi. 159. Mich. 20 Elii, B. K. in Sir John Brauiich**
Cafe.
6. An Attorney appointed by the Copyholder cannot do the Services for Suppltment
him, but he may e[[oin the Copyholder. Le, 104. pi. 139. Mich. 30 Eliz. ^°^'^ Comp.
IB. R. Sir John Braunch's Cale. f^P!'/'
J 13. ad hnem
cites S. C.
& S. P. accordingly.
7. Tlie Summons ofd Copyholder to appear at the Lord's Court was made Supplement
at the Church j the Copyholder did not appear i all the Court held, that !?^°- '^ornp-
this was not any Caufe of Forfeiture, becaufe it was not fpectally Jheited , °P' '''' ^"
to be the Cujiom to make fuch Summons, and it would be hard to make it s. C.
142. pi. 176. Hill. 36 Eliz. C. B. Anon. Toh„
flraunche's
Cafe, the whole Court held, that ^pwra/ Jf^arnirt^ within the Paiip h^Sident ; for if the Tenant
himlclf be not reliant upon his Copyhold, but elfewhere, his Farmer may fend him Notice. -
Cro.E.^50?, 506 in pi. ;o Pophamcited 2^ Eli?.. S. P agreed by all the Juftices in Sir Chriftopher
Hatton's Cafe, againft his Tenants of VS'ellingbornugh, and the fame was agreed by the Court
Mich 588c 39 Eliz. in the princip;il Cafe.
L i S Sur-
I Qo Copyhold.
Cro. E 879. 8. Surrender to A. for Lite, Reniainder co B. in Fee. A. rci/es not
pi. 10 Patch. ^,^ (,^ 2 Proclamations according to the Cultom, ihis is a Forleirure
*'*o^''?- during the Lite of A; but on his Death B. may enter. Moy 42. Bal^
B. K . the , ^ »
S. C. ad- pool V. Long.
Coi-ciiniTly. Yelv. l. S. C. the £ftate of ,4. and B. are divided Eftares, and the Cuftom fliall be
intended of an intire Fee-fimpit given to the fame Perfon ; and the Cultom being to bjr an Eltate
fliall be taken (triCtly. Quire, if luch Surrender is made to A. and B. and their Hcir.s, and A comes
in within the Time of the Proclamation.sj but B. does not, whether if now A. fliall have the whole,
to that the Moiety fliall Be fbt felted ?
^. if he be hindred by Sicknefs^ or be ovcrfloidag oj iVaters^ or if he be
iniich in Debt, and fear to be arrejhd^ or if he be a Bankrupt and keeps
hts Hoiife y then his Default is no Forfeiture. Co. Conip. Cop. 63.
S. 57.
Cro j. 22^,' 10. Forfeiture was by an Heir beyond Sea not coming in at the third
127 pl.t. Prbclamatton ; afcef 20 Years the Heir returned, prayed Admittance,
Underbill V ^^^^ protfcred his Fine, but the Lord reiufed. Adjudged that it was no
^id held by Forteiture, the Heir being beyond Sea at the Time oi the ProclanKition
4"|urtice.s made, and becaufe the Lord was at no Prejudice lince he received the
that it was Profits of the Lands in the mean Time. Godb. 208. pi. 371. Mich
""■ ^'"' u 1 l^c. C. B. Anon,
feiture, but ' J
e contra •Williams f- Taidy that the Lord is at no Mifchief, but may TeiM in the Interim, and fake
the mefne Profits, without being relponfible for them. 8 Rep 90 LechUird's Calc, 6. C. ad-
■ j 'j^ S p. by 7, Juflice.s ; but it was agreed by the Counfel of ihe Utfcndant, that if he had
>^one over Sea after the Det'cent to him he had been bound. Cro J. 101. pi. 92. Mich. 5 jac B R.
Whitton V Williams. Gilb. Treat, of Ten. 216, 217. cites S. C. lay.s, that if fuch Heir -e
■within England at the Time of the firft P'roclamation paffed, and then go beyond Sea, lie fliall for-
feit for he had Warning, and ought to have come in, and not have di'abled hinilelf from making
Claim • But if he had gone beyond Sea after the Defcent, and before ihe tiilt P:oc.amaiion, this had
been no Forfeiture, for at the Time of the Court he is to make Claim ; led C>iisre ; and Gilbert
likewife tuakes a Quaere as to the Lord's being anlwerable for the Profits. Ibid.
8 Rep. 99. a. 11. The Ctijlom of a Manor «'^J, that thofe ifho claimed Qpyhclds by
Sir Richard J)efcent ought to co7ne at the ifi, zd, ur ^d Court, upon Frcclamations made,
c7'^s''c* to take up their Kftates, or elfe they pould be Jorfettcd. A Tenant ot the
' ' Manor having ijfue inheritable by the Cuftom, beyond the Sen, died ; the
Proclamations all palled, and the Heir did not return in two Years, buc
upon his Return he prayed to be admitted to the Copyhold, and proffered the
Lord his Fine in Court, which the Lord relufcd to accept ot, and to
admit the Heir, but feifed the Land as forfeited. It was adjudged in
this Cale, that it was no Caufe of Forfeiture, becauie the Heir was be-
yond the Seas at the Time of the Proclamations, and the Lord was ac
no Prejudice, for that, for any thing appeared in the Cafe, the Lord
had taKen all the Profits of the Land in the mean Time. Supplement
to Co. Comp. Cop. 84. S 19. Hill. 7 Jac. C. B. Copley's Cafe.
- Bui ft So. ^2- Where a Copyholder in Fee withdraws his Suit to the Lord's
Bclficld V. Court ^ and does not attend for 3 Tears, it he was never fummoned to at-
Adams, S. C. tend, this is only a Negligence, and no Forteiture ; but if he had been
^^- ''• p" warned to attend, and atterwards had refuted, it had been a Forleiturci
rlfufingor' agreed per tot. Cur. Roil Rep. 256. pi. 24. Mich. 13 Jac. B. R. South-
denying to cote V. Adams.
do his Suit o /^ ^ a ■ c. /-«
is a ForteitttfC. — Supplement to Co. Comp. Cop. 75. a. 10. cites S. C.
Roll Rep. 13. A Copyholder was y?//w«o;/f^ /o appear at Court, and to do and per-
429 nl. It. fgriii lois Suit and Services as a Copyhold Tenant &c. He made DeJault-
Bnrtev.int V. -j^j^g Declaration was, that Setlam voluntarte ^ ccniemtuofe fubftraxit, y
s'c''itud illam facere recufavir, and that on fucb a Day Notice -dias given tc him by
tk$
Copyhold. 131
the H.ijJ//f oi the Minor to appear, I'Ht did not fay by the Command of the though it
Lord. The Court held clearly, that here is ibfficienc Matter of For- w^s obje<aed,
leicureofhis Copyhold, and that the Declaration is good, and Judg-|^^^y^^^^^«'*
meat accordingly/ 3 BuUl. 268. Mich. 14 Jac. Hammond v. VVinni-J^;^^-^'',^^^"
bank. held in the
ufttal Place,
and if To, that then t*eradvenrure the Tenant was not bound to come to it^ and that the Manor may
contain levcral Hoiifes, and lb the Place uncertain, yet [udgnleiU was given for the Plaintiff Sup-
plement CO Co.Comp. Cop. 75. S. 16. cites S. C. as adjudg'd.
14. If the f/ovr of a Copyholdet- (/ofj not foff?^ /« to be admitted teponKeh.zS-j.
rrcclaviatioiis^ tht Lord may fcize the Land J^uonf/jiie the Tenunt comts?^:9^-^-^'
in to be admitted j without any Cuitom fo to do, hit to feize it as forfeit-^^^^^ Y)inl
id he cannot -juithont a Ciifiom ; Refolv'd. Lev. 63. Pafch. i4Car. 2. B.^es^ the
R. Earl oi Salisbury's Cafe. Lord may
feifc without
Cudom or Perfonal Notice ; and the CoUrt agreed, the Cife of COCk b. ^.U, that one faying he would
come in if tlie Lord had a Court, ocherWife notj that this is tio Forfeiture ; but yet the Lord on fuch
Retufal might icifc (.^uoufquc.
15. A Queilion was, Whether in the Proclamation for the Heir toTheProcla-
come in and be admitted there ought to be a particular Mention of the Lands '^^^°I^ ^^^'^
by Name, as they are named in the Copy, or whether a general Pro-comeinand
tlam;ition to come in and be admitted to all the Lands of his Anceftor be admitted
be fufficient ? This was intended to be lound fpecially, but afterwards w the Lands
the Parties agreed inCouft. Lev. 63. Pafch. 14 Car. 2. B. R. Earl ofjfj^"'*/^'^ ^^
Salisbury's Cale. Ejedment
the Certain-
ty of the Lands were before dcclar d, and therefore Vvindham J. held it fufficient, unlcfs the Cuftoni
be contrary, and not like a Demand of Rent, which being generally of fo milch, as is in arrear, is illj
Quod f uit concefTum per Cur. the Cuftom of the Court being to demand it generally and not to ffecifj the
Lurds. Keb. zSj. pi. 9S. Pafch. 14 Car. 2 B. R. Patefon r. Danges^ alias, Lord Salisbury's
Cafe.
16. Proclamations whereby the Lord claims Forfeiture df a Copyhold
oiffft to be prov'd Viva Voce, and not by the Court Rolls only ; held in
Evidence to a Jury. Keb. 287. pi. 98. Pafch. 14 Car. 2. B. R. Patefon
V. Danges, alias, Ld. Salisbury's Cafe.
17. The Lord upon Seiftire of a Cdpyhdld may mdintain FfeBfftent till
the Heir co7nes in to be admitted ; Agreed per Cur. Keb. 287. pi. 98.
Pafch. 14 Car. 2. B. R. Patefon v. Danges, alias, Lord Salisbury's
Cafe.
18. It is a good Citjfom that d Copyholder Jhall be diftharg'd of Suit toGWh.TrtiX.
Court Baron upon Payment of ^ d. to the Steward for the Lord^ and id. tO'^^Tcn \oS.
the Steward for entrin'g it. Sid. 361. pi. 5. Pafch. 20 Car. 2. B. R. Port- ^ites S. C.
bury V. Legingham. But See Tit. Suit df dourt (D.) S, C. pi, 4. and the^^^^jJ^fL'*
Notes there. averi there
are Copyhol-
ders fufficient to keep Court that live near the .Iftinor, or elfc furely the Cuf^om will be Void ; for then no
CoUit can be held. As this Cafe is reported by Siderfin, it is faid it was held agood Cuftom, becaufe
the Court was a Court Baron, where the Siiitors are Judges^ btlt it feems to me to be all one ; for
that if it were a cuftdniary Coilrt, if fufScient Copyholders Were near the Manor, it is unreafonable to
oblige Perfons that live a great way off to attend ; and if the Court be a Court Baron, if there be not
a fufficient Number df Tenants that live hear the Manor, to do the Duty, then Copyholders are
obliged to do it in that Court as wellasFreehblders, and thei-efore it feems the Cuftom cannot be good,
tor no Court can be held.
19. There hath been generally pra£lifed in moll Copyhold Manors,
that upon the A-fortgage ot a Copyhold the Mortgagor furrenders into
the Hands of two cuftdmary Tenants to the Ule of the Mortgagee,
ypon Condidonto be void if the Money be paid at fuch a Day ; now to
avsid
1^2 Copyhold.
avoid the Fine to the Lord the iifital hVa}' is^ not to prefent the Surre?iiier
at the next Courts bat aftef the Court is over to make a new Surrender into
the Hands of two cultoniary Tenants, ut fupra and fo from Time to Time-
asofcen as any Court ihall be holded, which Non-pre[entment is at Law
a Forfeiture and to be relieved againll this Forfeiture was a Bill exhi-
bited, which North Lord Keeper denied to help, but left them to
Common Law. Skin. 14S. pi. 13. Mich, jj Gar 2. in Chancery
Anon.
20. 9 Geo. I. Cap. 29. S. 5. !^o Infant or PenuCo~jert palJ forfeit any
Copyhold for Negle^., or Refufai to come to any Court., and be admitted:, or
for the OmiJJton or Refufai tii pay any Fine tmpofed on their Admit-
tance.
\
[O. c] Forfeiture.
Jl'lf.mt will be a Forfeiture.
lSlof?jeqjnvce.
[Refufai of Services.]
fiiisiai^oni. Tif ajut)' ot HoTtiage df ttjc S0anac, riftctn nm mane to
(C) is pi. I. J[ prcfent rlje articles of tlje Court, retule to make a Prefent-
i p°Vh "ment nccomius ro tljctc ©atl), iftbc nre Coppljalticcs, tfjiici is a
4 EvL ■ iforfeitucE of tljcir eftatejs* * s:). 4 ^li?. 211.31.
Anon held • r- ^
by ; judices. Supplement to Co. Comp. C.flp. -Jj. 5. lo. cites S. C. and fav;, that it wa? fo
refolved by both tlie Chief fuftices in the StaiT-Chamber in the Earl of Arundel's Cafe S. P
by GawdyJ. Mo 550. in pi 468. Gilb. Treat of Ten. 217. S. P. Co. Comp. Cop. 6;. S.!
57. S. P. and that it is a Forfeiture ipfo fafto. If a Copyholder beinp n ith the oth.-r Copyholders
charged upon Oath to enquire of the Articles of the Court Biron, and lufficient Matter beiii(j given
to them in Evidence to induce them to find a M.ttter tuitbhi their Ch.irgp, and they or any of them
ehfUnately refiife tofnd the fame, 'tis a Forfeiture of their Copyhold, 5 Le. 109. pi. j jS. Trin. 16 EYvl
B. R. feid to have been adjudged, in Cafe of Southton v. Thurfton.
ThisinRoll 2. 31f tlje COppljOlOCC HOElS not pay the Services due tO X\)i lOtD,
(c.a)ispi.5.tiji0 ijj a jfotfcitutc. 42 e 3- 25. 6. atimittco.
in Fol. 506. "J '' ''
'-Br. Tenant bv Copy &c. pi. i. cites S. C and the Lord may feife the Lmd ; admitted for clear Law.
, A Rep. 21. b. S. C. cited per Cur and that the Lord fliall have the Corn then growing.
S. C. cited 3. If upon a Demand of Services the Tenant fays, tlefe Services which
Arg. as you require are doubtful whether you ought to have them or no, and until
Paich. 16 jf i,g refohed by the La-iv whether they are due I will not pay them. Arg.
Eliz.. by the ^ r^ j^. ^,^g adjudged to be no Forfeiture Faich. 26 Eliz. be-
JSame ot tj u 1 i 1 •
Vernon v. tween iSarnham ana Higgens,
Huggins.
Lat. 153. and Crew Ch. J. faid. It is a Queftion, ifCovyholder denies to do .Services which art
dubious, whether this be a Forfeiture 1 Gilb. Treat, of Ten. 216. S. P. -Calth. Head-
ing. 6;. S. P.
Co. Comp. 4. Refufai to be upon the Homage is a Forfeiture ; per Gawdy J-
Cop. 6;. S. j^Jq 2^q pi ^58. Trin 35 Eliz. in Cafe of Crilp v. Fryer.
and this is a Forfeiture ipfo fafto.
Lat. IZ3. 5. If the Lord demands Suit to his Mill, and Tenant refufes, h is-
S P. by 3 forfeiture. D. 211. Marg. pi. 31 cite.* Ti. in. i Car. B. .^. Rot-
Jts't' 633. Gray V. Ulyffes.
6. If
Copyhold. 13^
6. It a (Copyholder be deiujudcd to do his Sfrvices^ and he agrees to do
tha/i, but did net do them for a long 'Time^ this is a Forfeiture ; per
Damport and Crew. Lat. 122. Trin. i Car. in Cafe of Grey v,
Uliiles, and cited 43 E. 3. 5.
7. If a Copyholder docs not come to do his Services^ yet if he be often
demanded to do them^ and fiiU defers^ and puts olf the Time of" doing
kheiti, tho' he does not abfolutely relufe, yet it feems this makes a
Forleiture. Lat. 14. Pafch. 2 Car. Johnfon's Cafe.
8. In Trefpafs &c. The Cafe was, that the Defendant being Lord ^'"' '^'''==>*-
(C>f a iManor, and holding Court, and the Plaintiff being a Copy hoi- "'^'''g"^'^*
der, and prefent in Court, and there being a ^ucfUon^ whether the Co/zr/' according to
''xai legally then held^ or not^ and he being asked if he did appear or ?/o^^ Roll Ch. J
anf\tered^ that if it was a legal Court be Hid appear^ but if it was not a
Jawiul Court, then he did not appear ; Adjudged that this was no Con-
tempt, or Non-appearance, fo as to make a Forfeiture. Roll Ch. J.
thought if there was no real Controverfy as to the Legality of the
Court, but that the ^\^o^ds were ufed only as a iWft to avoid the
riainciif 's doing Suit and Service, it is a Forleiture i but otherwife,
if there was a real Controverfy. And the other 3 Jultices inclined
that it was no Forfeiture. Et adjornatur. Sty. 241. Hill. 1650. Parker
V, Cook.
[P, c] Forfeiture* Refufing to pay a Fine*
I- T jT a Copllf)OltICl* refufes to pay his Fine for Admittance aftCt it 10 This inRbi«
JL oiif, xw lEia jfoifciture* Cl 4 3!ac» 05* E bcttDcm F//^cD)ispi. i.
and Rogers, afftCCO* * J[)Obert0 HcpOttSi 183. bCtlUCen Dcnnj and'^°],^l
Levian. If there be a Demand thereof from the Perfon Of t{)0 'SCcnailt, i-c pj 182*
ottjccuiifc not. Hill. '
C. B. the S. C. Supplement to Co. Comp. Cop. 75. S. 10 cites S. C See (C. a) pi. 3. and the
Kotes there.
It was laid, that if a Copyholder rrfiife to p.iy a renfonalle Fine, or to ie admitted to the Copy-
hold, this is a Foi-feitui-e of his Eltate. Sty. 3S7. Mich. 1653. B.-R. Fanfhaw v. Bond. If the
Lord upon the Admittance ot a Copyholder, the Flue iy the Cnftom of the Manor being certain^
demands his Fine, and the Copyholder denies to pay it upon demand, this is a Forfeiture ipfo fafto*'
Co. Comp. Cop. (54 S. 57. cites 4 Rep. 27. b. Hobirt v. Hammond.
2. Jf tIjC Lord aireffes an unreafonable Fine ttpOtt Ijid CCttailt, attti '^'^'^ »" ^"'1
tlje Copyholder refufes to pay it, tljtS 10 a JFOtfCltUre, \^. 36 ^\iX^_^^'£-^\
13* faCtlDCCn * Taverner and the Lord Cr urn-well aDjUtlgCDi ClteO,,- pi 10 '
l^afclj* 38 €Ii>. 03, E. in Cnfp's Cafe ; it fcem0 tW 10 not laiu ;^. c. but '
(Qt'iiiU tl)i0 Cafe, €oUc'0 €ntfic.0 288. luljcrc no fuel) $?3attci;SPdoes
appcar0 to Ija\3c been m tljcCafc* Contra i %\c. 13. Eot> iSj.!!!!'^^
betmecn t staiion and Bradj, aUjUUg'D (a0 it reeni0) citcii €0,273 b pi
Hit 6q. 1 5. s c
but S. P.
does not appear. 3 Le. ro". pi. 15S. S. C. but S.P. doe.? not appeat*.^ 4 Rep. 27. b. 28. a. pi;
j6. Mich. 42 & 43. Elii. B. R. Hubard v. Hammond S. P. refolv'd Conti-a^ vii. that he may deny
to pay it without Forfeiture and it fh.ill be determined by the Opinion of the Jufticcs before whom
the I^Iatter depends, or upon Demuirer, or Upon Evidence to a Jury upon the Confcffion or Proof
of the Annual Value of the Land, whether the Fine demanded was realbnable or not. — Cro. E*
779. pi, 13. Dalron v. Hammond S. P. accordingly, held per Cur. and feems to be S. C. Supple^
tncnt to Co. Comp Cop. 74, ^5. S. 10, S. P. Co. Comp. Cop. 64. S. 57 S. P*
t 13 Rep. I. Mich. 6 Jac. C B. Willowes's Cafe, feetas to be S, C. 6cS. P. admitted.
M m 3. 13U{
1 ^4- Copyhold.
ThisinRoll ^ 'l^Wt It alter the Fine impoled, ti)6 Tenant intreats the Lord
— Sec^'i t ^" niicibate tIjC ifUie, and nftCr he relufes it, t\]Z Rvlui'A ot the
andtl'cNote.sT'^iiaf^'^'^i'^er to pav this unreulonable Fine ic$ a jfoiffitUrC, 13urc!j;
there. 36 <Cl. 15. til I'ci'verner and the Lord Crtir,rjieirs Cnjt: ttlTtCiG i It
fccniis XW i0 not Lnui. Ct tiiDc tJj'S Cnfe, Colics CiitiTS 288.
Uiljcrc no fuel) Ciiicftiun appcaiis in tfje Cafe;
This in Roll 4. 3f tijC Lord alielies a Fine where the Fine is not certain, aiitJ
(D) is pi. 5 tlje Tenant relufes to pay It, t!)Oll0f) tljlS bC ^Uircr adjudged tube s
"1,^°'J7,;~ reafonablc Fine, ^Ct tljljj 10 tlOt nUP ifOrtntllVC, bCLMtlfC It toS
feem'd°hat Dubioiis to tljc Ccnniit, anliQ5atta ofConttuuaii) lai!jccni.iiri]r
a Copy hoi- mm 'SLenant, uiljctljec tt luasi rcafonabif*
dei's rcluf-
ing to pay a Fine in a dubious Matter, is not fuch an obftinare and wilful Refu'ri! as will incur sFnrfei-
tuic. 5 Lev %r<). Trin. 5 W & J\I. in C. B. Barnes v Corke.— ^ — Bur w Ix-re .iljc: Fine i> certau he
r)ur;ht to tender it, but contra where it is uncertain ; for the Lord ought to ,iIl(s the Fi"c and ad-
mit him, and give him a convenient Time to pay it. Cro. E. -"79. pi. 15. Mich. 4: & 43 Eliz. ilR.-
JDalton V. Han-.niond and if he pays it not, then the Lord to enter.
5. Were a Fine is denied after jidmittance it is a Forfeiture of the
Copyhold, cited by Popham Ch. J. 4 Rep. 28. a. in pf 16. Mich 4.2
& 43 El iz,. as adjudg'd in Sands's Gate, and that it was fo idbWd
by VV" ray and Periani, Julticesof Aliiie in Evidence to the Jurv ia"
Cafe ot Bacon v. Flatnian.
Cro. E 'J79. 6, If the Lord demands an Fxccff^ve Fine, and the Copyholder rcfnfet
J '• ' 'p ^' to pay it^ this is no Forleicure, but othei wiie where a reafonable Fine is
, 4 Rep. dtmanded. Mo. 622. pi. {<ji. Mich. 42 & 43 Eliz. Dalton v.
27. b. pi. Hammond.
16. Hubbard
V Hammond S C. & S. P. Supptement to Co. Comp.Cop. 75 S. 10. S. C. & S. P. Gilb.
Treat of Ten. 205. cues S.C. and 15 Rep 3. [Willows's Cafe ]
7. If the Fine by the Cuftom of the Manor be uncertain^ tho* a
reafonable Fine be afl'eifed, yet becaufe no Man can provide for an
Uncertainty, the Copyholder is not bound to pay it prefently upon
demand, but lliall have convenient Time to discharge it, ij the Lord
limit no certain Day for Payment thereof ; and ijwnhin convenient Time
it he not difchariad, this is a Forfeiture without Prefentmeni. Co.
Comp. Cop. 64. S. 57.
fo Co^Com ^' Though a Fine ajefs'd be reafonable, yet the Lord ought to ap-
Cov°n-°S^ P°'''^ "^ t£r?^/« Day and Place on which it Ihould be paid, becaufe ic
10 citesS.C.ftands upon a Point of Forfeiture of the Eftate, and the Copyholder is
. Gilb-not tied to carry his Fine always with him i per Cur. 13 Rep. 2
Treat, of ^y^^^i. 6 Tac. VViUows V. Willows.
Pen. 105. •'
cites S. C. but a Fine certain he muft pay prefently upon jiimittance.
2 Brownl. 5. The Lord may dijlrain the Copyholder for the Services or feife
y'Downl'^ the Land. Noy 135. Mich. 7 Jac. Rivet v. Doe.
S. C. & S. P. admitted.
ID. Upon Demurrer it was adjudged, that the Lord v^zs not hound
to aver^ or pew that the Fine ajjefs'd was reafonable^ for that muft
come on the Copyholder's Side to fhew the Circumltances of the Cafe, to
make it appear that it was unrealonable, and io to put it upon the
Judgement of the Court. Hob. 135. pi. 182. Hill. 13 Jac. C. h.
Denny v. Lcman.
Cilb. Treat. ii. The Lord ajfeffed a Fine of 12 /. and appointed it to be paid at his
^^ "^^^-^^V Manor-hotife -i, Moriths after-wards, but the Copyholder pretending that
Copyhold.
the h'ine was certain, viz. 2 rears i^iit-Reiit^ offered to pay accordingly
Vii the Djy •wheH the other Fine was affejfed, but on the Day appointed by
the Lord for Pay?ne/it he came not to the Pi^tce to excufe his Nonpay-
ment, nor mude any other Rcfufal ; the Court held that this was a
Forleicure, but ii" he had come at the Jliy and Place aflign'd, and ten-
dred the 2 Years Quit-Kent, being the Fine certain due, according
to the Cultom, though not the Fine affefs'd and demanded by the Lord,
it had been no Forleiture. Cro. J. 617. pi. i. Mich. 19 Jac. B. R.
Gardiner v. Norman.
12. H. was a Copyholderof the Manor of L. and upon his Admit- Sid. fS-pl.
ranee the Lord in open Court ajjeffed 2 7'ears Purchafe for a Fine, and ap-'^- ^- ^■
pom ted hnii to pay it within halj a 2 ear. H. replied, he would pay 3 ^^»"J'o'"the°s''p"
^ntt-Kcnt for the Fine, according to the Cujiom, and that the Tenants —-laub.
are not to pay an uncertain Fine. Afterwards the Lord entred lor a Treat of .
Forleicure, tor not paying the Fine he had afleffed, and brought Eje6l-T«"- ^7v
rnent. It Teemed to the Court, that if there was a Real Dottbt^ "^^^-^m^ i^v^it
ther the Fine was certain or not, the denying to pay an uncertain feems to '
Fine is no Forfeiture, though found afterwards that the Fine ought him that if
to be certa'n i but that fuch Doubt ought to be real and not covenous "P°" ^^-
Rayin. 41. Mich. 13 Car. 2. B. R. WheeJer v. Honour. S'"*^ '^% r
^ ^ Heir rerules
to pay the
Fine it is a Forfeiture
13. The Defendant was admitted Tenant to a Copyhold, and a Fine
of 8 1. fet upon him, payable at three feverai Payments, a third part
of which being Perfonaily demanded, and he refuling to pay it, the Lord
brought an Eje6thient to recover the Lands as Forleited ; the Reafod
why he refufed to pay it was, becaufe upon a Survey of the Manor in
the Reign of .G}ueen Elizabeth, by Virtue of a Cominiffion direffed to fome
Men of Credit, and by the Confent of the Lord of the Manor, and his Te-
nants, a Decree was then made by the Court of Chancery j by which the
Fine was afcertained, according to the Value of the Lands at that 'time
and which was a Tear and half's Value upon Def cents, and 2 Tear's on an
^■ilienation, and this was to be binding forever. The Ghiejlion was, Hov)
the l^ears Value fbould now be computed, whether as at that Time or
accoiding to the improved Value, and the Tenant refuling to pay ac-
cording to the improved Value, but being willing to pay as it was fee
in the Reign of Queen Elizabeth, upon the Survey by the Conimif:
fioners, this Ejeftment was brought. Lord Ch. Baron held, that if
k be a Doubt, and the Tenant gives a probable Reafon, to make ic
appear that no more is due than what he is ready to pay, it is no
Forfeiture, and the Doubt being whether it Ihall be paid according
to the computed or ipproved Value, he inclined that the A£lion would
not lie. The Court were Doubtful in the Matter, and upon the whole
thought it a proper Cafe for Equity, and fo direfted a Juror to be
withdrawn, which was done. 2 Mod. 229. Fafch; 29 Car 2. in Scacc
Trotter v. Blake.
[Q=c]
Yq<5 Copyhold.
[Q^ c] Forfeiture Nonpayment of Rent.
♦This in Roll X. Tjf aCoppbotnct U to piwa certain Rent [learlp bp W Cd^
Letter(C) j^ pp to Ijisi lotD, Huti tijc jLotD coiiicd upon tlje Lanti, nnD
Fni\o6" Hemmiosijis Kent at tljeDap, anti tlje Copynoider being prcknc
: • ^ Co. retuies to pay It, tljis i^ a jf ocfcitucc* J^afcij. 2 3lac. oa.
Comp. Cop.
64. S. 57. S. p. that it is a Forfeiture Ipfo Fafto.
This in Roll 2. If a COppIjOlDeC ht abfent when the Lord dem;inds the Ren: at
(c.)isp!?. the Day, anr« no TdoO)? istljerc to pap it, luijtcf) is a Eefufn! in
eTo. T Laty, pettljiS id not anp Jforfcttute, fat tins »acs not amauiit
,0 s^c to a uoluntarp EcfUfaU Dubitatur, p. 38 €\r^, 15. E.Dctaiceii
Popham V. * Crifp and Frier, p. 2 JaC* 05. t i|)ObCtt'S RepOttS 183. ^HD
Gawdv held 2-)^„„y ^fid Leinon, tijete ought to be a Demand liom the Perfon ot
feimrc.but ^he Copyholder to niatie a ifatfciture,
Fenner e , , ,
contra. Adjornatur. Mo. 550. pi. 4(58. S. C and Popham and G.^wdy held, that this Voluntary
^e<T\igence for lb lonp; a Tims [viz. for 2 Years before, as Cro. E. ftates it] implies a wilful Re-
fufalj and is a Forfeiture. Noy 58. S. C held accordingly by Popham and Gawdy, but Fenner e
(-ontra. -Supplement to Co. Comp. Cop. 74 S.[o. cites S. C. and fays thu the better Opinion
of the Court ieem'd to be, that it was a Forfeiture ; But fays Quaere of it ; For it was refolv'd in
another Cale, Trin. ii Jjc C. B. that Non-payment of Rent, or of the Fine upon Admittance to
his Copyhold was no Forfeiture of his Copyhold Eftate, unlets there was fome exprefs Verbal De-
nial of it, which there was not in this Cafe. S. C. cited Gilb. Treat, of Ten. iii, 212.
t Hob. i;5. pi. i32. S. C. held accordingly, both for Rent and Fine. Supplement to Co.
Comp. Cop. 75. S. 10. cites S. C.
Lat. 122. 3. 3!f a coppljoinec be prefent at tlje -Crnic of tlje Demand of
T7?/ 9*''tI)C Ecnt, anH faith that he hath not his Rene ready, rl)tS iS nO JFOC^
G,.^f/ feitUre, tot tlje Lord may diftrain. p.2:jaC,'B,
UliflesS.P.
ruled accordinglv. But becaufe the Lord upon fiich Excufe ordered him to pay it at his Houle fuch
a Day (which 'Houfe was within the Manor) the Non-payment then will amount to a wilful Re-
fufal and a Forfeiture ; But if the Place which the Lord had aflTii-ned hadjiecn out of the Manor,
Failure of Payment there would be no Forfeiture. S. C. cited Gilb. Treat of Ten. 213, 214.
4. It' the Rent be demaftded of the Tenant himfelf, and he fays no-
thing i per Popham and Gawdy J. this Siknce and Nonpayment is a For-
leicure. Noy. 58. cites 42 E. 3. 5, in Cafe of Crilpe v. Fryer.
5. Popham Ch. J. held that Nonpayment oi Rent, if the Dematii
was after the Day of Payment, was no Forfeiture ; But per Fenner J.
many Defanlts of Payment may be deemed a Forfeiture. Goldsb,-
143. pi. 59. Hill. 43 Eliz. Anon.
It the Copy- 6. If Rent be demanded of a Copyholder, rvho replies he had m Money.,
holder fays [his ig not a Forfeiture, for the Denial ought to be a wilful Denial.
^J^^^^^^^^j^j^_ Godb. 142, 143. pi. 176. Hill. 36 Eliz. C. B. cited per Cur. to
ne'y todif- have been adjudg'd in one Winter's Cafe.
charge the
Kent and therefore w««ir» fide iorrf /o forbear until be be better providetl, UTilefs the Lord gives his
confent this Nonpayment is a Forfeiture ipfo fafto ; for a Copyholder knowing his Day of Payment
is to provide aj;iinll the Day ■■, But if the Lord comes upon the Copyholder's Ground, and demands
his Rent and neither the Copyholder himfelf, nor any other by his Appointment, is there prefent
to ani'wer the Dcm.ind, thouj^h this be a Denial in Law of the Rent, yet this is no Forfeiture.
Co Comp Cop. '>4. S. 57. But if the Lord continues in making demand upon. the Ground, and the
Copyholder is liill ahfeiu, this continual Denial in Liw amounts to a Denial in Faft, and makes the
Copyholder's Elfutc tubjctt ttf a Forfeiture without Picfentmcnt. Co Com;. Cop. 64. S. 57.
7. If
Copyhold. ic^y
7. If a Copyholder will fwear in Court that he is none of the Lord's
CcpyhoUer, this is a Forfeiture ipfo fafto. Co. Comp. Cop. 63. S. jy.
• 8. If a Copyholder wiil fue a Replevin againft the Lord upon the Rcf ecus avd
Lord's lawlul Diltrefs for his Rent or Services, this is a Forleiture ^'P^''^''"^rc
ipfo lafto. Co. Con^p. Cop. 64. S, 57. orS'^^Md
Land be-
caufe they amount to wilful Refufals. Gilb. Treat, of Ten. 218.
9. Where the /^/^.-rrf" of a Lord of a Manor ceafes by Limitation of <?» Gilb, Treat
17/9, and the Ule and Ellate thereof is transjerrdto another^ -who demands "^ '^^."•
Rent of a Copyholder^ and he reftifes to fay it ^ 'tis no Forfeiture of '^hcg'^.f^^.
Copyhold, without Notice gtisen to the Copyholder of the Alteration of the if aBargain
Ufe and Ffiate. 8 Rep. 92. a. cited per Cuf. as adjudg'd Hill, i Jac. ami Sale he
Eeconlhavv v. Souchcot. "f " Mtmr
by Deedin-
dfnted andbirelfd, the B avgainec flia 11 not take Advantage of a Forfeiture without Notice, cited at
adjudf^'d and affirm'd per Cur. for good Law. S Rep. q2. b. It feems the Law is the fame
concerning Aert/e and Rektife, but if the Manor be in Poffcffion ot the Lord himfelf, and not in the
Hands of any Leflee, and he makes a Leafe, and then releafes, the Leflee having PoffefTion, Qu*rc
if the Copyholder denies paying, if this is not a Forfeiture, bccaufe the Entry of the Lejfet is N«-
tice as mucli as Livery &c. Gilb. Treat, of Ten. 214.
10. A YtmtWidow Copyholder knew not how t-o pay her Rifit, and feveral Giib.Treac.
came for the Rent, hnt fJje put them all off 'sith dilatory Anfwers. At °^ '^^^•^
Jajf came a Toung Gallant and demanded it; fhe anfwefd, that jhe did not g q f^
know him, but tf he would dance before her ^ tf flie liked his Dancing y&£ adjudg'd no>
'ji}ould pay it. Cited by Harvey J. as a Cale which he knew in Quef- Forf^hare.
tion i And Fenner J. doubted if this Denial was a Forfeiture, but
adjudg'd that it was not, becaule it was not a wiiiui Denial. Lict.
Rep. 267, 268. Patch, s Car. C. B.
(R. c) Forfeiture. By wliat Perfons. Infant, Non
compos &c. .
i. A Man Non fan£ Memoris^ an Ideot, or a Lunatick, though they
_/\ be able to take a Copyhold, yet they are unable to iorfeit a
Copyhold, becaufe they want common Reafon, nay common Senfe.
Co. Comp. Cop. 6^. S. 59.
2. So an Infim that is under the Age of 14 is unable to forfeit his Co- But an In-
pyhoW, becaufe he wanteth Difcretion, and till then he is to be in VV^ard/-iw at the
to the next of Kindred, to whom the Inheritance cannot defcend, or to -^gecfDif-
ihe Lord, or the Bailiff of the Manor, as the Cultom (liall warrant. Co '/^'l'^ 'P^Y
Comp.Cop.6,.S.,9. |Xk
fences which proceed from Negligence or Ignorance, but by fuch as proceed from Conteinpc Co
Comp. Cop. 65. S 59. ^ ' •
3. A Feme Covert by an A£l (he can do of herfelf, cannot poffibly
forteit her Copyhold, becaufe ihe is not fui Juris, fed fub poteltate Viri :
But if fhe do any Atl which amounts to a Forfeiture by the Con-
fentofher Husband, this is in her a Forfeiture. Co. Comp. Cop. 6/.
S. 59.
4. If Cefuy que Ufe of a Copyhold commits Wafte, he ihaiJ not forieit ►
his Copyhold. Cu. Comp. Cop. 65. S. 59.
N Q S If
138 Copyhold.
5. tf'an Infant comes not in to be admitted^ according toche Curtom, at
three folemn Proclamations made at three feveral Courts, or il he will
futier his Houfes to go to ruin, or his Ground to be furrcunded, thefe
Atts, lavouring oi Negligence only, are no Forfeitures. Co. Comp. Cop.
65.8.59-,
6. So it an Infant Copyholder fnes a Replevin againft the Lord upon a
Dillrefs lawfully taken, or if he aliens by Deed, or the like, thefe Afts
relilliing of Ignorance only, are no Forfeitures. Co. Comp. Cop. 65.
S. 59.
7. But if he denies from lime to ^ime to p^y the Lord the Rent, or
commits voluntary Wafie, notwithltanding often Warning gt-ven him
by the Lord, thefe Afts proceeding from Malice and Contempt are
Forfeitures ; And fo it he commits Felony or Treafon. Co. Comp. Cop.
65. S. 59.
ComV nS. {j, In Ejeclment it was found by a fpecial Verdi6t, that the Ca-
^'r'.-^" 7^'-"" of a Manor 2£;^j, That ij on a Surrender prefented, and three Pro-
t> C but c la mat ions, the Surrenderee comes not to be admitted, the Lord Jhail feife at
theCouit (or'eitcd. Surrenderee died i three Proclamations were made ^ \\hHeir, an
h~\n^, di- Infant, did not come in ; the Lord feifed. Holt Ch. j. held the Infant
vidcd It was ^^^ bound ; becaufe otherwife the Lord would lofe his Fine ; and it i?
" ^°" Garth ^'^^ '^he Forfeiture of the Inl'ant, but of the Surrenderor in whom the
41 S. C. ' Elhite continues till Admittance; and that if ic be a Forfeiture it is lu
and Judc;- only Quoufque. But Dolben, Eyre, and Gregory contr.i. Cultom
nwitinC. B. ^^I'j j^Qj ^ intended to reach Intants; and by Eyre, if it had been found
B R^by"'' exprefsly, that all Perfons, Intants, as well as others &c. he had been
Juftices, ' bound ; tor as Cuftom makes his Inheritance, it mav abridge it, and
contra Holt the Lord cannot be faid to lofe a Fine, for he has a Tenement and no
T^' ^'Tf, — F'"^ ^"^^j "°'' Occalion of Admittance, and here is no Room to fuppole
-60 *S c'' '^ temporary Forfeiture, for the Jury have found the Cullom to be of an
in C. B and abfolute Forfeiture, nor is the Inlant within the Cultom, for as found, it
Judgment js, that if the Perfon to whom the Surrender is made comes nor, the
•was there JiailifF of the Manor may, by Command of the Lord, feife fuch Tene-
Oo^nion of "i^nts as forfeited. In Error on a Judgment in C. B. which was affirm^
the whole ed. I Salk. 386. pi. i. Hill, i VV.&M. King v. Dillilton.
Court for
the Defendant. i Show. ;i. S. C. argued, and Ibid 85. S. , C. argued by the Judges, and
ludgment affirm'd, by the Opinion of three Judges, contra HoltCh. J. 5 Mod 221. S.C. with
the Arguments of the Judges, and Judgment affirmed by three Juftices, contra Holt Ch. J.
(R. c. 2) Forfeiture. By whom. One not in
PoiTeffion.
Supplement i. ^^Uftom of a Manor, that if a Copyholder be ccnvicled of Felony
to Co. Comp. ^^ If i^ ^ Forfeiture, and that the Widow has Frank-bank, and
*^°^te'sS C ^^'"^^ '^^ Heirlhall not be admitted to the Copyhold during the Lite of
■_ ^Gilb. h's Mother. The Widow having her Frank-Bank, the Heir commits Felony,
Treat, of which is prefented by the Homage, and dies, leaving a Son, the Ellace
Ten 127. is torfeited (notwithltanding the Frank-Bank) as to the Heir ot" the
andVf s^" ^^'°"- ^^- ^' P^- *• ■^'^^- ^^ ^^'^- ^- ^- -Byrntord v. Packing-
though the ton.
Cullom was
jf a Copyholder be convifted of Felony, yet it feems Conviaion i> not ncceflary , but if the Thing
will bear it, it is good to lay a Cuftom.
2. If
Copyhold. 1 ^p
2. If a Copyhold be furrendreil to the life of J. S. and before Admittance
J. S commits Wajh^ this is no Forieiture ; for by the fame Realon that
he cannot grant betbre Admittance, he cannot forleic before Admit-
tance. Co. Conip. Cop. 6s S. 59.
3. If a Difjcijor oi a Copj hold commits IVaJle this is no Forfeiture.
Co. Conip. Cop. 6j. S. 59.
4. It two Jointcnants be of a Copyhold, audone commits Wajie^ he
forkirs his Part only ; tor no Man can forfeit more than he hath granted.
Co. Comp. Cop. 65 S. 59.
5. If there be tenant for Life with Remainder over of a Copyhold,
and the Copyholder jor Life pur chafes the Manor ^ commits IVafie^ or does
any Aft which amounts to the Extinguilhment, or the Forieiture of a
Copy, yet the Remainder is not hereby touched. Co. Comp. Cop. 65.
S. 59.
6. If a Copyhold ha granted to three hahend\ fucccjpve, where by the
Curtom of the Manor this word Succelfive takes Place, ?;^<?/f)y/ G.;/)j-
holder cannot prejudice the other fwo by any Aci he can do, no more tnan
if a Copyholder in Fee by Licence makes a Leafe tor Years by Deed,
or without Licence by Copy, and either of ihele Leliees commits
Waile, the Reverlion is not hereby forfeited. Co. Comp. Cop. 65,
S. 59.
[S. c] Forfeiture.
In what Cafes the Forfeiture of one iTiall be of a?iother.T\:x^\nVi.G\\
-' is Letter [F]
in fol. 509.
i.TiF tljEte DC Tenant for Life, tl)e Remainder in Fee, oFH COpPfjOlD. S- P. re-
1 anO tljE Tenant for Life commits a Forfeiture, t|)lS Iftall HOt btltti '°'v''^'.""'«^s;
tije mxixmm. S;7e(^^cuf-
torn. 9 Rep.
lo*;. a. Pafch. 10 Jac. in Fodder's Cafe No Forfeituve of a Tenant for Life JTiall by Law pre-
judice him in Remainder or Reverfion, per Gawdy, J only in Court, the other Juftices being abfenc
in Parliament and conceivinf» the Principal Cafe to be clear, he commanded Judgment to be entred
accordingly. Cro. E. 598. pi. ;. HUI 40 Eli?,. B. R. in Cafe ot Raftal v Turner. Cro. E. 880.
in pi 10. cites Trin. 59 Eliz. Redfal v. Lacon S. P. accordingly, and feerasto be S. C. Nov 42.
cites Raftal v. Lane S. P. and fceras to be S. C.
2. Asift!)Cre be Tenant for Life, t!)e Remainder in Fee, craSeepl. i.
COP)?ljOlD, anU tt)C Tenant for Lite fufters the Houfe to decay ailO be='"'^''^=
luaacD, Up ujIjicD tljc (Sftate ot tfjc Ceiiant foe life igi forfcitco, aim ^°'" '^'^
tf}c Lorn cnterjs foe tlje jforfeiturc, j)ct tijts Hjall not binu f)im iti
ilcmainticr, but onlp tljc €;etiant foe Life* %k., 39 €1. 15. E- bc-
XmZXiRaJi el and Turner^ aDjUDpD, UpOll 3 fpCCUll IDeCDlCt.
3- 3!f a Feme Tenant for Lite Of a COppijOlD takes Husband, aitO 4 Rep ^1,
iz.
tbe Husband commits a Forieiture Of tl)e COppbOlD, and dies, tblS ti^V'*
JforftltUre l^all bmn tljCFeme. 4 Co, betUJCeU C///?o/; and Molmeuxf^lz^^x
refolijeu* b. r the
S. p. re-
folv'd Gilb. Treat, of Ten. 203 cite^; S. C. If the Husbind denicto pay the Rent, or to
do Suit, and dies, the Forfeiture remains; for the Ld. muft have his Services, and the Feme has
no way 'o avoid tliefe Non feafances ; per Wray. Cro. E. 149. pi iS Mich 51 and j2 Eliz. B. R. in
Cafe ot Hcdd v. Chaloner.
4- Jfa C0ppl)0lneC leafes for Years, by Licence Of tbe lOttl, anH^ilb Trcst.
after tIjC Leflet- makes a Feoffment, tljliS %d\\ fOtfeit Oltlj) W ^ffate/^/'s r^''
anD not tlje Cilateottlje CopvhoMer. p, i 3]a, :i3. bettueen White""-^ ■
anA Hunt, I^ObaCt^ ECpOrtS 239-
5 If
I ^o Copyhold.
Ci-o C. 7. J'. Jf a Feme Copyholder takes Baron, atttl tIjC Baron makes a Leale
iavetne v ^""^ ^^'^^^^ thaUtjh ti)e Lord cnrers for a lOrfCttUrC, pet this is noc any
&mhh"parch. Forfeiture to the Feme after the Death ofthe Baron, l)Ut ft)C niiiP tUCU
T Car. in flltCr bCCflllfC this Act was a Tort to the Feme ay well as co the Lord j
Cam. scacc. auB )s\)£u t^ittz IS a Cact to tl)C JfEinc, 'tld not rcafanabie tf)at it
thrift <^5oulD be a if ai*rcttttre of Oer esatc. s^ich. zt Jac.oa. Ia. betmcm
Forfeimve '^^^^'^^ '^»'^ , fltijuDgco iipott a fpcctai mmct.
fhall not bind the Feme ; but upon another Pomt Curia advilare vult. -Palm. 583 S. C Lea Ch.
T. faid it feem'd lo him that ths Co-u-t were all of one Opinion that this Forfeiture did noc bind the
Feme or her Heir.s nlrer the Biron's Death, and Judgment Nifi — Roll Rep. 544.. S. C. adjorna-
fur. Ibid 561. S. C. adjornaiur. Ibid. 5:2. S, C. fays th^t Doderidj^e J. the Term before
took a Difference where the Lord entred in the Life ofthe Baron and where not, but now he faid
nothing, whereupon Ley Ch. J. thought the Court of one Opinion, and gave Judgment Nifi. &c.
Doderidge J. before iield this to be a Forfeiture, and took thi,s Differente, {v\z.) H'here a Feme
fole is a Cof)hcIder anii ajtera;ards fhe marries, and her Hiish.ind makej a Leafe for Te^rs wuhout Licence,
ihi.'i is a Forfeiture, becaulc it was her Folly tomarrya Man who will forfeit her Eftatc ; b\xt where
aCopyhold is granted to a Feme Covert, and her Husband makes fuch a Leale, 'tis no Forfeiture. Godb.
545. pi. ^48 cite.s Trin. zi Jac Severne v. Smith. Palm. 585. S.C. and fame Diverfity taken by
J)odcridi;e J. 2 Roll Rep. 561 S C. and fame Diverfity by Doderidge J. Gilb. Treat, of
Ten. 2 28. cites S. C. but if Jhe does any thing that makes the Leaje ts havi Continuanct the Forfeiture
remains.
A Woman 6. But if fl Baron fctfetJ Of 3 coopljollj til tIjc Efgl)t Of f)is iTcme,
Copyholder does Waite, tl)i0 JfoctEitticE QjaU bmo ttje jfeme attec tfjE Dcnt6 of
^^T\^' tlje 13arOll, beCaUfe the Aa done is not any Tort to the Feme, bac
her Hu"handl'l*-UmU9t0ijCC, ailD Only a '^^Xt to the Lord. Co. 4.27. [Clijtcn
made a and AdollHCHS.}
Leafe for
Years not warranted by the Cuflom of the Nfanor ; Wray faid, that if the Husband denies to pay the
Kent, or do Suit in C<juri, tiiel'e are prefent Forfeitures which fhaii bind the Wife ; for they arc
Thing<; which the Lord mult neceiTarily have, but a Leafe is no great Prejudice to him, and it is good
to advifej hut SInirlev and Tanfitld faid it had been adjudged that Wa lie is a Forfeiture, which (hall
bind her Cro. E 149. pi, 18. Mich. 5 i and 32 Eliz. B. R. Hedd v. Chaloner. Gilb. Treat of
Ten. 208 cites S G. ^But if a Stranger had committed Wafte here with the Affent of the Huf-
band, this would he no Forfeiture. 4 Rep. 27. a. pi. 14. in S. C. refolv'd. Gilb. Treat, of Ten.
105. cites S. G and S. P.
Ci!. 49. pi. 7- Where Copyholds are demifable for 2 Lives fucceffively as to 'te-
12. S. C. in mint for Lifc^ Remainder for Life, it Tenant for Life cuts Trees 'tis a
rotidem Forleiture of both, and if a Stranger cuts Trees, or one that occupies by
Supplement their Sufferance, 'tis Forfeiture of the Copyhold. Mo. 49. pi. 149.
to CoXomp.Pafch. 5 Eliz. Anon.
Cop 76. S.
1 1 . cites S. C. —Where A. was Tenant for Life, Reverfion to B. in Fee, A, contrived to fell the
Copyhold to y. S. in Fee, which was to be done by A's committing a Forfeiture, and then the Ld.
to feize, and grant it in Fee by Copy to J.S. and this was done accordingly ; But Gaudy J. who was
the only Judge in Court, conceived that this Collulion ought not to prejudice the Reverfioner,
and thinking it a clear Cafe, commanded Judgment to be entred for the Plaintiff the Reverfioner.
Cro. E. 598. pi. 3. Hill. 40 Eliz. B. R. Raftali v. Turner. Noy 42. cites Raftal v. Lane. S. P. and
feemstobeS C. Gilb Treat, of Ten. 250. fayes fuch Authorities arc founded upon the higheft
Reafons, for elfe he that has but a particular Intereft in Copyholds will have as good an Intereft as
thofc that have the Fee, for by fecret Covin he may commit a Forfeiture, and fo give away the
Fee.
Cro. E. 879. 8. Surrender to A. for Life, Remainder to B. in Fee. A. comes net
pi. 10. S. C. ^fi g^j J Proclamations according to the Cuftom, this is a Forfeiture during
^j~^g °' the Life of A. but on his Death B. may enter. Noy 42, 43 Eliz. Bal-
divided poolv. Long.
Eflates, and
the Cufto-n fhall be intended ofan intire Fee-flmple given to one Pcrfon, and the Cuftom being to
bar an Eftate fhall be taken ftriftly. Yclv. i. S. C. adjudged But a C^sre is added, if fuch
Surrender be made to J- and B. and their Heirs, and A. comes in, and B. not, within the Proclamations,
whether A. (hall have all, or that the Moiety be forfeited ? Ibid S. C. cited Godb. 369. in pi.
^,8. . But the Rcafon of the Refolution of the Cafe implies, that had the Cuftom been laid
te reach Remainders too, it had been good, and the Remainder had bceo forfeited in th« Cafe. Gilb,
Treat, of Tea 230. cites S, C.
9- ^y^P
m
Copyhold. id.1
g. Waftc by Li'llfujof Life is tijrteicure only during his own Lite, and'-™- E.
ili.ui'c prejudice tne Keniainder in R'c. Noy. 42,43 Eliz.. Bafpool v. f '^°g^jl^^°^
Lonji,. Redfali v.
Lacon. S. P. accordingly.
10. li Hnsb.wd and Wife be Joint Copyholders of the Pnrchafe of the
Fhisbaiid^ and during die Coverture, the Husband is attainted cf Felony ^
and diet hy it is no Forl'cicure ofany Part of the Copyhold; But ij the
Purcbaje he made before the Coverture^ then it is a Forteicure ot the
Moiety. Supplement to Co. Comp. Cop. 76. S. 10.
11. If a Guardian of a Copyholder commits B'a/fe, he fhall forfeit the
>\'ardlliip only, not the Inheritance of the Copyhold. Co. Comp. Cop.
65. S. 59.
12. It Husband commits IVafle in Copyhold Lands which he has inRight
oj bis Wife, this is a torleiture of the Wile's Copyhold. Co. Comp. Cop.
65. S. 59. cites 4 Rep- 27. a.
1 3 But if a Stranger commits Wajfe, without the Confent cf the Hnf-
bandy this is no Forteiture, tho' the W'ite confents. Co. Comp. Cop.
65. S 59.
14. It 2 Joint-ltnants are of a Copyhold and one commits Wajle, he
forleits his own Part only; for no Man can torteit more than he has
granted to him. Co. Comp. Com. 65. S. 59.
15. Cefiy que Tru/i ot a Copyhold Elhite commits Treafon or Felony,
this no way charges or atfet'tsthe Copyhold Ellate, but if a 'Trajlee does
'tis a Forteiture of the whole Eltatc ; but where a Copyholder in Fee on
his Marriage Surrendered to the Ufe oi himfelffor Ltfe^ Remainder to
the firji Sc Son in Tail Adah, Remainder to himfelf in Fee, and no Ad-
mittance on fuch Surrender is had in many Years atter, and in the
mean Time he does A£ts of Forteiture, and the Ld. is in tor the For-
feiture, and the Tenant denied Relief in Equity, yet whether if the
eldell Son fliould bring a Bill againft Father, and the Ld. to compel an
yjdmittance purfuant to the Marriage Surrender and Settlement, was not
in the Cafe ; but Ld. Macclesfield faid, that on fuch Bill it might come
then to be confidered. How far the Forfeiture of the Father fiould bind the
the Son. Ch. Prec. 573. Trin. 1721, in Cafe ofSr. H. Peachy v. the
Duke of Somertet.
[T. c] Advantage. JJ% fjjnll take Advantage of a This in RoH
Forfeiture, [as Lord.] f^^"-,
509.
I. A Copyholder for Life, where the Remainder is over for Life,
£\ commits a Forfeiture, \)Z Ig fljC Remainder lliall not enter,
hut the Lord, bccaufe tljc Ecmainnct it to commence m PolTelTioii
aftct tijc Dcatij of tije \tSkz bp tijc ctiaom.
2. Leflee tor Years ot aManorfljnU tafeC 3llljtintagC Of 3 JFOtfCitUtC ♦ S. P. h;Id
COmmittCH b)) a COpJ'OOlUCr of tlJe ^anor, for he is Domlnus pro accoidid-Iy,
Tempore. <^^, 38, 39 (£1. 03. IX* Ul * Eaji and Harding's CafC, a= ?''' '"v ^"'i
crccD pec Curiam. %i, lo 2a. 05. \^iXm.t\\Rawics and Mafon^ pec or; o *^
Cuttam. J r pi 9
3- ^ftljcre be a lorn of ari9aiicr, mmijicIjtfjcrcareCoppljoI'P.f^;"'^
ticrsi, CenantsJ of tlje 99anor, aim tlje Lord grants to a Stranger the \tlt^
Freehold ot a Copyhold m Fee, CfjOUH;!) bp \W tljC ^CtlCmeUt Id 0^ Cro. £."499.
DfiJCU trom tIjc * ^anor, anti not ricnntable bp Copp affaln. pet tf)c ii^ '9- mich.
O o Grantee ' ^^'^■^''^
* rol 510.
J /j.2 Copyhold.
lis & 59 Grantee oi the Freehold lliall cake Advantage of a Forieiriire committed
?'i-^>^^- aker h\> t!jc CoppijolDcc, tot ije ousijt to pap IM iicmto tije
Eaft V. ©lantcc,
Harding.
Mo 595 . pi 508. S. C . & S. P. agreed, with tliis Difference, that all Forfeitures which accrue by
Keafon of Marrers of the Court arc difcharged, but no: Forfeitures at Common L;ivv, as Waftc, and
Leafes to the Diflierifon, bur that the Feoftec JTiall enter and take Advantage of fuch as are done in
his Tipie Gilb. Treat, of Ten. 2Z9. cites S. C. The Feoftee or iLellce fhall have Advan-
tage of all Forfeitures belonging to Land, as m Cafe of Feoffment &c. but not for not doing of Fealty;
per Popham. Ow. 65. Pafch. 59 Eli'i. in Cafe of Eall v. Harding.
Cro. E 499. 4. So in tlji^ Cnft, if the Grantee of the Freehold makes, a Leafe for
pl. 19. S C. Ye^iis ot the Freehold, tljI0 Lelfee lor Years IhaJl take Advantage Of t)
Sawdy and jf oifcititrc committeD nftcc tij? tlje CopvljolDcr, Dccaufc ijc 10 D0--
Fenner tlUiUlS PIO CCnipOl*£» 93tCl). 3 «, 39 ^U?- 15, Iv baiUCCU -tV?/ cl/ui
doubted if HarMng^ atijutiBCD bp tljc £Dpinton of nil tijc luDscs.
Leilee of
Cro. C. 3;5. 5- 3if il Copyholder for Life makes a Contraft at one Time, to make
pl. 15.S. C. three feveral Leafes by Indenture, OtlC to commence after the other,
adjudged a f jj^^j, j;,^ jj^g ^^^q Y^^y^ between each, niiD nftcc uial^cs tIjc tljtcc federal
Htllat the )Lt,\m nCCOrninglp, nilD feals them at one Time, ailtl tljC JLCffCC eil^
Lord's Ac- teVS, ilUD aftei* tijC CopvljOlDeC furrendeis to the Lord to the Uk of
ceptance (he theLord, tuljo Ijatlj uot flhj) Comifattcc of tlje mafeingof tljefc Lcafcs,
not knowing .^j^^ j^f{-£.i. ({jj, jLotu Eittcrg, aiiO niahc0 a jLcafc for ^carsrto J. @)»
feitur^r nnti tlje firlt lelTec focl^car^ lirinii0 Crcfpars ngnmft tfjc fcconD
no Diipen- JLclTec, aiiti ari)iHigcD it nocg not lie, ticcamc it luass a Jfocfeiturc,
ration there- jijtt] fl uoto Leafc agatuft tlje lotD, fo tljat lip Ijtsi €ntcp Ijc tuas m
Avith fo (,j-{jjg jjjiciei^t £^in;i)t» c^iclj. 7 Car. 15. Xk. between yJ/?rr/jt?a'.f a»d
Lord's lef ^yi^'eaum aQiuDijcD upott a fpccjal 3:)crtii(t, li mpfelfbeimjoe €m^
fee has a ciUo ductenti^^ ^lutratuc fpilL 5 Car, 1^, E. Eot* 496*
good Eftate
and Right in him, for which his Entry js lawful Jo. 249 pl. 5. Mathews v Wheftou, S C.
(fates it as one Day between the feveral Lealcs. Agreed per tnt. Car. that though the general Cuf-
tom of the Realm allows a Copyholder to make a Leafe for a Year, yet this ought to be a Leafe in
Prifrnti, and he cannot make another for another Year in Reverhon, and that when the Surrender
was made to the Lord this Leafe was void againft him, and his Intereft difcharged, without Piefent-
ment and Seifure for the Forfeiture.
6. The Ctijiom was, that if a Copyholder makes a Leafe for more than one
y'ear^ that \iq /hall forfeit his Copyhold. A Copyholder committed fuch a For- »
feittire^ and afterwards the Lord leafed the 'Manor for Tears^ and Leffee f
entred for the Forfeiture i but per VV'eiton, it was held it was not lawful,
for though the Heir may enter in the Time of his Anceftor for a Con-
dition broken, becaufe he is privy in Blood, yet the Leflee cannot (o
do, for he is a Stranger ; But per Dyer if the Forfeiture is prefented by
the Homage, and enroll'd in the Court-Rolls, the Leffee may after-
wards enter, becaufe by the Forfeiture the Copyhold Eitate was deter-
mined. 4 Le. 223. pi. 359. Mich. pEliz. B. R. Anon.
Glib Treat. ^_ (^^^ Coparceners Copyholders, the one ma le a Feoffment in Fee. The
S P and^"'"* L°'''^ '"^^^ '^ ^^^f^ °f ^^^ Manor. The Lejfe [hM not take Jdvantage of
cites S C. this Forfeiture, becaufe he is not privy in Title ; But if the Lejfor dies,
tkc
Copyhold. i^'^
the Heir (Ijj.U take .ddvaiitiige. L;it. 227. cites ic as agreed ia Harper's and fays the
Rep. 18 Eliz. ^"1°" °'
r the Diver,
fitv fccms ro lie, becaiife W^ifle is a Prejudice to tlie Lord onlv, for rlie Time beinf^at lead, and is
pot It) prea: a Prejudice as Feolrments, (and To it feenis of other Ftirfeitures a denial of Rent. Suit of
Court Sec. & a forciori thefe P'orfeitures, for the Denial doth no way prejudice the fucceeding Lord)
but Feoffment devejls tie LorA of his Freehold and /nhn-itance, which being ftandinp; Prejudices to the
Lord, he ought to have Remedies as lulling as the Harm that is done to him. .':^<xre, If the Leffor
outlives the Le.jfe^ whether he 711/ty take ^4dvnvtai?f ot the Forfeiture. Lat. 22(5. Trin. 22 Jac. Corn-
W4nis V Horwood S. P. Dubitatur, and Adjomatur. — Palm. 416. Cornwallis v. Hammond, S. C.
Dubitatur.
8. Lfffce for liars of c. Manor fliall not take Advantage of a Forfeiture -'^/<«»' t For'
for not dotnz Fealty ; per Fopham. Ow. 63. Mich. 39 &. 40 Eliz.. in Cale/"'"''^ '"'"-
■^ . u ,i. A u A- \ mitled, the
ut halt and Harding. Lovd leafed
the jManor
for Tears ; Per VVelton, Leffee cnnnor enter for the Forfeiture ; Per Dyer, if the Forfeiture be pre-
lented by the Hom.ij'e, and inrolk-d in the c!ourt Rolls, LelTce may afterwards enter, for by the For-
feiture the Copyhold is void and determined. 4 Le. 22; He fhall take Advantage of the For-
leiture witliout any Prefentnicnt by the Homage, per Walburton J. Arg. 2 Brownl. 197. Trin. 19
J ic. C. B. in Cafe of Rowles v. Mafrm. The Lord's LctVee may enter fur a Forfeiture, per Cur.
Cro. C. 255, 254 pi. 15. Mich. 7 Car. B. II JSlatthews v. Whetton.
9. 'Copyhohkr made aLeafe for Tears, without Licence, which is a For- S. C. cited
feicure of Common LaWj and afterwards the Lord of the Manor made a by Levins J.
Feoff mcnt or a Leafs of the Freehold of this very Copyhold to another j ad- PaPcj, A
judged, that the Feoffee or Leffcc (hall not take Advantage of the Forfeiture, Car. 2 C. S;
becaufe the Leafe made by the Lord, betore Entry or Prefentment, is and faid,
an Alfent that the Lelfee of the Copyholder ih.ill continue his Eftate, ^'^JV^.^lj^'^^
and fo is in Nature of an Affirmance ot the Leale made. Owen 63. Mich, between a..
39 & 40 Eliz. Penn v. Merrivall. Heir taking
Advantage
of a Forfeiture in the Time of the Anceftor, and an Alienee in the Time of the former Lord. •
Gilb. Treat, of Ten 229. cites S. C.
10. If a Copyholder makes a Feoffment, and then the Lord aliens, neither
the Grantor nor the Grantee can take Benefit of this Forfeiture, for nei-
ther a Right of Entry nor a Right of Action can ever be transferred
from one to another, Co. Corap. Cop. 66. S. 60.
1 1. YiT'enant for Life be of a Manor, with Remainder over in Fee to a Gilb. Treat.
Stranger, if a Copyholder commits Jl'affe, and then Tenant for Life of ^^f" "^ p ^"; 5 "'•
Manor dies before F.ntry, yet he in Remainder may enter, for he had an Supplement
Interell in the Manor at the Time of the Forfeiture committed, though to Co. Comp.
he could not enter by reafon of the State of Tenant for Liie^ which be- Cop. 170,
ing determined, his Entry is now accrued unto him for the Forfeiture 'V'-^"^
committed in the Life of Tenant for Life. Co. Comp. Cop. 66. -^f^^'^^^^f^
o. 60. Terant for
Life had
aliened to another his Eilate, though neither he nor his Grantee cotild take Advantage of this For-
feiture, yet after his Death it feeras that he in Remainder might.
IS
ence
een an
12. Sometimes he that is neither Lord of the Manor at the Tune of the -is if the
Forfeiture committed, nor ever after, ILall take Benefit of a Forfeiture, ^f'^ °^ ^
Co. Comp. Cop. 66. S. 60. ^,.^'",7^ CJ-
fyhold in Fee^
and then grants Frank-Tennant or the Inherit.wce of this Copyhold to a Str.in,^er, the Grantee, tliough no
Lord of the Manor, nor able to keep any Court, fhall take Benefit of Forfeitures made by the Co-
pyholder ; As it the Copyholder do make a Feoilmcnc Leale, Walle, deny the Rent 8cc. Co C;omp.
Cop. 66. S. 60.
13. Re-
1 4- 1- Copyhold.
Copyholder pr 13. Rcgtil'irly ic is tiue, that none can take Bent fit of a Foileiture but
Life ; the jy^ jfy^^f i^ i^f^Yci of the Manor at the Tune of the torfciturc. Co. Como.
Lord ninkes /". ^ , Q -n '
a Leafe to Cop. (^S- ^■59-
ccmnioue af- , - ■ r r 1/^1
ier the End, Forfci'urc, or Derermfnation of the Eflate for Life ; tne Copyholder commits a Forfetiurt ;
the Lord ivill twt enter; the Lrjjee may. Gilb. Treat, of Ten. Z2.<).
14. Adjudged, that where there is ^.Copyholder for Life., and the Zor^
Jeafcs for Tears., and the Copyholder commits a Forleiture, the Leflee
may enter for the Forfeiture. Godb. 175. pi. 241. Pafch. 8 Jac. C. B.
Meets V. Ridout.
15. If a Copyholder makes a Leafe contrary to the Cullom, and the
Lord dies before Entry or Stifure lor the FoJieiture, he or they in Re-
verlion or Renv-iinder lliall never take Advantage of the Forfeiture com-
mitted before his or their Time; Per Cur. Cru. j. 301. pi. 6. Pafch. lo
Jac. B. R. Lady Montague's Caie.
Gill- 'f reat. 16. k fiiccecding Lord of a Manor fhall not have any Advantage cf
of Ten. 154. Forleiture bv Walte done by a Copyholder in the Time ol thepieceding
citesS.C. Lord ; Refolv'd. 2 Sid. 8, 9. Mich. 1657, B. R. in the Cale ol Cham-
berlain V. Drake.
Lnrw. 799- 17. M. and A. two Coparceners 'were Ladies of a Manor ; a Copyholder
S C. adjudg-y-^,^^j-j /,^j Hoiife tv be ruinous., and made a Leal e of tis Copyhohifor 10
Freem Rep ^''''^"- ^- ^'"- '^^'^ Copyholder dies., and his V\'ite entred, claiming
siTpi 69Z.' her Widow's Eitate, Et bene, per Cur. For though this Leafe was a
Mich. 1699. Forfeiture, being a Breach of Truft, yet it is a perlbnal Wrong as much
Anon. S. P. 33 Walte, which cannot be transferr'd by Defcent, but mull be took
be's'^c'"ad° Advantage of by him that is wrong'd ; but the Ellate of the Copyholder
iudg'd by ' is not determin'd, becaufe the Lord may affirm it by Acceptance of
5 JuiHces Rent, and the Election to affirm it or not, mult be by both the Parce-
■accordingly ; j^iej-s ; The Thing is entire, and therelbre the furviving Silter cannot
T^'iniirtrdf el^^ ; P^"" ^"^^^^ Jultices. i Salk. 186, 187. pi. 5. Trin 8 W. 3. C. E.
thiu'a Copy- Ealtcourt v. Weeks.
holder was
but a Tenant at Will in the Nature of his Eflate, although his Eftate be fo (Irengthencd by Cuttom,
th-it folont' as he obferves the Cuftoms of the Manor, it is not in the Power of the Lord to defeat or
determinelt ; but yet the Copyholder might determine it when he ple.ifed. That when a Copyholder
took upon him to make a Leafe fsr Years his Eltate was determined, and if hi<; Eftare was determined,
the Heir might take Advantage of it as well as his Anceftor ; but the other three Judges being of
another Opinion, Judgment was given for the Defendant.
18. Treby took this Diff'ercnce., That in fome Cafes an Heir might take
Advantage of a Forfeiture.^ hut that was offuch A^s as were as "iveti Extin-
guifhments of the Copyhold KJlate., as Forfeitures ; As where a Copyholder
levied a Fine^ fuffered a Recovery., or made a Feoffment with Livery., there
the Copyhold Eltate was extinguiilied, becaule the Copyholder had.
taken upon himfelf to convey the Freehold, which was inconliltent with
a Copyhold Eltate ; but where a Copyholder makes a Leafe for 7'ears, or
commits Wafie^ thefe are Forfeitures at the Election of the Lord, and
and therefore if he takes no Advantage ot thcni by Entry, but doth any
Aft atterwards which admits him to be a Copyholder, the Forleiture is
purged ; As it he receives the Rent, or accepts a Surrender^ or amerces
him in his Court., but in the other Cafe no Att of the Lord can purge the
F'orfeiture, becaufe in Cale of a Fine, Recovery, &c. the Copyhold is
utterly excinguilhed. Therefore if the Lord to whom the vV'rong is
done, doth not mike his Ele6tion to make it a Forleiture by Entry, his
Heir lliall never take Advantage of ic. He fijd, he agreed with the
Opinion of Rollc, that a Feoffment with {withotit'\ Livcrj^ or 3i Bi.rgfun
and
Copyhold. 145
and S.ik without Inrollnient, are no Forfeitures, becaufe imperfeft Coiv
veyances, and not executed. Freeni. Rep, 516, 517. pi. 692. Mich. 1699.
B. R. Anon.
(U. c) Advantage of a Forfeiture. At what Time it
may be taken.
I, T F Copyholder vtakes a Leafs not warranted by the Cuilom, it
J^ will be a Forieiture bejore the Lejfes's Entry ^ Per Anderfon Ch. J.
Mo. 185. in pi. 329.
2. Offences which are apparent and notorious, of which the Lord by com-
mon Prcfuiiiption cannot cbufe but have Notice, are Forfeitures, eo injfante
that they are committed. Co. Comp. Cop 63.8,57.
3. As //' by fpccial Cujiom, upon the Defcent of any Copyhold of Inhe-
ritance, the Heir is lied upon three folenin Proclasnations, made at three
feveral Courts, to come in and be admitted to his Copyhold, if he Jails
to come in, this Failure is a Forieiture ipfo faCfo. Co. Comp. Cop, 63.
S. SI.
4. So if a Copyholder be fuffciently warned to appear, and he fails,
this is a Forfeiture ipfo faifo. Co. Comp. Cop. 63. S. 57.
(X. c) Where one and what Tenant fhall take Advan-
tage of the Forfeiture of another Tenant.
I. Wf HERE there is 'Tenant for Life, Remainder for Life of a Co- 2 Brownl.
V\ pyhold, and the 'Tenant for Life commits a Forfeiture, he in '57- Bkknd
Remainder fhall not enter, but the Lord pall have it during the Life of him g r"^^c'' p
hy whom it was forfeited, but this ihall not deftroy the Remainder with- bV Coke
out an exprefs Cultom in fuch Cafe i Refolv'd. 9 Rep. 107. a. Pafch. Ch. j .
10 Jac. Podger's Cafe. i Brownl,
but S. P. does not appear. S. P. by Holt Ch. J. 2 Ld. Raym. Rep 1000. Mich, 2 Ann.
2. A Copyhold was granted to A. for Life, and afterwards according 2 Jo. 1S9.
the Cullom, the Rcver/ion to B. fur Life, immediately ajter the Death, Benifon v.
Surrender, Forfeiture, or other Determination of the EJlate of A. who was ^"■°'^^.^- ^*
afterwards attained of Felony The Lord did not enter, and the Kingpar-^^'^.^L.^
doned A. Afterwards B. in Reverfion entred, and adjudged lawful ; upon 2 Show,
which Error was brought in the Exchecjuer-Chamber, and the Error '5o. pl
affign'd was, that the Reverfioner for Life cou'd not take Advantage oi'^V'- ^■*~^'
this Forfeiture, but that the Lord ihould have entred, and fo have de- li^^Skb*!'
termined the Eltate of A, and then B. the Reverfioner might have entred S.S. C.
on him, but all the Court held, that the Eftate for Life was determined ^''K'-'ed.
by the Attaiader, becaufe a Copyhold is but a Tenancy at Will in the^'''^ ^'^j?'"'.
Eye of the Law, and the Attainder determined his Will, ib that he is 29.'p['5.
dikbled to hold any Eltate, and then he in Reverfion may take Ad- S. C. ad-
vantage of this Determination. 3 Lev. 94 Mich. 34. Car. 2. Strode v. J^'^g^^. and
Dennifon. ^\^ ^'■fio'c
Court held,
try of him in Remainder was good ; and that the Lord cannot hold it againft his own Grant
P P 3 If
146
Copyhold.
3. It' thete he a Copyhold EUate for Life^ Rcumiuder to B. if Tmsm j'jir
Life forjeit^ it is noc fuch a Determinaiion as to let in the Remaindtr,
but the Lord ihall enjoy it during the Lite ol" Tenant lor Lite. 12 Mod.
123. Patch. 9 W. 3. Head v. Tyter,
(Y. c) Forfeiture. Of how much it fliall be.
I. A IVidow Copyholder durante Viduitate^ according to the Cu.
£\ ftom, fow'd the Land, and before the Corn was fevered fljc mar-
ried; Adjudged that the Lordfhall have the Crop, becaufe her Eitate was
determined bv her own Act. So ifihe had leafed the Land tor Years,
and alterwards married, the LelTee having firfl fow'd the Lands, he
his Eltate is determined by the
though
God-sb. 1S9,
pi. 126.
Oland V.
Bard wick
S. C. ad-
iudp;ed that
the Husband fliall not have the Corn, tor
fhall not ^\£-j. qJ-jj Stranger, yet he lliall noc be (as to the firlT: LetTor) in a better
Corn; But Cafe than his Leflbr was. 5 Rep. 116. Hill. 44 Eliz. B. R. Gland's
Clench Cafe.
held, that
if fhe iiad leafed the Land, and the LcfTce had fown ir, and then fhe had married, and the Lord had
cntrcd, yet the LelTee flinuld have the Corn. Mo. 594. pi. 5i20l3nd v. Burdwick S. C. adjudged
that the Lord fhall have the Corn, and not the Wife ; But otherwifc if her Eftate had ended by Death,
Divorce &c. Cro. E. 460. (bi.s) pi. 10. S. C. adjudg'd for the I^ord agauift the Baron by' Popham
and Clench, contradiceiite Fenner, & abfente Gawdy.
ThisinRoii p^ ^-j jj^ what Cafes a Forjeiture oj ? art Jhall he ?,
is Letter (E
Forfeiture of the whole.
if a COp))ljOlUet makes a FeofTment of an Acre Of LanU, Pat-
ccl Of lji0 Copyijolti, all tlje Copp!)oIti igi not forfeiteo tip
tl)t0, but onlj? tljat acre* ip, 41 ^^ '^* 3ti. Jjctujeen yuiur and
Terry,
S. P. as to
"Waftedone,
Kefolv'd.
4 Rep. 27.
a. pi. I y.
Trin. %6
Eliz.. B. R. Taverner v. Cromwell, v here fcveral Acres are held by feveral Copiw, and by feveral
Rents, for tho* they are all in One and the fame Hand, yet every Acre is held ftverally, and to every
Acre there is a feveral Condition in Law tacitly anncx'd, fo that the Forfeiture of the one cannot be
the Forfeiture of any of the others^ for the feveral Conditions in Law enfuc the feveral Tenures,
So where diverfs Copyholds are granted hy one Copy, and Jeveral Habeyid' and feveral Redder.dntiis (or every of
them, but they all began at one lime, and were to end at one Time \ held the Forfeiture of one is not the
Forfeiture of the other, for they are feveral Grants and as feveral Copies. Cro. E ;5V pi lo. Mich.
^(j 6c 57 Eliz. C. B. Taverner v. Lord Cromwell. 4 Rep. 27 a. b. pi i j. S. C. & S P. refolv'd
per tot. Cur. where the Lord admitted the Tenant Tenendum perAntiqua Servitia inde prius debita et
de Jure confueta, or to iuch ElTeft, and A. commits a Forfeiture in Bl. Acre, he fhall forfeit thi,*
only ; tor the Tenendum, reddendo fingula fingulis, doth continue the IcveraJ Tenures. — Supplement
to Co. Comp. Cop. 74. S. 10. cites S C. — Ibid. 65 S. 59. S P.
' 2. 31f a COp^fjOltlCt cuts down a Tree which grows upon an Acre
Of lann, paced of tlje Coppljoin -, tljisi 10 a Jfbifctture of all tlje
niff — -.- -
tUJCCU h'lilkr and T<rry.
3. A.?
Copyhold. 14-r
3. As to Forleicure of a P.irc being a Forfeiture ofali, as by W'alteHet.;^. Arg.
or FfOiliiient, or denying of Rent &c. i: is /m material whether the Co-^'^^'^-.^-
•yhohis are tn one or fcveral Copies, btit only whether the tenure be one o?'T>7^''f"
•rveral. 4 Rtp. 27. b. fays it was fo adjudged upon Demurrer, Hill. Tea z^r.
^S Fliz. C. B. in Cafe of Taverner v. Cromwell. 252. cites
Lex Cuftum.
that by Feoffment ofPartfo much only is forfeited, kit if* U'afli be committed in Part, the whole by
the Gime Tenure \s forfeited, for tliat goes to the Deliructioii of the Honfis, and Co of the whole Copy-
!\olc! filiates, but if il-ere he m EiiilJii.c, (^u.ere ; for he fays it feems unrealbnable then that Wafte in
Part Ihould be a Forfeiture of the whole, and fo lie fays it feems in Cafe of Feoffment of
P.ir;.
• S P. as to the Wafte in cutting Trees in three Acres, that it is a Forfeiture of al! the Lands
granted by that Copy; Per Cur 5 Keb. 641. pi. 47. Pafth. 28 Car. 2 B. R. in Cale o( Pafchall v.
Wood Glib. Treat, of Ten. 204. cites S. C. and fay.s, that if a Copyholder be feifcd by Force
of leveral Copies of feveral Parcels, by feveral Tenures, if he commit a Forfeiture in orle, it is no
orfeiuireof the Reft ; As if he commit VVaftc in Part of Black Acre, it is a Forfeiture of all that
.'■'.ere, and by the fame Reafon, if Wafte be committed in one Acre, it is a Forfeiture of 20 Acres, if
held by one Tenure, for the Condition in Law annexed to the whole Eftate is btoke, and fo the Lord
may enter for the Forfeiture ; but where there are feveral Tenures, though they be in the Hands otone
Copyholder, there are feveral Conditions in Law annexed to the feveral Parcels, and therefore the
Breach of one is not (b ot theotheri If fuch a Copyholder furrcnders to the IJi's of another, and the
Lordad.Tiits him by one Copy, Tcnend' per Antique -Servitia, the leveral Tenures remain ; but if the
Admittance were by one Tenure, then it feems a forfeiture of Part would reach the whole, becaufe
the Condition inLaw is but one ; fo if feveral Copyholds efcheat to ther..ord,and he {grants them again,
tenend' per Antiqua Jiervicia to A. and he commits a Forfeiture in Part, this extends not to the
whole.
4. If feveral Copyholds efcheat to the Lord, and he regrants them hy one 4^^?- ^l'^-
■Copy, the Forleiture of the one is not the Forfeiture oi' the other. Co.
Comp. Cop. 65. S. 59.
(A. d) Forfeiture. What fhall be a Dlfpenfation or
Excufe thereof, and by whom it may be.
"A
Copyholder committed U'ajfe^ an-d afterwards the Lord acce^ted'^^^Co^j-
cfthe Rent, the Queftion was, whether fuch Acceptance barr'd bolder does
him of his Entry lor the Forfeiture ? Cook argued that it Ihould nor,^;^^^"^"'^^.
for this being a Condition in Law, which when broken the Eitate o('^u!peshT'
the Copyholder is thereby merely void, and the Court agreed ih^zC-'pyhold
the Copyhold "joas in the Lord prefently by the Forfeiture. Sed adiornatur Acceptance
Mich. 28 & 29 Eiiz. B. R. Godb. 47. pi. 58. Mich. 28 & 20 °^^^"'
Eliz. B. R. Anon. d,^p^„^^
But otherwifc where it is a naked Forfeiture. Giib. Treat, of Ten. 516.
z. Stezvard's refttjing to <?//»//> is a good Excufe. Le. roo. pi. 128.8. C. cited
Pafch. 30 Eliz. B. R. Rumney v. Eve. Supplement
y-, c r I ^° ^o Comp.
Cop 75.6. 10. for there was no Negligence in the Party, he having pray'd to be admitted.
3. The Father commits a Forfeiture and dies, the Son is admitted as Heir Gi\b. Treat
by Defcent. This purges not the Forfeiture, becaufe the Father dy-"^ '^'^" ='?*
ing feifed of no Ellate, the Son cannot be admitted to any. Toth ^'^r'^-'
107. cites 30 Eliz. Smith v. --- "fopunrea-
thinks that the Anceftor died feiz'd of an Eftate, becaufe nothing removes the leea! £ftate' and I'n-
tereft out of him but the Lord's feifure.
o"^"''cn^^''^^^^'^''''^'^ ^''''^^'■''' '^"''^ '•'^'■^"'■'^ ^'■'Z'''^'"' ^"''<'' he couW not afterwavdi avoid the
Heirs Mate for that Forfeiture, because the taking th.- Heriot on the Father's Death ^;Ve«,V cf a
Lj.w/ei/eci Toth. 107 cite; Hill i^ji. B<.cor, v. Thurlcy.
4. If
14-8 Copyhold.
Gilb. Treat. 4 If a Copyholder makes Default at Courts and he is there amerc'd,
of Ten. 255. (.]-,mjgfi the Amercemenc be not cji recited or levied, yet it is a Difpen-
cites S.C. ^^^^.j^j^ qJ j|.,g Forfeiture ; Held. Le. 104. pi, 136. Mich. 30 Eliz. B. R.
in Sir John Kraunch's Cafe.
Cro. E. 2<)2. 5. The Quellion was, whether the difmembring of the Inheritance
pl. 5. S. C. from the Copyhold Land by the Feojfment of the Mcinor has dil'abled
butS. P. every Perlbn from taking Advantage of any Forfeiture, and it was
appear agreed with this Difference^ that all Forfeitures which accrue by reafou
ciw. of Matters of the Court, are dtfcharged^ but not Forjeiturcs at Common
65. S. G. Law, as Wafie and Leafes to the Dtfhertfon, but that the Feollee, as
{■"m ^°h'^^'^ to luch as are done in his Time, iliall enter and take Advantage of
ti'ieKeoffec them. Mo. 392, 393. pl. 508. Hill. 37 Eliz. B. R. the 4th Point in
or Lcffee Cafe of Eaft V. Harding.
fhall have
Advantar;e of aH Forfeitures belonging to Land, as in Cafe of Feoffment and the like, but not fcr
not doing Fealty.
6. If the Lord does any Thing whereby he doth acknowledge him his Le-
vant after Forfeiture, this Acknowledgement amounts to a Confirma-
tion ; As it he dtflrams upon the Ground /or Rtut due after Forfeiture,
or it he admits alter the Forfeiture, or the like, thefe are EftoppcJs
to the Lord, fo that he can never enter, fo the Lord have Notice of
fuch Forfeitures beibre any fuch A£t which may amount to a Confir-
mation be done ; Yet fome make this Difference, that thefe Forfeitures
only which defiro^' not the Copyhold are conffrniable by fubfequent Acknow-
ledgement, and not thofe Forfeitures which tend to the Dejlrutfions of a
Copyhcld, As if the Copyholder makes a.Fecffment, by this the Copy-
holder is deflroyed, and therelore no Ibblequent Acknowledg-
ment of the Lord will ever falve this fore. Co. Comp. Cop.
66. S. 61.
7. A Copyholder levies a Fine, makes a Feoffment, or fuffers a Com-
mon Recovery, which dell:ro)'s the Eilate ; In fuch Cale no Acceptance
of the Rent, or y^cf done by the Lord jhall be available to make the Ff~
tate again good ; But where the Cujlom of the Manor only is broken^ as if
the Copyholder makes a L.eafe ot his Copyhold Lands for more Years
than one Year, or denies to pay his Rent, or denies to be [worn of the Ho-
mage, or commits Waffe, there his Ettate may be afterwards confirmed,
and there, and in fuch Cafe the Acceptance of the Rent by the Ld.
■will amount to a Confirmation ot' the firit Eltace. Supplement to Co.
Comp. Cop. 76. S II.
8. In fome Cafes, where an Ellate of a Copyholder is forfeited by
Law, yet by Cuflom, and the Afi of the Lord in his Court ol the Manor,
the Forfeiture may be mitigated, and the Land Ihall be utterly lorteic-
ed or deitroyed i As where the Cultom is. That lor Waffe Copyhold
Ihall be forfeited, is.CuJiom to amerce the Tenant for theWaJie done, and
to dijirain for the Amercement will be a good Cuftom to mitigate
the Forleiture of the Copyhold. Supplement to Co. Comp. Cop.
76. S. II.
Cro J. 166. p. A Copyholder commits voluntary Waffe and afterwards the Lord
pl. 4 Tnn. ^-iccives the Rent without taking Notice of the Walte, this has puro-'d
Caic of ^he Forfeiture, per Ch. J. Kmg at VVincheller AHifes, and the old
jsi.Hntle V. Dillinftion between Permillive VV'afte and Voluntary doth not now
\\ollington. c)btain, but in each Cafe the Receipt ot the Rent purges the For-
S P. was leiture.
made a
(jueftion but ro Rcfolution was given tlierein. ■ Supplcrrent to Co. Comp Cop 76 S. il.citesS.C.
■ I S.iik iS^f), 1^7 J^- P. I'eld that the Ellate of the Copyholder was not determined, bcc.iufc the
Lord by Acci-pi.tncc of the Kent 5cc. might affirm it.
10. If
Copyhold. i^p
10. If Copyholder commies a. Forfeit nre, and Dominus pro Tempore
of any legal Tide, though at Will, grants afterwards an Admittance,
this is a DilpaiC^^tiG/i of the Forfeiture, not only as to himfelt", but as
to him in Reverlion ; for he may make Voluntary Grants ; and fuch a
tievv Grant and Admittance amounts to an Entry for the Forfeiture,
and anew Grant. Bu: a. Lord l^y zvrong or hy DifTeilin can't by fuch
Admitance purge the Forfeiture fo as to bind the Rightful Lord.
Lev. 26. Pafch? 13 Car. 2. B. R. Milhx v. Baker.
11. The Lord after acceptance of the Rent cannot enter upon the Leffee
of a Copyholder 3 per Twifden J. in Evidence to a Jury ac the Bar.
Keb'. 15. pi. 43. Pafch. 13 Car. 2. B. R. Garrard v. Lifter.
12 Where there is an y/(^/W £'«^rjj' by the Lord in the Life of tbe^^^^ Treat.
Cppytcldcr for a Forfeiture by him, as by cutting down Timber and fell- cites s"'c^*'
ing it, no Acceptance ajtcr icili purge the Forfeiture , And though it ne-
ver was prefcntcd by the Homage, it is not Material, it being a thing
Notorious. 3 Keb. 641. pi. 47. Pafch. 28 Car. 2 B. R. Pafchal v.
Wood.
13. A Copyholder cut Timber and fold it and died. The fucceed- Gilb. Treat.'
ing Lord brought Ejectment. The Defendant pleaded, that in Tret- °f ^*"p5^*
pafs brought by him the Lord (now Plaintiff) juftijied for taking a gndVamc
Heriot ; and Per Cur. Jullification for Heriot fervice on Seifin of the Diverfity,
Anceflor is an Acceptance of the Heir as Tenant, and purges the For- and fay-,
feicure ; but otherwife of an Acceptance, Juflification or Avowry tor ^''^"'"'
Heriot Cuflcm. 3 Keb. 641. pi. 47. Pafch. 28 Car. 2. B. R. Pafcall Pf°7'^c
V. Wood. Forfeiture
the Eftate
is in the Tenant, elfe tie Lord could not have a Heriot ; The Reafon for the Difference fecms to be,
bccaufc in accepting of Heriot Service, he admits the Heir Tenant, but in accepting Heriot Cuftom,
be only admits the Tenant died feifed, fed qusre ; for it fcenns to me to be a Difpenfation ; for he
admit,s him to be Tenant after the Forfeiture committed, and therefore if the Lord accept of any
Services after he knows of the Forfeiture; it is a Difpenfation ; For why fliould not the Acceptance
and .Acknowledgement of the Tenant to be Tenant after a Forfeiture, as well difpence with a
Forfeiture, as Acknowledgment of the Heir Co be a Tenant.
14. It feems, that if the L.ord accepts a Surrender from a 7'enant who SutanM-
has committed a Forfeiture, this is no Difpenfation or Bar to the Entry '"'£'<'" ^V
of the Lord or his Lelfee, if the Caufe of Forfeiture be fuch as the ^p^^ ^nc'r.
Lord might well be fuppcfed ignorant of, otherwife not^ As making a with a for-
private Leafe, and fo is Cro. C. 233. Matthews v. W^hetton i But for mer Forfei-
Faiiiire of Suit of Court, or Nonpayment of Rent i3c. it is otherwife ; ^"''^- ^°'^^-
becaufe he cannot be prefum'd ignorant of it. 2 Vent. 38, 39. Pafch. 2°^£'j:""
35 Car. 2. C. B. Lord Cornwallis's Cafe. Clerk v.
Wentwortfi.
^ - - - — , _ ... — . „, ^ ...lure of Suic
of Court, Nonpayment of Rent &c. 2 Vent. 50, 59. ut fupra.
15. A Copyholder for Lifefuffer'd his Houfe to be ruinous, and made a
Leafe for 10 J'ears. It was admitted per Cur. that thefe were both
Caufes of Forleiture, and 3 Jultices held, that the Eftate of the Co-
pyholder was not determined, becaufe the the Lord by Acceptance of
the Rent Sc might affirm it. i Salk, 186, 187. pi. 3. Trin. 10 W. 3.
C B. Ealkourt v. W'eekes.
(^ q (B. d) For-
'5^ __^ Copyhold.
(B. d) Forfeiture. _ In what Cafes the Lord may enter
without Prefentment.
wS"e ''PY"T"' i^"°t of Nece/firy, but for the Lord's better In
notFoi-fei- A Uruaion ot his Title, and he may, if he will take AH ^!n'
turestill tage oi a Forfeiture before he Prefentment Cro F !of i ""
P-f-™ ^^'^h.gS&spEliz. B.R. Fall v Sng ^^^^ ^^^ '^•
Sfhfcr.rS'S^^^^^^ "/ .uhou.NorI.e given; As if,
2. If a Copyholder goes ahmt in any other Conn to intith any other
Lord unto hts Copyhold; or if he aliens by Deed, thefe and the I f f
oughttobeprefented. Co. Gomp. Cop. 64. S 58 ' *
3. There is z Real and a i>.r>^/ Forleiture of Copyhold Land •
^ irOCfe%"S%Sfon%'^^ ^'^ "°"^^S^' a^'was^refolved
in ioruCR S ^mZ, I'erlonal Forfeiture is necelfarv to be found ^
Cro C .„ /f- P^- fP-^ ^f^c ' J^'^- ^ ^- •" ^^^^d's (i/e ^- *
P?., MaV" ^- Copyholder leafes for one Year, and for another Year to con^
Sellv.'"-^^"f,.^, ^^y/iter the firit Year &c. and after furreTders his
VVhetton, Cophold to the Lord ; the Lord enters, and orants 1 Leak fZvL
s c ad-' The Leafe by the Copyholder was a Forfdtu e, nd wht [he Tu^^
judged. render was made to the Lord, this Leafe was vdd agdn I him and
^^s Inrere/l dtfcharged wnhout Prefentment and Setrnre^rLf^nre^
which his Entry was lawful, and his Leafe for Y^ars l?d To
249. pl. 4- Mich 7 Car. B. R. Matthews v. VVhefton ^ ^
5. It there be a Copyhold Tenant Jor Life, the Reveriion to the Lord
mdtht Tenant commits a Forfeiture tht Lord may erant the Fr?Ir7
andT^F^ before any Seifure', for it is a DetermiLlon of 1 WHL
pl•^^f Sr^B^ruif^x';^^!^^^ - '''^'-''-' ^- '^•
mittance of a Copyhold Tenant, and 'tis not nece^Sv for "he Ste«td
: Sd \lTffZ '''^"^"''^ .'"^ "^^ Demand IrbePef^nal
o P .f, , . '^ not always make an ^^«^/ EMru but crenerallv
L^hTr •\'^' ^'T'J '".^"^^ '^^ ^^''^^ ^"d that is a-^ Sign ?he ffi
hath a Right, and that is in Nature of a Habere Fac' Pofl' anH H?..=
|Su;!on:^^?ss^:5-^ss;^fi^^^-5^^
Pclc'l'rL Ent'ry Pc^g^ile'rTsh ""^^ ^'^ ^°^'^ "^>' '^^'^' ^^''^^ont an
-. U^, B. 7. 'ir^tiJUFB^: ''s^odf ^' '^^- '''^^- '^ ^ 33 Car .
'Tvefp.tj's, and
and i)ei- adventure no Entry is needful to Maintaimn V7;,., .r .7 ir ^ „
3 5 Car. 2. B.R. Benelon v. Strode, "'^'""'" ^n 'Ww. /ir //. .J.V/«, />,.;?,,. Skin. 9. Mich.
Cc d)
It.
Copyhold. J c; I
(C d) Forfeiture. To what Time the Forfeiture
fhall have Relation.
IF a Copyholder makes a Leafe for Tears to commence at Mscheal.Qr<i.t. m.
mas. It IS a Forfeiture prefently, per Hutton J. and none denied P'- 'pMich.-
Het. 122. Mich. 4. Car. C. B. Harding v. Turpin. ?8& ?9Elii;
-It is a Forfeiture before the Entry of LeflTee. Per Anderfon Ch. j. Mo. 185. ^l'^^^'""^
^2. Though nd Advantage can be taken of a Forfeiture for Treafon
till Attainder, yet after Attainder it has relation, and the committing
the Treafonis the Forfeiture. Per Levinz J. 2 Vent 39. Pafch ,?
Car. 2. B. R. m Lord Cornwallis's Cafe. ^^
1.
(D. d) Where the Forfeiture fhall be to the King.
35 Eliz. "T^Naas, that Popip Reciifants above 16 Tears fhall within
^^P- 2. XLi 40 Days after their Conviifioti repair to their uftial
Uweelltrtg.and not remove above s M/es from thence, in Pain to forfeit
all thetr Goods, and their Lands and Annuities, durinx Life
.''•/^'iPy^^^^'^ PM inthis Cafe alfo forfeit his EJiate daring Life
(tf hisiifiate continue fo long) to the Lord of the Manor, if fuch Lord
betio Recafant Con'Diff nor feifed or pofeffed in fruji to the ufe of a Re~
infant ; for then the ^ueefi pall have the Forfeiture.
3- It a Copyhold given to y?/pfr//?/o«j Cf,j comes to the King bv the
btatute the Copyhold is deitroyed, and the Ufes void : but the
King does not thereby gain the Freehold of the Copyhold, but that
remains in the Lord of the Manor ; RefolvU Godb. 2«a pi ,22
Mich. II Jac. C. B. Bagnall v. Potts. ^^ ^ ^
_ 4. The King grants the Office of the Cujiody of a Houfe for Life ; this
IS a good Leale for Life notwithftanding it is Copyhold, and it is not
neceflary to recite m the Grant that it is Copyhold ; and after the
.titate tor Life is determined, the King may grant again by Copy of Court-
Roll the Houfe and Land, becaufe the King's Grants ^all be
taken tavourably, and not extended to two Intents where there is no
^eceffity for it, as there is not here, and we are not here to intend
a collateral Intent, and fo the Copyhold is not deftroyed, for the Law
takes Care topreferve the Inheritance of the King for his Succeflbrs
and It may be a Benefit to the King to have it continue Copyhold!
viz. to have Common &c. and his Eleftion is alfo deftroyed if he
may not have it Copyhold ; adjudg'd. Sty. 272. Pafch. 1657, Cremer v.
(E. dj
1^2 Copyhold.
(E. d) In what Cafes of Forfeiture Equity will
relieve.
I. rr^Ouching Copyholders Mr. Fitzherbert in his Natur. Brev. Fol,
X 12. nocech well, that forafmuch as he cannot have any Writ of
falfe Judgment^ nor other Remedy at Common Law againft his Lord,
and therefore if the Lord will put out his Copyholder that payeth his
Cultoms and Services, or will not admit him^toiukolc Ufe as Surrender is
t>iade, or will not hold his Court for the Benefit ol his Copyholder, or will
exaft Fines arbitrary where they be cultomary and certain, the Copy-
holder Ihill have a Subpoena to reilrain or compel him as the Cafe
Ihail require. Cary's Rep. 3, 4. cites D. 264. and 124 Fitz,. Sub-
poena. 21.
2. The Defendant would not admit the Plaintiff" to his Copyhold j
For that the Plaintiff committed ^Forfeiture in cutting dcdun U'ouds upon
the Copyhold, the Defendant [was] ordered to admit thePlaintiif Tenant,
for that the Defendant could not prove that the fame was done by the Plain-
tiff's Direffions^ but by a Tenant. Toth. 237, 238. cites 25 Eliz.. li. B.
Fol. 78. Taylor v. Hooe.
3. A Forfeiture for cutting do'-jjn'T imher without Licence, and employ-
ing it upon his Copyhold was held relievable upon paying a competent
Fine. Toth. 108. cites 1591. Per Clench J. in Cafe of Commin v.
Kingfmell.
iFrecm. 4." Copyholder Durante Viduitate cut Timber, and the Copyhold
Rep. 157. was feiied for wilful IVafe. Upon a Bill by the Widow for Relief
t '"'he Ld Bridgman K. declared, that in Cafe of a wilful Forfeiture he could not
Keeper ' relieve, but upon the Hearing dire^ed an IJJuc, whether the primary In-
being prefs'd tention in felling the Timber was to do JVaJle ; but as the Order was
to alter the drawn up, the Ilfue to be try'd was, if the fuppofed VV^afte was wilful
^'^"Vd not ^'' "°'- ' '-^PO" '^wo feveral Trials it was found for the Plaintiff, and fo
^''°" Q,. it was decreed, that Plaintiff Hiould be relieved, and the Defendant to
Prec. 57t. deliver Poffeffion, and account for the mefne ProHcs. Ch. Cafes 95. Hill.
cites S.C. iQ Car. 2. Thomas v. Porter and Bp. of Worceller.
but faid
there Ar^. to be Monftrous, but recites n to be, that the Lord had upon two Trials at Law re-
covered Verdid.s, and that he wa.s decreed not only ro account for the mefne Profits, but alTo to pj»y
Cods. [But it feemedto be Mifquoted. Vide.] 2 Vern. 664. pi. 590. Arg. cites S.C. of an
IfTue, whether Wafte to commit a Forfeiture.
5. The Grandfon and Heir of a Perfon convicted and executed for
Felony^ by which his Lands were fori eited to the Lord of the Manor,
brought his Bill for Difcovery and delivery of certain old Deeds which
the Lord had got into his Cuflody, and which were relating to the
Lands, and were formerly in the Hands of the Plaintiff's Anceftor ;
the Court retained the Caufe to enable the Plaintiff and his Heirs to the
Ufe ot the Depolitions therein at any Trial at Law, and Defendant to
do the fame, and Plaintiff to have Recottrfe to the Rolls 6cc. of the Ma-
nor, and have Copies, paying for the fame, and as many to be produced
at a Trial at Plaintiff's Colts as Plaintiff required. Fin. R. 249. Pafch.
28 Car. 2. Draper v. Zouch.
Ibid 66?. 6, t\. ha.\in^ two Copyholds within the fume Manor, cut Timber on one,
s C cited and repaired the other with it ; the Lord had brought Ejeftment and aV'er-
- — Ch. (jit^ for the Forfeiture. A. is relieved againlt the Forleiture, but or-
Proc. 574. dg^pd to pay Coils both at Law and here. . 2 Vern. R. 53T. pi. 4S1.
^ndVays. HUl. 17=^5- Nalh v. E. of Derby.
or.lv uMilLkc whether the St^'W.nrd or the Woodman ilaoulJ fct out the Ti;r.h;r.
-.A
Copy bold. I c;
T
7. A Tenant by Copy letting a Copyhold Ttiucnient jail down atcer re- 2 Vein. 66^.
peaced Admonitions and Prelentniencs of the Jury ol the VV^alte tor fe- ^-'P'
vcral Years together, and the Copyhold being feifed lor a Forfeiture, q^^*^ ^ '^'°'
brought a Bill, but Lord Harcourt would not relieve him, becaufe on Higford.
thele Circumllances it was equal to voluntary VVaite. Ch. Free. 574. t> '-^- %s
cites It as the Cafe ol Con v. Hickford. there was
a K ule or
Court to pay Cofts, and to repair, but he not repairing the Bill was difmifs'd, *— ^— Equi
Abr. lii. pi. 20. S. C lays that after fix feveral Prefentments upon him to rep, ir it, and
an Entry by the Lord tor the Forfeiture he brought an Ejedtment ; and when upon the Trial,
a Rule v.a!, entred into by Confent, and made a Rule of Court, that upon Payment of 4 I. to the
Lord for his Cofts, (which were not a 4th Part of the Coils he had put the Lord to) and putting
the Ertate into Repair, he fliould be admitted to it again, yet he never complied with the Rule,
nor nraie any Otlcr of Cofts to the Lord, but inftead of that brought another Ejeftment, and
was nonl'uitcd ; and nov/, after 9 or 10 Years Time more, brings his Bill, and had been feveral
Times amerced for not appearing at the Court, and refufcd to do Fealty, cither upnn Oath, (or
being a (^iiaker) upon Affirmation, and upon thefe Circumllances Lord Keeper declared he ought
to have no Relief, or if he were to be relieved, yet it muft be upon Payment to the Lord oi all his
Cofts, and putting the Eftate into good Repair, which would be more Charge to him than his Intereft
the Eftatc would be worth, having only an Eltate for Life tlierein, and difmilVcd the Bill, but with
Cofts ; and Lord Keeper hkewife declared, that though this were a voluntary Wafte and Forfei-
ture, (againft which it was objected this Court never gave Relief) yet he tliouglit the Rules of
Equity not lb ftrif.l, but that Relief might even be given againft voluntary Wafte and For-
teiiure.
8. Forfeiture hy a .Quaker for not doing Suit and Service Wd.s re-Ch.Prec.
lieved Cited 2 Vera. 604 pi. 590. Mich. 1710. as the Cafe of Cudmore 57f for
rejufing to
V. Kaven. y^.,^, pealty
was relieved
on the Circumftance of the Cafe, cites it as the Cafe of Edmore v. Craven.
9. Copyholder made Leafes not warranted by the Ciijlom^ and worked a
G)fic'.rry of Stone without a Licence, and died, having on his Marriage
furrendered to the Ufe of himfelf for Life, with Remainder to hisjirji
and other Sons in Tail Male^ Remainder to himfelf in Fee, But no Ad-
mittance was made on fuch Surrender. Afterwards his Son and Heir
cut down Trees, and inclofed fovie of the land, notwithftanding feveral
Admonitions Irom the Lord, who brought his EjeBment, and had a
Verdiif as for a Forleiture. On a Bill brought by the Copyholder for
Relief, Lord Macclesfield was clear, that there was no Foundation
for Equity to interpofe; That making a Leafe Jor 7'ears without Li-
cence was a Forieiture as it was a Determination ot" his Will, and
though the Lordpould rejufe to grant fitch Licence, yet the Tenant has
no Remedy, nor would this Court compel the Lord to grant fuch
Licence ^ That the Cuftoms are in the Nature of the Limitation of an Ef-
tate which determines on the Breach of them, that unlefs there were
fome equitable Circnmfiances in this Cafe, this Court cannot interpofe,
which would be to repeal and dellroy the Law. Ch. Free. 568. pi.
347. Trin 1721. Sir H. Peachy v. D. of Somerfet.
10. In cafe oi" Nonp.iyment of Rent or Fine, Chancery may relieve a
Copyhold Tenant ; For the Eftace in fuch Cafes is but in Nature of a
fecurity for thofe Sums, and the Lord may be recompenfed in Dama-
ges j Per Lord Macclesfield. Ch. Free. 572. Trin. 1721. in Cafe of
Sir Hen. Peachy v. D. of Somerfet.
11. A. a Copyholder by Surrender is to be only Tenant for Life, then
to hisjirji and Sons in Tail Male fucccfjively. Remainder to hnnfelf in
Fee, but no Admittance is made onjhch Surrender. A. commits a For-
feiture, It was held clearly, that A. continued, and was to be conli-
dered as abfolute Tenant to the Lord, and tho' A. having a Son was
but a Truftee for him of the Inheritance of thefe Lands, yet the
whole Inheritance quoad the Lord was in A. and any A£l of Forfeiture
done by A. would bind the Inheritance, becaufe there mult be always
R r fome
J 1^4- Copyhold.
lonie Tenants to anfwer tor the whole ^ but if there had been an Ad-
niictaijce ot'A. lor Liie, and oi the Son in Remainder, becaufe they
come as it were by two diltinft grants from the Lord himfelf, the Afts
of the one will not affeft the other; but the till there is an Admittance
on I'uch furrender, the Lord is not bound to take Notice oi it, but
the Tenant has the fame Eltate as before to all Intents and Purpofes,
and the rather, becaufe the Lord has fio Meatjs to compel him to come
i'd and be adtnitted on fuch Surrender, but if the Son Cuould bring a Bill
againji A. and the Lord^ to compel an Admittance purfuant to fuch Surren-
der^ it might come then to be conlidered, how far this Forieiture of
the Father's lliould affeO: the Son. Ch. Prec. 472. Trin. 1721. Sir
H. Peachy v. D, of Somerfet,
(E. d. 2) Forfeiture. How to be proved.
1. TJ^OR. a Lord of a Manor to avoid a Copyhold Eftate for a For-
^ feiture by making of a Leafe of his Copyhold Land, contrary
to tlieCuftom, there ought for to be very dircii^ and certain J^rcofmadQ
of a certain Leafe, with a certain Beginning and ending with it, and fo
in like Manner oi any other Thigg luppoled to be a6led and done by a.
Copyholder, and contrary to the Cullom of the Manor, thereby to
make a Forieiture of his Copyhold Eltate; this mull all appear certainly
to the Court, and the Oath of a Stranger made in th3 Lord's Court to this
Purpofe, Ihall not be of any Force or Effect to prove a Forfeiture, el-
pecially when the Copyholder itill continues in Polleliion, and lb dies
leifed of his Copyhold Ellate, and this never came in Q^aellion till after
his Death ; And if fuch a Preientment, as this was, in the Lord's Court
fhall be allowed of, upon fuch an Oath made by a Stranger, as to make
a Forfeiture of a Copyhold Ellate, every Copyholder then might be in
conditional Danger to lofe his Copyhold. Bulit. 189, 190. Pafch. 10
Jac. Hamlen, als. Ld. Montague's Cafe.
2. The Court did alfo clearly agree, that if the Copyholder did
promife for to make fuch a Leafe, and it is not proved m fatlo, that
he did make the fame, this is no Caufe for to make a Forfeiture
of his Copyhold Eftate. Bulft. 190. Pafch. 10 Jac. Hamlen v. Ham-
len.
[F. b] Wmt Thing will be an Ext'nigul/Ioman of a
This in Roll Copyhold.
IS Letter -i /
CH.) in
fol. 510.
Mich zS I. r-|p J:) (2; Severance of the Freehold auTl llljentailCe of the Land,
& 29 Eiii. I wiu bp Copj) of tljc ®auor Bocs not crrmsuinj oc umr^
^'"'rcp (fate, ro tijat tVc Loro cannot ouft \m fa jong aj3 Ije pap0 ana
26.b. pi; pcrfotmsi ijijs CuftamjiS auo@ctiJicc.si. eo. 2. lane 17* it-
,2 ,oElix. J-Qj^g5^
Oar. oUIelwich and Luter S. P. rcfoWed 'Jro. E, ic?. pi. .o. S C. & S, P vefolved — The
W^by his A:tc.P..ior. without the concurt-ent Ad at the Copyholder hunlell, determine ^the
Copyhold. 1 5 5
F.ftavc and Intereft which the Copyholder has in his Copyhold, and therefore the Sev'erance of the
Freehold and Inheritance of the Land holden by Copy of Court Roll (being done by the AA of
of t!)e Lord) dotli not determine the Copyholder'.s Eliate, or extinj^uifii the Copyhold ; for altho' thac
the Eftate of the Copyholder be but an Elfate at Will, viz. Ad voluntatcra Domini Sec-.indum Con.
fuetudincm Manerii, yetCuftom has fo elfabliflied the Edate of the Copyholder, that he is not re-
moveable at the Will of the Lord, fo long as he performs the Culloms and Services. • Supplement
fo Co Comp; Cop. 75. S. 8. cites 2 Rep. i';. in Lane's Cafe, and 4 Kep ii Brown's Cafe. If
she Copyholder will join with the Lord in a Deed of Feoftmcnt of the Manoi-, there, by that Adt
of them both, the Copyhold is extindl, as it was laid b y the Lord Andeifbn. Ch. J, Pafch. 24 Eliz.
C. B. Supplement to Co. Comp. Cop. 75. S S,
2, 'J'f it Copyholder in Fee accepts a Leafe for Years of the fame Gouldsb.
Land Irom the Lord, tIji.S DCtCrUlUlC^ fji0 C0p}>D0lll €flate. CO, 2. ?-^ S. C. &
E.anct6.D, iv.rcfarueo. by the^'""^
Court, and
all the Serjeants. S. P. agreed per tot Cur. Godb. 11. pi. 16. Pafcb 24 Elix C. B S. P. faid
Arg. to have been adjudged. Cro. J. S4. pi. S. Mich. 5 Jac. S. P. by Dodridge f. 5 Bulfl. 81.
Balft. 52. S. P. per tot Cur. Anon. 4Rep. ;t.a.b. pi. 24. Mich i8&'i9 Eli-/,. S. p!
accordingly And it is all one as if the Copyholrier had accepted imniediatelv a Leafe for Years of
liis Copyhold, ss was adjudg'd in Hyde's Cafe ; Foe the Reafon in both Cafes is the fame, viz,
that Copyhold fntcrell aid Eftate for Years cannot be in one and the fame Ptrfon, and at one
and the lan-.e Time, of one and the fame Land, without confounding the Lefs; and befides, they
are of divers Natures, and caii'c Ifand together in one and the fame i-'erfon. 2 Rep. 17. a. relblved.
• Gilb Treat, of Ten. 209. cites S. C. and fays, that by the fame Reafon a Releafe upon that
Leafe will pals the Freehold and Inheritance to him.^ Ibid, fays that tho' by the taking a Leafe
for Years the Copyhold is determined, yet he may grant it by Copy to another ; And if the Copyhold
afterwards comei to the Lord's Hands, and he aliens the Manor by Fine Sec. the Alienee may
l-egrant it.
3. Soiftfjeixfce a eoppIjoJQcc in if cs of lants^, nm tljc LordLe. 170.
leafes to another tor Years, who alliens over the Term to the Coov- P'- ^^7-
holder, tlji'.s txtinm^)^^ 5310 Coppiibro Clfiitc, M t!}t0 !0 all mz $^''''pr
flsi ifi)£hm accepters tlji^ leafe ttam tlje torn ijunfeit; Co* 2. Mm c I' smith
17. refOiUCO* V. Lane
S. C- held
accordingly. And. T91. pi. 227. S. C. adjudged; For both the Interefls cannot be in the fame
Perfon Simul & Semel, and confequcntly oneof them muft be determined, which muft of Necefiity
be the Cuftomary Efiate ; For the Eftate at Common Law cannot merge in that, nnd when Common
Law and Cuftom come together, at;d the one or the other muff neceffarily have Prerogative, and.
ftand, the Common Law fnall be preferr'd and take place before the Culfom.. GouldsH. 54. pL
9. S. C. Adjornatur By acceptance of a Leafe for Years by the Copyholder the Copyhold is ex-
tintti Agreed per tot. Cur. Godb. 11. pi. 16. Pafch. 24 Eliz. C. B.
4. C. ptirchafed a Copyhold of A. to him[elj\ his Wij\ and Child, for
their Lives, and afterwards yi. granted a Leafe of the fame Lands to B.
for his Life y '■jjith Livery ofSeilin, refcroiug a Rent, and after that levied
a fine oj the faid Premiffes to C. 'jsho accepted the Rent of B. The Que-
iHon was, if the Copyhold was extinguillied ? D. 30. b. pi. 207. Hill,
■ 28. H. 8. in Cane. Compton v. Brent.
5. The Lord de-vifid [dctaifed] a Copyhold to C. for Life, an-d after
pajed the Freehold, and Soyl thereof 4)' Livery of Seiftn thereof to B. for
Life, referving a Rent, and then by Fine levied doth grant the faid Land
to the faid C. (come ces que il ad de fon done &c.) And C. accepteth the
jaid Rent of B. and thereupon it was quellioned, whether or no the
Copyhold of C. were gone in Confcience. Cary's Rep. 8. cites 28. H'
Pafch. 24 8. D 30.
6. It a Copyholder joins licit h his Ld. in a Feoffment of the Manor, the
Copyhold is thereby extincl- agreed per tot. Cur, Godb. 11. pi. 16
Eliz. C, B. Anon.
7. Tenant hy Copy took a Leaf- for 21 Tears of the Manor ; Shute Baron * Gd-ib.
held, that upon the Expiration of the 21 Years the Copyiiold is not loi- P'- ^l-
deterroin'd ^ for the' the Copyholder has only an Eitate at Will at the ^'^!,*^'''l-
Comtiion Law, \et he has an Eftate of Inheritance by the Cuftom of ^p but"''
the Manor, which is not determined by the Acccpumce ol the Leafe A-^. erfon
for Ch J. he •\,
I c; (5 Copyhold.
Ch J. licld, lor Years i tor * if a furrender is made ot a Copyhold into che Hands ol"
that in luch ^j^^. x^^.fiee'lor Years, to the Ufe oi'the Leiiee tor Years, and his Heirs,
r'*''^ 'I'^'iH and the Years expire, yet he lliall have Admittance to the Copyhold.
h°cS; Sav. 70, 7I-Pl- M6- Palch. 25 EUz. in Scacc. Anon.
mVin^lie'Copyholci isnotof Right, bucan Eft-iteat VVill-.tho' Cuftom and Prefcription had for-
lif-jej it is P. Arg. raid 10 have been adjudged. Cro. J. S4. pi 8. Godb. loi. pi. 117.
Mich 28 and zijEViz.C. B. VVn.y faid it had been rclblved by good Opinion, that it a Copyholder
accept?^ H Leafe tor Years of the Manor, the Copyholtl is extiiiH for ever. Supplement to Co. Comp.
Cop n- .S S S. P Cro E. 7. pi. 5, Trin. 24 Eliz, C. B. Anon. Mead (aid it was adjudg'd in
^tU'limt'.S (lafe, that by taking a Leafe ot the Manor the Copyhold wa.s extinft. Mo.
TSs Pl -'o Mich 26 Eliz. S. P. the Court held the Copyhold gone for ever, and that the LefTor
beip" Lord Hiall gain it after the Leafe to himfelf ; and Mode J. cited it as adjudgM in C, B Hide
V Newport — 4 Rep. 5 i. b. 24 cites Pafch. 1 7 Eliz. Hyde's Cafe adjudgM that tne Copyhold has
no Continuance ; But fays it was refolved in the fime Cafe, that fuch LelT_-e miy reg-ant the Copy-
hold again to whom he will, for the Land was alway,s demifed or dtniilable.
Gilh Treat. S. If a Copyholder fnes Execiitio/i of a Statute againfi the Ld. of the-
of Ten. 2S7. ]vi;ii]or, and has the Manor in F.xectition, and ajterwards levies the Debt^
cSS cues his Interell in the Copvhold remains^ per Manwood Ch. B. Sav. 71.
favs, that pl. 1 46. Pafch. 25 Eliz. m bcacc. Anon.
the Conufce ^ , ,, r 1 r
bcmg Lord for t!ie Time may make Voluntary Grants of his own Copyhold Lands a'; veil as ot
other.s that cone ir to his H;ind,' ; for tho' they are not Copyholder's (nor are ttiev fu v. hen Copholds
efthcat) yet tliey have Copyhold Lands that have been dcmifable time out of mind.
For the 9. The Lord granted the Freehold of a Copyhold to a Stranger ; the
Land re- Copyholder being in Polielion rtltafed to the Grantee all his Right in
T^"''t u the Land ; Per. Anderfon Ch. J. this does not exiinguilh the Copy-
3nThe hold. Cro. E. 21. pl. 2. Trin. 25 EH^- C B. Anon.
not taken away. Cro. J. i 26. Laftmer v Avery Gilb. Treat, of Ten 504 cites S. C. and the
fame Diverfity - Oiherwile it it had been to the Copyholder hiiidclf Cro E. 24. pl. 3, Hill. 26
Eliz.. C. B, Stockbridges Cafe Supplement to Co. Comp. Cop. 75. S. S cites S. C.
Co Comp. 10. Husband and iVifc Copyholders to them and their Heirs ; the Husband
Cop 75. S. lyr Money obtains an EJlate of Freehold to hnn and his Wife^ and the
Ll^^Gil^' ■^'•■"■■^ ^^ ^'^'"' ^°^^"- ^^^ Karon died, leaving IJfue ; the ii'ife entered,
Treat of ' und fujf ered a Comwon Recoiery. ^he Heir cntred by the Statute of 11 H.
Ten. zSiS. 7. and agreed that his Entry was Lawful, for-that the Copyhold, by the
cites S.C. Acceptance of the new Eftate, was extinguilhed. Cro. E. 24. pl. 3. Hill.
26 Eliz. C. B. Stockbridge's Cafe.
S. P. cited II. A Copyholder in Fee took a Leafe for Tears of the Manor. Refolv'd
as adjudged j^g Copyold was Extinft tor ever, and not only during the Leafe. Mo.
^^y"^^'- '"^ 185. pl. 330. Mich. 26 and 27. Eliz. Hide v. Newport.
Cafe 4 Rep. 51. b in pl. 24. S. C. cited per Cur. 2 Rep. 17. as adjudg'd , for the Copyhold Ef-
ta'te and Intereft for Years of one and the fame Land cannot fland Siniul and Semel in one and the
fame Pcrlbn, at one and the fame Time, without confounding the lefs ; And likewife they are of
diverfc Natures, tor which Realbn alio they cannot Itand togetlier in one and the fame Perloii.
Gilb Treat 12. Copyhold Lands demifed to 3 Sillers, Habend' to them for
of Ten. 2S5. their Lives fuccejhe, the fir fl accepted a Leafe to herjtij Remainder to her
cites S.C. Husband, dnd another Rtmainder to the 2d. Sijier. The 2d, agreed to ic
-^nd fays j^^ p^j^ ^ jj^j^.^ ^^^^^ i Per Shute J. 'tis no good Agreement, becaufe
u'lament alterwards, but had it been at the making the Lcale it had been a full
,p,ghtbe Extinguliimcnt ; Per Clench J. the Entry ot the Youngelt is lawlul
j,uxn and notwithltandint!, the Life of the Eldelt, but Gaudy J. contra, and Judg-
U'" *"'[' inent againlt the Younger. 2 Le. 73. pl. 97. Tnn. 26 Eliz. B. R. Curtis
Point be Y
Icf', undcter- V. Cottle.
u'her CoTvhold Eftate were extinft by Acceptance of the Remainder, then to be fure her Entry
v.:u, not lawful, and if it were not dctcrmin.d, yet it w.is held tl-,e Younger Siller's Remainder covild
Copyhold. 157
not take Place, becaufe according to ^ODgf'^ CLaff, the Remainder was not to commence till after
the Eltatc for Life ended ; fed qusrc farther, whether the Youngell Sifter's Remainder be not in this
Cafe deft loyed ? for the Ellate for Life of the Eldcft Sifter is utterly gone ; for the Lord having made a
LeaCe, can take no Advantage of the Forfeiture, and then the Remainder not commencing when the
particular Elf ate ends, it feems it can never commence, for there is as much Reafon to deftroy contin-
gent Remainders of Copyholds, as Freehold Eftates, and this is not like the Cafe where the Lord
Icifes the particular Eflate as a Forfeiture, for there it remains (as it feems) to fupport Remainder*.
13. W^herefbever a Copyhold is become not demifeabk by Copy^ either by
the Aft of the Lord; by the Aft ot the Law, or by the Aft of the
Copyholder himfelf, it is extinguilhed for ever. Co. Comp.Cop. 66.
S. 62.
14. If a Copyholder ■with Licence makes a Leafs for Ttars to a Straner^ or
without Licence makes a Leafe for 7 ears to the Land^ the Copyhold is
not hereby extinguilhed, and yet it is not demifeable by Copy. Co.
Conip. Cop. 66. S. 62.
15. So if a Copyholder intermarries with a Feme Seigniorefs^ this is a
Suipenfion only of the Copyhold, but no Extinguilhment. Co. Comp.
Cop. 66. S._62.
16. So if the Interruption be tortious, as the Ld.be diffcifed., and this
Diileifor feifed i or \i the Land be recovered, by falfe Verdifi, or erroneous
Judgment, and alter the Land is recontinued, it is not extinguillied but
ln;iy be granted again by Copy, ibr Non valet impedimentum quod de
Jure non lortitur ElFeftum, & Quod contra Legem fit, pro inlefto ha-
betur. Co. Comp. Cop. 66. S. 62.
17. A Feme Ible was Lady of a Manor, to which were divers Copy- S. P. The
holders. One of the Copyholders did marry with the Seignwrefs of the '^"""^'"i ^e-
Manor. It was the Opinion of the Juftices, that the Intermarriage was '"'^'P ^^^
only a Sulpenlion of the Copyhold, and not an Extinguilhment of k j, ^'f- thewfeius
But afterwards they joined in fuffertng a Common Recovery of the L^nd, for Life,
and upon that their Aft it was Refolv'd, that the Copyhold was extin- Remainder
guilhed. Supplement to Co. Comp. Cop. 73. S. 8. Anon. ?*"' ^?^,.
by Ander-
fon, Mead, and Periam, that the Copyhold was Extinft, for by the Recovery the Baron had gain'd
an Eftate of Freehold, but they all held that by the Intermarriage it was only fufpended. Cro. E. 7. pi. 5,
Trin. 24 Elix. C B. Anon. Gilb. Treat, of Ten. 28S. cites S. C. for by Suffering the Recovery
the Lands were convey 'd by Common Law Conveyance, and fo the Cuftom was broke.
18. The ^ueen feifed of the Manor of D. made a Leafe thereof for Tears S Rep. 6%.
to J. S. excepting the 'Trees. King James granted the Reverjion to the ^- Swain's
Flatntiff the Cu^flom of the Manor was, that a Copyholder oj the Manor^l^^ ^f^f^^
might top and Lop Trees. The Defendant being a Copyholder, cut Trees of a^Copy-
for Firewood, lor which Trefpafs was brought ; Refolv'd, that the holder that
Aftion did not lie, becaufe the Copyholder was in by the Cufiom which '^'"^"*"
was paramount the Exception of the Trees in the Leafe, and the Exception ^^ \^°'
Ihould not hinder the Cuftom, altho the Copyholder came to his Eftate G^ant^is
after the Exception. Mo. 811. pi. 1098. i Jac. Swain v. Beckett. mtdmvei
Eftate or Intereft of the Lord of the Manor, for he is only an Inftrument to make the Grant" but^Je
C«/?ora of the Manor after the Grant made eftablifhes and makes it firm to the Grantee fo that tho'
the Grant be new, yet the Title of the Copyholder is ancient, and fo ancient that this bv force of the
Cuftom exceeds the Memory of Man and fuch Grantee fliall have Ejiovers &c. to which the Copy
holders before were intltled Copyholder that comes in by voluntary Grant (hall not be fuhieU
to the Charges ov Incumbrances of the Lord before the Grant. 8 Rep. 63. b in Swains Cafe
Brownlow 251, 252 S. C. adjudged. Supplement to Co. Comp. Cop. 72. cites S, C. and the Lord
IS but an Inftmment to make the Grant Gilb. Treat, of Ten. 19,, cites S, C. accordinf^ly ; and
therefore if Copyholders have ufed to have Common in the Lord's Wafte or Eftovers in his Wood
or any other Profit apprender in any other Part of the Manor, and the Lord alien the Waft or Wood
by Feofment or Fine, and then grant an Eftate by Copy, the Copyholder may take the Profits in the
Hands of the Alienee, for the Cuftom unites the Incident to the Principal, as to the Copyholder
who claims, paramount the Severance. If the Alienation be by Fine, and he does not claim within
1 fT' //"r'n. r' "^- . ly^' P'""" ''"' '"^^ Copyholder claims by Cuftom, not by the Lord.
tor It he did the Feofment would bar him of his Common. ' > j >
S 3 19. If
'i^B Copyhold. __^
ip. If there be Lefcc for Life, the Rejnaiudcr jor Life of a Copyhold^ and
the lit. 7'cnaiit for Life purchafctb the Freehold of the Copyhold^ and atter-
terwards levieth a Fine thereot" and 5 Tears pafs, it was adjudged, thac
in tlie Cafe by the Fine levied the Copyhold was not gone nor df{-
troy'd and that this Fine was not a Bar to him who wjs in Remainder
in Life of the Copyhold. Supplement to Co. Comp. Cop. 73. S. 8. Mich.
9 Jac. in C. B. adjudged accordingly.
Jo 4T. Blc- 20. In Fjeftione Firniie brought by W. B. againft R. H. for Land in
verhaiTet v. p_ ^^^^ ^ \,q3.{q. made by J. B. upon a fpecial Verdict found, it was re-
ftonT''s C Iblved, that when a Copyholder bargains and fells his Copyhold to the T^ord
adjnd'gM, ' of a Manor which has the Manor tn Leafefor Tears, that thereby the Co-
thatthe pyhold Ellatc is extinguilhed. Hutt. 65. Trin. 19 Jac. Blemmerhaflec
Copyhold ^_ Humberftone.
was ex-
tinguiflied ; for though a Copyholder cannot transfer to another but by Confent ot the Lord, and
Surrenderin Court, and Admittance, yet he may releale to the Lord, bccaufc this is no Prejudice
to the Lord, for at Common Law he is only Tenant at Suftjrance.
V\'in. 65. 21. kCo^yholditr bargained and fold his Covyhr.ld Efiate to the Leffen
\^^%'^n of the Manor i KeColved, That the Copyhold Eitate is extinguished.
HMTet V.' Hutt. 65. Trin. 19 Jac. Blemnierhaffet v. Humberftone.
Hanfon,
S. C. Jo. 41. pi. 2. BleverhafTet v. Humberftone, S. C, and the whole Court agreed th:(t this was
an Extmguifhment of the Copvhoid. Hutt. 65. S. C. fays it was aj;rced here, that this <.opy-
hold is not (o extinft but the Lord (which is the LeiTee for Years) Dominus pro Tempore may f^rant
it De MovobyCopv. Gilb. Treat. ofTen. 2S4, 2^5. cites S. C. & S. P. for the Lcftee is Lord
of the Manor, and fo the Lands are always demifable by Copy, and that there can be no Difference bt .
tween this Cafe, and where the Manor is conveyed away, together with the Copyhold, at one and tiie
lame Time
22. Jf a Copyholder releafes to the Lord it is an Extinguifhment of the
Copyhold, though it be contrary to the Nature of a Releafe to give a
Polieffioni Per Hobart Ch. J. Hutt. 65. Trin. 19 Jac. in Cafe of Blem-
mer-Haifet v. Humberftone.
23. H. 8. was feifed of the Manor of Chhickford in Eflex in Fee, and
luilt a flew Hoiife there, call'd Lorrimore, and granted the Cufiody thereof
to Sir John Gates for Life, by the IFord Concefftmas, with the Clofe calfd
Scales, being Parcel of the Copyhold of the fat d Manor, but without reciting
that It was Copyhold, and this was tor exerciling his faid Office. The
King died. Sir John Gates died ; then Queen Mary granted the faid
Manor in Fee to Sufan Tongue, who leafed the Manor for Years to one
Lee, and he, before the Expiration of his Leafe, granted this Clofe to
Robert Lee in Fee, according to the Cuftom of the Manor ^ Robert
Lee's Leafe expired, and Robert Lee leafed it to Field, the Plaintiff,
at Will, and the Defendant, as Heir to Tongue, enter'd &c. The
Queltion was, whether the Grant of the King, without reciting that
this Clofe was Copyhold, had extinguiihed the Copyhold Cultom, or
not, and entranchifed the Clofe? Newdigate J. held the Copyhold de-
Itroy'd, but Glyn Ch. J. held, that it was only fufpended during the Lite
of Sir John Gates the Patentee, and Judg.ment by Glyn Ch. J. and
Warburton was given for the Plaintitt". 2 Sid. 17. 3J. 81. 137. Hill.
1658. B. R. Field v.- Boothby. '
24. If A. is 1 enant in Tail of a Copyhold, and it is found that by the CtifJoni
it cannot be barred but by Seifiire of the Lord, S non aliter nee aliomodo,
and A. accepts a Feoffment oi his Copyhold Lands from the Lord that has
the Inheritance and then makes a Feoffment thereof, and then levies a
Fine with Proclamations, and fuifers a Common Recovery, the Copy-
hold is fufpended, but not deftroved, quoad his Ilfue ; Bim it yi. ajter-
wards levies a Fine of the Land, though the Copyhold Intereft cannot
pafs, y-et- it may be barred and extinguiihed by the Fine. Adjudged.
Cart. 6. 2c, 23. &c Pafch. 17 Car. 2. C. B, Taylor v. Shaw.
2_j. TtniKP
Copy hold. I i^p
25. 'tenant for Life of a Manor with Power to make Leafes makes a Leafe Freem. Rep.
of a Copy hold. lYiis deftroys it tor ever i Per Holt Ch J. Ld. Raym. Rep. 5°^P' ^82.
270. Mich. 9. W. 3. in Cafe of Winter v. Loveden. if^'u&
a Manor
makes Leafes of the CopyhoMs, it does not extin^uifli^ them, yee when a Lejfee by Firtue of a Poicer demifeth,
fhis i.s an ablolux Dcftiuction of them, becaufe the Power is deiivei out of the Fee, and fo it is all
one as if Tenant in Fee-fimple of aManor made Leafe.
26. A. is a Copyholder in 'Tail, the Lord grants the Freehold of the Co-
pyhold to him in Fee; the Copyhold tho' incaiied is extinft. 3 VVms's
Rep. 9. Trin. 1724, Dunn v. Green.
fG. d] fP'hat fhall be faid an Extlnguijhment of the h-Thh in RoM
cide^ts o{ a Copyhold. lufoTj^o.^^
I. Tf tijcrc l3c a Ctidom of a 93nnor tljnt if Coppftoincrs for Life Hob is,. pi.
X Cic reifen, tljca- mrom iljall Ijalie it Diirmu tljcic JlBiliotuijoon, -'^■. s c
finD A. being a Copyholder lor Lite Of a CcllCUlCnt, the Lord Of tljC "j. jiJu
i^anOC conveys the Freehold auD JnDentaiTCE oi the Copyhold Tene- Rep. 17S.
nienc of A. by the Procuremen!: of A. to J. S. a Stranger, and to his Trin. is'
Heirs during the Life of A. the Remainder to B. the Wife of A. for J^^^ '^^•
Life, tljC Remainder in Fee to A. auD after A. grants the Remainder to ^^t'k 't ^'
\Y. his Son, nilD aftCr B. the Wife of A. dies, autl A. takes C. to Haughton
Wife, and dies feiiedi tl)t Widowhood of C. is not extinguifhed bp J- held,
fDePtircijafc aim Ccnlicpancc of a. Ijcc rpii0banD, foe tljc ifrecljolo 'J'^^J'^°',
htm utj. ©* a ©ti-auffcr, DitrinQ; tlje life of la. m Cftatc of a. TenlmTnrh.
iuag not ei;tingiiinjcn, anD bp Conftfiuencc tljis cccccfcent ecate, levered from
fciUcct tije JiBiDotuIjcon, contimicsi* Jpobart'jJ Eep. 244, bctmttn the Manor
Hoijoard and Bart let. yet he may
properly be
faid to be a Copyholder of the Manor ; for he fliall pay his ancient Services to the Lord of the
Manor ; and Doderidge J laid, that the Eftate which the Tenant had at the Time of his Death is
not a New, but an ancient Ellate, -whereupon it was adjudg'd, that the Feme fliall have her Widow's
Eftate Cro J. 575. pi. I. Waldoe v. Bartlet S. C. adjudged accordingly ; tor the Cuftom is con-
tinued Qiioad her, tho' the Frehold be fevered from the Manor ; for the Lord's Att fiiall not
•prejudice the Qjpyholder's Eltate, and it is a Privilege and Benefit annex 'd by the Cuftom to his
Eftate, tliat his Feme fliall have it after his Deatii, which ftiall not be defttoy'd as long as the
Copyhold Eftate remains undeftroy'd ; and the Copyhold Eftate here remains notwithftrnding the
Severance from the Freehold, and not only as a Privilege, but as a mere Copyhold. Jbid. fays it
•was refolv'd in the Court of Wards, by the 2 Ch. J. and Ch. B. that the Copyhold remain'd &c. [this
referves to the Cafe in Hob.] Pulm. 11 1, V\'aldcr v. Bavkley S C adjudged. And a Difference
was taken in the Boolts between Incidents to the Tenancy, and Incidents to the Seipniory, that
the firft are not deftroy'd, but the laft are, and ilio' it be deftroy'd between them 2, yet it ftiall be in
Eftence as to this Purpofe. Icnk. 5 i b. pi. i 5. S C and the Ellate of B. hindred the Deftrudlion
ot the Copyhold, and tho" by the Feofiment it be deftroy'd as to the Lord, yet it is not as to the
Copyholder.
2. So if 3* be a Coppljoincc in fu, tuIjevetljeCuffomis foi*Hob. isi.
tljCir i©iViCj5 to baUe tijCtr. iBlOOUJtJOOD it the Baron dies feifed, and Pj ^'^■
the Lord tyrants the Freenoid ailO IrUjCfltanCC over to a Scranger^ "^^tleu '
tW fijaJi not Oeffrop tbe nBinouiijooD* Ijobert'^ Ecport^ ^44. but as .; is
put there it
feems to intend that if the Freehold had been granted in Fee during the Life of A. it would not
deftroy the Widow-hood,
3. But
1 (So Copyhold.
3. But U\ tIjC faiti CilfC, it' the Cuftom be that the Wile Ihall be ad-
mitted betoie llie ihall have her Eltate, tljCCC Ihe mtilt lofe it, becaufe the
cultomary Court, which Ihould relieve her, is gone as to her, becaufe \)ZZ
Cftatc 10 altosctljec earangcn ftom tlje $?9anot, J^obnit'iS iaepoctjs 244.
Hob 181.
pi 218.
Howard v.
Bartlet feems ro be S. C. & S. P. feems admitted
2 Le. 208. 4. A. ivas Lord of a. Manor of whom Black Acre',is held by B. by Copy
p'- ^57- ofCourt Roll in Fee according to the Cuftom. J, inaiU Feojfment of Black
L.^n<^lev Jcre to a Stranger. B. dies. Though the Feoffee has not any Court fo
S. c"and that the Heir of B. cannot be admitted, nor the Death of his Anceftor
the whole prefented, becaufe but one Tenant, yet Per Cur. the Copy iliall bind the
■Court held, feoffee and the Ceremony of AdmiJJton not nece{]ary in this Cafe, and the
Co' Wd Lord by his own Ait has loft his Advantages of t'ines^ Ha-tots, and other
did^'rcmain; fuch Cafiialties. ^Le. 230. pi. 364 Mich. 29Eliz. C. B. Bell v. Langley.
tororher-
wile by fuch Pi-aftices of the Lords all the Copyholds in England might be defeated, and if any
Prejudice conies to the Lord ^y this Aft, it is of his own doing, and fliall not be relieved againft his
X)wn Aft. Periam J. held, that by this Leafe the Lord had deftroyed his Seigniory, and loft the Ser-
vices as to this Land ; And Windham J. faid the Lord had deftroyed the Cuftom as to the Servi-
ces, but not as to the Cuftomary Intercft of the Tenant ; But Anderfon Ch. |. held, that the Rents
and Services remain, and if the Copyholder after fuch Leafe commits Wafte, it is a Forleimre to the
Lord, and that will fall in Evidence at a Trial, tho, fuch Wafte cannot be found by an ordinary
Prefentment, and the fame Law which allows the Copyholder his Copyhold Intereft agamft this Leafe,
Vill allow to the Lord his Rents and Services ; And he faid, that the Lord fhall have the Rents and
Services, and not the Leffce. But the Reporter fays, Quod Mirum,againft his one Leafe !
5. A Copyholder had Cofnmon by Ufage in the Wafte of the Lord as
to his Meli'uage and Lands belonging ; 'The Copyhold comes to the Lord
who atter grants the fame to the Copyholder cam Pertinentiis. In this Cafe
it was holden, That thefe Words, viz. (cum Pertinentiis) could not
create a new Common, and the Common firil holden was by Cuftom
annexed to the -cuftomary Eftate, and was abfolutely extinguiih'd. Co.
Comp. Cop. 73. S. 8.
Gilb Treat. 6. If Copyhold Land efcheats, the Chief Juftice faid he knew not
ot Ten. 286. how it could be call'd Copyhold Land afterwards unlefs it be becaufe
cites S. C. there is a Power in the Lord to regrant it as Copyhold, for if by the
for they are (-;^^Qj^^ the VV^ife was dowable of the Intierty or Moiety, and fuch
in his°Hands cultomary Copyhold efcheats, and he dies, the Wife Ihall not be en-
dow'd, becaufe as to her the Cnftom is extin£t. 2 Sid. 19. Mich. 1657.
obiter.
(H. d) Forfeiture. What (hall be a Determination of
the Copyhold Eftate by Forfeiture.
<5odb 1-?. ^' ^T^HERE v/2l5 2l tenant for Life of a Copyhold. The Lord granted
pl. 241. JL the Reverfion of a Copyhold after the Determination of the
Mecrs v. particular Eftate to another for 20 Years. Afterwards the Copvholder,
Kidout S. C. yyho was Tenant for Life, by Deed made a Leafe for Life of his Copy hold,
aftlvs'^p' 'iiid made Livery.^ which was a Forfeiture of his Copyhold Eftate. Ic
* " was of the Opinion of the Juftices in that Cafe, that this Att of the Te-
nant for Lile was not a Determination or an Extinguilhment of the
Copyhold i For although ic was a Determination of the particular Eftate
of the Copyholder, and that he in the Remainder might enter j yet the
Land
10.
Copyhold. 1 6 1
Land remained Copyhold as it was before. Supplement to Co. Comp.
Cop. 7 3- i>. 8 cites Pafch. 8 Jac. in C. B. Moor v. Kideval.
2. When a Copyholder makes Feoffment, or does any ocher Aft which
was utterly inconjificnt ivith his FJiate, there the Copyhold isabfolutely
determined, and Advantage of it may be taken at any Time^ otherwiie
in Cafe of a Leafc for Tears, for the Copyhold remains a Copyhold not-
withltanding fuch Leafe ; otherwife of Leafe jor Life ; but if he will
accept a Leafe jor Tears from another it is a Determination of his Eftate j
Per Treby. Ch. J. Lutw. 803. Trin. 10 W. 3. in Cafe of Eaitcourt v.
W'eekes,
[I. d] What fhall be a fufficknt Lord to give
Licetjce. J'''s i" Ro"
Js Letter (K)
in tol. 511.
I. A Lord at Will Of fl Coppljolti Q^atinoc Cannot ffiiic licence The Lord
/\ to a CopiJijolo Ccnant to uiaUc a leafe fot l^ears, ttjoug!) "™°' 8'^=
i)e uiaj) grant a Coppijolo fot life accotcutij to tlje Cuftouu i)\\l 8 ^'f^^'^l "*
31a. ^15. betUieen P^ms and Dcbbans^ pet Cllliam. Leafe for
a longer
Time in the Tenancy than he has in the Seigniory. 2 Brownl. 40. Hill. S Jac. C. B. Petty v. Evans,
S. C. Gilb. Treat, of Ten. 2S2. cites S. C & S. P. for he cannot dilcharge the Lord's Inte-
reft any farhter than his own Intereft in the Manor goes, and therefore if the Lord, that gives the Li-
cence has but a particular Intereft in the Manor, the Licence is determined upon the Determination of
the Lord's Intereft.
2. 31f a Lord for Life Of il COppIjOlU S^AnOC gives Licence tO a %Z-'^ Brownl.
iiant to make a Leafe for Years, tl)I0 IcafC Ihall not continue longer ^"■^'^"y^-
than the Lite of the Lord. \% 8 j|aC, OS* kttUCeU Puttis and Debbans, ^''s" R ac- '
pet CUrianU cordingly,
though the
Copyholder be of Inheritance ; fof the Inheritance of the Lord is bound by that.
(K. d) A£]:ions in general.
What Action at Law or Suits in Equity one Tenant
may have againft another in rerpe61: of the lame Land.
Tenant for Life and Reverfion or Remainder.
1. T N 13 R. 2. Fitz. Judgment 7. it is faid, that the Heir who is
_i^ inheritable to the Copy Lands by Cultom may recover the fame
by Plaint in the Court of the Lord, in the Nature of an A[ftfe of Mart-
danceftor, but he ihall Jtot have an Affife of Novel Dijfei/tn ; And 15 H. 8.
Tenant by Copy 24. the Heir of a Copyholder, Tenant in Tail, Ihall
recover the Lands in a Formedon in the Dif'cender. Supplement to Co.
Comp. Cop. 78 S. 12. cites 13 R. 2. Fitz. Judgment 7. & 17 H. 8. Te-
nant by Copy, 24.
2. A Copyholder made a Leafe for Tears by Indenture warranted by the Cti' Supplement
Jlom ; it was adjudged, that the Leflees fliould maintain Ejeifione Firm<£, to Co Comp.
although it was obiefted, that it it were {l\ then if the Plaintiff'doth *^°P ^J ^^'^•
° •' ' -- ' cues S.G,
1 6 2 Copyhold.
recover, he lliould have Habere Facias Poireffionem, and then Copyholds
Ihould be ordered by the Laws of the Land. Arg. cites Mich. 14 & 15
Eliz. Le. 4. pi- 8. Anon.
3. Copyholder ivakes a Leaft for Tsars according to the Cujioiiij this is aa
Eftate upon which an Ejeiimcnt is maintainable. Mo. 128, pi. 276.
[per Cur. as it feems] cites 15 Eliz. C. B. and fays it was fo adjudg'd in
C. B. 4 H. 6.
Supplement 4. If a Copyholder dies^ and his Heir enters, and leafes it to J. S. who
to Co. Comp enters and takes the Profits, and is ejefted, he may bring -dnFjedion^
Cop. 75. c). ptrjrue ivithont his Le[for's beinjr admitted, or Prefentmeiit that he is Heir,
5°Q no Court bein;i; held for 30 Years, but when a Court was held he came 1
Gilb. Treat, and pray'd Admittance, which the Steward denied. Le. ioo.pl. 128. J
of Ten. 169 Pafch. 30 Eliz. B. R..R.umnev v. Eves. ■
cites S C. - ' ^
and favs the Rcafon ftrem."! to be, becaufe the Law cafts th-; Eftate upon liim by Defcenr, and fo en-
able.sliim to m:ike a Leafe, ieaft otherwife, there hcing no Court held in a great while, he fliould lofe i
the Profits of the Lands, and fo the Law cads the Eftate upon him, and helps out the Uefcft of an I
AdmifTion, but yet only pro Tempore, and therefore tlie Heir miift be admitted ; for an Eftate at Will
is not in itfelf defcendible, therefore where the Heir is guilty of a fupine Negligence, the Reafon, for
the Law's cafting the Eft.tte upon him, cea!es, and it will reckon no Eftate in him, and confcquently
he cannot demife.
4 Le. 30. 5. A Copyholder of Inheritance of a Alanor in the Hands of the Kifig is
pl S.)..s. C. Qiijif^d^ It vvas held in fuch Cafe, that he has not gamed any EJlate Jv as
Ve^-bis^"^ he may make a Leafe tor Years upon which his Lcffee may maintain E-
jeclment, but he has only a Poflcliion againll all Strangers. 3 Le. 221.
pl. 294. Pafch. 30 Eliz. B. R. Anderfbn v. Hay ward.
Supplement 6. Leffee of a Copyholder for a Tear /!jall maintain an E.je^lvunt, for
to Co. Comp. Ijnce his Term is warrantetl by Law by Force of the general Cullom ot"
86. S. 20. ^y^^ Realm, it is realbnable, that if he be ejected he Ihall have an Ejeft-
aicorrii.Siy "icnt ; Refolv'd. 4 Rep. 26. a. b. Trin. 30 Eliz. B. R. the firlt Refo-
^^"^Gilb. lution in Cafe of Melwich v. Luter.
Treat of
Ten. 199. cites S. C. &: S. P. accordingly, for the common Law vvarrants his Term, ard therefore
gives him Remedy in Cafe he be oufted ; and fays, that fo it is if the Lord gives Licence to make a
Leafe, the Leffee ftiall have an Ejcitment, and cites Cro. E. 461. [pf S. Hill, 3S Elii. B. R. Haddoti
V. Arrow fmith.]
Cro. E, 4(5i 7. Xi Copyholder makes a Leafe which is not according to the Cufiom oi
pl. 8. Arg. the Manor, yet this Leafe is good, fo that the Lejfee may maintain an
S. P. (aid to Jiji^ffjone Firm J", for between the Led'or and Lellee, and all other ex-
adiuVed" '^^P'^ '^'^^ Lord of the Manor, the Leafe is good^ Owen 1-7 Trin. 36
■ Cro. Eliz. B. R. Downingham's Cafe.
C. ;o4.
Pafch. 9 Car. B R. the Court cited Hill. 18 Jac the Cafe of ^trfCt i), 2ilirra!, where it was ad-
judged a good Leafe againrt all but the Lord. Ibid. 505. cites S. C, and lays it was fo refolved
28 Eliz. B. R. and that the Book of 12 E. 4. 15. is direft in the Point.
Supplement 8. Eje5ione FirmiC. The Parties were at IfTue ; it appear'd upon the
toCo.Comp. Evidence, that the Plaintiff was Leffee for 3 Tears of a Copyhold, and the
2o''citel Cuftom of the Manor was proved to be, that a Copyholder might let the Land
s. C. accord- yor 3 Tears. It was the Opinion of Anderfon Ch. J that the Leflee of a
ingly. Copyholder cannot maintain Ejetlione Firmse, but if he might, he oughc
to thew his Lellbr's Eftate, and his Licence, or a fpecial Cuftom to
warrant the Leafe. Cro. E. 469. pl. 20. Hill. 38. Eliz. B. R. Wells v.
Partridge.
Gilb. Trent.' 9. Lijfee of a Copyholder c-dnnoi miL\nx.Mn EjcB Went at Common Law,
of Ten. 199, pgj. t-Qc. Cur. prxter Beaumont ; for the Nature of Copyhold Land is to
&s' P a d be recovcr'd only in the Copyhold Court by Plaint according to his
j;iv-\ th,ir Cafe, and the Law takes no Conufance ot them buc a^ Tenants at W'ilJ;
and
Copyhold, 1 6 3
;iiid though the Cuttoms are pleadable and allowable at our Law, yet thi^ is gene-
no A6tion can be maintain'd tor them at Common Law, nor by any "^^'^ '°.' '"^*
Writ of the Queen's. Cro. E. 483. pi. i9.Trin. 38 Eliz.C. B. Stephens v. |,„^^ j,/^„,
Elliot. derftoodofa
Leafe wilh-
cat Licence, evdfor more than aTetr; for by the Licence the Lord gives up his Power of adjudging
ibou: the LciTee's Eftate, becauCe when he has given Licence, it feems that he has an Eftate at Com •
nion Law, tho' of Copyhold Lands.
ID. A Copyho'der by Licence from the Lord to let his Land fvr 21 Gilb. Treat,"
Tears leaftd it to the Plaintiff' for 3 Tears^ "who entred, and being ejciSted °f ^^^ ,^°°•
^rc/^_»/^^ ,^» £;V//;;/c»ri all the Barons held clearly, that the Ejeitmenc'^"" ' '
was well brought, tor the Leafe is good between the Parties, and all
others but the Lord, and in this Cafe it is good againft him by reafon
of the Licence, and that the making a Leaie for 3 Years is warranted
by the Licence for 21 Years, and this ASlion well maintainable there-
upon at the Common Law. Cro. E. 535. pi. 68. Mich. 38 & 39 Eliz.
in the Exchequer. Goodwin v. Longhurll. If the Leafe
1 1. If a Copyholder makes a Leaie for Years his Leflee fliall main- '^ warranted
tain an Ejeament j adjudg'd. Mo. 539. pi. 709. Hill. 39 Eliz. B. R- Jg^^^'' th^"''
Stoperv.Cibfon. Ldfee may
maintain Eje6tmenT, pel- all the Juftice*; ; and Pophani held, that he may maintain it, tho' the Leafe is
not warranted by the Cuftom. Mo. 569. pi. 776. Sprakcs's Cafe.
12. A Copyholder made 2.Leafefor a Tear^ exceptingoneHay ^ which was Mo. ^G^. pi.
'warranted by the Cullom. Tlie Leffee being oulted brought Ejetlment ;7'<5-S..C.
adjudg'd that it well lies ; And per Popham, if there was no Cultom,^'^'^"^^"^^^^'
yet it fliould be good againit all but him who had the Inheritance Treat, of'
and the Freehold. Cro. E. 676. pi. 4. Trin. 41 Eliz. B. R. Sparkes's Ten. 201.
Gale. 3^^^'' f''king
Notice of
the federal Cafes for and againft the Leflees maintaining an EjeSmevi fays, that all thofe Cafes, that are
for declaring upon the Cuftom, are againft it ; and that this Opinion is fupported by thefe Reafons, that
when a Copyholder makes a Leafe he determines his Vs'^ill, and therefore the Lord may enter, and if
the Leflee enters he is a Difleifor, and Ld. Coke's faying that a Leffee for a Year may have Ejedt-
ment excludes all others from having it.
13. If a Copyhold be granted for years ly Copy, fuch Copyholder ftall Mo, jS?.
not maintain Ejeament at the Common Law j Per Popham. Cro. E. 676. P'- 1'^-
pi. 4. Trin, 41 Eliz. B. R. in Sparks's Cafe. Cafe''" G
but S. P. does not appear,
14. EjeBment does not lie of a Copyhold unlefs the Plaintiff declares Gilb. Treat.
cftheCiiflotn, the Leafe^ and the Ejeciment. Mo. 6'70. pi. 927. Hill. 4?°fTen. 200,
Eliz. C. B. Gregory V. Harrifon. 1^ if ^ t M:^o'\'°
° •' the Cuftom,
that feme hold, that this muft come on the other Side, and that in this Divcrflty of Opinions' it will
be good to fce what i,s plain, that fo » e may more eafily determine and know what is uncertain -and firft
It ieems plain that a Leffee foraYear of Copyhold Land mayhave an Eitaione Firn.s, and'it'is verv
plan, alfo, that where a Copyholder may make a Leafe by Cuftom, fuch Leflie may have a Leafe bv
Cultom, and lucli Leflee may have Ejedment. But the Queftion is, whether fuch Lcfte need m»n
tion the Cuftom in his Count? It feems alforo be pl.nn, that Leflee by Licence may maintain the Ac"
lion for the Reaion before; but the main Doubt of the Cai'e is, whether a Leffee without Lic-nce
may mauit..in Ejectment upon that Reafon, that the Leafe is good againft every Body but the Lord?
15. An Aaion brought upon an EjsBment ; the Plaintiff was nonfuic Supplement
upon his own E\idence, becaufe he declar'd upon a Demife made for three "^^Co Comp.
Tears, &n<i it was confejfed by the Plaintiff , that the Lands were Copyhold^"^:^^-^-
Lands^ and that the Plaintiff had not Licence to demife for 3 Tears, neither T""^'
coidd he-prove that by any Qijfom he could demife them for 3 Tears without
a Licence, and fo the Leffor was taken for a Diffeifor, by the Opinio.i of
the Court. Browni. }33, Trin. 9 Jac. Cramporn v. FrelLwater.
20. cites
S. C.
I'J.
Wzzzi
1 6 4- Copyhold.
1 6. Wh-^ic CopyholcWrs oaghi to prcfent a Sm-re/idtr, and will not at
the next Court, Caveat Empcur, which means that he has no Remedy.
Arg. Roll. R. 125. pi. 7. Hill. 12 Jac. cites 5 Rep. 84. Penman's
Cale.
17. Ifthe Cuftom is, that the Surrender fliall be to one of the Te-
nants of the Manor and a 'Tenant iVtll not take a Surrender^ no Aftion
lies ; Per Coke and Haughton. Roll Rep. 126. pi. 7. Hill. 12 Jac. B.
R. Ford v.Hoskins.
Chan. Ca'e.'! iS. A, feifed in Fee of Copyhold Lands furrende^-ed them to the
171. S.C. Ufe of B. on Condition that C Ihould enjoy the fame tor Life. A. died,
but nothinf^ C. entered and committed Wajiu on the Lands and the Timber. On a
appc.rstluMCgjjj ^ g_ |.Q ^ W^iite, it was decreed, that no Relief could be tor
of Walk. V\ altc done, it appearmg that C. Tenant jcr Ltje ; had paid off lool.
Mortgage on the Premises ; but an Injunction againlt him to Itay all fu-
ture Wajie^ and B. to pay 2 thirds oi the 100 /. and C. the other 3d. Fin.
R. 220 Trin. 27 Car. 2 Cornilh v. New.
of the Plaintitf i per Pemberton Ch. J and Levinz J. againlt Windham
and Chailton jullices. 3 Lev. 130 Trin. 35 Car. 2. C. B. Jeherfon v.
Jellerlbu.
20. A Writ ofAiel was brought //; the Court ofa Copyhold Manor 10 avoid
an PJtate, for that there had been no Surrender^ a Pojjcjfmn having gene
■with the Defendant therefor 45 Tears. The Court granted a perpetual! n-
junffwn, for that after lb long Time a Surrender ihould be prefumed,
and the Rolls may be lolt, and no reafon the Ettate ifiould be avoided
alter fo long a Poilelfion. 2 Freem. Rep. io6.pl. 117 Mich, 16S9.
Knight V. Adamfon.
I.d Raym. 21. F.je^ment lies of Copyhold Lands, but a Writ of Right "juill not^
Kep 4v by reafon of the Bafenefs of the Nature ot Copyholds. 1 Salk, 185. pi.
Brittefv. ^ n W Kr M in P R Rrlrrlf^ i; WaAi^
h^de, S. G.
4. 7 W. & M. in C. B. Brittle v Dade.
(L. d) What Suits or Adions lie for the Tenant
againft the Lord.
3. T N Trefpafs, it was moved that if the Lord oujls his Tenant it Will
J^ according to the Cullom of the Manor, what Remedy has he >
Danby Ch. J. of C. B. thought that he fliould have Remedy againll
the Lord ; For the Lord has done him a Tort by theOuller, becaufe
the Tenant is as well inheritable to have the Land to him and his
Heis, according to the Cultom of the Manor, as any Man is to have
Land at the Common Law, becaufe he pays a Fine to the Lord when he
enters] Littleton faid, he faw a Siibpana brought by fuch a Tenant
againlt the Lord, and it was held by all the Jultices, that he Ihould
recover nothing, bccauie the Entry ot the Lord was adjudged lawlul,
becaufe the Tenant is Tenant at Will, and Writ of lalle Judgment,
nor Writ of Right does not lie ; But per Danby, he Ihall have Writ
of Right againlt the Lord, and the Lord cannot jultily his Entry into
the Land. Br. Tenant per Copie &c. pi. lo cites 7 E. 4. 19.
2. Trefpafs of a Clofe and Houfe i-rvken, the Defendant fnid, that the
J 'lace ivtcre &.C. is a Houfe and 20 ylcres oj Land^ ii'hich^ ot the time
ut the Trefpafs^ and beforcj was Parcel oJ the Manor of Dale, iind that
R.
Copyhold. 1 6!^
R. Lord of the Manor leafed to him for Life, by Copy, according to the
Citfiom of the Manor ^ by zvhich he 'was feifed in Domintco fuo ut de
Lthero i'cnemento, according to the Cufiom of the Manor aforefaid, and
gave Colour ; Per Bridges, he iTiall not fay de Libero tenemonco i Per
Brian, he lliall, according to the Culloin &c, ut Supra, quod Cur.
concelfit. Per Bridges, he is only Tenant at VViil, and therefore the
Lord may put him out i but per Brian, No ^ For if the Lord puts him
out, as long as he docs the Cuftoms and Services he Ihall have iCref-
fafs ; Per Catesby, the Tenant fhall prefcribe againft his Lord, and
lor this Caufe the Plaintiff demurr'd upon the Plea of the Delendanc ;
Qusere, for no more was faid thereof Br. Tenant per Copie, pi. 13.
cites 21 E. 4. 80.
3. The Lord cannot at his Pleafure /)«? 0/// the lawful Copyholder,
and if he do the Copyholder may have an Aftion of I'refpafs againll
him, for tho' he is tenens ad voluntatem Domini, yet it is fecundum
Confuetudinem Manerii. Co. Litt. 60. b.
4. An A£tion of Irefpafs lies againfl ohe Lord where he cats down
'Trees when by Ciijiom they belong to the Tenant, becaufe this is a mere
Perfonal Action, and Damages only are to be recovered. Co. Comp.
Cop. 60. S. 51.
5. If the Lord will not hold a Court to admit a Tenant, he has noCai-t. 8.S. C.
Remedy but in Chancery. Cro. J. 368. pi. i. Pafch. 13. Jac ^""=1^— |*JJ
B. R. Ford v. Hoskins. Sc's.^P. per
Coke Cli.J.'
quod fuit ConcefTum, per Cur. in Cafe of Ford v. Hoskins — z Bui ft ;5<5 S. C. and fo held
per tot. Cur. evcept DodridgeJ. who hkewife afterwards changed his Opinion. Sid ;4.
S. P. Mo. S42. pi. 1157. S. C. He was decreed to hold his Court D. 264. pi. 9S. He
is compellable in Chancery, per Doderidge J. 2 Roll R. 274. Adjudged, that Aftion on the
Cafe lies not againft the Lord for refufing to admit a Nominee. 2 Bulll 557 Refolved, that
the Surrenderor may have Aftion on the Cafe againft the Lord for not holding a Court, and ad-
mitting the Surrenderee, but the Surrenderor cannot. 2 Bulft. Z17. cites 26 El. Gallaways Cafe
• Supplement to Co. Comp. Cop. 70. S. 4. cites S. C.
6. Where there is Cufiom of Frank-Bank, and the Lord refufes to
admit the Widow, but enters upon her, and oults her, ihe may make
a Leale for a Year and maintain Ejeiiment. Noy 29. Hill. 15 Jac.
B. R. Rennington v. Cole.
7. Writ fhall be direfted to the Lord of a Manor, commanding hi^n
to hold a Court, whereby J uiHce may be done to his Tenants. Arg.
2. Roll. R. 107. Trin. 17 Jac. B. R. Anon.
8. The Defendant, being Lord of feveral Manors, did refiife to hold
Courts, and grant Admittances &c. whereupon the Copyhold Tenants
exhibited theis Bill to be relieved, and it was decreed. That the De-
fendant and his Heirs fhould from Time to Time, as Occalion fhould
require, procure Courts to be held for the Manors, and fulFer the Plain-
tiff's and their Heirs to make Surrenders to fuch Perfons, and for fuch
Ufes, as the Copyholders fhould limit and diredt, and that the Sur-
renderees fhould be admitted accordingly. Nels, Chan. Rep. 12. 6
Car. 1. Moor v. Huntington,
9. If A. Surrenders to the Lord ea Intentione that he pall grant over Aftion will
the fame to J. S. If the Lord will not grant the fame, A. may ■ reenter, not lie a-
but J: S. has no Means to inforce the Lord to grant the fame over to p'"** l^^
him, but he may maintain Trefpafs againji the Lord if he faffers A. to^f^\^°f^_
re-enter; and this is the Opinion at this Day. Calth, Reading 6r. ^ting'i Cop'y-
holder ;
Arg. Carth. 492. Pafch. 11 W. 5 . B. R. ia Cafe of Greenvel v. Burnell.
U u (M. d)
i66 Copyhold.
(M. d) How Copyholclers lliall implead, or be Im-
pleaded. And where.
Mo. 410
559. s.c
accordingly ^ fr>r ^"'"" oi ueDc iies at l^ommon Law lor the Dama-es tor nn
by 5 Jufti- fuchjudgmenc no Writ of Error or falfe Judgment lies, but the Remed?
ces contra IS in the Court of the Manor, or in Chancery, and where Fene ! 7
,herD,.y C,.p> hold) ihe liiall have all Incidents to Dower, and Ihall recover
. of the i^amages by the 6taWe of AferloH De Vidms &c. and fo the recoverv
Tuftices ot Damages in this Cafe lawful tho' they exceed 40 s ^Reo 2. if
Son" P'- "■ ^""- 37 £^iz- Shaw V. Tompfon! ^ ^ ^^ ^'^ '''
n aintainable, becaufe the Court Baron cannot hold Plea, nor award Execution nf c^ I n
apd yet the Damages were well allcft'd there. Cro. E. 426. Z t Tq Z ,J \ P'T'S^^'
held the Danu<g« well awarded, and that flie might well recover fo much T-J U u^'"'"''
hold Plea of the La.Kl, fo allb for the Damage., as far as the DenUdaT ''dt , fi'-d'^Ipd tlT^
well allow d ; ocd adjornatur. •"■•"i-u, ana m.ni be
Tr^.fof T, 'u'^ Copyholder cannot in any Atlion Real, or that favours of the
T n 3?'. ^^'y- 7 has a Dependance upon the Realty, „«^W, ,, be^Zleat
S. P. clJs f^ (« '«^j;,«'/^^r Court but tr, the Lord's Court, for or concerning his CW
Supplement hold. Eut in Actions that are meerly * Perfonal he may fue or be
toCo Co np.iucd at the Common Law. Co. Conip Cop 60 S o '""z ^""^ "^ oe
Cop. 143. _ 3 If a Copyholder be oufed of hts Copyhold ly ' a Stranger, he cannot
implead him by the k.ng'sVVnt, but by Plaint in theLor^i'/ Court and
S T^^^^'r'-"^^^'}'''' '° profecute the Suit in the Nature of an AmVe of
Novel DUie.hn, ct an Aifile of Mortdanccllor, of a Formedon in the
Defcender Reverter, or Remainder, or in the Nature of any other
Cor^omp'^Cor 6?s!^T"'"' ^"' '^^" P^^ ^" '''"^- '^ P-^'^-d"
4^ II a apyholder be oM ly the Lord he cannot maintain an Mfc at
the Common Law, becaufe he wants a Frauk-Tenanent, but he may hfve an
^tlion ot rr.y/>.rA againlt him at the Common Law ; For u is aJainft
?o"'SiC?o;'^^it";r^^ -^- hehimfeifirv^;;!!
, ^^ If 'n a Plaint in the Lord's Court touching the Title of a Cnnr
hoder the Lord gives/.//. Judgment, he cannot n.aimain a vVS^i}
Falle Judgment, lor then he Ihould be reitored to a Frank- Tenemen
where he lolt none. Co. Comp. Cop. 60 S 51 •^lenemenc
n-" ^°^"Pyiff'' "f H^ T^mre m Jncient Deniefne, can maintain a
J^n/ oi Dron Clofe,or a Writ of Mon/lraverunt, but Tenants S Frank-
Tenure in ancient Demfne can. Co. Comp. Cop 60 S <r
Gilb, Treat. 7- ^Copyholder that may cut down ^mber frees by Cu/oni, by Licence
co.:,p^cop 4^;■^T^^^^»^^•^'"-p ^^^^^^^ ''
8. Ilai'm.dowable by Cultom of a Copyhold by Plaint in the
Lord s Court, m-..z,... Dower and Damages, no A ff son of iMt 1 ItZ
(onn>msLaw lor thefe Damages, becaule the Aftion, tho' i be in it
fd^Perlonal, yet depends upon the "Realty. Co! Comp. Cop 60!
9, If ^ Stranger cut down frees growing u, the Copyhold Ground in
Aftion 01 f-ejpafs Ins at the Cmmon Law againlt him. Co Comp
Cop. 60. O. JI. »-uiljp,
10. If
Copyhold. 167
10. If a Copyholder makes a Leafe by Copy for Years, or hy Deed,
with Licence, an hOdonoi Debt lies for the Rent referved upon either Leafe
at the Common Law ; But Ld. Coke much doubts whether he can avo^jj
for thcReiit in the one or in the other, any more than Celtuy que \J\c^
before the Statute 27 H. 8. cap. 10. could avow for the Rene referved by
him upon a Leafe for Years, and yet he could maintain an Action of Debt
lor luch a Rent, becaufe an Aftion of Debt for fuch a Rent, is ground-
ed upon the Contraft. Co. Comp. Cop. 60. S. 51.
11. Copyhol(k;'s jball not implead nor be impleaded in the Kings Courts 1^^. S. 7(5..
by the King's Writs for their I'enetneiits, bat lliall make our Plaint ;« ;^c Co. LitLfioil
Lord's Court and make Prctejiation to jolloiv it in the nature of one of the
Kino's Writs as Formedon, jijftfe ^c. Nor can they have a \Yrit oifalfe
Jua'^ment, but muft fue to the Lord by Petition in^Nature of fuch Writ,
iind'^herein alFign Er^rors. Hawk. Co. Lite, loj'.'
12. An erroneous Judgment ivas given in a Copyhold Court, -where the
King -was Lord, and this was in a Formedon in Remainder, and ic was
moved, if the Party againft whom it was given may fue in the Ex-
chequer Chamber by Bill, or Petition to the King, in the Nature of a
W^rit of a fdlle Judgment, for the Reverfal of that Judgment, Tan-
field feem'd that it is proper fo to do, for by 13 Rich. 2. if a falle
Judgment be given in a bafe Court, the Party grieved ought firft to fue
to the Lord of the Manor by Petition, to reverfe this Judgment, and
here the King being Lord of the Manor, it is very proper to fue here
in the Exchequer Chamber by Petition, tor in regard that it concerncth
the Kino-'s Manor, the Suit ought not to be in the Chancery, as in Cafe a
Common Peifon were Lord, and lor that very Caufe it was difmilied
out of the Chancery, as Serjeant Harris faid. Lane 98. Hill. 8 Jac.
in Scacc. Edward's Cafe.
13. Ct)/))/W^ Zrtw^/i- are as the Demefnes of the Manor, and are the Gjlb. Treat.
Lord's Freeholds, and therefore not tmpleadable but in the Lord's Court. °^^_^^^'^^^'
Cro. J. 559 pl- 5- Hill. 17 Jac. B. R. Pymmock v. Hilder. F^fr'the
Common
Law does not take Notice of fuch bafe Eftates. If an eironeou<! Judgment be given in the Lord's
Court it ouf ht to be revers'd by Petition in Chancery, and decreed that it fliould be. Lane 98.
Hill 8 Jac. in the Exchequer, cited by Tanfield, as ^ettlfljaU'0 (i&iC, in which himfelf was
Counfc), in Lord Bromley's Time.
14. EjeBment lies not of a Copyhold Eftatej it lies of a Leafe made Le. 328 pl.
by a Copyholder, but not oi a Demife made by the Lord of a Copyhold ^^Xsp"
by Copy of Court Roll. Cro. E. 224. pl. 9. Pafch. 33. Eliz. B. R. Cole a"cordingly
V. Wall and Burnell. per tot. Cur.
Sup-
plement to Co. Comp. Comp. S(J. S. 20. cites S. C. and S P. agreed. If a Copyholder withour.
Licence makes a Leafe for one Year, or with Licence makes a Licence makes a Leafe for many Years
and the Leflee be ejefted, he Ihall lot fue in the Lord's Court by Plaint, but fhall have an Ejeftmer.t
FirmJE at the Common Law, becaufe he lias not a^ Cuftomary Eilate by Copy, but a Warrantable Elbte
by the Rules of the Common Law. Co. Comp. Cop. 60. S. 51.
15. An Ejectment will not lie for a 3d. Part of a Copyhold Tene-
ment in Nature of Dower, for they ought to levy a Plaint in Nature of
a Writ of Dower in the Manor Court, and the Homage to fever and
fetout the famej But if the Cuftom had been for the Widow to have
the 3^. Part, in Nature of Dower, but in common with the Heir, 'twere
then otherwife i per Pemberton Ch. J. at Chelmsford Alfifes. 2 Show.
184. pl. 188. Hill. 33 and 34 Car. 2. B. R. Chapman v. Sharp.
16. Copyholds are Parcel of the Demefnes of the Manor, fo that if^oid Ram.
they are triable in the Ld's. Court, ihd Ld. might be Judge and ^-^'f ' Bmrle^v'
and therefore per Treby Ch. J. Jurifdiffion of the Lord's Court estends q-j^^^^s. C.
to Lands holden of the Manor only and not to Land, Parcel of the Manor, and .S. P. by
X Salk. 186. pl. 4. 7 W. 3 C. B. Britde v. Dade. Treby Ch.
(N. d)J- .
105 Copyhold.
(N. d) A6lions by the Lord agalnft the Tenant.
Gilh. Treat. ^- A ^ Jvowery may be made for Refit of a Copyholder due to the Ld.
of Ten zyi. _/\which is a Duty at the Common Law, and therelbre an Avowry
cites S. C. rpjjy well be for it ; per tot. Cur. Cro. E. 524. pi. 51. * Mich. 3 8 and 30
Lovdhas Eliz. B. R. the 3d Refolution in Cafe of Laughter v. Humphries, as 8
an Eftate R. 2 Avowry 86 is.
at Common
Law in the Rent, and not the Cuftomai-y Eftate and it is due to him upon the fame Grounds and
Reafons in Law, as the Rent of Freehold Lands is. * This is misprinted and fliould be Hill
5 R. 2.
2. Where the Lord diflmins his Tenant and he makes Refccfis,nt]d is
dilFeifed, yet per Keble, Jj/ife lies well enough againlt the Tenant
without zny Regrefs made; per Mordant, without Polfelion of the Land
thcAJlife cannot be maintained againft the Tenant; Keble e contra, and
a fortiori, Writ of Ciijioms and Services lies againft him, becaule ol Pri-
vity, and he remains Tenant in Fa£t to the Ld. notwithltanding the
Dideijin of the Land ; quod nota ; Kelw, 20. pi. 4.
Gilh Treat. 3. If the Ld. lets the Rents oih'is Copyholder be arrear, and if the
of Ten. Copyholder furrenders his Land, and the Surrenderee is admitted, and
^C bu" f° ^ ^"^^ '^ ^"^' ^^'^ ^^f^^^ ^^'^ ^"'^ "'' ^'"^ P^"^ he fells the Manor to J.
ikysQuxre; S. and his Heirs, he has no Remedy either in Law or Equity to re-
for Debt ' cover his Rent or Fine, becaufe, he has depriv'd himfelt by his own
Jies for a ^Q. See Tit. Chancery (P.) pi. i. and ((^) pi. 3. Pafch. 'lo Car. B.
Shira R-.Hitchamv. Finch.
Duty then
furely the palTing away the Manor will not make it ceafc to be fuch ; and Quxre, why lie fliall
not have Debt for the Rent due, and whether he has not a Freehold in them.
(O. d) What Ads of Parliament (hall be conftrued to
extend to Copyholds.
4 Rep. 30. I. A Copyhold is within the Statute of Merton^ that Feme fhall re-
t p'.^H t^L. cover Damages if her Baron dies feifed; Per all the Juftices.
s. P. held ^^- 4^^- P^- 559- Trin. 37 Eliz. in Cafe of Shaw v. Thompfon.
accordingly.
. S. P. by Yelverton J. Cro. C. 45. Gilb. Treat, of Ten. 171. cites S. P.
S. P. by 2. The Stat. Wejirn. 2. cap. /^. which gives to the particular Tenant a
YervertonJ. j^ioti ciDeJorceat, may by a benign Interpretation extend to Copyholds,
1°' ' becaufe it is beneficial to the Copyholder, and not prejudicial to
'' the Lord ; Agreed. 3. Rep. 9. Pafch. Eliz. in Scacc. and cites 10 E. 4. 2.
b. accordingly.
S;iv. r,- s.P. 3- The Stat. Wejfm. 2. cap. 3. which gives the Feme a Ciii in Vita,
by Miin- y Rcfccipt, may by a benign Interpretation extend to the Copyholds,
wood Ch. becaufe they are beneficial to the Copyholder and not prejudicial to the
s 'p "b ^^- ^S''^'^^^- 3 ^^P- 9- ^- ^ii'fch. 26 Eliz. in Scacc. and cites 10 E.
Velverton 4. 2. b.
;;^__1_' Gilb. Treat, of Ten. t;i, 172. cites S. C and fays that the Stat. Weftm. 2. cap, 3. in all
ii'V Branches c.'itciidj to Copyholds for the fame Realbiis.
4. Copyhold
Copyhold. 169
A. Copyhold Lands are not within the Scat. Wegm. 2. cap. 20. [ 1 8. j Agreed pei"
Esectitwns ; lor if a Judgment be had in a Court ol Record againft a tot. Cur.
Copyholder lor Debt and Damages, altho' the PlaintiH: may have Exe- j'^^J^^^'^'^^*
cution by Fieri facias againft his GoodsjOr a Capias againll his Body, extend to
yet he cannot have Execution of the Moiety of his Copyhold Lands by Copyholds.
tikgit, for that Copyhold Lands are not within the Statute i and/o it is, > ^ep- 9-
it a Stat. Merchant.^ or Staple he ackno'wkdged by a Copyholder for the Pay- p^ .
mentof Money at a Day certain, which is not paid, his Copyhold Heydon's
Lands are not extendable for the fame j and the reafon of chefe Cafes is, Cafe.
becaufe no Perfon can come to Copyholds but by Admittance of the ^ P-.^y ?
Lord, and the Lord lliould thereby lofe his Fine which is due upon I '^*»
Admittance, if the Party might have the Lands upon Extent delivered ^^ 44. Mich,
unto him. Supplement to Co. Comp. Cop. 36, 87. S. 21. 2 Car C. B*
S. P.
by Manwood Ch. B. for if it ITiould extend to Copyholds, the Common Law would break the Cuftom.
Siav. 66, 67. pi. 1 3S. in Scacc. in Heydon's Cafe. Gilb. Treat, of Ten. 175. S. P.
5. [But] if the Tenant by the Carte fy.^ or Leffte for Tears ^ be of a Manor,
and Copyholds iverc in his Hands by Forfeiture cr other Determination^ and
he bindeth hinifelf in a Statute^and afterwards hedemifeth the Copyhold again ^
the Copyhold ihall be liable to the Statute jBut if a Copyholder bindeth
himfelt in a Statute Merchant or Staple, his Copyhold Lands fliall not
be extended upon the fiid Statute, becaufe therein he hath but an Ellate
at will. Supplement to Co. Comp. Cop. 87. S. 21. cites Pafch, 12 Elii.
in C. B. Mo. 94.
6. The Scat, oi Prerogativa Regis, cap. 9, and 10. gives the Lands of Co. Comp.
Idiots natural to the King, he finding them convenient Maintenance Cop. 61. S.
out of the Profits thereof j But if the Idiot hath Copyhold Lands delcend- S't-S. P.
ed unto him, the King lliall not have the Wardlliip of thofe Lands '^ *^'"f'
therewith, out of the Profits thereof to maintain the Jdiot, becaufe Ten. 1-5.
the fame would be prejudicial to the Ld. of the Manor, ot whom the S P-
Lands are holden by Copy But ; yet all Alienations made by an Idiot
of his Copyhold Lands, after Office found, lliall be avoided by the
King. Supplement to Co. Comp. Cop. 86. S. 21 cites Stat. Prerogac'
Reg' c. 9 and 10. 8 Rep. 170. inTowerfon's Cafe. 4Rep. 126, 127, 12S.
in Beverley's Cafe.
7. The Statute of 5 U. 2. of Departure out of the Realm extends to Co-
pyhold Lands. Supplement to Co. Comp. Cop. 88. S. 21.
8. The Statute ot 16 R. 2. Cap. 5. which makes it a Forfeiture of Gilb treat*
Lands, Tenements, and Hereditaments, to the Purchafor of Excoffmu- ^I^^' ^'^^'
fiication. Bulls i3c. in the Court of Rome &c. extends not to Copyhold, " '
becaufe it would be prejudicial to the Lord to have the King lo far in-
terefled in his Copyhold without his Confent. Co. Comp. Cop. 6i.
9. The Statute of 2 H. $■ cap. 7. of Hereticks extends not to Copyholds,
for though the Lord ot a Manor is yearly to receive a Benefit in having
the Lands, alter the Year and the Day, fortbiced unto him, yet becaufe
the King is Sharer in this Forteiture, therefore Lands by Copy are not
comprehended under the general Words ; befides, the Statute fpeaks of
the King's having Annum, Diem & Valtum of thefe Lands forfeited for
Herefy, as in Lands forfeited for Felony, whereby it appears that the
Meaning of the Statute is,, that fuch Lands only fhonld be forfeited in
which the King by the ordinary Courfe of the Law fhould have An-
num, Diem & Valtum if the Tenant of them had committed Felony,
but fuch Lands are not Lands by Copy; for if a Copyholder commits
Felony, his Copyhold is prefently forfeited to the Lord, therefore Co-
pyholds are out of the general Purview of this Statute. Co. Comp.
Cop. 61. S. 53.
X X jto. By
UP Copyhold.
10, By the Statutes/ i R. 3. cap. 4. it is exprefsly provided that a
Copyholder, having Copyhold Land to the yearly Value ot 26 s and
6 d. above all Charges, may be impanelled upo,i a -Jury as well as he thar
has 20 s. per Ann. ot Freehold Land. Co. Comp. Cop 60 S kz
Supplement „. H IkvyaFtne ofmv Copyhold Land, and fi-ve Tears t,n mr
sltS'^'^-Jy ^J^^Lord is bounden-as to'his Freehold and fferWe/f c al?o
cites S. C. the Copyholder tor his Pollelhoni for the Intent of the Statute ol" 4 H
_ Gilb 7. was to takeaway Controverlies, en litibus Finem imponere, and Con^
^enVr P "" p" T''' ^'A' "^f^^ ?'■ Copyhold as for Land at the Com?non La w •
lus!?:' I'' P^P*^^"^ Ch. J. Le. 99. pi. 126. Mich. 30 Eliz. Saliurd v.'
it beinff no -"^^ crac.
"Ways pre-
judicial to the Tenant or the Lord.
12 The Sta ute of 4 H -j cap. 24. of Fines extends to Copyholds,
for It a Copjbolder be dijfetfed, and the Diireifor le-vics a Fir,e vv^ih Pro-
damations and 5 Years pafs without any Claim made, this h a B^r
both to the Lord, and to the Copyholder. Co. Comp. Cop. 62.
13. So if a Copyholder makes a Feoffment in Fee, and the Feoffee levic- ^
fiTr ^^f,/7'^*''''"^"""' ^'^d s Years pafs, the Lord is barred , bnhf
the Copyholder hvm aiine, and 5 Years pafs, the Lord is not birred- f^r
the Fine levied, (the Copyholder having no Frank Tenement) ^^
void. Co. Comp. Cop 62. S. 55. y^^uucny
14. A,Li whereas it has-been doubted, that this Statute Ihould not e--
end to Copyholds, but the Lord fhould hereby receive grand preiadi';
lor he fliould not only lole the Fines upon Alienations or Def^ents and
theBenefics of Forfeiture, but Ihould wichai be in Danger to b" birred
ot his Frank-Tenement and Inheritance^ to that my Lord Coke
anfwers, .1 the Lord receive any fuch prejudice, it is through his own
Default for not making Claim, lor ,„ regard of the Prhnty tn Mai
rf/'J'T"rfVt'^-'. ^'Py^'^^'>-^ f^' inay make Claim as\vell itt
Copyholder htrnfelf Et Vig.lantibus, non Dormientibus, Jura fubvei^un
'Lo. Comp. Cop. 62. S. S5- """i-.
i^?M . c'^" C°P>'h°l^ Lands are not within the Stat, of n H 7 can "o
A.g.^4^Mod.2 Sid. 73, Pafch. i6j8. B. R.. Harrington v. Smith. ^" ^^ '•°-
the Words in the Statute, are Manors, Lands, Tenements, and other Hereditaments.
The Statute 16. If a Man bargains and fells Copyhold Lands, it feems nothing
ecuting Ufes^^"!^'"^^ a Bargainor may afterwards lurrenderit to the Ufeof the Bar
to the &of- gainee, and no Eltate paihng, it feems to me to be no Fortbiture Gilb
fellion, c.'c- Treat, of Ten. 239
tends not to
Copyholds, vvhich is plain from common Experience ; for wiien a Copyholder furrendcrs rot\e^Tr. „f
another the Pofleffion is not executed to the Ufe; for the Surrenderee has noth n^ till A ^,n; ; r
a Tenant would be introduced without the Lord's Confcnt. Gilb. Treat, ol Ten. 17a
TuLS ^ 7- y^^ ^S"''^^ 2.7 H 8. cap. 10. ofUfes touches not Copyholds, bc-
obiter.Cro. ^^""^^ the franlmutation ot PoflelTion by thefble Operation ot the Statute
C 44. Mich.withrjut Allowance ot the Lord and of the Tenant and the Branch of
judic.-! 61. S. 54.
IS. The Branch of the Stature 27. H. S. cap. ,0. as to Jointures
dots i;ot extend to Copyhold;s, 16 that it ajomture be made to aVVomaa
in
, Copyhold. 171
vi Copyhold, that will be no Bar to her Dower i The Reafon is, be-
caiiie the Words of the Provifo being general and introdu£tii'e of a
new Law, to bar Women of their Douer, where they were not barred
by the Common Law, there is no Reafon to extend them, lince an Ef-
tate in Copyhold Lands is very difadvantageous to the Woman, who
mull pay a Fine to be admitted, which ihe may not be able to do, and
thereby will commit a Forteiture; be)ides, a Woman is not dowable
of common Right ot Copyhold Lands, and fo it leems to be out of the
Regard of the Stature, and Lord Coke defines a Jointure to be a compe-
tent Livelihood of Freehold, fo that it mufl be an Eftate of Freehold.
Gilb. Treat, of Ten. 170, 171
19. The Statute of 31 H. 8. cap. i. and 32 H. 8. cap. 32. by which S. P. by 5
jjintenants and Tenants in Common are compellable ro make Partition l^^^'^^^^
bv a Writ de Partttioiie facicida^ as Copartners at the Common Law,r T/'\ilX
t/j' a trin iic -i ui hi-iu'j" ;ni->c//.n,ij cic. v^w^aiLn^-io .iL lilt \_(jiiiui<Jll J_,aw, Q ^. Mich
touch not Copyholds becaufe this Alteration of the Tenure without 2 Car/c, B."
the Lord's Confent may found to the Prejudice of the Lord. Co.' Gilb.
^ mp. Cop. 61. S. 54. Treat, of
Ten. 172.
. S P. becaufe thef- Acts provide that it (hall de dons by Writ of Partition, and Copyhold Lands
not inipleadable at Common Law.
20. Debt for the Fine of a Copyholder is not within the Statute Gilb. Treat.
cf Limitations. 2 Keb. 536. pi. 56. Tnn 21 Car. 2. B. R. per Cur, °^ Ten. 165,
in Cafe of Hodfden v. Harris. ''^^ ="«
S. C.
21. The Tellator was feifed of fe vera I Rents iffuing both out ofSrownl.
Freehold and Copyhold Lands, and died leifed, after his Death his'°--^^- '-'•
Executor broughtDebt for theArrcars as well ot the Copyhold as of theon[ '^3™'^^^^
Freehold Rents due in the Life-Time of his Tellator, but the Courtflation o""'
held, that the Statute 32 H. 8. did not extend toArrears of Copyhold Rents Yelv,
but only to the R .- r. » ^ ^^ , ,.. . _ ^.lu
Appleton V. Baily
but only to the Rents out of Free Land. Yelv. 135. Mich. 6. Tac.^''^ '^'■^3f•
» 1 . :_ _. t> -i J of Ten.
1 74. cites
the Supple-
jnent to Lord Cokes Treatirc of Copyholds, where it is faid, that this Aft extends not to Copv-
holds.aiid that to prove this a Cafe was circd there out of 2 Le. 109. Sands v. Hempfcn, which
fee, with Lord Ch. B. Gilberts Remark's at [Q^] pi. 4.
22. Copyholder in by Fee by Licence made a Leafe for 21 Tears by Supplement
Indenture, and the Zc/se covenanted [or himfelf.^ his Executors and yf/l ^ Co. Comp.
Jigns^ to ercBaPale about fuch a Clofe^ and lay 40 Load of Dung o^^f^^hes^'
Land every Tear, and to repair the Buildings; Atterwards the LelTbrsc. and
furrendred his Lands to the Ufe of the Plaintiff and his Heirs ^ ivho was leaves it a
admitted, and brought an A&ion oi Covenant againll the Leliee for not*i"'^'^ - ^'^'*
performing thefe Covenants i And the ()ueftion was whether a Copy- ^3^, n^f j. .
Meter that comes in by Surrender oj the Leff'or, be fuch an Jffignee as might Mvt±
maintain this Aciton by the Common Law, or by the Statute 32 H Keb.
8. [cap. 34 of Conditions] as may maintain an Action of Deli or"57- P'- 4'5-
Covenant as an Allignee, where the Covenant is made by exprels ^^'^.^'^ d^r
Words between the Lelfor and Leifee, their Heirs and Afligns ; fedin^Cafeof
adjornatur. Cro. C. 24. pi. 17. Mich, i Car. C. B. Flatt v. Baker v.
Plummer. Berisford,
, the Court
held, that an ^Jfignee of a Copyholder is wUlin the. Statute to Live an JHhn of Covenant ; Per Cur. the
Surrenderee ot a Copyhold Reverfion may bring Debt or Covenant afraiaft the LelTee within the Equi-
ty of the gzH. S. cap. 5. for it is a remedial Law, and no Prejudice c.-in anfe to the Lord, and
vhether he is in the Per or in the Poft is not material, for a i^argainee mav maintain Covenant
vithin this Statute, ard yet no Doubt but he is in the Poft, and \elv. 222 was a halty Refoluti-
on, and Hob. i-S. only an extrajudicial Opinion; |iidf;menr for the Plaintiff; Note, the Words of
'^Ar'"''^ ^^^' KoPerlon being a Grantee or Atlignec of any Reverfion, i 5alk. 1S5. pi. 2. Mich
5 V\. &M. inB. R. Glover V. Cope. Grantee of Rcverilons of Copyholds fiiall not take Advan-
Mge ot a Condition broken, by the 32 H. 8. nor by the Common Law (of Covenants they may,
■ Keb. 550. Cro. C. 24) 25. tamen Quwe upor- Ydv 135.) For then by Entry he might come in
* to
172 Copyhold.
to be Tenant to the Lord without Admittanee, and tho' he in the ReveiTion may enter by the
Common Law, yet he was Ti;nant befere ; The Aft gives Remedy to AfTif^nees, which he is not
properly v/ho comes in by Surrender ; When a Copyholder enters tor a Condition broken, he is in
Statu quo prius, and therefore fhall pay no Fine; and if the Grantee of the KeverHon might er.'ei'
bv Force of the Statute, he would be in the fame Place as his Grantor, and lb would be in as
Tenant, and yet pay no Fine. Gilb. Treat, of Ten. 16S, 169.
Cro.J. 505. 23. A Co^yholdQT in F&cly LkefiCe made a Lea fe for 7~ears, render-
pl 7 Beal jpg Kent, OH Cufidition to reenter; and the Copyholder iurrendered to
S C Wi'l- J- ^- '" ^^^t ^^^° demanded the Rent on the Land, which not being
li'ams & paid he entred on the Lellee ; Held, that the Ent^y of J. S. is noc
Yeiverton, lawtuli lor Copyhold Land is not within the Statute 32 //. 8. cap. 34,
(abfcnte of Conditions., nor J. S. fuch an Affignee as the Statute intends i for he
held^'hlt '^ '" °"^y ^y ^^'^ Cuftom, which does not extend to fuch collateral
the Kever- Things, and he is not privy to the Leafe, but may plead his Ellate
lioner byway immediately under the Loid. Yelv. 222. Trin. 10 Jac. B. R.
of Surrender j^r^ji^j. y_ g^.jig^
&c. could not
take Advantage of the Condition, reither by the Common Law, nor by the Statute and Jtidg-
mcnt accordingly. . Brownl. 149. S. C. feems only a Tranllation of Yelv This Cafe is
deny'd, and called a h.ifty Re'olution. i Salk. iS,-. pl. 2. Mich. 5. W. & M. in B. R. in Cafe of
Glover v. Cope. — S. il. cited Supplement to Co. Comp. Cop. 87. S. 21. accordingly Hob. i-S.
at the end of pl. 20; Hi)bart Ch. J. was of Opinion the Copyholds are noc witlun the Statute of
Conditions. S. P. by 3 JulHces'Obiter Cro. C 44 Mich. 2 Car, C, B.
And per 24. A Copyholder is within the Equity of the Statute of 32 H. 8.
Hdt Ch. J. ^^p_ j^_ is)henby Grantees oj Re'jcr/ions have like Advantage agaitijt Lel-
liold'e^r fi'^^ h -Kw/'J jor Non-Pi'yment 0/ Rent., as Grantors or Lejjors themfehes
■were ena- vitght have ; tho' Copyholders are not within this Statute as to Entry
bled by Jor Condition, yet a.n AA'ionoi Covenant hes j Arg. Skin. 297. Mich. 3.'
Cuftom to ^^y Sc M. in B. R. Glover v. Cope.
tiemife, it is ' _
is realbnable to conclude, that they may Covenant and make Conditions of Re-entry and other Pro-
vifions common in Lcafcs. ."-kin. 298.- Adjudged that Covenant lies. Ihid, 3C7. Glover v. Cope.
• -5 Lev. 326. S. C. adjude'd. 4 Rep. 80. S.C. adjudged 1 Salk. 1S5. p!. 2. S. C. and
per Cur. the Surrenderee of a Copyhold Rcvcrfion may bring Debt or Covenant againrt the Lellee
vithin the Equity of the 32 H. S. cap 3. for it is a remedial Law, and no Prejudice can arife to
the Lord, and wliether he is in in the Per or in the Poll is not material, tor a Bargainee may maintain
Covenant within this Statute, and yet no doubt but he is in Poft, and Yelv. 222. was a hafty Refo-
ution, and Hob 178 an extrajudicial Opinion; Judgment for the Plaintiff. Note, the Words of
he Act are i'iio Perfoi) being a Grantee or Affignee of any Perlon) Show. 284. S. C. ad-
judged.
4 Rep. 23. 2$. Baron feifed of Copyhold of Inheritance in Right of his- Feme fur-
V A^..^' rendered it without his Feme to the life of a Stranger y -who zvas admitted ,
EHz.^b'k.. and fiirrcndrcd to the Ufe of a?tother; All the Julticcs held that this is
and that not within the Letter, nor the Equity of the Statute 32 H. 8. which
neither fhe gives Entry to the Feme and her Heirs againlt the Dilccncinuance ot the
no her Heir g jy^ 596.pl. 813. Bullock V. Dlbley.
Ihall be put j? r 3 j
to lue her Cui in Vita — S. P. by 3 Juffices Obiter. Cro C. 44. Mich 2 Car. C. B Gilb. Treat.
of Ten. 166. cites S. C. For the Words are that no Fine, Feofftrietit, or nvy ctJer yJB or ^d'Bs &c. of
the IVifes Inheritance or Freehold, which Words plainly mean ncthinp, hut a Common Law EJiaie, and the
Common Laiu way of Conveyancing, and if the Equity of the Adt fliould be condrued to extend to
Copyholds by the Entry ot the Party, there would be a Tenant without the Ailcnt or Admittance of
the Lord, neither doth the other Part ot the Aft concerning Leafes to be made by the Tenant in
Tail, or Husbands of Lands in Right of the Wives, extend to Copyholds, for it only extends to thole
Lands that are grantable by Deed, and yet it was adjudged, that a Grsnt by Deed ct Copyhold Lands
by a Dean and Chapter fhould not be avoided by the Succeffor by 13 E\iz. cap. 10. in the Deatl
and Chapter of Worcefter's Cafe, 6 Rep. 37. and folhys, the (^uellion will be, why Copyhold Lands
fliould not be within the 32 H 8. as well as the 13 Eliz. cap. 10. if the 32 H. 3. doth not cvtcnd
to Copyhold Land, then a Bifhop folely cannot make a Grant by Copy to bind his Succellor ; Lord
Coke liays, that a Grant by Copy in Fee , or in Tail, for Life or Years, is a futficient dcmiling with-
in the Aft 32 H. 8. All thole Books may be thus reconciled though in Truth they are not contrary
to one another. When a Man is fciled in Fee ot Lands in right of hi.-. Church or Wife, or is Te-
nant in Tail in his own Right, and lome ot his Lards have ticn jraritd by Cojy tor the Space
itc this is a lufficient dcmiling within the Aft, to Warrant his deirifirg «f ihtrn lo as to bind the.
Heir
Copyhold. 1 7
o
H'ir or S'lCcelVoi- ; But where a Man ishimfelf Tcr.ant in Tail of Copyhold Lands, or is feifed in
Kw'lit of hisChnich or Wife, there he can make no Leafe to bind by Force of the 52 H. 8. be-
cause thev avenot to be made by Surrender bv Force of that Act, but by Deed indented ; and the*
by Licence of the Lord a Leale of Co'^yhald be demii'cd by D^cd indented, yet the Eftaie is not
Originally fo (^rantable, to which only the Statute extends and thereiore tho' Copyhoid Lands have
b-en Rrantcd if they come into the Lord's Hands, this Grant by Copy may be a furficieiic demifing
w'ithinthe A^t, to warrant his letting; them agdn by I Jeed a;cording to the Aft, yet it fecms he
cannot frant iheni a -ain bv Cony, for the Aft refjuires that Le:ifcs be m.ide by Indenture ; and it is
obfervable in the TQiill ailD CljSpff r Of £11 Oni'tlf C'S (lafv, tho' the Lands were Copyholds, yet when
thev came into their Hands they were deimled by Deed indciited, which Dcmile was warranted by
the'Aft upon the former Grant by Copy; Now then, if the :;iH. S. duth not enable Grants by
Couv it is a irreat Oucftion to me, whether the i; Eli/,, doth reltrain them, for all Leafes made
accordino- to the Exception of the retraining At't nvjft purCuc the Oualiti:ations of the enablinj^ A6t,
and conlenuently muft be made by Deed, and then it Grants by Copy be left as they were at Common
Luv, Ecclefiaftical Perfons may grant Lands by Copy in Fee with the content of theie Pcrfons
wiiofe confent is required to bitid their SuccelTors, I mean, if they have Copyhold Lands in Fee,
they may erant them by Surrender to another, not that if they are Lords, and they efcheat, they
mav "-rant them in Fee, for upon the Ellheat they free themlelves in their Hands, and fo within
J 1, J Act ^Gilb Treat, of Ten 17a cites Cro C. 4;. and (ays, that it was laid by Yelverton
A'-uendo, that the ;2H. Scap. 8. which j^ives an Entry inftead of the Cut in Vita, extends to
< opv hold ' Laiids, for the Aft was made to redrels a Wronj^, and it is no Prejudice to the Lord or
Tenant that the Wife fliall enter, and the general Words of the Aft that give a Cui in Vita, have
been allowed to extend to Copyholds ; the Words of the Statute 32 H. 8. are, being the Inheritance
or Freehold of his Wife ; So if this AcT: does in this Branch extend to Copyhold Lands, as it feems
to me it does then one and the fame A tt of Parliament, in one Part of it, will extend by general
words to Copyhold, and the other not, for the tiril Part of the Act of Leafes to be made by Te-
nant in Tail extends not to Copyhold Lands.
26 Copyholds are within the Statute of Limitations, per tot. Cur. Gjlb Trear.
Mo. 411. pi. 559- Trin. 37- Eii^- »" ^'^^^ ^^ Shaw v. Thompfon. ^^^^^^^^
S C For that is an Ac^ made for the Prefervation of the Publick O.iiet, and no way tending
to the Preiudice of the Lord or Tenant. And Aftions concerning Copyholds are as fully and plainly
within the Words of the Act of Parliament as any other Actions are, and lo there is no realon to
exclude them from the Meaning.
27 The Stature of 32 H. 8. cap. 9. of Raying pntenfed Titks extends
to Copvhold Lands. Supplement to Co. Comp. Cop. 88. S 21.
28 lione that has a pretended Right or Title to Copyhold Land bar- S^IV Ta.d w
gains and Tells it to another, this is within the Statute 32 //. 8. cap. 9, ^^^^^^ ^
c/ il/a/wre/M//^ y^. the Words whereof are, that it any bargain buy,Brownl.i54:
or fell &c any Right or Title in or to any Lands or Tenements &c. Co.
which Words (any Right or Title) extend to all Manner ot Rights Lin ,69.
or Titles, and by Conlequence, to Copyhold Lands ^ Per W ray Ch.^:^^; ^ ^
^ A Rep 26 a. Pafch. 31 EVvl. B. R. in Cafe oi Kite v. Quinton. cilb.
•'■ '^ ^ Treat, of
Ten. 172. S. P and the Aft being to fupprefs wrong, i: is within the Equity of it, neither Lord
nor Tenant being prejudic'd thereby.
20 Aaion of Debt doth net lie for Arrears of Copyhold Rent, but B''"^'^'"-
onlv Rents of Freeholds, and the Statute 32 H. 8. extends not to ^J ^ ^.;
ihem. Yelv. 135. Mich. 6. Jac. BR. Appleton v. Doily. _ g,S. p.
30 By the Statute of I £.6. cap. 14. it is exprefsly provided, that
upon the Diffohition of Abbies and Monajlenes Copyholds fkonld continue
as they did before the Statute and Jhoiild fall into theKtiig's Hands.
Co. Comp. Cop. 60 S. 52. _ • , , ■ , -r
31. By the Statute i Mar. cap. 12. it is exprefsly provided, that tf
any Copyholder, being Teoman, Artificer, Husbandman, or Lahurer, and
being of the Age of iH or more, under the Age of 60, not Jtck, impotent,
lame maimed, nor having any juji or reafonable Caufe of Excufc, upon Re-
queji made by any Man in Authoriry, refnfes to Aid fujiices m ftippref-
Jing of Riotous Perfons that then immediately he Ihall lorteit his Co-
pyhold to the Lord of whom it is held, during the Copyholder's na-
tural Life. Co. Comp. Cop. 60. S. 52.
y y 32- By
17 i Copyhold.
Supplem;nr 37. Bv the Stariite of 5 A7/;2. cap. 14. ir is excrefslv nrnvirl^^^Tk ~
S. 2t.S p. i'lal/ be as well punilhable as torging any other Charter, Deed n?
— -GUb V\ ritmg Sealed, whereby to defeat a Copyholder or Freeholder Co
Ti-cat. of Comp. Cop. 60. S 52
Ten. 175.
S. P.
foTaCorp. ^ 33. The Statute of 13 7.7,^. cap. 4. 0/ ^..^;/... ^«^ i?,,,,v„„ of the
Gop. 87 S. Q.^een doth not extend to Copyholds, and it fhould be a great Preiu
ai.citesS.C dice CO the Lords ot luch Copyholds, that the (^ueen Ihould have the
Ten. 1 71J.
fays this is
a Reafonable Opinion ; For Power is given by tliat Ad to make Sale by her Letters Pa'ents u,h;.K
fhould be a very great Prejudice to the Lord. '-'^■■icri la.ents, which
Jf' 7^^ ^''l ""'/ ^i"^''" °^ ^"^- '^^ =^4 Eliz. demf.d to G. a Copy.
HI da- J or Lije the [ante Cvfyhold Lands jortbe Lrjes of A. B. a„dC andL
V!:\tnmv r,t that,-, T^U^ I . j- i ,-,,1 ^ .,,■' .- '^•'it njf
See p! 15
Bullock V.
Diblev and
\'- N«- '^'''•^^"'^r oj them The Dean died. The Succellor Dean and Chapte
there as to entred. Ref,lv'd that the Ad of 13 Et,z. cap. ,0. does not ivoid
rSe ; '\ :f 'T'^"t°"'^ Yeanv Rent be refLed, or .:r V R^p'
of ,5 EHz ^7- b. ?S, a. rnn. 3 Jac. B. R. The Dean and Chapter of W^J.
t r> u/irii ceiter s v>ule.
JO. with
the Stiuute
of 52 H. 8. cap. 9S
Gilb. Treat.
oF Ten p
1159. S. P. ^
35-, By the Statute 13 FMz. cap. 7. it is exprefsly provided that th^
— .;P>7^'^^,^^^''d aswellasthe Freehold zL, k a bIL'p^ ^nli
and that be laid ior the iatisfymg- of the Creditor. Co! Comp. Cop 61 st--
Copyhold '^ f-wi. yj. J.-,
Lands arc within the Statures of Bankrupts; Becanfe the Statute i- Eiiz e,.orpWv m..,,-
nnd though the other Statute, do not, yet ?hey being n.ade fo furthefAem d n tL M 7/ 'f '"'
Vl^'^s ^''■.36. It vvas refolved by all the Juftices, that Copyhold is within the
Is. P. S^^^.^tes ot i3t/tz. xjdjac. [concerning Bankrupts] becaufe it is no
'TfP Prejud.ee to the Lord, for that there ought to be a Compolition witS
thejulhces. the Lord and the Vendee of the Lands, and altho' the Sale is and
;-Ti"c*.^'7hf L "d'^'X/'^'?^^"^->''^^ ^'^^^^"^^^ -ght ?o be adn'tted "by
^dA-d. ^he L,ord. ^dly, The Words ol the Statute of 13 Eliz. exprefsly
~rh'- F ' . 'k' 9'.'"'""fio"ers ihall difpofe of Lands as well Copy as
I P atleedr '% '5' !'c^ ^^^''"^'^^ "^^^^ ^^ ^°"'^^^^d molt beneficially fo?
b;;il T'' ^1'%'''''^ '^. ^'t Suum cuique tribuere. Supplement to Co. CompXop
SC.pl. (57. SS. S. 21. cites Trin.. 15 Jac. [Car.] in B. R. Crifp v. Prat ■
D . ^'^'U'livas, oecaule Copyholds are exprefsly mentioned in the Sramr,. ■ / r-;
Forfeiture hy Attainder the L^rrHiall h^vT^'^ft'^.^X^o.'^A',';! ^^ Tu ^ '" '^"'"'^ "*"
cheat after the Death of_ the Co,y holder 'tdlht ^l-J^ecftu 'L^Z'^ti^rm"^^^
miflioaer, of Bat.kVa ts to IbU 'the tn: ^ &c °. his '^ten'l'Hl rh'^'t/"^^'^^^"^, /'^^ ^^™-
CopyhoMs it that Law had nor given then Power by ex^ref; Word 'v , o M^ '""u ??' '*"
PreeL,nd, and fo are Icveral ACh of Parlian,er,t^ mad'e o ^ivc X ^ ^Z f./r cr"-"- "^ '^
».; ..;.<. lhnd.um^nu &c. winch Words do not extend to CoavlmMsbuTrlv r" tl ^""'"'""'^
Common Luv And the Re-ifon is becaule Copyhold L:.nds .t t'^L Tm e of mSj ,. ^^f "'"'"' '"
.nd other Act, .id ion. aftet, were in no efte^L ot the Law ; Fo; Z T:^:i^lJil^a
in
then'
Copyhold. 175
thc-m in V'illcina<^e, or at bed were but Tenants at Will, and fo not within the Provifion or Cave
■of Ach of Parliament. And even at this D,?.y their Eftates are held only at the Will of the Lord
scfordinf; to Cuftom of the Manor; And in many refpeAs this Tenant hith a dependance uponthe
! .or.i for he can neither alien nor leafe his Copyhold without Licence ; and therefore when either
I. done, •ii<: a<; well the Aft of the Lord as of the Tenant. Arg. 4 Mod. S5, 86, Hill.j & 4 W.
& M. in B.R. in Cafe of Glover v. Cope.
37. By the Srature i^FJiz. cap. 6. it 13 exprefsly provided, that if
any of the Queen's Subjects go heymd the Seas without Licence, that
then the Queen Ihal! not only ta.ke the ordinary Profits of the Fugi-
tives Copyhold Land as they arile, but lliall let, let, and make Grants
by Copy, and ufual Woodlales, and other things, to all Intents and
Purpolcs as a Tenant pro Termino durante Vita may do. Co. Comp.
Cop. 61. S. 52.
38. The Statute of 14 AV/a. o/F«^/f mi extends 10 Copyhold Lands.
Supplement to Co. Comp. 88. S. 21.
39. Copyholds are not liable to the 20 /. per Month upon the 29. [28.]
Ehz. for Recu fancy. Ovv. 37. Pafch. 13 EVvt. Anon, _
40. A Rectifant being Convid tor not paying 20I. a Month forfeited ^^{,^^''\
by the Statute 29 Ehz. cap. 5. and other Statutes of Rectifancy, a Com- £];^ j ^
milfion idiied out of the Exchequer to inquire and leife all his Goo<^j, adjudged
Lands^ Tenements, and Hereditaments, liable to fuch a Setfare j Upon the after great
Return of the Commilfion it appeared, that ibme of the Lands retu.ned ^^^""^^^ .
Vv-ere Copyhold Lands; It was a Queltion, if they were within the Sta- ,,J][j La^^^j"
tute? It was thi Opinion of the Court, that they u ere within the Equi- are not
ty of the Statute; for the Words of the Statute aie, Lands, Tene- within the
mcnts, and Hereditaments, which are Ibrcible Words, and the Inten- ^^^j.^'^. by
tion of the Statute was, that the Queen Ihould have all the Goods, and j". °p°^-
the Recufant by the Words of the Statute was only to have the 3d dice that
Part of his Lands, which is all that the Law gi\es him, and if Copy- may there-
hold Lands fnould not be within the Statute, if -a Recufant who had ''y "-'""'^^ to
great Polfelfions only of Copyhold Lands Ihould go unpunifhed, it was \^^^ ^^^
contrary to the Meaning of the Makers of the A£t. Supplement to Co. committed
Comp. Cop. S8. S. 21. cites Le. 97. Trin. [Mich] 3oEliz. in Scacc. no Offence,
s'aliard V. Everard. T'^'^'u
rore mail
not lofe his Cuftoms and Services. — Gilb. Treat, of Ten. 175. cites S C. and fay.;, it came to be a
Qucftion, whether the Stature z<) Eliz. cap 5. extended to Copyholds ? and two Teemed of Opinion it
did, and one took this Difference, that when a Statute is made to transfer an Eftate by the Name of
.Lands, Tenements, and Hereditaments, Copyholds are not within fuch Statute.
41. Copyholders are not within the Statute of 7,iEIiz. cap. 7. cfCctta-2 Inft. 737.
£es. Built. 50. Mich. 8. Jac. Brocke v. Beare. Gilb. Treat.
of Tea 1/6. S. P. and cites fimc Cafes.
42. Bv the Statute 35 £//3. cap. 2. it is exprefsly provided, that if Gilb. Tre^at.
any Perion or Perfons, being convicted of Recufancj, repair not home ° p_^"- '■>?•
to their ufual Place of abode, not removing from thence above 5 Miles
Diftance, that then any Perfon or Perfons thus otiending, ihail not only
lorteit their Freehold Land to the Queen, but withal their Copyhold
to the Lord or Lords of whom it is holden. Co. Comp. Cop. 61.
S. 52.
43. A Copyholder is not within the 12 Car. 2. {cap. 24.] to dtjpofe the ^ T^^""-
Otficdy of his Children, but the Cuflody fliall be to the Lord or others,^' J ■gj.'^;^p_
according the Cultom of the Manor, as to the Copyhold Lands, for thcrefolved.
Prejudice which may be to the Lord, and for the Meannefs of the Eltate. — Lord
3. Lev. 30 ?. Pafch. 6 W. & M. in C. B. Clench v. Cndmore. ^^y™ ^^^P-
-'•'■'-' 1 52, 153.
S. C. cited as adjudged for the Lord, for the ■Statr.i!' ^yrerds only to Lands and Tenen-ients at the
l.^omniOn Law.
44. Ifaac
1 ~6 Copyhold.
4,4.. Ifaac Pennington was acraintcd oF High Treafon, by the Aft 12
Car. ~. oj RegiCides^ and was ac that time ll-iled ofa Copyhold, held of
the Manor ol VV. of which the Dclendant was Lord. Yiy the faid Statute
the Forjeitiire 2S given to the King of all La/ith, Teiiemaits^y and Ha-edita-
merits^ i3c- which the Perfoii attainted had on the z^th Day of March ^ or
at any Time ftnce 1646, and that they ihall be in the attual Polfelfion
of the King, without Office or Inquilition, provifo, that no Grants or
Conveyances, or Grants and Surrenders by Copy, &c. had or made be-
fore 29 Sept. 1659, by any Perion attainted 6lq. lljall be impeached
6cc. the Queition was. Whether by the general V\'"ords of th 3 Act of
Parliament, the Copyhold Lands are included, and fo forfeited to the
Kine, and whether the Provifo, wherein Copyhold Lands are mention-
ed, adds any Force to the general VV^ordsi and per Hale Ch. B. if this
Ellate ifiould be forfeited, the Copyhold will be deltroy'd, and pafs by
Letters Patents, and not by Surrender, and it would be a hard Con-
ftruclion to expound an Aft of Parliament lb as to dellroy the Interell
of an innocent Perfon. Hard. 432. 435. Hill. 18 & 19 Car. 2. in Scacc,
the Duke of York V. Marlham.
45. A Copyholder committed Treafon in the Murder of King Charles,
and alterwards Anno 1655. he furrendered his Copyhold into the
Hands of the Lord of the Manor, for the Ufe of his Children, and
died. The Children were admitted. Anno 1659. '^he Manor was lold
ro the Plantft", and Anno 12 Car. 2. the Regicides were attainted by Act
of Parliament, by which it was cnaficd^ that all their RJlatcs Rca/^ and
Perfonal^ and other Things of that Nature^ whatfoever they fimllbe^i jhall be
forjeitcd to the King; Charlton J. was of Opinion, that this Copyhold
was given to the King by thefe general VV-'ords (^Other Ibings of that
Nature zvhatfoever') but all the relt of the Court were of Opinion, that
Copyholds were never included in a Statute where the Lord might have
any Prejudice, unlefs exprefsly named, and tor the Provifo, it might
be fatished by the Copyholds which the Traitors might hold in the
King's xManors, or where they had a Manor held ot the King, and
had made voluntary Grants of Copyholds and Surrenders made "lubfe-
quent; But it was'order'd to attend the King's Attorney General, to
know if he delired to be heard to the Point, et adjornatur. 2 Yent. 38.
Pafch. 35. Car. 2. C. B. Ld. Cornwallis's Cafe.
46. Statutes that are beneficial to the Copyholder and not prejudicial
to the Lord, may by a benign Interpretation be extended to Copyhold ; As
Statute W. 2. cap. 3. which gives Cm in Vita and Rcfceipt and cap. 4.
which gives to the particular Tenant .^nod ei Dcforceat. 3. Rep. 9. a.
Pafch. 26 Eliz,. in the Exchequer. Heydons Cafe.
Sav. 66, 6-. 47. \Vhen an ASi of Parliament alters the Service, Tenure, or Intenft
pl. i;S. S. C. of the Land, or other Thing in Prejudice ojthc Lord, or oi the Cufloni of the
ill S:icc. Manor, or oi the Tenant, there the general Words of an Aft of Parlia-
Maifwood^ ment fhall not extend to Copyholds, but when an aft is generally made
Cu^Q^l tor the Publick Good, and no Prejudice may accrue by realbn of the
Mo I2S'. Alteration of any Interelt, Service, Tenure, or Cultom of the Manor,
pl. 276. ihtrc oli:entimes Copyhold, and cullomary Eftates, are within the gene-
Elii^ iV ^^^ Purview of fuch Afts, 3. Rep. 8. a. Pafch. 29 Eliz. in the Exche-
Scicc.'s.C. quer. Heydon's Cafe.
& S P.
per Maiiwood Co Comp. Cop. 6\. S. 55. cites S. C Supplement to Co Comp. Cop. ;•'.
S, 12. cites S. C. Ibid.«(J S. 21. cites S. C & S. P. Godb. %(n) pl. 4^8. Mich. 2 Car.
it' was raid per Cur. that fuch Difterence was taken by Popham Ch, J. 42 Eli?,. B. K in Cafe of Bal-
pool V. Lop's that a Cuftom which conduces to maintain Copyholds e.vtcnds to them, but a Statute or
Cullom which depraves or dcllroys them does not. [This Point docs not appe.ir in any of the Re-
n'lrrs otthe Cale of .4alpool v. Long ] Cro. C. 42. &c pl. 4 Mich. 2 Car. c;. B. the S. P. in Cafe
cA Rowden V. Malfter. S. P. by 5 Jufticcs. 2 Vent, ;<;. P^lch. 35 Car, i C. B, Gilb,
'i'rc.it. ot Tea i j2. S P.
48. Note,
' " Copy hold. !2Z.
— "; '■ TT^xTZihrre The Kuit claims a Share in the Fur-
48. Note, thac ui no ^'^'^^^X'^Hs which fpe.ks of L..ds lor-
/,,rl-. of Che Lands, (as u. Che Sea u^^^^^^^ ^^^^^^ ^^ ^^,_
,.,., as he hach ^J.^^^;.^^ ^'^^^^^^^^^^ tor \hat in fuch Cafe, if che
':vnhin thegcucral l^Urd otjuch '^'^'[''^ ' j ^^ -^ prefendy lorkiced to
Copyholder comm.ccech ^J^e^y'^re o^^^^ VVords of thac Scacace,
^^{^T' ""V^Xl^J^t ^^^^ - Co. Comp. Cop. 87. S. ...
and ocher Che l^^e Scacute. PP^^^ ^^^^^^ Scacuces, .ther by c^rf
J,^:n^^^^^'r'y ^^-rUl.n,UcaUon u,on .en.r.llUrds.
Co. Coiiip. <'-°P,f "■^i'^'J^betvveenP.^^/ Statutes, which gave a Forfeiture
■'•"■ '.'/Vitinl^^tf'lX^rtt, of Copyholc. Lands ofaR«,-
Ai';»S H^r" ;: Hill. .8 & .9. Car. .. m .«.c. Duke ot
'yo k & -.1' V. Sir John M-rll,am B»on« ^^^^ ,, ,„,,
J, T.,creS.«a.es wh.d,co„ «„o «^^ ^^^^^^^ wh,cht»--„.
^::kS;'" Aaon'LSa'linoc. 'irg. Sho«. .3,. Mich. 3 W. ,„.„„„.
|, |yj *e..r. have
. ' been ndjudgcd to reach it. Ibid, cires Lc. 97- ^w. 57. Anon.
,3. copyholds^, held CO ^wi^^^^^s-^^-^^;: - ^ I^T.
ed but not to be Sold. Arg. bUn ^7 ^ g^^^^^^ ^^ g^^^^^,,
Caie o^G over v^Cop . -- CaU',^^-^, | ,,,, ,,y p^ejadi^ as to5 Le.^.^
.-^^•-^'wrcamen^^^^^^ Tenements, as the Sta-S^^,^
Fines or Amerciaments ^id not eKtend to Copyholds, and „^,^,„
^"V'H^S^^4:y"EerS>!"re efvfrin u^Vby L LoG^i che'Caf --^t
'''^^'ndkrvtS blt'P^ --de >r ./.. P.^^'^^ ^^'^1^°'^?'-
toms and bervtces, Du ^ j^ „^ p,,pi^ice, are bmdmg, and fhallm the Pur-
where the Loras of Manors cjifimve j ^ ^ h^.^.u^es; Arg. 4view of
^^fTV^HuP , & 4"VV.'3 B. R°u"S of Glover v. Cope. -;-,^-
co^»in^^'";'::[^f^;ik.\85 r^^^ but S.P. does not appear.
(P. d) Agreements between Lord and Tenants.
% rn/}o->i ofDeCccnt in a Manor, and many other Things, were in
of which Opinion was Mr. Cook Attorney General, and Julbce Gaway.
Carv's Rep. 29, 30. t^^" 1° J^"^ ':5°^- ^4- ^^'^- 2. In
J 7^ Copyhold.
2 in the Caie ot Temm-R^ght betwecn~l4~^d')w^ ^l' hisTenanN
on Che Borders, the Lord ChancdJor pronounced, char neither in 7e
nanc-k,ghc nor ,n ocher Cop)ho ds would he uK^ke any 0,.Ur for all L
Tem^ns mgaural but lor fpecal Men in Special Gifes. nor ior any Ion!
i^o dana Tenants, which chen he w.a.Ia decree if ic appeared rea^.
S P and for ''^t' A '?' ' 'P- ^f- '"'' '^•J'^"'^ ' J^^^'- ^"ferave's Cafe. ^
...,W;.? ^' /" Agreenienc becween che Lord and Tenanrs>r f.u/^;, Hertots
tines u a f<^ f ''jtuig Common, was decreed to be affirmed. The Lord feJisTi
M if. '"' ^^^yorp.vetheDecra and had the lan.e conhrmed, ch^o'ugh neul L'
Car .. ^h'^ ^'^''''''^'!'-, ^^^^^«/-r >^^./^r.^/.. Ejiate than ^or Uje , oj^re. fern "27
JM..dow,s ^1- 4"2. Hill. 1686. Dunn V. Allen. ■> ' K. • vtrn.^2/.
V. I'liicrlck.
(Q. d) Cafes of Agreements, and Covenants about Co-
pyholds between 7 enants and others.
Covenants /. #/r. Copyhold Land to J. S. In an Aftion by
/ 1 J. f>. he needs noc ihew a Court to be holden, tor A. ought to
£ ';; Pyniet." °''"^- "'^^ ^ '^" ?' ^i- Mich. J Jac.B, R f lec-
vi'rL'L . ^.^Vf ' ^'^fr^^'^^v ^ 'o^ ^'''^''^'^ Lands, fettled the Freehold
himleifand Lands 0, himleit tor Lite, Remainder of Pare to h:s Wtte for Ltfe icr
hisHeu-,s,to I^artofhcr-fojuture Ranamd.r to his He its Male on the Body of his
iurrender a Bijc Kemainder to his Hens Male of his Bod v, Remainder to B hi Rn
oenain Ufes ^ '^'^ '^^ ^f'^ Trultees, ?(; /.;;/, r/.. CopjhoMs to the fame Ufes A eoin<^
agreed upon, to make a Surrender tell lick, but made a Letter of Attorney ro do it"
and died be. but died before it was done without Ili'ue Male. The Freehold F .^nH«
"Z:: T ':Telir/r'' ^'^ ""T' ''^f' "°^ ^°-P^^ the HelTs get^^ S
Billwa. /^- ^o exeaiUtheCoveuajn to furrender. Ch. Cafes 243. Mich 26 & 2V
brought for <-ar. 2. Bellingham v. Lowther and Wentworch. ■ <-^ ^ j.
a Ipccifick
CbTnc;:! fSk""'"'' '"' ''" ''™' ""^ '^'"'' accordingly. <, Mod. icJ. Mich. i. Geo. in
3; T^a-o Cop)hoMers upon a Tr^^/ji c/ yV/^rr/Vr^.. between them ffm-e^idered
their refpea.ve Copyholds ^. the Uje of them and the Stir-onJ of hem
and bejore Marnage the Man dies. The U'oman entred, and .^W S
30 i.^«; It wasinhlted, that this was a Truft tor the Man aid £
i-Jeirs till the Marruge, and Lord Jeffries decreed a Re-furrender, and
40S. Hill. 1686. Hamond v. Hicks. ^^ P
JSs" edtv wSdef 1^ Ir a^'^c,A/,and which had been frequently alien-
ttie Kent ^"^ ''j Surrender and Admittance for a valuable Confiderarion was made
..uld not good in Equity. 2 Vern. R. 16. pi. 10. Hill. 1686. Spmdlar AvilTord
/J"""'""'' ■" '^' -"'■■■^"^•^'•^ ^"d AdnV.tiances are Evidence, cf the Agreement for the Sslc.
5. On Marriage a Freehold Eflate was fettled on Husband and Wife
lor their Lives, Ren^under to the firflSon in Tail, Remainder to ^Tf.
rm for 500 2 cars, to ra.f Daagher's Futwns, Remainder over and
Copyhold. 179
there was a Covenant: from Baron ro fettle his Gfyhold F.Jfate to tke fame
or like Ufes^ and lubjcit to the fame Trufts on Provifx's &c. A Suvren-
/ier IS msde^ but no 'term is limited. There was no lllue Male, and the
Freehold was fufflcient to raife the Daughter's Portions. Bill didnilfed
Sit the Rolls, but Lord Somers, on Appeal, decreed the Copyhold E-
i\^zttoJf and charged, and liable to raile Daughter's Portions. 2 Vern.
K. 321. pi. 308. Mich. 1694. Shouldam v. Shouldam.
6. A. a Copyholder of hihcntance having no IJjue^ intended to leave it to
his Nepbe-n', hut being taken ill, he had no Time to [urrmder it to the Ufe
of his Will, for -want whennf the Eflate ivotild defceiid to M. his Sifter; to
prevent ivhich A. got M. to gi^je a Bond oj 2000 1. to the Nephe-jj his Son,
conditioned to convey the Lands to her Son and his Heirs upon Requefi. I'he
Son, alter A's Death, entred and died ivitboiit Iffite, but left 2 Sifters, no
Conveyance being executed by the Mother ; But Lord Chancellor decreed,
that ihe was a Trultee for her Son and that ihe Ihould furrender to her
Daughters, and they to be admitted as Coparceners. 9 Mod. 62. Mich,
10 Geo. Alifon's Cafe.
.''R. d) Attorney. What Service's may be done by At-
torney.
I. 'T"'' H E principal Duty infeparably to be done to the Perfon of the
JL Lord, and by his Copyholder, is in doing of Fealty, which
upon every Admittance he is to do the Lord, for that is efpecially men-
tioned in the Copy granted by the Lord in thefe Words, viz. Dat Do-
mino pro Fine, et lecit Domino Fideliratem, and Fealty cannot be done
hut in Perfon, and not by an Attorney. And although (as Mr. Little-
ton faith) Fealty may be taken by the Steward of the Court of the Lord
of the Manor, yet it is done to the Lord himfeU, and it mutl de done by
the Copyholder himfelf in Perfon. Supplement to Co. Comp. Gop. 83.
S. 18. cites 9 Rep. in Comb's Cafe 75.
2. The Suit and Service which is to be done in the Court of the Lord by
his Copyholder mufl be done inPerfon and not by another tor him, and ic
is to be done upon Oath, and a Man cannot fwear by Attorney, and
therefore he cannot make an Attorney to do his Suit and Service, buc
the fame mufl: be done by him in Perfon. Supplement to Co. Comp.
Gop. 83. S. 18.
3. Some particular Things a Copyholder may do by his Attorney- ;
as he may pay his Rent by his Servant or Attorney, or tender it by them,
and fuch Payment and Tender ILall be good. Supplement to Co.
Comp. Cop. 83. S. 18.
4. So if the Cuflom of the Manor be, that upon the Death of every Co-
pyholder the Tenant pall pay and tender his hefi Beaft unto the Lord for a
Heriot, there the Heriot m:iy be paid by the Heir before his Admittance,
or by the Executor of the Copyholder and fuch Payment or Tender of ic
lliall be good. Supplement to Co. Comp. Cop. 83. S. 18.
(S.d)
I So Copyhold.
(S. d) By-Laws.
I. ^ I 'H E Tenants may change theBy-laws at the next Court without
X the Confent of the Lord , Per Dyer. Dal. 95. pi. 23. 15 Eliz.
Franklin v. CromweJl.
2. By-Laws made in Court Baron to bind Strangers that are not Te-
nants of the Manor, are void. Savil, 74. pi. 151. Mich. 25 &L 26 Eliz.
Anon.
3. If the Homage o/;/j' make By-Laws, and not all the Tenants, the
By-Laws are void. Savil, 7.^, pi. 151. Mich, 25 6c 26 Eliz.
Anon.
4. To make By-Laws that they fhall not put in their Cattle in their Se-
veralties before fuch a Day is void. Savil, 74.pl. iji. Mich. 2j & 26
Eliz. Anon.
5. By-Laws to hind Strangers are not good, though they are made by
the Homage, and by all the Tenants, and ot fuch Things whereof By-
Laws may be made. Savil, 74. pi. 151. Mich. 25 & 26 Eliz.
Anon
6. Every By-Law ought to be made/or the Common Benefit of the In-
habitants, and not for the private Commodity of any particular Man,
as J. S. only, or the Lord only ; As if a By-Law be made chat none
ihall put his Beafts into the Common Field before fuch a Day, it is
good J but if a By-Law be made that they ihall not carry Hay upon the
Lord^s Lands, or break the Hedges of J. S. this is not good, becaufe it
refpefts not the Common Benefit of all j Per Periam J. Godab. 79. pi.
13. Hill. 30 Eliz. Anon.
7. Per Windham J. fome Books are, that By-Laws (hall hind no more
than fuch as agree to them. Goldsb. 79. pi. 13. Hill. 30 Eliz.
Anon.
8. A By-Law in a Manor hinds the Tenants without Notice, becaufe
they are fuppofed to be within the Manor ; Per Hale Ch. J. Yent. 167.
Mich. 23 Car. 2. B. R. Ifaac v. Ledgingham.
S(.e Tit. (T. d) Charitable Uies.
Charitable
Ufes.
I. XN Cafe of charitable Ufes the Lord of the Copyhold pall have
X his Duties aXways of Fines, Heriot^c. of the Heir, or Purchafor
jn whofeName thelntereft of the Copyhold relts in Law, and he ihall
have an Allowance made him out of the charitable Ufe. Mo. 890. pj.
1253. Anno I j;86. Rivet's Cafe.
(U. d)
Copyhold. 1 8 r
(U. d) Common.
How Lord or Tenant are interefted therein, and alfo iit
the Soil.
THIS Ctiftom might have a lawful Commencement that one Co- A Cujfom for
py holder /hotild only have Common &c. m the Land of the Lord^'^'f-'^fl^'^'^'*'
and l-y the Ciiftom of fonie Afa/iorSj fome Copyholders have Common in one ^/fscc '
Wajfe ot the Lord, and fome in another feparately, and all the Copyhol- Us Lord's
ders may be extinft, fave one. 4 Rep. 32. a. b. pi. 25. Mich. 29 & 30 •^<"/«s good;
Eliz. B.'R. Foilton v. Cracherode. F"/ =>'' the
other Copy-
holders may have forfeited their Eftates or Intereft therein. Gilb. Treat, of Ten. 208.
2. If the Copyholder for Life has tifed to have Common of Pafture or Eflo- I^ the Lord
vers in the Lord's Woods or W'altes, and after tie Lord aliens the IVaJies^ makes a
or >\'oods to another in Fee, and zktr grants a Copyhold Fflate according Yearlof'the
to the Cujlom, the Copyholder mull have Common there as hath been Manor with
us'd, but in this Ca(e the Cnjlom mufl he laid fpecially i otherwife it is Exception
of a Leafe for Lite by Deed. 8 Rep. 63. b. 64. a. Mich. 6 Tac.°'''i^'^i:"s«
<;„ „j (^ ,- ^ r J T J and the Lef-
Swa>nesCafe. fee or his
Aflignees
^rant a Copyhold For ; Lives according to the Cudom, and it is found that the Cuftom is that a
Copyholder may top and lop the Trees for Fireboot, lie may jullify the doing it j becaufe the Copy-
holder is in by the Cullom, paramount the Exception of the Trees in the Leafe j adjudged by all the
Court. Mo. Sii. pi. icpS. Trin. 5 Jac. C. B, Swaine v. Becket. Brownl. 231. 6. C. held ac-
cordingly per tot. Cur,
3. In Trefpafs &c. Quare Claufum fregit &c. and putting in his
Cattle &c. The Defendant jultified, for that the Place where is Parcel
of the Manor of Haye, in which Alanor there is a Cuftom, that it fhaJl
be lawful for the Lord of the Manor to have Common in the Lands of
the Tenants thereof lor Life, or Years, when they lie frelh, and upon
a Demurrer this was adjudged a void Cufiom^ and againji Law^ that the
Lcfforfhall have Common agatnjl his own Demtfe^ becaufe it is Parcel of the
ithnig demifed. Palm. 211. Mich. 19 Jac. B. R. SV^hite v. Sawyer.
4. The Lady W. being Lady of the Manor of Stepney, exhibited a
Bill to eftablilh an Ufage and Cujlora within the faid Manor ever llnce
the Reign ot H. 8. which was, that the Lords of the faid Manor mighty
upon the Prefentment of 7 of the Copyholders thereof, determine what wafle
Ground ivas fit to be fet out and inclofed^ in order to build on the fame, and
fiich Prefentment being agreed unto by the Majur Part of the Homage at the
next Court, the fame was fet out and inclofed accordingly, •without any Mo-
hflation or Dijiurbancc by the Tenants \, that fuch a Prefentment was
made in Manner as aturefaid of teveral Parcels of Waile Ground to
build on in Mile-End Green, where lince the great Fire, Filth and
Carrion had been ufually laid, to the great Anoyance not only of fome
of the Tenants, but of all others paffing that Way 5 that this Prefent-
ment was allowed by the major Part of the Homage at the next Court
and which is now fought to be eltablithed by a Decree of this Court,
the rather, becaufe it is oppofed by fome of the Tenants of the faid Ma^
nor, who have brought Attions &c. pretending, though very untruly,
that they have a great Lofs of Common by fetting out and encloling fuch
Ground ; that by Indenture dated 15 June 15 Jac. the Lord W. in
Conlideration of 3500 I. paid to bimfcif, and 3000 /, more to his Father
A a ii Hk^nry,
I ^2 Copyhold.
Henry Lord \V. did grant and confirm to the Tenants their Privilcgts
and Cultonis, aiid paracularly the Commons which they then enjoyed,
with Liberty to dig Gravel, Clay, or Loam, to repair orbuikl any of
their Copyhold Tenements, and covenanted tor the quiet Enjoyment
againfthim, his Heirs and Alligns ; that the reafon w hy noDifturbance of
this Nature hath been hitherto given is, becaufe there vv^as never anyluch
Inclolure for building, under Pretence of fuch an Ulage and Cnltom
till now. Upon reading of feveral Court Rolls ot the faid Manor Irom
the Reign ot H. 8. tilfthe Reign of Car 2. relating to the faid Ufage,
and hearing all Parties, the Court decreed, that this was realbnable
Ufage, and fit to be elTiablilhed, and that the Plaintitl' hath proceeded
according to the Ufage in procuring the faid wafte Ground, called Mile-
End Green, to be lt;c out, prelentcd, and allowed by the Homage, and
inclofed as aforefaid, and lo h.id Power to grant Leafes and Eltates
thereof at her Pleafure to he inclofed, and kept in Severalty &c. P'in.
Rep. 263, 264. Trin. 28. Car. 2. 1676. LadyVV entworth &c ai'. v Clay
& al'.
(W. d) Copyholders Intereft as to Commons,
.s. c'^adpr- I. r~T^ HOUGH the Copyholders have fola?n ^ ftfarakm Pafttram Sic,
natur. \^ yet the Lord may diikain lor other iJamage the Bar/h of a
'Ibid. 1(19. Strniiger, who has no Right to put in his Beafts, though the Lord has
whole' Court no Intereft in the Herljage , Per Hale Ch. J. 2 Saund. 328. Hoskins v.
held the Robins,
rood and being laid as a Cnftom m the Manor, it was not needful To exprefs the Copyhold Eftates ;
that i't does not take away all the Profit ot the Land from the Lord ; For his Interell in the Trees,
Jtlines, Bufhes &:c. continues.
2
_ Lev. 2. 2. I'he cuitomary Tenants of a Manor allege a Cuftom pro fula & fe-
h.C. and perali Pcijf lira tn ds.c. qtwlibet Anno per totum yinnitm&cc. The Cuftom is
theCullom gQod, and might alio have a reafonable Commencement j One may
held good p^^.^-^., jj^g fQj. the iole Feeding, becanfe /^ ff«^^? /^J^w tts Commencement
hy Grant, and tf it be goodby Prcfcription, it may be good by Ctijiom,' &v\d.
fuch a Cuftom at firlt might commence by the =voInntary Agreement of the
Lord -with the tenants to induce them to hold their Ejiatcs^ which were then
but Ef-dtes at Will, and to bejioiv their Pains and Labour in JmproTernefJt,
and lo a continual Ufage had now made a Cuftom foi the lame Realbn,
that it had now fixed their Eftates and made them Permanent, and en-_
abled them to bring Actions againft their Lord, if he puts them out oi
their Eftates contrary to the Cuftom. 2 Saund. 326. 328. Pafch. 23.
Car. 2. B. R. Hoskins v. Robins.
3. In Cane. Mich. 1726. in Manor of Hamftead, one Rous having
In tit the Long Room on Hamjlead Heath by a new Copy from the Lorrl,
without the Confent of the Homage, -a Billfcr eJiabliJLing the Cuftom of this
Aianor pray'd to pull it down, as an Incroachmcnt on the Ccmmcn ot\\ &\\e,
but lliues being dire£led to try feveral other Cuftoms of this alfo, King
Chancellor faid, that though it might be reafonable for Rous to , be re-
ftraiu'd from building any tarther, yet as to what he had done, being fnp'
pos'd at 3000 1. E.xpence, the Commoners ftanding by, he would not iet it
be puli'd down, for on laying the firft Utone the Commoners ought to have
objecicdtD it, and an Injunction, Itaying him to go on to finifJi his Build-
ings, was dillblv'd i this was declar'd provilionally uiiul the Iflues were
Tiicd. MS. Rep.
Copyhold. 183
(X. d] Cottages ballt on the Wafte.
2. rnpIHE Plaintiff was Lord of the Manor of Ewell in Surry, and
_|^ brought his Bill, claiming an Houfe in Ewell built upon
the \\ afte. It was faid by Lord Chancellor, that the Lord of a Manor
is never faid to be out of Polfelfion ; that what is built upon the Wafte
is his, and that upon a Trial before Juftice (John) Powell, touching
fome Cottages or Tenements built upon the Wafte, though the Lord had
mi been in a[iual Survey of the Cottages or Tenements in Queftion/or
60 y'ears^ and there had been fever al Ftties Lvkd thereon^ by the Opinion
of the Judge the Lord had a Verdt^. MS. Rep. 13 July, 1726. in Cane.
Loyd V. Bartlct.
2. It has been ruled in Evidence at the Aflifes, that a Cottager on the
Lord's Wafte lives there by the Lord's Confent, and fo is only a Tenant
ctJVill, but this is very doubtful where there has been a long Pojfeffion j
Said by Pratt Ch. J. Mich. 11 Geo. B. R. And per Cur. 20 0^25 Tear's.
Pojj'ej/ion is a good T'ltle in an EjeQment, as well as a Bar to an Eje^-
Kent.
(Y. d; Court.Rolls.
What Intereft the Tenant has in them.
T was ordered, that Court- Rolls fhould be brought zad/heijued
to Counfel^ tojhciv which ts Copyhold^ and'-johich is Freehold, Toth.
109. cites 12 Jac. Corbett v. Pefthall.
2. T'enant by Copy has an Interejl in the Rolls of the Court as well as Lord, and
the Lord, bccaufe it is his Evidence, and the Lord cannot deny Copy- Tenants, and
holder Jccefs to the Rolls; Per Doderidge.Lat.182. Mich. 2 Car Widow '"°Py,^°''^="*
Scacy's Cafe. ^l^
tlier to have the Ufe of them, as well as again ft Sn-anr;ers. Hard. 180, pi. z. Pafch. i'^ Car 2 in
Scacc. in Cafe of Langham v. Lawrence. 5 Mod 506. S. P. per Cur. Pafch 10 W '■> D
464. Marg.pl. 5S cites S.C. ' '" ^•
3. A Copyholder being fued in B. R, for certain Lands, t/ioved that ! Mod- 19^-
the Ste-juard of the Court might be ordered to bring in the Rolls into^''^-^'^'^
B. R. that by them he may be the better enabled to defend his f^^™g^/ by-
Title to the Lands ; Per Roll J. this Court cannot order him to do it, the Couit,
fo would make no Rule in it. Scy. 128. Trin. 24 Car. B. R. thatithas
Anon. been fre-
quently or-
dered for Steward.'; to grant Copies, and produce the Rolls at Trials. Fin. Rep. 249. Pafch. 2S
Car. i ordered that the Plaintiff, in a Bill for Difcovery of Deeds &c. fhould'have Rccourfe to the
Records. Rolls, and Evidences of the Manor, in which the Lands claimed, lie, to view, perufe, and
take Copies thereof, (paying for the fame} and order'd, that the Defendant and his Heirs, Lords of
the faid Manor, fhould produce fo many thereof at any Trial at Law as the Plaintiff or his Heirs
fhould at any Time require to be produc'd, but at the Charge of the Plaintiti, his Heirs, or
Affigns.
4. Bill to have certain Surrenders wade up and ingro/Jed which were
made, but not en g rolled j Plaintiff and Defendant were Brothers i Per
Finch
1^^ Copyhold.
Fineh K. the Father being Lord of the Manor cafinot declare the 7'riijts of
Copyhold granted to his Son, though he took the Profits always by
their Confenc. Ch. Cafes 261. Trin. 27 Car. 2. Dowdfwell v. Dowdl-
well
5. If the Lord of a Manor refrifes a Tenant a Sight, or Copy of a Court-
Roll, to make fuch Uie ol them as the Tenant may think proper, either
to ground a Fine upon or make his Defence, he faid Hale was of 0^\-
mon m Attmhvtent [\\ou\(\ go againfl the Lord i Per Holt Ch. J. 11
Mod. III. Pafch. 6 Ann. B. R. Anon.
(Z. d) Cuftomary Court.
Ci-o. E. 102,1. TF the Lord oj a Manor having many Ancient Copyholds in a Vill
10; pi. 10. Jl^ grants the Inheritance of all of the?ii, the Grantee may hold
fh« tho'die^o"'''^ for the Cuftomary Tenements, and accept Surrenders to the Ule
TenOTieiitV^ of others, and make Admittances and Grants i For though it be no
are divided Manor in Law becaufe it wants Frank-Tenants, yet as to the Copy-
irom the j^qIj Tenants rhe Feoffee or Grantee has fuch a Manor, that he may
JMa m- '"'^et ^°^*^ Court and make Admittances and Grants of the Copyhold Te-
thc^Cullom 'nements ; lor every Manor which conjifls of Frank-Tenants, and Copy-
remans, md hold 'Tenants, comprehends in Effeif in it felf z fevcral Courts, viz.. a
they conti- Cgnyf Baron for the Frank-Tenants, in which the Suitors are Judges i and
riueCo|)y- ^ji,(j( /^^y jgr the Copyholders, tn which the Lord or the Struuard is Judge ;
P°vinT' and the Grantee of the Inheritance of the Copyholds may hold luch
Ui'cir Ser- Court for the Copyhold Tenements only, as the Grantor might. 4
vices and j^^p 26 b. Trin. 30 Eliz. B. R. the 3d Reloluciou in Cafe of Mel-
SdtrS- -ick V. Luter.
ivliohasthe . , ^ „ i ^
Freehold of tlicm may keep a Court m any Place, and it Js not properly a Lonrt Baron, but as a uurt
of Survey, at which Copyholds may well be granted, and the Lord or his Steward may giant Copies
out of Court as well as in Court. Ibid, the Reporter adds a Nota, that a Writ ot Error was
brought of this Jndgment in the Exchequer Chamber, and the Error affigned in the Matter of Law,
but no IndRment given ; for the Parties compounded, and agreed with the Plaintiff in the Writ of
Error and he had the Lands, as Ewcns whowasof his Councel told me, for he laid, that all tl>e
Tuftices and Barons in the Exchequer Chamber did hold clearlj;, that it was a void Grant by Copy ;
}or being divided from the Manor, the Cuftom to demife them is altogether gone and deftroyed, fo
as the Eftatcs for Life which were in Efl'e at the Time of the Alienation of the Freehold of them
and Severance of them, being now determined by Surrender, or otherwilV, no new Copy can
be made, vet the Alienation of the Freehold of them doth not delboy ths Eftates of the Copyholders
then in kite, but they (hall hold them during their Eftates, paying their Services but no new Ef-
tates may be afterward granted by Copy .Gilb. Treat, of Ten. 196 fays, that fiiice every Manor,
confiding of Freeholders and Copv holders, has 2 Courts one a Court Baron, and the other a Court
for Copyholders, whereof the Steward is Judge, what Realon is there, thele being feveral Courts,
and there are feveral Judges of them, that the want of Freeholders fhould hinder the Grantee fro.l\
keeping a Court for granting Eftates by Copy, efpecially ilnce the Conlequence is lb fatal; and
therefore (/' the Lord reteafet the Service and Tenure of his Freeholders, yet the Lord r,:ay keep a Court for
his Cuftomary Tenants, and (0 tho" the Lord cannot make 2 Manors of one, confiding of Demefncs
and Services, yet by his own Aft he may make a Manor of Copyholders ; this Teems to be but a
Divifion of the Courts, which before were in one, for a Manor (ecms to be fo to two Intents, as {o
the Freeholders and as to the Copyholders, and lb in EU'ett fecms to be a double Manor, and
therefore are there feveral Courts in Etfeft, and feveral Judges, according to the Matter that is
before them ; and lb it is no neiu making of a Manor to grant the Inhe'-ilatue of the Copyholds, hut only
to put that into the Hands of l Men luhich before •was in one, and yet was as much two Manjrt then
as WW.
4 Rep 2{J. 2. Lord of a Copyhold ^\ax\ox leafed the Court Baron for 2000 7 ears
b. 27 a. farjiiig to himfclf the other Dcmtfnes and Services ; the Lcliee held Court
? ,9' ^"'^ and a Copyholder furrendercd to the Ule of A. in Fee. 'Twa.s held,
held per to:, *"^ f ■' . '
s
Copyhold. 1 8 5
that a Copy to A. was good, and Atiderfon faid it had been held foCur. that
in Lord rpattOn'0 Cflfe and feveral others iince, and that it had of- ^^'{\l^^^^f
tentimes been held, that the Court may well continue as to that Purpofe"oyr[ f^"
for Admittance of Copyholders, for otherwife every one of his own the Copy-
Aft might deltroy his Copyholder's Eltate. Cro. £. 394. pi. 21 Pafch. tolds ac-
37 EliiL. C. B. Jackfon v. Neal. the RdbTu
tion of the 5d Point in Melwich's Cafe and cited it as fo refblved in Sir Chriftopher Hatton's Cafe,
and the Reporter fays Nora, a good Diverfity between thofc Cafes which confift of a Number of
Copyholds which may fupport a Cuftom and a fingular Gafe of a Copyhold, as in Murrel's Cafe,
in which the Lord did not grant tacitly any Cuftornary Court, nor the Grantee, having but one fin-
gular Copyhold, could not hold Court. Gilb. Treat, of Ten. 1^6. cites S. C. and fame Di-
verfity.
3, If a Feme ht endowed of feveral Copyhold 'tenements^ pe may keep ^Supplement
Court and grant Copies, thouih the Services of any of the Freeholders ^^''^Q) 82 s'^'
not allotted to her, but the Deiucfnes and the Copyhold 'tenements only ; For j« cites
though fhe having no Services cannot hold a Court Baron, yet Ihe mays. C.
have -a, fpecial Court tor this Purpofe, and it is good enough; Per -Gilb.
Popham clearly, and cited S)ic CljtiftOpIjei; ^attOn'0 Cafe ^^^tITiL,
Wellingborough, where it was adjudg'd, that where he had 20 Copy- cues S. C.
hold Tenements, Parcel of the faid Manor, granted to him by the fays that this
Queen, and becaufe fome of them refuted to come to his Court they b«ing<lone
forfeited their Copyholds. Cro. E. 662. pi. 10. Pafch. 41 Eliz. ^^^^ J^'"
B. R. Gay v. Kay. Prejudice
could accrue
to any body.
(A. e) Cuftoms. Good. And How to be Proved.,
i.r"| THE Cu&om of Cliven or Landmark is, that if any Copyholder
1 is about to Sell his Copyhold, Proclafnation Jhall be made in Court,
that if the next ef Blood of the Vendor, or in Default of him, the next
'Neighbour of the Vendor fhall come to Court at Sun-rife, and will pay
as much as the Eargaifiee has agreed to pay, that he fhali ha\'e the Land
notwithftanding the Bargain. Jenk. 274. pi. 05.
2. Continuance tor 50 Tears is requilite to fallen a cujiujnary Conditi' ^-^^^^ 27
c» upon the Land ^^^/«/? ?^e Zor//, and Seifure for a Forfeiture is ana. b. pi, 15.
Interruption of the Continuance, fo that the Time before the Forfei ture ^- ^- ^"'
is of no Account, per tot. Cur. 3 Le. 107. pi. 158. Trin. 26 Eliz. g^S. P^does
R. Taverner v. Cromwell. "° ^^Qxa.
E. 555. pi.
pi. 10. S. C. but S. P. dqes not appear.
3. InTrefpafs the IJfue was, if the Lord of the Manor granted the
Lands per Copiam Rotulorum Curia Manerii fecundum Confuetuiiinem Ma^
nerii prtediH'. It was given in Evidence^ that the Lord of late, at his
Court, granted the Lands per Copiam Curia, ivhere it was never granted by
Copy bejore ; In that Cafe the J ury are bound to find Quod Doninus non
conceHit, as it was holden by the Court; for altho' De fa£lo Dominus
conceilit per Copiam Rotulorum Curise, yet Non conceffit fecundum
Confuetudinem Manerii prsedi£i:'. Supplement to Co. Comp. Cop. 82.
S. 16. cites Leon. 56. Pafch. 29 Eliz. C. B. Kemp v. Carter.
4. To prove a Cuftom to grant Leafes for Tears, 'tis not Sufficient to
prove it for 30 or 40 Years, but ic ought to be trom Time whereof &c.
Cro. E. 351. pi. 3, Mich. 36 & 37 Eliz. B, R. Jackman v. Hod-
delton.
B b b 5. Cuftom
86 Copyhold.
<. Cultt:.n '0 ilifet.be Laiid ti/l Fii/e made with the Lotd, for i: waa
held a iealouiibieCulloin. Cro. E. 351. pi. 3. iMich. 36 & 37 Eiiz.
B. R. Jackriian v. Hoddetlon.
6. There is a Diffcrsnce l;etwi:en a Prefcription for Freehold Land and for
Ciifiomdrv Laud; for Cnjtom, "-juhich concerns Freehold, ought to he through^
cut the County^ and cannot be in particular Place, 45 All', hut a Pre-
fcription concerning Copyhold Land is good in a particular Place, lor De
Minimis non curat Lex, and the Law is not altered thereby, and it
may be there is but one Copyholder there, for which he might pre-
fcrite, and Beamond agreed this Difference, for Cullom to have Profit
Apprender, Privilege, or Difcharge, may very well be in a Particular,
and by Owen it was ruled accordingly in COlSl0'lS CillC in the
Queen's Bench. Cro. E.. 353. pi. 10. Mich. 36 & 37 Eliz,. C. B. in
Cafe of Taverner v. Cromwell.
Roll Rep. 7. Cultom chat a Copyholder for Life may nominate one or tii'o to facceed
i^n. pi. 17- him for a Fine to be affelfd by the Homage, if they cannot agree with the
T™/' Lord, adjudged to be good. Noy 3. Pafch. 3. Jac. B, R. Crabb v.
[ac. cues
(iirsbbb* Biil'^s-
16*1 liiS,
S. P. adjudged in C, B. and affirmed in 3. R.
8. 'Tis riot fufficient to prove an Ufagefor the Sole Paffiire to fliew that
the Tenants only had fed it, unlefs it were proved alfo, that the Lord
had been oppoJed in the putting in of his Cattle, and the Cattle im-
pounded from Time to Time ; per Hale Ch. J. Vent. 165. Mich. 23
Car. 2. B. R. Hoskins v. Robinfon,
(A. e. 2) Cuftoms purfued. In what Cafes they
muft be.
I. TF the Ciiftom does warrant Effate only durante Vtdtdtate, and the
X Lord admits for Life ; this Ihall not bind his Heir or SuccelTor,
becaufe Cultom has not fufficiently confirmed it. Co. Comp. Cop. 52.
S. 41- . .
2. So if the Lord fail in referving Veriim & antiquum redditim, as it
he refer ved 10 s. where the ufiial Rent cnflomably referved is 20 s. this
may be a Means to avoid the Admittance. Co. Comp. Cop. 52.
S. 41.
3. And the Law is very ftrift in this Point of Refervation, for tho"
the ancient accuflomable Rent be referved according to the Quantity, yet if
the e)iiality of the Rent be altered, the Heir may avoid this Grant. For
iftheancient Rent from time to time has been 20 J. in Gold md the
Lord reserves it in Silver, this Variance of the Quality ol the Rent is in
force to dellroy the Grant. Co. Comp. Cop. 52. S. 41.
4. So if the ancient Rent has been acctifeomably paid at 4 Fenjls in the
Year, and the Lord referves it at 2 Feajls. Co. Comp. Cop. 52.
S, 41.
$. So if 2 Copyholds efc heat to the Lord, the one of which has been
nfiintl)' demifed for 7.0 s. Rent, the other for 10 s. Rent, and he grants
them both by one Copy for one Rent of ^os this is not good. Co. Comp.
Cop. $2. S. 41.
i87
6. So if A Copyhold of 3 Acres efc heats ^ lahicb has ever been granted
fcr ^s. Rent, and the Lord grants one yicre, and referves pro Rata is.
Rent, verus & anciquus Redditus is noc rcferved. Co. .Comp. Cop. 52.
S. 41.
7. Rat if a Copyhold of 6 Acres, isohich has ever been demifed for 6 s.
Rent, ejcheats to 2 Copartners, and one grants 3 Acres, referving 3 s. pro
Ratai this is a perfect Referring. Co. Comp. Cop. 52. S. 41.
8. A Cajhm was found in a Manor, that -ivhere anF.Jiate was granted to
A. for Life, Remainder to B. for Lije, Remainder to C. for Life, that A.
had Power to defiroy the Remainder by Siirrendring the Efiate in Court &c.
and it was found that A. granted it away by Fine, and it was held per
Cur. that the Remainders were not deltroved nor granted by the Finej
lor this being a Cullom againlt common Right, that one Man fliould
dellroy the Right of another, it ought to be purfued ftriclly ; and the
Cullom being lound to do it by Surrender, a Fine ihall not have than
Operation within the Cullom. Freem. Rep. 263. pi. 284. Mich. 1679.
Talmarfli v. Zinzay.
(A. e. 3) Cuftoms, General or Special, Good or not.
And Extent thereof.
!. \ Cuftom that a Lejfeefor Tears may hold the Land /or half a Tear ^^ c.'cired
jf\^ after his 'Term ended, is no good Cullom ; agreed by all the Gilb. Treat.
Jultices, bat the Lord oi -a. Copyhold may by Cufioin leafe the fame /or of Ten. 305,
Life, and /^o Tears after, and it is good, but a Cuftom that Leflee ibr
Lite may leafe pur auter Vie is not good ; Per Montague and Hales.
Mo. 8. pi. 27. Hill. 3 E. 6. Anon.
2. By the Cullom of a Manor, the Lord of a Manor might cffign one
to take the Profits of a Copyhold defcended to an Infant, during his Nonage
to the Ufe of the Afignee, without rendering an Aecoinpt, and the fame was
holden to be good Cullom ; As a Rent granted to one and his Heirs, to
ceafe. during the Nonage of every Heir. Le. 266. pi. 357. 20 Eliz. C. B.
Anon.
3. A Copyholder did allege the Cuftom to be, That the Lord of the Supplement
Manor might grant Copies in Remainder with the A/fent of the Tenant s,'^2'^°,r'^'^^'
iind not otherwife, and that Copies in Remainder otherwife granted "''^l^g',* '■
Ihould be meerly void. The Quellion was, Whether ic were a goods. C and
Cuftom? The Jullices did not deliver any Opinion in the Point. rays.Qusrs
Shuttleworth Serjeant faid, that this Cuftom might have a lawful Be- ^'^= p^*^ '
ginning, and it feems to be grounded upon the Reafon of the Common j^°Jj",j^^y.j.
Law, that a Remainder Jhould not be without the Alfent of the parti-
cular Tenant, and therefore it is a good Cuftom. Ic was adjourned.
Godb. 140.pl. 171. Mich. 31 Eliz. C. B. Anon.
4. A Cufiom was, that a Copyholder of Inheritance might make a Letter
of Attorney to z jointly and federally, to furrender his Copyhold Lands in Pee
to certain Ufes after his Death. It was refblved, that the Cuftom was a
void Cuftom, becaufe by the Death of the Copyholder the Lands were
fettled in the Heir, and an Authority given to diveft him was noc
good. Supplement to Co. Comp. Cop. 85. S. 19
5. If the Lord have tifed certain Work-Days of his Tenants, and that has
net been ufe d by the Space of 20 liars lajlpafr, yet that Non U/er is no
Difcharge to the Tenants, io that there be any in Lifi that can remember
I he fame. Cakh. Reading 25.
6,
T.-'"
1 88 Copyhold.
6. If the Tenants have iifcd to pay to their Lord every ^th Tear a double
Rent, and every 6th fe.tr an halj Rcnt^ this is a good Inter-Uler. Calch.
Reading, 26.
7. If the ("uflonl is, that if the Copyholder dies without Heir, that then
the eldejf Tenant of that Name, of the [aid Manor, (hall have his Land,
this is a good Cuibm, and contains in itfelf fufficient Certainty. Calth.
Reading. 3 i.
8. Cuftoms and Prefcriptions w///? ^f ^^a-ord'/^^ to ccmmoft Right, that
is, to prefcribe to have fuch Things as is their Right and Realon to
have, and not by Cuftom of Prefcription to claim Things by way of Ex-
tortion, or thereby to exaft Fines, or other Things of his Tenant,
without goodCaufe or Conlideration. Calth. Reading, 33.
9. If the Tenants have iifed when they Sow their Lands to pfiy the
Lord Rent-Corn, and when it lies in Pafture to pay their Rents in Money,
this is a good Inter-Ufer. Calth. Reading, 25.
Gilb Trear. jq. Cullom, that after the Death of the Tenant for Life of a Copy-
1- ^o"v?°''hold, the Lord is compel/able to make an EJiate to the eldeff Son for Life,
thaHt is a ^"'^ 'f ^^ ^'^^^ w" '^^'^ ^° *^^ Daughter, and fo in Perpetuum. Pophara
void Cuftom.and Cook were of Opinion, that the fame was againft Law, it being to
beciafe it compel the Lord to make a Grant, but otherwile where he is only to
obliges tiie make an Admittance. Mo. 788 pi. loSS. 4 Jac. in the Star-Cham-
Lord wlio , T A r- ^ n c
has rhc In- ber . Ld. Grey s Cale.
tcrcft, to
grant it to this or that particular Pcrfon, whether he will or not.
S. C cited II, Cuftom that if a Copyholder in Fee marries a "Wife, if the Wife fur-
*^f'n' '^^^^l' vives She fljall have the Fee, et fie e Converfb, and agreed to be good.
' ' 'Noy. 2. cites Taanton Ddxn Cultom's Cale.
Roll Rep. 12. Cullom, that Copyholder for Life in Estretnis may nominate his
lij- pi ■• Succeffor to have the Copyhold, paying a reafonable Fine to be agreed upon
the Cuftom" h' ^^^ Lord, or if that (ail to be ajfejfed by the Homagt, and a good Cuf-
to be, that tom. Noy. 2. citcs Yelmeiler Cultom's Cafe.
every Copy-
holder for Life may nominate who fliall have it for Life after his Death ; Coke and Doderidge faid,
that this had been adjud^'d a good Cuftom in B. R. and in C. B. Ibid. 195. pi. 57. S. C. and Judg-
ment per tot Cur. againft the l^Iuntirt. Gilb. Treat, of Ten. 505. cites S. P. as good, for it is
a Right and Intereft vefted in the Tenant for Life ; fed Quasre.
4Le. 257_pl. 13, By an efpecial Cuftom within the Manor, a Copyholder may
c'r s c" ^^^oint OT nominate, in the Prefence of two Tenants of the Manor, or other
but the Te'- ^ fufficient VVitncffes, whofhall have his Copyhold Lands after his Deceafe,
nants ought and alfo that they may appoint what Fine the Lord f hall have for the Admit-
mt tuaffefs a fance of the Tenant, fo it be a reafonable Fine, and fuch Difpolition of his
'jT" '^'''" ■'"r J Lands and Appointment of Fine Ihall be good by the Cuftom, but yec
t"ie'taid" after fuch Difpolition made, the Party who is to have the Land mull
■where the U. in Perfon come into the Lord's Court, and pray to be admitted unto
■'xeMW«/p/j a the fame; and fo was it very lately adjudged in C. B. both tor the
Teafonabk Point of the Cuftom, that it was a good Cuftom and Admittance. Sup-
iud'^'da good plemcnt to Co. Comp. Cop. 83. S. 18. cites Mich. $ Jac. inB. R. Bale's
Cuitom. Cafe.
Such Cuftom 14. It was ruled by the whole Court, that if a Cufiom be alleged,
Oiall be that the eldejl Daughter ft^all folely inherit, that the eldejf SiJ} er ihzM
if "'sup- "O"^ i"^^'"''^ ^y ^°'"'^'= of ^"^^^ Cuftom. Godb. 166. pi. 232. Pafch.
plemcnt to 8 Jac, C. B. Rapley v. Chaplein.
Co Comp.
Cop 8.i. S. 19. cites S. C. ■ 4 Le. 241. pi. 59^. Ratcliffe v. Chaplin, S. C. and Coke Ch. J. faid,
iliac there are two' Pillars of a Cuftom, one the Common Ulage, and the other, that it be Time out of
iMiiid, and therefore upon the Evidence given to the Jury the Court inforced the Parties who main-
rai!K-d the <.uftom, to ihew Precedents in the Court Rolls to prove the Ufag.', and he faid, that
vithout
Copyhold. 189
tvithout luch Pioof, and that it had been put in Ure, although it had been deem'd and reported to
have been the true Cuftom, yet the Court cannot give Credit to the Proot by Witncfles.
15. So if the Cuftom be that the eUeJl Daughter and the eldeji Sifter 1, Le. 242
fhall inherit, \h>t eldcft Aunt jh all not \v\\\^x\x. by that Cultom. Godb.^|9^- S_c-
166. pi. 232. Pafch. 8 Juc. C. iJ. Raplcy v. Chapidn. gi-ej-cl p^j.
Cur.
16. So if the Cuftom be that xhz yoangeft "^on fhill inherit, the yor/;/^- 4 Le. 242-
er Brother ihall not inherit by the Cuftom i and Fofter J. faid, that fo^3j'^,^ffl ^_
it was adjudged in one Dencon's Cale. Godb. 166. pi. 232. Paich. (ji^^pUn^ '
8 Jac. C. Ji. Rapley v. Chaplein. S. C. 65
S. P. agieed, per Cur.
17. Cuftom, thn if d Copyholder will fell his Copyhold Eft ate ^ that ^(^ Brownl.'
ivhich IS next of Blood to him Jh all have the Refufa/, and if none of his]^^- ^■^'
Blood, then he -which inhabits m the near eft Part of the Part of the Ground ^^^ '^^^
Jhall have it before a Stranger, i''ving for that as much as a Stranger 'would, appear. .
and the Lord /hall have him for his Tenant, whether he will or no ; for itCilb. Treat.
Ihall be intended, that fo ic was asireed at the iirft, and it is reafonablCjOfJ^s"- i°7-
and if ic had not been ruled and adjudged before, yet he conceived it^^^^ ,^^y^.*
might now be a Rule and adjudged, infomuch that ic is fo reafonablejt (bems'that
and good i Per Warburcon J. 2. Brownl. 196. Trin. 10 Jac. C. B. inthe Keafon-
CafeolRowles v.Mafon. ableneu of
a Cultom
is to be confidered, not from the Rules and Maxims of the Common Law, (for tliere is no Culfom
bui what in fome Point or other overthrows the Common Law) but from the Conveniency of the
Thing itfelf ; As if there be a Cuftom that a Copyholder fhall not put in his Beafts to take the Com-
mon before the Lord has put in his, this is a void and unreafonable Cuftom, becaufe it is in the Pow-
er of the Lord by this Means to take away the Intereft of his Commoners,
iS.UponEvidence it was admitted by the Court to be a good Cuftom, Gilb. Treat
that anExecutor or Jdminiftrator frail have a Tear in the Land of a Copyholder °f '^c"q'°5
againft the Wife that Claims her Frank-hank or durance Viduitate. Noy.
29, Hill. 15 Jac. C. B. Rennington v. Cole.
19. The Cuftom of a Manor was, that the Land was demifable for 21 S. C. cited
Tears, paying the treble Value oftheRent, and if he died within the Term,that Gilb. Treat.
the 7'ermjhould be to his Heir,paying a Fine certain of one J'ear's Rent, and if he °^ '^^"- ^o/-
ajftgned it, th e JJignee to have it for a Fine of one Tears Value of the Rent, mentto^Co^*
and that he who had it might by the Cuftom renew it for 21 Tears, paying Comp. Cop.
3 Tears Value, and the Cuftom was admitted per Cur. to be good. 85. S. 19.
Cro. J. 671. pi. 2. Mich. 21 Jac. B. R. Page's Cafe. cites S.C.
20. Cuftom of a Manor, that the Steward tnight viake Laws and Ordi- Jo. 421. pi,
nances for the better ordering the Commons, and to affefs a Sum by way of 9- S. C. &
Penalty on thofe Tenants who broke thofe Orders, and alfo to prefcribe bmE^x^ce -"
to diftrain for that Penalty ; the Steward made an Order^ that he who tion ^^^ j^.
Ihould put his Cattle beyond fuch a Boundary fhould pay 3 s. 4d The ken as to
Plaintiff James oftended againft this Order, and thereupon a Penalty other Mat-
was afTeffed on him, for which Tutney, the Defendant, as Bailift; of [[^'^''^"jjj'^^
the Lord, diftrained, and in Replevin made Cognizance for the taking, (jif^g^gj ^
&c. Adjudged, and afRrmed in Error that this was a reafonable Cuf- Cro. C, 497.
torn, for it did not take away the Profit of the Commons, but this Or- p'- 2. James
der fets Limits, and Bounds to them. Mar. 2S. pi. 64. Trin. ^- J"^"^^'p
15 Car. James V. Tintney. adju'dg'd and
affirmed in
Error. Gilb. Treat, of Ten. 0,06. cites S. C. and that the Cuflom is good ; but that an Order
that a Tenant fhall not put in this or th.it E5eafl is void, becaufe it takes away his Inheritance ; bat if
it were that he fhould not do it before fuch a Da v, that is a good By-Lnw, being not rettridlive of his
Inheritance, but only directive of it. See Tit. liy-Laws CA. 2) p!* 14.
C c c ii. Th«
1 90 Copyhold
Gii!i. Treat 21. The CliIIvMii was, that if c Copyholder fiijfer his Hoitfe to be out of
"f ■^^"•j'°' Repair^ that hi might be amerced^ and that the Lwd might dtjlrain his
^..-^Li;„„\^--Ti^^"^s Cattle, and likcwife the Cattle of any Under-Tenant. levant and,
tor tlie Uii- cmicioant on the Copyhoid Lands, tor the laid Amerciament, which was
(isr-Tcnant done accordingly. J3ramllon Ch. J. held, that this was a good Cuftom •
jsnot a mere for the Cullom that gives the Diltrefs knits it to the Land, and therefore
tranger. ^^^ merely Perfonal ; And it the Cultom had not extended to theUnder-
Tenant, yet he might have dillrained him^ For otherwife the Lord
by fuch a Device of making a Leafe for one Year by the Tenant he
Ihould be deleated of his Services, Mar. i6i. 164. pi 231. Hill, i^ Car.
'I'horne v. Tyler.
22. The Cultom of a Manor was, that if a Copyhold Tenant did ftiffer
his Mejjuage to be ruined for want of Reparations^ and the fame be prefent-
ed m Court by the Homage^ that fuch a Tenant fhoald be amerced^ and that
the Lord had ufed to dijtrain the Beafls as well of the Under-Tenant as of the
Tenant himfelj, which were le-v.:nt and coiichant upon the Lands ^^ for fuch
Amerciament. It was faid, that the Cuftom was not good, but unrea-
fonable, to diftrain a Strange 's Caciel, fuch as the Under-Tenant was j
but it was refolved, that the Cullom was good i for the Under-
Tenant, altho" he was but Tenant for a Year, yet he fhould have all
the Benefits and Privileges which the Copyholder bimfelf iLouId have
had, & Qui lentit Commodum fentire debet & Onus, and he is diltrain-
able for the Rents and Services due and payable to the Lord, and the
Charge lies upon the Land, and not upon the Cullom, and therefore
the Cuftom is good. Supplement to Co. Conip. Cop. 85. S. 19 cites
Pafch. 17 Car. in B. R. Thorn v. Tyler.
Gilh. Treat- 23. Copyholder of Inheritance made a Zt^r^r o/^yf/ZorOTv to 2 &c. to
^\'T^t'a-'i,\o-farrendcr his Copyhold Lands after his Death to certain Ufes^ accord in<^
cucsS. C. j.^ j.|^g Cuftom of the Manor &c. Adjudged, that this is a void Cuftom*^
becaufe 'tis to convey Lands againft the Rules of Law tor conveying
Copyholds, for that muft be either by Surrender into the Hands of the
Lord, or into the Hands of 2 Cuftomary Tenants, to the Ufe of his
Will, which muft be executed in his Life-time, Nelf Abr. ^0,6, ■
pi. lo, cites Sty. 311. Hill. 1651. B. R. Wallis v. BucknaJI.
24. Suppofe that there was a Cujiom, that if the Houfe of a Copyholder
falls, the Materials pall he the Tenant's., Powell J. ask'd, if that could
be good? II Mod. 94, 95. pi. 3. Mich, j' Ann, B. R. Anon.
(A. e. 4) Cuftoms unufual, and interfering.
Good or not.
I. f 1 ^ HE Manor of Wadhurft in the County of Suflex conf.Jlsd of z
JL Sorts of Copyhold, viz,. Sock- Land an4 Bond- Land ^ and by fe-
veral Cuftoms diffeverahle in feveral Manners ; As it a Man be firji ad-
mitted to Sock-Land., and afterwards to Bond-Land.^ aud dies feifed of
both, his Heir Ihall inherit both i hit if he be fir fi ^dmittdi to Bond-
Land .,and afterwards to Sock-Land, and of them dies feifed, his youngeft
Son ihall inherit, and if of both fimul & femel, his eldeft Son Ihall in-
herit ^ but if he dies feifed of Bond-Land only, it Ihul! delcend to the
Youngeft i cited by Anderfon Ch. J. i Le. 56. pi. 70. Pifch 29 Eliz..
C. B. in Cafe of Kcmpe v. Carter.
fB. e)
Copyhold. ipj
(B. e) Where a Copyhold fliall be fald in by Defcent
or Purchafe.
I. T F tht Father purchiifes [Copyhold] and dies before Admiffion^ hisGilb. Teear.
X Heir Ihall be in by Purchafe j per Nudigace J. 2 Sid. 38. HilJ.°?'r^"- ^7'-
g._ cites S. C.
■''■ and fays,
, . . „ that accord-
ing to this IS Roll. [See Roll Defcent ([ ) pi. 9 ]
2. But Ibid. 61. in S. C. Glyn Ch. J. held, that if a Man^ feifed of GWb. Treat.
Copyhold Land m Fee of the Cnfioiii of Borou^h-Englijb^ furrenders according o^ Ten. 2-1,
to the Ciijfom to the Ufe of J. S. and his Heirs, f. S. having Ifjue z Sons^X'l: '^"^^
dies before Admiffion ^ it feems that the youngeit Son ihdi have the Land,a-^o'.^n^'l^*
becaufe he is in Defcent, or at leall by Force of the firlt Surrender, and by Glynf
fo in Nature oi a Defcent. and fays,
thar fo are
fome other Opinions that are more late, and that therefore it was held, if Land, of the Nature of Bo-
rough Englifi, hefurrtiidnd to one avd his Heirs, and he dies before Jdmittance, that the ycungefi Son [l^all
be admitted, and this Opinion feems to be very reafonablc, for Heirs were in the Limitation certainly as
Words of Limitation, and not of Purchafe ; and certjinly there is as much Reafon to adjiidze the
Heir in by Defcent here, as there is to adjudge an Heir in by Defcent where a Recovery was had a-
gainft the Anceftor, but not executed until after his Death, becaule the UCe might have vetted durint'
the Life of the Anceftor, and becaufe the Execution hath a Retrofpecl ; and in Truth the Cafe oi a
Surrender is juft the lartie ; for Admittance might have been in the Life ot an Anceftor, and when it
•was had, it hada Retfofpeit.
(C. e) Defcent. How. And where there fhall be
Pofleffio Fratris.
1. A Copyholder in Fee had IJpie two Daughters hy divers Wbmen^ and^^^ Re-
y^, died fetfed; the Daughters entred and took the Pro/its many Tears, ^^"l'^'^'' " '^
and before Admittance the eldefi Daughter died without I ftie, and after- tioJ^of^f^^^J
wards the youngej} was admitted to the -whole Land, as foie Heir to the Law, and
Father. In this Cafe it was holden, that the Pofleffion of the eldefi the Eftate of
Daughter, though before Admittance, Ihould make her Si iter, though|,^*^'''^S'-
of the half Blood, inheritable to the Land. Supplement to Cp, Comp. det''erm'in'd^'*
Cop, 71. S. 5. cites Dy. 29 I. 12 Eliz. tliatany"can
take Advan-
tage of ir, for the Lord againft this Leafe by Deed indented cannot enter, or claim any thing, and
the fecond Sifter, although fhe hath not agreed, yet ihe cannot enter during the Life of her elder Si-
fter, for her Remainder takes Efteft in PolTeffion after the Death of her faid Sifter; But if any fhould
take Advantage ot it, it fhould be the Lord, if his Deed indented did not ftand againft him ; And af-
terwards Judgment v/as given againft the younger Sifter. Clench J. was of another Opinion, viz..
that the Entry of the younger Sifter, notwithftanding that her eider Sifter- was alive, waslawfuls
Qua:re of that. 2 Le. 75. pi. 97. Trin. 28 Eliz. B, R. Curtife v Coitell.
2. If a Copyholder has IfTue a Son and a Daughter hy one Venter, and
a Son by another Venter, and dies^ and a Guardian is admitted, this is
Polil-flio Fratris of the elde£l Son to make the Brother [Sifter] Heir ^
But if the Cuflom he, that the Lord may, during the Nonage of the Heir,
devife \_demife] it by Copy to a Stranger, this is not Fofleffio Fratris of the
Eldeft. Dal. no. pi, i. 1 6 Eliz. Anon.
3. Hisha.id
i^z Copyhold.
4 Le. 38. 3. Hiisbaud and Wife, feifed in the Right of his Wife of certain culto-
pl.'°3- mary Lands in Fee j lie and his Wile iy Licence ot the Lord make a
Vf^C^B Leafefor Tears by Indenture, rendring Renr, having Iffiie twoDaughters;
Ailon. S. C the Husband dieih ; ihe li'ife takes another Husband, and they have Ijj'ue
intotidem a Son and a Daughter j the Husband and Wile die^ the Son ts admitted
Verbis. ^q jj^g Reverfion, and dieth "without IJfue. It was holden by Man wood,
4 Le. 212. ■j.j^^j. |.j^jg Reverfton pall defcend to all the Daughters, nocwithftanding the
\\v±.io Half-Blood ; for the Eltate for Years which is made by Indenture by
Elii.C. B. Licence of the Lord is a Demife and Leafe, according to the Order of
S.C. in toti- [he (Common Law, and according to the Nature of the Demife, the
bis"L^ Poffeffion fhall be adjudged, which Poirelfion cannot be faid PolielFion
If rlie Lenfe of the Copyholder, for his Poffeffion is Cuftomary, and the other is meer
jcr Tears de- Contrary, therefore the Poffeffion of the one IhaJl not be faid the Pol-
urnihies, feffion of the other, and therefore there is no Poifellio Fratris in this
"p'^iteVdfr ^^^^ ' ^""^ '^" ^^ '^^^ ^^^" Guardian by the Cttjiom^ or this Leafe had been
ll\liTt:n- 1^1^^^^ h' Surrender, there the Sifter of the Half-Blciod ihould not inherit j
try, the and Mead faid, that the Cafe of the Guardian had been fo adjudged j
younger Mounfon to the fame Intent ; and if the Copyhold dticend to the Son,
Biothcr j^g jg j^Qj Copyholder before Admittance, but he may take the Profits,
ritftol ' and punilh Trefpafs &cc. 3 Le. 69, 70. pi. 106. Mich. 20 £iiz. C. £.
V'hen he has AnOn.
once f^ot
PolTcflion, which he had by the Poflcffion of hi.s LefTee for Years, then it feems he has made the E-
Ihte delccndibk to him and his Heirs. Gilb. Treat, ot Ten. 150. cites Supplement to Co. Comp.
Cop. 114.. Q\ix perhaps it will he faid, that the Poffeffion of the Leffee for Years is only the
Pofftiffion in [.aw of the Brother, and not in Fact, becaufe he can get no Poffeffion, and it would be
inconvenient to c.irry the Eftate to another Family, if the elder Brother die before Entry, but when
this Ellate for Years is ended, then fince he may get a Poffeffion by Entry, it is required by Law ;
But then on the other Hand, if by the Poffeffion of the Leffee for Years, he had no Eliate deicendi-
ble to him and his Heirs, how comes this Eftate to be devefted by the Expiration of the Leafe for
Years ? It is ur^ed on the other Hand, that Poffeffion was but feigned, and is now gone ; but yet, if
the Brother were once in PoiTeffion, and then were diffeifed, it feems the Sifter fhould inherit, tho*
the Poffeffion of the cider Brother were gone ; but the Poffeffion of the Lejfee was the Brother t Pojfejjivn
oTily, by Siitpifition of Ln<w, to help him out where he could get no Poffeffion, and therefore '.vhen that Ejiate
Jor Tears ij gone, the Law removes the J£! fiance it gave before, becaufe notv he may get Poffeffion, and lb fets
the Matter between the rtrothers, as it would if there had beeti no Leafe for Years. Ideo Qiisre de
hoc. Gilb. Treat, of Ten. 150, 151.
Mo. 272. in 4.. A Copyholder of Inheritance of the Manor of Fulham had Iffue a
P'- 4^.5j ^=""Son and a Daughter by one Venter, and a Daughter by another Venter,
?hItPoffeffio^"d died, his Son being an Infant of two Months old, and the Copyhold
Fratris by in Leafe by Licence for 12 Tears, rendring Rent ; the Death of the Co-
Entry be- py holder was prefented, in the Infancy of his Son and Heiri afterwards,
fore Ad- rtefore any Rent-Day incurrd, and any Admittance or Guardian ajjigned)
beSow'd the .yow ^/^^; and the Queftion was, whether his Sifter of the whole
and adjudged Blood fliall inherit ; and adjudged, that the eldeft Sifter only is Heir,
in a Cafe in and that the Defcent of the Reverfion, upon the Leafe for Years, and
r r'"^' *" J before Day of Payment of the Rent, is Polfeffio Fratris, quse facit foro-
muchbe"-''^ rem effe Hjeredem. Moor 125. pi. 272. Trin. 23 Elii. Rot. 1229.
tweenAU^ Anon.
derman
Dixey and others. D. 291. b. Marg. pi. 69. cites 2; EH/.. Rot. 1229 H'oInifS t). jpepncl, ad-
. judged that the I'offeffion of a Termor ftiall be the Poffeffion of the Brother without any Admutance ;
For the Seifin given to his Anceftors fuffices for him and all his Heirs, but he is not Fenaat to the
Lord till he is admitted. 4 Rep. 21. a pi. i. Mich 2; & 24 Eliz. C. B. Brown's Ca!e, S. P and
feems to be S. C. and refolv'd. — Ibid. 22. b. the thii-d Rerolution,'thar where the cuftomary Eftite of
Inheritance defccnds to the Heir, he may enter and take the Profits before .'\dmiiiance, and that there
fliall be Poffeffio Krarris before Admiitance upon adlual Pofft;ffion, as in the Ca'.'e at B.ir, [where the
Father had made a Leafe for Years, as in the principal Cafe.] But in a like Cafe, where the Soa
was admitted to tiie Reverfion, and died without Iffue, Alanwood held, thit this Reverfion fliall
defcend to all the Dilughtcrs, notwithftanding the Half-Blood ; For the Eftate for Years, which is made
by Indenture by Licence, is a Demife and Leafe, according 10 the Order of the Common Law, and
the Poffeffion fliall be adjudged accordir.gly, which Poffeffion cannot be faid the Poifeffion of the Co-
pyholder .,
Copyhold. ip-i
pvliplder; For hi-; PodcfTion is r\i(}iiniary, and the other is nicer contr.iry, and fn the PoiTcfJion ofrhc
O'lC, fhall not be f.'d the PolT-!Tinn of the other, nnd rhereforc there is no Pol1t:(iio Fratris in this
CiTe ; Bur if he h id heen Guardian bv t!ie Cuftoni, or this Lea'e liad been made by Surrender, there
the Sifter of the Hilf P.lood fhoiild not inherit, and NleaJ faid, that the Cafeof the Guardian had been'
fo adiudped ; And Mounfon to the fame Intent ; And if the Copyhold defcetids to tlie Son, he is not
Copyholder before Admittance, but he make take tlie Profits and punifli Trefpafs &c. ; Le. 6q, 70.
p! lort Mich. 20 Eli?. C. R. \nnn d Le. qS nl. 10;. S C. in totidem Verbis. ^'Ibid. zi2. pL
545. Pafch. 17 Eli-.'. C. B. S. C. iti totidem Virbis j fedadjornatUr.
5. If A. be rdfed of Copyhold Land on the Part of his Father^ and of other
Copyhold Land on the Part of his Mother^ and thereot'dieth jeifcd, and
his Son and Hen- be admitted to tt by one Copy, and by one Admittance^ now
if that Son dieth -X'ithont Iff lie the Copyholds Jhall de'fc end fever ally ^ the one
to the Heir on the Part of his Father, and the other to the Heir on
the Part of his Mother &c. per Clench J. 3 Le. 109. pi. 15S. Trin. 26
£liz }j. R. in C.ife of Taverner v. Cromweli.
6. If a Cijpyholder in lail have Ifflie a Son and a D.inghtc'r by one Venter^
and a Son by another Venter^ and dies, and the Son by the firji Venter en-
ters^ and dies, the Son of the zd Venter /ball inherit. Co. Conip. Cop. 59.
S. 50.
7. If a Copyholder in Fee-fimple have Wqq^ Son and a Daughter by
one Venter, and a Son by another Venter, and dies, and the Son by the fir il
Venter enters and dies, the Land iliall defcend to the Daughter ; Quia
Polleflio Fratris de Feodo Jimplici facit foforem elFe Hsredem. Co.
Comp. Cop. 59. S. 50.
8. If there be three Brothers, and the middle Brother pnrchafes a Cr-
fyhold in Fee, and dies iiUthoHt Iff'iie, the Kldejl fhall inherit, becaufe the
Worthieft of the Blood. Co. Comp. Cop. 59 S. 50.
10. If a Man have Iflue a Son and a Daughter by one Venter, and a
Son by another Venter, the eldcfi Son pnrchafes a Copyhold in Fee, and dies
without Iff'iie, the Daughter fliall have the Land, not the younger Son,
becaufe he is but of the Half-Blood to the other. Co. Comp. Cop. jp^.
S. so.
11. If a Man has a Copyhold by Defccnt on his Mother's Side, if he die
without Iflue, the La.nds pall go to the Heirs of the Mother's Side, and
pall rather efcheat than go to the Heirs of the Father s Side ; But if I pur-
chafe a Copyhold, and die without Ifne, the Land pall go to the Heirs of
my Father's Side ; but if I have no Heirs of my Father's Side, it Jhall go
to the Heirs of my Mother's Sidcj rather than efcheat. Co. Comp. Cop.
59- S. 50-
12. If there be Father, Uncle ^ and Son, and the Son pnrchafes a Copy-
hold in Fee, and dies without IJfue, the Eldeft fhall inherit, and not tl>e
Father, becaufe an Inheritance may lineally defcend, but not afcend.
Co. Comp. Cop. 59. S. 50.
13. If there be two Copartners, or two 'Tenants in Common of a Copy-*
hold, -iXidi one dies, having IJfue, the I ffiiefjall inherit, and not the other,
by the Survivorfhip ^ But otherwife it is of two Jointenants. Co. Comp.
Cop. 59. S. j'o.
14. Cuftom wasj that after the Father'sDeath, if there was no Son,the^''^,5'^7- P'-
eldeft Daughter fhould have the Lands for Life only, and then thea^-^j" ^
Lands fhould remain to the next Heir Male that can derive, by the
Males J and alfo, that the Wife fhould hold for her Life, Tenant dies,
and leaves two Daughters. Wife enters. Eldefl Daughter dies. Ad-
judged that xXie yomgeji Daughter fhall have the Lands within the Cu-
llom, for though fhe was not eldefl at the Death of her Father, yet Ihe
liiaseldeji at the Death of her Mother, and her Eftate was a Continuance
of the Eflate of the Baron till her Death, as in the Cafeof Frank- Bank.
Lev. 172. Trin 17 Car. 2. B. R. Newton v, Shalto.
D d d is. Tha
] ^A . Copyhold.
Mod. loi. 15. The Father beir.g feifed of a Copyhold, bad Ijfue three Daughters .
pl.S.SC. hyhisJirJllViJe.y and fwo Daughters and a Son by his fecondWije, and
biscno'' ftirrcndred to his three Daughters for eleven Tears, Remainder to his t'-jio
—Ibid 120. Daughters for five 2 ears, Keniainder to his three Daughters by the firjt
pi. 22.S. C. iVife^ Remainder to his own right Heirs -, The Father died , The three
& S. P ad- Daughters were admitted ; The Sou died j Jfter which the eleven Tears
judged ac- g^pired j Adjudged, that the Admittance of the three Daughters was
cording y. ^^^^ Admittance ot the Son in Remainder as Right Heir, and lb an ac-
tual Seifin in him which made a PoUelfio Fratris, by which the Copy-
hold defcended to his two Sifters of the whole Blood to him, and not "to
all his Sillers, as Heirs to their Father. 2 Lev. 107. Trin. 26 Car. 2.
B. R. Bhickburn v. Greaves.
• 16. W, R. was feifed of Copyhold Lands that were defeiidibk fe-
candumGavelkind, and the Wife endowable of a Muiety. W . h^s Ifjiie H.
by one Venter, and J. and E. by another Venter ; W dies, the Wife enters
into a Moiety ; the two Sons enter into the other Moiety, and were admitted
to the Reverfion of theWife^s Adoitty ; J. the Son by the fecond Venter dies;
The Wife dies. The Qjjeftion was, whether this Admittance to the
Reverlion lliall fo attach it in the Brother, as that theSilterihall have it
before the Halt-Brother ; and it was argued, that fne Ihall not ; for it is
found, that after the Death of the Father the Mother entred, and fo the
Son was never feifed, fo that this Cafe is Itronger than the C^fe 1 Inlt.
31. a. where the Son enters, and endows theMother,and yet that Ihall fo
defeat his Polleliion, that there Ihall be no Poffeffio Fratris. To which it
was anfwered, that it being tound that the Son was admitted, it Ihall
be intended according to the Cuftom, and then the Eftate Ihall be guid-
ed by the Cultom, and not by the Rules of Common Law j and he cited
two Cafes, where the attaching of a Reverlion upon an Litate lor Lite
doth feem to be a fufficient Seifin to convey the Land to the Heir of him
in whom the Reverlion was fo attached, viz. iCro. 411. Roll Tit.
Defcenc, 623. Godfrey v. Bullan. Vaughan faid, ail Cultoms are con-
trary to the Common Law, and therefore ihall be taken lhi6Uy, and
here is no Cujfom that a Reverfion (Ijall defcend in Gavelkind ; And Atkins
Jullice laid, thit in thofe Cafes cited for the Daughter, there was no
Maxim of the Common Law, as here is, viz,. Poliellio Fratris &;c. and
then he that takes Advantage of it mult be qualified, according to the
Common Law. Judgment againft the Daughter Def nili Caufa. Freeni.
Rep. 45, 46. pi. 55. Trin. 1672. Foxe v. Smith.
17. Since by Cultom an Elfate at Will is delcendible, the Defcenc
is ordered and governed by the Rules of the Common Law ; For thofe
Reafons, that govern the Defcents at Common Law, are drawn from the Na-
ture of Defcent and Difpojition of Eflates after the Owner's Death, and are
grounded upon thofe Reafons that feem to warrant fuch a Difpofitton of the
Rfiate, and are not taken from the Nature of the Land or Ifhing that isd:!'-
pofedof, and therefore may as well, and with as good Reafon, oe applied to
the Difpofitton of a Copyhold, as Freehold Efiates, fince it is not the Na-
ture of the Thmg difpofed of, that is to rule or govern either in one
Cafe or in the other; And therefore where a * Copyholder by Licence
made a Leafe for Years, and the Leflee entred, and the Leifor died,
having Illue a Son and a Daughter by one Venter, and a Son by ano-
ther, then the eldelt Son dies, it was adjudged that the Daughter'ofthe
whole Blood iliould inherit, becaufe the Poffeffion of the LeIIee for
Years was the Poilelfion of the elder Brother, who may have PoUellion
before Admittance, for in that Cafe he v»as not admitted -, for if it be
rcafonable in fuch Cafe at Common Law to keep the Lihericanceout of
the Half-Blood, fo it is in Copyhold Ettatesi but if the Brother do
not get Pollellion, the Siller cannot inherit, lor then he hath only a
Right
Copylioid. 195
Right to the Lands as Reprefentative of his Father, which Right flie
is not capable of having, becaufe flie is not Reprefentative of the Fa-
ther ; But when he has gotten Poflcflion, he hath then an Eltate in the
Lands defcendibie to him and his Heirs, and the Siller is his Heir,
and though he has the Lands as Reprefentative of his Father, yet he
hath them to him and his own Reprefentatives ; But when he never
got Poffelfion, he never executed the Power he had of taking the Lands
to him and his Reprefentative, fo that this Power devolves upori the
younger Son as Reprefentative of his Father, tor the Law gives the
Eitate to him and his Reprefentative, who is Reprefentative of the
dead Perfon. Now when he that is Reprefentative to the dead Perfon,
doth not get actual Poflelfion, and fo veft the Eftate in him and his
Heirs, he hath no Power over the Lands, and therefore can make no
Leafe or Difpoinion of them by Feoffment, becaufe though he hath a
Right to be abfolute Owner of the Lands, yet is he not aSlually fo till
Entry, becaufe till then in Faft he hath, no Polieffion, and therefore
there is noReafonby a Fiftion of Law to create him a Pofleifion ; and
fo he never having had th.e Lands to him and his Reprefentative, he
mull take who is Reprefentative to thedead Perfon, which is the younger
Brother, and this alfo may be a Reafon why he that claims by Defceat,
muft make himfelf Heir to him that was lait a£lually feifed of the Free-
hold. Glib Treat, of Ten. 147, 148, 149.
(D. e) DiiTelfin. What is.
I. "VT OTE, it was holden by the Court, that // a Copyhohhr in Fee
j_\| diethfcifsd^ and the Lord admits a Stranger to the Land, "who
entretb, that he rs bat a 1'enant at TFiIl, and not a Dijfeifjr to to the Co-
pyholder, who hath the Land by Defcent, becaufe he cometh'in by the
Allent of the Lord &c. 3 Le. 210. pi. 274. Trin. 30 Eiiz. in B. R.
Anon.
2. A Leafe for Tears by a Copyholder * {withmt Licence'] although it be* Lat. 199.
a Forfeiture, yet it is no Dilleifin to the Lord; Agreed per Cur. NoyS- C.&S. P.
92. Trin. 2 Car. B. R. Afhfieid v. Athfield. ^S''^-'^-
(E. e} Dower. In what Cafes the Feme ftall have
Dower. And how recov-ered.
I. npHE Cuflom of a Manor was, that the Lord, or his Steward.
X„ or Deputy, might demife ; the Lord took a m}e, and by his
laji mil m Writing gave Authority to certain Perfons to make Leafes. ac-
cording to the Cnfiom of the Manor, to ratfe Fines for Payment of his Debts
and died ; they held Court in their own Names^ and granted Copies in
Reverfm, according to the Cuftom ; afterwards the Widoiv of the Lord
recovered a ^d Part of the Manor tn Do'wer, and one of the Copyhold Ef-
tatcs^ whereof the Reverfton was granted, -a-as ajjigncd to her by the
Sheriff
J p5 Copyhold.
Sheriff' together ivitb uther Lands^ by Writ &:c. The Court held,
that Ihe fliould avoid the Grant made by the Perfons alligned by the
Will. D. 251. pi. 89. Hill. 8 Eliz, Anon.
Supplement 2. If the Lord ot a Manor where Cultomary Tenements afe demifed^
toCo.Comp and demi fable by Copy &c. according to the Cultom of the faid Ma-
Gop 79. S. nor, for one two or three Lives, grants a Copyhold lor three Lives, and
1 5^cites fakes a Wife, and the three Jj'vcs end, and the Lord eaters and keeps the
gj_] 8 La fid for a Time in his own Hands and afterwards grants them over again
Rep. 65. b. hy Copy, and dies, the Copyholder fhall hold the Land difchargcd of
S. cited per Dower of the Lords Widow ; Per Wray, who faid, thit this is a clear
^H^rT^'d Cafe; For the Copyholder is in by the Cuftora, which is Paramount
rffiiWd^for the Title of Dower and Seifin of the Husband ; And judgment ac-^
good Law cordingly. Le 16. pi. 19. Pafch 26 Eliz. B. R. Cham v. Dover.
per tot. Cur.
She being j. \i ^ Feme be endowahle of a Copyhold by Ciiflom, it was the Opinion
ly^^ '^^'' . of the Jultices that a Leafe made by the Baron by the Cultom afcer the
nZ/fliall Efpoufals, Ihall precede the Dower, and the Dower ihan'c avoid it.
not avoid M0.7j8.pl. 1047. Trin. 2 Jac. Holder V. Farley.
the Leafe
ivithout ati efpecial Citflcon ; tor the LelTVe comes under the Cuftom, and by the Lord's Licence as
■well as the Feme. Cro. J. 56. pi. 15. Farleys Cafe, S, C- Gilb. Treat ot Ten 50:5. cites S,C.
but favs, that if the Leafe was made without Warrant file may avoid it ; And that it Items to him,
that the Feme fhall not in this Cafe be endowed ot the 5d Part of the Rent and Rcverlion, becaufe
Cuftoms ought to be ftriftly purfued, and that is only to be endowed of Land ; Yet it le-ms after
the Leafe ended fhc fliall be endowed, for the Husband did die fcifed (the Pon;(lion of his LelTee
being his own PolTeffion) but it was agreed in this Cafe, that by fpecial Cuftom the Feme might a-
void the Leafe. This, among other Cafes, proves that a Copyholder may difpofe of his Land, and
bar his Wife ot her Free-Bench, unlefs there be a particular Cuftom that he fliall avoid any Alie-
nation &c. made by him, for then the particular Cuftom fliall, as it feems, avoid his Charge, a>
well in the Cafe of Copyhold, as Freehold Eftates, by the Common Law^.
Lev, 154. 4 The Cuftom of a Manor was for the Widow to be endo'js'd of a.
^.^: '^^ Moiety of the Copyholds of which her Husband dy'd feifed; The Huf-
Po'im^"^ band died feifed of lool. per Annum and his Wife was endow'd of
Sed 76. pi. 50 1. per Annum and the 50 1. per Annum defcended to his Heir, who
0. S- C. afterwards dy'd, leaving a Widow. '^Mh.is Second Widow pall be endowed
but not S. P. ^j- ^ Moiety of the Moiety, and fo Ihall have 25 I. per Annum ; Adjudg'd.
i~ac but Raym. 58. Mich. 14 Car. 2. B. R. Baker v. Berisford. j
riot refolv'd.
Ibid. 9. S. C. Glyn Ch. J. held that the fecond Widow was intitled to a Moiety.
5. An Ejeffment will not lie for a third Part of a Copyhold Te-
nement in Nature of Dower, for they ought to levy a Plaint in Nature
of a Writ of Dower in the Manor Court, and the Homage to fever, and
fet out the fame 3 But if the Cuftom had been for the VV^idow to have
; the third Part not in Nature of Dower, but in Common with the Heir,
it were then other wife ; Ruled per Pemberton Ch. J. at the Alfifes. 2
Show. 184. pi. 188. Hill 33 & 34 Car. 2. B. R. Chapman v. Sharpe.
(F.e)
Copyhold. 1 97
(F. e) Entails by the Statute De Bonis &c.
I. ^^^OTE, it was faid for Law that Tail maybe of a Copyhold^
^^ and that Formcdon may lie of it in Defcender by Protejiatiott tn
Ndture of If rlt oj Formedon iit Defcender at Coiniiton Law^ and good per
Omnesjulliciarios ; For though Formedon in Defcender was only given
by Statute, yet now this Writ lies at the Common Law, and it pall be
intended that this has been a Cnjlom there 'Time out of Mind &c. and the
Demandant lliall recover, by Advife of all the Juflices. Br. Tenant
per Copie, pi. 24. cites 15 H. 8. And the like Matter in Ellex
M. 26 H. 8. and Fitzherbert affirmed this after in Camera Ducat' Lan-
calF & concordat Littleton in his Chapter of Tenants by Copy of
Court Roil. Ibid.
2. The Court were clear la Opinion that a Copyhold could not
be entailed witboat {ach aCiiftom to entail it. Mo. i88.pl. 336. Trin,
27 Eli/.. B. R. Hill V. Morfe.
3. K Surrender hy Tenant in Tail is no Dilcontinuance unlefs theLe. i'"/4y
Cufiom is fo, and tho' it was moved that there can be noEftate Tail '75-p'-
of a Copyhold except it be Ihewn that the Lands had been given fo^ ^"'^ & S. P
always enjoyed by the Remainder-men and Rever/ioners^ and that their held by
Alienations did not ufe to bind &c. for othervvil'e it ftalf be intended a V/ray ac-
Fee, yet the Court held the contrary, that it Hull be intended an Ef- cordingly.
tate Tail, and fo always ufed. Cro. E. 148. pi. 17. Mich. 3^ & 3^ piemen" w
Eliz. B, R. Bullen v. Grant. Co. Comp.
Cop. 77. s.
II. citesS. C.held by Wray that it was an Eftjtc Tail, and not a Fee conditional, and that Cus-
tomary Lands may be granted in Tail.
4. Per Gaudy and Clench J. an Eilate cannot be of a Gopyhold ^^Popham &c,
the Statute^ but m^iy by Ufe and Cnjiom^ but per Pophani and Fenner 53- Gi'^ve-
J. contra, that there may be an Eltate Tail by the Statute, per Equi- "o'^v^Brook
tatem Rationis, but it cannot be by Cuftom. Cro. E. 307. pi 9. /Rep_ ^-^
Mich 35 & 39 Eliz.. B. R. Gravenor v. Rake. a pi. 5.
Gravenor
V. Dod S. C. adjudg'd that whether it be Fee fimple Conditional or Eflate Tail it is within the Cuf-
tom. If it is not an Eftate Tail it is a conditional Fee, and fo it was agreed by us all, in the Cafe
of Gravenor V. Rake, per Cur. Cro. E. 575. pi. 20. Hill. 97 Eliz. B. R. in Cafe of Stanton v.
Barnes Copyhold may be entailed by Equity of W. 2. without Cuftom, and is not entail'd by Cuf-
tom. Mo. 5;S. pi 4SS. adjudg'd Dell v. Higden. Upon a fpecial Verdidt the Quefton was, whe-
ther a Copyhold could be entailed wif/jo«/ //y;«^(? iT /jdecv/r/ Cw/oOT for fo doing, and adjudg'd, per tot.
Cur. that it might, and Holt Ch. J. rejefted the Notion of Lord Coke about the Statute deDonis cooper
ratine with the Ctiflom, and held that the Statute turns all thofe Eftates which at Common Law were)
Fee-Simple conditional into Efiatei Tail. 11 Mod. 199. pi. 17. J>lich. 7 Ann. B. R. Adams Vj
Hinclow.
5. The Cajloin of a Manor is, that a Copyhold HJlate may he granted Po^ih. 55;
in Fee-Jimple; in that Cafe it was adjudged, that an EJlats thereof grant-'^'^'"^y^^'<
ed to one and the Heirs of his Body is good, and within the Citjiom ; for gj. § q ^^_,
Ubi licet quod ell Majus, non debet quod ell Minus non licere. Sup-judged ac- '
plement to Co. Comp. Cop. 81. S. 16. cites 4 Rep. 36 Eliz. Grave- cordingly.
nor V. Tedd.
6. VV^hen a Copyholder in Fee makes a Gift in Tail with Remain- And that if
deroverin Tail, no Reverjion is left in biui, htit only a PoJ/ibility.y and t'l'^y.'^v"^
the Lord ought to avo-ju upon the Donee, and not upon the Donors ^"^^^"^^^1"'^.
there is a IJifference when he makes or gives an Eitate of Inheritance, ,, the ii;r/
and when he makes an Ellate forLife orYearsi for in the one Cafe he hasc,»w ?^ot cn-
£ e e »
.0
hold.
198
terfo'-Fe.'my,^ Reverlioti, but not in the other. 2dly, A Recovery 'without a fpecial
hut the Do Qi^g„i ji,.iii not he, as was ageed in the Cafe ot the Manor of Stepney,
Xn"cts becaufe the Warranty cannot be knit to fuch an Ellate without a CuC
]l2idbe torn, per Harvey J. Godb. 368. cites it as adjudged in the C. B. 17
dom to the Eiiz,. in Cafe of Lane v. Hill.
Donor, and
nottorhe Lord of the Manor; Per Harvey J. Ibid, cites Pafch. 55 Elii. C. B. Pit v. Hockley.
Supplement to Co. Comp. Cop. 77. S. 11. cites S. G. ba: fiys the coacrary was relblvd, ia
Cafe of Borneford v. Sif John Packington.
Supplement 17. W. W. being feifed of a Copyhold of Inheritance, fiirrendered
^°^°^^°^^-ittotheUJeofh!s/a/fJVill, and having a Daughter then born, and his
2 "''cites " ^^'f^ ^""K ^'^^ Child, he devifed Part of his Lands to the Child in Ven-
S. C. tre fa mere, & Hxredibtisftiis legitime Procreatis, the Rejidue to his Daugh-
ter born, and to the Fruit o\ her Eudy, and if Jhc die -without Fruit of her
Body, then to remain to the Child in Ventre fa mere &c. and wilPd that one
ffooitld be Heir to the other ; afterwards the Wife "was delivered of a Daugh-
ter &c. All the Court agreed, th.it this was an Ertate-Tail in the
after-born Daughter, for the NVords Hsredibus fuis &c. and that one
lliould be Heir to the other, makes it an Eftate-Tail without the
Word (Body) in a Will. Mo. 637. pi. 877. Hill. 37 Eliz. Church
V. Wyat.
S. C. cited g_ Ijj Ejeament for Copyhold Lands held of the Manor of Thifle-
Godb -'63 worth, it was refolv'd by all the Juftices, that there cannot be an Eftate
pl 458! 'tail of fuch Lands, tnilefs there is a fpecial Cuftom within the Aianor
Mich. 2 to Warrant it. Cro. E. 717. pl. 43. Mich. 41 & 42 Eliz. C. B. Erilh.
Car. C. B y_ Reeves.
cited Gilb. Treat, of Ten. 155. and 159.
Gilh Treat. 9. A. Copvholder in Fee furrendred to the Ufe of one in Tail with
of Ten. i5S,diverfe Remainders over, who was admitted, and afterwards furrendred
s'c '^'h *• ^° '■'^^ ^^^ °^ another in Fee, againft whom a Recovery was had in
it is doubted ^^ Copyhold Court, who vouched the Common Vouchee ; Queftion,
wherhera ' ii\ Whether Intail might be of a Copyhold, there being no Cujiom found ?
Copyhold 2dly, jidmittingthzt ; whether a Surrender hy itfelf be a Difcontmuance i
may been- gdly-^ Jf there may be a Common Recovery of a Copyhold to bar the Tail,
Cuihim be- ^''^ ^^^f'^ ^" Remainder ? not refolved. Cro. E. 907. pl. 18. Mich. 44 &
ing found 45 Eliz. B. R. Barry v. Sanderfon.
one way or
the other ; by which it feems plain, that if there hail been a Cuffom found, there had been no S^efiion,
that it mif^ht liave been intailed ; But then there is the Cafe of Ccriflf \3» 3Kii)r0 that an Entail may
be of a Copyhold by Cuftom, but not without it ; there are feveral other Cafe.s Warrant the fame
Diftinftion, as Cro. £. 507. Gravenor v. Rake, and 149. Hedd v. Chalener i Le. 175. Bulleyn v^
Graunt. Poph. 17.8. Rawltnfon v. Green. 1 Sid 2<S3. 314. Newton v. Shaftee. Mo. 657. Churcn
V. Wyat.
10. 36 Eliz. in the King's Bench, it was adjudged, that where thr
Ctiftom of a M^nor was, that Lands might be granted unto any /'.'/ F'ee-
fimpk, in fuch Cafe a Grant of Lands unto a Man and the Hetrs of his
Body was within the Cujiom; For a Cuftom which extendeth to the
greater will extend to the leller Eftate. Supplement to Co. Comp.
Cop. 77. S, 12.
ir. Whether Copyhold Lands are within the Statute Wejlm. 2. cap. i.
Df Donis, &c. ormay be entailed, hath been much cont^-overtcd, and ma-
ny Judgments and Refolutions have been on both Sides, and it feem-
eih to be a Point not fully agreed upon at this Day j I lliall therefore
make fome little Mention what hath beenfaid on either Side, and leave
it to the judgement of others ; And firft fot the affirmative Part, that
Copyholds are within the faid Statute and may be intailed, 1 fluli
begin with Mr. Littleton himfelfi Tenant by Copy of Ccwt-Roll
is
Copyhold. 1 99
is, faith he, where there is a Cuftom of a Manor Time out of Mind
ufed,- that certain Tenants within the faid Manor have ufed to have
Lands and Tenements to them and their Heirs in Fee-Simple or in Fee-
Tail, and in that Chapter he particularly fets forth the Manner of
Cranes offuch Eltates, viz. Ad hanc Curiam venit A. de B. & furfum-
reddiditin Manus Domini &c. unum Mefuagium &c. ad UfumC. & D.&
Hoeredum fuorum, vel Hsredum de Corpore fuo exeunt' Habendum libi
&Hieredibus de Corpore fuo exeunt' &c. by which it appeareth to be the
Opinion of Littleton, that an Eftate-Tail may and might be of Copy-
hold Lands, and herewith agreeth the Opinion of Mr. Plowden, in
his Commentaries in Morgan and Manxell's Cafe; But Note, that the
Opinion otMr. Littleton i.s, that there mult be aCulloni of the Manor
to enable fuch filiates of Copyhold Lands. Supplement to Co. Comp.
Cop. 76, 77. S. 12.
12.lt is laid in 3 Rep. in 3|)CPtlOlt'0 CflfC, that where an A£b of Par-
liament doth alter the Service, Tenure, or Interell of the Eltate, ei-
ther in Prejudice ot the Lord or of the Cultom of the Manor, or in
Prejudice of the Tenants, there fuch an A6t of Parliament doth not ex-
tend to Copyholds, and therefore the Statute of VVeltm. 2 De Donis,
becaufe it extendeth to the Alteration of the Service and Tenure of the
Land, and is prejudicial to the Lord of the Manor, doth not extend
to Copyholds; But in that Cafe it is agreed, that Ly a fpecial Ciiflom
Lands might be entailed, for that it might be, that upon the Creation
ot the Manors, Lands were given by Lords of Manors, to hold by
their Tenants by particular Services, and for particular Ufes &c. to
fome, to them, and their Heirs in Fee-limple, to fome others, to hold
to them and the Heirs of their Bodies begotten, and to fome others for
particular Eltates, as for Life &c. and luch Eltates having continued
in their Iffues Time out of Mind, Cultom. hath now enabled fuch
Eltates to be of Copyholds in Tail ; And altho' they have and enjoy
fuch their Eltates, be it either Fee-limple or Fee-Tail, yet it is but
fecundum. Confuetudinem Manerii, and therefore and for thefe Reafons
and Caufes,rt///57o' that Copyhold be not, or could not he entailed within the ge~
fteral l^'ords of the Statute de Donis &c. jet by Cu/iom Time out of Mind
ufed, they fay that Copyholds may be entailed. Supplement to Co. Comp.
Cop. 77. S. 12.
13. A Cuflom, within a Manor Time out of Mind of Man ufed, isoas Supplement
to grant certain Land, Parcel of the faid Manor ;;/ Fee-ftmple, and never ^° Co^Compj
any Grant -was made to any and the Heirs of his Body for Life, or for ^°\'^ ^(^^^
Tears ; and the Lord of the faid Manor did grant to one by Copy for Life, s* C. ac-
the Remainder over to another, and the Heirs of his Body ; And it was eordinglyV
adjudged, that the Grant and Remainder over was good, for the Lord 7^1'°;^'
having Authority by Cuftom, and an Intereft withal, might grant any ^^j*)' ^,„'°'
lefler, Omne majus continet in fe Minus; But he that hath but a bare Eliz. B. R;
Authority, as he that hath a Warrant of Attorney, mull purfue his Au- Stanton v.
thoritv. Cas hath been faid) and if he do lefs it is void. Co. Litt. ^^'"^ >
, •" - The Cujlcm
S^' "' nvas to grant
it in Fee of
for Lije Sohimmodo ia capienii extra Mtinus Dotn'mi; a Surrender was to the Ufe of one for Life, Re-'
mainder in Tail, Remainder in- Fee ; It was objetlred, that this was not good to him in the Re-
mainder in Tail, the Cuftom being found exprefslyj that it (hall be Solummodo ea capienti extra
Manus Domini ; it ought to be an immediate taking, and he fhall not take by way of Remainder 5 alfo
the Cuftom will not warrant any Eftate for Life or in Fee; but the Court refolved to the contrary,
that it is good enough ; For in that it is limited to one, and the Heirs of his Body, it is not void ;
but if it be an Eftate Tail, it is a conditional Fee, and fo it was agreed by us all in the Cafe of
(Eirabtnor b. jfvSfee; For when a Cuftom warrants the Greater, ii fliall warrant the Letter alfo;
to the 2d, it may be well limited by way of Remainder, as well as to the immediate Taker ; for
when the Cuftom v/arrants it, it cannot reftrain a Fee to be limited as well by way of Remainder
as otherwife, and he in Remainder and tlie particular Tenant make but one Eftate, and in that
it is found that the Cuftom is, that it ftaall be granted Soiumroodo ea capienti, it is void therein,
wherefore it was adjudged accordingly for tite Plair.titF,
14 In
200 Copyhold.
buppienient i^ in i'jeCtment the Odfe was, that tenant in tail of a Copyhold
to Co. Qo■m's}.j■^^^Yauirtli the fame into the Hands of the Lord^ to the Ufe of J. S. Do-
i^i'^ciclls C- ''^''''^c.^ J- laid it had been a great i)oaZ'/^, -whether tt may be tntaikd
but tne common and better Opinion was, that by the Statute De Doni's
Co-operating with the Qificm it may be ^ and with this agrees (pCPDOirS
Core, and fo was the Opinion ot' the Court, Poph. isSi. Mich. j. Jac.
B. K. Lee v. Brown,
do C. 42. ij. Copyholds are fwt within the Statute De Do/iis, which fpeaks on-
P' 4-Row- jy jj^ J'enementis per Chartam datis &c. nor are they within the
Ikr S. C, " Meaning ot'it, ill Becaufe they were not until 7 E. 4. 19. ot'any Ac-
adjudged by count in Law, they being but Eftates at Will. 2dly. The Statute ot"
5 Juftices, W. 2. provides only againft thole who might /iz-ike Dijherijhi by Fine or
contra Yel- feoffment, which Copyholders could not do. ^dly. Becaule it Copv-
-.^2 Roll holders might give Lands in Tail by the Stature, then the Reverjm
Rep. 5S5. (hoiild be left in themjclves, which CAimot be. 4chly. The Makers ol the
Mich. 21 Statute intended nothing to be within the Statute o/'iu/i/c^ a fine could
-|'"'s^r'^ »&r be levied, lor it provides Qiiod Finis ipfo Jure lit nullus. jthly.
adjornatur. Great Milchicts might follow ii Copyholds Jhould be within the Sta-
Sup- tute W. 2. becaufe there is no Means to dock the EJiate^ and no cuf- •
plement to tomary Conveyance can extend to a Copyhold created at this Diy
Co. Comp Adipdged. Godb. 367. pi. 458. Mich. 2 Car. C. B. Royden v
^°Ps^^ -^^lalfter. /• • ,
— s. c.
cited by Glynn Ch J. 2 Sid. 75, 74. • It is made an OljeBion agnivft exttiiliiis GpyloM Lar.iis,
tliat thcieby the Donee mull: hold of the Donor, and the Donor being in the Rcveifion, mull hold
of the Lord, and fo the Change of Tenants will not be fo often, and if the Donee commit any For-
feiture, the Donor mulf take Advantage of it, which would be to the Prejudice of the Lord to
have the Tenure thus altcr'd ; to this Ubjeftion I think it may be very well Anfwered that the
Truth of the Cafe is not lb, for the Donee in 'fail doth not hold of Donor, hut of the Lord as it fcems
every Tenant for Life doth of a Copyhold, ai:d this feems to be very rcafbnable ; for a Copyhold itl
Fee fimple is not like other Effates in Fee-fimple at Common Law, hut they are only Elrates
at Will, and fo he that is the Adtual Tenant at Will is Tenant to the Lord ; for it feems ro me
that becoulc they are but Eftates at Will, there is a Divifion of Eftates, but he that is aftual Tenant
at'VV ill, hath all tlie Eftare, and there is no Part or Parcel of the Ertate left in any Body elfe and
tliat a Tenant in Fee-fimple ot Copyhold Lands is only he that hath fuch an Ellate at Will in the
Lands as by the Cullom of the Manor, is not to determine by his Death, but that after his De.itli
his Heir fliail be Tenant at Wil I, fo that when he grant.s away an Ellatc for I^ife, he Las no Ellate' ia
the Lands left in him, but only a Power of being Tenant at Will, according to the Culfom of the
Manor, when his Tenant for Life's Elhte is ended ; And I take it, that in the mean Time the Te-
nant tor Life is Tenant at Will to the Lord, and fhall do the Services ; and if he commit a^For-
f«!ture, the Lord fli.dl take Advatage of it, and to this Purpofe the Cafe of 13oi'tll.''OrD ll. 30ai."kitlC(-
fon, where the Cullom of the Manor was, that the Widow fhould have her F'rce Bench*- aiid' it is
there taken for granted that he fliall hold ot the Lord, and he accordingly admitted Tenant and
that the Heir fhall not be admitted during her Life, which plainly proves, that the Courfe of Te-
nure of Copyhold Lands, is not like the Tenure of Freehold Lands at Common Law, for in that
Cafe at Common Law, the fhould hold ot the Heir ; and though in Eftates at Common Law
the Donee iiolds ot the Donor by the lame Services, the Donor holds over, becaufe the Statute
creating a Revtrlion in the Donor, the Judges made Expofition according to the Common Law
that becaufe a Fce-fimiile conditional was held of the Feoffor by the fame Services that he held over'
therefore the Donee fhould hold of the Donor by the fame Services he held over, but at Common'
Law the Tenant in Fee fimple conditional of Copyhold, could hold of no body, but of the Lord
therefore they cannot hold ot the Donor that have now an Elfate Tail in Copyholds Lands but
according to the Rule in expounding the Statute De donis, viz. by the Common Law, they'muft
hold of the Lord, becaul'e tlie Tenant in Fee-fimple conditional of Copyhold Lands a't Common
Law, held of the Lord, and not ot the Surreaderor. Gilb. Treat, of Ten. 151;, 160 j^i.
i6. There is not any Book in the Law, but only S^BniltCH'S CilfC
in Plow. Com. that the Statute ofWeftm. 2. extends to Copyholds,
perHatvey j. Godb. 369. at the End of pi. 458. Mich. 2 Car.
Gilb. Treat. 17- A Copyhold may be entailed i Not entailed, as within the Sta-
of Ten i50.tuteof VVelbn. 2. nor by Virtueotany Conftruaion of the Statute oi
andVa^s ^'eltm. 2. but there may be fuch an EJiate before Wcjlm. 2. of a Copyhold,
that itVems "'^'^"■^ "^^•^ ^ ^'"^°t ^<« F.Jlate, and which might be grantabh to one ami
the Mean'ng the HciYS of his Body, according to the Cujiom, and it he died without
Ilfug
Copyhold. 20 1
Kibe it mighc be aliened again, and that a Copyholder muld not bar his '; this, tha:
iQ'iie ttnlefs by a Recovery. 1 conceive fuch an Eltare might be by Cul- ^<^atcs Tail
torn, per Bridgman Ch. J. in delivering the Refoiucion oi the Court, j^ig'^statu^c^
Cart. 22. Pafch. 17 Car. 2. C. B. Taylor v. Shaw. as to the
Manner of
Limitation by the Cuftom of feme Manors, as that an Eftate was {;ranted to a Man and the Heirs
ot his Body hej^otten, the Remainder over to another, but that m other refj^'trtts thefe Eftates were
not Eftates Tail before the Statute, as tliat theTenaiu fliould no ways alien to dcb^irhis IlTuc, or them
in Remainder, or that if he mitde any Difconiinuance, they fliouId have a Forniedon in Deftender or
Remainder, but thefe Thinf^s were introoueed by the Statute U[5on the Eftate, which was the fame in
Limitarion by the Common Law, and (b the Statute is faid to co-operate to make an Eftate Tail,
and this obvwcs the main Objection againft inrailio}^ Copyholds by the Statute, viz. that every Copy-
hold Eftate (lu^ht to be graiiijble Tmie out of Muid, and if an Eftate Tail were introduced by the
Statute, then that Eftate v.as not giamable Time out of Mijid ; for if the Eftate Tail were before
the Statute the finic in Point of Limitation of the Eftate, as it is now fince the Statute, then an
Eftate Tail has always been grantable Time out ot Mmd, tho' fome other Qualities are now an-
nexed to that Eftate by A6t of Parliament, which were not lb before, and which may well be faid to
give thiStatutc fome Sh'^re in the makin<; thele Eftates, fince they are lb very confiderable ; and that the
Qualifies Ihould be annexed to this Eftate by the Statute De Donis, is no Ways unreafonable, for
this Act was made to redrels a Wrong at Common Law, and was for the general Convenience and
Profit of the weal Publick, and bringing an Eftate in Copyhold Lands within the Statute De Donis,
is no Prejudice to the Lord or Tenant, alters no Tenure, Eftate, or Cuftom of the Manor, which
may any ways prcjudi;e any body.
18. Juftice Powys faid it was a Point before him upon the Circuit,
whether a Copyhold could be entail'd within the Statute ot W. z. un-
lefs the Cuftom of the Manor did warrant it^ and it being {aid by the
Coiinfel that C. J. Holt was ot an Opinion that this Statute did extend
to a Copyhold, a Cafe was agreed on &c. Ch. J. Parker to this faid,
that if the conjiant Ufagi of a Manor bad been to alienate after Iffiie as at
Common Laiv, without having any Rer/tainder over, and fuch Alienations
had been al-jj ays good ^ it would be pretty hard to extend the Statute to
fuch Eftates. Mich. 12 Ann. B. K.
19. Gilb.Treat.of Ten. ijj.fays, that the Cafes which he had before
mention'd [as that ofHeydon's Cafe, Rowdea v. Mallter, Erifh v.
Reeves, Gurrey v. Sanderfon, Dell v. Higden, Clun v. Peafe, and
Otlery Monaftery's Cafe.] are all the Laws he can find againtl Entail-
ing Copyhold Lands, none of which go fo tar as to fay, that if there
have been an Eftate Tail by Cuftom, that it is not within the Statute
DeDonis, but only the Opinion ofmyLd. Ch. B. which will be but of lit-
tle _\^'eight, when we have feen the Precedents againll this Opinion,
which I Ihall now examine ; And firft, there is Littleton's Opinion for
the entailing of a Copyhold, for he fays, that Tenant by Copy of
Court Roll is, as if a Man be Seifed of a Manor, within which Manor
there is a Cuftom which hath been ufed Time out of Mind, that certain
Tenants within the fame Manor have ufed to have Lands and Tene-
ments, to have and to hold to them and their Heirs in Fee-timple, or
Fee-Tail, fo that there he fays exprefsly, that Eftates-Tail in Copy-
holds have been Time outoi Mind, and therefore muft have been be-
fore the Statute ; But Lord Coke, in his Comment on Littleton, in ano-
ther Place y^zjj, that an Eftate 'tail may be, by the Opinion of Littleton,
by the Cuftom, the Statute co-operating with it, for, faith he, there can
be no Eilate-Tail in Copyholds by Cullom only, nor no Eftate- Tail
by the Statute only, but the Statute muft co-operate with the Cuftom. Now
the Queftion will be, how this can be reconciled with what Littleton
fays? lor he fays, that an Eftate-Tail in Copyholds was Tune out of Mind
of Man, and then if Eftates Tail were before the Statute, the Queftion is
out oj Doors, whether a Copyhold can be mt ailed by Force of the Statute; for
if they were intailed at the Common Law, then as to them the Statute
is but in Affirmance of the Common Law.
F f f 20. Thofe
2 0'2 Copyhold.
20. Thofe that areaguinft the entailing Copyhold Lands, fay that the
EftateTailofCopyhoIdLand, mentioned byLittleton, mutt beundcntood
a Fee-fimpk Conditional at Common Law, or elfe he contradiiSts himleli j
for he fays In another Place, that all Inheritances at Common Law
were Fee-limple, but that may be well enough underrtood of Freehold
Eltates ; ior one may lay a general RttJe jor all LanJs^ meaning Freehold
Lznds^ "which will not extend to Copyhold Lands. Gilb, Treat o-f
Ten. 158.
(F. e. 2) Entails. By what Words.
Cro. C. 5(J(S. I. A furrendered to B. and C. and the longeft Liver of them, and for
l^^A^'i'— /!,• Default of Iffneofthe Body of C. then to the youngcil Son of
J. C ateJ M. the Siller of C. Refolved, that the Words (of Detauk of lllue of
Gilb. Treat, the Body of C.) does not give him an Eftate Tail by Implii\^fion, ha-
of Ten. 244. ving an exprefs Ejlate before., but was exprelFed to ihew the Commence-
ment of the Remainder to the youngelt Son of C's Silter. Jo. 342. pi. i.
Trin. 10 Car. B. R. Seagood v. Hone.
a <^alk. 620. 2. A Surrender was to A. for Life, Remainder to B. and his If'ife, ani
pl. q. S. C. their Heirs and Jlfpgns., and for Default of fuch Iffiie, Remainder c-ver ;
lieid ac- pgj. jQ^ Cqt. except Gould J. this gives B. and his VVife a Fee-limple ;
^"l(J"|^J'~ but Gould held it gave only Eltate Tail. 11 Mod 57 pl 34. Paich.
I\ep.'ii44. '4 Ann. B. R. Idle v. Cook,
to 1 1 54
S. C adjudg'rf, and the Arguments of the Judges at large.
3. Surrender was to the Ufe of hifnfelf for Life, Remainder to his
Wife for Life., Remainder to the Heirs of their Bodies j there was no Ad-
mittance purfuant to this Surrender ; the Son fliall have a Fee-limple^
for his Father's Eltate continued in the fame Plight. 1 1 Mod. 107. pl. 5.
Mich. 5 Ann. B. R. Brown v. Dyer.
[G. e] Copyhold Dock\t
This in Roll [Bar of" Entails.]
is Letter (B)
in Fol. 506.
♦ Poph. 128,
im S.C
I. TJf it lie atimttteti tfjattfjcre map be an Eftate Tail of a Cupt>-
X IJOiD ijp tlje CuKom co^opcratmn; tcitb tlje a>tatate Dc Oh^
Tail' 'Ira ni^' J?Ct tW map, bp tlje €\X^m\ of tljC S^anOC, be barred by aSur-
Copvhold reader, fOC as the Cuitom creates it, lo the Cultoni may bar it, ipictj.
,a»M be 15 3!ac» 15. E» bct\ueen t Lee and Brown, lefolijeD pec Ciictnm, upait
barr'd i/-» ctjioeuce at tije OBac, €t pafc!> 16 3ac. 15. E. m tlje fame c£nlc,
tlZTa rcfol^jeQ again, upon €\iroeace at tjje QBat, €;t:m, 29 eii?< bctiucen
/■p^fialCuftom * Hill and Upcheir, OtClJ, C'J* JLtt, 59- b* [60. D.J
for that Pur-
pofc, and to maintain filch Cufiom, it ought to be fiiewed, that a Formcdon had beon brciiirlt upon fitch Sur-
reruier, and 'fiid(^mcvt given, that it does not lie. Yet it was agreed, that it was a rtron^ Proof of tlij
Cul>-ir.i th.it they, to whofe \Jk fucli Surrenders had been made, had enjoy'ii Land againft the Il1u;s in
t 2 8rownl. 121, 122. Hill v. Upchurch, Mich 9 J^-C. C. B. S C Coke Ch. j I'^id, that it -a
aojii.i;
Copyhold. 20':^
acliude'din 17 Eli?., for the Manor of North-Hall in ElTcx, that admitting a Copyhold may be intail'd
by the 'Statute, then a Cullom that a Surrender fhall be a Bar or Dilcontinuanceof (iich Elhite is good
for the Reiilbn above. Supplement to Co. Comp. Cop. :>>. S 12 cites S. C. and aUbTrin. ^8
Elir.. Field v Elliot, that a vSurrcnder by Tenant in Tail of a Copyhold in Fee makes a Difcontinu-
ance ; hut I'lys, that notwithftanding thofe Authorities and Cafes, he conceiv^es, that a Surrender is no
Difcotitinuance of a Copyhold Ellate in Tail.
2. 3f it tc aBuiittcti tljat tijcre \mv tt n 'STcnnnt in Cail of a Copp= cro. e 272.
IjOln, pet tl)l0 map l^e bai'ltO ^y a CJu.naion Recovery, tOCa \V^arranc> Pj; ''7;^^-'-
may be annexed upcm this ihis by a Surrender to an Ule, or by a Con- tbundquod
firmation or Rtleaie with W'arrantv i ailll It llinp faC iittCnQeQ, tijiltnunquam
U fijall ijaiie auotOcc CapPljoiD in a^alue, auD alto in i'aDouc of ^"tea vide-
Comnion Ecco^cnc0. Oubttatur, 3 7€i!>13. K. omuccn ^>^'^ Ir-c^oerauo
midHigdcu. ii3idj. 43, 44 'B. K* S^otnjs'gi Cale, pci: Curiam, in cuL
UJitljoiit aiip Ciuioni ti3 luarrant it* Mancrii
prosdicti.
The Court upon the Motion fecm'd to think that it fliould bind the Remainder, but they fpake not
irm;h thereto; Sed adjoniaiur. 4 Rep- ^5- a- pi- 5. Deal v Rir;denS C. adjudgM, that where by
Cuftom of a Manor Plaint.'; have been made in the Court of the Manor in Nature of Real .-\ctions, if
a Recovery be had on fach Plaint againft Tenant in Tail, (admit-ing that Copyhold Lands may be
entailed) it isa Difcontinuance, and fliall bar the Heir in Tail ; For luch Plaints being warranted by
the Cuftom, it is an Incident which the Law annexes to fuch a Culiom, that fuch Recovery fhall
make a Difcontinuance. Mo 5^8. pi. 4S8, S. C. refolv'd, that a Common Recovery withour
Voucher is Difcontinuance, and ^n is a Common Recovery w ith Voucher by Tenant in Tail of a Co-
pyhold ; And if Tenant in Tail comes in as Vouchee, thiji bars the Illues and Remainders, though no
Cuftom ever was for Recoveries in the Ccui-i of the Manor A R.ecovery does not dock the Re-
mainder without a Cuftom ; Per Twilden J. Raym 164 Mich. 19 Car. 2, B. R. ■ — Supplement to
Co. Comp. Cop. 7S S. 12. cites S.C.
* A Surrender with Warranty to an Ufe, and a Grant accordingly, makes the Party in- en le Per
by the Surrenderor, and upon this Warranty the Surrenderor may be voach'd in the Court upon
Plaint there, and the Recovery in Value fliall be only of other Copyhold Land within the Manor;
Adjudg'd. Mo. 5 58, 559. S. C. — • — A Warranty cannot be annexed to an Eflate Tail of a Copy-
hold ; Per Cur Cro. E, 5S0. pi. 5 2. Hill. 57 Elii. C. 6, Eyietv. Lane; But the Reporter adds a Quaere.
. See Clun v.Peafe, pi. 10 Infra.
3. If Copyholder in 'tail Siimnds;' to the Ufe of another i/t Fee^ and a
Copy is made to the other accordingly^ this pall be a Difcontinuance, iorhy
Livery, or other Way, he can't depart from the Land, and this Way
which he may ufe fliall be to him of equal Benefit, as Livery lliall be
to him that can make it. Arg. pi. C. 233. 4 Eliz.. in Cafe of VV'iliion
V. Berkley.
4. The Cafe was, Baron and Feme, Copyholders^ to them and their Supplement
Heirs^ and f/^e £^7i'0/v in Conllderation of Money paid by him to the to Co. Comp.
Lord obtaineth an EJiateofthe Freehold to him and his Wife, and to the^op- "75-
Heirs of their Bodies i the Baron dieth, having IJfae ^ the Feme enters A' ^- '^'^^
a Common Recovery, and his Heir enters by the Statute of 11 H. 7. and ' '
agreed the Entry was lawful, tor the Copyhold by the acceptance of the new
EJiate was extingtiijhed. Cro. E. 24, pi. 3. Hill. z6 Eliz. C. B.
Stockbridge's Cafe.
5. A Copyhold w^isfarrendered to the Ufe of another in 'fail, and the
Surrenderor \Siirrenderee'\ had IJfne 3 Daughters, and died. One of the
Daughters furrendered in Fee; Agreed, that if this was only a Poilibi-
lity, it could not be convey'd to another by a Surrender ^ Arg.' Roll
Rep. 318. cites 33 & 34 Eliz- B. R. Gravenor's Cafe.
6. A iy«>-re«rt'tr of Copyhold Lands was made within the Manor of ^'■''- ^- 37>»
Stevenfon, to the Ufe of J. S. and the Heirs oj his Body, and after Iffue, P^" •°- \ ^■
he furrendered the Lands unto another. It «as agreed by all the J ulti- cited per
ces, that it was a Fee-limple conditional at the Common Law, andCur. Godb.
after IlTue, that he might alien the Lands. Supplement to Co. Comp. 3'^'S »" p'-
Cop. 77. S. 12. cites Hill. 34 Eliz. B. R. Stanton v. Barney. a'cTTIZ
•was/Ki-fe?iflVerf to the Ufe of Copyholder's H'iH, who de^ifed it to J. in I'ai!^ Remainder to H in Tatl &c,
J. kath JJj'iie, and furrmders to the Ufe ot /■:; M'lfi' <or Life ., it w.ti aiiju-jged. that flnce {he y«)¥
<20A Copyhold.
found it '■Juas vo^ the Cu pom of the j'l.nwr to h.ive an EJlate 7ail in j Copyl-.rjid, that J had a I-ee-
limpk cor:iiiuo7:nl, and that bv his having of Iffiif, he lud perhirmed the Coriduian, dtid the Sur-
render to the Ule of his Wife was good Gilb. Treat, of Ten. 154, 155.
*
Supple- 7. Ah Infant [*7'enant in T'atl] furrenrfer'd Copyhold to the Ufeofa Stran-'
jnent to ge,-^ itho ivas admitted. The lii'tant may enter at his tuU Age, becaule
Co. Comp. jhis IS no Rar nor DifcofitsfinaHCc. Mo. 597. pi. 814. HiJi. 35 hliz.
c °\\ ' ' Gooles V. Grane.
cites S. C. adjudged.
Supplement 8. A Surrender of Copyholder in 'Tail is no Difcotttintiance i Agreed,
to Co. Comp. Mq 5^8. pi. 488. Trin. 36 Eliz. Dell v. Higden.
78- S- 12- 3J r T ^ . . , ^
S. C. and S. P. and fays, that according to this it wai adjudged 5- Fh?, in Cafe of Gravcror v.
Brooks. Rrownl. '56. S I*, held accordingly by Coke Ch , J. and Koder J. of the fume Opi-
nion, in Cafe of Rogers v. Powell. S, P. accordingly, and that it is no Bar to the Entry of the
liTue' in Tail, and fo was it holden in the Sefjeants Cafe, when Auriley, who afterwards was midc
Chancellor of England, was made Serjeant ; and afterwards it was adjudged, that the Entry of the
Infant was lawful. Le. 95. pi. 124. Hill. 50 Eliz. B. ll. Knight v. Footman.
iupjicment 5. A Surrender was unto the Ufe of one in Tail., with di-vers Reniciin-
•oCo. Comp. ^^j,^ p.,,^j. jfj q^,^ji . -j^hg jyy_ Surrenderee died without JJJue j and f.rlt it was
^°at«s'c agreed and adjudged, that it was no Difcontinuance. zdly. It' it were
that^Copy- a Difcontinuance, yet a Formedon in the Remainder did .not lie, be-
hold Lands cauie there ou^ht to be a Cujiom to ivarrant the Remainder as well as the
were en- jj^jf yjiji^ Tail; lot when a Copyholder in Fee viakah fnch a Gift^ no Re-
thpCo^v*? iV'/ow is left in him, but only a Prffibility, and the Lord ought to avow
lioidcrVv- upon the Donee, and not upon the Donor ; and there is a Dilierence
i-endrcd the when he makcs or gives an Eftate ot Inheritance, and when he
laid Lands nialces a Leafe for Lile or Years; lor in the one Cale he hath a Re-
'o'f anothl'i^ verlion, in the other not. gdly. A Recovery fliall not be without a
ManTn Tail fpecial Cuftom as it was agreed in the Cafe of the Manor of Stepney,
with divers becaufe ih^ Warranty cannot be knit to fuch an FJl ate without a Cnjhm.
Remainders Qodb. 368. pi. 458. cited by Harvey. J. as adjudged 37 Eliz. C. B.
ti:e"Yrdld.i"^h-^-^"<^o^-L^"^^'-™-
in this Cafe, that it was no Difcontinuance of the Tail, but the Iffuein Tail, notwithflanding the
Surrender mi^ht enter. But it was faid in that Cjfc, that if it were a Difcontinuance, that in fuch Cul'e
the Formedon in the Keverter did not lie by the Tenant in Tail, becaufe when a Copyholder makes a
Gift in Tail, he has no Reverfion but a l^lTibility ; and the Lord fliall avow upon the Donee for ths
Rents and Services, and not upon the Donor.
Same Points 10. In Trefpafs it was found, that the Land was Copyhold deniifa-
were found -^^^ j^^ p^g^ }„ 'p^jji^ or for Life, and that A. was feifed thereof;// Tail^
and tha'ta ' Remainder to B. tn Tail ; that A ftiffcred a Recovery with Voucher in
Kecovery the Court of the Manor, and afterwards died without Ilfue, and it was
in a Writ lound, that there was «o C///?oOT to fuffer Recoveries in the Court of the
of Entry y-,^^/ Manor , all the Court held, that this Recovery fliall not bind the
"was'futltred ^'^"^ '" Tail, but upon a Recompence in Value, and here he can have
with Vou- no Recompence of other Lands in Value i For he cannot have Land at
Cher over; Common Law, nor can he have Cullomary Land ; For if it fhould be
the Court jp conveyed, then the Lord would loie his Fines, and the Party to
^^nccivcd whofe Ufc the Recovery was, ihould hold his Land as a Copyholder
k° would without Grant or Admittance by the Lord, which is contrary to the
be hard to Nature of a Copyhold. Cro. E. 391. pi. 14. Pafch. 37 Eliz. B. R.
warrant fuch Q[^^^ y Peafe,
Recoveries
■without a fpeci.il Cuftom ; Quxre. Eut afterwards it was adjudged that a Reccvery with I'omher
over a?,aiiift the Tenant in Tall himfclf, is at Icaft a Diforitiiiuana as it is againif Tenant in T<iil
in Pofl-ffion at Common Law ; but whtther it be a Bar to the Iniail they agreed not in Opinion;
but fur !he C^uf'c of Diiconunuance Judgment was given for the Defendant. Cro. E. 380. pi. 52-
Copyhold. 205
Hill. S7 Eli/.. C. 3. Eylet v. Lane and Pearce. .Recovery in Faint fliiU be only ot other Copyhold
land li''. w the Manor Mo. 359 pi. 4S8. Trin. 36 Eliz Dell v. Higden, Supplement to
Co. Comp.Cop. 79. S. 12. cites S. C. and fays, Note for a Lioncladon of tlii.s Point, tint at this Day,
by the Culfoms of feveral Manors, Common Recoveries are had and luftered in the Courts of Lords,
ot Manors for the docking and barring of Eftate Tails ot Copyhold ; and much Inconveniency would
enfue, both if Copyholds at this Dav might not by Cuftom be entailed, and likewife if by Cuftom
Common Recoveries had of Eltates Tail with Vou.her over in the Courts oi Lords of Manors fliould
not thereby be docked and barred.
11. A Copyhold may be entailed by fpecial Cuftom, and ^^jt^^^ ^j' Gilb. Treat.
a Common Recovery, and a Surrender may bar the lilue in Tail by a fpc- °\ ^c"r'"^*'
cial Cuftom ; Agreed. Mo. 637, 638. pi. 877. Hill. 37 Eliz. Church & s_ p'
V. W'yac.
12. Recovery may be in the Lord's Court of a Copyhold which Gilb. Treat,
fliall bar an Entail; Agreed. Mo. 753. pi. 1037. Hill. 1 lac. Old-"^"^™- '^4-
r I 1 Cites J, C*.
cot V. LevelJ, ^ ^ p
agreed ; and
obfervcs, that it is faid Generally, and is not put upon any Cuflom.
13. An old dormant Entail is prefiimed to be cut o^afcer Purchafes and
many Admittances in Fee. Ciayt. 26. pi. 45. Aug. 10 Car. W^adf-
worth's Cafe.
14. The Manner of barring Entails of Copyholds within the Manor
of Wakefield in Yorliflnre, is, for the Copyholder to leafe his Lands ^fi^'^J'"^-
for more Years than he ought, or to retufe doing his Services, and , 64 cites
then tht Lord feifes the Lands for the Forjeiture, and grants them owrS. C. and
to another by the Confent of hhn "who made the Forfeiture ; but Roll Ch. '"'y* '"^ '*
J. faid, that he conceiv'd there could be no Cuitom tor this, becaufe^^^^j g^^^
the Seifure for a Forfeiture deftroys the Copyhold Eltates For it isSfaCop'y-
at the Lords Eleftion, after the Seifure, whether he will grant the Ellate hold Eftatc
again by Copy of Court-Roll, or not, and you do not prove that \.\\q^J^ ^'■'^.
Cuftom binds him to it. Sty. 450. Pafch. 1655. Pilkington v, Baglliaw T^"f"^ '"
•^ ^ *-' o ' 1 ati to' com-
mit a Forfeiture, and the Lord to feife and grant to another ; or if the Tenant in Tall furrenders
to the Ufe of the Purchafor and his Heirs, and the Purchafor commits a Forfeiture, and the Lord
feifes and regranrs, this is held to be a good Cuftom to bar the Eftate Tail of a Copyhold, though
the Tenant tn Tail be not privy to it ; By this it feems plain, that if Tenant in Tail commit a
Forfeiture, his Iflue is bound by it, but the Lord cannot grant to no body elfe but to him that
he intended to have the Eftate. Thus it feems plain to me, that as Eftates by the Cufiom may be en-
tailed, fo by the Cuftom alfo thofe EJlates-l'ail may he cut off by Surrender, Recovery or Forfeiture, ac-
cording to the feveral Cuftoms of Majors.- Cuftom of the Msnor was, to cut off Entails by commit-
ting a Forfeiture, and then appointmg to whofe \](c the Forfeiture fhould be. A Copyholder makes
fuch Forfeiture, and Appointment and dies before Admittance of Cefty que UL-. The Heir
of the Copyholder was admitted, and then the Lord of the Manor fold the Manor to J. S. who
admitted the Cefty que Ufe, and his Admittance held good, and that his Admittance (hall avoid all
Mefne Afts or Difpofitions made by the Lord as if admitted on a Surrender. zSaund 412. pi. ^o^
Pafch. 24 Car. 2. Grantham v. Copley. Gilb. Treat, of Ten. 164, 165. cites S. C.
15. A Copyholder in 'fail accepts a Feoffment ; this deftroys fiot the
Cuftom as to his Iffue in Tail, for he has no Power to conclude
him ; yet if he commit a Forfeiture, and the Lord feifes, it feems
his Ilfue is bound, it being a common and cuftomary Way to cut
off the Entail of Copyhold Lands. Gilb. Treat, af Ten. 282^ 283.
cites Cart. 6. 7. Mich. 16 Car. 2. C. B. Taylor v. Shaw.
16. Upon a Trial at Bar in Ejeftment for Lands held of the Ma-
nor of Wakefield, it was admitted, that by the Cufiom of that Ma-
nor, Copyhold Lands might be entailed, and that the Cuftom to bar fuch
Entails ts for the 'tenant in Tail to commit a Forfeiture, and then the I^ord
to make three Proclatnations, and feife the Copyhold, and then to grant tt
to the Copyholder, and his Heirs ; and another Cuftom to bar fuch En-
tails is J for the Toiatt in Tail to make a Surrender to the Purchafor
G g g and
2o6 Copy li old.
and bis Heirs, and thaj for the Pnrcbdfor (intending lo Lar the Intail and
Rem^rindcrs) to comvitt a Forjeiture, and the Lord to leiji., and three Pro-
clamations &c. that hereby the lilue in Tail is barr'd, chough the Te-
nant in Tail did not join ; And this Cultom was found by the Jury,
and allow'd per Cur. as a good Cullom Sid. 314. pi. 32. Mi^n. ib
Car. 2. B. R. Pilkmgton v. Stanhope.
TV, nT '^7- Bill by a Remainder-man in Fee of a Copyhold expectant on -an
miffion af- Eftatc Tail3 which was fpent, to be relieved agaiiiji an erronioiis Comniva
firmed in Recovery in the Lord's Court, praying that the Lord may be decreed to
Dom'Proc* fnffer the Plaintiff to bring a Plaint in the Lord's Court, in Natuie
Pari. Cafes ^^ ^ Writ of Error, to reverfe this Recovery, or that this Court
'' would relieve on the Merits. Defendant demurred. Allowed by
Trevor, Mall;er of the Rolls, and alter per Jeilries C. tho' the Errors
affigned were fuch as would have been grofs Errors in a Recovery of a
Freehold Eftate ; but if there had been an Error tn any adverfary Pro-
ceedings in the Lord's Court, this Court would order the Lord's
Court to proceed and examine it, and told the Counlel they might
try the Common Law Court if they would grant them a Mandamus,
but tiiey fliould have no Aid from this Court. Vern. R. 367, 368. pj.
360. Hill. 1685. Alh V. Rogle and the Dean and Chapter of St.
Pauls.
Batirhe 18. A. Copyholder for Life, Remainder to his ift. 2d. &c. Sons
MkesaCjK- in Tail, Remainder to B. in Fee. A. bejore a Son born gets a Gmvey-
■Lfy^meot ancs of the Fee of the Copyhold, thinking t' would merge his Ert.ue,
*!"„ Fel't.A. and deftroy the contingent Remainder i But decreed that the con-
Chan, (eem- tingent Remainder is not deftroyed, the Freehold being in the Lord.
e.itomike 2 Vcrn. 243. pi. 228. Mich. 1691. Mildmay v. Hu::gerford,
but that tlie Copyhold was mer_Q,el Vern. R. 458. pi. 4.54. Pafch. 16S7 Paiker v. Tur.ner,
, y\nd afterwards decreed accordingly, and that the PurchaTor fhould enjoy againll the Ifllie m
Tail Vern 59''. S C 2 Chan. Cafes 174. Barker v. Turner. S C. Lord Chancellor was
ot Opinion for the Parchafor and that the Conveyance was j^ood anjainft tiie Heir ; For the Copy-
liold bein''' fever'd from the Manor, there is no means to bar it ; but by conveyance at Common
Law ■ the^Intail is not within the Statute of Weftminfler 2d. But Lord Chancellor took time to
advifc.
19. A. w^s 'tenant in T'ail of the Triifi of a. Copyhold, Remainder
to J- S. A. rcqiteffed the 'Trnjlces to fnrrender to him in Tail, which they
lefufing, A. brought a Bill to compel them, and they pat in their
Anfwers. Then A. died, but Pending the Suit, he 'ivent to the Lord's
Court and dcftred to he admitted to fnrrender, which was refufed, becaufe
the legal Ellate was in the Truftees. Upon which A. by IVtll, devifed
the Premips to his Wile «Scc. fubjeft to the Payment of his Debts.
Lord Cowper decreed the Eftate to go according to the Will, there
having been no Laches in the Teftator, and having devifed the Eftate
to the Ufes and Purpofes in his Will, his Lordihip conceived that was
IliiHcient to bar the Intail of a Truft. 2. Vern. 583. pi. 525. Hill. 1706.
Otway V. Hudfon & al'.
20. A Recovery with Voucher doth not of common Right bar the
Entail of a Copyhold, but that ^j to the entailing them ^ Citjiom^ is re-
quifite, fo without Ciijiom the Entail cannot be cut cjf. The Reafons are,
that becaufe without an intended Recompence in Value, no Recovery;
fliall bind, and the Surrenderee comes in in the Poft, by the Lord,,
and is not in in the Per by the Party, and fo no Warranty can he an-'j^
ncxed to the Copyholder's EJtate ; belides, they have only an Eftate ari
Will, to which no Warranty can be annexed of Common Right, for
no Eftate lefs than a Freehold is capable, by Common Right, of hav-
ing a Warranty ;;nnexed to it i And accordingly it was adjudged in
(S^iUlVlS Cnft, and all the Judges held, that the Recovery did not bind
without a Cuftom. But there is a Quaere, whether Judgment was'.
giveu
Copyhold. 207
given lor the PLiinciff upon the principal Matter, or no? For it Jeoms
10 have been a Difcontinuace, and that che Defendant's Entry could noc
be lavvtLil. There are two other Cafes where this (^uettion came in
Difpute, but was noc refolved. It was held, in the CJafe of d)UrC!)
1). USUlt, that a Recovery by Cuftom may bar, which implies, that
w'ithout it it cannot bar i Bat in the Cafe of O!?C0t '0, iLClid, Mo.
753- it ^^'is agreed, that a i^ecovery may be in the Court oi the Lord
that will bar a Copyhold, and there it is faid Generally, and is not put
npon any Cullom. ' It is debated, whether, if there be a Cultoni to
bar the Iflue of a Copvhold Klbue by furrender to one in Fee, whether
that be good Mo. 1S8. pi. 336. Ipill tj. ?l^JliC- Now my Lord Coke
I^ivs by 'Cultom, by Surrender the Entail of a Copyhold may be cue
oil! Gilb. Treat, of Ten. 16^, 164.
21. A. Copyholder in Fee by Marriage Jrtic'es covenants to furrender Where a
toTruftees to the Ufe of himfelf for Life, Remainder to the ^^■■'^^ [;"7,a°ied
Males of his Body, Rsniairider to the Heirs of his Body. A. dies before ,t ^.jn ^^^
any Surrender, and leaves _B. his Son, and M. his Daughter. B. ///r- ie defeated
raidered to J. S. and others his Creditors, according to an Agreement, "f ^'"•'■'^''
for Payment of his Debts. There was no Cnflora to tar Entails by Re- ''^.^^^^r
cover te's. B. dies without Ilfue. Lord Harcourc decreed the Copy- ^"/^y^ ^ ^^y.
hold to the Daughter ; But upon a Rehearing Cowpcr C. decreed iov tkui.xrCnf-
ihc Surrenderees, becaufe of the want of a Cuitom to fuller Recove- '»»; be jonrid
ries, and {o held the Surrender would bar the Entail in Gale the !° ^^^'^'^'^■'^
Copyhold had been well fettled. 2 Vern. 702. pi. 625. Mich. 1715- Harcourt
White V. Thorn burgh. C. Ch. Prec.
426. But
per Cowper C a Sui-rendei- by fuch Tenant in Tail? will bind his Iflue iinlefs a particular Cuftom be
found that a Common Recovery is necellary. Ch.P1cc.421j. Mich. i^ij. White v. Thornborough,
Gilb. Equ. Kep. 107. S. C. in" totidem Verbis.
(G. e. 1) Entails. Pleadings &c.
I. f~T^O prove a Cuftom to e«f^/7 Copyhold Lands within a Manor, it Gilb. Treat;
JL is not fufficient to fhew Copies of Grants to Perfons and the °^T^" '^S-
Heirs of their Bodies, but they ought to Jhew that Surrenders made by ^'^^^^^l]y
ftich Perfons have been enjoy'd by Reafon 0/ fttcb Matter; Arg. But ^tv cr it mufi''
Wray Ch. J. That is not fo ; For cuftomary Lands may be granted in be jbeivn.
Tail, though no Surrenders have been made within Tin^ of Memory. '^-jL' '[-^ ,
Le. 175. Pl. M4- Hill. 31 Eliz. B. R. f ;X.
ter the Jlie-
nathncfhis Anceficr, or the like.
2. If a Copyholder furrenders in Tail, and che Heir of the Donee is
to bring a Vormedon, he muft count of the Gift made by the Copyholder
that furrendered, and not by the Lord, for he is but che Inltrurhenc to
convey it, and nothing palfes from him. Cro. E. 361. pi. 22. M. 36 Sx.
37 Eliz. C. B. Pouker v. Cornhill,
(a e. 3)
:o8 Copyhold.
(G. e. ^) Fines levied of Copyholds.
1. y'^NE recovered Copyhold Lands in the Court of the Manor by Plaint
\^ in Nature of a Writ of Right. It was mov'd in C. B. whether
a Precept might be awarded o«f of that Court ^ to execute the Recovery, and
to put the Recoveror in Poflellion with the Poffe Manerii, as in fuch
Cafes at Common Law, with the Poffe Comitatus. But refolv'd clear-
ly, that it could not, lor Force in fuch Cafes is not jullifiable, but by
Command out of the King's Courts. 3 Le. 99. pi. 142. Mich. 26 Eliz.
C. B. Anon.
2. A Copyhold Ellate is not barr'd by a Fine and 5 Tears Nonclam.
Noy 23. cites Trin. 2 Jac. Mills v. Bradley.
3. If there be a LeQee for Life, Remainder for Life, of a Copyhold,
and t\it Jirji 'tenant for Life doth pnrchafe the Freehold of the Copyhold, and
levies a Fine thereof, and Jive Tears pafs, this Fine Ihould bar
him in the Remainder of his Copyhold. Supplement to Co. Comp.
Cop. 80. S. 13. cites Mich. 9 Jac. in C. B. that it was adjudged ac-
cordingly.
4. A Copyhold was granted to A. B. and C. for 3 Lives fucceffively.
Remainder to his eldeft Daughter for Life &c. The Lord by Bargain
and Sale enroU'd fold the Inheritance to A. in Fee, and levied a Fine
to him with Proclamations. A. died, and D. his Son and Heir levied a
f ine &c. B. entred. Refolv'd, that B. cannot enter after the Bargain
during the Life of A. For B's Eftate was to commence in Poffeffion af-
ter the Death of A. and B's Eftate is not devefted hy the Bargain and
Sale, or Fine, for the Lord did what was lawful tor him to do, and
A. was in lawful in Poffeffion, and was only paffive and not a6tive i
and by Acceptance he who is in lawful Pofleffion by Force of a particu-
lar Eftate, cannot deveft the Eftate of him who has the Frank- Tene-
ment or Inheritance. 9 Rep. 104. Pafch. 10 Jac. Margaret Podger's
Cafe.
5. Copyholder in Tail levies a Fine of the Land ; the Intereft and
Eftate is gone. Cart. 24. Pafch. 17 Car. 2. C. B. by Bridgman Ch. J.
in delivering the Refolution of the Court. Taylor v. Shaw.
6. In the Cafe upon a fpecial Verdi£l in Eje£lment a Copyholder of a
Dean and Chapter levied a Fine with Proclamations, and $ Tears pajfed with-
out any Seifure or Claim by him that was Dean at the Time of the Fine
levied, and whether the facceeding Dean was barred, was the ^uejiion ;
and the Court, at the firft opening, held clearly thnt he was not ; for if
io, the Statutes of i & 13 Eliz. which reftrain the Alienation of the
Church-Revenue, would be of fmall Effeft; cites 11 Co. Magdalen
College's Cafe. Vent. 31 1. Trin. 29 Car. 2. B. R. in Cafe of
Howlet V. Carpenter.
(H. e)
Copyhold. 209
(H. e) Frank-Bank, and Tenancy by the Curtcfy.
In what Cafes; And what it is; And how con-
lidered.
1. TT feema, that during the Life of the 'Tenant in Frank-Bank^ ivho GWh. Treat.
X by her Jdintttaiice is Tenant to the Lord, and ;i Copyholder, ?/;;» of Ten. 1 60,
Heir IS not adimttable. See Le. 1. pi. i, Hill. 25 Eliz. B, R. Bornetord v. 5*^^^ "^"
Packingcon. Ihatiti.
there taken
for granted, tint flie fhall lioldof the Lord, and that the Heir fhull not be admitted during her Lifc
which, he luys, pl.iinly proves, that the ( lourfe ol Tenure of Copyhold Land ii not like thit ot Free-
hold Lands at Common Law ; For in liich Cafe fhe fhouid hold ot the Heir.
±. The Cultom of a Manor was, that if any Man had a Wife feifed And 15a.
in Fee of Copyhold Lands, according to the Cuftom of the Manor and P'' ^^7-
had lllueby her, that he lliould be Tenant by the Curtefy of the Land ; aiIwIcIcs
it was found, that A. a Copyholder zvas feifed^ and had Ijfiie a Daughter, S C. and
ivho tvas married to f. S. who had I[Jiie ; A. died j his Wife entred ; the agreed by
Wife died before Admittance. The Court feen)ed of Opinion, that the ^''' ''^^^
Husband was well entitled to be Tenant by the Curtefy bejore Admittance of ^u^^-^Ycu^^
the Wife, and the Delay of the Admittance by the Lord Ihould not pre- ;„ Dower,
judice the Husband, being a third Perfon. Mo. 271, 272. pi. 425. Hill, or by the
3 1 Eliz,. Ever v. Alton. Cufrefy
•^ either of
Fee-fimple or other Eftate of Copvhold, unlefs the Curtom allows it, and therefore in Mion brought
fuchCujlomniullbefliewninfkadin!^. Gilb. Treat, of Ten. 271. cites S. C and fays, Qutre,
whether a Feme be felled to make her tiusband Tenant by the Curtefy before Admittince, where the
Cuftom is for Tenancy bv'C^urtefy ? It feems reafonable it fhould make the Husband Tenant per Cur-
tefy, as well as the PolTefTion of the Brother before Admittance make the Silfer Heir ; and by the
fame Rea'bn the VS'idow fliall her Widow's Ettate, though her Husband was not admitted. If 3
Copvhold defcend unto a married Woman, and her Husband takes tlie Profits thereof, and fuffers a
Court Day to pafs v/ithout Admittance of his Wife, and then the Wile dies, the Husband fhall not
be Tenant bv the CurtelV, but in the li Eliz. Dy. 291, 292. it (eems that the contrary fliould be the
better Opinion. Ciilth. Reading, 69.
3. A Woman Copyholder durante Vidititate^ax fozaedthe Land, rt/?c/ Z-f- Supplement
fore Severance of the Corn took Husband. It was adjudged that the Lord ^ '"" ^'"'"?-
Ihould have the Corn, and not the Husband, ior although the Eltate of , ^^^.j^g'; ^'
the W ife was incertain, and determined by the Limitation, and not by s. C. .
the Condition in Fait, or in Law, yet becaufe it determines by the Ail Mo. ^f?;.
of the Feme hericlf, the Lord have the Com ; but otherwife it would be P'- ^"^ •''• '^•
had Ihe leafed the Land, and the LelTee had fown it, in fuch Cafe the fo.^'ilf rVd
Leflee fliould have the Corn ; adjudged by Popham and Clench, Con- !j Rep^ '
tradicente Fenner, & abfente Gawdy. Cro. E. (460.) bis. pi. 10. Pafch. i ic>- a. O- '
38 Eliz. B. R. Oland v. Burdwick. land's Cafe
S.C. ad-
judged, that in fuch Cafe the Lord fliall have the Fmblement.s, and that if {he had leafed the Land,
and the Leflee had fowed it, the LeiTee fhould not have the Emblements ; For thou;^h his Eftate is
determined by the .Act of a Stranger, yet he fliall not be (as to the firlf Leflbr) in better Cafe than
his LelTor was Goldsb. iSy pi. 1515. S. C. adjugd'd againft the Husband.
4. Prohibition. It was held by all the Court, that if a Copyholder
makes a Leafefor Tears of Land whereof a Feme by Cultom is to have
her Widow's Eltate, Jhe fjall not avoid the Leafe,' unlefs there be an ef-
pecial Cuftom to avoid it; For he comes under the Cultom, and by the
Lord'sLicence as well as the Feme. Cro. J. 36, 37. pi. 12. Trin. 2 Jac.
B. R. Fareley's Cafe.
H h h 5. Th«
2 I o Copyhold.
Lev It. 5. The Ellace durance Viduitate is but a Branch of the Husband's F-
wherean Jiaie, and the Admhrion of the Husbitnd luffices iur the Kltate ot the
Mate for yvile ; and the ElT:ate of the Husband was big with the Eltateof theVVik-,
toconv^' wliich was to be brought forth by the Death of the Husband ^ Per Hu-
menceafrer bart, Noy 29. HiU. 15 Jac. C. B. Rennington V. Cole.
the Deter-
mination of an Eftate for Life, Per Tivifden and Windham J. the Leafe for Tears don't ccivrr^mt
till after the Death of the Wife. Hill. 12 & 15 Car. 7,. B. R. Chantrel! v Randall x sio i6j.
Clarice v. Candle S. G. Hill. 1659. B. R. adjornatur. Covenant that an Ellatc is free from Itiaim- '
bravces, except an Eflate for Life, that was thereon; the Eftate was [held of a Manor, where by the
Cuftom the Widow of Tenant for Life was to hold for Widowhood. Tenant foi- Life died, and leit
a Widow ; it isno Breach of Covenant ; cited Arg. 2 Ver.n. 45. As the Cafe of Twiford v VS'.^r up.
• It is fo far a Blanch of the Husband's Eltate, that though the Copyhold be of the (-ultcm of
Borough- Englifi, and the Husband dies, leavinr; 2 Sens hy one Venter, and 2 Sons hy anjther, and all die, .
except the elde ft Son, in her Life, upon the Wife's Death the eldelf Son fh.iU inherit by realon of the
old Eftate being continued by the Frank- Bank, and though the Court wei-e at fidf divided upon this
Point, yet Judj^ment was after givin for the Plaintiff, and Powell J. laid, that then the cldell ion
{luiuld take as Heir to jiis F.ither. Holt's Rep. 165, 166., Trin. 5 Ann. Brown v. Dyer.
6. Where a Mortgagee of fuch Eftate, where the Cuftom was for Frank-
Bank, had iij/igned to the Heir, the Court were of Opinion, Obiter, that
the Widow paving the Mortgage Money might be relieved i/j Kqiuiy.
Cumb. 234. Hill", s \V. & VV. in B R. Benfon v. Scott.
5 Lev, ;g,-. 7. In Ejec'tmenc, a fpecial Verdifl was found, viz. A Cuftom chat the
6 C Tenants of the Manor having a Mind to alien, might furrender into the
4 Mod. 2,-1. Hands of two Copyholders &c. that Scott being ^ Copyhcidtr ni Fct^
The"wr~" Cid furrender ^c. to the Ufe of the Plaintiff in fee ^ and dud^ leaving hn
dow's Title \yife^ vvho claimed her Free-Bank Lj the Cnjlcm, and at the next Ct^tat tK-c
don't com- Surrender was prefented, and thereupon the Flaint'tff adnutttd ; and the
mence by ()^ueftion being, whether the Surrenderee, or the Wife for her Free-
rbre but ^"k, Ihould' have thefe Lands? It was adjudged for the Plaintiif; for
oniy by the the Wite's Title does not commence till after the Death of the Hu/-
dyingfeircd; band, and then only to thofe Lands of which he died feifed, but the
Per Holt, Plaintitt's Title began by the Surrender; for the Admittance relates to
s'c™ '-^' ^'^■'^^ '^"'-^ that the Cafe ol: two Jointenants, i Inlt. 59. b rules this Cafe.
SI<ii^'.4o6. 1 Salk. 185. pi. 3. Pafch. 5 & 6 V\^ & M. B. R. Benlon v. Scott.
S. C. ad-
judged. T2 Mod. 49. S C adjudged. Carth. 275. S. C adjudged. So where the Culfomof 3
Alanor, and which was confirmed by Aft of Parliament, was, that the Wife fliould have 9 Parts of
the Land of which the HniSand died (eifed in Fee for her Life, and for 12 Years alter, and, the Hus-
band wasf'eifed in Fee, but became Bankrupt, and the CommifSoners fold their Land, but before the
Admittance of the Vendees he died, the Wife fhan't have the Land, for her Husband did not die
feifed. Jo. 4s i- ph 4- Hill. 15 Car B R Palmer v. Blake. ^ — Cro. C. 56S. pi 6 Parker v. B'ceke
S. C adjudged, for he did not die Tenant becaufe the Bargain and Sale took his Elhre from him, and
oufted hini of the Copyhold. S. C. cited 2 Vern. 194, 195. pi. I'jfi. Mich. i6yo. per
Cur.
8. If a Copyholder makes a Leafe for Licence, this will defeat the "Wile
of her Free-Bench; Agreed. Freem. Rep. 516. pi. 692. Mich. 1699.
Anon.
9. It was agreed, that if the Husband forfeited, the Wife loft her
Free-Bench;' tor, as if he furrendred, it deieated his Wife of her Free-
Bench ; fo if he did any Atl which determined his Eftate, it dellroy'd
her Free-Bench. PVeem. Rep. 516. pL 692. Mich. 1699. ^- i^-
Anon.
10 A Copyholder /«r>-fWri?iy his Eftate to make a Alortgage^ and die ;
before the Mortgagee --joas admitted^ \'o that the Eftate remamed in him au
rhe Time ot' his Deceaic, and by the Cuftom of the Manor, the Wi-
dows was entitled to her FiQG-l^enc\\ ; ^nd after the Death of the Cv-
p] holder the Mortgagee ivas admitted ; Per Treby Ch J vvho laid it vva,,
referred to him, and he advifcd with the Judges of the King's-Bencn
upon iCj and determined it, that this AdimtXance related to the Surrender-,
Copyhold. 2 1 1
that although the Husband died feifed, yet the Wife IJiould not have
her Free- Bench ; and fo it' was faid to be lately refolvedin B. R. Freem.
Rep. 516. pi. 692. Mich. 1699. B. R. Anon.
1 1. Frank-Bank was to encourage the 1'eiinftt tn go into the Wars, fo that
if he was killed the Lord would not take Benefir, but gave the Ellace to
the Wile to encourage him to fight; Per Powell J. uhj thought this
was the Original of Frank-Bank. 11 Mod. 95. pi. 3. Mich, j Ann. B, R.
Anon.
iH. e. 2) Frank-Bank. Widows, of what Perfons
Ihall have Frank-Bank.
I DO \V'' of a Bankritpt, where the Comilfioners have made an C^teJ+Mod.
AIngnment of the Copyhold, Ih.m't have her Frank- Bank, ^p'^g^'"(-^^^'''
cited as the Cafe of Parker Bleake, 13 Eliz. 2. Vera. 195. in Cife of ^, Scot. •
Moyfes V. Little. Gilb. Treat.
of Ten. 204.
cites S. C & S. P. for aftr^r Sil-; of the Linds by the CommiiTioners by Deed indented and inroUed,
if the Husband dies, he does not die fcifL-d.
2. Copyholder for Life, where the Cuilnm was for Frank-Bank, Gilb. Treat,
was attainted j or Felony, and executed ; per Winch. J. who only was in°^''"'v"-^°5-
Court, it feemed the VVidow ihan't have Free-Bank without a Special f"!^ o^e '
Cultom. Winch. 27. Mich. 19 Jac, C. B. Allen v. Brach. ihall lofe
it, though
there be no ipecial Cuilom ; for ihis amoimrs to an Alienatio.i.
3. The Cuftom was, that the Feme of Copyholder for Life fhould
have Eftate Durante Viduitate. T\\t Copyholder took a Leafe for Tears,'
by which the Copyhold was determined. Adjudged chat Ihe fhall not
have Ellate durante Viduicate after her Baron's Death. Jo. 462. pi. 3.
Trin.^17 Car. B. R. Dugworth v. Radford.
4. The Widow of a Cefiiit qnel'mjl of a Copyhold Eftate fhall have
her Free-Bench as well as it her Husband had the legal Eltare. 2
Wms's Rep. 644. cited per Sir Jofeph Jekyl, Malter of the Rolls, in
the Cafe of Banks v. Sutton, as the Cafe of Ocway v. Hudfon decreed
by the Lord Cowper 27ch OiSlober, 1706.
(H. e. 3) Frank-Bank. How. And Pleadings.
I. T?JclioneFirm£e was brought zg^iv,^ a. Womm^ who jufti fie d, I e-
V 1 caufe theWiicoi a Copyholder bv the Cuftom o//?^r">c have^'^y^T'^i
jor Life. The Cuftom was travers d. 1 he Detendant^^x-e E'-jtdence cj accordingly.
a Widow's Ejf ate only. Held, that it will not maintain the Ilfue, for 4 Rep 90a.
this is of a lefs Eftate, and the Word (tantunO makes it ftronger "» P'- ^y-
againft the Feme. Dyer. 192. pi, 23. Mich. 3 Eliz. Linfey v. Dixey.
..;. In Trefpafs, the Defendant juftified, becaufe Sir J. S. was leifed ^ L^. ,^g
of the Manor of D. within which Manor the Cuftom is, that if any pi 2 <; 7. cites
Mj; -.ieth to Wife any cuftomiry Tenant of the faid Manor, and SC. as ad-
hath J"^S'=<^ ''=-
2/2 Copyhold.
cordinglv. hach Iffue, and llnill overlive his Wife, helhall be Tenant by the Cur-
-; "^'""'^tefv; and pleaded farther, that he took, to IViJe one Jtifi., to ivhom^ diir-
^'^^^^l'^^' tng the faid Coverture a ctiflomary tenement of the faid Manor did dc-
Salk'. 245, fcend, and that he had IJf'iie by the faid Ann, and thatjbe is dead, and lo
244 Hill! &c. And it was adjudged, that the Husband, by this Cultom, upon
2 Ann. B. R. ^j^jg Matter, ihould not be Tenant by the Curtefy ; for Ann was not a
HokciiT tuitomary Tenant of the faid Manor at the Time' of the Marriage. 2
in°deliver-' Le. 1 09. pi. 140. Trin. 29 EHz. in B. R. Savage's Cafe.
ing the Opi-
nion of the Court, in the Cafe of Cletnent v. Scudamore. But in Wms's Rep.69. of the S C.
Holt only takes Notice that this Cafe was objefted, and after repeating the Subfl<ince of it fjys only as
follows, (viz.) Now, admitting that Cafe to be Law, it does not afcdt ours &c. But at the End
of the Report is a Memorandum, that upon the firll Arc;umcnt Holland Powell Juftices (/i-?,'??;/ Sir f.
Savage's Cafe to be Law. ■ S. C cited according to 2 Le. becaufe he is out uf the Cullom. Gilb.
Treat, of Ten. 508.
Supplement 3. A Cuftom of a Manor was found to be, that if a Copyholder in
'"C°-p'"P- Fee died feiied, his Feme lliould hold it during her Lite, as Frank-
citcs's'c 'Bank. The Lord iiifeoffs the Copyholder^ who died fei fed. Whether Hie
Ihall hold it was the Queltion ? Andudjudged, that Ihe ihould not; B:tt if
theLord had inferffed a Stranger oi thax. Land, yet the Land remained Co-
pyhold, and the Cultom is not taken away. Cro J. 126. pi. 14. Hill.
3 Jac. Lalhmer v. Avery.
2 Roll Rep. 4. A. Cipjholder Jcr Life ptirchafes the Fee, which is conveyed to
1 7"^, vvatcer T^.^/y/f^j and their Heirs, to the Ule of A. during the Lite 'of A.
V. tiartler, j^emainder to the Wife of A. for Life^ Remainder to A. in Fee. A.
iac'^B'R. conveys the Remainder to his eldell Son in Fee ; the Copyhold Eltate
the S C. ad- for Life lliU continues in A. and is not extintt or altered by the Pur-
juiRedac- chafe of the Fee which never was in him, but in the Trultees only, till
cordinglv. ^^ .^^^^ ^.j^^ Truftees conveyed the Remainder in Fee to the Son, fo
~~Tnn.^ that a Second iVife of A. thall be intitled to her Cullomary Eltate. Hob.
17 jac. BR. iSi. pi 218. Howard v. Bartlet.
Waldor V.
Barkley, S. C. adjudji'd Una Voce. Cro J. 57;. pi. I. W.ildoe v. Bertlet, S. C. adjudged, Trin.
iS y.ic. B. R. and upon a Cafe m.ide thereof in the Court of Wants, it was adjudged by the two Ch.
juihcesand Ch. Raron, that the Copyhold remained See. Jenk. 91S pi. 15 S.Q by the two
Ch. Jurtices, and Ch. Baion.
5. The Husband, who was Copyholder for Life oi a Manor where
theCuilom was, th-.'.t the Wife lliould have her W idow's Elfite ifcc.
'ivas attainted of Felony. The Queition was, whether, alter he was e>t-
ecuted, the Nv'idow ihould have her Free- Bench? and Jullice Winch,
who was alone in Court, held that Ihe Ihould not, without a ipeciai
Cuftom, for that Purpoie. Lex Maner'. 144, 145. cites HilJ. 19 J.ic,
Allen v. Booth.
6. Where the Hiishand'xs attainted of Treafon, the Wife does not lofe
the Dower of her Copyhold Lauds. Hard. 434 Hill. iS & 19 Car.
2. in Scacc. Duke of York & aP v. Sirjohn Marlliam, Baronet.
i Vern. SS5. 7- ^- ^Y'XS admitted in 'Trtifi for B. to a Copyhold, and the Queflion
pcrCowper was, v^\\tiX.hQv zht ]Vidow of A. the I'rtiffee A\(X noz come in Paramount
K. fte Ihall the Trull, and lh)uld enjoy her VV^idow's Eilate, and the Court at
Ocway'v ^aw was divided upon it; cited 2 Vern. 46. pi. 41. Palch. 16S8. as
Htidfon & the Cafe of Newbery v. Wighorn.
al'.
Cited by the Mafter of the Rolls 2 VVms's Rep. 644, Hill. 1752. in Cafe of Sutton v Sutton.
8. Copyholder for Life, where there is fuch Cuftom, agrees that /•
, S Ihould hold and enjoy during his Life, and the Widowhood of fuch Wo-
man as he Ihould leave at his Death, and enters into Bond tor that Pur-
pofe, and to Surrender on Requelt. A Bill was brought by the Pur-
chafor
Copyhold. 2 I 3
chafor againft the VV^idow, after the Copyholders Death, to bind her
by this Agreement. The Bill was difmifled with Colls, tor if fuch Cun-
trafts for Copyholds ihould be decreed, all Lords would be de-
frauded of their Fines &c. And put the Cafe, it one Joint-l^enant
agrees to alien, and dies before it is done, it would be a Strange Decree
to compel the Survivor to perform the Agreement. 2. Vern, 45. pi. 41.
and 63. pi. 56. Pafch. 16S8. Mufgrcve v. Dafhwood.
(I. e) Guardian of Infants Copyholders. Who
fhall be.
I. T F a Copyholder dies, his Heir under the Age of 14, the next of
X Kin Ihall not have the Cultody of the Copyhold Land, for the
Right of appointing a Guardian tor them de jure belongs to the Lord, that
fo he may be fure to have the Services done him ; This is a particular
Reafon why the Lord ihould have the Cuftody of the Lands againlt the
Common Rule for the Guardian in Socage ^ But the Reafon not ex-
tending to the Cuftody of the Body, it feems the Guardian in Socage
pall have the Body. This Guardianthip, fays Coke, De Communi
Jure belonging to the Lord, \ht Copyholder cannot by his laji Will and
'Tejlament appoint another Guardian ; Qusre, whether at this Day, by
Force of the Statute 12 Car. 2. cap. 24. the Devifee of a Child Ihall have
the Guardianlhip of the Child's Copyhold Lands ; for the Words of the
Aft fee the Statute at large. Gilb. Treat, of Ten. 311, 312.
(K. e) Infranchlfement. The Effeds thereof, either
as to the Land, or the Eftates in it, or the Incidents
to it.
I. T F the Lord charges the Inheritance of an Eftate, which is granted If the Lord
_ by Copy for the Lives of A. B. and C. and the Cuftom of the S''''"" ^
Manor is, that the firft Named fhall firft enjoy, and then the 2d, and oJ;"of'ihe'^''
then the 3d, and the Lord by Deed inrolled bargains and fells the inheritance
Inheritance to A. A. fhan't hold this charged during his Life ; for the of Copyhold
mean Eftates in Remainder of B. and C, preferve A's Eftate by Copy Land, and
from the Incumbrances of the Lord. 9. Rep. 104. 107. Pafch. 10 Jac. *l^"J''*""
in Margaret Podger's Cafe. j,oU l^l'i^,
the Copyholder for Life, he fliall hold the Land difcharged during his Life. Gilb. Treat, ot Ten,
235. cites S. C.
2. Debt againft an Heir upon a Bond, and Riens by Defcent in Fee
pleaded, &c. and upon the Evidence the Cafe was, the Land was Co-
pyhold, and by the Anceftor an Intranchifement ot it was procured of
the Lord, and the Freehold bought in &c. but the Copyhold was entail^
td long before, and by Ctiftomfuch Entails had been &c. within the Ma-
nor of Leeds, where &c. and whether this Entail fhall free the Ifiue,
(for fo the Heir here was,) or that the Copyhold ihall be fo extinguiih-
I i i ed
214.
Copyhold.
ed by this Purchai'e, ch^c ic be wholly fwallowed up, and that no Ule
can be made by the llTue otthis old Entail was the Queltion, and
Thorpe judge ot' Alfife, thought the I[jae might make Ufe of the Entatl,
Clayt. Rep. 138. pi. 249. Auguft 1649. Bernard v. Simpfon.
3. If Intranchifcment only alters the Manner oi the Tenant's Tenure,
fo as where the Lord was bound to repair a Way Ratione Termr£^ the
ancient Freehold and Copyhold Tenants are not liable to coiuributCi
for Nothing is Part of the Manor but Demefnes and Services, and not
the Lands of the Tenants, and tho' the Copyholds are afterwards in-
franchifed, yet they are not chargeable, becaufe it only alters the Man-
ner of the Tenure. Hardr. 131. Mich. 1658. in Scacc. Rich v.
Barker.
Jeffries (J. 4. A. Copyholder to him and the Heirs Male of his Body parchal'ed
atrerwards fj^g Fee-Simple to him and his Heirs, and afterwards, for 300 1. fold
^he'parcha- ^he Land to the Defendant, who was in Pofleffion feveral Years ^ The
lor, andde- Copyholder died, leaving llfue a Son; a Special Verditt was tbund cx.
clned, he Common Law; The Quellion is, if the Son has Right now? The
thought Lord Chancellor was of Opinion for the P«rc/ji3/or, that the Convey-
ibrr^the^' ^"^^ '^'^^ SO""^ againft the Heir; For the Copyhold being Severed
Freehold from the Manor, there is no Means to barr it but by Conveyance at
fliould at- Common Law; the Entail is not within the Stature of W''. 2. but Ld.
o-rfffihe Chancellor took Time to advife, 2 Ch. Cafes. 174, Hill, i Tac. 2.
other hltate t> 1 --n > • j
vhich wa, Barker v. Turner.
but at Will.
Vcrn. R. 552. Parker v. Turner, S. C. — Ld. C. thought the Copyhold was merg'J, 45S. S. C. .
S.C. cited 3 Wms's Rep. 10. in the Notes, and Ciys, Quaere if A. be a Copyholder in Tail, Re-
mainder to B. ill Fee, and A. takes a Grant of the Freehold from the Lord to him and his Heir.?,
ard dies without Iflue, is not B. in whom there was once a veiled Remainder in Fee of the Copyhold
Premises, intitlcd to the lame? — And Ibid in the principal Cafe, Trin 1 724- Dunn v. Green, Lord
Chancellor held, that unlefs it be exprefsly found, that the Cuftom of the Manor allows of latiils,
then this is a Fee conditional, and plainly mcrg'd by the Grant of the Freehold in Fee ; but fuppo-
ii;ig the Cufiom of the Manor does warrant Intails, yet the Copyhold is e.vtinguifhed : becaufe, in
the Eye of the Law, that is but an Ellate at Will, and muft be merged by the Grant of the Freehold.
The Premiffes by fucliGrant are fevered from the Manor, confequently the Cuftom of the Manor can-
not corroborate the legal Eftate at Will. The Copyholder cannot hold ot himleif, and the Copyhold,
though intailed, is fwallowed up in the greater Eftate of the Freehold ; and as the Tenant, afcer Ibch
Time as he took the Grant, did not himfelt continue a Copyholder, fo his Son, on the Defcent of
the Freehold, is likewife no Copy holder, which msy be iaid from Son to Son ad infinitum ; More-
over, if the Intail of the Copyhold be not extinguifhcd, it will be a Perpetuity, fince the only proper
way of barring the Intail of a Copyhold is by Recovery in the Lord's Cour:, but after fuch Sever-
ance, as in the piefent Cale, no Recovery can be futFcrcd in the Lord's Court.
z And 16S. ^. Copyholder purchafed the Freehold with all the Commoiis helong-
Worledge ^-^^^ ytt iht Comr,20H IS extiiiB i But if the VV^ord Gra^;; ^f ;» the Deed,
^Vu^'— But '^" ''^'^ Pleaded by way of Grant it is good. Cumb. 127. Trin. i \V.
whether & M. in B. R. Speaker v. Styant.
this was
Common in Grofs, or Common Appurtenant, it was not refolved. Ibid, 170 Though the Woil-.
(Cum Pertincntiis) will not pafs the Common, yet if the Grant be, with all Cimmens hefori: Hfed. ir
will pafs. Bulft. ?.. Marfham v. Hunter. Though it be extinil at Law, yet it fubfifts .vj £^/;-
ty. a Vern. 160. Styant v. Staker.
Freem Rep 6. The Lord leafes a Coal-mine for 99 Years, ztiA grants a Way
273 pi. ;od Qygr Copyhold Lands in Fee, which was not a Way of Right, or ot
a dlileren't" Necellity. The Copyholder purchafes the Freehold and Inheritance
Puint of it, by which the Copyhold was extin£l; Whether by this the
Grant of the Way in the Leafe ot the Coal-mine may Co-operate as well J
as if the Locus in Quo had been in the Hands of the Lord at the Time '
of making the Leale ? This was adjourned to be argued, but never
was, the Matter being compounded. 2. Lutw. 124S. Hill. 11 SV. 3.
Dixon V. James.
7. By;
Copyhold. 2 I c^
" By Infranchifement of his Copyhold Eftate Common m the iVaftes i >^alk. ^66.
r.f che Lord out of the Manor is not extinSy but Common in the W'aftcs ^l^' 7"^
o(x\itLor<\ ivitbin the Manor \s xhtvoby extinft. i. Salk. 170. pi. 3- s. C^'rer^'
Hill. 4 Ann. B. R. Crowder v. Oldfield. HolrCh. j.
the Common
belongs not to the Land, but to the Copyhold Eftate.
c
(K. e. 2) Infranchifement. Equity.
'Tlfiband and Wife, Joint en ants for Life, Remainder in Fee to the
__ 1. ^^'A'- The Husband purchares the Freehold, and takes the
Conveyance to himfelf and his IV'ife, and their Heirs. The Husband
dies. The Wife furrenders to the Ufe of a Daughter by a former Hus-
band ; And decreed accordingly againlt the Heir. 2 Vern. 164. cites
Feb. 22. 1675. Croft V. Lyrter.
2. Copyholder in Fee takes an Infranchifement of his Copyhold in
the Name of aUruJiee.^ and then devifed it to a younger Son, who fells ic
to J. S. The Heir at Law recovered in Ejefctment, (as he miijht do
upon his Anceltor's Admittance.) On Bill by J. S. ic was inlirted, that
that the Eltate purchafed of the Lord was purelv an Eltace in Equity,
according to gimitl) 3110 S^UCnn'0 Cafe, 4 Rep. 24. b. and that the
Difpolition of the Fee to the Purchafor, was a Difpolition of the whole
Eftate that the Copyholder had, either in Law or Equity ; and decreed
accordingly ; per Finch C. And affirmed on Bill ot Review, per Jef-
fries C. Vern. 392. pi. 364. Hill. 1685. Dancer v. Evett.
3. Lord of a Manor infranchifes a Copyhold with all Commons thereto
belonging. Decreed, that PlaintitT enjoy the fame Right oi Common
as belonged to the Copyhold, and Colls againft the Defendant. 2
Vern. 250. pi. 236. Hill. 1691. Styanc v. Staker.
(L. e) Jointenants, and Tenants in Common.
I. npWO Jointenant inCoinmon oi -a Manor; a Court is fummoned
X ^j' one without his Companion; ic is a void Summons. D. 377,
Marg. pi. 28. cites 27 Eliz,. Heniefton's Cafe.
2. If in thzt Cafe the Copyholder, who made the Surrender, had died
before the Jame had been prefented, then the Copyhold had lurvived to
the furviving Joincenanc. Supplement to Co Comp. Cop. 6^
S. 3.
3. If a Surrender be made of a Copyhold to the Ufe of a lafi Wtll^ and Gilb. Treat-
the Surrenderor devifes it to tiiVy the one ts admitted according to the Pur- of Ten.
port of the Will, tinaihiiXenureto both. Co. Comp. Cod. •co S 2? 5'^, 5?^
^ *^ -^ • • 3J- S p. For
admitted he is in by the Suvrcnder, which he cannot be unlels he be a To'ntenan- • f^,'"^.^^" ^^ ^1 ■
Title by the Surrender. ^ ncenan. , .or that is his
4. Two Jointenants, Copyholders in Fee; one Surrendred into theCo.Lln.
Hands of the lenants, to the Ufe of his Will, and makes his Will or the 59- b. S P.
Land, and dies ; Refolved, that this Surrender fhoiild hind the Survivor, ^^<^°''^'"«iy>
lor being prevented, it fhall relate to the firll: Time of the Surrender derbdng"'
and
2\6
Copyhold.
prefented and J udgofenc accordingly. Cro. J. ioo.pl. 30. Mich. 3 Jac. B. K.
at the next portet V. Portcr.
loititure was fever'd, and the Devifee ought to be admitted to the Moiety of the Land. Gilb,
Treat, of Ten. 259. cites S. C.
5. One Jointenant Copyholder nkafed to his Companion ^ Ad-
judged to be good without Surrender and Admittance j tor per
Hobart Ch. J. the firfl: Admittance is of them and every of them,
and the Ability to releafe was from the firlt Conveyance and Admit-
tance. Winch. 3. Pafch 19 Jac. Wafe v. Pretty.
6. Two Coparceners Copyholders in Pofeffion, one Surrendered his
Rever/ion i» the Moiety after his Death. 'Twas moved, that
nothing pafled, becaufe he had nothing in Reverlion, and cited 5.
Rep. Saffin's Cafe ; 2dly, That it is not good after his Death, and
cites it as adjudged 2. Rep. Buckley v. Harvey ; Per Cur. the
. C-- r • Surrender is void, and it is all one in Cafe of Copyhold as of Freehold.
K.^s.mpions ^^^^ ^^^ pj ^^g p^^^j^^ j^ ^^^^ g_ j^ 2^^^^^ ^ Taylor.
And cited
it as ad-
judged 26
Eliz. in
Piatt's Cafe,
and ibid,
cites 3 Car.
Supplement
to Co. Comp.
Cop. 69. S. 5. cites S. C.
Cites I.
Inft. 59. b.
Cro.
J. 100. Por-
ter V. Por-
ter. •
Brownl.
127. S. P.
in Cafe of
Allen V.
Nalh.
7. A Man Surrenders Copyhold Land to 2, equally to he divided^ they
are Jointenantsj But fuch a Devife would have made them Tenants in
Common J Per Twifden. J. Arg. Vent, 376. Trin. 26 Car. 2.
B. R.
S. If there are 2 Jointenants of a Copyhold, and one furrenders out of
Court ?o the Ufeofhis Will, and devifes his Moiety to a Stranger, and
dies, and afterwards this Surrender is prefented at the next Courc &c.
the Devifee ought to be admittedj for by the Surrender and Prefent-
ment the Jointure was fevered, for the Land was bound by the Surren-
der by way of i?e/^//(j». 4. Mod. 254. Hill. jW. &M. in B. R. in
the Cafe of Benfon v. Scott.
-S. P. cited per Coke. Ch. J. as adjudg'd. Noy 142. in Gafc of Allen v. NaHi.
(L. e. a) The King. In what Cafes the King fhall have
Copyhold Lands.
I. r-piH E King fliall not have the Cuflody cf an Ideofs Copyhold
_1_ Lands, tor it is but Eftate at Will by the Common Law, and
his having the Cuftody would be great Prejudice to the Lord of the
Manor. 4 Rep. 126. b. Pafch. i Jac. B. R. in Beverley's Cafe.
2. Alien purchafes Copyhold Land ; He cannot retain it, nor fhall
the King have it, but the Lord of the Manor. D. 302. Marg. pi. 46.
fays, that Harifon, in his Reading in Lincoln's-Inn, 1632. cited ic
as fo refolv'd.
3. H. purchafed a Copyhold inFee, in Trufl for an Alien, and upon anOffice
io\i.vA,theKing feifed to havetheProJits anfwer'dto him, the Court held, that
they were not feiz,able, neither was the Trufl forleited to him, and an
Amoveas Manum was granted, becaufe the Lord would lofe his Fine''
and Services ; belides, it may be prejudicial to a Stranger, who may
claim a Title to this Copyhold, and if it was not in the King's Hands,
the Lord's Court, but the King cannot be fued
there
might fue for it in
Copyhold. 2 1 7
there, and the King cantiot be a T'enaiit at IVill, and confeqanntly not a
Copyholden Per Hale Ch. B. Hardr. 435, 436. Hill. iS 61 19 Car. 2.
in Scacc. cites 16 Car. The King v. Holland.
(M. e) Leafes by the Cuftom, and without ; and who
bound by them.
-A
Cuflom that a Lord of Cii/lomary Land per Cuftom may let this
for Lff-^ and 40 7'ears over, is good, but a Ca/hsn that a Lejfee
for Lije may leafe par aiiter Vie is noc good. Mo. 8. pi. 27. Hill. 3 E.
6. Anon.
2. It Tenant in Tail kafes a Copyhold by Indenture, rendring the fame
Rent as before, ic is a good Leafe within the Statute 32 H. 8. per Cur.
Cro. |. 76. pi- 6 cited as ruled 7 Eliz. in Sir Ja. JVIervin's Cafe.
3. it was Refolved by the Juilices, That a Cuflom, that a Le fee for Mo. 8. pi.
Tears may hold the Land for half a Tear after his Term ended, is no ^7 Hill- 5
good Cuttom ; Kut it was agreed, That the Lord of a Copyhold might g- p ■^"°^-
by Cnfioni leafe the fame for Life and 40 Tears after, and that fuch a j^e firft
Cuftom was good. Co. Comp. Cop. 85.8. 19. panagi-eed
by all the
Tufticcs and the laft Point a.'^reed by Mountague and Hales, but that a Cuftom that a Leffee for
Life may leafe for another's Life is not good.
4. Copyholder for Life farrendred to K. the Lord of the Manor in Tail,'^°'^ "o-
the Reverfion in the Crown. K. made a Leafe for three Lives, the Leafe ^' ■
to begin from the Day of the Date, and the old Rent was referv^d, and
more. It was refolv'd by the Juftice^, that it was a good Leafe with-
in the Statute of 32 H. 8. if Livery was made after the Day of the
Date. Mo. 759. pi. 1050. Pafch. 3 Jac. C. B. Banks v. Brown.
5. If a Copyholder without Licence of the Lord makes a Leafe for U a Copy-
Tears, the Leffee that enters by Colour thereof is a Difeifor, and therefore holder de-
cannot maintain an Eje^ment ; and the Defendant cannot plead that the""'" '"^"''^
Plaintiff' by Licence did not demife, for this is a Negative pregnant, yja^s with-
2 Brownl. 40. Hill. 8 Jac. C. B. Petty v. Evans. out a Cuf-
tom or Li-
cence, he fhall be taken for a Diffeifor ; Per Opinionem Curia. Brownl. 15;. Pafch. S Jac. Cram-
porn v. Frefhwater 2 Keb. 598. Arg. fays, that the Leafe ot a Copyholder is no DilTeifin,
though it be a Forfeiture, nor does ic alter the Eftate of the Lord. Hill. 21 & 22 Car. i.
B. R.
6. A. feifed in Fee furrendered to the Ufe of B. and his Heirs,
into the Hands of two Tenants, according to the Cuftom, to be pre-
fented at the next Court, and and no Court was held in 30 Tears after,
and before any was held. Surrenderor and Surrenderee, and both Tenants,
died. The Heir of Surrenderor entered, and made a Leafe for Years of
the Copyhold according to the Cuftom of the Manor, and adjudg-
ed, that the Leafe was good. Godb 268. pi. 372. Mich. 14 Jac.
B. R. Anon.
7. Infant Copyholder makes Leafe for Years, this is no Forfeiture; Lat. 199.
neverthelefs, as to a Stranger, he continues Leffee for Years, tho' the S. C
Lord may leife for a Forfeiture, and tho' he was admitted by the ^°^^ 3*^4-
Lord, yet this does not avoid the Leafe, therefore his Acceptance at ^^^'
full Age is good, and fhall bar the Infant, as if it was a Leafe ofs. c '■ — .
Lands at Common Law i Refolved and affirmed, becaufc Leafe of a Leafe foi
K k k Copy-
2i8 Copyhold.
Yeais by Copyhold for Years, tho' it is a Forfeiture in regard to the Lord, yet
h°^ood''^^'' ^■'^^^^ h& good as to Strangers. Jo. 157. Palch. 3 Car. B. R. AMdd v.
atamftall AMeld.
but the
Lord. Cro. E 555. pi, 68. Goodwick v. Longhurft. 157^. Sparke's Cafe.^ Cro. C. 504. per
Gawdy and Fenner J. and that there is no Ditterencc where the Manor is the Kiiij^'s, or a Common
Perfbn's ; But Clench J. denied it, and Pophani laid nothing. Cro. E. 492. pi 8. Hill. 58 Eliz.
B. R . in Cafe of Haddon v. Arrowfmith — ^Gilb. Treat. ®f Ten. z-tf, 277. cite.s S, G. of Afli field
V. Afhfield, and fay.s, th-it it feems the Lord may enter tor the Forfeiture during the Nonage, and
need not ftay to fee whether the Infant will accept the Rent or no, for the particular Prejudice
done to the Lord, and if he fliould ftay his Acceptance of Services from the Infant, in the mean
time it would be a Difpenfation for the Forfeiture ; but then the Intant, ar his fuJl Age, by dif-
agreeing to the Leafe, may avoid the Forfeiture.
Gilb. Treat. g. A Cuftom^ that on Payment of lo Tears Rent the Lordfioald Licenci
'^\'^^'^-yi'-to let for g() Tears, and that if he refnfed, the T'en ant might do it ivith-
asadiude'd '^^'^ Licence, was adjudged good j cited by Morecon, as in the Cale
good, oi Grove v. liridges. 2. Keb, 344. in pi. 18. Pakh. 20 Car.
2. B. R.
(N. e) Leafe by Licence, and without. Good. And
How it Operates.
Cro. E. 462 I. A Condition to a Licence is void ; as a Licence to make a Leafe
pl. 8. S.C. £\_ for Years, on Condition that he pay 20 L the 2d. Year 3 for
r Po ha ^^^^ Lord gives nothing by the Licence, but only dKpences with the
and Fenrfer! Forfeiture, and the LelFee is in by the Copyholder and not by the
Pop- Lord, tho' Licence docs not give a Right, bttt only executes it as a Livery
ham 105, cr Attornment. Per Popham and Fenner Juftices. Ow. 73. Hill. 38
J06. s C £^j jj^ Q^^g ^f Haddon V. Arrowfmith.
and agreed
that a Li-
cence to leafe the Copyhold cannot be made void by a Condition Subfcquent to the Execution there-
of to undo what was once well executed ; But a Condition precedent may be united to it, becauTe
in fuch Cafe it is no Licence till the Condition is perform'd.^ If by the Cuftom a Copyholder
may only make a Leafe for one Year, and he is licenced to leafe for Ninety Nine Years, it was
doubted, whether he fhould ajpgn bis Licence or make an Uuder-Leafe ; and held he might becaule
the Lord's Intereft was bound for 99 Years. 12 Mod 250. in C B.
1
GilB. Treat. 2. A Licence was granted to let the Lands /or 21 2'ears to commence*-^
of Ten. j-ygj^^ Mich, lafl faji ; The Copyholder made a Leafe for 21 2'ears to com-
"^c"^^ ^nence from Chijhiias next following ; adjudg'd, that this Leafe was not
warranted by this Licence. Cro. Eliz. 394. pl. 21 Palch. 37 Eiiz,.
C. B. Jackfon v. Neale.
3. Tenant at Will can't by any Cuftom make a Leafe for Life by Z/4
cence of the Lord, and there can't be any fuch Cuftovi tor a Leafe fop
Life as there is lor Years j Per 3 Juftices. Godb. 171. pl. 236. Pafch.^
« Jac. G, B Anon.
4, If the Lord grants Licence to his Copyholder to dcmife, and he
demifes it by Indenture, it is the Leafe nfthe Copyholder, and not of the Lord.
Hob. 177. pl. 203. Hill. 14 Jac. in Cafe of Swinnerton v. Miller.
LItt. Rep. 5. If a Copyholder makes a Leafe for 20 Years with the Licence
15^2? 5- of the Lord, and alter dies without Heirs, yet the Leafe ihall Itand
s. C&S. P jjg,^jj^(|. the Loid by reafon of his Licence, which amounts to a Con-
1— ^Hctl firmation. Hutt. 102. per Cur. Mich. 4 Car. in Cafe of Turner v.
128. SC. Hodges.
& S. P. by
H-jtton J.' — S. P. by Yclverton J. con'r.i Hutton J, Pcph. iSS. Mich. 2 Car B, R. Anon.- — So if
• the
Copyhold. 2 1 9
the Copyholder fliould foi-teit his Eftate, the Leafe perhaps woulri ftand good at>;ainft the Lord, the
Demife being by Licence ; per Cur. Hob. 177. pi. 203. S. P. Arg. Palm. 384. z Roll Rep.
372. Arg. S. P.
6. The Lord agreed with his Copyhold Tenant to grant a Licence
to let his Eftate for as long Time, and in as large a Manner as had
been tormerly granted to his Father or Mother, and 300 1. was paid
him for it. The Agreement was proved, and Dclendant confelRng
he had granted a Lice^nce to the Plaintiff's Mother to lee it for 60
Tears^ decreed he Ihould Grant the like Licence now. N. Ch. R,
49. 1650. Hungert'ord v. Auften.
7. If the Copyholder make a Leafe for Years by the Lords Licence,
the Le[fee may yi[//gn over his Leafe., ur make an Under- Leafe for Years,
•without any new Licence ; for the Lord's Interelt is diicharged for fo
many Years. Gilb. Treat, of Ten. 282.
(N. e. 2.) Licence to let. Pleadings,
1, A Copyholder cannot make a Leafe for Years unlefs by Cuftom,
Jf\^ QxhY Licence o'i\v\s Lord, which ought fpccially to be pewn i
Per Cur. Cro. E, 728. pi. 5. Mich. 41 & 42 Eliz. C B. Kenley v.
Richardfon.
2. In Ejeffment brought by LetFee of a Copyholder, it is fufficient
that the Declaration be general v^'nhoni any Mention of the Licence, and
if the Defendant plead Not Guiky, then the Plaintiff ought to fliew
the Licence in K-oidence ; But if Defendant plead fpecially, then the
Plaintilf ought to plead the Licence certainly in his Replication^ and to
lliewwhat Eftate the Lord had, and the Time and Place when it was
madei for the Licence is traverfable. 2 Browni. 40. Hill. 8 Jac. C. B.
Petty V. Evans.
3. In Ejeifment by LefTee of a Copyholder it ought to appear what E-
Jiate the Lord had ; for he cannot give Licence to make a Leafe for long-
er Time in the Tenancy than he had in the Seigniory ; and if the
Lord be only LelTee for Life of the Manor, by the Death of him the
Licence IS determined., though the Copyholder be of Inheritance thereby.
2. Brovvnl. 40. Hill. 8 Jac. C. B. Petty v. Evans, als. Debbans.
ilement
(N. e. 5) Lord of a Manor's Power as to determining
Difputes between Copyholder?;
t. A Copyholder doth /?^rrfWi?r to the Ufc of one A. tipm friiji that^^^^
J~\ he'jhall hold the faid Land until he hath levied certain Monies ^^ Co. Com^.
andthataferzvards he pall fiirrendcr to the life of R. The Monies are te- Cop. 80.
vied. A. is required to make Surrender to the Uie of B. but A. refufes. ^- '^ '^'^'^^
B. exhibits a Bill to the Lord of the Manor againft the faid A. who, qj];,''^^.^^^^
upon hearing of the Caufe, decrees againft A. that he pall fiirrender ■ ot Ten.
hut A. refufes; ^o'n the Lord may fife .^ and admit B. to the Copyhold, 2(52 cites S.
for ^' -''^'^"rd-
ingly.
'2 2 0 Copyhold.
ior he m fuch Cafes is Chancellor in his own Court, per toi:. Car. Le. 2. .
pi. 2. Hiil. ?5 tliz.. R- R. Anon,
2, It a i-'^i/y^ JiidgmeJit be given /« i2 Court Baron by the Steward againji
a Copyholder^ the Copyholder, in fuch Cafe, Ihall not have either a Writ
ot Error, or a Writ ot'FaHe Judgment i hut he may fue m the Court of
the Lord by Bill^ to be relieved againll I'uch Judgment, and the Lord,
as Chancellor, may give him Relief therein, and ihall reltore the Land
to the Party upon the Falfe Judgment given by the Steward, and Re-
llitution made to the Copyholder. Supplement to Co. Comp. Cop. 80.
S. 14. cites 14H. 4. 34.
Vevn ;67. 3- ^dppeal from a Decree of Difimffion made by the Lord Jeffrey's ;
pi. ;6o. the EiU was, to compel the Dean and Chapter, as Lord of the Manor^ to
Hill. 16S5. receive a Petition i/i Nature of a Writ of Falfe Judgjuent jor reverjing a
^fh'vTlo^ Common Recovery {u&xccX in the Manor Court, in 1652. whereby a Re-
ple, and the maiuder 1)1 'fail^ under which the Plaintiff claimed^ was barred, fuggefiing
Dean and feveral Errors in the Proceeding therein, and that the laid Lord might
V'"p^^p°^ be commanded to examine the fame, and do Right thereupon. It was
^ cThc^* further urged, that there was no Precedent to enforce Lords of Manors
Defendant to do as ihis Bill delired ; that the Lords of the Manors are the ultimate
Regie de- Judges of the Regularity or Errors in fuch Proceedings ; that there is no
mun'd; the Equity in the Prayer of this Plaintiff, that if the Lord had received
Chapter an- ^^^^ Petition, and was about to proceed to the Reverfal oi fuch Re-
iser \i the covery. Equity ought then to interpofe and quiet the Polleiiion undLr
Bill, and thofe Recoveries ; that Chancery ought rather to fupply a Deleft in a
lubnntted Common Conveyance (if any fliali happen) and decree the Execution of
CouViTiouM what each Party meant and intended by it, much rather than to affili:
riircft. The the annulling of a folemn Agreement executed according to Ufage, tho'
Demun-er not ftriftly conformable to the Rules of Law ^ for which Reafon it was
wasallow'd prayed, that that Appeal might be diimifled, and the Difmifiion below
ileroVthe confirmed, and it was accordingly adjudged fo. Show. Pari. Cafes
Eolis, and 67. 69. Smith V. Dean and Chapter of Paul's (London,) and Rugle.
afterwards
argued again before Lord Chancellor, who was of the fame Opinion, and confirmed the Mafterofthe
RoU.s's Order; and both of tliem (eveially declared it would be of dangerous Confequence, and con-
trary to Fquity, to give any Relief in fuch Cafe ; And yet the Errors afTign'd by the Bill in the Re-
covery were (uch as would have been grofs Errors in a Recovery of a Freehold Elt.ite ; And Lord
Chancellor faid, if there had been an Error in any adverfary Proceedings in the Lord's Court, this
Court would have ordered the Lord to proceed and examine it ; and told them, that they might try
the Common Law Courts, wliethcr they will grant him a Mandamus, but that he ftiould have no Aid
from Chancery. 2 Chan. Rep. iS;. S. C.
(N. e. 4) Copyholder Luna tick, Ideot &c.
I. T T was clearly agreed by the Counfel of the Court of Ward s^ that
J^ a Copyholder, who is an Ideot^ ought not to be ordered in this
Court for his Copyhold, but itfhall be done in the Court of ihc Lord of
the Manor. D. 302. b. 303. a, pi. 46. Trin. 13 Eliz. Anon.
Gi\b. Treat. 2. A Copyholder was Deaf and Dumb j the Committee of the Lord of the
of Ten. 209. Jlfafjor, who was in Ward^ granted the Cujlody of that Ccpy hold Land to
^'h'-'^'Lot-d another, who entred, and the Prochein Amy of the Copyholder entred
ftallnot upon the Grantee ; Adjudged, that the Lord fliall have the Cuftody ;
have the For othervvile he might be prejudiced in his Rents and Services, and
Cuifodyof hig Grant was good. Cro. J. 105. pi. 43. Mich. 3 Jac. Ea\ers v.
Lunatick t;i,;„„^,.
Pcrfons i>kinner.
Lands, un-
kfs thtir be a Cuftom for it ; Neither fliall ihe King have it for the Prejudice that would cnfue to
the
Copyhold. 22 1
( O. e) Mortgages and other Charges. How they
Ihall affe6i: a Copyhold.
I. TF Tenant hy the Curtefy^ or Tenant /or Life., or for Tears., he of a
j^ Manor ^ and a Copyhold comes into his Hands ^ either by Forfeiture^ or
other Determination.^ and then he beco7nes hound in a Statute Staple or
Merchant and akerwdids demifes this Copyhold again, it fhall be liable
to the Statute, becaufe it was once annexed to the Frank-tenement
of the Lord, and liable in his Hands ; But if a Copyholder binds
himfelf in a Statute, his Lands ihall not be extended, becauie he has
only an Eftate at Will ; And this Diverlicy was laid to be agreed in
C. B. Mo. 94. pi. 233. Pafch. 12 Eliz. Anon.
2. A. Mortgaged Freehold and Copyhold Lands to B. and A. agreed to A Snrrerier
to furrender the Copyhold, hut died before it was done. Decreed, that was decrted
:he Heir of A. when of Age, Ihall make a fufficient furrender Nili l^^^" ^^^
L 1 1 Caula '■^°'''S^2«
N
tne Lord.- Ibid. 2<;o. fays it was held by Hobair, th.-Jt the Lord of a Manor hath not the Cu-
ftody of a Lotiatick's Land de Corfimuni Jure, but tUcrc viuft bs a Citjlom tciv.irrant it. Hob,
215 pi. 278. Hill. I 5 Jac. S. P. by Hobart Ch. J. For the Imiiation ofthe Kinp's Power over Freeholds
makes no Confeiiuencc ; For though he took the Statute to be only an Affirmance of the Common Law,
in Cafe of the King, yet the collateral Incidents of Eflates, As Dower, Tenancy by the Curtefy, Ward-
ihips &c. are not without fpecial Cuftom. — Gilb. Teeat. of Ten. 290, 291. cues the principal Cafe
of Ewers V. Skinner, where no Cuftom was laid, and the f^iieftion was, between the Procbein Am/
and the Lord; and the Realbn given why the Lord fliould have the Cuftody is, becaufe otherwife he
would be prejudiced in his Rents and Services, which Reafon extends as well where there is no Cu-
ftom as where there is ■ and if the Cuftody of one tliat is Mutus & Surdus of Common Right belongs to
the Lord, by the fame Reafon of one that is Lunatick 5 Ideo quEre.
3. Copyholder for Life becomes Lunatick, and A. his Coujin fows /??/j Hutt. itf, 17-
Land; atterward.s x.W Lord grants the Cu/lody ofthe Lunatick to B. J. takes ^;''^']> "^ /^
the Corn to the Ufe oj the Lunatick, and B. brought an JBivn ofTrouer and'pi^^ Qp°."
Cotrccrjion in his own Name. It was faid by the Court, that it was nionofthe
ill brought, for he ought to have brought it in the Name of the Lu- Court was,
natick. Thefecond Opinion of the Court was, that as this Cafe flood, ll"' ''^.^
neither the Lord nor the Committee have any thing to do to meddle ^.35 ^t as
with the Corn. Noy 27. Hill. 13 Jac. C. B. Cox v. Dawfon. Bailiff, and
had no In-
tereft, but for the Profit and Benefit of the Lunatick, and as his Servant, and it is contrary to the
Nature of hi- Authority to have an Aftion in his own Name; For the Intereft, and the filiate, and
all Power of Suits is remaining in the Lunatick.
4. The Lord of a Manor has no Power to difpofe of the Copyhold of a Lu-
natick without fpecial Cujlont, no more than a Man Ihall be Tenant by
the Curtefy &c, of a Copyhold without Cuftom, nor the Lord cannot
commit during the Minority of an Infant Copyholder without Cultom j
Agreed per tot. Cur. Hutt. 17. Pafch. 16 Jac. Anon.
5. Lord of a Manor having a Copyholder, a Lunatick, in his Cu--
ftody, grants over the Cuftody to another, who brings an A6tion in his
own Name. It was held not to be well brought ; for the Committee
has no Intereft, but only a bare Cuftody, and therefore the A[iion ought
to he brought in the Lunatick' s Name ^ and by the fame Reafon, the Lord
himfelf could not bring an Aftion in his own Name j for if he had In-
tereft himfelf, he might have alligned it over. This being a bare Cufto-
dy, the Grant by the Lord could be no Infranchifement of the Lands.
Gilb. Treat, of Ten. 290.
2 2 2 Copyhold.
wasofthe Caufa wichin 6 Months after his attaining 21. Fin. R.. 272. Mich.
Copvliold 28 Car. 2. Pattilbn v. Tompfon.
bv Deed,
and no Agreement to furrender. Fin. R. 55 r. Keen v. Sparrow.
There has 3. Copyholder of Inheritance makes a Mortgage furrender for 6 Months^
been gene- j.j,g xMoney not paid^ but Mortgagee confenting to continue his Money,
ticc-d in" moft ^"'i take a new furrender, the Lord inlifted on Admittance of Mori-
Copyhold gi^gee-, and to pay a Fine for the t'Wo Tears Value ; the Court would make no
Manors, Decree in Favour of the Mortgagee, but only to try it at Law, (if
^1^^' "P°" he thought fit) if the Lord by the Cujlum of the Manor was bound to
ofVcopv-'^^ renew the Surrender to accept the 2d. ifnot (thougii a hard Cafe) yet was
hold the not be relieved in Equity. The Matter was after ended by Compromile,
Mortgager and a Fine of 40 1. paid to the Lord, the Eftate being 100 1. per
furrenders Annum. 2 Vern. 367. pi. 330. Mich. 1699. Treadway v. Fo-
into tiie ,1 ^ I t ^
Hand, of therly.
2 Cuftomary
Tenants, to the Ufe of the Mortgagee, upon Condition to be Void, if the Money be paid at fnch
a Day ; Now to avoid tlie Fine to the Lord, the U/iiaI way is not to prefent the Ji:rrender at the next
Court, but after the Courtis over, to make a new Surrender into the Handset two Cuftomary, Tenants,
ut fupra and fo from 'time to 'fhve, as often as any Court fliall be holden ; \i\\\c\\ Ncn-prcfentment \s
at Law a Forfeiture, and to be relieved againft this Forfeiture was a Bill exhibited, which iNgrth
Lord Keeper denied to help, but left them to the Common Law. Skin. 142. pi. 15. Mich ;; Car.
2. in Chancery.
Ch.anPrec. 4. Though a Bond will not bind a Copyhold Eflate, yet v/here there
2^7. pi- is Freehold and Copyhold in the fame Mortgage^ decreed the Plaiiicitf
199. Afton ^vvho was a Creditor by Bond given her by her Baron, before Marri-
SC A age to leave her 1000 1.) to redeem and holdover. 2 Vern. 40S. pi.
Man before 436. Hill. 1704. A6lon V. Pearce, Saxby, & aP.
gives Bond
to the Woman to leave her a 1000 1. and then marries her, and dies intcftate, and bis Eftate both
Free and Copyhold being all in Mortgage, ihe takes out Adminiftration, and on a Bill againft the
Heir and Mortagee let into a Redemption of the whole, tho' the Bond was releafed and gone at
Law by the Intermarriage, and tho' the Copyhold not al-Iefted by the Bond, it being in Nature
of a Marriage Agreement.
5. A. made a Mortgage of all that Mefuage called Bilhops, with all
the Land therewith ufed, and enjoyed, or reputed Part or Parcel there-
of, or whereof any in 'Trufi for him were feifed. Bithops Mefuage and
Lands were Freehold. But A. had a Right to 8 Acre.s of Copyhold,
but the legal Eftate was in J. S. Per Cowper C. here is iiofpecifck A-
greement for the Copyhold, and took it, that nothing was intended to
pafs but the Freehold, and affirmed the Decree made before. 2 Vern.
636. pi. 56411111. 1708. Oxwith V. Plummer.
6. Bill by the Heir of the Mortgagor to redeem a Mortgage of Copy-
hold Lands upon Payfiient of Principal and Intereji due upon the Mortgage,
the Default injijls to have a Judgment which he had ajtgned to hiin^ Jirfi
fittsfled htiort the Plaintiff Ihould be let in to redeem. Curia, Copy-
hold Lands are not liable to an Execution upon a Judgment, and
therefore the Judgment pall not be tack'd to the Mortgage in this Cafe,
but the Plaintiff Ihall redeem upon Payment of what is due for Prin-
cipal, and Interefl, and Colls, upon the Mortgage,^ without fatisfy-
ing the Judgment i Per Harcourt C. MSS. Rep. Patch. 13 Ann. Cane.
Heir of Cannon v. Pack.
(?. e^
Copyhold. 2 2'^
(P. e) Prefcrjption by Copyholders. Good ,
and How*
1. A^Opyholder fliall prfcribe by TJjhatmn eft againft his Lord ^ but
\^ ag.iinlt a Sirangtr he Ihall prefcribe /;; the Name of the Ld. Per
tor. Cur. Mo 461.pl. 646. Hill. 29 Eliz,. Perry's Cafe.
2. A Copyhclder prefcribes, that every Copyholder of fuch a Parcel^- R«p- 27-
0/ Wcod bad ttftd to cut down Trees there growing, and held good; L.' P;' 5-
And a Dilierence was taken between a Prefcription for Freehold and for Eliz. s'c
Ccp) hold L.-dud ; For C«/?w;/, which concerns Freehold, ought to be bur s. P.
throughout the County, and cannot be in a particular Place i But a does not
Prefcription concerning Copyhold Land, is good in a particular Place ; ?PP"''- 3
For De Minimis non curat Lex, and the Law is not altered thereby, pi^', 53°^'
and it may be there is but one Copyholder there for which he might s. C. but S.
Prefcribe; And Cuftom to have Pro/it^ y}pprefider, Privilere, or ^^/l P- does not
charge^ may well be in a Particular. Cro. E. 353. pi. 10. Mich. 36 &*PP«^''-
37 Eliz C. B. Taverner v. Ld. Cromwell.
3. Copyholder lays a Prefcription in the Bp. of \V. Ld. of the Ma-
nor for himfelf and his Tenants to be difcharged I'fTythes, and then *^''o-E- 7^4-
prefcribes for the Copyhold i thq' here is a Prefcription upon a ■^>*^-?; ,r f„.j
jcription, one in the Copyholder to make his Eftate good, and the other a/coriin^-
the Lord to make his Difcharge good, yet adjudg'd by 3 jullices, but ly ; For"alI
Popham e contra, that Prohibition lay for the Copyholder. Yelv. 2. Copyholds
Pafch. 44 Eliz. B. R. Croucher v. Fryar. «>■= '^f '/'^
~~ •' out of die
Manor, and it fliall be intended that this Prefcription and its Commencettient at fuch Time when
all was in the Lord's Hands; And the one Prefcription is not contrariant to the other, tho' both were
from Time whereof &c. For the one fhail give Place to the other. Gilb. Treat, of Ten 292.
cites &. C. Mo. 618. S. C. the Court were at firft divided in Opinion, but afterwards it was
adjudged by three Juftices, contra Popham, for the Plainiitl in the Piohibition, viz. that the Pre-
fcriptions may Hand together.
4. A C«/?ow which goes in Maintenance and making of a Copyhold
Eftate lliall be taken favourable; Per Popham. Cro. E. 879. pi. 10.
Pafch. 44 Eliz. in Cafe of Bafpool v. Long.
5. II 'I'enants of a Manor v/ill prefcribe to hold without paying any
Rents or Services for their Copyholds, this is no good Culfom, but to
prefcribe to hold by Fealty for all Manner of Services^ is good and reafbna-
ble. Calth. Reading. 29.
6. If the Lord u ill prefcribe never to hold a Court but Isjhen it pkafes
himf'elf, this is not good; But to prefcribe never to hold a Court for the
fpectalgood of any one 'Tenant, except the fame Tenant will pay him a Fine
for the fame^ is good and allowable. Caleb. Reading. 29.
7. If the Lord will prefcribe to have of his Copyholders in the Time of
Peace, 2d. an Acre of Rent, and in the Time of War ^d. an Acre of Rent,
this is good Prefcription, becaufe there is a good Conliderationof the
Caufe of this uncertainty; but to pay unto the Lord 2.cl. an Acre Rent
when he will, and ^d. an Acre Rent when he will, this is no good Pre-
fcription, becaufe there is neither good Reafon nor Coiilideration here-
of, nor can it ever be reduced into any Certainty. Cakh. Read-
ing. 32.
S. It the Lord will prefcribe to have of every of his Copyholders for
every Court thatflsall be kept upon the Manor, a certain Sum of Money, this
is no Prefcription according to common Right ; becaufe he ought for
Jullice-Sake to do it Gratis. Calih. Reading.
9. If
2 24 Copyhold.
9. It [he Lord will prefer! be /o have a certain Fee of his Tenants for
any cx[rjo;\-/i>iary Court purchafed, only for the Benefit of one Tenant, As
lor one Tenant to take his Copyhold, or fuch like, this is a good Pre-
fcription, according to the common Right. Calth. Reading, 34.
10. It the Lord will have of any of hi; Tenants that J'hall commit a
Pound-Breach^ loos, lor a Fine, this is good Prelcripcion, but to
challenge of every Stranger that Ihall commit a Pound-Breach loos.
this is no good Prefcription. Calth. Reading. 34.
1 1. If the Lord will prelcribe, that every of his Copyholders^ within his
Manor, that ffoall marry his Daughter without Licence, fhallfay a Fine to
the Lord, this is no good Prefcription according to common Right.
Calth. Reading, 34.
12. If the Lord will prefcribe to have a Fine at the Marriage of his
Copyhold Tenants^ in which the Gijiom doth not admit the Husband to he
Tenant by Curtefy^ nor the Wije to be Tenant in Dower, or have her
Widow's Ffiate, the Prefcription of fuch a Fine is not goodi but in fuch
Manor where the Cuftom doth admit fuch particular filiates, there a
Prefcription for a Fine at the Marriage of his Copyholders, is upon
good Conlideration. Calth. Reading. 36.
13. If a Copyholder ;«ato his Title to his Land by Prefcription, he
mufl plead that the fame ^^■in^ is, and has been, Ti?ne out of Mind, dc'
nnfed, and demi fable ; by the Copy of Court Rolls, according to the Cnjiom
0/ r^e /^/.««or whereof it is holden. Calth. Reading, 43.
14. A Copyholder Ihall ^rtfcrihe againji a Stranger, that the Lord
of aiVIanor, for him and his Tenants at Will, have ufed the like &:c.
Calth. Reading, 45.
15. Copyholder for Life can't prefcribe againft his Lord, but Co/);--
holder in Fee may prefcribe againfi the Lord, for he has the Copyhold
in Nature of Land of Inheritance. Sty. 233. Mich. 1650^ jB. R,
Cage V. Dod.
l^ e. 1) Remainders limited. How. Good. And
where they are Contingent.
. T t ^' \ Copyhold, where the Cujlom was to demife for three Lives, is demised
oi Ttn. 25*7! i*. ^° ^'"^fo^ L'lK Re7nainder to fuch aJVife as he jhould marry, and to
cites S.C. ' the firji Son of their Bodies. Thefirft Ellate for Life is good, but the 2
Remainders are void, by the Opinion of all the Juftices. Mo. 677. pl.
922. Mich. 44 & 45 Eliz. VVebfter v. Allen.
Gilb. Treat. 2. Where there is a ti77iited Efiate of Copyhold Lands and a contingent
ot Ten. Remainder depending thereupon, and the Particular limited Fflate, which
S. C. and ""(/^ fupport this contingent Remainder, is deflroyy, the Quellion was,
fays, it is whether the contingent filiate is thereby likewife deftroy'd ? It was
made a argued, that it was, for that theLaw is the fame in that Point, inCopy-
Doubt; but j^^j^j (;ales,as it is in other Cafes at the Common Law, they being di-
Point we re^cd by the Rules of the Common Law, and cited it as {o ruled 13
ought to Jac. B. R. But it was anfwer'd, on the other Side, that Copyhold
tiiltinr;uifli, Eltatcs do not depend the one on the other, as filiates at Common
for It ieems ^^ §„, 250. Hill. 1650. B. R. in Cafe of Bawfy v. Lowdall.
foine are, j ./ ^ j
and lomc .ire not ; As for Ex;implc, if an Eftate be {^ivcn to a Copyholder for Life, the Remainder to
tlic light Heirs of J S. it thi Taunt for Lite die, \W\n^ J. S. there it feemsclear that the Remain-
der
Copyhold. 225
der is deflroy'd ; for it cannot take EfJeft, as by the Limitation it ought; but then, if Tenant for
Life in that Cafe had committed a Forfeiture, or made a Surrender, and then living Tenant for
Life, J. S. had died, it feems to be izry clear, that his right Heir might take; for his Eftate in
Remainder was not to take Effeft after the Determination of the Intereft of Tenant for Lite, but
after his Death, and when that happened he was able to take.
(Q^ e) Rent incroached.
t. T F the Lord incroaches Rent of his Tenant, the Tenant can't
\ avoid it in Avowry, but in AlFife or CelFavit, or Ne Injufte
Vexes he may 3 But if fuch Tenant inteoff another, his Feoffee lliall
never avoid it, for he fhall take the Land in the fame Plight as it was
given to him; Arg. 5 Rep. 100. b. Trin. 40 Eliz. C. B. in Penrud-
dock's Cafe, cites 33 E. 3. Avowry 255. 18 E. 2. Avowry 217. 4 E.
Avowry 201.
2. Encroachment oj a fhin^ of another Nature than what is referved PI- C-49- b.
gives no Seifin to the Lord of fuch Thing. Kelvv. 73. Mich. 21 ^^^•^^'J'J^^_
H. 7- not traverfe
the Tenure,
but the Seifin only, and mull relieve himfelf by a Nc Injufte Vexes, or Contra Formam FeofFamenti,
in Cafe of Woodland v. Mantell.
3. By the Rules of Law, in Cafe oi^ Incrodchnent of Rent, if theSee4Fep.
Tenant makes but o«ePrtj) »/<■«? of more than was due, he fhall never go 'jp^Va^"
back from it; Per Wright K. 2. Vern. 516. pi. 465. Mich. 1705. in contra,^ and
Cafe of Steward v. Bridget. Statute 52
//. 8. a.
which is, that the Avowry fliall be for Rent within 4^ Veafs laft paft.
(R. e) Trees. Intereft of the Tenant in Trees ftand*
ing, or cut, or Windfalls.
t. A Ctijicm for a Copyholder to have Commofi of EJiovers in the Woods
/\ oj the Lord^ Parcel ot the Manor, of which the Copyhold was
held, was adjudged to be good. 4 Rep, 32 a. pi. 25. Mich. 29 & 30
Eliz. in Cafe ot Foillon v. Crachrode, cites it as adjudged Pafch. 10
Eliz. as it was faid in this Cafe. And cites 21 E. 3. 34. i Mar. Dy. 114.
5. [6.] E. 6. Dy. 70, 71. a. pi. 37. &c. Wythers v. Ifeham.
2. Copyholder by Common Law may cutoff' the Under-boiighs^ which ^''J^- ^^at.
cannot caufe any W'afte, but the Amputation of the Top-boughs will °j?^cit"*'
caufe the Putrefaftion of the whole Tiee, wherefore it is VV alleas well s C.
as the Decapitation thereof. Cro. E. 361. pi. 21. Mich. 36&:37 Eliz,.
C. B. Dawbridge v. Cox.
3. Lord of a Manor (where Copyholders are for Life^ and where the Cu- ^^° ^''•
Jiom is that the Tenants have tifed to lop Trees Jor Fuel and Repairs) grants Xrin^^j^c.
a Leafefor Tears of the Manor, refrving the Trees j fuch Copyholders as c. b| the
come in after under the Lellee may lop the Trees as before ; For the S. Cad-
Copyholders are in by the Cuftomj which is above the Lord's Eftate. Hs=d — --
Brovs nl. 231. Swain v. Eecket. ^ ^-f'- ''>
M mm 4. li
2 26 Copyhold.
4 Bi-ownl. ^ It' the Tenant has »ycrt' ro ^iice Z.c/'/u- for Fuel and Repairs and the
430. S. P. j^gj.^ ^.^ij dirjcn all the Trecs^ fo that the Copyholder can have no Lop-
ping, he may have his A£tion fur Cafe againlt the Lord. Brovval. 231.
Swain V. Bcckec» and fays it was adjudged in Gofnold's Cafe.
5. A Ctijhin that the Lord Ihall have Maeremiuin, and tl;e Tenants
fliall have Ratnillos^ gives all the Arms and Boughs to the 1 enants • if
Per Robert Ch. J. fo were the Cuftom was for the Lord to have the Mat-
reminm^ and the 'Tenants the Rejidiitim; the Reliduum means the Bouohs
and Branches. Godb. 235. pi. 326. Mich 11 Jac. C. B. Bp. ol Chichciler
V. Strodwick.
6. Non-ufe and Negligence in not taking the BoKghs does not extin-
giiifii or take away the Cuftom^ as hath been often refolvd in the
like Cafe. Godb. 237. pi. 326. Mich. 11 Jac. C. B. Bp. of Chicheller v.
Strodwick.
Gilb. Treat. 7. The whole Court clear in this, that by the Cuftom the CopyhoJ-
of Ten. 224. ^er is to employ the Timber for his Reparation, and though with the
citeiS. C. <7o^ rt/7^ £/7)4 he cannot repair, yet thefe he is to have, and ma v fell
them, towards the defraying his Charges in his Reparation. 3 Built.
2S2. Trin. 14 Jac. B. R. Sandford v. Stevens andS.mich.
8. Neither Copyhold of Inheritance, where the Cuftom is to cut
Timber for Repairs, nor Leflee, can imploy Trees blown do^vn by tbg
Wind, unco any fuch Ufe, becaufe hereby his fpecial Propertv ce.d'c. ,
much lelscan Leifec or Copyholder lor Lives by any I'uch Cultum take
Trees; Per Windham J. Keb. 691.pl. 5. Palch. 16 Car. 2. Aiiuer'3
Cafe.
9. Copyholders claimed, as by Cujlom^ the Timber Trees on the Copy-
hold, 'Without Contrail cj the Lord ; The Lord claimed them as Lord of
the Manor, and that the Tenants had only the decayed W^ood ior Fuel
and necelfary Timber for Repairs, but that to be had only with Li-
cence. Commijjion was diretied to feveral Perlons, to fet out fufficicnt
limber and Wood for all Manner of Eotes and Ejf overs, according to
the Cuftom ufed within the Manor, and the fame to remai'n lor the Ufe
of the Tenants, and the Lord, and his Heirs, to take the left. Fin.
Rep. 199. Hill. 27 Car. 2. Ayray v. Bellingham.
10. The Tenant has the fame Cuftomary or Polfellory Intereil in the
Trees that he has in the Land ; and it the Lord has a Mind to cut
Trees, his Bulinefs is to compound with the Tenant 3 Cro. 361. that
Tenant may lop Under-Boiighs, and cat for Repair and Bote i and 3 Cro.
5. is not Law, as appears by Heiden and Smith's Cafe. 13 Co. Il Birds
build Ne/ls in the Trees, the Eggs are the Tenants, which ilievvs he has
the Poileffory Intercft in the Trees, though his Eilate be but lor Vears,
and whether the Lord may cut Trees, leaving fufficient Fftovers, is
very gently trod on in Heiden and Smith's Cafe, but no Copyholder
can comm't B'a/le without a fpecial Cuftom, but all Copyholders have
EJloversofCoKhionRi^ht. If a Man grant all his Eltovers, and cuts
down the Wood, or does any other Art whereby the Grantee lofes the
Benefit of the Grant, Cafe will lie i Per Holt Ch. J. 12 Mod. 379.
Paich. 12 W. 3. in Cafe of Aftimond v. Ranger.
IM94.pl. II. A Copyholder has o///)' a Pof[e[fory Property in Timber- Trees,
J- Mich_ which, if fevered from the Freehold by Tempeft, or otherv\ ile, the
Ara"i"s P Pfop'^r'^y would be in the Lord, per Holt Ch. J. And he faid further,
andlecmi to and lb was the Opinion of the Court, that it would be a hard Cuftom
beS. C lor the Tenant to claim fuch Trees, for fuch Cuftom would be to give
By a MS away the Property of the Lord, cipecially in this Cafe, which was oc~
I'havl^ of'' ^'«li'''""i by the Aft ot God ; He alio qucftioned, il'there could be fuch
mLiks' 3 Cuftom, as loi a C(>pyholdcr to cut 'i'mibc-j he having only a Pollel-
lory
Copyhold. 227
fory [ncerert, by Jvealon of ics being annexed to the Copyhold Landd. Ann. fi.R.
1 1 Mod. 68. pi. I. Hill. 1705. 4 Ann. B. R. Anon. Mackerel
'■ I .» -r y Hairifon
S. P. it teems to be S. C. and to concern Mr. Bankes's Manor of Kingfton Lacy, where a Cuftom was
prerended, that VVmd-falii belong 'd to the Copyholder for Life.
(R. e. 2) Trees, Lord or Tenant's Power as to
cutting them down.
I. y F ths Lord grants to the Copyholder the 'frees grozving^ and ivhich * Hzlson-
\_ jh-iUgro:^ hereat'cer j and thac ic Ihall be lawful to the Tenant '/ tenant
CO cue and carry theni away, he may jultily cutting the Trees growing, ^[ W'l' and
and it is no Forfeiture of his Copyhold; For he has difpenced with the Cu'ikim and
Forfeiture by liis Grant ; but he cannot cut the T'rtes that grow after ; For not capaSIe
the Grant is * void as to them; Per Plowden and Popham, as Hed worth °^^ <j"i-ant.
faid, who was of Counlel in it. Mo. 94. pi. 234. Pafch. 12 Eliz y^^' ^!^
^"On. ia^CaVeof
Potter V.
North.
2. A Copylioldcr cannot, by the Common I-aw, take Trees for This Cafe
Honfe-i'ote, Hed^e-bote^ and Cart-bote &c. except bv loecial Cullom ^^^ denied
Cro. E. 5. Pafch. 24 EJiz. B. R. Ld. Montague v. Sheppard. ' !f ^'T'
•' ~ o i. r l^er holt
658. in C.ife of Afhmead v. Ranger. He may take them of Crnimon Right as a Thin"- incident to
the Grant, hut the fame may be reilrained by Cujhm, that ii to fay, that the Copy holder fliail not take it
unlefs by Jjpgnment of the Lord or his Bailitf &c. 15 Rep. CS. Heydon v. Smith. '
3. In Trefpafs Vi & Armis. The Defendant in Bar to the new Af- Bulft mS.
fignment pleaded, that he is a Copyholder for Lite of the Manor of M, S. C. ciied
in the County ot S. and that in that Manor there was a Culhin r^/zf ''.^ ^^'^'-
every Copyholder for Life had iifed, at his Pkafare^ to cut down all the Elms ^'^f-^j ■'/*
growing upon his cuftomary Lands, and to convert them to his own thl^fuch
Ufe, when, and as otten as he would, and fo juitihes ; and a Demurrer Tenant can-
upon the Bar; And the Queltion was, whether the Cuftom was good "°''P''^'''-'''''=
and re.if^nable .? And the latter, [better] Opinion was, that it Was a ^-^j'^^"^'^^"^^"
good and reafonable Cuftom, but now it is otherwife held. Browni. 236. Tr^e/'buc
Pafch. 40 Eliz. Luttrel v. Wood & al'. bv way of
..- Ufage he
may for Reparations ; And in the principal Cafe there, whichSvasTrin. 9 ]zc. /j5or(l}UmbfrIantJ
(<&arl) li. 2IU)ECKr, the clear Opinion of the Court was, that a Preicripri'on for a Copyholder for
Life to cut down Timber Trees isagainlt Reafon, and void in Law.
4. A bare Copyholder for Life cannot prefcribe to cut and fell the Trees on Cro. J. 29. "
his Copyhold^ but a Copyholder of Inheritance may, or a Copyholder p'- S- S. C.
the Cafe of Luttercl v Wood, that Copyholder for Life cannot prefcribe to fK/ .;«a;n Timber Trees
But by way of Ufaf^e he may for Reparations, per Williams J. Ibid If there Ls a GfyhoUe'r
fcr Life, ivhohyCufim may name hit Sttccejfor for Life, and fo for that Cofyhclder to name his Sucrefor
fu a a Tenant for Life cannot by Oullom cut Timber ; but if he had been a Copyholder of Inheri-
tance, fuch Cuflom is good. Gilb. Ticat. ot Tin. 223,
2 8 Copyhold.
per
4 Brownl.
5. The Lord lliall no: take all, but mu[t leave fufficient for Repairs^
per Coke Ch. J. Arg. 2 Brownl. 20a. in Cafe of Swain v. Becket. And
fays, W'ray Ch. |. in 33 Eliz,. was of the fame Opinion.
Brownl ^- >Vhere the 'Cnjiom was, that a Copyholder for Life might name to the
8s.'°o9i." Lord whb Ihall he his Siicccffor, this is fuch a Privilege, that if the
S C. argued Copyholder cuts down Trees, it is no Forfeiture, becaufe he has 2
^ '''r , ereater Eftate than a bare Tenant for Life. Brownl. 132. Hill. 6 Jac.
Counfel Si, in r
Ibid. 192 to Rolls V. Mafon.
z°"VizA by the Court, and Judj^ment accordingly' pet" f"'- ^ur.- S. C. cited Cro. C. 22t. as agreed
b\^all tbe Tuftices ; but they all apreed that fuch a Cuftom for a Copyholder for Life to cut down and
fell Trees'was not good, and they there cited the Cafe of Powell v. Peacock to be lo adjudged, and
to be good Law.
Supplement 7. A Copyholdef alleges the Ctijlcfu to be, that all the Tenants within
to Co. Qom^.fiich a Manor in Efex, had tifed to cut down trees to repair their Copyhold
Cop 84 S. ^^^ Freehold fi^nehients within the Manor ^ and alfo to fell their Trees at
\lfl^^^^^' their Pleaftire ■, and adjudged a good Cultom. 4 Le, 238. pi. 382. Pafch.
dSdiT 6 Jac. C. B. Glafcock's Cafe.
ir was a ,. > , 1 1 /-. n
good Cuftom ; but the better Opinion of the Court fcemed to be, that the Cuftom was good.
8. By the Common Law the Lord of the Manor may take away Trees
cut down by Copyholder on his Copyhold Land without a fpecial Cultom
for it. Brown). 42. Trin. 6 Jac. in a Nota.
9. Cufiom lor Copyholder to cut Trees at his Pleafure is againft the
Common Law, per YeUerton J. Win. i. Pafch. 19 Jac. C. B. fays it was
adjudged when Anderfon wasCh, J.
Jo zds pi- 10. It is a good Cujiom, that a. Copyholder in Fee tnay cut down Trees
1. s. c. re ^fjg fellxhtmat his Pleafure^ for here it is only to the Prejudice of him
folv'd per ^^^ j^j^ Heirs, and when he hath quali an Inheritance in the Copyhold,
Ihat focii he hath fo alfo in the Trees growing thereupon, but a Copyholder tor
Prefcription Life hath but a particular Ellate in the Land or in the Trees. It is a-
was not gainft the Nature of a Copyhold Ellate, that he Ihould do Atts in De-
"?°^lf\f ftrutlion of his Elbte, therefore Cuftoms that maintain them ihall be all
fo°^Lifc " \ oid, but not e converfo, for all fuch are unreafonable and void, and
and that'it the uVing of them will be a Forfeiture. Cro. C. 220. pi. 7. Trin. 7 Car.
wasfo ad- £_ j^ Rockey V. Huggens.
fore in C B. but fuch Prefcription by Copyholder of Inheritance is good. Cufiom that e^try Copy-
hold tenant mas cut do-^n 'trees at their h- til and Pleafirc is unreafonable and void ; for then a Tenant at
Will micht do it ; fo it is for a Copyholder for Life to do it ; and one oi the Keafons given is, that
the fucceedine Copyholder would liut have wherewithal to maintain the Houfe and the Plougli,
which plainly intimates that a Copyholder may cut Timber to make Reparations, and the rather, be-
caufe permiffivc Walle is a Forfeiture in him. Gilb.Treat. of Ten. 223.
1 1. Northey faid, that Lord might cut Trees on Copyhold hy gene'
ral Cujlom of Copyhold, or elfe, if it were Copyhold in Fee, the Wood
could never be cut, which would be inconvenient ; but Holt laid, fure
he cannot, for the Copyholder has the fame Incerell in the Trees, that
he has in the Land, and he always have taken it fo. 12 Mod. 317. Mich.
1 1 W. 3. Earl of Kent v. Waters.
12. It there be a Cultom for a Copyholder to take Timber for Repara-
tions, Fuel &c, fuch a Cujlom is goody though the Copyholder have but a
particular Eflate, but he cannot do what he will with the Timber. Gilb.
Treat, of Ten. 223.
^ 13. In Cafe of Copyholders of Inheritance, it was adjudged lately in
pcrCoke Dom' Proc' that neither the Copyholder without the Lord, nor * the
c;h.j. if the Lord without the Copyholder, without a Cultom, could cut down the
Loru leave Trees
Copyhold. 229
Trees on the Copyhold Eftace, and fo reverlcd a Judgment in B. R. fufficieit f^r
Ex Relatione Servientis Chappie in 1 727. Godr^"°"*'
pi. 259. Pafch. 8 Jac. C. B. in Cafe of Heydon v. Smith.
(R. e. 3) Trees. Remedy for Tenants, as to Trees
cut by the Lord. And Pleadings.
I. r-i-nRefpafs was brought by Tenant at Will, according to the Br Tref-
X Cullom of the Manor cf^rcescut:, The Delendanc Pleaded, [^?[^> P'-^j 3-
Not Guilty, and the Jury found for the Plaintiff, and he recovertid his
Damages by Judgment, tho' it be another's Frank-Tenement ; Quod Nota.
Br. Tenant per Copie, pi. 2. cites 2 H. 4. 12.
2. Copyholder brought Trefpafs againji the Lord for cuttingdown and
carrying away his Trees &c. It was found, that the Place where &c.
was cullomary Lands held of Defendant, and that the Trees were
Cherry -frees, De Magiiitudtne Siifficientc ejferidi Maeremttim, and that the
Place where they growed was neither Orchard nor Garden ; Per Cur.
the Copyholder cannot cut down fuch Trees which are notVValte, but
becaufe it appears not by the Verdift that the Trees for which the Ac-
tion was brought, was limber in fa^c, but only De Magnitudine elien-
di &c. the Plaintiif had Judgment. Lc. 272.pl, 365. Mich. 25&26
Eliz. C. B, Anon.
3. Aftion on the Cafe lies for Copyholder againft the Lord for cutting ^^^ ^
Po/A?rrfi in his Copyhold, ad Damnum, declaring where by theCultom,^;,^;^.; ^^
the Copyholder us'd to have the Shrowds and Tops of all Trees flowing S. C ad-
and powling [Pollingersj within the Copyholds &c. It was agreed uponHg'd per
Deliberation, and the PlaintifFhad Judgment and Writ of Inquiry oi ^°f'^'^^^^^
Damages. Mo. 546. pi. 727. Trin. 40 Eliz. Stebbing v. Gofnel. but Clench'
doubted, and Gawdy wa> abfent. S. C. cited per Cur. 15 Rep. 69 S. C. cited by Coke
Ch. J. as adjudg'd upon Demurrer. Roll Rep. 196. in pi. 57 Pilch. 13 Jac. B. R Brownl.
197 S. P. in Cafe ot Crogat v. Morris. 2 Brownl. 149. S. P. cited by Coke Ch. J. as adjulg'd
in Whiteband's Cafe ^ • Noy 14. S. P. in Cafe of Crofs y. Abbot Gilb, Tre.it. of Ten.
2:5. cites S. C. and fays this muft be underftood where there is not fufficient befides.
4. A Copyholder in Fee prefcrib'd to have the topping and Loppings ^^^°"' "'•
of all Trees for Fire-bote and Hedge-bote, and the Lord having Sold ^^'^^^^ ^^
the Trees, he brought Trefpafs againlt the Vendee, and well, tor j,^3irie v.
hereby the Lord deltroys the very Thing in which the Tenant pre- Bcckec.
fcribes, and fitch a Right may be good for a Tenant for Life. Noy 14.
Mich. 3 Jac. B. R. Crofs v. Abbot.
5 If the Lord, where the Tenant hath fuch Botes, cuts down all the
Woods and Under-Woods which are itanding and growing upon the
Lands, to prevent the Copyholder of his Botes, he may have an Attion of
Trefpafs againft the Lord. It was refilved in Heydon and Smith's
Cafe. Pafch. 8 Jac. in C. B. Supplement to Co. Comp. Cop. 79.
S. 13.
6. A Copyholder iLall have a general Aftion of Trefpafs againft the But thiys
Lord, .Ghiar'e Clatifamf regit, & Arborem fuam &c. fuccidic. 13. Rep. [°^ ^^^f'f^^
68. Pafch. 8 Jac. C. B. Heydon v. Smith, ti.e' cutting
of the Trees;
lut: fhall Ko< vfroi;?!- i^'fTrtte of the Trees becaufe he is not chargeable over, but for the fpecial
Loft which he hath, that is, for the Lofs of the Pawnage, and of the Shadoiv ot the Trees &c.
1 ; R p. 70. S. C.
N n n 7- If
2^0 Copyhold.
7. If the Lord cm down lb many Trees as not to kai-e fufficient FJio-
vers &c. the Copyholders Ihall have Trefpafs, and the Value of the
Trees in Damases, hue if he leaves fnfficient Eltovers, then he Ihall have
trefpafs too, hue Ihall only recover Jpecial Damages, vix. lor the LdIs
of his Umbrage, breaking his Clofe, treading his Grafs &c. Per Hok
Ch. J. 12 Mod. 379. Pafch. 12 W. 3. In Cafe of Afhmond v.
Ranger.
The Leffee 8. Trefpafs by Lejee of a Copyholder for Life againll the Servant of the
was Leflee Lord of the Manor" for cutting down Trees, held maintainable^ in 15.
of a Widow j^_ and afiirmed in Cam. Scacc. but reverfed in Dom' Proc' for the
V ho had an rp^j^^j^^ ^Q^^lf^ ^ot cut the Trees, and if he could not they muft roc on
thrcuftom the Land ; For then no Body could. 2 Salk. 638. pi. 6. Alhmead
12 Mod. ■ V. Ranger
-" S Pa(ch
i'>W I Alhmond V. Ranger. S. C 11 Mod. 18. S. C thus vir.. A. Copyholder . for Life of a
H'oufe'and Land, that by the. Citpm of the Manor may fell Timber for Repairs of the Copyhold Tene-
ment brin<'s an Aftion of Trefpals ac,,iinft the Servant of the Lord, who entred by hi.s Lord's Command,
and aitTimher upon the Lands of the Copyholder, by which the Copyholder h.id not (bfficient tore-
pur the Copyhold Tenement ; Adjudj;ed in B R. by all the Court, that the Copyholder m'ght hive
this Aftion; which Judgement was afterwards affirmed in the Exchequer Chamber by all the Ju'iges
in England; and now reverfed in the Houfe of Lords, Eleven againft Ten.
(R. e. 4) Forfeiture. What. And in what Caies
relieved.
I. T F a Copyholder for Life cuts down Timber 'frees, it is a Forfeiture of
_ his Copyhold ; and fo it was adjudged in "BcIfielD atlH
3llflni'0 CflfC ; But if Copyyholder makes a Leafe for Tears, and the
Lcfte CUTS do'ujii 7'imber I'rees, or commits other VValle upon the Copy-
hold Lands, the Lord cannot enter upon the Land for a Forteiture,
but in fuch Cafe the Lord is put to this Adion upon the Cafe againji
the Wrong-doer. Supplement to Co. Comp. Cop. 76 S. 10. cites
Winch. 62.
G. Treat, of 2. If Under-Leffle for Tears of Copyholder cuts down Timber, it fhall
Ten. 224. jjQj i^g a Forleiture of the Copyholder's Eftate ; Per Cur. Sty. 233,
cites S.C. ^^^ ^5j^|^ j^^^ ^^ a Trial in B. R. Cage v. Dod.
Gilb. Treat. 3- The Lord grants the Copyholder a Licence to fell, and afterwards,
of Ten. bejore the Irees are jelled, the Lord grants away the Manor, tho" the Li-
281, 2S2. cence be now determined and repealed, yet the Cutting is no Forlei-
thaTthe*^' '^"'■^ ' PerTwifden J. Keb. 25. pi. 74. Pafch. 13 Car z. B. R. Wu-
Grant deter- nifas v. Baker.
mines the . . _
Licence; for the Licence is only a Difpenfation of the Forfeiture, and gives no Property ; but the
Property being transferred to another before the Felling, there muft be a new Licence to fvll, be,
cauie he is not Party, nor Privy to it ; but if the Leffee fell Timber after I'ach an Alicnatio.T of
the Manor, it is no Forfeiture; ied (;i_asi-e.
Gilb. Treat. 4. Though a Licence by Leffee for Tears of a Manor to a Copyholder
of Ten ^fl y^// limber be good againlt himfelt, yet it is void againlt the Lelibr,
s C Tn^d becaufe the Licence is derived out ot the Interelt, and lb can be of no
that the greater Extant than that, and the Affignee of Lcllee may take Advan-
Lcffor can- tage of it ^ Per Twifden. Keb. 2j, 26, pi. 74. Palch. 13 Car. 2 B. R.
r.ot take Muniias v. Baker.
Advantage
of the Forleiture ; For thereby the r.,cfr:e of the M:inor would lofe the Services of his Tenant; for
ht IS the Lord of whom the Copyholder holds, and therefore he niulf take advant.iges of Forfei-
rure.", it any Borly cm, which in this Cafe he cannot do, beciufe of his Licence ; but then, wljen
his
Copyhold. 231
his Intereft is determined, fince there is a Prejudice done ro the laheritance of the Manor, it fcems
the LelTor may take Advantage of the Forfeiture, for the Liunce determines by the Expiration of the
Tears.
5. A Forfeiture of a Copyhold by Felling ot Timber relieved in E-
quity after a Trial dire6ted on an IlFue ac Law, whecher che fuppofed
VValte was wilful or not, and found that it was not. Chan. Cales 95.
Pafch. 19 Car. 2. Porter v, Bp. of VV'orcefter &; ai".
(S. e) Trufts. What fiiall be fald to bs a Truft of
Copyholds. And Cafes concerning them.
I. A Ptirchaftd a Copyhold in the Names cf J. S. and J. N". in
jr\ • ^riiji for A. A. being a Villain, J. S. iurrendered his Moiety
to the \j{q, of his own Son. J. N. died feifed. The Son of J. S. and
the Heir of J. N. Ibid the Copyhold to C. for lool. C. had no No-
tice of the Truft, and the Copyhold was worth 150I. It was de-
creed by Egerton Lord K. that A. Hiould recover the 50 1. only of J. S.
(not the Son oi J. S. who was no Farcy to the Sain) and the Heir of
J. N. and that C. ihould hold in Peace, But \i Notice had been
proved in C. A. Hiould have had the Land, and no Recompence for
the Over-Value was given, becaufe there was no fraud. Mo. 552.
pi. 745. Pafch. 41 Eliz. in Chanc. Robes v. Bent and Cock.
2. A. took a Copyhold Ellate in Reveriion for three Lives, and the
Copy was to D. E. and J. S. fiiccefftimly^ and the Entry was D. dat
jDomino pro Fine /\l. By the Cultom of the Manor the firll taker may
bar the Remainder. D. and E. died. J. S. was admitted ; The
Copyhold was decreed to the Plaintiff, who was Heir and Executor
to i). For per Finch Ch. tho' A. paid the Fine, yet when by confent
D. was made Purchafcr by the Copy^ it Ihall be taken all one as if D.
had paid it, and lb all the Eftates in Remainder Ihall be intended as in
Trull for D. and ihe may difpofe of them. Ch. Cafes 310. Hill 30
& 3 I Car. 2. Clark v. Danvers.
3. A Copyholder /«"re«^/«W toJ.S and his Heirs^ and declared hy
Parol that his Wife Ihould have it if ihe furvived him, and if both
died it fliould be fold, and the Money divided equally among the
Plaintiifs. He afterwards made a Will, in which he took no Notice
of this Copyhold, and he and his Wife died foon after. The Bill was
to have Execution of the 7)7//?, and the Defendant was Heir at Law,
and it was decreed, that where a Surrender is made to a Stranger and
his Heirs, he is but a Truftee for the Heir at Law. N. Ch. R. 190.
Mich. 1691. Chew v. Chew.
4. A Copyhold is granted to three for their lives fuccefjive^ but no
Ciijiom within the Manor that the firfi 1'aker may difpofe &c. of the Ef-
tate. The tvvo firll Lives died. The Court would not decree- the re-
maining Life to be a 'jtriifi for the firfi ^aker., and to go to his Executor
or Adminiftrator, as had been done in other Cafes, where there had
been fuch a Cuftom, and the rather in the principal Cafe, becaufe the
former Copy was to J. S. the Father of the firft Taker and to thehrll
Taker, and the Surrender on which the prefent Copy was taken, was
by them both, Sub Conditione that the Lord make a new Grant for three
Lives proutj and it is dant Domino de Fine &c. fo that the Eitate moved
from the Father rather than the now firlt Taker ^ But it was agreed
per
2 22 Copyhold.
per. Cur. that if ic had been a Triiji it fhould go to the Adminijirator^
though it was ati Eftate ior Lives and whether Freehold or Copyhold.
2. Vern. 264. pi. 249. Pafch. 1992. Rundle v. Rundle.
5. Held by the Lords Comtiiillioners, that il a Copyholder pur-
chafes a Copyhold for three Lives, and puts in his own Lije and fxo ethers,
Habencf fiicceffiiie feciindiuii Confaetudmem Manerit, il' the firjl Taker
paid the Momy, the other two are but in the Nature of Trultees tor
him, and he may dilpofe of the Eflate in Equity, altho' it be in a
Manor where there is ;;o Cujlom for the frfi Taker to difpofe, unlefs ic
fliall appear that the other two Lives were put upon feme Conlideration,
or in Purfuance of fome Agreement &c. 2 Freem. Rep. 123, Pafch.
1692. Anon.
6. A. was Tenant in Tail of theTnifi of a Copyhold with Remainder
over, and Truftees refufing to furrender the legal Ellate to him, he
brought his Bill to enforce them, and pending the Suit, he oifered at
the Lord's Court to furrender, but was refuled, becaufe he had not
the legal Ellate. A. by Will gave the Eflate to his Wife. Cowper K.
decreed the Ellate to go according to the W ill, conceiving what A.
had done, and endeavoured to do, was fafficient to bar the Entail of a
Trufl, and that where there is no particular Method in the Lord's
Court for barring Entails, a general or common furrender is fufflcient,
even where the Entail is of a legal Ellate. a Vern. 583. pi. 525,Hiil.
1706. Otway v. Hudfon Mills & al'.
(T. e) Ufes limited. How conftrued.
Cro. E !• A Copyholder for Tears or Life furrendered to the Ufe of B. and his
586. S. C. i\« Heirs forever. The Bilhop of W. who was the Lord of the
but Ad]or- Manor, confented to the Surrender. The Surrender is good, and the
Goidsb, Ufe void. Mo. 352. pi. 474. Hill. 26 Eliz. Portman v. Willis.
129 pi.
15. S. C. but not S. P.
- Salk, io(). 2. A Copyhold Ellate was furrender'd ?o the Ufe of A. B. and C.
pi. 15, S. C. and the Heirs, equally to be divided between them and the Hurs refpeifive-
&S. P. /j,_ Turton and Gould Jultices held this an Ellate in Common, but
intiv ^-^^Ll Holt Ch. J. held it a Jointenancy ; but Judgement was given accord-
jolsiod. 296. ing to the Opinion of Turton and Gould, i. Saik, 391. pi. 3. HiJ).
s"c. with 12 W. 3. B. R. Fillier v. Wigg.
the Argu- t n ^ •
ments of tlie Court and Judgment accordinf^Iy. Lord RaymRep 622. S C. with the Arguments of
the Judges at large, and Judgment given that it was a Tenancy in Common, contra to the Opinion of
Holt Ch. J. Comyns's Rep. 88. S. C. adjudged accordingly.
z Lord 3. A Limitation of Ufes of a Copyhold Surrender mull be canflrued
Raym 114V jjy j^g (Ame. Rule, and in the fame Manner as if it were a Limitation
b G Id T '" ^ l^ced, or any other Conveyance at Common Law, and the Intent
of a Party is not fufficient as in a Will, lor 32 H. 8. i. leaves the
Tellator at Liberty to exprefs his Intent as he pleafes, but the Com-
mon Law ties up Conveyances to Set-Forms^ and Set-Words ; Per
cot. Cur. 2 Salk- 621. pi. 3. Pafch. 4 hnn. B. R. Idle v. Coke.
lU. e)
Copyhold. 23:^
(U. e) Pleadings.
t. T N Trefpafs, the befl: Opinion was, that it does not lie in Cuftom
X for Tenant at will to him and his Heirs, according to the Cuf-
torn of the Manor of a Bifliop, to fay that the Ciiflom is, that if the Bi(hop
dies, that he (hall be T'efiant to theKing during his Life, and after to his Sue-
cefon For it does not lie properly in Cuftomi and alfo, per Fulchorp
J. the Pleading is not good; For he who pleads CuAom /hall fay, that
the Vill is an ancient Vill, or Borough, and thefi to proceed; For a new
Vill cannot have Cultom. Br. Culloms, pi. 25. cites 21 H. 6.
36, 37-
2. The Tenant for Life by Co^y pall fay in Pleading, that he is
S-dfed in his Demefne as of Frank-tenement according to the Ciifiom of the
Manor 8cc. Br. Pleadings, pi. 114. cites 21 E. 4. 80.
3. Every Jdmittance, as well upon a Defcent as Surrender, }nay be
pleaded as a Grant to avoid the Inconvenience which would follow, if
the Copyholder lliould be forced in Pleading to fhew the firlt Grant,
for that was either belore the Time of Memory, and fo not Pleadable,
or within the Time of Memory, and then the Cultom fails. 4 Rep.
£2. b. Mich. 23 & 24 Eliz. Brown's Cafe.
4. So he may alledge the Admittance of his Ancejlor as a Grant, and
P:cw the Defcent to him, and that he entred without /hewing any admittance
of himfelf. 4 Rep. 22. b.
5. Btit he cannot plead that his Father was Seifed in Fee at the Will of
the Lord ly Copy of Court Roll, offuch a Manor, according to the Cujiom
of the Manor, and that he died feifed, and it defended to him; for in
Truth his Intereft, in Judgment of Law, is but a particular Interell at
Will. 4 Rep. 22. b.
6. Lands are granted by Copy, which were never fo granted before, and Supplement
the Ifftie is, whether the Lord granted by Copy of Court- Roll Sec tind{im^°^°- ^°'^?'
Confuctudinem Manerii ? It was held per tot. Cur. that the Jury muft ^?^^c ^'
find that Dominus non concelfit, lor tho' De fa£lo Dominus conceffit
per Copiam &c. yet it was not fecundum Confuetudinem Manerii ; For
the faid Land was not cullomary nor demifiible ; For the Cultom had
not taken hold of it. Le. 55. pi. 70. Pafch. 29 Eliz,. C. B. Kemp. v.
Carter.
7. If one pleads a Seijin of a Copyholder in Fee, and claims under him^
he muji foew of who fe Grant, as he ought to do of any other particular Ef-
tate; but if he Ihew the Admittance of the laji Heir, which is in Nature
of a Grant, and may be pleaded as luch, it is fufficient. Cro. J. 103.
pi. 37. Mich. 3 Jac. B. R. Pillor v. Hemling.
8. The PlaintiiFfl:ewed in his Replication, ^itod feifttus fttit in Do- Roll Rep.
7iiinico tit de jeodo fecundum Confuetudinem Manerti de Ramefden, of the 4«'- ?!■ 54'
Houle, and de una Virgata T'trra Nativ,iE, and does not (few, that the^^J^^'^^'^'''
fame was Ciifiomary Land. The Court agreed they could not intend s c'°but
this to be Copyhold Land, but that he ought to have alleged exprefsly, S. P does
that this was held by Copy, or to have fhewed fome fuch Matter. 3 Built, not clearly
230. Mich. 14 Jac. Elkin v. Waftell. 'appear.
9. In Trefpafs, the Defendanty/z/Zz/'Vi becaufe it was the Freehold
of J. S. and that he entered by his Command. The Plaintift replied,
that the Land was Cuftomary Land, whereof J. S. is feiled in Fee &c.
and demifable at Will in Fee, and that f.N. was feifed in Fee by Copy
at the Will of the Lord according to the Ctiflom &c. and died feifed ; and
that it defcended tu two Daughter, as Heirs of J. N. and that at fuch
Geo a Courg
2 0^ A Copyhold.
a Court Dominus ccnccilic eis extra Manus iuas &c. Habend' &:c. to
them and their Heirs, whereby they were ieifed in Fee, and demiled
to the PlaintitFfor Years. The Court held, that the Plaiutilf had not
made a good Title, becaufe none can entitle bimfelf to a Copyhold withoiit
Ibewing a Grant thereof^ and here he only lliewing that fuch a one was
feifed in Fee witho'ut Ihevving the Grant thereof, it was not good.
Cro. C. 190. pi. 19. Pafch. 6 Car. B. R. Sheppard's Cafe.
10. In Trefpafs tor taking and impounding his Cattle i the Defendant
pleaded, that at the 'ttme of the fuppofed 1'refpafs &c: he -was feifed of
feveral Lands, Parcel of the Manor of M. whereof the faid Cloje calPd L. is
and "Was parcel &c. Ut de Statu Cujiotnario Haireditatio, defcendible from
Ancejior to Heir Sc according to the Ciijiom of the faid Manor, and fo
juftiftes Damage fiafant. Upon a Demurrer it was infilled for the De-
fendant, that it did not appear by the Plea that L. was Parcel of the
Land of which the Defendant was feifed, but Parcel of the Manors For
the Word (ii'hereof) being a Relative, rejers ad Proximam Aiitecedens,
which is the Manor. And it is faid, that he was feifed De Itatu Hsere-
ditario defcendible &c. but does not Ihew of whofe Grant i For tho' it
it may not appear who was the firll Grantee, it being fo long lince the
Copyhold was granted, yet the Admittance of an Heir upon a Surren-
der or Defcent amounts to a Grant, and ought to be io Pleaded. The
Court were Opinion, that -dohere Seifin in Fee is pleaded of a Copyhold Rf-
tate hy IVay ofjitfiifying an Offence, with which the Detendant is charged,
he 7nufl fet oat the Commencement of his EJl'ate, and therefore the Plea had
Judgement. 4 Mod. 346. Mich. 6 VV^. &;M. inB. K. Robinibn v.
Smith.
Ld Raym. u. In EjeQment the Defendant Pleaded, that the Lands were held
I'tP. W of the Manor ot D. which is Ancient Demefne. The PlaintilF replied,
BadTs^C. and contl'fs'd, that the Lands were held of J. S. Ut de Manerio, de D.
held 'by 5 &c. which is Ancient Demefne, but that the Lands are Copyhold Lands,
juftices, Parcel of the faid Manor. The Defendant rejoined ex quo &c. The
but Powell pi;iintiff acknowledged the Lands to be Ancient Demefne ; 'tis not ma-
j. econtra. ^.^^.j^j whether they are Copyhold or Frank-Fee. Adjudged, that
the Replication was repugnant, becaufe Land heldUt de Manerio mujibe
Frank- Fee; for Copyhold Lands are Parcel of the Manor itfelf, and cannot
he held Ut de Manerio^ therefore to fay that they are held (jt de Mane-
rio, and yet they are Copyhold is repugnant, but the Rejoinder is ill j
for ifthey are Copyhold Lands,^then an £je£lment lies, becaufe aWrit of
Right will not, by reafon of the bafenefs of the Nature of Copyholds.
1 Salk. 185. pi. 4. 7 VV^ 3. C. B. Brittle v. Dade.
I Salk. ;64. 12. Cafe &c. lor difiurbing a Copyholder in the enjoying his Common
P'- ''•^''^„ appertaining to his Melfuage, in which the Plaintiff fet forth, that he
f^l^^C fin was feifed of an Houfe, and 10 Acres of Land in N. Parcel of the Manor
Error of the of W. by Copy of Court-Roll in Fee, according to the Cajlom of the faid Ma-
Judgment fjQy^ (^bm; ^id not fay Secundum Confuetudmem Manerii ad 'uoluntatcin
r ^ \ Id^ Domini) and that the Plaintiff ut tenens Ciijiumarins had Right of Com-
that now ' '''"» "' Warmlees, but was dijiiirbcd. Upon Not-Guilty pleaded, the
after Verdia Plaintiff had a Verdia, but the Judgment was arretted in C. B. be-
this Eftate caufe thofe Words were omitted, tho' the Verditt had found the Cul-
•^.y^* ft^'"" '^°'^ of the Manor, and that the Lands were Parcel thereof Nelf a.
be taken to 525,526. pi. 9. cites I Lutw. 126. Mich. loW. 3. Crowthef V.
he a Copy- Oidfeild.
bold Eftate,
and not a Freehold Eflate, becaufe it is both laid and found, that the Tenement? were Parcel of t!ie
M.inor, and that by Cultom tlie Plaintift' ut tenens Cuftomar' has Common, all whicli is utte;ly im-
poilihle, unlcis the Tenement was Copyliold, and therefore rauft be fuppofed, though the V\'ords,Ad
vol'.iiiiatea-' Domini) were omitted; and the Judgment was reverfed after great Deliberation,
13. In
Copyhold.
13. In Pleading a 'Title to a Copyhold RJl ate, it is ftifficiefjt topew a^ ^'i'^^ym.
. GrafJtf mil the Lord, but itt Cafe of a Cuflomary Freehold^ 'tis noc enough ^^P- ? -5, '^
'to fay chat the Lord granted it, or that A. furrendred to the Lord, ^y jiok Ch."
and he granted; but it miifi be ffjewn, that the Surrenderor -was feis'd i» J. — ^Saik.'
Fee, and furrendred to the Lord, and he granted, i Salk. 365. Hill, a'S, U-^-
Ann. B. R. Crouther v. Oldfeild. 9 bur S. P.
does not ap-
pear Lutw. 125, \z6. S. C. but S. P, does not appear. (J Mod. 19. S. C. but S. P. does
not clearly appear.
14. laCafe for inclojing his Common ; t\\t'?\i\n\x.'\W declared, that he was ■!, S.ilk 19.
feifed in Fee by Copy of Court Roll, according to the Cujiom of the Manor, J^"'- ^ ^"''•
hxitwithont faying ad Volant atem Domini ; the' it be not good Pleading, g'(->Yays
was yet held ^Df;^ after a Verdi ^ ; For unlefs the Lands, were Copy- this Decl'a-
hoJd, it is impoflible the finding could be true ; Per Hole Ch. j. 2 ration was
Ld. Raym. Rep. 123 1. Hill. 4 Ann. Crowther v. Oldiield. ^^^^ ''' ^^'
•' '^ ^ ter a Ver-
dift which had found it to be Parcel of the Manor, as the Plaintiff had fet forth in his Declaration,
becaufe the Words Ad Voluntatein Domini being left our, it does not appear to be Copyhold ; So
taking it to be Freehold, and nor Copyhold, then the Prefcriprion fhould be by a Que Eflate at
Common Law in his own Name, and not in the Name of the Lord. i 6>alk. 564.pl. 5 Hill.
4 Ann. B. R. the S. C, held well after a Verdidt, becaufe the Lands were alleged to be Parcel of the
Manor, and To reverfcd a Judgment in C. B. 6 Mod. 19. S. C. the whole Court was clear to
affirm the Judgment, but at tiie Importunity of Counfel, they gave Leave to fpeak to it again, et
adjornatur.
15. In 'frefpafs, for breaking and entring his Clofe, the Defendant
pleaded, that the Earl of Stiff ex was feifed in Fee of the Manor of G. of
•which one Meffage and 40 Acres of Paflitre Lands were parcel and dimijfa
and dimiffibilia in Fee, by Copy of Court-Roll ad vohmtatem Domini, ac-
cording to the Cujiom of the faid Manor, and defcendibk, and which do de-
fend from Ancejior to Heir, in a Courfe of Sticcejjion, calPd Ifenant Right,
Sc. then he fets forth a Grant cf the Prcmiffes to him and his Heirs by
Copy of Court-Roll, and a Cujiom fur every Copyholder of the Manor to have
Common in the faid Pafture-Land, and fo jufiijies the Entring and Chafing
the Plantiffs Cattle Damage-feafant; and upon a fpecial Demurrer, the
PlaintiiFlhewed the Caufe, that this Plea was repugnant and contradic-
tory in itfelf, becaufe the Defendant had pleaded, that the Premiffes
were Time out of Mind, dimiffa y dimiffibilia, by Copy of Court-Roll,
andyet, thM they were defcendable fromAnceJlor tof/eir, which is repugnant
and abfurd, and for this Reafon the Plaintiff had Judgment. Nelf. a.
526. pi. II. cites 2 Lutw. 1324. £Trin. 2 Jac.J Hutchinfon v.
Jackfon.
( W. e) * Wills of Copyholds. Good.' And what*£/^='^^
Words in Will extend to Copyholds, where Tefta-
tor held Freehold and Copyhold.
1. A Seifed of a Copyhold of the Nature of Borough-EngliiK
X\« furrendered it to the Ufe of his Will, and by his Will de-
vifed the Land to his eldeft Son, upon Condition to pay 10 /. to his
youngeft Son, and afterwards the youngeft Son entred for Nonpayment,
and adjudged lawful j cited per Clench, J. Goidsb. 154. Hill. 43
Eliz. as Wilcock's Cafe.
£. A.
>5
-)
Copyhold,
2. A. leifed of a Copyhold furrendered it to the oi'Ufe his WiJl and
devifed It to bis eldejl ^on^ paying his Debts, and lool. to his Sifters
when of Age, but if he failed to pay it, then ihe was to have fo
much of the Eftate as would amount to the Value. She came of Aee
but the Son refufed to pay her, whereupon the Homage allotted to her
as much of the Land as they adjudged the Value of loo 1. but the
Son, being admitted, refufed to fnrrender the fame. Decreed to pay the
Allottment or furrender according to the Ufe declared iii the \Vill.
N. Ch. R. 24. 8 Car. i. Marfton v. Marlton.
Chan. Cafes 3. Pwrf^^yor of a Copyhold after a Surrender made to him, before
;9. Davie v. Admittance, died, and by Will devifed to one who was then his Heir at
Beardfham, L^^^ but his Wife, who was then With Child, was after delivered of
Court held ^ Daughter ; the Devifee thinking the Devife void fuffered the.Daugh-
it clear that ter to be admitted, and rented the Copyhold of her for 20 7'ears, and paid
the Copy- the Rent, and then brought his Bill as Devifee; Per Cur. had he
holds fo a, come in Time he might have had a Decree, but after 20 Tears, and
dirpar°by Paymnt of Rent fo long, it is too late. N. Ch. Rep. 76. Mich. 13 Car. 2.
the Will; Daire v. Beverfliam.
For that
the Parchafor had an Equity to recover the Land, and the Vendor ffood trufted for the Purchifor
and as he fhould appoint til! a Conveyance executed, but that the Plaintitf came too lace. -•
Chan. Rep. 4. S. C. S. C. cited 9 Mod. -75. '
The Copy- 4. A. had Freehold and Copyhold Land, and makes his W'ill in
af'^b' th- thefe Words, I give all my Eftate of what kind foever, not before menti-
WiU'cifa"^ o«f<y by me, to tny Wife, whom I make my Executrix,; And it was held
Surrender the Copyhold Land did pafs, not by force of the Words alone, but
was made) becaufe it appeared that he had made a Surrender of the Copyhold
W.lf'takes ^^^"^ before to the Ufe of his Will. 12 Mod 594. cites Mich. 32
noNottc" Car. 2. Rot. 473. in Cafe of Shaw v. Bull.
of its havin<^
been furrendered. See Cary's Rep. Hill, i Jac. Manwood's Cafe.
5. W. B. Reftor of D. in E, by Will in Writing attejied by three Wit-
veffes, devifed to his Wife a Copyhold Eftate in Ealing ; afterwards the
Teftator, on the Day of his Death, direited his Nephew to obliterate fome
Devifes, but nothing as to the Copyhold devifed to his Wife, and then
caufed a Memorandum to be wrote that he had examined, porufed and ap-
peared of the Will as fo obliterated and altered by his Nephew in his
Prel'ence, but did not republifh it in the Prefence ot three WitneiFes, bu1>
dircffed his Nephew to carry it to Mr. Eldred, to have it wrote out fair,
but before it was brought back, became delirious. Held to be a good Will,
and the Truftees decreed to furrender accordingly. 2 Vern" 49S. pi.
449. 1705. Pafch. 1705. Burkitc v. Burkitt.
iVern 597. 6. A. furrendeis Copyhold Land to the Ufe of his Will, and then
Mich''^i''-T "i^i^ss his Will in Writing, and devifes his Freehold and Copyhold to
Anornly'^^^'"'^^^'^'^ W^^- The Will was all Written with his own Hand, but
General v. had no Witneffes to it. A. made a Codicil, reciting the Will, and this
Birnes S. C. 4 Witneffes to it. It was urged, and not denied, that doubtlefs the
^T ^the Copyhold was well devifed, for that paffed by the Surrender, and
Copyhold ^°^ ^y ^^^ ^'V^\^ ; But Lord Cowper decreed the Will was not good
docs not to pais the Freehold, and not being good as a Will, it could not ope-
appear. rate as an Appointment. Ch. Prec. 270. Mich. 1708. Attorney Ge-
"7~^ ^''^ neral for Sidney Colle2;e v. Bains.
of a Copy- ■' ^
hold Tenant not atteftcd even by one Witnefs is fuSicient to declare the Ufes of a furrender made
by liim, and it t.ills within the Keafoi of Cafes cited, that the t'jrty is in by the furrender, and not
by the Will and the Rcafon equally holds to give a good Title under the funcnder, tho" the Will
is nut atteftcd by any Witnefles at all, but fuch Will muft be in Writing, and then its being ficrn'd
by Uic Party is I'uffi.-ient ; And it is the fame in Cafe of a Truft of a Copyhold, where the Teftator
could
— — . — ' ' — ' -
Copyhold. 237
could not make a Suri-ender of it, tho* it was objefted that this diffsrs from the former Cafe, where
a furrender is made of a Copyhold Eftate to the Ufe of a Will, by reafon that there the Party is irl
by the furrender, whereas here the Truft pafTes merely by the Will, atid that therefore the Will
ought to have had the three Witneffes ; But Lord Chancellor's Opinion was, that this Point mult
he Co determined in Cafe of Truff, and if fucli Atteftation is not neceiTary where the Copyhold is not
in Truft, it muft confequently be the fame where it is in Truft ; And in tliis Cafe Equity follows the
Law, and that this Court is never more ftriift in rcquirins; Ceremonies to pafs the Trull of an Eftate,
than it is to pals the legal Litereft in it. Barnard. Chan. Kep. 12, 15. Patch. 1740. Tuflhell
V. I*age.
7. A. (eifed of Freehold and Copyhold devifed rt// his Real Rfiate
for Payment of his Debts, but had not furrendered the fame to the Ufe
of his lalt Will. Lord C. Parker was of Opinion, that if the Free-
hold Eltate was not fufficient to pay the Debts, the Copyhold Ihould
come in Aid, and directed the Mafter to fee if the Freehold was fuffi-
cient without the Copyhold. Wms's Rep. 443. Trin. 1718. Drake v.
Robinlbn.
8. But in Cafe of fuch Devife by the Father, whefe he Iq^z tto Debts,
and the Copyhold being Boroiigh-Engli/Jj, defcended to the yonngefi Son, and
there being 3 Sons, Lord C. Parker faid, that tho' with regard to Cre-
ditors the Copyhold would be liable, yet as between the Sons it would
be a doubtful Cafe. N\^ms's. Rep. 444. Trin. 1718, Dra.ke v. Ro-
binfon.
9. A Devife of all bis JLfiale ivhdtfoevcr comprehends all that a Man
has, Real or Perional, and when there is a Surrender to the Ufcs of his
Will, a Copyhold Eftate will fall under the fame Conltru£lion.
Comyns's Rep. 337. Pafch. 6 Geo. i. C. B. Scott v. Albcrry.
10. By a Devile of * all his Za»^/j, Copyholds, furrendered to the * Arg. 9
Ufe of a Will, will pafs ; And {o it will by the Words ^ all his Real ^.'°'^' 'i^
and Perfonal EJlate; Admitted. 9 Mod. 72 Mich. lo. Geo. in Cale of g^^' j^^^^*
Acherley V. "Vernon. S. P. 2Ch^n.
Rep. 59.
. -^ A contracted for Purchafe of Lands, Freehold and Copyhold, It was adjudged, that by a
Devife of Real Eftate, thofe Copyholds would pafs in Equity; Arg. 9 Mod. 75. cites the Cafe of
Woodyevv. Greenhill.
11. A Surrender was rhade of a Copyhold Eflate to Triijlees to the Ufe
of the JVill ; a Will was made with only 2 Wttiieffes to it. It was admit-
ted, that a Will of a Copyhold Eltate does not require three Wit-
nelles, but this is a Devife of a Trult relating to Lands, fo within the
very Words of the Statute of Frauds 3 the Heir controverting the
Surrender and the VV^ill, this Point was not determined, but two
Illucs ordered, tho' the Chancellor feemed to be of Opinion, that the
Devife of a Truft muft enfue the Nature of the Eltate, and not make
it to be necelfai y to have three Witneffes, as the Copyhold might
be devifed without three Witnefles, this may be a Queltion to be de-
termined when the Iflues are tried. Sel. Cafes in Lord King's Time,
42. Trin* 11 Geo. Appleyard v. Wood.
1 2. On Appeal to Ld. Chan, the Cafe was, S M. having Iffue 3 Daugh- ms. Rep.
ters, (viz,.) Mary, Martha, and Samuela, and having Freehold Lands Hill Vac'
in A. J. and W. and fome Copyholds in J. (fome of which he had fur- ^IV-,- An-
rendered to the Ufe of his Will) he made a W^ill, and devifed Part to 'Jy^^^j^^J-
Truftees for Charities, and to each of his two Daughters, Martha and
Samuela, diftincl Part of his Freehold Lands, and Money and Lega-
cies, to his Wife the Houfe he lived in, and leveral Cloles by Name,
till his Daughter Mary fhould attain 21, and then are thele Words,
and after then the Houfe and Grounds, and all other my Me£uagts, Cot-
tages, Lands, Tenements and Hereditaments whatfoever in A. J. and W.
not herein be] ore otherivife dtfpofed of, with their, and every of their Jppnr-
tenances, tinto my laid Daughter Mary, and to the Heirs of her Body, to
enter upon at her Jge 0/21, and not fooner.
P p p Mary
2C^8 Copyhold.
Mary marries Plaintiff Andrews, and Eill brought by them Ibr an
Iniun6tion, and to have the Want of a Surrender fupplied.
Qusere i. Whether the Words of the Will were fuliicient to pafl's the
other Copyhold in A. to the Daughter Mary ?
2. It Equity Ihould fupply the Want of a Surrender in this
Cafe?
Heard at the Rolls lo Feb. 1732. and held chat the Copyhold not
devifed to Charities did pafs by general VV^ords to PiaintiH Mary, and
that Equity Ihould fupply the Want of a Surrender, and decreed accord-
ingly, and a perpetual Injunction.
Eje£tment was tried before Juftice Cowper, and a Cafe made for the
Opinion of C. B. where it was held, that the W^ords were futHcicnt to
pafs Copyhold, and the Mafter of the Rolls of the fame Opinion ; and
•as to the fecond Point, the Parent is the proper Judge ol the Provilion
of his Children, and here is no Children provided tor.
Upon Appeal to Lord Chancellor it was obje£led, that the Copy-
hold Lands did not pafs, and that Equity ought not to aid a Surrender
to the Prejudice of two other Sifters, who with Plaintiff" were Heirs ac
Law, and Plaintiff" better provided for than the two other Siiters, ex-
clulive of Copyhold, and here there were other Freehold Lands where-
on the general W^ords might operate.
Lord Chancellor faid, the Rule of Evidence is the fame here as at
Law, the proper Evidence of Surrenders, or Title to a Copyhold, is
the Court Roll, or a Copy of it, or it mult appear they exilted once,
and are lofl &;c. and fomake way to go into Parol Evidence.
Plaintiff" has no Title ac Law. and as to an Equity Title, if it does
not appear to be Tellator's Intent to give this Copyhold to Mary, the
Court ought not to give it, but mult expound and colleft Teftaior's In-
tent from the Words of the Will, It is clear, that the general W^ords,
(viz. of all other) will take in the relt ot Copyhold as well as Freehold.
As to Cafes where a Surrender is not fupplied, they Itand upon this
Reafon, that the Intention could not be collected co give Lands to Ufes
to which Teftator could not give them, but -jjhen the Intention can be
colkBed^ though there are improper Words ^ yet they pafs in Co7tftderation of
this Court, where, if there had been a Surrender, they would have palledl
in favour of Creditors &c. and was of Opinion, that the Teffacur in-
tended to comprife Copyhold in the Devife to his Daughter Mary, and
it he did fo, the Rule is general, that fuch Devife is good to a Wtfe^
younger Children, or Creditors, but objefted that Mary is not the young-
eft Child, ftie is indeed eldeft, but piece of a whole Heir at Law, and
if fole Heir, yet it is common in Cafes of Portions, that the Eldeft is
confidered as the Youngeft if not provided for. In Cafe of Borough-
Englip^ the Toungeji mufi be confidered as Heir, fo in Gavelkind i In re-
gard to what does not defcend in Common, they ftand in Place of
younger Children ; to determine otherwife would be to determine upon
Words, and not according to the Nature of Things.
As to the Provifion made for Mary, he don't know that Court hath
gone minutely into the Conlideration of that &:c. otherwife wliere the
Heir is totally difinherited. In QSOfS' tiXO 'Bof'S the Heir had hut
6 1. rt y'ear, & de Minimis not curat Lex, and /» F.ffe& a total Dijhe-
rifon, but where there is a Provifion not unrealbnable, and where the
Heir is not lelt in adefpicable Condition, the Court has not gone lb tar.
In Cafe of X^UttOtl anil JflOtQ, it was laid down by Lord Harcourc \n
the rtrongeft Terms, and there, after an Elt>ice Tail a Surrender was
iupplied i and here Dctendancs claim another Eftate by the lanie Will,
and where a Devifce claims a Bounty, he niuft take the whole, or
rejc£l the whole, according to the Will. Decree was affirmed.
Copyhold. 239
The Quancum of a Provifion of a Child is in the Father's Power and
Difcretion • A Man is bound by Nature to provide tor all his Children,
and in this'Cafethe Father had provided lor two, and intended to pro-
vide for the third ; he intended to make a compleat Provilion, and
give all that he had among his three Daughters, and to leave nothing
to defcend.
(X. e) Equity. Of Bills in Chancery as to Co-
pyholds.
I A Suit was touching certain Lands which the Plaintiff claimed by
J\ Ucfe and the Defendant as Copyhold^ and becaufe the Plaintiff
failed in his Proof, and the Defendant jbezved his Copy and ancient Court
Rolls proving it to be ancient Copyhold, the Lands were decreed to
the Defendant according to the Copy againll the Plaintiff, his Execu-
tors and Alligns, till the Plaintiff Ihould prove a better Title. Toth. 122.
cites Fotherington V. Edfington. , . , . ^ , ,4 1 r^
2 The Piaintifi"'s Bill was, tor that he being a Copyholder leafed to
the Defendant tor Years, and the Defendant hath dtgged Gravel, and
fold the fame z^:zy, whereby the Copyholder is prejudiced i the De-
fendant iutlified, for that the Copyholders are not puniiliable in W atte,
^hich Caufe this Court alio weth not ot; tor though the Copynoiders
of the Manor are not punifliable, yet the Lelfee ot Copyholders ot the
Manor are puniihable, therefore a Subpoena is awarded to Ihew Caufe
why an Injtmaion fliall not be granted jorfiaying his digging of (travel,
and felling IVoods upon the Copyhold Lands. Cary's Rep. 89, 90. cites
19 Eliz,. Dalton v. Gill and Pindor. .
3 A Decree is made for the Defendant to enjoy certain Lands, as
well Copyhold, as Cullomary. Cary's Rep. 105. cites 21 & 22 Eliz.
Bamborow v. Alexander. ,. , ■■ ^T^ u
4 A Compofnion formerly made between Lords and Tenants ought to
lin'd a Purchafor or an Hein fo decreed. Toth. in. cites 40 Eliz.
Sterling v. Tenants of Burton. , ,j T?a . j u r
5 Where a Bill is brought for Surrender of a Copyhold tftate held for
Lives the Lord mtifi be made a Party, becaufe when the Surrender is
made' the Eftate is in the Lord, and he is under no Obligation to new
grant'ic ; contra in Cafe of Copyholds cf Inheritance, for there the Lord
need not be a Party. Mich. Vac. 1720. in Cane.
6 Bill was brought tor fpecifick Performance ot Covenants. The
Plaint ijf fold the Defendant a Copyhold Efiate of the yearly Value of 16 I.
(on which was Timber to the Value of 150/.; for 630 /. and covenanted
to furrender on or before Michaelmas then next ; the Defendant paid 10 s.
in Part of the Purchafe, entered on the Premifes, cut down Timber^ flocked
the Land, and did every ^hwg as Owner. The Plaintiff proved he gave
Notice in Writing, that he would furrender next Court-Day, and attended
accordingly , On the Defendant's Part there were feveral Proofs, that he
was dilordered in his Senfes, and though there be Proof that the Tim-
ber was of the Value of 150 /. yet as no Cuftom is alledged ot the Te-
nants having Power to cut it down, it mufl be according to the Com-
mon Law, by which the Tenant has no Power over it, and therefore a
plain Impoficion. The Chancellor was of Opinion, it was a great Over-
Value, and that -his cutting down of Timber was a convincing Proof of
his Folly, becaufe a direft Forfeiture i but as it i?_, it is a Matter meer-
ly
240 Copyhold.
ly ar Law ^ the Covenant is to furrender at or belore Michaelmas • voir
fay you were ready at the next Court, which does not appear to have
been before iMichae mas ; it Surrender had been, Aaion would have laid
^'h^'V -Bi'ldifmiHed. Sel. Cafes in Chanc. in Lord King's Time
3. Mich. 1 1 Geo. Edwards v. Heather. ^ ^^'
1. It Vendee of a Copyhold by Articles of Jgreevient files a Bill againft
the Copyholder tor ^fpecifick Performance, and makes the Lord a Parti
to compel him to admit zccorAmg to the Agreement, the Court will de
cree the Admittance ; but there having been no Tender of a Surrender t'a
Lord in this Cafe, and confequently no Relufal, the Lord ivas or-
'■d hts Cojts. '^ ^"" ■o-oorTMi ^ .„
Sayle v. Reeves.
iat.^''^^"-^': ^- •^'l"- ^' 188. Hill, 12 Geo. I. in CancV cites
(Y. e) Difputes at Law and in Equity between Lord
and Tenants.
I. T T IS decreed, that the Defendant and his Heirs fliall fromTime ca
X Timejir^r/j'/>rtj.ro?^£Plaintilfand his Heirs, Lords of the Manor
ofkenetworthj the Rent of 2, s. 4^. for the Piece of Ground called the
Hawte, together with the Arrearages thereof, Jince the 6. of E 6 and
Ihall henceforth do Suit and Service to the Court of the Plaintiif and his
Heirs, Owners of the faid Manor, and the Plaintiff and his Heirs Ihall
have and receive the Fines and Amerciatnents of Service done by the
Tenants ot the faid Hawte. Gary's Rep. 73. cites 6 Eliz Fol 14c
Litton V. Cooper. ' '^■^'
2. The Court compelled the Lord to admit a Tenant Copyholder to
ftie at Law without any Forfeiture of his Copyhold. Mich. 3 1 & ^2
Eliz. Fo. 21. Toth. 65. Gravener v. Rake. '
3. A Suit was to compel the Lord to grant a Licence to let a Copyhold
but becauie the Defendant by his Anfwer faid that the Copyhold was for^
felted, the Court would not intorce him to grant a Licence till the For
ieiture was examined. Toth. 107, 108. cites 1592. Ballard y,
lame Year . 4- ^ Copyholder can have no AJPfe of Common againlt his Lord but
Colcotv. IS to be rehev'd in Equity. Toth. 108. cites 38^ & 39 Eliz. Tenants
Lea. ot Petworth v. E. of Northumberland.
Gilb, Tre.it. _ 5. Alteration of a Cufiom by Confent of Lord and Tenants was allow'd
201 sV^'"" ^"^"^^'">'' ^"^ decreed accordingly. Lex Cuftom'. 323. Can cj?
\^- ■ cites 10 July. 44 Eliz. Dyer v. Dyer.
S-Ten^'if; ,^- ,^,°^^ °'^' ^ ^^"""^ ^^^ ^^^''^^^ ^° ^^""^ Copyholders at a Fine certain
r.ysQnJc; ''f.^''^_,^' ''l'''''''^''^^' '''M''^ ^"^^J and thereupon Copyholders were rei
whether it Leved, who were no Parties to the Decree. Hard. 169. Aro-. cites the
^Nin reduce Cafe ot the Earl of Derby v. VV^ainwright. ^'
a fine un-
certain into a Certainty at the Suit of all the Copyholders ; for though there be an Equity in mnr"^
rating an exceffive l^me, yet it fcems there is none to reduce an uncertain Fine to a certain one ar rh^
Suit of the Tenants. ''^ '"^
S a'and''"- '•- ^^^^°'i °f ■^J^UnoT, where the Cuftom is for a Copyholder to
held per tot. "'^"""^te his Succelfor, refifs to admitaPerfon named by a Copyholder to
Cur. that ^i his Snccefjor, he cannot bring an Aftion on the Cafe againft the Lord
:hc Aaion and has no Remedy to compel the Lord to admit him but by Order in
Chancery,
does not lie
refu-
'S to
admit; and
Copyhold. 241
Chancery, and the Ren-iedy againft a Lord of a Manor tor Non-admit- do
tance is only in Chancery. Cro. T. 368. pi, i, Palch m Tac B R ^°'
Ford V. Hoskins. ■* " ''?i
adr
raid the Plaintiff might go into Chancciy. Roll Rep. I2^ pi 7 S. C adiornatur. ^Ibid 19c'
pi. 57. S C. adjudged, per tot. Cur. againll the Plaintiff. . Mo. S42. pi. 1 157. S. C. refolv'd that the
Action does not he. '
8. The Court coinpelled a Lord to ac^mit a Tenant, Toth. 6j. Mich, S. P. Toth.
or Hill. 5 Car. Newby v. Chamberlain. ^5 March
9. Mortgagee of a Copyhold Kfiate was reliev'd againft the Zorrf who had ^" ^^^^'
got Poffcffion^ and a Releafe from the Mortgagor, and the Court held, that
tho' luch Rcleafe had extinguilh'd the Entry of Mortgagor, yet the
fame Ihould enure to the Benefit of him that had the former Right in
Trufl only, and for the Ufe of Mortgagee ^ And decreed the Poffelfion
to him accordingly againft the Deiendants, and all claiming under
them, and that the Lord of the Manor iliould account for the Pnfiti
lincc his Entry, deducing only his Fine. N. Ch. R. 7. 5 Car. i.
Lucas V. Pennington & al'.
10. AnIHLieastoF//;« oj Copy hold, whether certain or arbitrary, having
been trfd at Laiv the Court would not relieve otherwife than for Pre-
lervation oi Witneiies. 2 Chan. Rep. 76 24 Car. 2. Smith v. Sallet.
11. Tenant for Lite of a Copj'^o/(7' with a contingent Remainder to
his firlt Son in Tail, having no Son born, and thinking to veft the
v/hole Fee in himleit, buys in the Reverlion in Fee o'i the Copyhold
at 550 1. but finding this would not by Merger (the Freehold being in
the Lord) deftroy the contingent Remainder, brought his Bill to be
reliev'd againft the Security he had given for the Purchafe Money
being dtcctvd as to to the Efeff of his Purchafe i Per Cur, pay Princi-
pal Intereft, and Cofts, or be difmift with Cofts. 2 Vern, R, 243.
Mich. 1691. Mildmay v Hungertbrd.
12. A Cuftomary Tenant opened a Copper jWne in his Land, and dug
and fold Ore J and died, and the Heir continued digging and difpofina-
of great Quantities out of the faid Mine. The Lord of the Manor
brought a Bill agatnji the Executor and Heir for an Account of the faid
Ore, and alleging, that thefe Cuftomary Tenants were as Copyhold
Tenants, and that the Freehold was in the Lord. And Lord C. Cow^
per held that the Executor was liable, and diftinguilhed between this
which was a taking away the Lord's Property, and other Trefpaifes as
die with the Pertbn, as that of Plowing up Meadow, or ancient Paf-
ture, but fent ic to Law to try the Right of the Tenant, there be-
ing Proof that the Tenants ufed to fell Timber, and dig Scone, and
fell it. But there never having been any Copper-Mine betbre difco-
vered in the Manor, the Jury could not find that the Cuftomary Te-
nant might by Cuftom dig and open New Copper Mines, fo that, upon
producing the Poftea, the Court held, that neither the 'tenant without
the Confent of the Lord, nor the Lord ivithout the Confent of the tenant
could d'g in thefe Mines, being new Mines, Wms's Rep. 406. HilL
17 1 7. Bithop of VV'inchefter v. Knight.
13. A Etll is brought /y' the Lora of a Manor to recover a Fine for a
Copyhold on a Stiggejlion, that the Defendant was admitted by Attorney,
hut fometmes pretends the Attorney had no Authosity to take fuch Admit-
tance ; The Defendant anfwers as to Part, and demurs as to Relief.
The Demnrrer held good. 3 Wms's Rep. 148, Mich. 1732. North
V. Straftbrd.
14. h/tngle Copyholder is not rdievahle in Eqnity for an excej/ive Fine
becsufe this is determinable at Law ; But, to avoid Multiplicity ofSuits\
Q^q q fn^eral
'iZ^ Coroner.
fcvefd Ccpxholdcrs may join to he reltcvcd^ agatnji a general Fine that is ez^
i^Sf 3 Wms's Rep. 155.pl. 88. Mich. 1732. Cowper v. Clerk.
FormoreofCopvhoId in general, See COmmom COUrt CUftOmjJ,
ballot* ©tCtUaCtl of CCOUrt^* And ocher proper Titles. .
Coroner.
(A.) His Antiquity and Qualification.
E- , r/7ft 8 T^NACTS, That no Coroner fhall le jho-wn tin-
Coroners I. 14 ^' 3- ^''V' °- j^ j^j-^ j,^ |,^„ x^«^ in Fee fitfficient tn the fmne
PrTncS County 'Whereof he may anfwer to all People.
Guavdians ^^ ^^ Coroners, bilt Men
P .. .nd tVv.fove the Common Law d'd J^ot only .'■^^^"'^^^^j .,^^ ^,r„^,, ^^at they uill do their
f rnfficknt Ab-iUty and Livehhood for f"/P°;;^;/^';^- ft,,,,,, thereunto their Land. and Good,
Duty r^ not offend the Law at the e^^^^^^^ ,.^;^^ pi,,, ,,d Duties as belong to
Kbjea- .dly. T^^at S be able to nn^^e^r^ to.^^ ^^^ ^^^^^^^ ^,^^^^^ ^^^^ ^,^^g^.
hin,, aid to %'^;XlJ^^^^7cL their Office without Bribery, z Inft. 1 74.
able. Sdly, That tne> ^
^^ n r rhn' in Original later than the Sheriff, was never
2. The Coroner tho.«On^.«^ ^^ ^^^^^ ^^ ^^^ j^^^^
.hclefs very ancient j^h^ was thm^^^^ ^ ^.^^ ot MapAaughter and
ot the 2. Hib work was h ^ Coronam, which tor-
by Indiamenc ot al F^^^^^^^^ ^^ ^pp^^l . ^s a fo
inerly were only contra rac , p^^iei^^rcs, and them to fe.fe ;
he was to inquire o all ^^i^^he^^J. p"? j^s and to keep the Rolls ot
He was alio to receive Appeals ot Felon es, and p^^^^ ^^ ^^^^^^
the Crown Pleas ^'/^in the County ^^J^ ^^ j^ fenrencirg
in Alfred's Time \^^' '"^^'f'^^J^^^St^^^^^^ the
one to iufVer Death upon^heCo^oner^^^ ^^^ ^^^^ ^^^ ^^^
Delinquent Liberty ot 1 "verie in j,^^^^..^. ^
Eleaiun of the Freeholders in ^he.r ^00^^ Vn^he County, and Avorn
.nd from amongft the ^en of chiekft^Rank in ^^^^^^y, ^^^^^ ^^
in their Prefence, but the King s writ
Government. 66. , ^ ^\\^a becaufe he is an Officer
4 Inft. 171
Cap 59- ^. ' , n.
S.P. be- ^.j^^ Coronce. 2 inft. 31
caufe he
t'i/Z^S;^ rie.xsoftU Oo-wruox Matters concerning the Crown.
r^ .r. in everv County, and Sheriffs, were ordain'd to keep
Coroner. 243
Counties and Bailiffs in Place orHundreds. 2 Inft. 31. cites the
Mirror, cap. i. S. 3. ^ ^ j r
5. A Common Merchant being chofen a Coroner was removed, tor
that he was Communis Mercator. 2 Inft. 32.
6. They are of fo great Antiquity, that their Commencement is not
known i Per Doderidge J. 3 Bulft. 176. Pafch. 14 Jac.
(B.) His Eleaioii.
I iVefim I cap lo.TT^Orafmnch as mean Pcrfoas and indifcreit wow o/h feems that
3 £ "i ' i: late arc commonly chofen to the Office of Coroners y at this Day
.there it is 'requifite, that Perfons honcfi, lawful and wifeflmM occupy ficb [J^^^^-. t
Offi'ccs ; it IS provided, that thro' all Shires * fufficient Men jbad be chojen j^ not Caulb
to be Coroners of the mofl wife and difcreet Knights which know, will, for rcmov-
and may bell attend tipon fiich Offices, and f ivhtch laii^fully ffiall attach ing a Core-
and pre fent Pleas of the Crown, and that Sheriffs (ball have Counter-Rolls ^^^^ ^^^
with the Coroners^ as well of Jppcals as of Inqiiejis of Attachments, or Sufficient
vthsr 'things which to that Office belong. Lands with-
^ m the Coun-
ty it fafficeth, altho' he be not a Knight notwithftanrfing that this Statnte which requireth that_ he
be a Knic^ht. For thole Words are i^uc into the Statute, to the Intent that he ihould have fufficient
within the County, and for no other Caufe. F. N. B. .64. (A) z Inlt, 176. S. P. 2 Hawk.
^'* Tht'bffice of a'coroner ever was, and yet is eli-ible hi fuU Couyity lythe FreehMen, tj the
A-/«?' Wr.if De Coronatore eligendo, and the Reafon thereof was, tor that both the K.ng and the
Country had a great Intcreft and Benefit in the due Exe-ut,o;i ot hts Office, and therefore the Com-
mon Law cave the Freeholders to be Eleftors of him^ 2 Inft. 174 J . ,, . r
+ Seein-' tha' <^oroners are elected by the County if they be inlufficient, and and not Me to anfwer
fuch F,«« and other Duties in reffea of their 0,fce as theyo^ght, jijeCW^, as their Superior, JW/
\,^r.-uerthertme 2 Inft 175. Ibid. 4<'(5. S. f . 2 Hawlc. Pl.C. 43- Cap. 9. S. S. S. P.
By this it appears that' the Coroner is Judge of the Caufe, and not tlie Sheriff, and this agrees with
our old and later Books ; only the Sherirfs hive Counter- Rolls with the Coroners by torce of this
Ad and therefore a Certiorari may be directed to tiie Sheriff and Coroner to remove ^n Appeal by
HiU'before the Coroner, becaufc the Sheriff hath a Counter-Roll ; But if the Certiorari be direfted
"o the Sheriff only in cafe of Appeal or Indiftment of Death, it is not fufficient to remove the Re-
cord, becaufe he 'is not Judge of the Caufe, but has only a Counter-Roll. 2 Inlt. 176.
2 28 E. 3. cap. 6. Coroners (hall be chofen in fall Counties, by the Com-
tnons of the moji meet and lawful People that can be found there, faving to
the King and other Lords, who ought to make fuch Coroners their Seigniories
and Franchifes. , „ ■, , n „ i ■ . j 1
3. 33 H 8. 12. Coroner of the Kmg s Houfliold pall be appointed by
the Lord Steward. v • ^
4 The Writ Dc Coronatore eligendo lies, where a Man who is Coroner
of any County dies, or is difcharged of his Office, then that Wnc fhall
be awarded unto the Sheriff, that he in full Couuty by the Freeholders
of the County, chufe another in his Place, and to certify the hlection,
and his Name, who is chofe, in the Chancery. F. N. B. 163. (K)
5. The fuflices of B. R. are the Sovereign Coroners ot the Land.
^ 6. 'cIm/«r^rV;o/ Coroner Huill be tried by the Country, For he is
chofen in the County by the Country, jenk. 90. pi. 74 ^ „ . ^
7. The Chief fupce ofB.R. is the Sovereign Coroner of a!l tng- G,y„ ^h. j.
land 4 Rep. 57. 8. by the Reporter, Trin. 30 Eliz. 2 sjd. loi.
^ ^ Trin. 16 j8.
8. It
2 44 Coroner.
(C) His Duty and Authority.
SZ'S: '■ ^'^"^ Chan. cap. ^V^O Coroner fiall hold Pkas of our Crcm.
Coroner had JL ^
The fame Authority he now bath, in Cafe when anv Mm r^n,» f« ; i
vifum Corporis &Z Abjurations and OutlawTLr&fAppTa s7/ Vlt^Zr^r^^'l^'^t' ^ '^^^^
of the Coroner, viz. the Coroner folely to take an Imirfl-l-nr r, 7 ™','-^ ^^. Thu Authonty
Appeal, and to enter the Appeal, and tL Courf^eLaii o "..D y^b" Te ''''''' ^'1 " ''^'^^ ^
cither upon the Indiftment or Appeal, but to deliver them ovrt 7„ Vh , I " P'""'"''^ "° '""'^'^r
them by the Statute of W. i.cap ,o And his anDea.rhv .M .^ ^a'"r'^'"o^ ' ^'"^ ^'^'^ ''' <avcd to
nual Experience. 2 Inft 52 Jllbid r^d! S. P " "^^ ^°°''^' Book-Call-s, and conti-
lony belongs '
to the Office of the Coroner of the Verge. 2 Inft 549 5^0
Hereby it appears, that by the * Common Law tiic Coroner of th<- rn„n,„ .^ m
within the Verge, but the Coroner of the Verce and thaMf h. m.L ^°'i"^^i°''''^ ""^ Intermeddle
a Man, it was not allowable in Law ; and fo t fs f d« Coroner otht KiW H "r °V^^ ^"'"^ °^
nientof the Death of a Man out of the Ver-e it is rn«m nln t 1- .^\ "°"'^ ^'■'^^ ^n Indift-
Death of a Man being (lain out of the Ver-^^* be Xn before ^h^-c'' ^"^-'^ ^^"didment of the
the Coroner of the cSunty, and To e„S of ReSd [^^ fuS^'bt ^ "°^'"'^' -<^
King's Houfe joined with him, who had no Authority 2 Inft ^J"""'' '''"'^'^ ^'^^ t:o>-oner of the
th:^or;;rs^a 'ei^^ ^^^ Mird^ri,a£h5f&.f;!i,h^uJif '^ kt :fi^-- °^
vemovedintoB. R. he pleaded, that Tuthill was and ver VlvVhi u T^' ^^'^''^^ Indiftment being
a good Plea, and lie wa'. difcha'rged of tl!at Indil^tmenr.' 4 Rep ^6 b "^'' '"' "''^ ^'' ^^^^^^ed
t^'heVelLy rJ^d t^'h'c ^'^°"\P"\^\E,^'Sent, nor o,nb.w\i, nor any ^n, m-
wasnotdit-- 1""^^'^"^ the Circuit, the which has been to the great Dama/e ot the kZ
puni/hable ; ^»^ nothing to the good Prefervation of the Peace. ''""'^' °S tkie King,
^'^^J^Mt^^:^T!S:!^^ ilfSc ^ '^ 'A ''^'^ '-^' '^^ - ^o-
diftment, though the King went om of ,™ VerK vet S rn^?A> ""' "^ 'K ^''-^ '"^ ''^'" ■«" ^n-
R. for that is the Center whereunto al ReS ds ofThat'^Nature Ho Sr'"'^""if ^' ro b, ,.e,noved i„ro B.
heard and determined. 2 Inft 550 ^^°"^' °' '"'^ Nature do fall, and there the OtL-nce might be
be''."Dt'^£.^ri„7t5?"°"'''^'='^^^'-°"^'^'"S= f-'^-""- ~-'^ -- I^. R. The
liere ouglit to
ofteer J-^J Z r"^' ^''^^'°"' hence orth tn Cafes of the Death of
the Defen- '^^'"^ "'.W the Coroner's Office is to make Vu,v aid iLeff it Tall L
dant ole.d- commanded to the Coroner of the Country, that he -with h rl '^■''■f'^'
„at A..^'. Houfe, Ihalldo as Iclongeth to h]l oi^./l^.rw";. ""' '^ '^''
dant p
ed, that at
Hampton
Court, within the Countv of Middlpfrv v„M,;., .1 ir 1 . ■ - .
Coroner of the Houfe of rhc King, and aifo one of hi \"^"' ^ ^V'^l^l ^"'^■•" '"^^'''-'^ «• ^- ^^er,
he was indiftcd of ManlLurhter, and arrai "n'H rL ^""TT °L^"''''^'^-^ i>"per vilum Corporis
nerul^l.dde.e. andconfJ^M the"t!SrsVatr;i:.;^d'£L.^^^
tn.nt .as well taken, .aid within the Statute of ' K^u^^^^^^f J:S::^l^;^ £; jhi^difK
Coroner.
245
Dearh within the Verj^e, it fhail be fent to the Coroner of tiie Countv, who with the Coroner of the
Houflioid of the King_ fhuU do his Office as belongs to him ; and though it was objeCled that the Sta-
tute requires two Perlons, and therefore one cannot execute it ; For lecurius expediuntiir Megotia
commil'ni pluribus,et Plus vident Oculi quam Oculus ; and that Una Perfona non poteft lupplercVicem
duorum, yet in this Qife of feveral Authorities it was refolv'd, that the Indiftment was well taken;
For the Intention and Meaning of the Aft was perfor.Ti'd, and the Mifchief recited in the Adt avoid-
ed as well as when one Perlon is Coroner of the Heurtiold, and tlie County alfo, as it they had been
two dirfL-rent Perfons ; For though the Court removes, yet he as Coroner of the County may proceed
&:. 4Kcp. 45- b. 4(5. a. cites Pafch. 20 Eliz. B. R. burgh v. Holcroft. :; Init. 114 cap. 72.
s. c.
6". ro. ^iid that l^hini that cannot he determined hcjore the Steward^
where the Felons cannot be attached^ or fur other like Caitfe, Jhall he remitted
tQ the Common La-w.
S. i\. So that the Exigents^ Outlawries^ and Prefentments pall he
made thereupon in Eyre by the Coroner of the County, as well as of other Fe-
lonns done out of the Verge;
S. 12. A^everthtlefs, they pall not omit by Reafon hereof to inake Attach-
ments frtlhly upon the Felonies done.
4. The Coroner inquires of all thofe who are killed floniou/ly, or by
Ml fad-vent un, out of Houfes, and whojirfi found the Body, and if they are
taken, and if they are Men or Women, liccle or great, and let hy Main-
prife till the next F'.j re of the Jiiflices, and the Name of the Parties [hall
be inroird, as the Name of the Coroner ihall be. £r, Corone, pi. 90.
cites 22 Air 94.
5. A Man was indiffcd before the Coroner in Roll of the Coroners, and Corovirs may
upon this was outlaw' d upon the Roll of the Coroner ; Quaere it the Coro- '•'** appeal
ner may award Procefs of Outlawry. Br. Corone, pi. 100. cites 2.1 "^ 9""''^' .
K/r „ 3 r 7 I ^f!,j award
-^"•47- ProcefjUthe
,„,.,, , , . , Exigent, but
the I lea fliall not be determin'd before them. Br. Corone, pi. 82.
6. Coroner took an hidi^inent that a Man taken for Felony was con- Br. Corone,
du6ted to the Church by certain Friars, who were arraign'd upon it, P'- V" '^""
and becaufe the Coroner had no \Varrant to receive any Indiilment unlefs ^' ^"
upon View of the Body, or hy Writ fent to him &c. therefore Writ i£iud 10
the Coroner to certify, if he had other Warrantor not. Br. Indittment,
pi. 29 cites 27 Afl'. 55.
7. a a Man be taken by Procefs, and after dies in Prifon^ the Coro-
ner ought to fee him, which ought to be returned by the Sheriff to the
Court. Br. Corone, pi. 167. cites 3 H. 5.
8._ A Writ ilFues to the Coroners of the County to arrefl A. the Jr- 39 H. 6 41.
rej} is made hy one ot them, or a Servant of one of them, it is good ; but
the Return of it ought to be in the Name of them all, and a Warrant made
to the Servant of one of them to make the Arreltj ought to be in the
Name of all. Jenk. 85. pi. 65.
9. In Re'dilfeifin, Error is brought, the Error affigned isj that A. 32 H. (J. 27.
who fat with the Coroners, was not a Coroner, and yet gave Judgment^
this is Error ; where two join in Judgment, When one of them has no
Jurifdiftion, it is Error ; by the Jultices of both Benches. Nemo de-
bet fe immilcere Rei aliense. Jenk. 90. pi. 74.
10. And if the Arreft was made by a Servant of one of them, and it
is fo returned, and the Return fays that A. made Refcous upon fuch Ar-
refi made by the Servant of one of them, upon a Precept made by one of
them, this is ^ bad Return, and yet an Attachment lltalihe awarded againll
the Refcujfer,and he Ihall be committed to Prifon, although he tenders a
Traverfe to the faid Return ; and this becaufe of the Deteftation which
the Law has ior Difobedience and Force againll the King's Mandate,
and the Credit which the Law gives to the Sheriff 's Return ^ There
I^ I r may
24-6
Coroner.
may be a Traverle to a Refcous returned by Weltm. 2. Ch. 40. Jcnk. 85.
pi. 65.
II. One Coroner can hold an Inqueft upon the View of a dead Body ;
Two Coroners ought to be Judges in Re-di^cijin ; Oweferves to pronoance an
Oatlcnvr)\ but the Rtitry ought to be in the Name oj All^ and io ot" all
Proceis directed to the Coroners. If there be only one Coroner in the
County ; that one will ferve in all thofe Cafes. Jenk. 85. pi. d^.
IftheCoro- 12. If a Man be A;///V, and intend before that the Coroner has takm
vcr fneji fuf- inqiiijion upon View of the Body, the Coroner may lawfully take bmi
Imment' \>s ^'^^ of the Sepulture^ to fee the IFounds, to make a good Indictment; bv all
v/h\ch the the Juftices. Br. Corone, pi. 166. cites 21 E. 4. 70, 71.
Body is bu-
ried, he may dig him up again and find thereof fiifidevt 40 Days after rhe Burial, Quod N'f)ta, by all'
the Jufticcs. Br. Corone, pi. 172. cites 2 R. 5. 2. Jenk. 161. pi. 8. cites S. C. but (jvs it was
14 Days after the Burial. 2 Hale's Hid. PI. C. 58. cites S. C. of 21 E. 4. 70,71. but mentions 14
Days only.
* Keilw. 67. 13. A Coroner upon an Indifiment of Murder fuper vifum Corporis^
\f"^' r» /"Wj the Murder, and that A. received the Murderer after the Killing,
•t S. P by '^"'^ "^hat A. fugam fecit. This finding of the Coronor, as to the Re-
Fineuxand ceipt and the Flight, was held void, by all the Judges of England.
Kingrmill, Upon fuch Indiftment the Coroner has nothing to do, except as to him
T'* M^h ^^^° killed the Man. The finding of the Killing, and of Flight, as to
Procure- "^^e Man-flayer, or, * as to the AccelFories before the Facl, is good j
ment was but fnoc as to Accefjories ajter the Fa£f. Jenk. 177. pi. 54.
out of that
County.
t S. P. Mo. 29. pi 95. Trin. 3 Eliz. Anon. ■ Dal. 52. pi. 19. S. P, agreed, and cites Stamford,
Fol. 183. accordingly.
14. 33 H. 8. cap. 12. Coroner of the King's Houfhold, without the
Affiftance of any other Coroner., Jhall take the Inquijition, and by a Jury
of the TeomcMj Officers of the Houfhohi.
15. li^ 2 P.& M. cap. 13. S. 5. Coroner mufi take the Evidence in
Writing, and bind over the VVitnelTes.
16. The Coroner had no Power to take any Confeffionfor I'reafon., albeit
the Coroner had a fpecial Commifjion from the King to do it. 2 Injt.
629.
D. 3I7. a. iiy. The Mayor of London is the Coroner, but he lliall not pronounce
P'^'^^'_^'''- Judgment on Our/.'?:yr)', but the Recorder. 8. Rep. 126. a. in Waga-
EUi.. Put- "S''^ ^'^^^ ^^^^^ ^- ^S Eli^'
tenham's
Cafe. Co. Litt. 2SS. b. S. P.
18. The Coroner gave Evidence to the Juryfuper vifum Corporis^ hut
they would give up no Verdi ff.^ wherefore he adjourned them from Time
to Time, and from Place to Place, but they would not agree upon aVer-
diff. Upon this a Letter was fenc to him from Fleming Ch. J,
not to take a Verdift of them; upon which he went to the Affifes at
at Hertford, and did acquaint the Judges v/ith it lor his Difcharge, the
Jurors were fined, and the Indiftment there taken at Hertford. 3
Bulft. 173. Pafch. 14 Jac. the King V. Taverner.
19. If a Coroner has once to do with a Writ, the Sheriffcannot inter-
• meddle; Per Lea Ch, J. Palm. 370. Trin. 21 Jac. B. R.
20. The Coroners are not the proper Officers of the Court in any
other Cafe but where the Sherilf is abfoluccly improper, not where
tlxere is no Sherilf at all; W the Sheriff dies, the Coroner can't execute
&c. I Salk. 152. pi. 2. Pafch. 3 VV. & M. in B. R. The King v.
^\'arrington.
21, Coroner
Coroner. 24.7
21. Coroner need not go £vO/y;<r/o to cake che ///^'/ij/?, but ought to
be fent for, and that when the Body is trelh ; and to bury the Dead
before, or without the fending tor the Coroner, is a Mifdeameanor.
The Body may be dug up again, but it ought to be upon frelh Purfuit,
not at fuch a Di fiance of Time, for it is a Nufance, and may infeft
People. JU IBaChlCP'JJ CilfC, there was the Leave of Court for that
purpofe i Per Holt Ch. J. i Salk. 377. pi. 21 Pafch. i Ann. B. R.
The Queen v. Clerk.
22. Out of the Pares Comitatus one was chofe to be the Coroner,
who recorded all the Pleas of the Crown in the Torn, ail Inquilitions
of Felo's de fe, and People coming to an untimely End ; and likewife
all Outlawries ; And thefe Coroners ivere in Nature of Comptrolhrs to
the Sheriff, keeping a Record of the Fines and AmerciemC'its in the Sheriff's
Court. Gilb. Hilt. View of the Exchequer. 80.
(D) Aathority. Where joint or ieveral. And
where the Adi of one &c. is efFe6iaaI, and iliall
bind or charge the other.
I. A Coroner ma.y adjudge Ontlawrj upon Exigent. Br. Retorn d^
£\ Briefs, pi. 42. cites 14 H. 4. 34.
2. yind one only may /it upon the Body of a Manjlain. Ibid.
3. And ouQ only may refummons an Appeal. Ibid.
4. But thofe Acls they do judicially and as Judges, but the Return
they do as Minillers, and therelbre there feems to be a Diverlity ;
^lisre. Ibid.
5. Note, If there are 4 Coroners in one County, and aWrit is directed A. Venire
to them, [i one dies., yet the other three may execute the Writ, becaufe ^^"^^/^
there lliil remains the greater Number ; but if before the Execution of j^^gtufned
the W r'lx. three fhall die, fo that there is only one remaining, he cannot hY the
extents xhQ Writ until others are eleffed, i^Vi. 4. 39. If there are 4 Coroners
Coroners, and a Writ is directed to them, three Coroners cannot w/^A^° ~°^""
a Return of the Execution of the Writ, 31 Alf 20. Bat if one of them l^^ four of
viakes Execution of it, and the Return is by alloi them, there it is good ; them, and
As if one of them only iits at the County-Court on the Exigent. F. N. only two
B. 163. (N) in the new Notes there (c)cites 14 H. 4. 34. per Hunk, 'ff"'" *},'
n ■ s^ U/c Ttatr Fenire Fact-
m a Capias, & 39 H. 6. 41. ^^^ ^^d ^^^
Plaintift
has aVcrdift and Judgment ; this is not Error ; adjudged and affirmed in Error. This was a good
Csufe to ftay tlie Trial, but not after Trial to reverie Judgment ; and this Cafe is now aided, if need
be, by the Statute of Jeofails. Jenk. ^58. pi. 85. Cro. J. 585. pi. 12. Mich. 13 Jac. B. R.
in the Exchequer Chamber, Lamb v. Wifeman.
6. Writ ifued to the Coroners of the County of S. to arrefi W. N. and
|. G. One of the Coroners of the County a-tbrehid return'd, the IVrit in
his own Name only, viz. that he had Precept to M. his Servant to take
him, and he took him, and Refcous ivas made by F. C. and K. upon which
Attachment ilFued againll them, and they were taken, and the At-
tachment return'd, and after ic was awarded that the Refcuers Ihould
go to the Fleet; but by the Reporter this is as upon Suggeition made
to the Court, and not as upon the Return ; For it was agreed, ihac
the Return is not good ; quod nota. Br. Retorn de Bnefs, pi. 66. cites
39. H. 6. 40.
7. The
24B
Coroner.
7. The judgment of tu-o Coroners is good, tho there are lour Coro-
ners in the County ; Contra of their * Return ; For this Ihall be by all
the Coroners. Br. Corone, pi. 200. cites 4 E. 4. 43.
6 Mod 57. 8. In Debt againjl C. and D. Coroners ot the County of Nortblk, the
J\Iich. 2 ^Yxvnti^ declared, that he had recovered againfi N. Sheriff' of the [aid Coun-
Ann. B. R. ^y^ ^qq /. and that a Ga. Sa. 'was diretted to the Defendants^ who arreji-
HohCii. J. ^'^ him, and fuff'ered him to efcape. The Dejendants plead fever a/Ij Nil
if there are debet, and upon the Trial it appeared on the Evidence, ihdt the Writ
2 Coroners, ^^j delivered toD.ofily, and he only in Per/on arrejled N. and that C. had no
one whereof j^TQfjce^ ,1^^ had given anyJJfhit to tt ; nor did it appear, that any Return "juas
Be^ar, M-^"^^^ "f ^^^ ^'''^ 5 ^^^ "po" ^^c Trial Holt Ch. J. becaule the Coroners
fersanEf- are but one Officer in this Minillerial Office, directed the Jury to find
cape, it is for the Plaintitf, but afterwards, for the Hardlhip of the Cafe, and
very hard j^ji^^uity of the Matter, he figned a Bill oi Exceptions at London,
the'other compriiing all this Matter, upon which it was argued for the Defen-
•ivith it, and dant, that he ought not to be charged tor this Att of his Companion,
hefaidthe done wichout his Knowledge, lor tho' in Truth they both make but
Cafe came ^^^ Officer, and ought to join in all minilterial AiSls, yet in this Per-
oncT and fonal Tort done by his Companion, without his Knowledge, the Charge
he vvould Hiail lie on him only who did the Wrong, as in 3 Cro 175. the Under-
net take Sheriff' who imbeziled the Writ is only chargeable, tho' the Hio-h
upon him Sheriff alone is the Officer of the Court. But it was argued e contra,
it tho"h?s"^ ^h^^ ^°^^ being but one Officer, the Act of one is tlie A61 of both, and
fi rot her Le- both chargeable, and fo is i Mod. 98. ii^aplCC i)* S^ljiUpICp, where
vins reports, the Gourt io inclined. Treby Ch. J. here inclmed lor the Plaintiff
'^'^^Si'i Powell inclined for the Defendant; Rookby dubitavit, & adjornatur
ov°er ruleT Ulterius arguend'. 3 Lev. 399. Trin. 6 VV. & M. in C. B. Tallour
him in the V. Gierke and Denny.
Exception
And faid, that the Cafe had been argued feveral Times in C. B. but adjudg'd ; but the Court thought
it hard to charge the other. The Keport fays, See IgUtcOfr auO ^SotttT'^ (Laff, in Time of the
late Kin;;.- 1 Salk. 94. Hill. 4 W. & M. in B R. Butcher v Porter is a D. P. Carth.
24;. S. C i-; a D. P. Show. 400. S. C. is a D. P. Lord Raym. Rep. 217. S. C cited'
by Holt Ch J. but not S. P.
1
(E) Inquifitions before him.
Exception 1 , 48 £. I . cap. 2. A Coroner ought to inquire tkefc 7'hings ; firjf, he
rinSti- ^■'^- JrLJhall goto the Place where any Man isjlain, or
on before fuddenly dead, or "Wounded, or where Houfes are broken, or where ^reafme
a Coroner, IS [aid to be found, and (hall command ^ of the next 'Towns, or s or 6^ to
becaufe it appear before him in fuch a Place ; and when they are come, the Coroner,
'perSacia'' "^"'^ ^^^ ^'^^^^ of them, pall inquire if they bio:p where the Perfon was firfi
rnlnttimpo- J^^'^t "whether it were in any Houfe, Field, ijc. and who were there. Like-
borum& le- wife it is to be inquired, who were culpable, either of the A^ or of the Force^
galhim Ho- and who prefent, and of what Age they be, (if they canfpeak and haveDi fere-
"'iZm L'lxi ^'°"'-^ ^^ "''^"y iispall be found culpable by the Inqucfl (hall be committed
me"Zpenti-^° ^^°^^ ^"^ ["i^h as pall be found there, and be not culpr.ble, fball be at-
um but only tached until the coming of the Jujiices, and their h'ami.ijhall be written in
the
Coroner. 240
the Rolls. If any Man be/lain fuddealy^ which is found in the Fields, or laysPi-obo-
in the Woods, fir ft tt is to he feen, -whether he were /lain in the fame Place )'>"" ^ '^K'-
or not, and tf he were brought there ^ they jb all do as much as they can to fol- „'^^ Je^^a-
low their Steps that brought him. It pall be inquired alfo, if the dead Per- rochia de Ax-
fon were known, and where he lay the Night before ; and if any be found '"'«/?«>•,
culpable of the Murder, the Coroner Ijoall go to his Houfe, and inquire what "'hereas the
Goods he hath, and what Corn he hath in his Grange ; and if he be a ^ ^^n",-^i^(j
Freeman theyOoall inquire what Land he hath^ and what it is worth Tear- Officium
ly, and what Crop he hath upon the Ground, and they pall caufe all the Coronatoris
Land, Corn, and Goods to be valued, and delivered to the Town/hips, which ^^^^^^ that
pall be anfwcrablc before the Juftices; and Itkewife of his Freehold^ ^""^ maf/be^'tak-
much it is worth 2 early, and the Land /hall remain in the King's Hands en by 4 of
until the Lords of the Fee have made Fine for it. And thefe things being the next
inquired, the Body (hall be buried. Villsatleaft,
, ^ T J ■ J r, • at"! that fo
•was the Common Law, and cited Britton 7. a. But the Court over-ruled this Exception, becaufethey
'Villi intend \h-it. t\ii Inquifition was of the next Fills according to the Statutr, but the Coroner is noc
bound to return it Particularly. Sid. 204. Trin. )6Car. 2. B. R. The King v. Crofs and Dab-
byn. Poph. 209, 210. Hill. 2 Car. B, R. the Hime Exception taken, and Day was given to the
Attorney General to maintain the Inquifition ; But the Indidmciit was aherwasds quafli'd, efpecially
for another Exception.
A Coroner's Inqueft found B. Felo de Te, it was objefted upon 4E i. Dc Officio Goronatoris, by
which 'tisenafted, that the Inqueft fliall be taken by Men Villarum Proxime adjacentiu'ra, which' this
was not, but by Men Villarum adjacentium, and this Statute being made to prevents Mifchief
•which was before at Common Law, ought to be ftridtly purfued, or elfc 'tis made to no Purpnfe; to
•which it wasanfwered, and fo adjudged, that 'tis not requifite to flicw, that the Jury were Men of
the Viils Proxime adjacentium, foritfliall b: fo intended till the contrary is fliewn, that an Inqui-
fition Super vifum Corporis might be taken at Common Law before the Coroner, and then it is Villa-
rum adj.icentium, which (hall be intended Proxime adjacentium, and upon View of 14S Precedents
accordingly all the Court agreed, that the Inquifition was well taken ; and Judgment that it be filed.
2 Sid. 90 lor. 144. Hill. 165S. Berkley's Cafe.
It is obfervable, that this Statute being wholly direftory, and in Affirmance of the Common Law,
doth neither reftrain the Coroner from any Branch of his Power, nor excufe him from the Execution
of any Part of his Duty, not mention 'd in it, which was incident to his Office before ; and from hence
it follows, that tho'the Statute mentioned only his taking Inquiries of the Death of Perfons flain or
drovyned, or fuddenly dead, yet he may, and ought to inquire of the Death of all Perfons whatfoever
who die in Prifon, to the End that the Publick may be fatisfied, whether fuch Perfons came to their
End by the common Courfe of Nature, or by (ome unlawful Violence, or unreafonable Hardlhips put
on them by thofe under whofe Power they were confined. 2 Hawk. PI C. 47 cap. 9. S. 22.
Andthe like Reafon alfo feems to be the belt Ground of the Refolution which we find in fome
Books, that there is no Neceffity that it appear in a Coroner's Inqueft, that it was taken by the Oaths
bf Perfons of the next adjacent Towns, but that it is fufficient to fay that it was taken by the Oaths of
lawful Perfons of the County, inafmuch as fuch Inquifitions being good before the faid Statute which
is wholly declaratory, muft needs be fo (fill, but it feems that it ought to appear in every fuch In-
quifition, at what Place, and by what Jurors by Name it was taken, and that fuch Jurors were
fworn, and that the Reafon given in fome Books that fuch Inquefts fliall be intended to have been
taken by the Men of the next Towns feems very harfh, if it be fuppofed necefLry to be taken by
fuch Perfons; for that fuch Intendtnent would be contrary to the general Rule of the Law which
will not fuffer any material Part of an Indiftment to be taken by Intendment. 2 Hawk. PI.* C 47
cap. 9. S. 22.
S. 2. In like Manner it ii to be inquired of them ^ that be drowned or fud-
denly Jlain, whether they were Drowned, Slain, or Strangled, by the Sign
of the Cord about their Necks, or any other Hurt found upon their Bodies ;
and if he were not f Jain, then ought the Coroner to attach the Finder, and all
other in the Company. A Coroner alfo ought to inquire of Treafure found
who were the Finders, and who is fufpeifed thereof ^ and that may be perceiv-
ed where one lives riotoujly, haunting taverns, and hathfo done of long hme,
hereupon he may be attached for this Sufpicion by 4 or 6, or more Pledges'.
Further, if any be appealed of Rape^ he mtiji be attached if the Appeal be
fre^j, and they fee an apparent Sign by Ejfu/ton of Blood, or an open Cry
made, and fuch pall be attached by 4 or 6 Pledges tfthey be found. If the
Appeal were without Cry, or without any manifeft Sign, 2 Pledges pall be
fufficient. Upon appeal of Wounds^ efpecially tf ths Wounds be mortal, the
Parties appealed pall be taken and hpt until it be known., whether he that
S s s is
2^0
Coroner.
is htm pall recovtr or not ; aridif be die, the Defendant (hall tc kept, and
if he recover they/hall be attached by 4 or 6 Pledges. If it i?e of a Adann,
he pall find more than j^ Pledges; if it be of a j mall IVonud, 2 Pledges
Jhall fuffice. Alfo, all Wounds ought to be viewed, the Length, Rre.idth
andDeepnefs, and with what l^eapons, and in what Part of the Body the
Wound IS, and how many be culpable, and how many Wounds there be, and
who gave the Wound, all which 1'hiiigs muji be enrolled in the Roll of the
Coroners. Moreover, if any be appealed as Principal, they that be appealed
• of the Force pall be attached alfo, and kept until the Principal he at-
tainted.
Where a 2. 3 H. 7. Cap. I, Every Coroner, upon View of the dead Body, pall in-
jury frtiis qrji^g Qjffji Perfon that hath done theDeath or Murder ; Jlfo of their Jbet-
a Manjlmn ^^^.^, ^^^^ Confenters, and who were prefent when it was done j and the
oUCoro'.''^ Names of the Perfons fo prefent and found pall inroll and certify.
Tuehtu\nA -who kiU'd him, or that he killed himfelf; or or they may find that he who is named in the In-
diament killed himfelf ^e Defendendo. Jenk. 202. in pi. 24. cites 37 H. S. Br. N. C. 297.
3. Wbenoneisflaininthe Day-time, and the Murderer efcapes un-
taken, the Townpip thatfuffers it fhall be amerced, and the Coroner (hall
inquire thereof upon the View of the Body dead.
4. Alfo Juftices of Peace have Power to inquire of Efcapes, and to certi-
fy them into B. R. and after the Felonies found the Coroners Ihall deliver
their Inqmfitions before the Jtifiices of the ney:t Goal Delivery there, who
jhall proceed agamft the Murderers, or elfe certify fuch Inqnifitions
into B. R.
5. In Cafe of Homicide no Goods its Forfeited till it be lawfully
found by the Oath of 12 Men that he is Felo de fe, and this belongs to
the Coroner Super Vifum Corporis to inquire thereof, and if it be
found before the Coroner Super Vifum Corporis, that he was Felo de
fe, the Executors or Adminiflrators of the deceafed fhall have no fra-
verfe thereunto. 3 Inft. 34, 35. cap. 8.
♦ Upon Ex- 6. As the Sheriff" may in his Tourn inquire of all Felonies by the
ccptionthat Common Law, faving of the Death of a Man, fo the Coroner can in-
the Inquiry quire of no Felony, but of the Death of a Man. and that * fuper vifum Cor-
was not fo. -^ j^g ^^jj jnquire alfo of the Efcape of the Murderer, of Tre.ifare
don was 'Trove, Deodands, and Wrecks of the Sea. 4 Init. 27 1. cap. 59.
quafli'd r> T> A
Poph. 209, 210. Hill. 2 Car. B. R. Anon.
7. Inquilition Super vifum Corporis was held to be void, becaufe it
was not alledgd where the Inquilition was taken, nor by what Perfon, nor
theirNames, nor that they were fworn. Cro. E. 31. pi. 4. Trin. 26 Eliz.
B. R. Pinner's Cafe.
8. An Inquilition of Murder was taken before 7! D. Coroner of the Lord
Berkley, hut fhewed not that he was Coroner of the County, or of' what
Liberty ; Nor was it ihewn how the Lord Berkley can make a Coroner, by
Patent or Prefciption; and the Indiftment Quod perculfit cum Gladio
without faying Felonice j and for thefe Caules the Indiftment was dif-
charged. Cro. E, 193. pi. 7. Mich. 32 & 33 Eliz. B. R. Dea ring's
Cafe.
9. Inquifition finding that the Perfon was pofleiled of a Leafe gene-
rally as yet continuing, without Ihewing the certain Beginning and De-
termination, is good enough, and the. fil'elt Way. For finding the
Date wrong vitiates the Sale. Cro. E 584. pi. 13. Mich. 39 & 40 Eliz..
B, R.. Paliaer v. Humphrey.
ic In-
naming the reji of the Jnr)\ but omitted (Probnrum & Le^alinm HomiuimJ Oily's Cafe,
nor did it fay ^iwd feipfum percttjjtt. Dodderidge and Haughcon held ic lame Points,
infufficient for both Rcafons, and chough the Indictment is Vircute Ot- ^""l '"^cT
ficii by the Coroner, yet he is bound to the Rule of the Law in the^nd fo^thofe
Executionof his Office, and. cannot impannel Outlaws and Villains, Reafons
and the Words in the VVrit commanding the Sherilf to inquire per Sa- the Court
cramentum Proborum & Legalium Honiitium, lliew that the Law in- ''^l^ '"^^ ^""
tended of what Condition it Ihould be. Palm. 2S2. Palch. 20 Jac. B. be V^'ious^
R. the Earl of BerkllHre's Cafe. efpccially '
for the firft,
and it was difcharged upon that Motion, without Djy given, becaufe ir was faid they were very
clear.
11. Inquifition before the Coroner funud, tktt S. H. p^ff^ng a Bridge
letzvcen W. and B. in Coin. H. by Rcafon of a Breach in 'the Bridge.^ fell '♦
into the River ^ where he was drowned, and that the Bridge is in the Vill
of dec and in the Magna Decafu by Default of the Inhabitants there ;
k was held, that the Coroner may hnd fuch a Nufance as occalions the
Death of a Man, and that the Tovnlhip ihall be amerced thereupon,
but becaufe it was not found that the Town was bound to repair this
Bridge, the Indictment, as to that, was qualLed. Allen ji. Hill. 23
Car. B. R. Samuel Hall's Cafe.
12. M. B. otCiray's-Inn being drowned in a Ducking-Pond, theCo- Mod. 82.
roners Inqiieji jonnd him Felo de fe, but upon feveral Affidavits produced ^ p! "^7- New-
that hewas dijlempered in his Head, the Court was moved, that the In- f/^^j'i^'j'llg'
quilition might not be filed, efpecially fince the Coroner would not fiiffer Cafc of
any Witnefes to be examined in the Behalf of the Adminiltrator of B. Miles Bartly
to prove that he was dijiemper'd in Mind, and for that Reafon they gran- ^^^ Inquifi-
ted a new Trial ; but becaufe the Inquelt could not be Super vifum Cor- [-^ed^and"'
poris, it was ordered, that the Inqiieji Jkould be made by 6 of the former that 'that was
Jury, of which there were 18 i that 14 of them had found him Felo de fe, the Keafon
lilt 4 diffented, fo 3 of thofe 4, and 3 more of thofe who hart found him '■'"'''^y '^ "^^'^
Guilty, and 6 new Jurors were appointed, and that theyfhoidd have Coiinfel°^^_^'ff^^l?^'
cmdWitneffes on both Sides, which ought to be done by all Coroners, Hift. pi. of
fince the Law has fo great Regard to Inquilitions taken before them, the Crown
that they are not traverfable ; and it was inlilted for the Adminiltrator, '^"'- '^""^*
that this new Inquifition might be taken before the Ch. J. who admit- \^2e ftvs
ted, that he could do it in any Place, he being chief Coroner of Eng- he^remem-
'lang, but would not grant that Part ot the Motion, becaufe it was the bers it was
Jo-norance ot the Coroner not to hear any W^itneifes againli: the King, l'"'^''' 'hat
and not any Misbehaviour of him in his Office, which was the Occalion "ni^f y^ft
of this Complaint; thereupon the Jury proceeded betbre the Coroner, befolTthe
and upon this 2d Inquelt he was found Felo de fe. 2 Sid. 90. 101. 144. Coroner
Hill. 1658. Berkley's Cafe. Super vifum
. ' Corporis,
v/herein the Party was found Felo de fe, the Inquifition was quafhed in B. R. becaufe upon Exami-
nation it appeared, that the Coroner refufed to let the Jury hear VVitneifes on the Part of liim that
was dead, to prove that he was not Felo de fe, for the Coroner ought to hear Evidence on both Sides,
partly becaufe it was doubted that the Inquifition in this Cafe is conclufive, and a Conviftion, and
not Traverfable, and the Court of B. R. who are the Sovereign Coroner, did fet a fide that Inqui-
fition, and ordered the Coroner to inquire De novo fuper vifum Corporis becaufe the Body was yet
to be viewed. S. C. cited 2 Hale's Hilt. PL C. 60. '
13. It was moved to amend an Inquifition taken by the Coroner insid. 2^9.
York Super vifum Corporis 3 The Court order'd that the Coroner at- pi. (^ Trin.
tend luch a Day, and amend ic in Court in alt Points but the Matter of\^^" ^■
theVerdia. Sid. 225. pi. 18. Mich. 16 Car. 2. B. R. The King v, Kif„ J'""
Harrifon. Glover' af-
ter leveral
Motions it was agreed, per Cur that all Matters of Forra may be amended in the OfSce by the Co-
roners, but not ^iattcri of Subflance.
14 Where
252
Coroner.
14. Where a Coroner omits to inquire^ B. R. as fupreme Coroner
throughout England may inquire, or may make Commilfioners to in-
quire, or Conimiliioners of Oyer or Terminer may inquire i but then ic
is not Super vilum Corporis, and therefore may be traverfed. Per Cur.
Vent. 182. Hill. 23 & 24 Car. 2. B. R, Stanlack's Cafe.
15. A Motion was made to quafh an Inquilition taken before the
Coroners Super Vifum Corporis of one that killed himfelf, which
found that he wns Feb de fe ; but the Court were informed, that the
Party was non combos Mentis, and that there had been an undtn Prac-
tice by the Coroner, of both which great Proof was made, and upon
that it was qmjhed. Vent. 352. Mich. 32 Car. 2. B. R. Anon.
16. The Defendant was Felodefe, and the Coroner's Inqueft found
him a Lunatick, and now, Mr. Jones moved for a Melius ifiquirendum,
but it was denied, becaufe there was no Deted in the in the Inquilition ;
^«? the Court told him, that if he could produce an Affidavit that the
Jury did not go according to their Evidence, or of any indireff Proceedings
of the Coroner, then they would grant it ; But it was afterwards qualh-
ed, becaufe they had omitted the Tear of the King. 3 Mod. 80. Pafch.
I Jac. 2. B. R. The King v. Hetherfall.
CartJi. "jz. j^ If a Coroner's Inqueft is qrtaped, he mu&take a new one Su-
The King ^^^ Vifum Corporis, but if a Melius Inquirendum ts granted upn a Malt
S.C.°""^ fe gef/ft of the Coroner, the new Inquiry muft be before the Sheriffs or
? Mod. 258. 'Commiffioners, upon Affidavits, and not Super Vifum Corporis, becaufe
S-C- none but a Coroner can inquire Super Vifum Corporis, and he is not to be
trufted again, i Salk. 190. Mich, i W. & M. in B. R. The King v.
Bunney.
3. Mod. 18. Caption of an Inquifition is not to be amended; per Allry and
3,<s. Hill. Cur_ Comb. 70. Mich. 3 Tac. B. R. Anon.
4 W. & M. ■'
in B. R. The King v. the Warden of the Fleet.
19. It was moved to quafh an Inquifition taken before a Coroner,
whereon the Jury find that a Pojl m the Highway was Unica Caufa.
movens ad Mortem, and he excepted to it, becaufe it was Nos certe cre-
dimus eje Caufam Mortis, whereas it ought to be certain, and therefore
it was qualhed. 12 Mod. 112. i Hill. 8 W. 3. Anon.
20. I'he Coroner ought to accept fach a Prefentment as the Jury makes ;
Per Cur. abfente Holt Ch. J. Comb. 386. Mich. 8 W. 3. B. R.
Smith's Cafe.
21. A Perfon having kill'd himfelf, as there was reafon to believe, Fe-
lonioufly, foi' that he had made a Formal Will juft before, and the
Coioner having fworn the Jury to inquire, finding the Evidence given
very ftrong, took off' fame of the Inqueji ; And per Holt, it is not in a
Judge's Power to take on a Juryman after he was fworn ; and tho'
this Coroner be a weak filly Man, yet that is no Reafon why there
Ihould not be an Information againft him, for fuch Men muft learn,
they muft not thruft themfelves into Offices i and the Return of the In-
quifition, finding the Deceafed Non Compos, not baing filed, it was
quafhed, per Cur. 12 Mod. 423 Pafch. 13 W. 3. The King v.
Stukely.
22. Jnd Holt cited a Cafe Of One 'SComb'jS who had kill'd him-
felf at Highgate, in the Year 1655. and the Inqueft was fet afide/or
Praifice. 12 Mod. 493.
(F) Tra-
Coroner. 253
(F) Traverfe of Inquifitlons before him.
I . '"T^ H E flying for Felony found before the * Coroner upon the IndiB- * For this
JL mtnt is not traverfiible j Contra of fuch flying found upon Jn- "^" ancient
di£l:menc before Commiflioners^ for they ought not to inquire of this be- ^^^ of the
fore the Arraignment. Br. Traverfe per &;c. 383. cites 36. H. 6. 31. T°ave"rfe ''
, per &c.
pi 229. cites 6 E. 4. 5,
2. The Coroner's Inqueft found A. Telo de fe ; his Executors pray'd The Court
that they might traverfe it, which was granted by Hale, Twilden and *"'=''"'J.
Wild, filente Rainsford, lor the Coroner's Inqueft finding Felo de fe jn^fj^j
Trfable, though Fugam Fecit is not. Alterwards the Inqueft was findinE;
ts traveriable, tfiougn fugam teat is not. Alterwards the Inqueft was finding a
quaflied for VVant ot the Word * Murdravit^ and a new Inquilition Man Kelo
was appointed to be taken before Juftices of Peace. 2 Lev. 152. Mich. ^^ "^ ^^^
27 Car. 2..B. R. The King v. Aldenham. travcrfablc;
' " bor per
Hale, the
Reafon why an Inquiliiion that finds a Fugam Fecit is not traverfable, isj becaufe all the Parties
that were prefent at the Death of the Party are bound to attend the Coroner's Inquell, and their not
appearing there is a flying iri Law, and can not be contradicted ; but that Reafon does not hold in
a Felo de fe. Freem Rep. 419. pi- fS** Mich. 1675. Anon, Itwasheld^ that an Inquifition
found of a Felo de fe was traverlable, tho' my Lord Coke holds the contr.iry, and it being remov'd
hither by Certiorari, they were admitted to traverfe it. Frcem. Rep. 445. pi. 606. Mich. 1676
Ire ton's Cafe. * But Salk. 5^7. pi. ii. Pafch. 1 Ann. B. R. in Cafe of The Queen v. Clerk
the Court held, that fuch an Inquifition would be good without the Word Murdravit, and that fo
is l©ame 2ralc'0 Cafe. 7 Mod 16. The Queen v. Clerk. S. P. by Holt Ch. J But
an Inquifition, before the Coroner taken Super Vijum Corporis thatfnds the Peribn was Feh de fe fy> nan
Ciw/w/ .//eB«// may be traverfed ; But the i^;/^flOT /ed/ in an Inquifition before the Coroner cannot be
travcrfed; Refolved per Cur. Vent. 278. Hill. 2] & 28 Car. 2 B. R. Anon.
3. The Coroner's Inqueft Super Vifum Corporis found that P. felo-
titou/ly threw hirafelf into a River^ and therein Setpfum emergit, t? flc feip.
film occtdit y murdravit ; but becau(e(emergit)is getting out of, and not
drowninghimfelf in the Water, the Inquilition was qualhed, after the
Party had been dead and buried two Years ; but becaufe the Man had
been dead and buried fo long that there could be no View, the Court
held that it might be fupplied by a Commilfion of Inquiry, and it was
ruled that his Death Ihould be prefented at the next Allifes &c. and
the Inquilition traverfed and tried at the fame Affifes. 2 Lev. 140.
Trin. 27 Car. 2. B. R. The King v. Parker.
4. Inquifition of a Felo de fe was returned hither by Certiorari, and ^ >• 19S.
it was moved for a Melius Inquirendum, on Affidavit of MelanchoUy ^."P''=y'
and Dijlraiiion^ but denied, and held by the Court not grantable unleis figl'd's^'^f
there had been fome Irregularity in the Caption of it, and ordered the S.^C. the^^*
Adminiftrator to traverfe the Inquifition, as is ufual in the Exchequer Court did
in Cafes of Inquefts of Office, as Talis venit & queritur feipfum colore "°^ approve
&c. gravari & Minus rite &c. And agreed by all the Bench, that he of'a m".'-
might do fo ; but held by fome of the Bar, that it is not traverfable ; Inquiren!"*
upon an Aftion of for Goods of the Deceafed's it will hold good, and dum, be-'
cannot be traverfed. 2 Show. 199. Pafch. 34 Car. B. R. The King "'^'^ t^"''
V. Ripley. ^Inquifition
was traver-
T .,- . . n , r ., , ,- . • lableas well
as an Inquifition agamft another for Murder, and it was faid, that Lord Ch J. Hale had declared here
that he was of this Opinion ; And therefore the Court advifed the Adminiffrator of Ripley to remove
the Inquifition hither by Certiorari, and then to fuggeft himfelf to be griev'd by it and fo to brin?
the Matter and Truth of the Inquifition into Judgment Skin. 45 pi. 16, i C. accordinclv i
and fays, that the Lord of the Manor had ufed Art in obtaining the Verdift.
T E s j. An
•2^4- ' Coroner.
5. An Inqtiijhion en a Melius hiqtttrendiim is traveriable, hut mt an
Inquilition Super Vifum Corporis. Garth 72, 73. Mich, i W. & M.
in B. R. eked the Cafe of the King v. Heatherfali, and this agreed by
the Court to be good Law.
(G) Punifli'd for Mifdemeanors in his Office in Civil
Cafes.
1. 'VTOTE; an Attachment was awarded againft the <:oroners of
j^^ York, becaufe A. was 5°. exathts, but they wouLi not give
Judgment of the Outlawry, and an Affidavit of that was made. And Mil-
lington, an ancient Attorney faid, that the Coroners of Stafford for
fuch an Offence were fined every one 10 1. but after the Judgment of
the Outlawry pronounced they 7H^j'y?«;y //&£ i?cf//r;; of the Exigent for
to be advifed, if the Cafe requires. Noy. 113. Trin. 2 Jac. C. B.
Anon.
' 2. In Cafe againji 4 Coroners, for that J. S. was outlaw'd at the Plain-
tiffs Suit, and a Capias Utlagattim delivered to the Coroner, and tho'
they might eafily have arrelted him, and that he was once in Company
with one of them, falfely returned a Non eft Inventus. It was obje61:ed,
that the A6lion ought not to be brought againlt all four, for it was faid
the Writ was deliver'd but to one, and the Allegation was, that the
Plaintiff was in Company with one of them, &c. But it was anfwered,
that all four made but one Officer, and belides, they all join d tn making
the falfe Return ; And Judgement for the Plaintiff Nili. Freem. Rep.
191, 192. pi. 195. Pafch. 1675. C. B. Naylor's Cafe.
(H) Where Writs fhall be dire(9:ed to the Coroners.
i.T~^XTEN D I Facias upon a Statute Merchant iffued, and the
P^ Sheriff' did not return the Writ, and the Party made thereof Sug-
geftion, and pray'd Writ to the Coroners, and could not have it, but
only a Re-extent. . Br. Statute Merchant, pi. 34. cites 27 E. 3. and
Fitzh. Suggeltion 20.
2. If the Sheriff does not ferve the Replevin at the Phtries, Procefsfhall
iffue to the Coroners," and there the Sheriff has loll his Power to fue any
Procefs in it after, by the bell Opinion. Br. OiSce and Off. pi. 43.
cites 43 E. 3. 26.
Br. Reple- 3. Where the Sheriff does nothing in Replevin at the Alias, nor at the
vin pi. 9. Plttries, Procefs pall iffue to the Coroners to attach the Sheriff^, and to
cites S.C. m^ke Replevin. Br. Procefs, pi. 21. cites 43 E. 3. 26.
Withernam,
pi z cires45 E. j. 4<5.
4. Note, that Procefs direffed to the Coroners to ferve, this ought to
le fcrvd by all the Coroners ; but where tliey are to give Judgment, the
judgment, of two of them fuffices where they are four i For in the
one Cafe they are Juciges, and in the other only Miniilers. Br. Pro-
tels, pi. 172. cites 14 H. 4. 34.
$. Procefs
Coroner. 2 5 rt
5. Procefs fliall not be made to the Coroners ivkcre there is ho Sheriff', Br. Office
(ir ivhere the Sherift'is dead ; lor the Sheriff is an Officer ininiediute to^"*^ ^^- P^
the Court, ior Procefs fliall not ifPue to the Coroners unlets in fpecial s'^'c ""
Cafe ; As where the Plaintiffs fays, that the Sheriff is his Coufin,
and prays Procefs to the Coroners, and the other does not deny it,
there Procefs fhall ilfue to the Coroners, and other wife not. Br. Pro-
cefs, 70. cites 22 H. 6. 51. By all the Jultices.
6. If a Sheriff' of a Comity in a City be in Contempt, the Attachment
is to go to the Coroner, and not to the Mayor or chief Ofiicer of the
Corporation in fuch City or Town, and if the Offender be out of his
Office, the Attachment fhall be directed to the new Sheriff. 2 Vent.
216. Mich. 2 W. & M. in C. B. Anon.
7. In the Cafe of 2 Coroners, if the one be challenged, the other mull If one or
aft, and yet both make one Officer, i Salk. 152. pi. 2. Pafch. 3 "•"'^^ "'''
W. & M. in B. R. in Cafe of The King and Queen v. War- '^f Jj^'^^'i
rington. thersmay"
execute the
Writ, and ofie Cot-oner may do an Aft alone in the Name of the whole, and fet tlic Names of the
others thereto. Arg. fays it i.s agreed fo in the Books, z. Show. 2S6.pl. 2S3. Pafch 25 Car 2
B. R. in the Cafe of Rich v Player.
(I) Difcharg'd cr Remov'd. For what Caule, and
How. And what lliall determine his Office.
1. A Coroner is not vmde by Commifficn ^'k? ^j' 7??// and when he is Br. Commif-
Jf\ Elefted byWrit, it is returned in Chancery, and is a judicial Ati - Pg ]^^
of Record, and therefore when the King dies this Ihall remain, where Br. Co-
ail manner of CommilRons ceafe by Demifeofthe King, As Commilfions rone, pi. 200.
of Jultices, and the like; but judicial A8:s Ihall remain, and fo the Co- cites S C—
roner Ihall remain till he be removed by Writ of the Kin?. Br. OiSce and ; ,,5; -
Off. pi. 25 cites 4 E. 4. 43. and 44. Marg. of
the laft £di.
tion cites S, C. accordingly. 2 Hawk. PLC. 3 cap. I. S. 11. S P. and Ibid. 45. cap. 9. S. 5.
S. P. 2 Inft. 17V S. P. Dal. 15. pi. ;. Anno 1 Mar. S P. by Ponmaii, and not denied
by Bromley Ch. J.andcites D. i Elix, fol. 1 52. pi. 2. accordingly.- Lev. 120. Mich. 15 Car.
2. B. R. the S. P. relolv'd accordingly.
2. On a Suggeftion that a Coroner had not ftifftcient Lands v/hhln
the Hundred, a Writ iffued to chufe another, and one was chofen.
Rhodes and Windham, held that this is a good Dtfcharge ; tho' F. N.
B. 163. (N) fays, that he ought to be dilcharged by Writ. Godb.
105. pi. 123. Mich. 28 & 29 Eliz. C. B. Anon.
3. The Coroner Ihall be difcharged of his Office by the King's Writ But this
fent unto him, and thereupon Ihall ilfue another Writ diretled unto the^""J^'" "^
Sherijf to chufe a new Coroner, and that \V"rit f'jall recite the Caufe of the i'bid!m the
Difcharge of the other CoTonQT. F. N. B. 163. (G) new Notes
there(b)ci:es
5 Rep. 58.
4. If a Coroner is in a langtiip'mg Condition^ or fo hrcken with old Jge F.N. B. 163.
that he cannot exercife the Office, cr becomes Paralitick, it is good Caufe ^^-'^"^
to remove him. 8 Rep. 41. b. in a Nota of the Reporter. to that Pur-
pofe.
zHa-wk PI C 44. cap. 9. S. 12. S. P.
5- If
2c6 Corporations.
5. If a Coroner be difcharged of his Office by jalfe Suggeflion^ by the
King's Writ direffed to the Sheriffs then the Party may come into the Chan-
cery^ andrtquire a Commiffion to inquire of the fatd falfe Suggefiion^^ and to
return the Inquiry before the K.ing into the Chancery, and if ic be
found to be Falfe, then the King may make a Superfedeas to the Sheriff,
that he do not remove the Coroner if &c. and if he be removed that
he fuffer him to exercife his Office as he did before. F. N. B.
164. (D)
(K) Punillied.
1. 3 H. 7. cap. I. A Coroner jhail not he remifs., but /hall duly exe~
Xx "'^* ^^^ Office according to Law, tn Pain of 5 1,
and pall have for his Fee (upon View of the Body) 13 J. 4^. of the Goods
of the Murderer, if he have any ; if not, then out of ftich Jmerciaments as
/hall befet upon the ^o-wnlhip that fufered the Murderer to efeape.
2. 1 H. 8. cap. 7. Jujiices o/Ajife and Peace have Power to enquire of and
punip the Defaults and Extortions of Coroners.
3. The Coroner is to return his Inquifttton at the next Gaol Delivery,
and becaufe he did not, the Court di/charg'd htm, andfet a Fine of tool,
upon his Head, they having found it Murder, and kept the Inquifition
in his Pocket. Per Cur. in a Nota. Keb. 280. pi. 81. Pafch. 14 Car.
2. B. R. The King v. Ld. Buckhurll & al'.
For more of Coroner in general, See other proper Titles, and 2 Hawk.
Pi. C. 42 to 55. cap. 9. and 2 Hale's Hift. of PI. ot the Crown 53 to
69. cap. 8. concerning the Coroner, and his Court and Authority in
Pleas of the Crown.
Corporations.
''''^'^-'^^^^(A) By what Means a Corporation may commence,
and by what f'Vords and 'Names j and by whom, &
e contra.
[Or rather, of the feveral Sorts of Corporations,]
[And of what Perfon or Perfons it confifts. PI. 1,2.]
* A P.irfon I. A COrpOCatiOtt confifts of one fingle Perfon only, ajS tljC King,
hasSucccf- /\ Bifliop, * Parfon fC, CO, 10. 29. b. ^ l^CCljClHiarp. CO. 10.
lion, and IS -J ij
tiSTiriifm 2. Or aggregated of many, a0 ^^flPOt ailU COmmOnaltP, DWIl
and his Sue- ann Cftaptct, ann tbcfc in t6c €M. %m arc calleo iiniticrfiitiesi oc
celTovs- for COUCge^* 10 CO. 29- U*
he may f
pi'cfcribe in him and his PredecelTors, and may purchafe to him and his Succeflbrs. Bf. Dean &o.
pi. 19.
t S P.
Corporations. 2 -^ 7
■f S. p. Br. Encumbent, pi. 14 citci :;9 H. 6. 14. - — And per Uanby, a Manmav give Lamt to a
Par/on and his Succejfors, 7 E. 4. 12. and tlie fame per Liulcron in liis Chapter ot t'raiikalmoigne. Ibid.
Bf.Corporations.pl 6S. cites ^9 H. 6 14 & 7 E. 4. 12.
Of Corporations fome in Spintu.il, and fome are ^emfornl. The Spiritual are, as Abbot.-!, or Priors,
and rheir Covcnt.s, and fuch like, which confifl: of P^rfons Relifi;ious, Regular, and Dead as to the
World. The Temporal are, as Dean and Chapter, Mayor and Commonalty, Mafters, and Confreres,
and fuch like, of which (om, co'ifift wholly of l^erlbns Spiritual and Secular, fome of Perfons Tempo-
ral wholly, and fome Mix'd of Perfons Ecclefialtical and Temporal, for which See, Thel. Dig. 19.
Lib. I. cap. 22. S 2 refers to 5 H 7. 26. 13 H. S 15 and 14 H. !j. 5. Co. Litt. 250.3. S. P.
3. CfjCrC ace 4 Sorts of COCpacation^ by the Common Law, 3gl
tUcIi^tmjv Co. 10.29. b. ^^^
4. 15^ Aatiioricy oi Parliament. ^I_ ^^ j; p
- — Co. Litt. 250. a. S. P.
5. %^ m King's Charter. J?8. S P.
Co Litt 250. a S.P. Some are hy Grant of the Kir.!', who alfo is a Body Poiicick in
himfelf. Thel. Dig. 19. Lib. i. cap. 22. S. 2. refers to the Reports of Plowdcn, Fol. 242.
6. -B^ Prefcription. J-'^g-y-
Co. Litt. 250. a, S P Some Corporations are l.y Prefcription. Thel. Dig. 19, Lib. i.cap. 22
5. 3. fays it appears 34 H. 6. 27. and in divers other Books.
7. k Commonalty rmy be a Corporation -without M lyor or Bailiffs.
Thel. Dig. 20. Lib. i. cap. 22. S. 16. cites Pafch. 2 H. 6. Grants 3,
and fays See Mich. 39 H. 6. 13. where Priibt faid, that a Corporation
without a Head is not good.
8. The College ofGreyftcck wz& founded by Pope Urban., at the Requell S. C. cited 4
of Ralph Baron of Greyitock, Anceftor of the Lord Dacres, and was ^pP|\,y "'^ha'
always afterwards called or known and certified in the Book of Firli; ^j^jj haj no
Fruits and Tenths, by the Name of the College of Greyjlock, and it confiji- lawful Com-
ed rf a Majier and 6 Prte/is., always rejtdmg at Grcyffock, who came in by mencement;
Admi/Jwn and LilhtntioH of the Bijhop. and were not eligible, and the |°'' j'^'^j'°F=
-.^ ■ i' . , •. „ . -'. ,^ , / 1 -I- 1 ,- 1 1 ■ n J J could nor
Priells had yearly Stipends ot 5 Marks a \ ear, behde.s their Bed and ^^^^d or in
Chamber, and the Mailer 40 Marks a Year, but they had no fow?;/w; corporate a
Seal^ and rherefore it was adjudged, that was not a College well incor- College
porated, and therefore not given to King Ed. 6. by the Statute i Ed. ^'j|'j'^ ^^^^
6. of Diflblutions. D. 81. a pi. 64 Hill. 6 Ed. 6. The King v. j^ ^u^'he
Ld. Dacres, als. Greyftock College's Cafe. done by the
Kinghim-
felf, and by no otlier. Jenk205.pl. 35. S. C.
9. The Bp. of St. David's by Licence from the King to appropriate cer~
tain Advowfons., did., by the King's Jpnt, and alfo of the Dean and Chapter^
make a Collegiate Church.^ and confiituted Prebendaries thereof, and appropri-
ated a Corps to every Prebendary, all which was afterwards confirmed by
the King's Letters Patents. Refolv'd by all thejultices of both Benches,
except Harper, that this Ihall be taken as a College, and given to the
King by the Statute i Ed. 6. D. 267. a. b. pi. 12. Mich. 9 & 10 Eliz.
10. There are 4 'Things of Subltance to be obfervd in every Corporation
founded adPiosUfas. ill. It mull be known by a Name, as Prefidcnc
and Scholars, or Mailer and Scholars, or Reftor and Confreres &c,
sdly, There mull be a P/^f^ certain where the Perfons Ihall be reli-
dent, which mull have a know nN ante .^ As College.^ Nunnery, Hofpital&c.
3dly, It mull have the Name of a Saiut^ to whom it is dedicated or
founder^ as Collegium Petri, or Pauli, or GonvelJ-Hall, or Chrill-
Church &c. 4thly, It mufl have a Place known in which the Hotife
fljallfiand known by fome Name before the Foundation, as in Osfcrd,
U u u io
in-
2^8
Corporations,
in Cambridge, in London &c. Per Manvvood Ch. B. Ma 231. Hil].
29 Eliz. in Fanlhaw's Cafe.
12. In the Name of a Corporation 4 'Tbinis only are to be refpBed.
ifl:, the Names of the living f'erfous, who are the Corporation, 'as A^a-
Jier and Chaplains &c. sdly, T'he Hoiife in which they are rcjident^ and
make their Abode, jdly, The T^he Name of the Founder. 4chly, The
Place whereupon theHotife of their Abode is built and erefted. And il thele
4 Matters are fufficiently fet down, though not formally, it is good
enough ; by the Lord Ch. B. in his Argument in the Court of Exche-
quer. Le. 160. pi. 228. Mich. 30 & 31 Eliz. in Cafe ot Marrioc v.
Pafchall. _ ■
12 It was faid to be adjudg'd that the Inhabitants of a Town cannot
l>e incorporated without Confentcfthe Major Part ot" them, and that with-
out their Confent the Incorporation is void. 2 Brownl. loo. Trin. 9 Jac.
Anon.
13. It may be with a Head or without a Head, ^nd the Head and
Members may be appointed after the Foundation ; and the Foundation may
be before any material Fabrick isercCfed. Jenk. 270. pi. 88. Cafe of Sut-
ton's Hofpital, Mich. 10 Jac.
14. Franchifes &c. are fiot effential to a Corporation but a Privilege
pertaining to it ^ the Efl'ence of a Corporation is to make By-Laws,
and govern their Members &c. the which they may do, though their
Franchifes are feifed ; As the Dean and Ciiapter ol Norwich was a
Chapter to the Bilhop, and therefore remains a Corporation alter their
Lands furrendred ; otherwife of a Corporation for a particular Purpofe,
as an Hofpical, which by Surrender of their Land had been delboyed
before they were rellrained by 13 Eliz. Per Holt CA. J. and for this he cited
Fitzherbert Corporation, cited in the Bilhop of Norwich's Cafe.
Skin. 311. Hill. 3. W. & M. in B. R. in Cafe of the King v. the City of
London.
(A. a) Corporation. What it is.
1.
A Corporation is a Body Politick, confilliing of material Bodies,
which, join'd together, muft have a Name to do Things that
concern their Corporations, or otherwife it is no Corporation. And.
206. pi. 238. Hill. 29 Eliz,. per Ch. B. in Cafe of Marriot v. Maf-
call.
A Corpora-
tion :/ an
.irtificial
Body, com-
pofed of di-
vers conlH-
tuent Mem- . ,,-- _,._,„,.., .^.,_, ,
bers Ad inftar Corporis Humani, and the Ligaments ot this Body Politick or artihc.a! Body, are the
Franchifesand Liberties thereof, which bind and unite all its Members together to'jether ; and the
whole Effence and Frame of the Corporation^ confift therein ; Per Pemberton Serjeant. ArK. Carth.
21
-. Hill. ^ W. & M. in Sir James Smith's Cafe.
2. All the natural Perfons of the Corporation are not the Corporation
but are Perfons of which the Corporation conlills, but not wholly ;
lor the Name is a Part alio without which the Corporation cannot be,
Arg. per Julticiarios. And. aio. Hill. 29 Eliz. in Gale of Marriot v, Maf-
call.
3. The Mayor and Aldermen of London s.xe not a Corporation, but «
Court; Relblv'd. Carth. 172. Hill. 2 & 3 VV. &: M. in B. R. Rich
V. Pilkingcon.
4. A Corporation is properly an invefting the People of the Place
wich the Local Government thereofj and thereibre their Law ihall bind a
Sirangcr,
I
Corponitions. 259
Stranger, and can only be created by the Crown i but a Corporation may
make a ''Fraternity ; Per Cur. i Salk. 193. pi. 5. Hill. 2 Ann, B. R. in
Gale of Cuddon v. Eallwick.
5. The Ancients and Principals of FurnivaPs Inn brought an A6tion
upon a Bond given to difcharge the Duties ot the Houfe, but being try'd
betore Holt Ch. J. the Plaintiffs were nonfuited, becaule not being a
Body Politick, they were not capable to fue. Cited Arg. Gibb. 296.
Trin. 5 Geo. 2. C. B.
■:N
Ales
(B) frijo may make a Corporation.
ONE but the King can \\m\t il COtpDtatiOlU (ZQ. 10. 33. *.Br. De-
b. 49e3.4-*49aff.8. ^^;^-
per Perfey, Caundifh, Belknap, and Knivet Tenk. ;o5. pi. ; 5. S. P. cites D z6'j. and 10 Kep. i.
Sutton Hofpital's Cafe.- Jenk. 270 pi. S8. S. C. —4 Rep- lo?- b. cites Grey llock College's Cafe
S. P. Jenk 205. pi. 55. S. C.
2. '2CIjC King may give Power to a common Perfon to name the Jenk; ^70.
Perfons, and the Name ot the Corporation, anU iUljeU ijC \)iXt\) OOlie la, t'' ^^- ^- '^•
tljis Corporation x^s not faiD to be inaoc up tije coauuoa perfon,
but bp tl)c aing. Co, lo. 33 b.
3. Jf tljC Mayor and Commonalty ot London prefcnbe to make* Br Cor-
another Corporation in the City, nntJ tljClt CUftOUJ?) illX COnfimieD,?"""""''
pet it 10 not soon loitljout tljc l\mg'& Cljarter. * 49 €. 3- 4- 1 49 s. c.!-lll"
ClflVS. Ibid Pre-
fc iption, pi.
1 2, cites S C >?(:;>? F.if/;?/; R. F. of London Vi^% feifed of certain Lancl in LonJon DevifiUe, and
devifed to his Feme for Life, to f.iidaChaplnn,i\\Q.Remiundcrtot-.voot'thehefloftheArt of IF! iti.iwers of
London, to fr.d a Chafhxin for ever, and, died, /inH the Feme found a ChapLtin for Lije and died, tl:e two
Wardens of Hl.ittaaers enter'd, nr.d did net frd for the Chaplains, by whicli it w;is found by Offije, and
that tlie Devfor died 'Uithout Heir, whereupon Scire Facias iffu'd agaiiift them, to fay why the
King ftou'd not have the Land hy Efchcat for the Non Capacity of the Reverfioii, and they came
and allegd Prefcription, that by the Ufage of London People of every Jrt may make Commonalty, Guild, and
Fraternity, and deiife to tl.em, and tfiat the Kings have confirm'd their Ufage. And by A ward w^ne
can make Commonalty nor Corporation but the King hinfelf, quod nota ; and yet it is ufual that
Corporations may prcfcvibe that they have been a Body Politick Time out of Mind, and have been
capable, and pleadable, and impleadable Time out of Mind, but one Corpora'ion cannot make ano-
ther Corporation. And per Caund. fuch Corporations whic'i Lo:idon nukes are not perpetual, but
commerce bv the Affent of the People of an Art at their Wills, fo that it' any of the Art will leave
it, they may at their Pleafure, quod non neg.itur ; And per Belk they cannot make Statute of In-
iieritancc, nor make Land departable, nor to be devifcable, nor the Kinfj by his Charter cannot
doit, quod Caund. conccffit, and that the King may give to the Queen, and fhe m.iy have Attioa
alone, br Prefcription, pi. i 2. cites 49 E. ;. 5.
■j- Br. Devife pi. 21. cites S. C. that a Man cannot prefcrihe to make Guilds or Fraterni'y vjithout
Charter from the King ; For Commonalty cannot make Commonalty. Br. Corporations, pi- 45.
cites S.C. that Commonalty or Corporation cannot make another Corporation or Commonalty, by Ufage
nor Prefcription, nor otherwife unlefs by Charter of the King, which wills ic by exprefs Words;
Per Judicium Curia. Mo. 584 Arg. cites S.C. Sid 291, pi. 7. Trin. iSCar 2. B R.
in the Cafe of The King v. Beardwell is a Nota, that in that Cafe it was faid that there cannot be
a Corporation out of a Corporation where the hrft was by Grant ; And it was doubted whether there
can be a Corporation out cf a Corporation where the firft was by Prefcription. For in London fc-
veralofthe Companies are Corporations by Prefcripiion, out of the Grand Corporaiion by Prefcrip-
tion viz. both by l^rcfcription.
4. ' Note, that a Corporation or Commonalty can't make another
Corporation nor Commonalty unlefs by Grant cf the King by exprefs
Words ; and not by Prefcription or Cuftom ; And per Cand. the King
may by his Charter divide a C'rpontivn, and make the Prior ot W^A-
minlter
•^6o
Corporations.
The King
only can
grant or
5;ive Li-
cence to
found a
Spiritual
Corporation.
5 Rep. 26. a.
Hill. 35
Eliz. in
Cawdry's
Cafe, cites 9
cites 10 Rep
minfter to fue the Abbot tor his Poffeffions. Br. Grants pi. 81. cites
49 Air 8.
5. The King cannot give Licence to another to make a Corporation; ibr
a Corporation ought to be made by the Words of the King himfeli;
Thel Dig. 20. Lib. i. cap. 22. S. 26. cites Hill. 2 H. 7. 13. p^r Ke-
ble^ contra per Rede J. Mich. 20 H. 7. 7. & 38 E. 3. 14. And it
was faid by Brian and Choi<e, that the King may give Licence to one to
make a Chantery for a Priell in a certain Place, and to give Land to
him and Sticcejfors See. And that this Ihall be a good Corporation with-
out more Words. T.hel. Dig. 20. Lib. r. cap. 22. S. 26. cites Trin. 22
E. 4. Grant 30. and that fo agrees 3 H. 7. Grant 36 & 38 E. 3. 14.
w. ^. .« L.-- r- -J ^"'y ^^^ K^'"& can make a Corporation, Jenk. 27:). pi. SS.
. J. Sutton Horpital's Cafe. Ibid. 205. in pi. 35. cites S.C. & S. P.
H. 6. 16 [b. pi. 8]-
* Sec Tir.
Islortmain
(A. 2)
6. A Man at Common Law Law could not ere£l a Spiritual Body Po-
litick, to continue in Succeffion, and capable of Endowment, witboat
the King's Licence^ but by the Statute of Marcmaines they might have
endow'd this Spiritual Body once incorporated Perpetuis Futuris Tem-
poribus without any Licence from the King, or any other. 3 Inll 202.
'^^P- 97-
Eat now any Man may ereO: and build an Houfe for an Hofpital,
School, VVoricing-Houfe, or Houfe of Correction, and the li.ke, with-
out any Licence, but that is but a Preparation, and may be done as
Owner of the Soil ; but by the Common Law he could not incorpo-
rate any of them without Licence, but now he may * endow them
with Lands in certain Cafes, by the Statutes oi the 39 Eliz. cap.
5. and 3 Car. cap. i. 3. Inft. 202. cap. 97.
(C) Of ijohat Perfons a Corporation may be made.
OiI3€ Corporation ntnp be niatlC out of another Corporation.
Co. 10. 15ntICU)0l, [cited in the Caie oi Sutton's Hofpital]
31. u*
S. p. and I.
both fliall
ftand. Jenk.
27Q.pl. 88.
Several
Corporations may be created one out of another ; As the Dean and Chapter of Lincoln ate a joint Cor-
poration, vii. the Dean is a Corporation by himfelf, and every one ot the Prebendaries is a Corpora-
tion by himfelf. \o Kep. 31. b. ad finem, cites 9 E. 3. iS. b.
(D) Of what Place.
Jenk. 270. I. 'T-i|)(f!;]h^(£ ought to be a Place Of COrpCmtiOm CO. 10. 29.
pl.SS it I |j^i23.
mult have a
Place certain j but a .iftitious Place will ferve. ■ Mo. 231. per Manwood Ch. B. the S. P. ■
Le. 160. pi. 2iS. S. P. by the Ch. B.
2. %\)zxz ouffljt to te a pace fuppofed in England, an5 if tljerc be
not anpftic^ place \\\ Cnglano, pet it i^ gooo, 30 of Jecufatcm m
cneiaun. co. lo. 32. ix
3. A
Corporations. 261
^. A Corporation frt;;«o? he limited ton Comit)\ as Probos Homines of P"p'i- 57-
fuch a County, or Trinity College in fuch a County, but it ought to be g^ "t.'^y^^
reftrained toYome certain Place ; Arg. 2 Brownl. 244. cites ic as the r J^' ;„ '
Opinion of the Lord Popliam in Button's Cafe. Cafe of
^ T&wttm ti.
Mtigflfman, PopbamfiM, tliat fo ei-eft an Hofpital by the Name of an Hofpital in the County_ of
S. or in the Bifhoprick of B. &c, is not pond, becaure lie is bound to a Place too lai-gc and uncertain ;
but a College erefted in .-iademia Cantabnj' or Oxon is good, (and fome are io founded) becaufc it
tends to a particular Place, as a City, Town Sec.
(E) Of what Name.
I. nrDeE<£ ought to be a Name bp UlIjIClj it CUSljt tO U UKOP >'^; ?7o-
1 poi-atEO. €0. 10. 29. b. p;;fhVto
2. m)t Bm\t of tljC Corporation is as the Name ot Baptifm. CO, have a Name
10. 28. b* 123. 21 <£, 4. j6. U» certain;
but a fHi.
iious N<i»« will lerve. — Le. iCf;. pi. 22S. Mich. ;o8c 51 Eliz. in Cam. Scacc. per Egcrton So-
licitor General, Arg, fays it is a clear and plain Rule in our Law, that the Name of a Corporation
is as a Name of Baptifm to a natural Man, and if there be any Difference, I conceive, that the Law
requires wove flriH Cei-tainty in the Name of a Corporation, than in the Name of any particnlar Perfon ; for
a Name is more neceiVary to a Corporation than to another ; for when an Infant is born, he is prefently
a pertedt Creature before any Name given him, and the giving the; Name is not a Matter of Neceffi-
ty, but of Policy, for Diftindtion &c. but in the Cafe of a Corporation, the Name is the Subjlame and
Ejfence of it, and i; is not a Body before a Name be impo'ed upon it, and therefore in t!ie C barters of
Corporations there is always fuch a Claufe, Per tale Nomen implacitare & implacitari, accjuircre &c.
pofTint, and without their Name they are but a Trunk ; but contrary in the Cafe of particular Per-
ibns. but otherwile in the Cafe of a Corporation, and we cannot give any thing to a Corporation by
Circumftances inducing or implying their true Name; As Land given to the firft Holpital which the
Queen fhall found, although that it fufficiently appear, that fuch a one was the Hofpital which the
Queen firll founded, yet the Gift is void. Popham compares the Name of a Place of a Corporation
to the Surname of a Pcrlbn, which regularly ought to be exprefTed in Leafes, but if it be not put
with all E.-taftnefs, ytt it avoid.s not the Leafe ; but however that be, it is certain the Mitfake of the
very Name of the Place, which does not mifname the Situation, is not material, for then it keeps within
the general Rule formerly given. Gilb. Hiil. of C. fi. 184 Poph. 57. in Cafe of Button v.
Wnghtman, S. P.
3. Clje l^UtO; map inCOrpatittE a ^Olrnt by one Name, and after
by another mm\u c*) ano tijcu x\)Z)> (ijail lUc tljEit JSaiuc accorD= j^r^-
ing to tlje fceoiiD Corporation, ano ^tt tijcp iljajl commue the Poi- ^-^ ^'^-'
leliions they had betore by the other Name. 21 C^ 4^ 59-
4. A Corporation may be by one Naine^ and enabled to parchafe^ and A Corpora-
fiie by another Name; Per Cur. Jo. 262. cites ii E. i. where a Corpo- t'on by Tre-
ration was by the Name of Mafter, Wardens, Brothers and Sifters of ^^.^p J-..
Rouncevil, and the Patent faid, that they Ihould fue by Name of the j if u p,e~
Mailer and Wardens of Rouncevil. fcrtption,
may have
fcveral Names'^ but if by Charter it is otherii-ife, for in fuch Cafe it cannot have feveral Names at the
lame Time, aiid to the fame Purpofe ; for it a new Charter is granted, atid by a new Name, the old
one is gone; As in the Cafe of Baptifm by one Name, arid Confirmation by anotlier, but fuch Cor-
poration r?'.ay haze feveral Names tofeieral Purpofes, for it may be created Per Ncmen D to take and to
grant, andper Nomen F. to fue and to be fiied. 5 Salk. 102. pi 2. Mich. 10 W. ;. C B Anon.
Non lequitur that what will amount to '.iDefcripiioPerfonte to enable to take, willbe fufficieiit for a?erfon
to lue in ; Per Eyre and Powis J. 10 Mod. 20S. in Cafe of Cambridge Univerfity v. Vavafor, Crofts,
and A. Bp. of York.
X X X 5- Body
262 Corporations.
5, Body Politick cannot be contained tn thts Word(Ferfo}is) per Opini-
oneni, in che Reports oi Plowden, fol. 177. Tliel. Dig. 21. Lib. i.
cap. 22. S. 29.
10 Rep. 1. 5. A Corporation may he »am'd by a Siibjeif. Jenk. 270. pi. 88.
&c. S. C. ^jj.gg j.|^g Q^^^ of Sutton's Hofpital. Mich. 10 Jac.
Ld. Raym. 7. Where, my Lord Coke fays, a Corporation mult have a Name,
frsp A- it mull: be underltood either as e^x/jrt^^cy in the Patent, or ijuplied in the
■ ■ *^' Nature of the Thing i As if the King incorporate the Inhabitants of
Dale, and give them Power to chufe a jMayor, tho' there is no >same
of Incorporation in the Patent, yet it would be a good Incorporation,
and the Name would be Mayor, &c. Commonalty; Per Holt Ch. J.
3 Salk. 102. Trin. 13 W. 3. B. R. in Cafe of College of Phyficians
V. Salmon.
8. Inhabitants of S. can neither take by Purchafe or Devife. MS.
Tab. December i, 1722. Foley v. Attorney General.
Le. iiJj. in p. The Names of Corporations are grjen of Nece(ftty^ tor the Name is
5!' **s' P ^^ ^^ '"^''^ Being of the Conllitution, and tho' it is the Will of the King
""^ Meiv ^^'^^ ercQis them, yet the Name is the Knot of their Combination,
Abr, 501. without which they could not perform their Corporate Atls, and it is
S. P. in toti- no Body to plead and be impleaded, to take and give, till it hath got
dem Verbis. ^ jsq'anie, but natural Perfons can take before they come into Being,
and when they are in Being, before they have got a Name. As a Re-
mainder may be limited to the eldeft Son of J. S. but if a Remainder
be limited to fuch a Corporation as the King fhall next ereft, this is
not good, tho' a Corporation be erected before the particular Ellate be
determined, lor this Body of Men are only capable of taking by the
Name in the Patent. G. Hift. C. B. 181, 182, cap. 17.
And here 10. Thefe Names of Corporations are ufually ?^/^e» from 5 Things,
they Note, jf^ From the Per funs, of which they conM.
that il- their . . y jj ^
Mames be exprefled by Words Sytionimous, it is fuflScient; As if a College be inftituted by the Name
of Gtiardiamts^ & Scholares Domus five Collegii Scholariiim de Jhrion and they wake a Leafe iy the Name
ofCtifios & Scbolarei ic is good , So if the Grant be made by PrApofitus & SocH where it lh.ould be iichola-
res, it is good.
.?i;if J.S. JhbotofB. makes a L.eafe hy the Name of Clericus de B. it is well enough.
If there be a Corporation founded by the Name of AJaycr & Burgenfes Burgi Dom Regis, an Obli-
f^ation is made to them by the Name of A^ayor fip Burgetifes de Lhm Regis &c without laying Buro-i
Dom' Regis, and this was allowed a good Obli>;atioii ; for the P^nlies are fuficiently expreffed, and all
Burroughs are founded by the King Guardianus for Guardian is well enoij>^h, but tliey are an aggre-
gate Body. Gilb.Hift. ofC. B. 1S2, 185.^ New Abr. 501. S. P. in toudem Verbis.
IfatiHoufe II. 2dly, Their Name is taken fmfi the End and Defign of their
be founded Beinz.
by the Name
of Mivifier Pauperis Domus Dei, this is well enough, for the main De/ign is fpecified by both Names
But if an Houfe be founded by the Name of Guardiani & Scholariiim Domus five Collegii Schclariiim de
Merton, and a Leafe be made by them by the Name of Guardianus & Scholares Domus five Collegii de
Jlerton, this is no good Lealc, for it is a material Variance of the Name, fince they have not exfrejj'ed
the Deftgn of the Houfe, which is a fubftantial Part of the Name. But if a College be inftituted by the
Nameof y?;</d Scholarium Regina, to be governed by a Provoft, and they are conf.tmed by the King by the
Name of Fr<epofiius Qp Scholares JuU Reginx, and they make a Grant of that Advowlbn by that -Name,
this is good, tor that College would never have a Name according to the Words of the firil Charter,
for then it would be a Sole Corporation, which is contrary to the general Convenience of fuch a Bo-
dy, for the Name would be Prajpofitus Scholarium Aulas Regin*, which cannot be intended, and the
Word Scholares is not required as in the former Calc, and the placing where it is, confirms the Elta-
blifliment, and Confirmation of tlie King, and common Appellation are good Interpreters of the
original intent of the Name. Gilb.Hift. of C. B. 1S3, 184. — New Abr. 502, 505. S, P. in toii-
Verbis.
E 4. incor- 12. sdly, The Names of Corporations are taken from the Navies of
porated the jj^g Patrons that procured the lunldiition, or that have endowed them.
IJeans and j t
Canons of Windfor by the Name of the Kings Free Chafel of St. George tl e Martyr, and in the time of
W. & M. they made a Leafe by the Name oj the Dean and Canons of tie King's and ^teer.'s Fne Cha-
Corporations. 263
tie &c. this is a material Miftake of the Name, for it takes its Name from the Founder, that is here
miftaken, and the Name of a ditferent one rnbllituted in its room. Gilb. Hift. of G. B. 1S4.
New Abr. 501. 50J. S. P. in totidcm Verbis.
12. 4thlv, Their Names are taken />ow the Places, where ^^^j' For the Cor.
rj^ poration has
'■$««'?• a fixed Place
where it is fettled, and from whence it cannot be removed, but to natural Perlbns the Name of the
Place is but an Addition, for they may remove and change Place, and fo their Names would have
perpetual Alterations. Gilb. Hift. of C. B. 1S4. New Abr. 1S4. S. P. in totidem Verbis.
14. jthly, The * Name of the Saint ; and if this be omitted or mifta- If the Prior
ken, this doch not avoid their Grants or Leafes ; lor the Name of De- °l.f\^\^fy,
dication is but an empty Sound, and exprelFes no real Ufe or Defign, vcntry makes
and therefore is immaterial, and may be omitted. a Leaieby
the Name of
Our Dean of Coventry, this is good ; fo if they granted an Annuity or Corody, and the Name of tho
Saint had been omitted. Gilb. Hilt, of C. B, 186. ♦ Sec New Abr. 501.
(F) By what ff^ords.
1. np3|)(£@)2i; llBai'tl^, rncorporo, Fundo, Eri^o fC* titt JtOt Of JenJc 27°-
L BecctritP to t]c ufeti i\\ uiaHing; a Cocpocatioitj but Words p'- ^^ j.. p.
equivalent aCE lU(flCiCllt» C0» 10. 30. r^P ^^'^
in the Cafe
of Sutton's Hofpital, and fays, that with this accords 44 Aff. 9. in the Prior of Plimpton's Cafe, and
4 E. 4. 7 in the Abbot of Glaftonbury's Cafe and that in none of thofe Books or Records was
any mention made of thofe Words, Fundo, Erigo &c. or any the like V^''ords ; For, as has beeti
faid, they are Words declaratory only, and the Effedt of them may be made by the Owner of the
Land without any Grant.
2. c>f ancient 'Cime tljc Jnljabitautgi of a %m\\ inetc nicocpa^ 1° Rep. 50.
rnten toljen tijc i^ing gcanten to tljcmto Ijauc GuUdam Mercatonam. ^^^|r '^^
EC0;»2I9- C0»lO. 30. Sutton-s
Hofpital,
cites the Regifter 219. band fays that thereupon the Place of all their Convocations and Aifem-
blies were called the Guildhall, and Ibid. 50. b. cites other Books, that the VS'ords Gilda Mercatoria
made an Incorporation.
3. CljCMtn; galie Licence to Eaitlfep to grant a Rent cuidam *Br. Patents,
Capellano; tljlS maOE a COCpOtatlOn* 2 I), 7- B* ^S5' * 2|>. 7- P'-(,44_cites
T3. CEO, 10. 28. [27. U.J Fiizh.
Grant, pi.
36. cites S C.
4. 3if tIjC Ixtno; grants Lands to the Men or Inhabitants of D. * Br.Cor-
Hsredibus & fuccelForibus fuis, rendering a Rent fot anp 'SPDintJ PJ""^"°"^
toucljing tljcfe taiiD^, tlji^ 10 a Cotporation, 6ut not to ottiet jl^ut= s. a *"""
pOfCgi, * 21 (£0, 4, S(>- 7 C* 4. 30. t 2 |)» 7. 13. t Br. Pa-
tents, pi.
44. cites S.C. Fitzh. Grant, pi. 56. cites S.C. Br. Corporations, pi. 54. cites 7 E. 4. 14.
S. P. S. P. and it feems, that they are onlv Tenants at Will ; And if the Queen will releafe or
give to them the faid Rent and Fee- Farm, it feems that the Corporation is difTolved ipfo faito; For
the Rent and Fee-Farm was the Caufe of enabling the Corporation iScc. Ideo Quste. D. 100. a. pi.
70. Trin. i Mar. Anon.
5. But
264-
Corporations.
Br.corpora- 5. Buc if tljc i:\ius ijmiit^ laiiiJ Hominibas, or liiljabitaimbttg hz
tions pl.65.£>^ If tijCp be not incurporatcd betore, tljC iDtmt 13 iJOiO, If no
cicesS. L. jj^^^j. ijj, referved tO tijC IMIMS, 21 (£» 4. s^-
Br. Corpora. 6. But tf tIjC ILUIlli; 0;rant0 Hominibus de SiflingtOn to be difcharged
tions pi 65. of Toll, tljts 1.3 a soon Corporation to tfjis :jntcnt, but not ta
cuess.c. pu^cjji^fc. 21 e, 4. 59- cK. t1ji0i0 QJattcr of Dircljarijs.)
But if he 7. Jf ttjC JE^tllQ; giliC0 Lands to che Inhabitants ot lllin^ton, and their
gives the Succelibrs, Jf tljC}) UlCrC not incorporated before, tl)l3 13 a DOID iSratlt,
FeTParm fOt tljC M^ l^ BCCeilJCD. 7 €♦ 4- 30-
either Pro-
bis Hominibus de J. or Burfjenfibus Civibus, 8c Communitati ; this makes a good Corporation. Br,
Corporations, pi. 54. cites 7 E. 4. 14 The). Dig. 20. Lib. i. cap 22. S. i--. cites S. C. and 21 £.
4. 56. that they are incorporated to have any Adtion for any Matter touching this Land, tjut not
otherwife.
8. Afcuefaid, that the College ofRippon in his Country was founded
hy the Name of Canonici only. Thel. Dig. 20 Lib. i. cap. 22. S. 16.
cites Trin. iS H. 6. 16.
9. Corporation is good •without Ihniting any Number certain of PerfoHs
to be of the Corporation. Thel. Dig. 20 Lib, i. cap. 22. S. 25. cites
Hill. 34 H. 6. 27.
10. The King incorporated thofe of Norwich by Name de Civibas y
Communitate^ and alter in the Charter^ Coiice[/im!is Civibus prsediSlis qaod
mn ponantur in Juratis &c. omitting this Word Commit /i it at e^ and per
Brian Ch. J. and Neal and Choke Juftices, the Grarit is good to the
Citizens only, becaule it makes a new Corporation. Br. Corporations, pi.
65. cites 21 E. 4. ss, 56.
11. And \i the. King grants to the Inhabitants of the Fill of Dak,
that they may chafe a Mayor, and after this, that they pall implead ^
and fljall be impleaded by the Name of M.iyor and Commonalty of Dale,
now this Word Inhabitants is gone, and yet it was good in Principio
to take the Grant. Br. Corporations^ pi. 65. cites 21 £.4. 55,
56.
12. And^ote, that in all the Ancient Cities and Boroughs of Eng-
land, as in London and elfewhere, the Grant is made to the Citize'is of
London or Biirgeffes of Dale, and the like, which were never incorporated
before, and yet good ; but it Teems that thofe are Favours for their long
Continuances, and there are many Grants to them by Names as above,
and that they may make a Manor, and to have Conufance of Pleas,
and many other Articles, is well, for they enjoy them. Br. Corpo-
rations, pi. 65. cites 21 E. 4. 55, 56.
13. If the King lliould grant Lands probis hominibus VilU de I/ling-'
ton without faying habendum to them and their Heirs, or Succejfrrs, rtn^
dring Rent, this is a good Corporation perpetual as that Intent only,
but then it feems that they are but Tenants at Will, and if the King
releafes, or gives to them the faid Rent, the Corporation it feems, is
diffolved iplb fafto; For the Rent was the Caule of the enabling the
Corporation, &c. Dyer 100. a. pi. 70. Trin. i Mar. fays it was lb
held for Law in the Star-Chamber. The Book fays, Ideo Qagere.
14. King Edward 6. granted to the Mayor, Citizens, and Commo-
nalty of London, his Manfion-Houfe, caWd Bridewell, and that it
fhoald be founded and ereifed into an Hofpiial for the Poor, and that when
founded and ereHed, it fhould be caWd the Hofpital of King Edward 6. of
Chriji Bridewell, and St. Thomas the Apojfle, and that they [loould be incor-
porated by the Name of the Governors of the Pojfejftons, the Revenues and
Goods of the Hofpital of King Edward 6. &.c. Adjudged, that this Hof-
pital in Intention only was fufficicnt to fupport the Name oia Corpora-
tion, and that the Words, (viz.) that the Governors tiom henceforth
lliould be incorporated by the Name &:c. incorporated them immedi-
ately,
Corporations. 265
acely, and chac they Ihould not wait till a Hofpital be a9:ually built.
10 Rep. 31. a.b. cites IVlich. 34 & 35 Ehz. Kot. 172. B. R. Bride-
well Hofpital's Cafe.
15. King. J. by his Letter-Patents granted chat the Borough of Yar-
mouth Ihould be incorporated, and the Grant is made Biirgenfihus^
without Haniuig of their Succeffors^ and alfo he granted Burgenlibus
tetiere placita coram Ballivis, and in pleading it was not averred that there
•were Bailiffs there^ and it was objected that the Borough cannot be in-
corporated, but by Men which inh ibit in it j but it was refolv'd, that the
Grant, is good, and the Lord Coke faid, that he had feen many old
Grants to the Citizens of fiich a lown^ and good, and fo that the Grant
Burgenlibus, that the Borough Ihould be incorporated, being an old
Grant^ Ihould have favour abk Conjirutiwn ; but the Doubt was, tor chat,
that it was not averred that there were Bailiffs of Yarmouth, and if a
Grant to hold Pleas, and doth not fay before whom, the Grant is
void, according to 44 E. 3. 2 H. 7. 21. Ed. 4. And tor that it was
adjudg'd ; but the Opinion of all the Court was, that the Grant made
Burgenlibus was good without naming of their Succeflbrs, as in the
Cafe of Grant Civibus, without more. 2 Brownl. 292. Hill. 7 jac.
1609 G, B. Yarmouth Borough's Cafe.
i6. A Charter by the King to Aliens may make them a Corporation
as to the King, but not a Corporation as to the Subjects See Roll
Rep. 148. Hill. 12 Jac. B. R in the Cafe of the King v. Hanger.
17. The Lockfuiiths of Durham made Orders lor taking away Locks
ill made, fuppoling themfelves to be a Corporation, becaule the Bi/hop
of Durham having Jura Regalia had confirm'' d their Orders ^ But Roll
Ch. J. thought it would be hard to maintain that this made them a
Corporation. Sty. 298. Mich. 1651, Goodyer v. Shaw.
(G) //7.V7^ Thing fhall be itic'tdeiit to a Corporation
fwlthout Jpecinl Grant or Prejcrlpthn.
I. TTCTIpCSB a Corporation is tlUl^ CrcatCtI, all other incidents
V V are tacitly annexed. C0« 10. 30. !)» \^, n ^Ja, 15^ R» St.
Savior's Cafe rCfOlllCti*
2. As if tl)£ i\UllJ UiakC0 a general Corporation by a certain Name 10 Rep. 50.
without any Words of Licence to purchafe Lands, or implead, or be °; ^- '': P^*^
impleaded, pet t!jC COrpomtiOU IllilP pUrCijafC, plCilO, OC l3e ilU= iz'^E^Ti:
pleaoetJ luell enouiilj; for tljat li}? tljc maluno; oftijc Cocporattoti all Grams 30. '
tljofe nccclTarp JnciDcut0 are iiicUincn. I3« 1 1 3]ac» ^caccario, ^hce it is
St. Savior's Cafe, VCfOllieO pCt CliriaUl. CO, lo. 30. }j, J^Otiart'j* £vC=Sn Ch T
POrtSi 2S5. andCh.ke
accordingly,
and where in that Cafe it was faid ift By the fame to have Authority, Ability,, and Capacity to pur-
cliafe, bur adds not any Cbure to enable them to alien &c. yet that is incident, and need not be added.
2dly, To fue and robe fued, implead and he implcidcd. 5dly, To have a Seal &c This is alfo De-
claratory, and not Iseceflary ; for when they are incorporated they make or ul'e what Seal they pleafe.
4thly, It retrains them from aliening or demifinf;, unlefs in a certain Form ; This is an Ordinance,
telHfyirg the Defire of the King, but is only a Precept, and does not bind in Law. ^thly, That the
Survivors fhall be the Corporation ; Tliis is a good Claufe to remove Doubts and <^ellions which may
arite, the Number being certain. 10 Rep. 50. b. in the Cafe of Sutton's Hofpital
Hob. 21 T. pi. 268. in Cafe of Norris v. Staps, Hobart Ch. J. fays, that though Power to make By-
Laws is given by fpecial Claufe in all Corporations, yet it is Needlefs ; For I hold it to be included
by Law, in the very Aft of Incorporating, as is alfo the Power to fue, purchafe, and the like ; Foi"
as Reafon is given to the natural Body for the governlig ot it, Co the Body Corpor.ue muft have Laws
Y y y a«
266 Corporations.
a<!a Pc.litick Rearon to {govern ir, but thofe Laws miUt ever be fubjedt to the general Law of the
Kealm, as fuborciinjte to ir ; And if the King in his Letters Patents of Incorpnvation do make Ordi-
nances himfelf, yet thevare alio fubjeft to the fame Rule of Law. 5 Mod. 459. 6. C. cued by Hole
Ch.J.
Lane 21. 3. But by fpccial W^ords tI)C EtniJ may make a IJniitCtl COrpOra*
fn'*Scacc"s'^'^^'^^''. ^^ ^ Corporation tor a Ipecial l^urpoie i As if tl)Z tViUg gtailtS
C and S P P''t-''t>is Hoiiiinibus de Iflington, & Succelibribus fuis, itndring a Renr,
but Tanfieid tljigi 1$ ii Corpovattou to rcnBcc tljc iUcnt to t?jc ilxnuj, ann not
ch B faid orijettuifc* p* n 3la« ^caccatio, st. savivrs Cajc, pec Curiam re-- '
that he held j>«v,f.ri
that this ICIJCO.
Leale fhould not make a Corporation where the King conceiv'd that there was no Corporation before,
but that the King fltould rather be faid to be deceived ; For he took a Difference where there is a re-
puted Corporation in beinp; and where there is not, and thereupon in the principal Cafe the Barons di-
rected the Jury to give a general Verdidh.
They may ^, 3]f tI)C lUUQ; creates a Corporation^ and does not give anv exprefs
make Or- p^^.g^ jn fyc ICttCtSi P.ltClltlSi to make Laws, PCt tijI0 POtoCt Ig UV
LTeeabie cioeiit to tl)Z Corpui-auutt, ano incUiocD m tljcir Jncorpcuation, but
to the Law. tljclc LaiuiS ougijt altoai^s to uc Uiujcct to ttje Laiug Of tljeEcaim,
jcnk. 270. n0 fubacuuiate tijcreto , for a idm^ poUticU cannot be ijoiicrncD
see^the — UJitljout Lau)0» jpaoatt'^ reports 285.
Notes at pi. 5. Supra.
S C. cited j;. Jf tIjC J^iUH; creates a Corporation of a Mayor, and 8 Aldermen,
Arg.SIiovv. .^yj|.j^ ^ Ckufe m the Patent, Quod fuper Mortem vel Remotionem ali-
4-'^-_S^C cujus Aldermanni liceat Majori, & ceteris Aldermannis infra o£lo
ciled 8 Mod. Dies Proximo polt Mortem vel Remotionem fC. to elect another 31=
ncrnian into W Pliic^ $c» ttjougb no demon be uiitljin 8 Dapss
after tlje Deatlj of C*) an ^ilBCrUian, ^tt they may elea an Alder-
man at any Time alters for tljcp IjalJE pOiUCt tO ekCt anOtljeC, aS Ut=
nti£ut to' tlje Ccrporaticn crcateU; for ^tncient OEorporationsiljatie
no fuel) Claufe, gi^ino; pooiet to elect, ann tljis Affirmative Power
does not take away the implicative Power mClOertt tO tIjC CotporatiOm
1^5. 8 Car. 15. E* in tiie Cafe bctiDccn Hicks ann tijc^oiDn of z^//-
ce/ion ut Conmai, refoliieD per Curiam, fctficet, Kicfjarofon anti
CroUc, no otijer of tljc 3!ungc0 bemu tljcre, auD ai©rit sranteti ac=
cominslp to elect anotfjer Slioerman.
6. [So] af a Corporation be created of a $?5apor antJ 8 ^im-
men, luitlj a Claufe m tlje patent, tfjat if anp of tije aiBcrnien nie,
or be remo^jen, ann it fljall be lauiftil far ttje «0apor ann tJje rcff of
tlje ainermen, uiitbin s Dap0 after tljc Oeatijor Kemoual, to elect
nnOtber tn bis PlaCC^ though it is not limited, that they, or the
greater Number of them, may eleft, yct tflC ffteatet j^Uniber inai»
elect, p. 8 Car. X. l\. bzmmx Hu±s ann tije oadcougl) of Lance-
jion^ ao mitten pet Curiam,
7. And m tbe fain Cafe, if the Mayor, attlie 'SCimC of tlje Death
of an Alderman, be ablent fcOUl lOUnOU till after the 8 Days, and the
Aldermen, within the 8 Days, come to the Deputy, and require hini
to make an Aflembly of them to eleft another within the 8 Days, and
he refufes, and thereupon the greater Part Of tlje ^inerUieU alfemble
themfelves without the xMayor or his Deputy, and elecl: au ^inerUiaU,
rljis i£i a lioin election, for tlje 50aimr ouQljt to be prcfrnt at it bp
tijc m^xm of tbe (iprant. p. 8 Car. 15. E. bctuiccn Hnks ann tljc
'Boroust) of i^''"//"", per Curiam,
A CorooM. ^- ^ ^^^ '^ Corporation is made, eo ipfo without any Words, they
tioii which are enabled to have a Common 6e/il ^ (ind to implead and be impleaded^ to
his a Fee- fjiake Leafes a/id Grants, to punhafe [or Ye-dXS,^Li\e^, or in Feej hue
(iiiij Ic in fQf
I
•M,
Corporations. 267
for Pimhafes in Fee they ought to have a Difpeiifation oi the Sracuce of Lanls, can-
Mortmain trom the K,iiig, and the Lords mediate, iTthe Land be holden J^'^.^J^^^^
from them. They have Power to make Ordinances according to the Law. making
Tenk. 270. pi. 88. LeafesforZl
Tears or morct
111- 5 Lites, or in Fee, unlefs by Aft of Parliamcnr ; for it is againft tlie Nature of an Eftate of Fee-fim-
ple to be relh-ained. Jcnk 170. pi. SS.
9. If there be a Popular EleBion of Mayor, and Mayor and Alder-
man in Corporation Towns, and this happens to breed a Confufton a-
mongll them, this may be altered by their Agreement, and by the
Common Confent of ail, to have their Eleftions made by a fewer Num-
ber, but not ocherwile i but if by their Charter they are to be elected
by them all, then this is not altered but by, and with, the general Alienc
of the whole Town, and fo by this Means to take away Confulion;
per tot Cur. 3 Bulll. 71. Trin. 3'jac. The Corporation of Coichelter
V. &:c.
10. Every Corporation, as fuch, have Power to take a Burgefs's Re~
JignatioHi Per Hale Ch. B.Sid. 14. pi. 4. Mich. 12 Car. 2. B. K. The
King V. Tidderley.
1 1. A new Charter doth not merge or extinguip any ancient Privileges, Vent. 5f 5.
but the Corporation may ufethem as before. Ravm. 439. Pafch. 33 Car. . ^" ■ "
2. B.R Haddock's Cafe. ' ^ ■
12. VV^hether a Pozver of Disfranchifement be a Power incident to
every Corporation ? Or wliether it muit be given by exprefs Words in
the Charter ? See Arg. 10 Mod. 175. Trin. 12 Ann. B. K. in Cafe ot the
Queen v. Corporation of Buckingham.
(G. a) What a Corporation may do, and what muft
be under the Corporation Seal.
I. T F the Mayor and Commonalty be diffeifed, and a.iitv every one of the
J[^ Commonalty rcleafe by their proper Names, this is not good, but
the Mayor and Commonalty ought to releafe by their Common Seal. f
Br. Corporations, pi. 27. cites 19 H. 6. 64.
2. In Feolfment to the Dean and Chapter they cannot take but by Let-
ter of Attorney under Seat ; Per Brook Jultice. Br. Corporations, pi. 34.
cites 14 H. 8. 2. 29.
3. jibbot and Covent cannot leafe but by Deed, but the Abbot alone may
ieafe without Deed, and if the PredecelTor receives the Rent^ the
Leafe is affirm'd good. Br. Leafes, pi. 32. cites 5 E. 4. 43. and
fays it is {o faid there. '
4. Ectid made by the Mayor and Commonalty to the Mayor is not good,
for he is tlie Head of the Corporation. Br. Corporations, pi, 63. cites
21 E. 4.. 7. 12. 27. 67.
5. So it is in ^uare Imj)edit, the Majler and Confreres cannot prefent
the Mjjler, Contra of one of the Contreres. Br. Corporation, pi. 63.
cites 14 H. 8. 2.
6. Warrant of Attorney oi s. Cor^ornxXon. iLall be by their Common In a ^«
Seal, and otherwile it is Voidi Per Choke fuftice. Br. Corporations,^*"'^"'"
pi. 63. cites 21 E. 4. 7. 12.27. 67. l^^-^Va'd
Citizens of
Cliefter, thet-e was a U'arr/int of Attorney under the Seal of the JSIayor to afpe.tr; Quxre, whether it
fhould not have been under the Corporation Seal. Skin. 1^4.' The King and the City of
Cheller. ' '
7 If
268 Corporations-
7. It'a Corporation have a Power to rejmve a Adan &c. at their Will
and Pleafure this muft be under the Comninn Seal ; but a Return to a
Mandamus Debito modo amotus may fuffice. Vent. 355. Trin. 33
Car. 2. B. R. in Haddock's Cafe.
8. A Mandamus being direfted to the Mayor and BurgefTes of Abing-
ton, to re/fore Mr. H<5lt to the Recorder's Place, they ret urn' d that the
King by his Letters Patent gave them Liberty to make a Recorder Duran-
te Bene-placitoi Itwasfaid by Mr. Wylde, that a Corporation can't de-
termine their Will but under their Corporation Seal. Freem. Rep.
428. pi. 5-75. Trin. 1676. Holt v. Medlicott.
5. Salk. 105. p_A Corporation can^t do anAti inPaisivithuut their Common Seal^ yet
pi. 4- S. C. jj^gy ^^^^y ^^^^^ j^ jipgjj Record -,80 the City of London every Year makes
vVrbi's.^'" an Attorney in B. R. without either Sealing or Signing, and they are
eftopp'd by their A£l to fay it is not their Aft. The Mayor's Hand is
not neceflary to a Return, for he is liable in an Aftion for a falle Re-
turn without it in his private Capacity j it is fufficient Evidence that
the Writ wasdeliver'd to him, and that there is a Return made, and
then the Mayor mult lliew the Contrary ; and the Mayor, or any
other Magiftr'ate, that procures the falfe Return, tho' without the
Common Seal, or the Mayor's Hand to it, is liable not only in their
Corporate, but their Private Capacity ; Per tot. Cur. i Salk. 192. pi. 4.
Hill. 1 Ann. B. R. in Thetford (Mayor's) Cafe.
( G. 3 ) A61:s done by them good or not, bsing not
done by the whole Body.
I. 33H. 8. ftf/). 27. \LL and every particular Acl^ Order ^ Rule, and
_/\ Statute, made by the Founders of any Hofpital,
College, Deanry^ or other Corporation, whereby the Grant, Leafe, Gijt,
or Kktlion of the Governor or Ruler of fuch Corporation, ivith the Afjent of
the major Part of thofc as fhall have a Voice, or Ajjent to the fame, /hall
be in any wife hindred or let by one or more, being the hffer Number of
fuch Corporation, contrary to the Common Law of this Realm, pall be void,
and of no Effeii.
2. And all Oaths taken by any Perfon of fuch Corporation for the Ob-
fervance of any fuch Order or Statute, pall be void ; and no Member of any
fuch Corporation fiall be compelled to take an Oath for the obfrvmg fuch
Statute on Pain that every Perfon giving fuch Oaths (Ijall forfeit 5 /. to be
divided between the King and the Profectitor to be recovered in any of the
King's Courts of Record.
Poph 211, 3. Corporation of Mayor, or Bailiffs, and Burgelles of Windfor,
ai2 S. C. may make Lcafe for Years. One Bailiff only a fents i ihe Lesile v>zsv old,
but not S. P. ^^^ fQ j[ vvould had two only ailented ; and it was agreed, that if the
greater Part of Burgelles alfent it is good, and it is not necelfary that
all he prefent at the Sealing, if their Alfents be had belore. D. 282. b.
Marg. pi. 26. cites Good's Cafe.
The Mayor 4- The Mayor and Commonalty of Southampton have an Afftgnment
and Com- from the King of a Sum of Money to be paid 1 'early to them and their Sue-
monalry are 'cffors out of the Cultoms of this Town and Port i the Mayor alone
Tb\ 'fi'd'' ^'^"^"^ ''" ■^'■'(l'"^^^"" "PO" receiving it ; this does not bind the Corpo-
lhc\uylv ration in llnclnefs ol Law, but becaufc 100 Precedents were (hewn which
as Mayo)-,' allovv'jl
1
Corporations.
allowM it, it w.rs allowed by all the judges of England. Jenk. candono-
.,' j^ <-> J thing resu-
162. pi 9- l,rly, for
he is the Head of the Corporation aj;f;re^ue, and is only a Part of it ; but Ufage and Precedents are
not to be ne^ledtcd in things indiflFereiit, or which are not Mala in fc. Jenk. 163. pi. 9.
5. The King did grant that the ParilLioners of WallingforJ ihould
be a Corporation to bargain and fell, and that the greater Number of
the Parilhoners there did make Leafes and Eltaces, and there was an
Ufdge^that at the -time of iiiecti>igfor the making ol any {nch Lcaft.s by
them, they did ufe to ring a Bell, by the which Notice was intended to be
given of the J[fc)nhl)\ and that after fach Bell rung 20 of the Parilho-
ners then prefent did make a Leafe, there being loa others in the Parilh
not prefent, and yet this was adjudged in the Court 32 Eliz. to be a
good Leale, and he faid, that if there be a Day and Place by Ufage cer-
"tain for their A'fedting, in iachCAe there needeth no VVarning. Lane
21. Pafch. 4 Jac. in the Exchequer cited by Tanfield Ch. P>. in Cale
of St. Saviour's Parilli.
6. Where an Afl: is to be done by a Corporation, all the Members
o/tght to be affembkd together to confent, but this cannot be feperately and
apart by them at feveral Times, lor then it is Faflum Singulorum,
Dav. 48. a. Pafch. 5 Jac. B. R. in th- Cafe of the De m and Chap-
ter of Femes.
7. In a Trial at Bar for the Parfonage of H. in the County of O.
the Church being in the Preientatioa of the Dean and Canons of W .
where there are 12 Canons behdcs the Dean, which in all make up 13
of the Corporation, ic was held, ill. That Prima Facie^ tn all Acls
done by a Corporation^ the Major Number miiji bind the Ltf/lr, or elfe
Differences could never be determined, sdly, That A6ls done by the
Corporation ought to be done by the Confent of the Major Namber, or
tlfe they are no: valid, and therelore where the Corporation conftjls of
13, there ought to he 7 to make a Chapter; but the Acl of the Major
Number of thofe 7 is binding to the Corporation. But if the ancient Ufage
hath beeti^ that Jlfis have been done from Time to Time by the major Num-
ber of thofe that arc prefent., althd they arc but 3 or 4, it Ihall be then
intended that that was Part of their Conltitution at the Beginning, and
fo what is done by them [hall be binding to the refl j and if it were other-
wife. It would avoid JVlultitude ot Leaks ; ior it is the common Prac-
tice in moll Places, to feal Leafes by the major Number of the Dean
and Prebendaries that are relident at the Time when the Leafe was
made. Freem. Rep. 504. Pafch. 1693. Hafcard v. Somany.
S. If an jicf to be done he re' err d to the confiittient Members of a Cor-
poration.^ nothing can be done but by the Majority of thole who are
the conltiruent Part of the Corporation; but where a thing is referred
to be done by the Commonalty , there the Majority of thofe, who are pre-
fent (all being fummoned) will determine and bind the reft, but in the
other Cafe the Majority of thofe who are prefent will not do ■■, Per Cur.
Mich. 6 Ann. B. R. The Q^ueen v. Lock.
9. A Corporation aggregate con lifting of 2 Bailiffs and Bnrgeffe^ ^c.
and oneoi the Bailifi's and Burgeffes made a Leafe in their Politick Ca.-
pacity to the ether BnWitY in his natttral Capacity. The Court was of
Opinion, that the Bailiffs make but one Officer, and the one cannot
aft without the other i therelore // « Leafe is made by the Corporat en
to one of them, he is both Lejfer and Lejfee^ which cannot be. 8 Mod.
303. Trin. 10 Geo. 1725, Salter v. Grofvenor.
ID. Afcle Corporation, as a BilTiop or a Parfon, could not make a
Leafe to himfelt, becaule he cannot be Leffcr and Lejfee, and the Law is
the fame in a Corporation aggregate, as Dean and Chapter, for a
2. 7. z Leafe
270 Corporations.
Leafe c:mnotht made Z';' r^e, Chapter without the Concurrence of the
Dean J and for che fame Reafon, a Leale cannot be made to tise with-
out the Concnrrence of the Chapter, but it }?ii!}' be made to atiy of the
Prebendaries^ becaufe it is not necejiary thae any of them pould joih in the
Leafe, for a Prebendary is not an integral Part of the Body Corpo-
rate. 8 Mod. 304. Trin. 10 Geo. 1725. in Cafe of Salter v. Grof-
venor.
11. Where-ever Notice is given of the meeting of a Corporation ybr one
particular Euftnefs only, the Body cannot go on to other Riijinefs iinlefs
the whole Body is met, and tt is done by Conjent. Barnard. Rep. in B.
R. 80. Mich. 2 Geo. 2. fays this was laid down as a Rule by the Ch,
Jultice in the Cafe of the King v. Wakes.
12. A Charter required, that the Prefence of the Mayor be necelTiry
at all Corporate jiffembUes. The Corporation were alfembled, and a
iVluttcr being propofed, the Mayor diffolved the Ajfembly, but the re-
maining Part of the Corporation continued together ^ and proceeded. It was
objefted, that fuch Atter-Proceedings were irregular; But the Court
faid. It was very true, that no new Rufinefs can be propofed In che Ab-
fence of fuch Officer, but that the AJJetubly has always a Right to proceed
in the Buftnefs which was begun when he was prefent. Barnard. Rep.
in B. R. 385, 386. Mich. 4 Geo. 2. The King v. Norris.
(G. 4) Grants to or by Corporations, and by what
Names or Titles they may take, or grant, and where
there is a Variance or Mifnomer.
I. TTfT H E R E a Feoffment is made to a Corporation and afngle Per-
y Y fon, it ought to be by Deed, and that the Livery be made
to the Attorney of the Corporation, authorifed by Deed, and to the
other Perfon alfo, and then they Ihall be 'tenants tn Co^nmon, ocherwife
the Corporation can take nothing i Per Hulley. Thel. Dig. 27. Lib. 2.
cap. 3. S. 10. cites Hill. 7 H. 7. 9.
,S. C cited 2. It" I devife Land to the Abbot of St. Peter^ where the Foundation is
byHobaic ,9^^ Paul, the Deviie is void; Per Englefield J. Quod non negatur. Br.
Ch. J. Hob. y.-r^ _, „ „ires rn H. 8. 8. fb. d1. I.l
31-
■£^^- Devife, pi. 2. cites 19 H. 8. 8. [b. pi. i.J
186. cites S.C. for here the Saint's Name is the only Specification of the Party in the Dsvife, which
is miftaken.
4 Le. 225. 3. If a Majler or Prefident of a College by his Teftament devifes Land to
pi. 557. the the faid Houfc whereof he is Prelidenc, and dies, the Deviie is void,
Piefidentot ^^^^^^^ ^j^^y h^yg ^o Hq&A. Dal. 31. pi. 13- Anno 3 Eliz, and cites 13
ChriiHCol. H.8. 13. S. P.
lege 's Cafe,
S. C. and S. P. per Cur. and the Serjeants and others.
Without 4. If a Grant is made to or by a Corporation in Time of Vacation, it is
their Head yoid. Litt. S. 443.
they cannot . r n. ta i
take to the Ufe of the Houfe ; For without a Head the Body is imperfett. Dal. ;i. pi. ij.Anr.o
■■ Eli'i
"' licliirinB, the t'acation of the Jbathy of Dale a Leafe for Life, or a Gift in Tail be made, the Remainder
to the .-Mot of Dale ami his Succeffors, this Remainder is good, if there be an Abbot made during the
i^articular Ellatc, Co. Litt 264. a.
Corporations. 2 "^ i
If tiicre be Mayor and Commonally of D. and t!ic A/ayoi- diet, a Grant mide to the Mayoi- a>ii Cmmonaliy
«' D. ,s void, ; but in that Cale, if a Leafe for Life be made, ti.e Rem.ihider to the Mayor and Om-
Lite. 264. a
Mtyoj D. the Kem3inder/j?<jo(/, if there be a Mayor eleiitcd duiinK the particular £lhte Co.
:. 264. a.
5. The Dean and Canons of Windfor were incorporated by Aft of Par-
liament by the Dean and Canons of the King's Free-Chapel of his Cafile of
Jfindjhr, and they made a Leale by the Name of the Dean and Canons
of the Kind's Majejty Free-Chapel of the Cafile oflVindfor^ in the County of
Berks. All the julHces held the Leafe good enough ; For though the
King in Parliament ought to call it His Caltle, yet when another Ipeaks
of it he is more apt to call it The Caftle, and confequently fuch Vari-
ance is not material Mo. 71.^1. 195. Trin. 6. Eliz. The Dean &c. of
Windlor's Cale.
6. And though more be put into the Words of the Leafe than are in the
Words of Incorporation yet u ts not prcjndtctal if every Word is true ; As if
he had added of the CalU'e of Xew VV'indlbr, or the Chapel of St.
George the Martyr, becaufe it is true, and there is not any other W ind-
for known, or any other St. George than the Martyr, and thou'^'^h ic
might otherwife, vet it Ihall not be intended. Mo. 72. in pi. 195.
Trin. 6 Eliz. in the Dean &c. ot Windlor's Cafe.
7. The Cooks oj London were incorporated by Ed. 4 and that t:to Prin-
cipals of the Community, by the Jffetit cj 12, or at the leaft of 8 Per fens of
the j''aid Coimniinity, in myfhria fr^diCfa maxiine expertes Jin^nlis Anuis
eligere pojfint et facer e de Commamtate tlla duos Magijlros Jive Gubern.itores
ad fupcrvidend &.c. etquod iidem Magijiri vel Gabernatores et Comtnunttas
Jhoiild have perpetual Siicceffton^ and a Cotnmon Seal 8zc. and that they
might pnrchafe and enjoy Lands &c in Fee &c. J Deed of Bargain and
Sale is made by A. B. C. andD. Majler and Wardens of the Cran and My-
fiery., andthe Commonalty of the fame Craft and Myjiery., and J. L. of the
one Part., and R. Dormer of the othtr Part. Held here, that the Cor-
poration was niifnamed, lor here are 4 particular Perfons naind., and
Majler is added at the End in the fingnlar Number., and therefore it can-
not reter to them all, or to two of them, and if it refers to the four the
Charter doth not VV arrant this, lor that is a greater Number than the
Charter wills, and if it ihall refer to the lalt Name, then there are not
Mafters, and the Plural Number is Material, and in the Indenture they
are calfd Mailer and Wardens, and Warden is net in the Charttr nor
can be Part of the Corporation, and if in the Place of Wardens,' Go-
vernors had been put, they ought to have put (or) in the Place of (et)
as Mailers or Governors, but as for the Words (Craft and Myjtery'^
which are put in the Indenture before the Words (and Commonalty)
it is hnifiirpliifage^ ivhich "Will not make the Deed of Bargain and Sale
i)oid. Plow. Com, 537. Trin. 20 Eliz. Croft v. Howell.
8. A Corporation was made by the Name of the Dean and Chapter *^°'^'«'''^-
Eccleji£ Catbed' Sanff^ ^ individuie T'rin. Caerltl\ made a Leafe by'thecUedb
Name oi Dec anus Ecclejia Cathed\ SanQcs 'Trin. in Caerltl'. £5" totum Ca- Gawd/as
pitul' de Eccle/ia pradiii\ Six were againlt three, that it is o-ood not- ^"^^^ ^° ^Y
withltanding the Variance, which is not in Subftance of the Name D '^^ ''^"^'^
278. pi. 1. Mich. 21 Eliz. CarliOe Dean and Chapter's Cafe. " ' ffEji°"
9. There is no Book of Law which avoids Leafes or Grants of Cor- There mult
porations for Variance in any of thefe tour Circumltances, \\z. Addition be noOmii-
lntcrpojttiou.,_0mi(fion^ or Commutation., if they retain the four £rjt ^°" '^^^''"y
Principles of Subllance, viz. Name ot Perfons, of Ploufe^ Foundations, ParT'^And
or Dedication^ Place knoivn before the Foundation in which the Houfe is z-. pi n-i
fituate; Per Manwood Ch.B. Mo. 23? pi. 367. Hill. 29 Eliz in Fan- Pafch ; & 4
Hiaw'sCafe. Ph. & M.
Dean iind
Eaton's Cafe. ■ D. 150. a. pi, S-j. Trin 3 & 4 Ph. & M S. C. they were incor, orated by°the
Name
Corporations.
>Janieof Pnepodri Sc ColIe:;ii Kef;:i1is CoHegii beati Mjrias (1c Eaton juxta Windfor, and mRde a
Leafc by ^'ame of PrieooHti, & Sociorum Collegii Regalis de Eaton &c. omitting Coilej;ium bcarac
Mari^ • And all the Juftices held this a void Leafe. D. i 50 a. pi. S^. Tnn. ^ & 4 Ph. o: M. and
fay.S that it was To adjuda'd Mich. 10 Eli?. & Mich. iS. where the Place of the Corporation, viz.
Chefter, wa.s omitted in the Grant of the Dotation marie to the Dean and Chapter, but in the H.iben.i'
it was inferted Mo i;. pi. 51. S. C that the Words (Sand x Manx) were omitted, .',nd there-
fore held void ; But the Leafe by the Dean and Cl.apter of the Cathedral Church Peierburgcniis
where they were incorporated by the Name Santti Petri Burgenfis was not void, cites a great many
Year Books.
10. The ProvoJ}^ Telhws^ and Scholars of .Gh/een's College Oxon. are
Guardians of a/iHoi'pitalin Southampton, and they kafcd Parcel of the faid
Hofpital by the Name of Provuji, Fellows^ and Scholars^ Guardianits of the
Hofpital; it wasobjefted, that it Ihould be G//<^r(^/^z«/, bee a ufe the Col-
lege conlUts of many Perfons, and every one is capable, and not like
to Abbot and Convent ; But the whole Court held, that the College
is as one Body, and as one Perlbn, and fo the Leale and Declaration
were both good. Le. 134. pi. 183. Plill. 30 Eliz. (^een's College Oxou's
Cafe.
11. If the Queen will found an Hofpital by the Name Quod fundavi-
mus ad ro'atiouDii Chi'ijlophen Hatto>i Cancdlarii Angliit, all the fame
ought to be exprefjed in every Grant made by, or to the laid Hoipital ;
Per Egcrton SoUicitor General Arg. Le. 164. Mich. 30 & 31 Eliz. in
Scacc.in Cafeof Marriot v. Pafcall.
12. So Quod fundavimus a^rf/rti^;;^«wpt7,'//»f/-ej. Ibid.
13. And funiccimes the Number of Perfons tncorporatedy if it be in the
Charter, it ought to be ufed in all At'ts made by or to them i As Mafier
and 6 Chciplains ; Per Egerton SoUicitor General Arg. Le. 164. Mich. 30
& 31 Eliz. in Scacc. in Cale of Marriot v. Palcall.
z Le. 97. 14. The Dean and Chapter of Exeter made a Leale by the Name of
pi. 119. S. C. the i)tY?« and Chapter of St. A'lary of Exeter, whereas they were incor-
held. accord- p^^p-jje,-! \^y ^[^e Name of the Dean and Chapter of St. Mary m Exeter ;
'"° ^' but this was held to be no material Variance. Cro. E. 167. pi. 3. Hill.
^2 Eliz. B. R. Willis v. Jermin.
Siv. 12S. pi. 15. In Ejeftment of a Leale by the Warden and College ef ylll-Sonls of
19S. S.C. Oxford, the Jury found the Leale to be made by the Warden and College
adjudged. of uiU-Sotils of Oxford tn the County cf Oxford. It was objefted, that
this could not be the Leafe on which the Plaintiff had declared, becaufe
it varied from that Leafe, the one being made by the Warden &c. of
All-Souls of Oxford, and the other by the Warden ot All-Souls of Ox-
ford in the County of Oxford. But per Cur. the Plaintiff had given
Judgment, for the Verdift having fee forth, that the Warden &c. was
ieiled, and being fo feifed, made the Leafe &c. and fealed it with their
Common Seal, all this is the fime as in the Declaration, and the
Words, (viz.) (in the County of Oxford) are nor added as Part of the
Name of the Corporation, but only to ihew in what County Oxford is.
I And. 248. pi. 261. Pafch. 32 Eliz Carter v. Cromwell.
There is a 16. It was held per Curiam upon Evidence, th.it a Corporation 7nay
Diverfity ^^ known by ttvo Names, and if it hath been lo known Time out 0; Mind,
deTt^Cor"' ^^^^ ^ Grant made by either of the Names is good. Cro. E. 351. pi. 4.
poraiions a'nd Mich. 36 & 37 Eliz. B. R! Vaughan v. Guinstord.
Corporations
made of late Time ; For ancient Corporations may by Ufage have divers fevev.il Nurac; ; .AndDc-
mifes. Grants &c. by anv ot them are good enough 10 Rep. \ ;rt. Mich. 1 1 [ac. C B cites ab indance
of Cafes S. P. bv Hale Ch. B. as by the Name of Burgenf'es, and of B;<llivi and Burgcnies ; But
it the Name of Ballivi and Burgenfes be a Name which they have recorded within Time ot Memory,
rliey cannot prefcribe ny it, but by their ancient Name, till fuch a Time, and tlien Sec as in Dyer.
Hardr 104 Pafch. 21 Car. 2. in Scacc. in Cafe of Attorney General v t'artihim (Town in Surry 1
fiilb Hift.ofC, B. iS<S, 187 S P.
Corpo rations. 2 7 q
17. A Bargain and Sale by the King for any Con/ideration^ to a Corpo-
ration IS good ^ although the King cannot Hand feifed to the Ufc oi ano-
ther i and the Confideration cf Money paid or mentioned to be paid^ altho'
by any Stranger^ makes the Conveyance of Bargain and Sale valid. Jenk.
270. pi. 88.
iS. King H. 8. incorporated Trinity College in Cambridge by the
Name oi Majler^ Fellows^ and Scholars of the College of the Holy and un-
divided 'Trinity tn the Univerjity of Cambridge ; and Anno 6 E. 6. they
made a Leafe by the Name ot the Alafter, Fellows &c. cf Trinity College,
but left out the Word (UniverJJty.) Two Jultices thought the Leafe
good, but the two others, and the Ch. J. though it void, but he moved
the Parties a fecnnd Time to an Agreement, and would not as yet give
Judgment. 2 Brownl. 243. Palch. 7 Jac. B. R. Trinity College's
Cafe.
19. A Devife of an Houfe was to his Wife for Life, Remainder to the
Mafter and Wardens of the J^neen's Free-School cf St. Olave's SoHthwark ;
In Ejeftment brought by the faid Mafter and Wardens, it was obje£led,
that the Corporatioc could not take by this Devife, becaufe there is an
Exception in the Stat. 32. H. 8. cap. 5. of VV^ills of all Bodies Politick
or Corporate, fo that they are excepced from taking by the Will ; The
Court were all clear of Opinion, that the PJaintirfhad a good Title.
2, Bulft. 33, 34 Mich. ID Jac. Mafter &c. of St. Olave's Cafe.
20. The Dtrui and Chapter of Norwich \^-txe. incorporated by H. S. Jo TtfS.S.C.
by the Name ot the Dean and Chapter of the Bilhop ot Norwich and hisll"^ *-J'""
SuccelFor ; thcy/wn-rai/fr^/^ their Charter 10 Y,di. 6. and afterwards icere i_^^.^^^ ^^^
incorporated by him by the Najne of the Dean and Chapter Sanffa /W/'i'/- jnafmuch a,'
dtiie Trinitatis Ncrivici ex Fundationc Regis Ed. 6. They made a Leafe by the firfl Cor-
the old Name of Incorporation, leaving out (Ex Fundatione Regis Eel. poranon
6.) and adjudged that the Leafe Has good. Palm. 491. Hill. 3 Car. ^,'^"°3^^/
B. R. Heyward v. Fulcher. the Lea*;.-
made by the
ancient Name was good notwithftand the faid Omiflion in the Grant and Leafe.
21. Debt upon a Bond made to the Plaintiff's Wife Dum fola by the
Corporation of Wells ^ by the Name of the Mayor, Aldermen, and Biirgef/es.
Upon Non efl Fafilum pleaded, the Jury find a fpecial A^erditt, than
J^rieen Eliz. in the 3 ill Year ot her Reign, created them a Corporation
by the Name of the Mapr, Mafters, and Biirgeffes of Wells, and that Car.
2. in the 35th Year of his Reign, by his Letters Patents, granted to
them that they [h'Oiild be known by the Name of Mayor, Aldennen, and Bur-
gefjes &c. and by this lall Name they entred into the Bond ; and if this
be the Bond of the Mayor, Mafters, and Eurgefles of Wells, then &c.
And adjudged lor the Defendants, becaufe by the taking of the fecond,
Letters Patents the /r/? Name is inttrely extingntfh\i ; but it was agreed,
that a Corporation 772ight have two Names, the one by Prefcription, and.
the Uhcr by Grant., or both by Prefcription, but not two by Grant. Lord
Raym. Rep. 80, 81. Pafch. S VV. 3. Knight & Ux' v. the Mayor, Ma-
fters, and Burgelles oH Wells.
22. The Names cf Corporations are not arbitrary Sounds meerly fo New Abr.
individuative, hm have a certain and /tgnifcant Meaning, and t ^hat be^^^^^^^^
kept to, though the Words and Syllables be varied, yet the Body Politick is Verbis.
very well named, for then there is enough faid to Ihevv that there is fuch
an Artificial Being, and to diftinguilh it from others, Gilb. Hift. of C.
E. 181.
23. Any Corporation by Atf of Parliament may take by another Name 10 Rep. 57.
than that by which it was injiitntcd^ for in Afts of Parliament the Subjctt b. Tnn.
and DeJign ol the Legiflature muft be refpe61ed, and thofe that have " J^,'^- '"
Power wholly to change the Name of Things, have certainly Power to [^^ig^''^'"o
4 A alter for.l's Cafe
S. P.
X-
27^ Corporations.
alter k in any A61 ot theirsj and all inferior JuriiUictidns aie bound to
iupport the Senfe of the Law, and not to deftroy it, if it has any Mean-
ing, and therelore the Statute that Advovvlons ol Popifli Reciifants con-
vict be given to the Chancellor and Scholars of the Univerlity of Ok-
ford, and they bring their Aftion by the Name of the Chancellor,
Alalters, and Scholarsof the Univerlity of Oxford, this is well enougii.
Gilb. Hill, of C. B. 187.
24. If a IFnt be brought bj Hugh Prior of Coventry^ this is too ge-
neral, and Ihall abate, but in a Leafe fo made hud been good. Gilb.
Hiit. of C. B. 189.
25. There is a Differetice between Writs^ Declarations Szc. and OUi~
NewAbr. gallons and Leafes ; tor that if the Name ot a Corporation be miilLilcen
503. S, P. in a Writ, a new Writ may be purchafed of common Right ; bat it were
y^""*^^"^ fatal^ if viiffaken in Leafes and Obligations^ and the Benefits of them
6 Rep. 65. would be wholly loil ; and therefore one ought to be fupported, and
a. Mich. not the other. J. Abbot of W". granted Common of Failure to J.S. by
4jac C B the Name of VV. Abbot of W. this is good enough Caufa qua lupra;
i?.^'';!'l?yi'' But if this Name had been thus miltaken in a Writ, it had been latal,
I'p':'^!^' Gilb. Hill, of C.B. 189.
10 Rep. 125.
b 126. a S. C, 5c S. P. cited by Coke Ch. J. Mich. 1 1 Jac. in the Mayor and Burgcflss of Ly mi's
Cafe.
(G. 5) Grants by a Corporation. Good or not.
In what Cales.
I. '~T^ HE ,^een makes a Leafe for Tears of Land to the Mm of Chef-
f[ ter field ^ rendering Rent, and the Grant was to them by the
Name oj the Aldermen of Cheflcrfield^ and thev by the Name of Aldermen
of Chefier field grant their Intcrejl to C. in the laid Land ; and it was a-
greed by the Court that the Grant by them was void i for they by
the Grant of the Queen have Capacity to take, but not to grant the
Land to another. Cro. E, 35. pi. 3. Mich. 26 & 27 Eliz. B. R.
The Aldermen of Chefterfield's Cafe.
2. A Corporation of Mayor and Commonalty, or of Bailiffs, Burgef-
fes &c. may by their Common Seal grant their Lands 8cc. for Lik: or
Years, or in Fee, and this fliall be good, and bind their Succeilors ; Per
tot. Cur. Sid. 162. pi. 15. Mich. 15 Car. 2. B. R. Smith v. Barret.
3. No Perfon, Natural or Politick, who has a Fee, but may alien it ;
A Bi/l.wp, Dean, and Chapter &c. are Corporations, which have their
EJiates under a Tnijt, yet they may alien ^ Per Holt. Skin. 602. Mich.
7 VV". 3. B. <R. in the Banker's Cafe.
4. J^W tho' a Pflr/6;« may not alien by himfelf, yet he may by the
Confent of the Patron and Ordinary i Per Holt. Skin, 602. Mich. 7 W.
3. B. R. in the Banker's Cafe.
(G, 6}
Corporations. 27;;
(G. 6) Grants to a Corporation. To what Perfons it
ftall be faid to extend ; And what PaSs.
I. ^^OVENJ IsfT wds bvonght hy the Aiayor and Covmcnahy of N.
\^ agamfi the Miyor and Commmdty of D. and counted that the^^:^°^^"~
Dejendants by tiieir Deed had covenanted that the I'lantijf's poitid lie quit T? 'dtes
of AJnrage, Poiicuge, Culloni, and 'foil ui D. of all thoj'e o] N. and th.it &.<Z.
they had taken Toll by certain of their Bierge^es, of certain of their Bargef- Contra if it
fes of N. vvrongtully &c. xAnd there adjudg'd that the taking of the^^"}^'^^'')',
Coinmnn Servant is the taking cj the Corporation, and lb the Covenant "cTl'a^Perfon'
broken i Quod notaj and it is not mention'd there it' the Servant was Br Corpora-
Servant by Specialty under the Coninion Seal of tiie Corporation, or "o" p'- 74-
not. Br. Corporations, pi. 14. cites 48 E. 3. 17. citesS. C.
2. It was faid by Palton, that li Goods are given to an Jbbot^ and to
another^ the Property is jointly in them two, and nothing in the Houfe
&c. and that the othtr fhall have all by Survivorfoip if the Abba dies
Thcl. Dig. 26. Lib. 2 cap. 2. S. 24 cues Trin. 9 H. 6. 2$. and thuc
i'o it is agreed in a Leaie tor V'ears inade to them. Trin 16.
H. 7. 15,
3. Obligation made ifa J. P. Alderman of Saint Mary's Guild ofD.
and his S/icccJfors, and in Fati there is no fiich Curporation there, the Ob-
ligation Ihail go to the Executors, and Succelibrs is Void. Br. Obli-fa-
cion, pi. 6S. cites 20 E. 4. 2.
4. So oi' Bonds m-j.dc to the Church -Wardens in London , and their Sue-
cejfors, it is void to the Succelibrs, and good to the Executors ^ For
they are not incorporated. Br. Obligation, pi. 68. cites 20 £. 4. 2.
5. And where Bond is made to the Bean of P. and his Snccejfors, and
it is not laid Dean and Chapter, and his Succelibrs, this is good to the
Executors, and void to the Succelibrs. Br. Obligation, pi. 68. cites
20 E. 4. 2.
6. Contra if it had been to the Dean and Chapter and his Succcffors ;
For he has a Capacities, viz,, to him and his Heirs, and another With
the Corporation. Br. Obligation, pi. 68. cites 20 E. 4. 2.
7. And it Obligation be made to the Bifhop of L. and his Succeffors, or
Parfon oj D and his SucctJ/orSy this goes to the Executors, and yet tliey
are a Corporation i For they have two Capacities. Br. Obligation, pi.
68. cites 20 E. 4. 2.
8. C'.ntra of Abbot or Prior. Br. Obligation, pi. 63. cites 20
E. 4 2.
9. It Land be granted to a Mayer and Commonalty without faying to
their Succtffors, they have Fee-Simple. Thei. Dig. 20. Lib. i. cap. 22.
cites II H. 7. 12.
ID. It was faid, that if Land be given Jo. Stile Dean Sc. ana to his
Succeffors, ami to Jo. Stile Clerk^ ht'ing the fame Perfca, and to his Heirs ^
that this is a good Gilt, and that he fhall be tenant in Comtmn with
himfelf for diverfe Relpeils. Thel. Dig. 27. Lib. 2. cap. 3. S. 11.
cites Trin. 13 H. 8. 14.
II. If one ri^e-j.'/fj Land /a A. N. Dean of Paul's and to the Chapter
there., and their Succefors, and A. N. dies., and a ntw Dean is madc^
and then the Devifor dies, th& Land Ihallveft in the new Dean and
Chapter according to the ///;c»?, tho' by the Words it docs not ^ For
the chiet Intent was to convey it to the Dean and Chapter, and their
Succcflqrs for ever, and the lingular Perfon of A. N. was not the prm-
cipal
2 y ^ Corporations.
cipal Caufe, tho' perchance it was one ol the Caufesi Per Man wood.
PL Com. 344. b. Trin. 10 Eliz.
(^G. "J ) A6i:ioHS. Obligations &c. made to or by
Corporations. Liable ; who, where the Head is
remov'd. And Pleadings.
Br. Mon eft I. TV TOTE ; that the Deed of an Jhlct and Covent^ which Abbot is
Faftum, pi. r^ depofed or deraigned after, is good. J5. Abbe, pi. 19. cites
5.citesS.C. ^ jj^ ^2.
Br Non eft 2. Contra of the Deed of an Abbot who is a Ufnrper where there is a
Fa'aum.pl. lawful Abbot at the Ttme &c. Ibid.
3 citesS. C. 3. Bond was made by Prior and Covent, and after the Prior was
made B/Jhop of D and /« Aifion againjl him upon the the lame Bond he
■pleaded this Matter^ and that the A5iion jhall be upon the Siicceffor, and
not upon the Predccc/for, for the Corporation is charged only, and a
good Plea without Traverfe, abfque hoc that he alone made the Bond.
Br. Traverfe per &c. pi. 82. cites 21 H. 6. 3.
4. Debt of ContraCf againJl the Provojl of the Cullege of T. in Cam-
bridge/or Stuff' bought, which came to the bfe uj' the College^ and that
the lame Provolt, viz. T. M. was remov'd, and the new Defendant was
eleBed and made Provoft &c. and Exception was taken that he did
not jhew how he was removed, & non allocatur per Cur. For if he be
removed by any way, and the other was Provolt, it is fulHcient, and.
this only is traverfable, and not the Caufe of the removing ; for Action
ot' Debt Ihall be brought againil Executors generally, without fcewing
how they were made Executors i For if he be Executor it fuffices, and
and the Entry of the Prothonotary is general, that he was removed,
without iLewing how, and for what Caufe. Br. Pleadings, pi. 87.
cites 5 E. 4. 70.
5. Where a Man Pleads Payment to the Chamberlain of London, viz.
to one J. and his Succejors &c. according to the Form of the Condition of
the Obligation aforelaid, he ought to /hew that the /aid Chau/cerlaimvas
depofcd, or the like, and then he paid it to W. N. his Succeffor, who was
elected Chamberlain &c. by which he pleaded accordingly ; For o-
therwife it Ihall be intended that the firft continued Chamberlain i So of
an Abbot &c. Br. Pleadings, pi. 98. cites 8 E. 4. 18.
Br Abbe 6. In Debt, the Prior of B. made an Obligation without the Cuvent,
pi.. IV cices and after was made an Abbot of another Houfe, and the Obligee brought
S.C.and j3ebt againlt him, and declared upon the Matter, and the Defendant
5 H. -. 24' j-^^^i^ f/yat the Goods did not come to the Ufe of the Houfe of which h: is
Abbot, and demurred in Law upon the Declaration ; Per Yavifor J. this
is a Body Politick, and none Ihall be charged but the lame
Body Politick, and an Abbot or Prior can take nothing but to
Ufe of the Houfe, and when he is made an Abbot of another Houfe,
he is fevered from the firft Houfe, and therefore he is difcharged, and
the Covent of the firft Houfe lliall not be charged, becaufc they were
not bound unlefs the Goods came to the Ufe of th^ Houfe, and if he be
depofed, and ajter re-ele8ed into the fame Houfe, yet he lliall not be
charged, lor he is in in another Courfe, and all the other Jufticcs were
to the contr.iry at this Time i but after Rede & Fineux agreed with
Vavifor, 5 H. 7. 25. and Wood, Brian, Kcble, and Towniend to the
contrary
Corporations. 277
contrary, becaufe he wis at all Tjiaes Perjoiiable when he was imme-
diately made Abbot ol: another Houfe i contrary where he is depof-
ed and re-ele£led, and therefore Brook makes a Quaere, for it is du-
bious to him ^ and per Vavifor, 5 H. 7. 25. an Abbot may give the
Goods of the Houie, and make a Charge during the Time that he is
Abbot, and make an Obligation, which is good il it be fued during
the Time that he is Abbot, but the Sitccejfor fliall not thereof charged,
and therefore becaufe the Capacity by which he charged is determin-
ed, the Charge determines, and the belt Opinion was with him, as ic
ieems, and agreed wich Vaviibr the principal Cafe. 9 H. 7. 23. Br.
Barre, pi. 69. cites 3 H. 7. 11.
7. If the Abbot of B. be bonfid in an Obligation by his oiion Seal, and
after is tranjlated to the Aihy of St. A. Aftion of Debt lies againft
him as A'bbot; per Vavifor iov Law ; other-wife ic feems where he is
iiepofed, and ajter is re-eleBed Abbot, in this Houie, or in Another j
For there the Aftion vvas once extinft, contrary here. Br. Noua-
bilitie, pi. 28. cites 9 H. 7. 23.
(H) fVljo Ihall be faid the Founder.
J TTE that gave the firft Pofle (lions tO tlje CTOrpOratian 10 tlje J=nk. 270.
tr iFoiuttici% €0. 10. ipofpital 33- b« 3^ m. 22. 50^^^^^^^^-
ylU 0. pi. 12. cites
S. C. but
S. p. does not clearly appear. Fitzh. Gi-anr, pi. i. cites S. C. & S P.
2. [So] 3f t!)e minn: Ijatf) a CUapel, mm v,\Mt^ poirciTion^ to s--. corody,
it, bp UlljtCl) Ije IS tljC jf OltnneC tljCL'COf, though the Seculars are atter P'- '^-J^""
tranllated into Regulars, p£t i\)t ii^tUS fljall DC tljC ifOUnUCt tijCtCOf, not obferve
Ijccaufc l)e saue tlje fii'lt poITefftonsi* 38 M, 22. s.p.there.-
Fitzh. Grant,
pi. I. cites S. C. ScS. P.
3- 3,ftl)C King and a common Perfon give Poffeffions tO a COrpO= Br.Corodies,
ratiOn'at one and the fame Time, tl)C ^Xm AXlU bC tljC jTOUntU:!; OUlP P'-J ^""
Jjp ijij) prccogatiue* 5° aff* 6. pec mitiuet, e' 5, 24 _
If the KiTig
and a common Perfon join in a Foundation the King is the Founder, becaure it is an intire Thing. If
a common Perfon founds an Abbey, or Priory, with Poffeffions of fmall Value, and the King after endoivs it
with ereat Poffeffuus, yet the common Perfon is Founder.
l( i common Perfin fsiinds a Chaulery, and afte.r the Ki/ig tranflates it, and makes it a Monaflery, >rnd
endoius it -with Poffeffions, yet the common Perfons is in Law the Founder becaufe he gave the firft
Living.
So if the Tranflation be from Regular to Secular, vel e contra. 2 In ft. dS.
4. Ifllie was taken in Cafe of a Corody, whether the King was Pa-
tron of a Priory, where he prefented one to a Corody y by reafon- that his
Progenitor fonnckd a Chapel there before any Priory 'was there; or whether
the Bilhop of E. and his PredecefTors, Time out of Mind, had been
Patrons there. And Greene Juliice laid, that when the King had a
Chapel of which he was Patron, and this was in the Hands of the Prior,
tho' the Seculars were tranjiated into Regulars, yet he who gave the firft
Foffeffion was Founder, and the Jury found for the King. Br. Pre-
fentation, pi. 39. cites 38 AfT. 22.
5. And it was faid, that tho' there was no Prior there before, and
tho' the Priory was not founded in the Place where the Chanel was, yet
4 B becauie
2/8 Corporations.
beciuife it ivas annexed, and the King was the firji Patron of it, the Pa-
tronage was the King's i Quod Noca. Br. Prefencation, pi. 39. cites
38 Air 22.
6. yind becaufe they had made Eleffions of Priors there without the
Kings Licence, to the Dijherifon of hint and his Crown, it was agreed
that the King recover the Patronage, and that the Temporalties be
feifed into the King's Hands for fuch Difherifon and Contempt, till Sa-
tisfa£lion made to him. Ibid.
7. Founderfhip cannot efcheat, for it is not held, that is, it cannot
^ichcoit by Death without Heir ; Per Brooke. Br. Corodies, pi. 5.
8. Nor csin it he forfeited, as Brooke thinks ; For it is annexed to
the Blood, which cannot be divided, as it is faid, alter the Augmen-
tation-Court took its Commencement, in Time ot H. 8. Fur a
Man who is Heir, to another cannot make another to be Heir. Er. Co-
rodies. pi. 5.
9. I{a.Bi/hop be Founder of a Priory and Convent, and the Crown
tranjlates this to a Dean and Chapter, and difcharges the Monks of their
Habit and Order, yet the Bilhop remains Founder ftill. 3 Rep. 74.
Dean and Chapter of Norwich's Cafe.
Br. Pi-emga- 10. He that gives the firft Poflellion to any Corporation is the Foan-
tive, pi. 8. der. Tenk. 270. pi. 88.
cites &. C. •' ^
It is annexed n. Fonndcrihip is an Incident infeparabk, and is not grantable over,
to the Saint, ^^ ^ g ^_ Magdalen Coll. Cafe cues Pafch. 7 Eliz. in Scacc.
and cannot ,,ri n* 1
be granted Wharton V. Morley.
to any one,
and if the Church be diffulv'd, the Founder Jljall have the Land. Br. Corodies, pi. 5,
12. A Founder having given Statutes to the College cannot alter thsm
and give new Statutes, unlefs he had referv'd to himfelf an Authority
for that Purpofe. Skin. 513. fays this Point was agreed in Cafe of
Philips V. Bury.
(H. 2) Confider'd How. And capable of
What.
I. •corporation aggregate of leveral is invifible, iramortal, and refis
\_j only in Intendment and Conlideration of Law, and therefore Dean
and Chapter cannot have Predecejjor nor Succejfor. 10 Rep. 32. b. cites
39 H. 6. 13. b. 14.
2. Nor can they commit 7'reafou, or be oiitlaw''d, or excom?n!ininated ;
For they have no Souls, nor can they appear in Perlon but by Attorney.
10 Rep. 32. b. cites 21 £. 4. 72. a. and 30 E. 3. 15. b,
3. Corporation aggregate of many fi^ww/ lYo Fealty ^ For a Body invi-
fible cannot be in Perfon, nor can fwear. 10 Rep. 32. b. cites Br. Fealty,
[pi. 15] 33 H. 8.
Ld Raym. 4. Ic never was feen, that a Corporation might be bound in a Recog-
Rep. 79- nizance or Statute Merchant; Per Dyer. Mo, 63. in pi. 182. Trin.
Pafch. 8 W. , c-i-
5.S.P. in 6EI1Z.
Cafe of Burg-
hill V. Gibbons and Cambridge Univerfity, &al .
5. Cor-
Corporations. 279
5. Corporations aggregate of niany are not capable of thefe two Pro-_
tdiions, cither Profeiinr^ or Moratm-x, becauie the Corporation itfelt
is invilible, and relts only in Conlideracion of Law. Co. Lite.
130- ^^'
(H. 3) Dlirolutkm • And the Effed thereof.
1. T F the Corporation of a Prebend be a Manor ^ Nient pliis^ and the
\^ Aianor is recovered from him by 'fit le paramount^ the Corporation
remains, lor he Ihall have Stallum in Choro, and Vocem in Capitulo,
and he is Itill a Prebendary. 3 Rep. 75. b. cites 15 Air pi. 8.
2. C. brought Annuity againlt the Dean and Canons of St. Stephen's
Welhiiinller, and counts^ that the laid C. was feiftd of the [aid Anuttity
ly the Hands of M. Parfon oj the Pari/hChiirch oj G. Predcceffor of the faid
Dean and Canons. The Defendant pleaded^ that the faid Redory of
G. was Parcel of the Poffeffions of the Priory of Wells ^ which ^nory was
Parcel of the Priory of St. Stephens in Normandy.^ which Priory, and
the Poliellions thereot ■'uere feifed into the Kind's Hands, by rcafon of
the War between King E. 3. and the King ot France, and fo
continued in his Hands till the Time of King H. $. and then the
Reftory of G. was appropriated to the faid Priory Time whereof
JVkmory &c which Kings continually took the Profits, till by Stac.
2 H. 5. it was ordain'd, that all Priories alien, and their Manors,
Reftories &c. in England^ which appertain'd to the faid Priories, or
are appropriated or annexed &c. Ihall be to the King and his Heirs,
which Lands and Re^ory came to King K. 4. who by his Letters Patents
granted the Pnorj' alien, and the faid Reclovy to the Dean and Chapter^
Defendants &c. Upon Demurrer, Judgment was given lor the Plain-
titt. 2 And. 106, 107. pi. 57. in Cafe of the Biihop of Rocheller v. the
Dean and Chapter of Rocheller, cites it as Pafch. 18. H. 7. Rot. 416.
The Prior of Caftle Acre v. the Dean &:c, of VV^eitminller.
3. Grant was made to John of Gaunt, Duke of Lancailer, o^ all Strays
isjithin his Fees, and a Prior of Splading held of the Grantee certain Land
in B. in Frankalmoign, and Stray came there, and the Grantee claim'd
it by his Grant ; And the bell Opinion was, that he ihall have it i For
he has Tenure there, and therefore he has Fee there ; For if the Houle
be dillblv'd he Ihali have the Efcheat, and the Tenant may have VVric
of Mefne, or Ne injulte Vexes. Br. Patents, pi. 61. cites 7 £.
4. II-
4. If the Abbot and Convent gives all their Lands and Poffeffions to ano-
ther in Fee.^ yet the Corporation remains. Br. Extinguilhment, pi. 35.
cites 20 H. 8. per Fitzh. J.
5. If a Corporation which has ^.Common in Grofshe determin'd ordif-
folv'd, the Common is extin^. Thcl. Dig. 20. Lib. i. cap. 22. S. 28.
cites it as the Opinion of Pafch. 27 _H. 8. 10.
6. U Lands holdenof J. N. be given to an Abbot and his Succeflbrs,
in this Cafe, if the Abbot and all the Covent die, fo that the Body Poli-
tick is dilfolved, the Donor fjall have again his Land, and not the Lord
by Efcheat. Co. Litt. 13. b.
7. So if Land be given in Fee-fimple to a Dean and Chapter, or to a
Mayor and Commonalty, and to their Succeflbrs, and after fuch Body
Politick, or Incorporate is diflblved, the Donor lliall have again the
Land, and not the Lord by Efcheat ; and the Realon, and the Caufe
of this Diverlity is, for that in the Cafe of a Body Politick or Incor-
porate.
oo Corporations.
porate, the Fee-limple veiled in their Politick or Incorporate Capacitv*
created by the Policy of Man, and cheretore the Law tivi.s amies a Con- '
dition in Law to every ftich Gijt and Grant, that if fuch Body Politick
or Incorporate be diUblved, that the Donor or Grantor fliali re-enterj
lor that the Caufe of the Gift or Grant fails, but no fuch Condition is
annexed to the Eitate in Fee-limple veiled in any Man in his natural
Capacity, but in Gale where the Donor or Feeolfer referves to him a
Tenure, and then the Law doth imply a Condition in Law by way of
Efcheat. Co. Litt. 13. b.
8. The Bi/hop cf^ R. brought ji?jmiity againfi the Dean and Chapter of
R. and declared of an Annuity l^j Prefcriptwn'jrom the Prior of St. An~
drew^s ot R. which Priory was dijfohed the 28 H. 8. and 3 1 //. 8. and
their Pojjtffions were committed by the King to the Dean and Chapter of R.
Anderfon faid, the Annuity does not remain; for an Annuity charges
the Party, and not the Pollcffion, and theretore when the Co/poration
is dilfolved, which is the Perlon, the Annuity is gone; W'almeliy fiid,
that in 2 H. 6. 9. it is faid there, if a Priory be charged with an Annuity,
the Annuity fhall continue although it be changed to an Abby. An-
derfon faid, that is true, for there Corporation is changed only, but here
it is diffohed ; Williams faid, that is laved by the 31 H. 8. tor Annul-,
ties are exprefled in the Saving. But Anderfon anfwer'd, that this is
an Annuity, or Rent with which the Land is charged. Beaumond
faid, thatit it beany Thing wherewith the Land is charged it is faved,
but the Perfon is only charged with this Annuity. VValmefly faid,
that the 21 H. 7. is, that an Annuity out jof a Parlonage is not a mere
Perfonal Charge, but charges the Parfon only in refpecl of the Land j
and the Court would conlider on the Cafe. Ow. 73. Pafch. 38 Eliz. C.
B. Rochelter (Bilhop^s) Cafe.
9. li Lands are given to a Corporation, and their Succeflbrs, and the
Corporation is dilfolv'd, the Donor, or his Heirs, /hall have hack the
Lands again i tor the ian-:e is a Condition in Law annexed to the Eftate,
and in luch Cafe no \\ rit of Elcheat lies, yet the Land is in him in the
Nature of an Efcheat ; Per Cur. Godb. 211. pi. 301. Mich. 11 jac. C. B.
in Caleol the Dean and Chapter of VVindfor v. Webb.
1 o. A Prefcription was laid in an Abbot and Covent to be difcharged of
ftithes, and it appeared, that the Body Corporate was dilfolved, becaule
all the Monks were dead, and the Abbot alio, and the Lands came to
Laymen. It was adjudged, that they pall pay 'tithes tn kind, becaufe
the Prefcription was determined by the Lands not continuing in the
Hands of the Abbot and Covent ; For a Lay-Man cannot prelcribe in
Non Decimando. Godb. 211.pl. 301. Mich, ii Jac. C. B. The Dean
and Canons of Windfor v. Webb.
^ II. Holt Ch. J. faid, that ^ final Judgment for Seifure of a Cerpcra-
-'"inS^'c ^^"^ would not, as he thought, be inerf'eftual, as is proved by a Judg-
"* " ment for Seifure Quoufque &;c. in Cafe of Non-appearance, but the Li-
berties ot a Corporation may be ieifed, or furrendred, (as in the Dean
and Chapter of Norwich's Cafe 3 Rep.) and yet noSeiluieor Surrender of
the Corporation itlelf; the OtHces and the Power of chuling others may be
Ieifed into the King's Hands, though he cannot exercife them, and he
may regrantthem. If a Corporation to a particular Purpofe be divefled of
all Its Powers and Liberties, it is gone, as tn Cafe of a Charity ; But for
any other Corporation, they have Power to make By-Laws, and govern the
Place, though they have their Liberties feifed ; for they continue a Corpora-
tion, andinay att as fuch, as in the Dean and Chapter of Norwich's
Cale, that they were uleiui Hill as Ajjtjiant to the Btjhop. It is not the
Privilege of the Corporation to make By-Laws, but it is elfential to its
being, and Part of the ConlUtution. Show. 280, 281. Mich. 3 W. &
M. in Cafe of The King v. Mayor of London.
(I)
Corporations. 281
( I ) fPkn Thing diffohes the Corporation.
i.Tif n Corporation be mane of Con-freres and sifters, auti af.
X tCr all the Sifters are dead, flU <55rant0 atltl Afts made by the
Con-freres after j^re void ; far tUljCIl tljC ^tfferS atC DCatl, t!jtS Id
not aiiD perfect Corporattoiu ^3> 27. €1 'B. E» in tlje Cafe
betiuen €>cr)eant Love/ace and Adan-jucod \t (6 tijerc citcii to
13C fO»
:::. If tIjC t^Utg lUahed a Corporation; conlifting of 12 Men, to
continue always in Succelfion, and when any Of tljCllt die, the others
may chufe another in his Place ; J|f 3 or 4 of them die, pct all 2^^^
none lij> tljc reft fijall be fufficiciit, for tl)i£> is not like to tljc at"arc=
faiti Cnfe. 9^. 37- €U 15, K.per Curtanu
3. Though a Z)£^« and Chapter depart with all their Po(feffions, yet Tho* they
for Neceffity the Corporation remains as well to allift the Bithop in his grant away
Fun£lion, as to give their Affent to the Eftates &c. which he ^^^^'^ Lands"vet
make &c. of his Temporalties, and fo long as the Biihopricic remains, jj^gy ^avg
they being his Chapter and Councel, they may well remain, though ^.t/z^naOT /»
they have no PoUeflions, and they lliall be now (as they were at fitft) Cbon Qp
without any Polielfions i and namely, when the Bifhoprick may conlift ^^"^^'^J"
wholly of Spiritualt)-. 3 Rep. 75. b. cites it as faid by Stouie, loper'whi't-
E. 31. b. in the Cafe of the Bilhop of Norwich, and 25 Aff. pi. b. per lock, to
Fifher. w^i'^h Jones
agreed, and
laid, that there is no Neceffity of Land's, being anncx'd to the Corporation, for there were Dean
and Chapters before any Land's were given to them^ and though they grant them away, yet the
Corporation remains ; and to this Dodcrids^e agreed, and thence concluded, that Dean and Chapter
cannot dejlory ihemfelvs ; For thereby the Bidiop will lofe his Counfcls and without them he can
make no Grant, and great Inconvenience would follow to the Difcipline of the Church ; and
therefore without the Bijhop they cannot diffohe them/elves ; to all which Hide Ch. Juftice agreed for the
fame Reafons. Palm. 500. 501. &l-. Hill. 3 Car. B. R. in Cafe of Hjyvvard v. Fulcher. Jo.
168. S. C.
4. If the Corps of a Prebend be a Manor^ and nothing more and the
Manor is recovered from him by Title paramount^ yet his Corporation
remains i For he has Stallum in Choro, ffi Vocem in Capitulo, and he
is a Prebendary, though he has PofJeffions. 3 Rep. 756. cites 15
AfT. 10.
5. If a Man is Patron of a Vicarage which voids, and he prefents
to it by the Name of Parfonage, by this the Corporation of Vicarage is
chang'd into Parfonage. Br. Corporations, pi. 85. cites 11 H. 6.
18, 19.
6. ^hz Creation of a new Corporation after the Determination of the old
one makes another Body^ fo that Rent Charges and Annuities payable
to the old Corporation are extinft by the Death of all the Members,
as Monks &c. Br. Mortmain, pi. i. cites 20 H. 6. 7.
7. If the Abbot and all the Monks die, the Corporation is diflblv'd,
and the Land pall Efc heat. Br. Corporations, pi. 78. cites 20 H.
6. 7- 8.
8. If the Majier and Confreres oi a College are all dead, the Cor-
poration is determined. Thel. Dig. 20. Lib. i. cap. 22. S. 20.
cites Trin, 1 1 E. 4. 4.
9. And fo it is of an Abbot and Covent. Thel. Dig. 20. Lib. i. cap.
£2. S. 20, cites Trin. 11 E 4.4.
10. But if the Abbot be alive^ and the Covent all dead, the Corpora-
tion is not determined, per Catesby ; For he may Profefs others &c.
Thel. Dig. 20. Lib. i. cap. 22. S. 20. cites Trin. 11 E. 4. 4.
4 C But
2^2 Corporations.
Br. N.C II. But tf they fell all the Lands and the jilbcy^ yec the Corporation
pi. %%. cites re,-,i;i,",-is, per Fitzherberc ; But Brook makes a QuiEre, of what he ihall
S ^- ~~^ be Abbot i For there is neither Church nor iMonallery i and makes' a
b cftes''' Q^u^^re, lithe Abbot dies^ ij they may Cbrife another^ the Hoafe being
s'c. and dilFolved ; Monks and Canon are capable of Spiritualties as to be Vi-
fays, that ^ar, Executor &c. Br. Corporations, pi. 78. cites 32 H. 8. and Hill.
r^"l^,r 3- H. 6. 23.
this is good ^ r,-/i
Law if they were the Chapter to a Bimop.
12. A Corporation was founded by the Name of Brothers and
Siflers, and all the Sifier are dead ^ and the Brothers make Leafe, and
held void, for then it was no Corporation. D. 282. b. Marg. pi 27.
cites it as in the Time of Queen Eliz. Manwood v. Lovelace.
13. The T)ean and Chapter of Wells^ by exprefs words ^ grant and
ftirrcndcr the Deanry of Wells &c. yet this was not thought fure till
the grant and furrender was ellabliflied by Att of Parliament, and tho'
ail Billiopricks were of the Foundation of the Kings of England, and
therefore in ancient Tim^e were Donative, and given by the Kings, as
appears in 17 E. 3. 40. and by the Statute 25 E. 3. de Provijionibus,
yet afterwards (as appears by the faid Book and the faid Ail) the
Bifliopricks became by the Grants of the Kings eligible by their Chap-
ter, and therefore if by the furrender of the Dean and Chapter their
Corporation fliail be diflblv'd, this will introduce 3 Inconveniences;
ift. To the Bilhop concerning his Alfiltance in his Epifcopal Fun£lion.
sdly. To the Bilhop and others touching the Confirmation of his
Grants, 3dly, To all the Church in General. For how can there be a
Bifliop chofen in fuch Cafes ? 3 Rep. 75. b. 76. a. cites D. 273. pi.
35, 36 &c. 10 Eliz. [Walrond v. Pollard.]
14. By the Death of all the natural Perfotis of which the Corporati«-
Br. Movt- Qj^ conlilts, it is diffolved. And. 210. pi. 238. Hill. 29 Eliz. in
"!!'"?'; H. Cafe of Marriot v. Mafcal
cites 20
^ „ 15. H. 8. tranfJated the Abbot and Peior of Norwich by his Letters
Patents, and created them by the Name of Dean and Chapter^ who fiirrendred
their Po(jeffions to Ed. 6. and afterwards Ed. 6. incorporated them by the
Name oj Decani y Capituli ex Ftmdatione Ed. 6. Ard afterwards
he granted their Poffefjions to them by the Name of Dean and Chapter., Sanc-
t(£ individioe Trinitaf Norf omitting thefe W ords (ex Fiindatione Ed.
6.) It was adjudged in this Cafe, ill, That all Tranflations made by
H. 8. of Prior and Covent, unto Dean and Chapters, were good by
the Statute of 25 H. 8. ^dly, Relblv'd, that by the Surrender made
to Ed. 6. the Corporation of Dean and Chapter was not gone ; for
altho' they departed with their Poffeffions, yet for Neceflity the Cor-
poration did remain, for their Alfiftance of the Bilhop. 3dly, Admit-
ting their ancient Corporation was furrendred, and the new Corporati-
on made by Ed. 6. was good, and that the W'ords omitted, viz. Ex Fun-
dationeEd. 6 were material, yet the Grant made to them was good,_
notwithftanding this Mifnoliner, by the Statute of i Ed. 6. cap. 8. of
Confirmations. Hughs'sAbr. 967.pl- 1. tit, Founder and Foundation cites 3
Rep. 74, [ Mich. 40 & 41 Eliz. ] Norwich Dean and Chapter's
Cafe.
16. If a Prior and Covent be tranftated concurrentibus iis quse in Jure
requiruntur to an Abbot and Covent^ or to a Dean and Chapter., thefe thy'
the Name be changed, yet the Body was never dillolv'd, but in Efiecl
it remaineth Itill. Co. Litt. 102 b.
17. Dean
Corporations. 2^:^
17. Dean and Chapter of N. incorporated ^;Y///if ^;/^ [arroidcr totaru ]° '6S.
Eccleftain fuam Cathcdralem &c. to £. 6. This docs noc diUblve the ''• ^- &S. P
the Corporation. Palm. 491, 492. j;oi, 502,503. HiJl 3 Car. B. R.
Hayward v. Fulcher.
18. Ifa Ccrpration.^ that hath been by Prcfcription, accepts a new Char-
ter^ wherein feme Jlterativn is of that Name^ and likewiie of the Method
in the governing Part, yet their Power to remove, and other Franchifes
which they had Time out of Mind, do continue, per Cur. i V^ent,
355. Trin. 33 Car. 2. B. R. in Haddock's Cafe.
19. A CorpiratioH may be dilFolved ; For it is created tipon a 'trujl, and S. P adjudfj-
if that be broken it is jorfeited, but a Judgment of Seifure cannot be'^'^- ^^'l?"'.•
proper in fuch a Cafe ; tor it it bediliblved, to what Purpofe ihould itomuoWar-
be leis'd ? Per Cur. 4 Mod 58. Mich. 3 VV. & M. in B. R. in Sir ranw v City
James Smith's Cafe. of London.
20. Ifa Corporation may befeifed Nomine DiflriHionis, orotherwife,
it is dilFolved ; for when it ismerged in the Crown the King may make
a new one, but cannot reftore the old ; a Corporation ts fomething be-
fides Franchifes, for it is a Capacity to hold as a natural Body, and
tho it may ceafc to be m Aiia Exercito, yet it may be Atla Stgnato.
Neither does a Seifure of Office dilfolve one ; for on making a Cor-
poration, the King may referve the naming of Officers to himfelf, and
fufpend it tor a Time, per Eyre J. 12 Mod. 18. Hill. 3 & 4 W. &
M. in Cafe of the King v. the Mayor of London.
21. It was a Q^Li^re, whether a Corporation could be diiTolved, but
fure it may ; it is iuch a Franchife as may be forit^ited i but a Judg-
ment of ■S'«y?«'e is no proper Judgment to dilfolve a Corporation; per
HoltCh. J. 12 Mod. 18. Hill 3 V\^ & .M. in Cafe of the King v. the
Mayor of London.
;i2. By a Surrender of Liberties and Privileges the Corporation is noc
dificived ; Per Holt Ch. J. 12 Mod. 19. cites 3 Rep. Dean and Chap-
ter of Norwich's Cafe, and Jo. 166.
23. Agreed, if a Corporation were made to a particular Purpofe and Show. 2S0.
they develt themfelves ot all Right, fo that they cannot anfwer the End ^^f^ ^j"S
of their Inftitution, it is thereby dilfolved ; As in the Cafe of a private ^^f^^i^^^-
Corporation for Charity, before the reftraining Statute ; but if the don, S. C.
End ot a Corporation remain'd, as in a Borough, to make By-Laws and & S; P. by
govern it, the Corporation remains Itill, and the making of By-Laws HoltCh. J.
is no Franchife, but part of the Conititution ; Per Holt Ch. J. 12 Mod,
19. Hill. 3 & 4 W. & M. in Sir J. Smith's Cafe.
24. A Body Politick, to which a Trull is annexed, and Male Ad^
mif'ration of it is Caufe ot Forfeiture, and it may be dilfolved ; and
for this was cited the Statute of ^uo Warranto^ where if the Corpora-
tion does not appear upon Summons, the Franchife ihall be feifed into
the King's Hands Nomine Difinttionis, and if it does not come during
the Eyre it was loll for ever. Skin. 310. Hill. 3 VV. & M. B. R.-
The King v, the City of London.
2.^. By Parker Ch. J. HiMayor is not chofen at the 'time prefcribed by the
Charter and there is no Provijion in the Charter for the Old Mayor's
continuing on until a New Mayor is chofen in, the Corporation- is dif-
folved, and confequently cannot proceed to a new Ele6lion ; Indeed
fome are of Opinion, that this may be cured, by the ifjuing out of a Writ
under the Great Seal impowering them to proceed to a new Ekflion ; but
others are ot Opinion, that even this will not do, and that there is no
other Remedy but to obtain a new Charter from the Crown ; But no Body
ever thought, that in fuch a Cale, the Quondam Corporation could re-
vive itlelt by chuling a new Head, without fuch a Writ under the
Great Seal. 10 Mod. 346. Mich, 3 Geo. i. B. R. Corporation of
Banbury's Cafe,
26. The
284 Corporations.
26. The Queftion was, whether by Surrender of a Charter the Cor-
poration was wholly dillblv'd, and the very Being of it deltroy'd ? 3
of the Judges held, that it was not, and compared it to the lurrender
of a Deed, that the Ellate was not thereby furrendered, therefore the
Corporation was lliJI fubfilling, and had a Capacity to take, and by
the Charter of King William did retake, and it would be very in-
convenient if it lliould be otherwife ; that is if they could give up
more by a Surrender than they can take by a Regrant. In the great
Cafe of i\)Z C(t)> of jLOnOOn, feveral learned Men were of Opi-
nion, that a Surrender did not dellroy the Being of a Corporation ^
this appears by the Surrender of Abbeys in the Reign of H. 8. for it
was not thought proper at that time to reft purely on thefe Surrenders,
but to have them confirmed by Aft of Parliament. One of the Judges
held, that tho' barely by the Surrender of this Charter, the Corpora-
tion was not diflolved, yet there were other Words in it, by which
they gave up all the Liberties and Privileges which they then enjoyed,
by which Words the very Being of this Corporation was diflolved j
bnt this being a Cafe of great Weight, it was adjourned firther to be
argued. 8 Mod. 361, 362. Pafch. 11 Geo. The King v. Grey.
(I. ^) Cuftoms. Confirmed. How.
I. '^^^TOTE, by Keeling J. that feveral of the ancient Statutes that
J^^ were made for private Cities, hzvcouly a Metnorandum upon
the Roll^ viz. that all Cujioms &c. are conjirmed^ and the Parties ha\'e
this exempltfied^ with exprefs Mention of the particular Cuffoms, and in
particular ibme of the ancient Statutes which confirmed the Cuftoms of
London are fo, and then be the Cuftoms reafonable or unreafonable,
when they are fo confirmed they are good, and he faid he had viewed
Roils to be fo. Sid. 251. Pafch. 17 Car. 2. B. R. in Cafe of WiU
kinlbn v. Bolton.
(I. 3) Of taking or refufing a New Charter, and the
Effects thereof.
S.C. cited I. TTF Bailiffs of aVill have Liberties by Charter of the King, and after
^\A ^^'h ^' J^ ^^^ ^'"^ makes them Sheriff's, and that they Ihall implead and be
Exchequer- impleaded by the fame Name, yet their Liberties remain good to them.
Chamber by per Portington, quod fuit concefTum ; and by him the Grant is good
Portington, without Allowance ^ But per Pafton and June, the Grant is not good
intheAb- without (hewing Allowance. Br. Patents, pi. 27. cites 14. H.
liartholo- ^- ^^•
mew's Cafe
that the Sheriffs fliall hold the Liberties which were given to the Bailiffs, and cites 21 E. 4. 55. t!ie
Cafe
C o rp o ra dons. 285
Cafd ot 'Norvvich,in which it was held, that all Grants made Inhabitantibus ac Probis HominibusautCio
vibus fhall be eijoy'd by the Corporation of the fame Place, when tliey are aher wauls incorporate i
by the name of the Mayor and Commonalty, orotherwilej And ciedaUo D. 279. [b. pi. 10 Mich.] 10
& II EUt.. where thofc of Yoric prefcrib'd as Mayor, Bayliffs, and Citir.^ns to take and feife as
forfeited Goods there foreign bonj^ht, and foreign fold till i R. 2 at which Time they were in-
corporated by the Name of Mayor, Sheriffs and Citizens, and then they claim'd this Cuftom as
_^layor. Bailiffs, and Citi/.ens, and held good; And the whole Court and Coke Attorney agreed, that
in the laft Name of Corporation all fhall be enjoy 'd, which was gained by Prcfcription or Grant iti
the precedent Name.
2. The Corporation of the BailiiTs and Commonalty of Dale has By the AI-
Land and Franchifes; the King changes their Ncime^ and they are in- $f ^^"°" °''
corporated by the Name of the Mayor, Baylifts, and Commonalty of ^^„^'^''f q";,.
Dale ; The Land and the Franehiles which they had, remain with poration
this new Corporation, for the new Patent otlncorporation recites their does not ^/e
former Names, and changes it as above; and this new Corporation con- '" P''""^'-
tinues compofed of the fame Perfons and Place, which conftituted the-^"' Lmte^-^*
old one. Jenk. 99. pi. 94. rel's Cafe.
Saund.
544. in Cafe of Mel lor V. Spateman. Per Tirrel J. Can. 118. cites 5 Rep. S2. Sneliing's Cafe.
Agreed per Cur. Mo 581. — Raym 459. — Nor does it iUtermhie an Jmmity granted before the
Change of the Name. 2 And. 107 in Ca(e of Bifliop of Rochefter v. Dean and Chapter of Ro-
chefter.
♦ S. P and fo of the Method of the governing Pait, yet their Power to remove^ and other Franchifc
which they had Time out of Mind &c. do continue. Vent. 555. Haddock's- Cife. It wasa-
greed, that where a Corporation is by Name of Commonalty, and after iiy another Grant they have Bailiffs,
yet by xbis Change ihcy jl all not he di/charged of Covenants, Jnniiittej Szc. to which they were bound
before, and by the lame Reafon it feems that they pall retain the Lands and PoJfeJJIons which they had
before. Br. Corporations, pi. 5. cites 2. H 6. 9.
3. If a Patent of certain Lands are made to J. S. and J; S is af-
terwards confirmed by the Biihop by the name of T. S. notwithltand-
ing this Change of his Name the Land remains with T. S. But it after
the Confirmation, a Patent had been made to J. S. it had been void ; for
Confirmation by the Bifhop is as 2d Baptifm, and changes the Name j
So in the principal Cafe, if after a new Corporation a Patent had beea
made to them by the Name of their old Corporation ; fuch Patent had
been void. Every one is bound to know his own Name, and not the
Name of another. Jenk. 100. pi. 94.
4. A Prior and Covent had been of ancient Time ; the King after
Time of Memory, by the Licence of the Pope and the Ordinary, had
tranjlated the Priory into a Deanry and Chapter of Men feciilar^ and
granted that they Ihould be impleaded, and might implead by fuch
Name &c. It was held, that fuch new Corporation might fae for the An-
ttaity which the Prior and his Covent had by Prefcription from Time &c.
Thel. Dig. 20. Lib. i. cap. 22. S. 23. cites 39 H. 6. 13, 14. and
fays fee 50 E. 3. 27.
5 . It a Man recovers Againji a Vicar an Annuity^ and before Execution
the Vicarage is united to the Parfonage, yet the Plaintiff fhall have Execu-
tion againjt the Parfon. Br. Corporations, pi. 61. cites 20 E. 4. 6.
6 It was held by Brian, that if the £.?;/;/> and Commonalty of Lon-
don had granted an Annuity, and after they had had Mayor and Sheriffs
by Grant of the King, the Grantee might have Affion againji them by
their ne-w Name. Thel, Dig. 20. Lib. i. cap. 22. S. 24. cites Trin.
20 E, 4. 6. and fays See 21 E. 4. 59 the faying of Choke.
7. But it is a Doubt in fuch Cafe, how a Man ought tofue Scire Facias
againft the new Corporation out of a Recovery had againji- the old Corpora^
tion^ as appears 2 H. 6. 9. in the Cafe of the Commonalty of Shrewf-
bury. Thel. Dig. 20. Lib. i. cap. 22. S. 24.
8. Where the Bailiffs of L. grant an Annuity to me, and after are made
Mayor and Sheriff's, I may have A6lion of this againft the new Corpora-
tion. Br. Corporations, pi. 61. cites 20 Ed. 4. 6.
9. If a Prior be bound in an OLligation, and the King alters the
Corporation, and makes him an Abbot, yet the firfl fuitihall remain.
Br. Abbe, pi. 13, cites, 3 H n- n. and 5 H. 7. 24. Per Brian.
4 D lo Ic
2 86 Corporations.
10. Ic was adjudg'd, where one Corporation is duly united and anntyi-
edi to another Coi^ovxnon, that ^^e Corporation to which the Union is
m2.<\e. Ihall have Aif ion upon Caufe of Aftion accrued o/'rt Thing ivhich
•was of ths Poffeffion or Right of the other Corporation. Thel. Dig. 20.
Lib. I. cap. 22. S. 27. cites 11 H. 7. 8. & z6. And that fo agrees
Trin. 50 £. 3. 27.
11. If a Corporation grants the Office of Town Clerk, or Recor-
der, and after fitrrenders their Patent^ and takes a new one by a new
Name, all the Offices are determin'd. Hutt. 87. Hill. 2 Car. in Sir
Charles Howard's Cafe.
12. Debt was due to an old Corporation, and they were incorpora-
ted by a new Name and brought Aftion in their new Name, and reco-
ver'd. 3 Lev. 237. Mich, i Jac. 2. C. B. Mayor Cafe of Scar-
borough V. Butler.
Ld. Raym. 15. Where a Corporation takes a new Charter concerning antienc
Rep. ?i. Liberties, they may ufe it either by way of Grant or of Confirmation •
s'Rper Per Holt Ch f. and Eyre J. Cumb. 316.. Hiil. 6 VY. 3. B. R. in
Holt Ch. J. Cafe of the King v. Larwood.
and G. Eyre.
J^ The new Charter does not OTec.^e or extinguifh any of the ancient Prhikgrs. Raym.
4;9. Parch. 55 Car. 2 B, R. Haddock's Cafe. Vent. 555. S. C. And if it be only as
a Confirmation, the antient Cuftoms, before the new Charter, may he pleaded to have been limi out
tj Mind. SeeCarth. 228. Vaughan v. Lewis.
14. If a Corporation rcfufes a new Charter ., it is then void j But when
they accept, and put it in Execution, then it is good ; Per Holt Ch.
J. Cumb. 316. Hill. 6 W. 3. B. R. in Cafe of the King v. Lar-
wood.
S. P. ina 15. Plaintiff brought Cafe for a falfe Return to a Mandamus, com-
Q."" y^fl" manding him to fwear Harris to be Mayor of Dartmouth, and a pe-
"r^Cur ac- reiTiptory Mandamus moved for. It was refolved by the Court, that if
cordingiy. there be an old Charter furrendered^ but Surrender not enrolled^ and a new
12 Mod. Charter in Confideration ot the Surrender granted, that the fecond Cba-
25V^tich- ^^j. jg void, becaufe they aft under a void Charter; But otherwife if ic
Caf^of'Pi-" ^^ thefame Members in the old Charter, becaufe then they a6l by their,
per V. Den- firft Charter, which is Itill good. So, if in the firlf Cale, they had
nis. given a Bond, and put the Seal of the new Corporation to it, it would
be void, as was adjudged in the Cafe ot IStltlj aUD I©dl0 i But if the
Members of the old Charter had gone to Kieti ion, and lome by Colour
of the new Charter had voted with them againll their Will, there a
Choice by Majority of the old Charter, with fome mention'd in the
new, is good. 12 Mod. 247. Mich. 10 W. 3. Bully v. Palmer.
16. M^here ihofe that were Members tinder an old Charter happen to
be the only aSiing Perfons in a Matter relating to the Corporation, they
Ihall be deem'd to a£i by Virtue of the ancient and true Right, but it com-
mix'd with others that were only Members under the new Charter tho'
the old Members were the Majority, yet then mull be taken to aft by
Virtue of the new Charter, and then what they did was void, i Salk.-
191. pi. I. Trin. 11 W. 3. B. R. Refulv'd in Cafe of Butler v. Palmer.
17. Where the new Charter alters the Conjiittttion of the Corporation,
and new models it, there they pall lofe their old Name i otherwife^ if
the ConflitutioH as to all the integral Parts of It remains the fame, tho" the
naw Charter gives them a new Name, the old one remains; for the Purpole
if the Mayor be added, or a Mayor and Mailers are made Mayor and
Aldermen, or an Abbot or Covent, a Dean and Chapter, there they
lofe their old Name, becaufe new integral Parts of the Corporation are
added i But if the Inhabitants of G. were incorporated by the Name of
Bailiffs, Burgeffes, and Commonalty of G. and then a new Charter is
granted to them, that they Ihull be called by the Name of Bailiiis, Bur-
geifes,
I
Corporations. 287
gefles, and Gommonaky of G. yet they may ufe the firlt Name, be-
caule the Town is the fame, and the old Conltitution remains j Per
Holt Ch. J. 2 Ld. Raym. Rep. 1239. Hill. 4 Ann. in Cafe of the
Queen v. Ipfwich Baililis &c.
(I. 4) New Charter. Pleadings.
I, T N Writ of Covenant the Cafe was, that the Commonalty of S.
\_ made Compofition with the Abbot of W. and alter they by another
Grant had Bailiffs, and by the bell Opinion now the Suit Ihall be againft
the Bailiffs and Commonalty^ and not again/} the Commonalty only according
to their Spcci.ilty, tor b]> Matter Ex poji faifo a Man may vary from his
Specialty. Br. Variance, pi. i. cites 2 H. 6. 9.
2. A Prior and bis Prcdcceffors had been fetfed of an Annuity 'time otit
of Mind, and by Licence uj the King, the Pope, and the Ordinary, tranf-
iated It into Dtan and Chapter, and the T)ean and Chapter brought An-
nuity, and prefcrib'd in him and his Pndeccffors, and did not fay Deans of
the fame Place ; the Defendant Jheia'd the tranjlation within time of Me-
mory, Abfqiie hoc that the Dean and Chapter and his Predeceffors Deans
there have been feifed Modo and Forma &c. and ajter the fpecial Matter
was enter d m th. Roll with the traverfe, except thoje Words, then Dean
Sec. \_which] were omitted by Award of the Court i And per Prifot, the
Defendant may traverfe the Prefer iption generally, and give the fpecial Mat-
ter in Evidence, and demur upon the tranjlation given in Evidence by the
Plaintiff, or plead the fpecial Matter by Efioppel by the Record of the Tranf-
I at ion, and demur in Law upon the other, upon this Matter, and fo fee
that it is doubted here, if they may prefcribs in this Form by the Seifin
of the Prior &c. Br. Prefcription, pi 42. cites 39 H. 6. 13. But
fee thereof 22 E. 4. 43, 44. and the Form of that Prefcription 7 E. 4. 32.
& 20 E. 4. 6. Ibid.
3. Where a Prior is made Abbot, and the Corporation chang'd from a
Prior into an Abbot, it was touch'd, that it fuch ALbot will prefcribe in
Right of tl3€ Houfe, he ought to y/7£a; that the Prior and his Predeceffors
time out of Mind &c. and that after he was profefs'd an Abbot, and that
after the Abbot and his SuccelTors &c. have been feifed &c. Br. Pre-
jfcription, pi. 70. cites 7 E. 4. 32.
(K) ff^hat Things a Corporation may do mthout
Deed,
I. A Corporation aggregate cannot without Deed command their Cro. E. 815.
X\. Bailiff to enter into certain Lands of their Leafe for Years for Pj^-. ^" ^-f"-
a Condition broke ; foc fucb Commann m\)om Dcen ijs ijoiu* ^* !_!!!%%
43 €1 B, J^, UtWm Dumper and Sims aJJJUQgCD» ' 1 19. b. s. d
but I do not
obfcrre S. P. Vent. 48. Arg. cites S. C.
2. Covenant
28 J
Br. Covenant
pi. 1 5. cites
S C.
* Contra if
it be mads
by another
particular
Per/on Br.
Corporations
pi, 74. cites
4S. E. 5. 17.
Corporations.
Arg. Mod.
t8. cites 12
H.4.17.
Jenk. 151.
pi. 6S. cites
6.C.
2. Covenant was brought by the Mayor and Commonalty of N. againfi
the Mayor and Cotnmonalty cj D. and counted^ that the Defendants by
their Deed had covenanted that the Plaifitiff's jhotild be quit of A'larage^
Pontage, Cultom, and loll in D. of all thofs in N. and that they of N.
had taken I'oll by certain of their Burgeffes of certain of the Bitrgcffes of N.
wrongfully &c. And there adjudg'd, that the 'Taking of the * Common
Servant is the Taking of the Corporation^ and fo the Covenant broken j
Quod nota; and it is not mention'd their ot" the Servant was Servant
by Specialty under the Common Seal of the Corporation, or not. Br.
Corporations, pi. 14. cites 48 E. 3. 17.
3. Mayor and Commonalty cannot diffeife another tinlefs the Ufe of
themfelves ; contra it feems if one enters lor them by Authority in Writ-
ing under their Common Seal, where their Entry is not lawful. Br.
Corporations, pi. 24. cites 8 H. 6. i. 14.
4. They cannot Licence one to take Trees without Deed. Afg. Vent.
48. cites 9 E. 4, 39.
5. Per Littleton, the Opinion of all the Juftices of both Benches isj
that JJpgnmcnt of jinditors by Corporations is good without Deed. Br.
Corporations, pi. 56. cites 12 E. 4. 9. 10.
6. So of Jilfiifcatton by their Command. Br. Corporations, pi. <(i.
cites 12 E. 4. 9. 10
7. So of Command of a Covent, in the Time of Vacation^ to cut their
Trees y -dnd other Necejfaries. Br. Corporations, pi. 56. cites 12 E. 4.
9. 10.
S. Leafe oi Land by an Abbot for Years is not void by his Death, but
voidable only, becaufe it may be leafed -xithout Deed, and by Receipt of
the Rent by the SticccJJor the Leafe is good i But '\i Abbot grants aVilleiu,
or Rent^ or the like, which paffes not by Deed, and dies, there hy Death
of the Jbbot the Grant is void. Br. Leafes pi. 41. cites 21 E. 4,
5, 6.
9. Trefpafs by the Matter and Chaplains ot B. of a Houfe and Clofe
broken in London ; the Defendant pleaded Licence of the Parties to come
into the Houfe to talk with them, and Pigot demurred in Law, becaufe
the Licence was by Parol, and not pleaded by Deed, and therefore ill;
for a Licence by a Corporation &c. Ihali be by Writing. Br. Licences
&c. pi. 16. cites 21 E. 4. 15. 19.
10. Dean and Chapter mny retain and aj^gn Bailiff , Receiver, or other
Servant, without Writing, per Townfend Jullice; but Brian Ch. J.
contra, and that he cannot be Servant without Writing, nor demand
his Salary without Writing. Br. Corporation, pi. 47. cites 4 H.
7. 6.
11. But they may charge a Man for his Occupation without Deed, as
Guardian in Socage, Bailiff of the King, and Receiver of his own
Head &c. per Brian Ch. J. and he was Frecife, and Adjornatur. Br,
Ibid.
12. A Corporation cannot be aiding to a Trefpafs, nor give Warrant to
do a Trefpafs without Writing ; Quod nota. Br. Corporations, pi. 48.
cites 4 H. 7. 13.
13. K Servant may jtijlify hy Command of a Body Politick without
having Deed of the Commandment, per Townfend j but Brian contra^
and that they can do nothing without Writing. Br. Corporations^pl. 49.
cites 4H. 7. 17.
Arf^. MoJ. 14. They cannot make themfelves Diffeifors by their Aflent without
iS. cites 9 E. Deed. Vent. 48. Arg. cites 7 H. 7. 9.
4. 59. —Br.
Corporation, 24. :;4. 14 H 7. I. 7H. 7. 9. S. P. per Hufley, and that they cannot erter ;>;;« Land
without Commandment given by Deed. Br. Corporations, pi. 5c. cites 7 H. 7.9.
IS- In
Corporations. 289
15. In^refpafs the Defendant faid, thuc ic vv.is the Frankcenemenc ot'
the Prclident and Scholars ot C. and he as Servant to chem, and by their
Command enter d ^z. and per Keeble, he cannot be retahied with a
Corporation without Specialty, nor make a Feojf'meut without Specialty.
Br. Corporations, pi. 50. cites 7 H 7. 9.
16. But ot fetit Things there needs no Writing, as to light a Candle^ But for Or -
make Hay, or Fire, nor to put Ecajis out of his Land, per Wood ; Oxen- dinary Em-
bridge contra, lor thofe Things belong to a Servant to do without ^'''^"l''"".^
Command, but Kntry &c. ought to be by Deed i And Fairfax accord- a'corporal"
ingly of the petit Things, but that Corporation cannot have a Servant tion may ap-
but by Deed ; And Tremail agreed with Wood of the petit Things, point a Ser-
but feveral contra of the petit Things aforefaid, by Reaton of the Ulage, vant wi:h-
and ot the great Trouble which Ihali be to the contraryj but not by the ""a Go;^'
Law, theielore quare. Br. Ibid. Butkr &c.
Mod 18.
Arj; agreed. . Br. Corporations, pi .59. cites 4. H. 7. 17. per Townfend Vent. 47. Arg. cites
18 £. 4. S. Br. Corporation 59. — - — -5 Wins's Ktp. 413. Arg. cites Pi. C. 91. b. & 2 Saund.
JOJ.
17. One cannot appear /// -'^/« as Bailiff to a Corporation without
Deed. Vent. 48. Arg. cites 12 H. 7 27.
18. Cvmmand of the Mayor to enter into Land {or the Corporation is good
without Writing, contra of Command of the Commonalty^ Chapter 6zc.
contra it feems of ihe Cvmmand of the Alayur and Comvionalty. Br Corpor-
ations, pi. 96. cites 16 H. 7. 2.
19. Corporation cannot prefent a Clerk unlefs by Writing under the
Common Seal. Br. Corporation;?, pi. 83. cites 13 H. 8 12.
20. But they may make Attornty in Court of Record without other
Writing than the Record ; lor Record is a llrong W^riting. Br. Corpora-
tions, pi. 83. cites 13 H. 8. 12.
21. So to certify their Mayor in the Exchequer ; for this is enter'd of
Record, and io is the Ufe for London at this Day. Br. Corporations,
pi. 83. cites 13 H. 8. 12.
22. A Corporation cannot do a Tort but by their \\''riting under their
Common Seal i Per Fitzjames Jullice. Br. Corporation, pi. 34. cites
14 H. 8. 2. 29.
23. All Acls which a Corporation does ftall be by their Name of Cor-
poration, and by Writing, and otherwifeill ; and yet by two Jullices
they may Prefent, and the Pleading is good, without faying that the
Prefentment was by Writing, for the Lavv^ implies it i But two others
contra. Br. Corporations, pi. 34. cites 14. H. S. 2. 29.
24. The Eledtou of Dean, Mafier^ Scc. and the making of their Attor~
ney, which are of Record, are good without their Wridng under Com-
mon Seal; but in Feotirnent to the Dean and Chapter they cannot take
hut by Letter of Attorney under Seal ; per Brook Juftice. Br. Corporations,
pi. 34. cites 14 H. 8. 2. 29.
25. Note, per Cur. that he who dtflrains as Bailiff of a Corporation^
and is not Bailiff, may make Conufance &c. if they agree to it, and
good without Deed ; And the Cafe was, that one of the Corporatioa
<iiftrain'd in Right of the Corporation, and had not their Deed; Nota.
Br. Corporation, pi. 2. cites 26 H. 8. iS.
26. Though the Law is, that a Bailiff' may juflify in Trefpafs as Bailiif to
a Corportion without a Deed, yet it is not like to a Bailiil in an AJife ;
and it was faid, that a Bailiff ot a Manor Ihall not have Dtbt for his Sa-
lary againji a Corporation without a Deed. Plowd. 91. b. Trin. 3 Mar.
Arg. in Atfife ot Frelli-Force brought in London by Pannel v. Moore.
27. If the Sheriif makes his Warrant to a Corporation who have return
of Writs, to arrefi a Fcrlbn, they may make a Bailiif vyichoutWricing by
4 E Parol
293
Corporations.
Parol only. Agreed by all the Jultices in B. R. Mo. 552. pi. 744. Hill.
33. Eliz.. Vavilbr's Cafe.
And To a 28. A. feiled otL^ndgra>!ted 40 /, Rent to a College. A. fealed his Part
Stranger may of^he Indenture, and delivered it to one J. S. to the Ufe of the Mailer
and Fellows, and lor him to deliver it accordingly, but there was no
Deed to Ihew their Receipt of it, and then they feal'd the other Part,
but made tio Attorney to deliver it i Adjudged good without a Letter of
Attorney, for their fealing the Counter- Part is a in'^cie.wtAgrcaunn to the
Grant. Ow. 143. Trin. 40 Eliz. Goodrick v. Cooper.
29. li'i. Reverfion is granted to 2. Corporation by Deed, though they
cannot accept of this but by Attorney, yet if they bring W'alte it is a
fufficient Agreement to veil it in them ; Per Walmeny. Ow. 143. Trin.
40 Eliz,. C. S>. in the Cafe of Goodrick v. Cooper.
30. A Corporation aggregate of many cannot jnake a Leafe for Years
without Deed, in refpeft of the Quality of the Incorporation, but the
Lellee may alfign it over without Deed. Co. Lite. 85. a.
31. A Man may enfeoff" nn Abbot, a Bilhop, a Parfon &c. or any other
fole Body Politick, by heed, or without Yy^^A, in Free-Alms ; but it Lands
be given to a Dean and Chapter, or any other Corporation aggregate of
many, there the Gift mull be by Deed. Co. Litt 94. b.
32. Whsre a. Corporation has an FJlate pur auter Fie, \( they attorn to
the Reverjtoner, it mull be by Deed i For though the Grantee does noc
receive a
Deed to their
hfe without
Letter of
Attorney.
Cro. E. S62.
S. G.
Cio. E S62.
pi. 59. S.C.
adjudged.
s c
AvR.
cited
-6"m h^ claim in by thofe that attorn, and that an Attornment is no more than
4
1712. in
Dome Proc.
S. C. cited
Arg. 2.
Saund, 505.
Conient, yet in Pleading the Deed of Attornment ought to belhewnj
For in fuch Cafe a Deed is requilite Ex inltitutione Legis j But when
a Deed is requilite Ex Provilione Hominis, there the Provilion of Man
lliall not change the Judgment of Law in fuch Cafe. 6 Rep. 38. b.
Pafch. 3 Jac. C. B. in Bellamy's Cafe.
33.Church-Wardensvvere incorporated by A£l of Parliament, and after-
wards rh^^iieen denufed aRe£iory to them for 2iirears,and afterivards by
LettersPatents, reciting thejirfi Grant, and that the Church- VVardens Mo-
do habentes & ad prsefens poffidentes had furrendercd all their Eltate for
Years &c. flie in Conjideration of the fliid Surrender, and lor a Fine of
20 /. &c. demifed the fiid Re£lory to them for 50 Tears. It was ad-
judged, that there need not be any aftual Surrender of the firil Leafe,
becaufe the VV^ords in the lecond Leafe, (uz..) Modo habentes & ad
prsefens poifidentes import that they were then pollelied of the iirll
Leafe, and their Acceptance of the new Leafe for 50 \''ears "was, in Judg-
ment ef Law, a Surrender of the Jirji Leafe for zi Tears, and Ihall precede
it, and that a Corporation may make a Surrender of their lerm by an A if
in Law, without Writing, though not an exprefs Surrender without IFrit-
ing. And the Reporter adds, that he had feen feveral other Letters
Patents made on the like Conlideration of a Surrender, with the Words
(Modo habens & foffidens) in none of which there was ever any aiSlual
Surrender made. 10 Rep. 66. b. Trin. 11 Jac. in Scacc. Church-VV'ar-
dens of St. Saviour's Cafe.
34. -trefpafs for carrying away divers Loads of Wheat ; The Defendant
jujiijied under the Dean and Chapter of N. that they were feifed m Fee of
Recfory of H. wherein the [aid Corn was growing, and fever' d from the 9
Parts, which he took by their Command. The Plaintilf replies, that
the Dean &c. were feifed, and demifed the Retlory toG. tor 99 Years,
which by mean Alfignments came to the Plaintitl' The Defendant re-
join'd, that one of the Mefne Allignces by Feotiment convey'd the faid
Re£lory to one W. W. whereupon the Dean &c. entred into the faid
Reftory as a Forfeiture, and that the Corn being fever'd and fet out
for Tithes, he took them by Command of the faid Dean &c. Exception
was taken, becaufe he pleaded an Entry alter the Forfeiture, and did not
Jhcw a Deed of Command to enter, Sed non allocatur ; For it is not plead'
d
Corporations. 2 9 a
ed that any entrcd by their Command after the Forfeiture^ but that the Dean
^c. themfehes e/itred, which Ihall be intended a fufficienc Entry, and
all necelFary Circumllances iLall be implied ; Beiides, the Feoffment is
not only a Forfeiture, but a DiJJei/in^ being by -Tenant for 2ears, and
then every one may enter on their Behalf where they have a Right of En-
try. Cro. Car. 169, 17a. pi. 16. Mich. 5 Car. B. R. Edgar v. Sor-
reil.
35. In Trefpafs for taking away a Ship ^ the Deiendant/'//?//ff,Y r/W^r A Corpora-
the Patent, whereby the Canary Company is incorporated, that none but fach "on agert-
and flic h (hotild trade thither, on Vatn of forfeiting their Ships and Goods ^"fi"'"'"'''
&c. and laid, that the Defendant did trade thither. Plaintift'deinurr'd,D"ed")^-
becaufc he did not (hew the Deed whereby the Company was authorized 10 pov^erany
leize the Coeds. Twilden thought they could not feiie without Deed,'^-'''''' Per/on
any more than they could enter lor Condition broken without Deed; but'-''-^^'^'^* ^'f'
adjornatur to be argued whether this was a Monopoly or not. ModJ^^ l-^lijj
18. pi. 48, Mich. 21 Car. 2. B. R. Horn v. Ivy. Sid. 441.
pl. 12. Hi)J.
21 & 22. Car. 2. B. R. Home v. Ivy. Vent. 4-. S. C. Curia advifare vult, but the Reporter
cites Sid 441. that Judgment was driven for the Plaintiff. 2 Keb. 56-. pl. 72. S. C. adjornatur.
— — Ibid 604. pi 55. S C & S. P. at^reed and Judgment for the Plaintiff. — S. C. cited ^ Wms's Rep.
424. Mich. 1 71 7 Avg and lays, that the Books are, that the Siiz.ing of Goods for the Ufe of a Cor-
poration is an cxtraoidinary, and not a Common Service; And fays, that this fliews that a Corpora-
tion can no mere give an Authority as to perfunal Things, than as to any real Eftate.
36. In Debt on a Leafefor Tithes, rendring 50 /. a Year, the Defen- Ler. 30*.
dant pleaded, that bejore any of the Rene incurr'd he ajign'd over the fiid "V *^-'^y^»
Le-.fe and i ithes, oj which the Plaintiff had Notice, and did receive the\^^-^^^^[^^
Rent before due from the JJJtgnee. It was inlilfed, that this Acceptance to this Point;
ihail not bind the Corporation, becaule they can do nothing but by but gave
Attorney or Bailiff made under their Common Seal, and cannot by J"''6'"^"l
themfeives iake Notice of this AiTignment. Twifden J. faid, that this t°if upona-"'
Point was refolv'd in Magdaien College's Cafe, 11 Rep. 79. a. to be a nother Point
void Acceptance. Adjornatur. Raym. 194, 195. Mich. 22 Car. 2.B. R. fortheln-
Windfo.r (Dean and Chapter) v. Cover [als. Cower.] fennbiluy.
98, 99. S. C. adjornatur. 2 Saund. 302. S. C. and Ibid. 30(J. fays, he thinks thatjudgment was
given upon that other Point, becaule they would not determine the Alatter in Law.
37. Comifance, as Bailiff of a Corporation, zvithont (hewing a Precept in S. C. cited
Writing, v/asadjudg'd good. 3 Lev. 107. Mich. 34 Car. 2. C, B. Manby Arg.3Wms*s
V. Long. Rep. 423.
38- In Ejeffment, the Plaintiff declared on a Demifc imde by a Cor-
poration, but did not fet forth that it was by Deed, or under the Seal of
the Corporation, and upon Not Ciuilty the Plaintiff had a Verdifl, and
Judgment, and this was alleged for Error ; But Judgment was affirm-
ed, tor Declarations in Eje£lment are grounded now on Fictions only,
fo that in fuch Cafe the Law is altered from what it was formerly.
Garth. 390. Mich. 8 VV. 3. B. R. Patrick v. Ball.
39. Where a Corporation has a Head (as a Mayor) he may command A Corpora-
a Thing tn Perfon ; but a Corporation aggregate, which has no Head, "°" ^gsre-
mull give their Authority under the Seal ot the Corporation. 2 Lutw. fX"™^^
1497. Hill. 12 W. 3. C, B. Randle v. Dean, cites i6 H. 7. 2. b. ' sJiUfft dif,
train with-
out Deed or Warrant, as well as a Qok or Butler ; for it neither veils nor diverts any fort of Intereft in
or out of the Corporation, i Salk. 191. cites it as fo held between Cary and Matthews in Cam. Scacc,
S. C cited Arg 3 Wms's Rep. 425. Mich, r7i7. in Domo ProcV
4,0. Though
292 Corporations.
•;SaJk.io3. ^_o. Though a Corporation cannot do an yJd in P«/^ without their
^- ^,. ^'^' Common Sea/, yet they may do no Aft upon Record, becauie they are
^°'" 'ti^rJod eftopped by the Record to fay it is not their ASt. 1 Salk. 192/pI. 4.
25. S. C. HilJ. I Ann.B. R. The Mayor of Thettbrd's Cafe.
but S. P.
does not appear.
41. A Corporation made n. Contra^ fur ItitiNg the Market at Bridport
in Dorfet, tho' not in Writing, being from Year to Year, and held to
be good. At Dorchefter Aliifes 1749. Coram King Ch. J.
r
(K. a) Of Executing Deeds by a Cor-
poration.
F Abbot and Covent make a Deed, and do not deliver it hut
by Attorney, this Attorney ought to have Letter of Attorney of them
to deliver it i Per Choke and Jenny. Br. Corporations, pi. 72. cites
9 E- 4- 39-
2. Corporation may make a Deed cut of their Hoiife, for all may come
out to another Place &c. but if it be dated tn the Chapter Houfe it can-
not be [delivered] in another Place, Er. Corpoiations, pi. 72. cites
9 Kd. 4. 39.
3, The Abbot and Covent may make a Deed in another County thatt
•where the Abbey is, and this by the belt Opinion of the Court. Br.
Lieu, pi. 63. cites 21 E. 4. 26.
zLe. 97, 4. Dean and Chapter »We « Ze<2/^, rendring Rents, and for Default
pl. 119. of Payment tore-enter. The Rent was not paid, whereupon they
^' ^'.d^'^i '"^'^^ ^ Leafe to the Plaintift^ and in their Chapter-Houfe put their Seal
by^°the"'' ^^ ^^5 ^"^ inade a Letter of Attorney to J. S. enter, and deliver the Deed
%vhole upon the Land. It was objected, that the 2d Leale not good, becaufe
Court. the Dean and Chapter let it in the Chapter-Houfe by fetting their Seal
r:^ ' ' to it, which made it a perfefil Deed, and {o there could be no other
Pafch. z6 Delivery ; and therelore t\\Q firjt Lejfee continuing in PoffeJ/ion, and they
Car. 2. BR. out of PofTelfion the Leafe was void, and the Delivery by the At-
Anon. and torney, it having a former Delivery, is void ; fed non allocatur i For
*^^'^ /°^^^f there is no other Means for a Corporation to make a Leale but this.
Fm- though' Cro. E. 197. pl. 3. Hill. 32 Eliz. B. R. Willis v. Jermin.
the putting - , t^ •
of a Seal of a Corporation aggregate to a Deed carries wuh it a Delivery, yet the Letter of Attor-
rey to deliver it upon the Land fliall fufpend the Operations of it till then.
5. If a Perfon pretending to he Mayor of a Corporation, puts the
Corporation Seal to a Deed, yet it is not by that the Deed ot the Cor-
poration i Per HoltCh. J. 12 Mod. 423. Mich, la W. 3.
(K. :,)
Corporations. 29^
(K. 3) What A6Mons or Remedy the SuccelTbr (hall
have for Things done in the Time of his Prede-
ceflor &c.
I. TF a DiJfcifiH be made to a Dean, or an erroneous Judgment, or falfe
X. Oatby and he dies, his Siicce(Jor pall nut ha've A[Js[e of Novel
Dijfeifin, bat a iVrit of Entry fur Diifeiftn in the ^iiibus, or a Writ of
Error^ or Attaint, and name him, becaule he was not Party to the
Judgment. D 86. b. pi. 97. Pafch. 7 E. 6. in the New Serjeant's Cafe.
Alias, Brillol (Dean and Chapter) v. Clerk.
2. But where the Dean is feifed in Common ivith the Chapter, that
tho' he dies, yet his Succejfor, and the Chapter together, Jh all have Affife
of Novel Dtjfetjin. or Error, or Attaint, without naming the Name of the
Dean in certain, becaufe the Dean does not die, but continues for
ever. Ibid.
3. An Abbot may have a.Wrh oi ^lod permittat of a Diffeijinmade
to his Predcceffor, and fliall make Mention of the Dilfeilin in hir Writ.
F. N. B 123 (H) And fo may a Parfon. F. N. B, 123. (L)
4. When a Dean, Bifhop, Prebendary, Abbot^ Prior, Malter of an
Holpital, alien the Lands which they have in Right of their Houfe &c.
without the Afflnt &CC. the Succcllbr may have a IV-rit De fine affenfa
CapituU, and it may be in the Per, Cui or Pojl. F. N. B. 194 (1) a
Prebendary may have a Juris Vtrum. F. N. B. 194. (M)
5. A Mafter of an Hofpitai may have Trepafs for Goods /^^^a And fo of an
away in the I'me of his Predeceffors, F. N. B. 89. (G.) pSribid
(H) — Buta
Replevin will
lie in fuch a Cafe by the Common Laiv, but not Trefpafs till the Statute of Marlebridge. Br. Re-
plegiare, pi. 2. cites 9 H. 6. 25.
6. If a Man dijjeifes a Corporation, and levies a Fine, and 5 Tears
pafs, the Statute of the 4 H. 7. doth extend to them, if they are fuch
Corporations as have of themfelves an abfolute Eftate and Authority,
as Mayor and Commonalty, Deans and Chapters, Colleges, and fuch like^
for as they have a Power to take Lands and Tenements, fo they oughc
to have Care to detend them, and they and their Succellbrs ought to
make their Entry and their Claims to avoid i^ ines, as other Perfons and
their Heirs ought to do ; But if a Bifloop, Dean, Parfon, Vicar, or Pre-
lendary, or fuch like, do not make their Entry or Claim, or bring their
Aftions to avoid the Fine within 5 Years, but are remifs through all
this Time, yet their Succeffors Jhall not be bound for ever, in afmuch as
they have no abfolute Eltate ori^.uthority in their Pofleffions; for the
Bilfiop and Dean, cannot do Thmgs to bind their Poflelfions without
having the A flent of the Dean, and Chapter, and the Parfon, Vicar,
and others &c. without the Alfent of the Patorn and Ordinary, who
have an Interelt and Part in the jMatter, and though every' Succflbr
Ihall have 5 Years to make his Claim or Entry, yet everyone -whofuffers
the 5 Tears to pafs Jhall be bound during his ^tme, but though he is
bound, ^/j Succeffor [hall have other $ Tears to make his Entry or Claim,
cr bring hisAiiion. Plow. Com. 538. a. b. Trin 20 Eiiz. Crofc v. Howell.
4 F (L)
^2g7 Corporations.
(L) /Ffjat Things fhall go m Suvcejpo:.
TT 1 T-
where there I. "Q ^BUlatl)?, no Chattel H^llt ffO til ©UCCEffiOn \\\ Caff of a foie
is a Cudom |\ Corporation, CO. Lit* 46. U, COhe 4. jf UiUlOQU 6j.
for ir 5 As 111 "^ "^
the Cafe of the Chamberlain of London, who is made by Cuftom, and the fam; Cudom which ha*
created him, and made him a Corporation in Succeffion as to the Ipecia! Purpole concerning Orphan-
age has enabled the SaccelTor to take fuch Obligations, Recognisances &c. as arc made to the 1' rede -
ceflor, and the Executors &c. of the Chamberlain ought not to intermeddle with them, they being by
the faid Cud om taken in his Corporate, and not in his private Capacity; But Bifhops, Parfons &c.
have no fuch Cuftom to take Chatties in their Politick or Corporate Capacity. 4 Rep. 65 a. Hill.
53 Elix. Fulwood's Cafe. Cro. E (464. bis) pi. 16. Pafch 58 Eliz B R. Bird v. Wilford the
S. P.' as to the Chamberlain of London held accordingly* by Gawdy and Fenner, (.Popham and Clench
abfentibus) and Judgment Nifi, which was afterwards affirm'd, and at the End of the Cafe is a Note,
that in Mich 49 & 44 Elix. B. R. ZUlilforD 1). igUttOU, Debt was brought on fuch a Recognizance
inade to the Predeceflbr, alleging the Cuftom of London for the Chamberlain to take Obligations or
Recognizance to them and their Succeffors for Orphans Portions; and after Judgment for the Plain-
tiff, Error was brought thereof in the Excheqtjer-Chamber, where the Judgment was affirrn'd.-
A Succeffion of Chattks in one Perfbn will not be prefum'd except in Cnfe of tin Abbot, or Prior, or the
like Corporations known in Law to reft in one Perfon, as well for Chatties as Inheritances ; For
otherwife Bifliops, Deans, Parfons, Vicars 8cc. cannot take Obligation to them and their Succeffors
but they will go to their Executors. Hob. 64. in pi. 65.
HisExecu- z. ^if it Leafe for Years 6C UtaHC to a Biiliop and his Succelfors, JJIttl
r'^'n.n tije 'Bifl)op Qie0, tljisfljall notcoto W S'ucccffatg, Uut to t)is
"erDrottCo.^ifxcaitar.g. CO. lit. 46. U.
Litt. 46. b.
3- 3lf fl Mailer of an Houle that hath a Covent and Common Seal re-
covers in an Annuity, JinO flftCC Arrearages incur, atlD aftCC \)Z tJtES,
tljc @)ticc£{ror=^after fl)aU ija^e tlje acrcaragc^, anti not tljc €kc-
tutor oftlje IpteDccefTot, becaufc tlje i^rcQeceffoc coulD not \mU a
'©cftament. 19 ?^» 6. 44. ij. anjiirigcn.
See tit. Sue- 4. But if a Parlon recovers an Annuity, and after Arrearasies incur,
^f°'' ^J) anti after tt)e Parfon dies, tljc C;cecutor of tije Parfon njati Ijaije tlje
NotesTerr atrcaraijcsJ, anti not tljc S)UCC£fforj uccaufe !)e couio make a Cef=
tament* 19 i)* 6. 44. ij.
Cro. J. 159- 5. <^)Z Patent confirmed by A£t of Parliament 10, that Offenders
^' '3-S- C. jn praftUing Phyfick in London without Admilfion b-*- the College of
^cordingiv Phyiicians, ihaii forfeit 5 1. fot cljeru ^OHtl), ttnum'Dimitiiunf Ec=
Noy. gt $ altecum Dtuiitiiitm nifto prefinentt ano CaficiTio , tf t{)c Preii-
iii.S.C.ad-dentOf tlje College recovers in Debt agaiua an ©ffCnOCr, and dies, t!)E
judg'dac- Succeflbr Ihall have a- Scire Facias to e^CCUte it, anD nOC tf)C CceClb
per tof Cur. tot, fot tljc preneccITor rccoijcrcu it as Que to \n\n anD tOc Collrgc.
— Brownl. p. 5 Jja. lo* K* between Atkim and Gardiner, aDjllOgCl?*
95. S. C. but
not adjudged.
Br. Chatties, 6. Tht Ornaments of the Chdpel of n preceding Bipcp belong to the
y'-^- ^"^^ fucceeding BilLop, tho' other Chatties in Cafe of a foIe Corpor.ition do
Br Scire belong to the Executors of the Party deceafed, and fhall not go in
Facias, pi. SucceHion 5 Per Coke Ch. J. 12 Rep. 105. cites 21 E. 4. 48.
106 cites
;>.C.
Bat Ibid. 7. A Man was ohliged to a Dean in 20 /. folvend' eidem IDtcano ^ Sue-
M-T' '^''^ cejfbribas fnts ■■, the Dean died; Shelley held tliat the Succelior Ihall have
42'eh^Vi '^» ^"'^ the Dean has a Corporation to him and his Succellbrs, as well
8. .-.!)' Ob!;- as to him and his Heirs or Executors j So cf a Bilhop, Aboor, or Prior,
11
Corporations. , 29^
if the Sjcceflbrs are named in the Obligacion his Executors Ihali not ^'ation was
have it ; Contra of a Afayoi-y or the Guardians cf a Churchy ami their "i""!^ to the
Succdibrsi Baldwin held, the Payment to the Dean and Succellbrs 2^*11°^^°^
was void, becaufe the Obligation was x.o the Dean only. D. 48. a. pi. Wellsand
15. Trio. 32 H. 8. Anon. hisSuccel-
fors, and ad-
judged, that the Succcflbrs cannot IJave Aftion bit Debt thereupon ; But they agreed, that the Suc-
ceffor mif^ht have Covenaur upon a Leaic for Years, which is in the Realty. The Doubt was, be-
caufe atn r the Death of (lich Perlon vviio !■> a Corporarioa <iagl=, the Ooligation is due to no Body,
and lb lu'pcndcd, Sc Aciio Perfbiialis once fulpendcd moritur &c. But Nulla Regula, quia
tallir.
8. When a B//?/op?«^^fj an EJtate^ Leafi^ Grant of a Rent-Charge^
Warranty^ or any other jitl •which may tend to the Diminution cf the Re-
venues ol the Bi/bop &c. which ihouid maintain the Succeflbr, the De-
privation or T'ra.i/Iation of the Bilhop is ail one with his Death ; But
where the Bifliop is Patron and Ordinary, and confirmeth a Leafe made by
the Parfon ■■without the Deaf; and Chapter, and atcer the Parfon dies, and
the Bi/hcp collates another, and then is tranjlated, yet his Confirmation
remains good, for the Revenues that are to maintain the Succellbr are
not thereby diminiflied i The like Diveriity holds in Cale of Re/igna-
tion. Co. Litt. 329. a.
9. The ancient fezveis of the Crown are Heir Looms, and llv.ill de- The King
fcend to the next Succeffor, and are not devifable by Teltament. Co. """"'l.'''''
, . _ , ' ■' pole of them
Lltt. 18. b. byTefta-
ment, but he
biay give thcfn by Letters Patents; Per Berkeley and Jones. Cro. C. 544. pi. S. Hill. 9 Car.
B.R
(M) Eledion and Amotion of Officers^ Members &c.
At what Time ; And How.
^' IV, /f E'^os'^tidum, that at the Parliament held by Adjournment H.
LVX 38- H. 8. it was admitted by Writ of the King, and fo ac-
cepted, that if one Btirgefs he made A-Jajot of a Vill^ that has judicial
Jiirifdiciion^ and another is Si€k, that thofe are fufficient Cuufes to eie6l
new ones, by which they did fo by Writ of the King out of Chan-
cery, comprehending this Matter which was admitted, and accepted in
Coirjmuni Domo Parliamenti. Br. Parliament, pi. 7. cites 38 H. 8.
2. Where a City, Borough, or Vili is incorporated by Charters,
fbme by one Name, and fome by another, and it is directed in the
Charter that the Mayor, Bailiifs, Aldermen &c. ihall be chofen by
the Commonalty or Burgefles, there being in every Charter a Power
to make Laws, Ordinances, and Conftitutions for the better Govern-
ment of the Cities &;c. they ?May by their conmon Confent ordain that
the A'fayor or Bailiff's, or other Principal Officers, pall be chofen by a cer-
tain feletded Nitruber of the Principal of the Bargsjfvs, or oj the Commonal-
ty, and prtfcribe alfo bow fiich a fekfi Nianbcr /hall be chofen j And tho'
in fume Corporations fuch Conftitutions can't be known or found,
where the Ulage of electing hath been in a particular Number, yet it
fhall be prefumed that there were fuch anciently. 4 Rep. 77. b. 78.
Mich. 40 & 41 Eliz. The Cafe of Corporations.
^ 3. Upon a ^tio Warranto againft the Town of Liskardy in Car. zd's.
S'lwe, they furreiidred their Charter^ which v^■as not enrclled till King
James
^^6
Corporations.
was
you
we
James the zd, who in Conlideration of che Surrender, nanted a new
Charter to them. It was held per Cur. thiit the fecond Charcer being
in Conlideration of a void Surrender, was alfo Void and where by the
Charter furrendred none could be Mayor ^\i \\t were not a Capital Bur-
gefs, and one was made a Capital Burgels by the Charter of Kmg James,
and' after made Mayor according to the old Charter. Quelhon
Itarted, whether he" were a legal Mayor ? Holt and Cur. faid,
Ihouid fiiit have moved hiin Irom being a Capital Burgefs, lor if
find one in attual Pollellion of an Oftce, we Ihall intend him to be
rightful Officer till the contrary appears; As it Mere Laicus be prefented
&c. to a Benefice ;we fhall take him tor a Clerk till firlt Iteps be annul-
led. 12 Mod. 253. Mich. 10 \V. 3. Piper v. Dennis,
4. Note, by their Charter they are iinpoiioered to proceed to an EleRion
cnfiich Day; and per Holt and Turton, if they do not chufc on that
Day, they cannot doit the next Days for they muftpurfue their Patent,
and that gives Power only for one Day, andtho' the Mayor be lick, lb
as he cannot officiate that Day, there is no Remedy; and Turcon laid,
that in fuch a Cafe they were forced to Petition^ in Cafe of Corporation
of Norwich ; and they faid, they had known a .:^iio Warranto go a-
gainft the Corporation /or chujing at another Day ; Em >\'right, then
King's Serjeant, and fince Lord Keeper, was llrong againit this Opini-
on. 12 Mod. 30S. Mich. II W. 3. in Cafe of The King v. Borough of
Abingdoti.
5. At an Election of Mayor an unqualify d Perfon has the mofi Votes ;
afterwards they proceed to a new Eletfton^ and a third Perfon, who is
quality'd, has the Majority; this third Perfon is the Mayor duly e-
lected, and not he that had moil Votes next to the unqualify d Perfon.
8 Mod. 37 Hill. 7 Geo, i. The King v. the Mayor ot Bedford.
But if one 6. Where the Eleffion is to be by 26 Burgelles, and i Burgefs is un-
unqualify'd qualify'd, the Ele6~tion is void. Arg. 8 Mod. 36. Hill. 7 Geo. the King
is elefted a ^ ^^^ ^j ^f Bedford.
Common '
fiyTwith others that are qualify 'd it is void as to him only. 8 Mod. 56. Hill. 7 Geo. the King v.
the Mayor of Bedford.
Bedford.
* S. P. Arg. 7. Where by the Charter of Incorporporation the Ekflion is to be on
8 Mod. 56 ^ certain Day, it * cannot be made at a Day after in that Tear^ unkfs upon
Geo' In Cafe^'^^ Death Or Removal of the Mayor in being ; For if they ihuuld elefl
of the King OD any other Day, it is not Secundum Auchoritacein given by the
V. the May- Charter ; and there can be no Inconvenience if they Ihould itay till ano-
or &c of ther Day appointed by the Charter for them to chufe anew Mayor j
becaufe (by this Charter) it is exprefsly provided, that the Mayor
ele£ted fhall continue in his Office till another is duly chofen, which
cannot be but upon the very Day appointed ; For where thev have no
Power by their Charter to chufe on any other Day, their Corporation
pall be difjohed rather than they Jhould make an Eleiiion on another Day,
and this Court cannot compel them to chufe a Mayor on any other Day,
where there is a Mayor already in being; Per Cur. 8 Mod. 129.
Pafch. 9 Geo. i. B. R. The King v. the Mayor and Burgelles of
Tregenny.
Tlie like 8. Injormation in Nature of a Quo Warranto was granted for TUfurp-
ivas gr.inted f„g the Office of Mayor. 8 Mod. 234. Pafch. 10 Geo. The King v.
T'"'}^- Pindar.
the .ijiiyor
ot Trcrt^en-
nv ■ and on the Day tlie Writ was returnable the Sheriff brought him in, and he was commuted to tU
Kin'p's Revch till the Court fliould confider what Fme to fet on him ; and a Rule was m.trie, that he
iiioiild he c.Ji-ivffy Aa'w to Tregennv at the next Eleftion-D.iy for a M.iyor, in order to proceed to
an EU-ftion which was done ; and upon a Mandnmus direded to him for tliat Purpo'e, lie return'd
that T. S. was duly elcfted ^layur, and that he was willing to tlwcit him into that OiScc ; But he
having
Corporations. 297
having misbehaved himlelf in tliis Elefition, tiK-re bei'ij^ nr> more than two who Voted for the ncvir
Mayor, who therefore rt-fured to be Sworn, leail he likewife fhould be proCecuted upon an Infor-
mation for ufurping the Office ; So that C, continu-d M.iyor ftill, having been Mayor, though he was
fix Months in Priron ; and for this Misbehaviour he was found Guilty, mid fi>:e,i zoo I. a?id lojiaad
committed till he paid it. S Mod. 2S5, 2S6. Trin. 10 Geo. The King v. Cracker.
9. Ahho' a. Charter dire ffs that the Alderman (ball be eJe£ied annually.,
yet fuch Claufe is only directory, and the Office of Alderman is not
thereby determined at the End of the Tear after his Kkcliony but the Per-
fon ele£ted continues Alderman till dead, or removed in the fame
Manner as a Perfon eleded into the Office of Mayor. MSS. Tab.
March 16. 1725. Profe v. Foot, upon a Writ of Error.
10. Charter that the old Mayor Jh all continue till another was duly elec-
ted and fevorn ^ Another is duly elecled, yet he cannot acl as Mayor
till fworn, and Judgment in Quo Warranto againft fuch Mayor. M.S.
Tab. March. 1725. Pender v. the King, in Error.
11. All the Members of a Corporation are invited to drink a Glafs oyf Every Elec-
Wine at a 7'avern; After their being met, one of the Body rcfigns his Ot- to''be°wfth- '
fice, and then they go immediately to an Ekfiion. On a Trial at Bar the out any fur-
Jury found it a good Eleftion, but the Court thought it againil Evi- pri7e, fraud,
dence, and granted a new Trial. This was on Return to a Manda- *"' C'rcum-
mus, and alter a peremtory Mandamus granted. Court fiiid, this was a ]^^"^^5^"„
Surprile, there bemg no Notice ot a Vacancy and a Fraud, and thatBody mond Ch.J.
circumvented; tho' Ch. J. faid, that he thought, if all the Members at l-mceiion.
were together, and all concurrd in h'Jedion, or did any other Corporate l,7^v JJ]^
Aft, that would be good, tho' no previous Notice ^ Buc i^oitefcue ^.^^^^^^^^^"^
doubted i for the Body ought to be Corporaliter congregat' et Allem- wal.
blat', this thing is not proper at an Ale-houfe, but at Guild-hall, that
is a proper Place for all Bulinefs j many Inconveniences would be it chefe
things were allow'd, but no Inconvenience where the Proceedings is
free and openj which ought to be in all Cafes. The Members ought to
have Time to confider who is a proper Perfon to be chofen in. Pafch,
10 Geo. The Cafe of Appleby.
12. The major Part of a Common Council cannot eleft a Member ac
a Meeting of the Corporation fummoned for another Purpole. 2 Ld.
Raym. Rep. 1355. Pafch. 10 Geo. i. Machel v. Nevinfon.
13. An Elcftion of a Member by the other Members of a Corporation
not corporately aflembled, mull be aliented to by every one. 2 Ld.
Rayrn. 1359. Pafch. 10 Geo. i. Mufgrave v. Nevinfon.
(N) Eleftion. By Virtue of a new Charter.
I. A N Information fhews that the City of Norwich is an ancient Ci- i Salk. 167,
£\^ ty, and that Hen. 4. by his Charter, granted that the Mayur., pi. i . S. C.
Aldermen., and Citizens, might ele[i two to be Sheriffs of the faid City., and p ^'^\ '
that after this, Charles 2d, in the iSth Year of his Reign, by his °^S 'q_''
Charter, granted that the Mayor and Aldermen might eleii one Sheriff, and Sx. s ?.
the Citizens another. The Mayor, Aldermen and Citizens, having the
Eleftion of the Sherift'in them, they might by Confent alter the Manner
ot the Eleftion, and their Acceptance of the Charter of Car. 2. and ha-
inng elcded according the Form prefcribed in it, is an Evidence of fuch
Confent, and therelbre though the Charter of the King may not alter
the Manner vell:ed and fettled by the Charter of Hen. 4. Yet if they
accept fuch a Charter, and confent to it, and aft in Conformity to it,
4 G and
29^
Corporations.
""and acquiefce under it, fuch Charcer is good, and this Subniillion and
Conformity fliall be an Evidence of their Confent, and theretl^re the
Ekaion is good. Skin. 574. 576. Hill. 6 \V. 3. B. R. The King v.
Larwood.
(0) Pleadings by or agalnft Officers, as to their
Eledion &c.
I, r~r~iRefpafs upon the 5 R. 2. the Dejtndantfaid, that his Predeceffor^
JL Majfer of the Hofptal of D. was feifed, anddfd, and he enter d
as Maficr^ and gave Colour^ and held no Plea ; becaul'e he did not [hew
the Foundation^ and that he was ekifed^ and made Majhr^ quod noca ;
by w hich he amended his Plea, and faid, that it is the Hofpitai of St.
John, incorporated of Brothers and Sijiers 'Time out of Mind^ and that they
nfed^ after the Death of every Majier, that the Brothers and Sijiers Jhould
chafe another Majier, and that J. late Mafier was feifed^ and died^ and
that this fame Dejcndant, before the Entry &c. was ek3ed Majier by the
Brothers and Stjiers, and enter' d &c. as above, and well, without ex-
pefjtng the Number of Brothers and Sillers ; For the Corporation was
made before Time of Memory^ and peradventure does not exprefs the
Number. Br. Action fur le Statute, pi. 9. cites 34 H. 6. 27.
2. But if the Number be exprefs'd in the Foundation, there he ought to
exprels it j Quod fuit concefltim. Ibid.
(O. 2) Property of Goods of Corporations. In whom
it fhall be faid to be ; And Pleadin":s.
1. T^C/Via^ the Life of the Abbot ^ the Property is in the Abbot only, and
J_^ he may give them ; but if he dies, or be dcpofed, th@ Property
is in the Houfe. Br. Abbe, pi. 2. cites 9 H. 6. 25.
2. When a Count ox Pleading is made, which, fpeaks of an Abbot who
is dead or removed, it fhall be called Goods of the late Abbot, but when It
is of an Abbot who is alive, or in Pojfeffion, it fhall be entred Goods
of the Abbot only i Note a Difference. Br. Abbe, pi. 2. cites 9 H.
6. 25.
(P) A61:ions by or againft them. What, and How ,
And where any Members are liable in their private,
Capacity.
1. \ l<i Abbot being P,jr/u« 7w/).wyo»i?f of a Church appropriated, had
_£\ Juris Utrnm 0/ the Glebe Land of ihiii Church. Thel. Dig. 19,
Lib. I. cap. 22. S. 5, cites Hill. 8 E. 3. 473.
a. Note,
Corporations. 299
2. Note, per Thorp, thxi 'Trcfpafs docs not lie agiwilt Coiiimoaalty,
but Ihail be brought againji the Perfoiis by their proper Names ; lor Ca-
pias nor Exigent lies not againll Commonaky. Br. Trefpals, pi. 239.
cites 22 Air. 67. ■
3. Capias in Debt fhall not be awarded againft Corporarion; for the
Body Politiclc cannot betaken; Per Choke J ultice. Br. Corporations,
pi. 63. cites 21 E. 4. 7. 12. 27. 67.
4. The Abbot Ihall have all Manner of AH tons touching the Rights,
"titles, Intercjis, I'roperties and PoJjejfiQiis.oJ their Abbies. Thel. Dig. 19.
Lib. I. cap. 22. S. 4.
5. Money was borrowed by the Ccinpatiy ofl-Foodmongers, who were in-
corporated, and a Bo/sd was fealed with their Ccmmon Seal^ and fubfcrib-
ed by the Delendants, who were two ol the Principal of the Company.
The Bond was Noverint Univerli &c. Nos Magiltrum & Guardianos
&:c. of the Company of Woodmongers teneri &c. and now the Compa-
ny being dtjfohed, Action was brought againjr thofe who fubfcribed the Bond -y
but ruled, that it could not lie; fo the Plaintiff was Nonfuit, Lev.
237. Palch. 20 Car. 2. B. R. Edmonds v. Brown. & al'.
6. A Member of a Company /t/jr his Name to a Bond under the Com-
mon Seal of the Company ; This does not legally bind him in his pri-
vate Capacity. Arg. Fin. R. 84. Hill. 25 Car. 2. in Cafe of Naylor
V. Brown lace Mailer of the Woodmongers Company & af.
7. A. lends 500 1. to a Company, who gives Bond tinder their Ccmmon
Seal lor Re-paymcnt with Interelt ; atcerwards the Company ajjigned a
Bond of loool. due to them to (. S. for Payment of fome ot their
Debts, and J. S. declared the tritj} oi 620 1. Part tor feveral Members
oi the faid Company, who were paid accordingly; but decreed Re-
payment by the faid Members, and that A be firlt paid with Damages
and Colb ; and the Court was of Opinion, that the Declaration of the
Truft by a Stranger (as J. S. was) as to the 620 1. was utterly void,
hec-duk the Corporation did fiot Join in declaring the 'Triiji^ or give J. S.
any Authority under their Common Seal, or by any Corporate A£t to
make fuch a Declaration Fin. R. 83. Hill. 25 Car. 2. Naylor v.
Brown, late Mailer of the VV^oodmongers Company & al' Members of
the laid Company.
8. For a Duty or Charge upon a Corporation, every particlar Member
thereof is not liable, but Procefs ought to go tn thsir piiblick Capacity.
Nota, fic didum fuit. i Vent. 351. Mich. 32. Car. 2. B. R,
( Q^ ) Adlons. Names. By what Names they
fhall fue^ or be fued.
I. '"in HE Funftion to be Majler of an Hofpital is a Dignity, and he
X ought to be fued by fuch Name, otherwife the Writ Ihall a-
bate ; Per Scrope. Thel, Dig. 35 Lib. 3. cap, 3. S. 4. cites Hill. 2 E.
3- 48-
2. But Provoft is not a Name of Dignity. Thel. Dig. 3 j. Lib. 3.
cap. 3. S. 4. cites Hill. 17 E. 3. Nomen Dignic' 6.
3. A Man may fue anAbbot or Prior by Name oi Abbot San^£ Trinitaf
de M. or Beatas Mariae Eborum, or Prior San£li Ofwaldi &c. without
SO.
faying Monajterii, or Domus talis San[fi, or fuch like, Thef Di
Lib. 6. cap. 3. S. 5. cites Mich. 3 E, 3. icq.
4 And
300 Corporations.
4. And againft die Abbot of Dorcheller, withouc laying Abbatt Ec-
<clejiie Efat>£ MariiS de Dorchejier. Thel. Dig. 50. Lib. 6. cap. 3. S.5,
Trin. 10 E. 3. 516.
5. In Jffwfi real the Writ may well be brought againji an Abbot,
Knithotit naming him by Name of Bapttfm. Thel. Dig. 49. Lib. 6. cap. 2.
S. 2. cites Trin. 7 E. 3. 324. 10 H. 6. i. and 12 H. 4. 5.
thel Die. t>But in Writ ofEntry againll an Abbot, the Abbot by whom the Entry
175. Lib. is fuppofed ought to be named by his Name ofBaptiiin. Thel. Dig. 49.
II. cap 54. Lib. 6. cap. 2. S. 2, cites Trin. 7 E. 3. 324. 10 H. 6. i. and 12
S 24. cites TJ - -
S C *+■ ^'
7. [Rtit'l Replevin lies againft an Abbot without naming him by
Name of Baptifm. Thel. Dig. 49. Lib. 6. cap, 2. S. 2 cites Trin,
7 E. 3. 334.
S. ■So of Writ of Debt. Thel. Dig. 49. Lib. 6. cap. 2. S. 2. cites
Trin. 18 E. 3. 24.
9. But in 7'refpafs contra Pacem againft an Abbot he fhall be nam-
ed by his Name of Baptifm. Thel. Dig. 49. Lib. 6. cap. 2. S. 3.
cites Mich. 8 E. 3. 427. but fays the contrary is held PalLh. 39
E. 3. 17.
10. AfTife againft the Abbot of Selby, and did not fay of what Saint
the Abbey is, and good, becaufe they are known by this Name, and fo
fee that Aflion by a Corporation is ^oodby Name known. Br. Corpora-
tions, pi. 40. cites 8. Au. 24.
n. An Abbot may fue Writ of 7'refpafs without naming himfelf by his
Name of Baptifm. Thel. Dig. 34. Lib, 3. cap. i. S. 3, cites Mich. 8 E,
3. 427.
1 2. So he may fue Scire Facias to have Execution out of a Judgment
without naming himfelf by his Name ot Baptifm. Thel. Dig. 34. Lib,
3. cap. I. S. 3. cites Pafch. 29 E. 3. 44.
13. A Writ brought by an Abbot by Name of Itho. Abbatis beats
Maris Eborum was adjud'd good without faying Abbot of the Church
of our Lady ojTork &c. Thel. Dig. 37. Lib. 3, cap. 9. S, i. cites Mich.
8 E. 3. 436. and 8 Aff 44. and Hill. 3 H. 6. 28. and 5 E. 4, 20,
14. Writ was maintain'd againft a Corporation by Name of Prspofi'
tori Scolarium Domus Beats Maris de Oson. without faying Prsepolitor*
& Scolaribus «&c, Thel. Dig. 53. Lib. 6. cap. 12. S. i. cites Trin. 22
E, 3. 9.
r'vP'^' ^^' ^''^fP^f^ ^^^^ f'°^ ^'^ againfi a Corporation y viz. by the Name of Cor-
cia 22 Si- poi'^^ion, but againft the Perfons who did it by their proper Names; for
cites S C. ' Capias nor Exigent does not lie againft Commonalty, nor Commonalty
and fays. See ffjall Hot plead Hor be impleaded but with the Mayor or Bailiffs., if they have
'^^ ^-jf- Mayor or Bailiffs J and Corporation maybe by Name of Commonalty
^" ' ■ ■ without Mayor, Bailiff, or other Head. Br. Corporations, pi. 43.
'' cites 22 Air. 67. per Thorp.
* 10 Rep. 16. The Writ was Prscipe Priori de IVigorn ; and the Defendant faid.^
126.3. cues that there is in Worccfier the Prior of the Freres Preachers, and the Prior
Lovd^Coke de Nofire Dame &i.c. by which the Writ abated. Thel. Dig. 53, Lib.
fays, that 6. cap. 12. S. 2. cites Mich. * 25 E. 3, 48. notwithftanding that the
therefore it Demandant tender'd that the Defendant was .known by fuch Name,
leems to Concordat 29 Aff. 70. But none but the Prior pleaded in Alfife.
him reason-
able a Multo fortiori to inforce every one that would avoid a Writing, Dcinife, Gr.mt &c. made
by, or to a Corporation, by reafon of any Verbal or Literal Mifnofmer, to fheiv that there are two
Corporations within the fame City, Borough, or Vill &c. vii. One by the true Nam-, and the o-
rher by fucli Name as is contained in tlie Deed &c. and To to leave the Deed &c. good by or to one
of them; but when in Truth there is but one and the lame Corporation, Jiemifes, Grants &c made
by them, or to them, ought not be avoided by fuch nigh and Verbal Variances, when, ia Subftancc
the true Name of the Corporation, whether by filatier expreli'd, or necefl'arily implied within the
Words therafelvts, appears to the Court.
17. A
I
Corporations. qoi
17. A Writ oi Jniiiiity was maintained againft an Abbot without
naming him by Name ol" Baptifm. Thel. Dig. 50. Lib. 6. cap. 2. S. 5.
cites Trin. 31 E. 3. Briet 342.
18. So oiWutoiEjeffiuent of Ward. Thai. Dig. 50. Lib. 6. cap. 2.
5. 5. cites Mich. 22 E. 3. 17. where it was faid, that in a Pone per vad'
he ought to name him by his Name of Baptifm.
19. Notwithltanding chat Lafid be given to an Abbot by Name of Bap-
Ufm^y and to his Succeffors ad inveniend' Cantar' &c. yet the W'rit of Cef-
favtt lies againft him by Name of Abbot^ without naming him by his
Name of Baptifm. Thil. Dig. $0. Lib. 6. cap. 3. S. 2. cites Pafch. 32
E. 3. Briet 291.
20. Writ brought by the King againft one by Name of Provojt of
the Houfe of C. was abated, becaufe the Corporation by the Grant and
Licence of the King was founded and named Pro'vofl of the Chancery ofG.
Thel. Dig. 53. Lib. 6. cap. 12. S. 3. cites Trin. 38 £. 3. 17.
21. In Writ brought agatnfl thePriorefs of Neivarke in Dorcefter, it was
faidj that fuch Writ is maintainable with alleging that it is known by
fiich Name, if Charter of the King of Foundation, or any other Thing
of Record be not Ihewn to the contrary j And upon this the Charter of
of Foundation was fhewn forth, by which the King had granted Land
to found a College of Sifters in the Prechors of Dorcefter, by which the
Writ abated for the Siirplitfage of Newark. Thel. Dig. 53. Lib. 6. cap.
12. S. 4. cites Mich. 38 E. 3. 33.
22. Scire Facias was fued againft the Prior of Saint John's of Hiertifa-
lem in England upon a Recovery in Wafte, which was Prior of the
Hofpital of Saint John's of Jernfalem in England, and Exception taken j
Per Thorp, it is knocsin by the one Name and the other., and therefore an-
fweri Quod Nota. Br. Mifnomer, pi, 15. cites 44 £. 3. 16.
23. Every Corporation may fue by its very Name of Foundation., not-
withjiandrng that it be not known by this Name^ but better known by ano-
ther Name^ as the Mafter of the Scholars of the Hall of Valens Maria
tn Cambridge, brought Writ by this Name of his Foundation where it
was better known by the Name oi Pembroke-Hall. Thel. Dig. 37. Lib.
3. cap. 9. S. 2. cites Mich. 44 E. 3. 35. Brief 582.
24. Dean and Chapter cannot maintain W"rit, if the Dean be not named
by his Name of Baptifm. Thel. Dig. 34. Lib. 3. cap. 1. S. 4. cites Mich,
14 H. 4. 1 1, but cites 21 E. 4. 19 contra.
25. Where a Prior had brought Writ of Entry, upon Diffeijin made to
himlelf of i^W of which he was feifed tn his own Right, Exception was
taken that he had not named himfelf by his Natne of Baptifm and Sur-
name ^ Quaere. Thel. Dig. 34. Lib. 3. cap, i. S. 5. cites Mich. 9 H,
5 9-
2.6. In Writ ot Covenant by the Abbot of W. againft the Commonal-
ty of S. it was agreed, that where a Corporation is by Name of Com-
monalty, and after by another Grant they have Bailiffs, yet by this
Change they fiall not be difcharged of Covenants, Annuities &c. to
which they were bound before. Br. Corporations, pi. 3. cites 2
H. 6. 9.
27. Praecipe quod reddat againfl Magiflrum five Cujlodem & Presbyte-
ros Collegii de A. was awarded good, though it was Jive.^ which is
disjunttive, becaufe the Foundation was by thofe Words. Br. Corpora-
tions, pi. 3. cites 7 H. 6. 13.
28. An Abbot Ihall have Writ of fa]fe hnprifonmcnt , or Battery^ or
other I'refpafs done to his Perfon without naming him, or by Name of
Baptifm. Thel. Dig. 34. Lib. 3. cap. i. S. 6. cites Pafch. 7. H.
6. 29.
29. It was held, that in Plea Perfonal where Procefs of Outlawry lies
againft an Abbot or Prior, he ought to be named by his Name of Bap^
4 H tifm.
Q02 Corporations.
„_ » — — — ■—
tifm. Thel. Dig. 50. Lib. 6. cap. 2. S. 7. cites JVlich. lo JJ. 6 i. ami
fays fee 18 E. 4.21.
30. Where a Man is obliged by Name of jMiyor of London ^ being Mjjor^
and after is removed^ the Writ oughc to be brought againll: hiai by his
proper Name. Thel. Dig. 50. Lib. 6. cap. 2. S. 8, cires 14 H.
6.21.
3 1. The Dean and Canons of JVindfor is a good Name ot Corporation to
bring Afilion by Writ, 'without jbcwing how they are founded Lyihis Name.
Thel. Dig. Lib. 3. cap. 9. S. 7. cites Trin. 18 H. 6. i6.
32. Where the Name of the Corporation ivas Bailijfs and Ccmmon-
alty, the Writ brought againft them by the Name oifuch a one and fuch
a one Niiper Bailiff's and the Commonalty is abateable. Thel. Dig. 53. Lib.
6. cap. 12. S. 9. cites Mich. 20 H. 6. 9.
33. In Writ oi Trefpafs to be brought againji an Abbot ^ it fufEces to
name hhii by the Name by -which he is known j Bat where Franktenement is
demandci again fl him^ which is of the Right of his Houfe, he ought to be
named by bis very Name of Foundation. Thel. Dig. 54. Lib. 6. cap. 12.
5. 10 cites Pafch. 20 H. 6. 9. and Mich. 21 H. 6. 4. where the VVric
was maintained by faying that He was known by the ene Name^ and by
the other, vvuhour faying that He and his Predeceifors have been known
by the one and the other &c.
34. In Trefpafs againfr an Abbot it is fufiicient to name him by Name
known, but tn IVrit againji him, which touches the Franktenement, he fliail
be named by his Name cf Foundation ; Per Newton tor Law, Qaod non
negatur. Br. Corporations, pi. 5. cites 20 H, 6. 27. and M. 21. H.
6. 4.
35. Mifnofmer of Corporation /';; Trefpafs againji him of his own Ati is
no Plea 7/ it be named by a Name known. l5r. Mifnomer, pi. 31. cites
21 H. 6. 4.
g P acrreed 36. Contra in ABion brought by the Corporation, or in AiSlion againji
clearly for them of Right of the Hoiife, and knoivn by the one and by the other Name,
Law. Br. there it is a sood Plea in Trefpafs againlt the Abbot i Quod Nota.
pi 8 s cites ^"^^•
36 H -. 1 . 37- Writ was brought againji theMayor and Commonalty of Exeter and.
it was pleaded, that they were incorporated by Name of Major, two Bailiffs,
and Commonalty , Time out of Mmd, and held no Plea, without faying iux-
rher, thatthey had been impleaded by fuch Name by fuch Time, and not by
the Name of Mayor and Commonalty without the Bailiffs &c. and then the
Plea Ihall be good. Thel. Dig. 54. Lib. 6. cap. 12. S. 12. cites Trin.
26 H. 6. Brief loi.
38. Writ brought againji a Prior by Name of Prior of the Church of
St. Peter of B. is not good, where his right Name is Prior of the Church
of Saint Peter and Paul of B. Thel. Dig. 54. Lib. 6. cap. 12. S. 13. cites
Mich. 35 H. 6.5.
49. in Writ of Entry brought againfi fuch a one Warden of the Houfe of
M. in Oxford, it was pleaded, that the Name oi the Corporation was
Warden andthe Scholars of the Houfe Sac. and fo was founded, and by fuch
Name had purchafed and impleaded, and been impleaded Tnne out of
Mmd &c. It was held, that the Writ couid not be maintaiued by fay-
ing that they had impleaded and been impleaded by the one Name and.
by the other, becaufe the Corporation cannot be Tenant of the Land unlefs
according to their very Name &Cc. P'or tlie Warden only is not I'enanr,
andfo it lliall be of Dean and Chapter, but it may be oihtrwfe in Perfn-
»al A^ion. Thel. Dig. 54. Lib. 6 cap. 12. S. 14. cites Trin. ^6 H.
6. 485. . ■
40. Where an Obligation was made Th. Abbati Monajierii beata Maria
. extra Muros civitatis F.borwn, Ic was held by the Court that Writ upon
this Obligation, by Name of Abbatis Alonajhrit beat£ AJarije Kborum
Ihould be good- I'hel. Dig. 38. Lib. 3. cip. 9. S. 11. cites Paich, j E.
4. 20. and I'aysj See Trin. 1 1 E. 4. 2.
4!. The
c
'Orporacions. 30^
41. The iMafter ot Barton Sanfti Lazari was received to maintain
his \\''rit in fuch Form, viz that h;^ and all hi'. Predecejjors^ Time out
of Mind, were named and hivjcn^ and ha^jc impleaded, and were im-
pleaded as well Ly the one Name as by the other. Thel. Dig. 38. Lib.
3. cap. 9. S. 9. cites Trin. 9 E. 4. 21. and fays See Hill. 13 H. 7 14.
per Keeble, and Mich. 16 H. 7. i. agreeing.
42. In Writ upon Contraif or of Trcfpafs againjt Corporations if the
Deiendanz P leads Mifnofmer tht Plaintiff' may fay that known Ly the one
Name and the other ; But fuch Plea is not good in Writ brought upon Spe-
cialty, where the Name 'varies Jrom the Specialty. Thel. Dig. 54. Lib.
6. cap. 12 S. 16. cites Trin. 11. E. 4. 2. 11 H. 6. 3S. 63. and fays See
I E. 4. 7. Paich. 5 E. 4. 20. JVIich. 16 H. 7. 1.
43. A4afor and Comonalty may ftie without naming the Mayor by his
Ndviie of Baf.tifvi, as it fecms. Thel. Dig. 38. Lib. 3. cap. 9. S. 10.
cites Trin. 12 E. 4. 10.
44. Where a Corporation is Mafier and Confreres, av\d are fucd by
the i^ame of Majier and Confreres _five Sccii, tiiis live Socii is void. Br,
Curporations, pi. 8. cites 20 E. 4. 12.
45. A Corporation may be incorporated by one Name and impleaded by
another Name by Grant of the King. TheJ. Dig. 38. Lib. 3. cap. 9 S.
12. cites Trin 1 1 H. 7. 27. 21 E. 4. 70.
46. If the King grants to a Corporation to purchafe or give by Name
of Majier and Wardens, Brothers and Sijto-s, and hy this grants to them
to implead -and be impleaded by N'a/ne of Alajier and Wardens, all is good
and Ihall be uied accordingly, the one in Perquilitcs and the other in
Suits. Br. Corporations, pi. 95. cites 11 H. 7. 27.
47. If there be a Coiporation of one fole Perfon that hath a Fee ftmple Gilb. Hift.
and may have a Writ ot right, he may be named in Originals, &c. by °^C. B. 18S.
the common Law by his Crijiian Name, without any Sirname ; For the '^"j V^ ^'
Name of his Corporation is in lieu of his Sirname (fqme fay both r^h.,t t^he
. Chrilhian Name Sirname) as John Abbot of D. &c. John Biihop ofReafonis,
N. but othervvife it is oi a Parfon ; for he 'Mitfi be jiamed by his Chrijlian bef^ufe in
Name and Sirname. 2 Inil. 666. ''^'^ Cafe
the Death of
, is a c.ocd Pica in Abatement. For a new SuccefTor comes in hi-! Place, who wasnot P,>i-tv to the/'''
nier Writ. GUb. New Abr. 504 cites S- (.'.. and tor tha fame Reafon in totidem Verbis. °'^"
48. If it be a Corporation aggregate of many able Perfons, as Mayor Gilb. Hift
and Commonalty, Dean, and Chapter, Malter of an Holpital and of c' B.
Confreces &c. the Mayor^ Dean, or Malter, need not to be named by his '^"^^ ^ 9-
Chrijlian Ndjne, bec-^ak that fuch a Corporation «itandcth in lieu both ^°'' ^""^'^^
of the Chriitian Name and Sirname. 2 Inll. 666. SI,:S
and therefore the Panics to the firft Writ are alv/ays the fame. Gilb. Ksw Abr.' 504*' cites
6. C and gives the lame Reafon in totidem Verbis. • > t-
49. A Corporation as a Mayor and Commonalty cannot dijlrain in
their own Perjons, but by their Bailiff. Brownl. 175. Malter and Fel-
lows of Emmanuel College in Cambridge's Cafe.
50. An A£tion lies agaifiji the Members of a Corporation by their Pri- ^rsA Holt
•vate Names for a jalje Retwn to a Mandamus d;retted to the Corpora- !"'' J- ''^''^«
tionby their Corporate Names. Per Cur. Corny ns's Rep 86 d1 c? '• ^""^ ''""
Trin, 12 W. 3. B. R. The King v. the Corporation of Rippon.^ ' ^,'Aai.«
Return to a Mand.imus direfted to the Corporation ot Canterbury. Ibid^
51. Some have held, that when a Politick Perfon is impleaded to
name him by the Name of his Politick Capacity, is fufficicnt, and that this
wil! lerve iallcad oi Chriitian or Surname, becauli he is not to be diltin-
guiliied
qo4 Corporations.
guilhed from natural Perfons, iince as a natural Perfon he is not im-
pleaded, but ic is enough to dillinguilh him Irom all other Corporati-
ons. Gilb. Hift. of C. B. i88.
i Bulft. 253. 52. A Corporation was inllituted by the Name oi Prxfe^i & Guar-
Pafch. 12 dianortnn Naupegortim de Rederife^ and an Aftion is brought againil
V Pexa'n '"^them by the Name of PrxfeQi Guardian: and Sccii, and accounted bad.
S.' C— ^ Gilb. Hift. of C. B. 189.
New Ahr.
503. S. P. in totidem Veibis.
(R) A6i:ions by or againft a Corporation, and one of
the Corporation.
i. r~TpHE Opinion of Brian Ch. J. was, that the A-fajor and Com-
\^ monalty fhould have Aftion /or the Imprifonjnent of their Alapr.
Thel. Dig. 20 Lib. i. cap. 22. S. 14. cites Mich. 21 E. 4. 14
& 15-
2. It was faid by Vavifor, that the Mayor and Commonalty of New-
Caftle were bound to the Mayor by his proper Name^ and afterwards the
next Year, when another was made Mayor ^ he brought Aftion of Debt
upon this Obligation, and took nothing, becaufe this Obligation was
void, made to himfelf by himfelf] Thel. Dig. 20 Lib. i. cap. 22. S,
14. cites Mich. 21 E. 4, 14 & 15.
Bi-. Abbe ^ It yvas faid by Brian, that if o«e be indebted to an Abbot ^ and after
^.""^u^cites intakes himfelf a Monk in the fame Abbey ^ and At i?i^ is made Abbot of the
5 H. 7. 1 1. f'l'Me Hotife^ he Ihall have Aftion of Debt againft his own Executors for
and 5 H. -j. this Debt. Thel. Dig. 20 Lib. i. cap. 22. S. 15. cites Pafch. 5 H.
J4 per 7. 25. [b. 26. a.]
Rede, to ' ■* ■- -•
which Townfend agreed.
(S) Adions &c. Inter fe.
I. rip HE Chapter of the Church of our Lady of Lincoln, brought
X ^larelmpedit againfi the Dean of the fame Church. Thel. Dig.
19. Lib. I. cap. 22. S. ii. cites Trin. 9 E. 3, 458.
2 If Maysr and Commonalty difeife one of the Commonalty^ he fliail have
Affife againft them ; For they are as feveral Perfons ; viz. Body Poli-
tick and Body Natural i Per Pafton. Br. Corporations pi. 24, cites
8 H. 6. I. 14.
3. And Mich. 17 E. 3. 64. the fame Chapter had fuch Writ againft
their faid Dean, and fo had Aftion of their Pofleffion fever'd from the
Dean. Thel. Dig. 19. Lib. i. cap. 22.S. 12. cites Hill, 21 E. 4. 21.
(T) Joinder
Corporations. 35.1
(T) Joinder in Anions. In what Cafes.
, rj-^UEDean a.d Chapter o^ Canicrhnry being ^"'^f ^« f ^.^^&j-
i taalues, flrall join in Writ oirrejpa^s of i. cods oat of then PofeJ-
fion taken ^^hul coJ to thctr Hands as Ordinary fedcv^^ante.^J^^^^
Die ^2. Lib. 2. cap. ii.S. lo. cues Mich. 17 E. 2. Brief 822.
!" ^hiborporatZ of Southampton, and other natural Pfons^.^^
rece ved to flptntly in the Exchequer \or Dtfiurbaue made in th.uk-
TnTofCuftoiaid Till Sic. a.d of Battery done to the Ba.hf. Thel.
^r 1 u^i?o^s«Arough; ^pJz^Ri^. ^>^t;s'
delcLte ParoM^ de Vlorcnaa &c. was abated, becaufe his Coupant-^
ons were not named. Thel. Dig. 21. Lib. i. cap. 22. S. 30. l^alcn.
^\ %\!fMr\f^hl'm^^^^^^^^ lobn of Cant' hrot^htWrit of
R.tJ^Jd£foI of a ^Lrch, ..h:ch ins Predec^JJir held inPropr^
uksin\r,htoh-^skfpnaK without naming h^ C../..r^. wth him.
n-K»l niff tn T ih I caD 22. S. 9. cues Patch. 5 H-. 3- }^9-
^ ■^'in^'^ref ?rs o^'U^ ? an Ml.t Ind .. C.— ,«, ^he VVnt was
^ii).««««./W^ ^nd held good._ Thel. Di^ 115. Lib. 10. cap.
''e \iVd t'h f Writ \] I' iuor ZII.S 'Confrere Ad Damnum ^pfiu^
P.L. was adjudg'd good. Thel. Dig. X15. Lib. 10. cap. 15- ^- 2.
'"? ?he ^'i"i/c>^.p^.r ought to join in aUAmons which touch thdr
PMons, which they have in Common Appurtenant to thetr entire Corpora-
Sr ftelDig. 31. Lib. ..cap. 7..S. i. cites 17 E. 3. 64. and
r,^ K * -ye -inH TA H A. II. aDQ Inn. I xi. 5. J.
^ 8 ltwasadiudgM,that thePn.rofthe Houfeof Lepers of Ply mpton
Iho'ddhavTMze in Ms own Name, vmfmnch as hewasPrtor of theHoufe
%:ilemon ofConfreres of the fameHoufe, and that they have been Priors of
'he fame Houfe by Eleftion by the Manner Time out ot Mind, where
in Faa the ptr las a LayLn, and h. (^"J^ens Lay Per/on^ ^^^^^^^
not any Foundation, nor Common Seal, nor Rule &c. Ihel. uig.
'^'^'ri.JAS'r ^dCol^^ &n ^.rou,htSVn. of Co^nant
a.anJthe Balfs and Commonalty if Derby, upon a Covenant hy thofe oj
%Th that tZ-e ofUncoln fJldbe qaU of Murage, Pontage Cuflm
andfoll wHhdthivUlofDUy &c.^ where fome ^"^g-^^^ °^.^^^^^^
had taken certain Toll and Cultom ol certam Burgeffes ot Lincoln, and
adjlS^ a good Writ, notwithllanding that Excepaon was take, thac
the CorDoration ou-ht not to have Aftion, but the hng e Perfons whofe
GtSTerrSen ought to have Aftion of Trefpafs againft d.e Perions
who took them. Thel. Dig. 20. Lib. i. cap. 2Z. b. 21. cites inn.
"^M' L'covent was Party to any Aftion or Record, but the Head of
fuch fpiritual Corporation did implead and was impleaded a wa>, with-
out the Covent. Thel. Dig. 19. Lib. i. cap. 22 8^ 7. ^^^^^-^4
H.4 10. Mich. 14 E. 4. Abbe 4. and 15 E- 4- 2. S «• 7- 26. ana
^ o ^Note, that a Covent fiall not be named with the Abbot or Prior m
any Suk by him to be taken, neither Ihall they be named w th the
Ibbot in any Suit to be taken againft the Abbot or Prior, or with him.
Br. Abbe, pi. 14. cites 5 E. 4. 122. ^^ ^j^^
4 ^
oo5 Corporations.
12. The Majier of a College brought Writ wiihoMi his Cofifnr:.-
Thei. Dig. 19. Lib, i. cap. 22. S. jo. cites Trin. 1 1 E. 4. 4.
13. It was held tor Law, that a tF.mhn and Cmplains or a Chantery
Ihould have an Aftion of Trefpafs for breaking their Clofe, agamft one -who
had a Leafe of the fame Clofe of the fame Warden alone witbost the Chap-
lams, and fliould Punifh him for the Trefpafs. Thel. Dig. 20. Lib.
I. cap. 22, S, 18. cites' 21 E. ^. 75. and that fo agreed Tnn. 1 E.
5. 5. and 7 H. 7. 9.
14. Grant in a Corporation which touches every f.ngk PerfoH, there
every Tingle Perfon iliall have thereof Advantage by himfelf ^ as Grant
to be quit of Toll &.C. Per Catesby. Br. Corporations^ pi. 65. 21 E.
I J, If an 0^//f^?/o« be made ?o ofie B. and to an Ahhot^ if B. dies
now, bis Executors and the Abbot [hall join \a KEiion of Debt. Thel.
Dig. 32. Lib. 2. cap. 11. S. 9. cites F. N. B. tu. Writ de
Debito, -rr j-o.
16. Trefpafs for entering into the Clofe of the Dean j after Verdict
found for the Plaintiffs, it was moved inarrefl of Judgement, that this
Ad ion being brought for the PcJJefmis of the Dean only, the Chapter ivas
not to join, and lol this Caufe Judgment was ftaid. Cro. E. 200. pi.
23. Mich. 32^ 33 Eliz. in B. R. Wolley v. Pvobinfon.
(U) Appearance of Corporations to A6i:lons brought
againft them. How it muft be.
'i'
■ N Writ againft the Dean and Chapter, the Chapter cannot appear
nor plead any Plea -without the Dean, not-iuithfi anding that the
Dean be dead. Thel. Dig. 194. Lib. 13. cap. 4. S, i. cites Hill, 7
E. 3. 302.
2. And in Writ againft Mafler and Scholars, the Maf,er cannot z.^~
■^t-AX nox plead -without the Scholars. Thel. Dig. 194. Lib. 13. cap. 4. S. i.
citesTrin, 34 H. 6. 49. but adds Quaere if the Head of & Corporation can
appear in proper Perfon.
B. Trefpafs g, Debti praecipe the Society of Lumbards London Merchants of FlO'
cVs'c ''«»^^» ^"d fjuo Lumbards came and named their Names, and faid that they
W£re </i/?ri2//W by the Sheriffs of London, and returned in IlTues 10 J.
and pray'd that their Appearance be recorded as Lumbards of London to
fave their Iffues, but not as of the Society of Lumbards of London, fed
non allocatur, for the Writ fhall be intended to be againfi a Corporation.
Br, Corporation, pi. 28. cites 19 H. 6. 80.
4. And where Mayor and Commonalty are ftied, and he and all the
S. p. Br. Commoners appear in proper Perfon, this is not good, lor it is anther Bo~
pi? o'^^cites' ^J)'> therefore it feems that the Corporation ought to appear * by At'
aiE'4.7. torney, by their Name of Corporation, and Mt in proper Perfon. Br.
li. 27. 67. Ibid,
per Brian
and tot Cur.
They can- 5, Mayor of Commonalty cannot appear in Perfon i For the Court
"°t appear cannot tell it all appear or no, and riierefore tf\ty ought to make At-'
toTney by' '"""J- ^^- Warrant de Attorney, pi, 36. cites 21 E. 4. 13.
Deed under
their common Seal, and otherwife ihs Warrant is' void, per Chcke J, quod non neg^tur, therefore
Qiisre of the Ufagc thereof at this Day. Ibid.
6. In
Corporation';, 307
6. In a ^1(0 Warranto brought aic.inji ' the Euliffs^ Aldermoi &c.
they did appear by Warrant of Attorneyj and one of the Bailies named
in the Warrant did not appear, nor agree to it ; It was holden by the
whole Court, that tbe jippearaiice of the major or greater Part being re-
corded was fitjjtcient ; And it was alfo holden per curiam, that ahho' the
Warrant of Attorney -was under another Seal than their Common Seal, yet
being under Seal, and recorded, it cannot be annulled. Godb. 439, pi.
506. The Baiiiris &c. of Yarmouth v. Covvper.
(X) Abatement of Writ.
I. TN Covenant ly the Mayor and Commonalty of Lincoln againji the
j^ Mayor, Bailiffs, and Couimonalty uf Derby, the Writ was general,
according to the Deed, that the Defendants had covenanted with the
Plaintiffs &c. And the Deed was, that the Mayor and Coinmonahy of
Lincoln (looiild be quit of Murage, pontage, Ctijlom^ and 'Toll within the
Vill of Derby, of all Merchandtfes &c. The Count recited the Covenant
according to the Deed, but at the End of the " Count it was Ibcwn, that
feme certain fingular Perfons of Derby took 'Toll, &c. of certain Burgef-
fes of Lincoln, contrary xo the Covenant &c. yet adjudged a good
Writ. ThcL Dig. 84. Lib. 9. eap. 5, S. 26. cites Trin. 48 E. 3. 17.
and fays See 30 E. 3. 20.
2. In 'frefpafs upon the Cafe againfi the M after of an Hufpital^ theThel. Dig.
Writ was, that where the Defendant by reafon of his Tenure ought to cleanfe^l'^ Lib
a Ditch ipfeque et omnesalii pr^diifam Tenuram prias habentes, prxd' fof-V'^'^Y- 55-
fam reparere et mundare debuerunt et confueveriint de temps dount &c. Andg' q
it was abated for want of good Title ; For fuch Prefcriptivn is not
good, for it Ihould be in the Defendant and his Predecejfors, or in them and
thofe whofe Eft ate &c. Thel. Dig. 106. L;b. 10, cap. 14. S. 16. cites
Mich. 12 H. 4. 7.
3. One by t^SLme o£ Chaplain of the Chantery of T. was received to
maintain Writ of Entry, without faying in his ^V'rit that the Chantery
was in any Church or Chapel. Thel. Dig. 37. Lib. 3. cap. 9, S.- 3.
cites Pafch. 12 H. 4. 19.
') 4. Scire Facius upon Recognizance of 100 1, in the Exchequer againft
J. Abbot of P. the Sheriff return'd him Warned, and came R. Abbot
of P. and faid that J. Abbot was and is depofsd long before the Writ
and he is Abbot, & non Allocatur. For he has no Day in Court, and
alfo he is at no Mifchief, for if Execution be mad§: of his Goods he
may have Trefpafs, by which Judgment was given againft J. Abbot.
Br. Mifnofmer, pi. 2. cites 2 H. 6 5.
5. Where a Recovery was had upon Compofition in Writ of Covenant
Againft the Commonalty of Shrewsbury, and afterwards the King makes
Bailiffs there, a Writ of Scire facias was fued out of this Recovery by
Name of the Commonalty, leaving out the Bailiffs, and ic was held per
Cheney, that the Writ was good, but Hankford held the contrary, and
chat the Bailiffs ought to be named. Thel. Dig. 54. Lib. 6. cap. 12.
S. 7, 8. cites Trin. 2 H. 6. 9. and fays, that Fitzh. abridges the O-
pinion of Hank, to be the bell, Brief 7.
6. It was held by Martin, that Writ brought by an Abbefs by Name
cf AbbatiffiS Minorijjarum de B. is not good, without faying Abbatiilie
Domus Mmoriffarmu &c. Thel. Dig, ^7. Lib, 3. cap. 9. S. 4. cites
Hill. 3 H. 6."2S,
7. But
^o
8 Corporations.
7. Jiut it was held, that a IVnt brought ky Name of Jvhn Abbot of
Glajhnbiiry fhould be good 'without fdytng Abbot of the Church of our
Lady of Glafienbury. Thel. Dig. 37. Lib. 3. cap. 9. S. 4. cites Pafch.
4 E. 4. Ibl. 8.
8. It' a Prior brings 2 IVrits^ the om by Name of the Prior of St. A. of
B. and the other by Name of the Prior of St. A. near B. the one of the
Writs ought to abate. Thel. Dig. 38. Lib. 3. cap. 9. S. 6. cites 15
H, 6. Brief 74.
9. It was faid by Newton, that an Abbot ought to bring his Writ
hy his very Name of Foundation. Thel. Dig. 37. Lib. 3. cap. 9. S, 5.
cites Mich. 21 H. 6. 4. and that fo it was held Mich, i £. 4. 7. where
he is Plaintiff, that he cannct fay, that he is known by the one Name, and
by the other, or by diverfe Names. But adds .^iiare, if he may main-
tain his Writ by faying that he and his Predece/fors have iifed Time out
of mind to implead by diverfe Names ^ and liiys See Trin. 9. £.4.21.
10. The Writ was againfiPra^poJitnm i3 Scholares EccleJi^Beat^e Afari.v
£5' San^i Michealts in Canterbury, where their Name was to be im-
pleaded by Grant of the King Prapofttam S Scholares i3c. de C.inter-
bury i Videlicet, (in) put in lieu of (de.J And it was held, that the
Writ fhould abate, and ihould not be amended. Thel. Dig. 54. Lib.
6. cap. 12. S. 17. cites Mich. 15 E. 4, 17.
11. In Debt it was agreed, that of Mayor and Commonalty it is no
Plea that the Mayor is not of found Memory, nor PlMommunication in
the Mayor is no Plea in Aftion by the Mayor and Commonalty, and
Outlawry, or Villeinage in the Mayor is no Plea. Br. Nonabiiitie, 37.
cites 21 E 4 12. 13. 67. 69.
12. Aciton brought by the Dean and Chapter of \V'. the Defendant
faid, that the Dean died the Day of the Vint pare ha fed ; Judgment
of the Writi and per tot. Cur. if tlie Dean dies, and another is chofen
Dean before the Day in Court, and the Jirjl Dean not named by his proper
Name, but named Dean, the Writ is good. Br. Corporations, pi. 64.
cites 21 E. 4. 15.
1 3. Otherwife it fhall be if no Dean was at the Day in Court when the
Defendant pleaded. Br. ibid.
14. And it was faid clearly, that if the Dean had been named by the
Name of Baptifm, and died, pending the Writ, there the Writ Ihall
abate, though another was eleiSled betbre the Day in Court. Br.
Ibid.
15. If Mayor and Commonalty bring Affiun, Outlawry was pleaded in
the Mayor, Judgment if he ihall be anfwcred it is no Plea; For the
At\ion is brought by Corporation, and the Outlawry is againll him in
his natural Body. Br. Nonabiiitie, pi. 53. cites 21 E. 4. 14.
16. In ABion by a Corporation or natural Body Mtfnofmer of the one
or the other goes but to the Writ, but to iky that No fuch Pcrfon in Re-
rum Natura, ox No fach Body Politick, this is in Bar; For if he be
mifnamed, he may have a new Writ by the right Name, but if there
be no fuch Body Politick, orluch Perfon, then he cannot have Aftion.
Br. Mifnofmer, pi. 73. cites 22 E. 4. 34.
1 7. A Corporation difiratnd m their proper Names, and therefore in
Replevin brought the Writ was adjudg'd naught ; For a Corporation
as Mayor and Commonalty cannot dijiratn in their own Perfbns, but
by their Bailiff. Brownl. 175. Trin. 13 Jac. The Malter and Fellows
of Emanuel College in Cambridge.
(Y) Abate-
Corporations. 309
(Y) Abatement of Writ. For Variance,
I. T N Debt, the Writ was Prsecipe, W. W. Prior of the Houfe of
J[ the St. Maryy and St. 'Thomas the Martyr De novo Loco juxta
Gilford in the County of Surry, and the Obligation was, we R. A.
Prior of the Priory Novi Loci juxta Guilford in the County of Surry, and
Cjvent of the fame Place. Pole demancled Judgment of the Writ for
the Variance i For it Ihould be Priory according to the Obligation, and
not Houfe ; But per Prifot, all is of one Effect, and the Writ fhall be
according to their Foundation ; But Pole faid, yet it ought to accord
with an Alias Diiius ; but per Prifot, this need not be, for the Succef-
for nor the Plaintiff are not eltopp'd, and therefore anfwer ; Quod No-
ta, that Variance in Name of a Corporation fhall not lofe the Obligation,
if It he of one and the fame Effeff. Br. Variance, pi. 80. cites 28
H. 6. 8.
2. In Trefpafs hy the Mayor and Bailiffs of Oxford, the Defendant faid,
that they are incorporated by Name of the Mayor and Bur^ejfes of Oxford
&c. and not &c. and held a good Plea, per Brian ; But Wood was
of Opinion, that it is not good without /hewing Letters of the Incorporati-
on. Thel. Dig. 124. Lib. 11. cap. 5. S. 3. cites Hill. 13 H.
7. 14.
(Z) Things done to, or by the Head, or any Members
of a Corporation. In what Cafes it fhall be faid
done in the Politick or in their Natural Capacities,
I, T F I give 2o/. to an Ahhot to pray for the Soul of my Father, he
J[ has this Money in his own Right, and not in Right of the Houfe,
and if he wafies it, the Ordinary cannot depofe him for this Caufe. Br.
Depofition, pi. 4. cites 9 E. 4. 34. Per Moyle J.
2. A Corporation cannot he beaten in their Corporate but in their Na-
tural Body ; nor a Corporation cannot beat anocher, nor do Treafon or
Felony in their Corporation, and Corporation pall not he imprtfond fort
denying their Deed, nor for Diffeiftn with Force &c. nor Forejure the
Realm. Br. Corporation, pi. 63. cites 21 E. 4. 7. 12. 27. 67.
3. If a. Mayor IS i!?iprifon'd touching his Office, As for a Bond m<ide by
him and the Commonalty, this is an Imprifbnment to him as Mayor. Br.
Corporations, pi. 63. cites 21 E. 4. 7. 12. 27. 67.
4. And where the Corporation ought to chufe a Mayor annually fuch a
Day under Pain of 10 /. and the Mayor is imprifon''d, fo that they can-
not obferve the Day, by which they lofe the Penalty, or if they ought an-
nually to appear in the Exchequer fuch a Day to account to the
King, under Pain of 10 1. and the Mayor is imprifon'd, fo that he can-
not obferve the Day, by which they lofe the lol. tl»e Corporation ^all
have Aciion of this Impnfonment, and fo the Plea good. Br. ibid.
5. Durefs cannot be to a Body Politick, but it may be to a Mayor to
do a Thing appertaining to his OiHce j by the beil Opinion , For he
is the Head of the Corporation. Imprifonment of the Head of a Natu-
ral Body in the Pillory is Imprifonment of all the Body ; For it is in-
tire. Br. Durefs, pi. 18. cites 21 E. 4. 8. 14. 15,
4 K (A. a)
Corporations.
(A. a) Things done by the M ead without the Body's
joining.
In what Cafes they fhall iland good.
I. T F an Abbot or Prior levies a Ftfte of Land of tbe Right of tbs
\^ Houfe, this lliall bind thera for ever. Br. Abbe, pi. zi. cites
46 E. 3. 13.
2. The Sum of 100/. per Ann. is due to the Mayor and Commonalty of
Sotithaiiipton oat of the Kings Cujtonis. Aiqiiittance by the Mayor only is
not good, by all the Juftices i And yet becuule he is the Head of the
Corporation, and there were 100 Prelidents Ihevvn of the like Matter in
time pafs'd, therefore the Acquittance of the Mayor was aliow'di Quod
Nota. Br. Corporations, pi. 87. cites 2 R. 3. 7.
fible Body ; The Mayor, as Mayor, can do nothing lef^ulaviy, for he is the Head nf the Corpora-
tion apo-resrste, and is only a Part of it ; but Ufage auk Precedents are not to be neglected in Things indif-
ferent, or "whicb are JWt Mala inje.
Jenk. 1(52,
165. pi. 9-
cites S C.
and fays,
the Mayor
and Com-
monalty are
one indivi
(B. a) Procefs agalnft Corporations.
Br. Corpo-
rations, pi.
50. cites
S.C.
t, T^ EBT was brought againfi the Society of Ltmlard Merchants
ly of Florence, and the Sheriff dijt rained 2 Lumbar ds, who cams
in Ferfon, and prayed their Appearance to be recorded to fave their If-
fues as diftin^ Perfons, but not as of the Society of Lmnbards, & ideo
non Allocatur, but that they Ihail be put to their Remedy againft the
Sheriif of London, by a general Action uf Trefpafs^yor where a Cor^
Ld. North
faid, he did
not fee how
a Company
tliat had no
Eftate could
be compell'd
to appe.ir ;
upon which
it was
urged, that
the PlaintilF
might take
out a Dif-
tringas
againft the
Company,
and have it
return d Ni-
hil, and lo
get a Se-
ijueftralion
againft them
and then
by the
Courfe of
the Court
f oration is impleaded^ they ought not to dijlrain any private Perfon ; Quod
Nota. Br. Trefpafs, pi. 135. cites 19 H. 6. 80.
2. Upon a difmiffion of a Bill in Chancery,
and that Difmillion en-
roU'd, an Appeal was to the Lords, fetting forth, that in the ordinary
Courfe of Proceedings the Chancery could nor relieve the Plaintiif
againlt the Defendants, they being a Company, and ferv'd with Procefs
w'ould not appear, they having nothing to be dijlrain'd by. The Delen-
dants being fo many of the Members of the Company as were particu-
larly named, did pur in an Anfwcr, Plea, and Demurrer, and the
Company, tho' often Summoned, did not appear. Their Lordlhips
ordered,' that the Difmiffion ftand revcrfed, and that the Ld, Chancel-
lor &c. retain tiie Bill, and that the Court oi Chancery /hall tffue forth
iifaal Procefs of that Court, ^W it Caufe be, Piocefs oiDiflringas there-
upon againjl thcfaid Corporation, provided the faid Procefs be fcrvcdy
one Month before the Return thereof ; And if upon Return of the faid Pro-
cefs the faid Corporation flj all not file an Appearance, or Ihall appear and
not anfwer, the faid Bill Ihall be taken Pro Confcffo^ and a J^ecree lliall
thereupon pafs. ^ut in Cafe the faid Corporation Ihall appear and
anfwer within the Time aforesaid, then the Court of Chancery ihill
proceed to examine what the PlaintitPs juil: Debt is, and llv.iU decree the
, faid Company to pay fo mucli M.)ncy as the iame Ihaii appear to
amount unto, with reafonable Damages. And in Cafe the Corporati-
on Ihall not pay the Sum decreed within 90 Days after the Service of
the faid Decree upon their Govcrnour, Ji:?putv-Goveraou.r, Treafurer,
Cleric
Corporatioils. qh
I ierk or Secretary for the Time being, then the Ld. Chancellor, or the Pi.iintia
Ld. Keeper for the Time being, Ihall order and decree, that the Go-°'^?'^"°'
vernour,or Deputy-GovernouV, and the 24AlIiftancs of the faid Compa- ""''"S f^^^™
ny, or lo many otthem as by the Tenor of their Charter do conllicute l°g. "veVn.
a Quorum for the making of Leviations upon the Trade or Members or 122. Hill,
the laid Company, Ihall within fuch Time, as by the Ld. Chancellor of '^^^- '"
Keeper Aall be thought fir, make fuch a. Leviation up-);i every Member 9^^^°^^^^'
ot the laid Company as is to be concributary to the publick Charge African*^^
2iS ih'dXi ht fnfficicNt to fatisfy thd [aid Sum to be decreed to the Plaintitf Company.
in that Caufe, and to colleft and levy the lame, and to pay it over to " ^^
the Plaintiff as the Court Ihall direftj And fuch a Lcviacion is to be ^ ^ ^' '^"^'^
put inWricing, and ligned with the Hand of the Governour, Deputy- inCaiiol^*^
Governour, and AlMants of the aforefaid Company for the Time being Harvey v.
and io many ot them, as by the Conlticucion ot the laid Charter, do make AfVtcaii
a Quorum, Ihall net make or return fuch Leviations as aiorciaid the^°™P^"5^*
Ld Chancellor, or Ld. Keeper, may iliue Procefx of Contetnpt aq;ainft
them, as is ufual againft Perfons in their natural Capacity i and u by
the faid Time fo to be limited by the faid Court of Chancery, the faid
Money fo to be affe^ed, fliali not be paid^ then, and from thenceforth,
every Perfon of the faid Company upon wliom fuch a Leviation Ihall be
made to be liable in his Cap.icicy to pay his Quota or Proportion af-
lelled J And the Ld. Chancellor, or Ld. Keeper, is to order or de-
cree, that fuch Procefs ihall ifiue againft any fuch iVIember fo retufing
01 delaying to pay his C)iiota or Proportion, as is ufual againit Perfons
charged by the Decree ot the faid Court for any Duty in their feveral Capa-
cities ^ And if the Total fo returned and filed with the Regiller,
lliall not amount to fo much as Ihall be fufficienc to fatisiy tiie Sum de-
creed, with refpect had to fuch Perfons as ihall make it appear tnat they
are overcharged, or ought not to be charged at all, then the fiid Ld;
Chancellor, or Ld. Keeper for the Time being, may from Time to
Time order that a tiew Leviatiofi be made and returned into the
Regifters of the Court of Chancery, of fuch Sum as ihall be fulficient
by "way of Supplement lor that Purpofe, to the Payment whereof ewrj' in-
dividual Perfon is to be bound in fuch JVlanner as atorefaid. Chan.
Cafes 206, 207. Trin. 23 Car. 2. Dr. Salmon v. the Hamborough
Company.
3. hn Jtt etc hment •wiWuox.Wt againil a Corporation. 3 Keb. 230.
pi. 8. Mich. 26 Car. 2. B. R. in Cafe of Morgan v. the Corporation
of Carmiarthen.
4. Jjter a Decree againft a Corporation for a Sum of Money^ and a After Ser-
D'.Jtringas iflued againft them, Ld. North was of Opinion, that Exe- vice of a
cution was to go without their being further heard; As in the Cafe of ^'■'.^°'' ^'''-
a Judgmental Law. 2 Vern. 395. Mich. 1700. Harvey v. the £aft- ^g!^°" ""^ ^
India Company. ga^nftaCor-
5. Btit the DiflriMgas in Procefs againft a Corporation is to anfwer as poi-.tion,
well the Contempt as the Bill or Complaint, but when upon a Decree it is the next Pro-
ad Comparendum &Solvendum, and the Court refufed to grant anynn'-'i^
ftay of Procefs, or for the Delendants to be examined. 2, Vern. 396. and aft?'*
Mich. 1700. Harvey J. the Eaft ind. Comp. And Ld. North liiid t;i.it a Sc-
that a Sequeftration illued on the Return of the firft Diltringas 24 '^'■'"'^''''f'°">
Car. 2. in the Cafe of Dr. Kuiley v. the Grocer's Company. And -"S"'' ^^'
alfo in the Cafe of Cholmley v. the Grocer's Compan)-. 'awarded
r - J , • . ... they can ne-
ver after come and pray to enter their Appearance, as they mif^ht have done on the Diftrin^as, whlcli
iffues for that very Purpofe, to compel them to appear ; but the appearing beirg paff, the Procefs
muft <;o on, becaiifc the Appearance being only in Favour of Liberty, can be of no Service to a Cor-
poration which cannot be coniir.itted. Chan. Prcc. 128. pi. 115. Mich. 170Q Harvey v. Eaft India
Company.
(C. a)
3 r 2 Corporations.
(C. a) Pleadings and Proceedings.
1. T N Annuity it was held, that if an Abbot with afent of the Covtnt
X. grants an Annuity isjtthout naming htmfelf by Name of Baptifm,
that in A£tion againll his Succejfor he ought to furmife tn the Count the
Name o/ him who was Abbot at the 'Time of the Grant. Thel. Dig. 84.
Lib. 9. cap. 5. S. 24. cites 20 E. 3. Annuity 33. and that io agrees iz
H. 4. 5.
2. Where there is a Covenant between two ViUs incorporated, that the
cnepallfuffer the other to be quit of 'Toll, and after their Common Ojficer
takes Toll, this is a Breach of the Covenant ; Contra if it be done by ano-
ther particular Per fon. Br. Corporations, pi. 74. cites 48 E. 3. 17.
3. Annuity v/^s granted to J. M. by a Corporation, by Name of Proijoji
of the College of C. and A^ion was brought by Name as above, -without
Name of Baptifm, and good. But per Hull, he ou^^ht to dec/arc the
Name of the Grantor in his Count. Br. Corporations, pi. 18. cites 12
H. 4. 5.
4. So IE Abbot with the Afent of the Covent is bound to me in 20/. without:
other Name, I fhall have Aifton againjt the Succcffor, and declare the
Name of the Obligor certain in the Count. Br. Corporations, pi. 18,
cites 12 H. 4. 5.
5. So in Writ oi Entry fur Dijfeifm made to the Predccejfcr, the Name
of the Dilfeifee fhall be exprefs'd in the Writ; Per Thirn. Br. Ibid.
6. Scire Facias againjl the Commonalty ofS. who faid that the King had
made Bailiffs there ; Judgment of the Writ, not naming the Bailiifs,
and a good Plea. Br. Brief, pi. 493. cites 2 H. 6. 9.
7. Writ of Wafte by an Abbot iLall be Ad Exaredationem Domiis.
Br. Abbe, pi. 2. cites 9 H. 6. 25.
8. In Debt againji an Abbot upon the Deed of his Predecefjor, becaufe
the Predeceffor pledged a Tablet of the faid late Abbot, and his Abby afore-
faid, to the Plaintiff j or 40 /. of which the Predeceffor re-paid zo I. and
he delivered to him the Tablet again, and took the Obligation of the Prede-
ceffor himfelf, and averr'd that the Tablet came to the Uje of the Houfe, and
the Count good by Judgment, notwithitanding that he faid Goods of the
Abbot and Abby ; lor when this is counted or pleaded of an Abbot who is
dead, the Count fhall be ut fupra, and the Pleading in like Manner j
But //it be 0/ an Abbot who is Abbot, and alive, it fliall be Goods of the
Abbot only ; for during his Life the Property is in him, and after his
Death the Property is in the Houfe i Quod Nota Diveriicy ; and per
Rolfe, Count ihall not abate for Surplufage. Br. Count, pJ. 10. cites
9 H. 6. 25.
9. The Dean and Canons of Windfor fued Writ oiTrefpafs, and the
Writ was Ad Refpondendum Decano & Canonic is &c. without /htwing how
they are fo incorporated. Thel. Dig. 20. Lib i. cap. 22. S. 16. ci:esTrin,-
18 H. 6. 16.
10. Debt againji an Abbot, and counted that T. late Abbot, Predeceffor
^c. promifed to him 10/. of which s 1- was for Bread and Beer, and s 1.
for Defence of a Suit which was pending againji the Abbot i and the Count
good, notwithitanding he did not fay that the Bread and Beer came to the
Life of the Houfe, nor that the Suit was agamff the Abbot ; For this ihali
be intended ; But by all the Juitices, the bell Count was to fay gene-
rally, that it came to the Uleof the Houfe j und after the Count was
awarded good. Br. Abbe, pi. 9. cites 22 H. 6 56.
14. Scire
Corporations. 313
1 1. Scire Facias againji L. B. Warden of the College ofC.in Canterbury ,
and the Scholars of the fame, were fued by the Succeflbr of a Parfon upon
Recovery of an Annuity, and was brought in the County of Norfolk,
and the Sheriff' returned quod Scire Feet L. B. and Scholartbus &c. and
upon this L. B. came, and faid that he is the fame Perfon who was warn-
ed, and faid that he ts not Warden^ nor vjas not the Day of the Writ pur-
chas'd, nor ever after i Judgment of the Writ ; And there it is agreed,
that the Scholars need not appear nor plead, for all is one Corporation ;
And it' the Head be not warned, the Body is not warned j And the
Iffue was accepted. But per Moyle, this is a Itrange IlFue, for L B.
faid, that he is not Malter ; Per VVangford, if the Ilfue be found for
the Plaintiff, he Ihall have Judgment to recover the Annuity ; But
Brook makes a Quasre thereof, for the Scholars who are Part of the
Corporation, are not Parties ; But if the IlTue be found lor the Defen-
dant, it feeins clear that the Writ Jhall abate, for he is named L. B,
Warden in the Writ, and therefore it feems it had been better for the
Plaintirt" to have fued his Writ againft the Warden and Scholars &c.
without proper Name of the Malter, and then Scire Feci Magillro &
Scholaribus return'd had been good. Br. Corporations, pi. 6. cites 34
H. 6. 14. 49.
12. NVhere the Number of Brothers and Sijlers appear in the Foundation^
this fhall be Ihewn certain in the Pleading, and the dying fei fed of the
Predecefor is good Canfe to enter, andjnjltjy upon the $ R- 2. _Ubi Ingrel^
fus non datur per Legem. Br. Corporations, pi. 7. cites 34 H.
6. 27.
13. But this is fio Title in Jf/ife, and he ought, where the Mafter dies,
to Ihe'W How the other was eletted, and made Mailer &c. before he enter'd,
and that tunc intravit &c. Br. Ibid.
14. Annuity by the Dean and Chapter of Stoke againft the Mafter ofThel. Dig.
the Hofpital of Saint Mary-Overs, Parfon of D. and counted of 10 1. Jr-zo.Uh.i.
rears of an Annuity of i^o s. and that J. late Dean of the faid Chapter, ^"^"P^j"' c *'
then Chapter, Predeceffors of the now Dean and Chapter, were fetfed t/and fays. See
the faid Jnnatty by the Hands of one H. late Parfon of the Church ajorefaid, Pafch. 1 z H ,
Predecejor Sic. and that the aforefatd late Dean and Chapter, and all his; ■ ii-
Predeceffors, were feifed Sc. by the Hands of the aforefaid H. late Parfon
cf the Church aforefatd, and by the Hands of his Predeceffors, Parfons of
the Church aforefaid Time out of Mind, until the 26th Tear of the noiv
King, and the aforefaid late Dean died, and the aforefaid no-w Plaintiff was
eteded, and made Dean of the Church aforefaid &c. and alleged Seijln at
S. aforefaid, to the Damage &c. Choke demanded Judgment of the
Count, becaufe he counted that the Dean and Chapter which now are,
and the late Dean and Chapter then Predeceffors &c. where the Chap-
ter cannot have Predeceffors nor Succejfors, for it is perpetual, fo that the
Dean may have Predeceffor, but not the Chapter j & non allocatur j
for they are incorporated by this Name, and therefore they ought to pre-
fcribe by the Name by which they are incorporated, and the Prefcription
was awarded good, that the Dean and Chapter, and their Predecelfors,
Timeout of Mind, were feifed &c. notwithltanding that they ,^zV/ «of
fay (then Dean and Chapter') of the Church aforefaid, for it lliall be in-
tended that their Predeceffors were Deans. Br. Prefcription, pi. 42.
cites 39 H. 6. 13.
15. So of a Prior, and this Ex Parte of him who makes the Prefcrip-
tion, or claims by the Prefciption. Ibid.
16. But otkrwife it is of htm who poall be bound by the Prefcription, as
here it is to bind the Parlbn, that they were feifed by the Hands of the
Rector, his Predeceffor &c. they pall fay, then Parfons or Relfors of
the Church aforefaid &c. for they are to be bound &:c Ibid.
A L J7- I"
•^iz| Corporations-
17. In Replevin it was faid by all the Jultices, except Prifoc, that
the Abbot is :-jofie of the Coveut^ and this is well proved by Moile, by the
Writ of Sine AlFenfu Capituli, and Allicon ad idem ; For m a Deed
fitppofed by the Jubot and Covent^ it is a good Plaz that Not the Deed of the
' Abbot ^ not denying that it is the Deed ofrhe Coventi Andxt is a good
Plea, that Not the Deed of the Coveiit, not denying that it is the Deed of
the Abbot, and therefore the Abbot is not Parcel of the Covcnc ^ But
per Prifot, the Abbot is Part of the Covent, and the Head or Principal
cf the Covent. Br. Abbe, pi. 12. cites 39 H. 6. 36. and 50
VS. The^i'/'^of of Colchelter, Parfoii of a Churchy ckiui\i an Annuity
(IS ■pertaining to the fatd Re5ory; he ought to pre/cnbe in Right cf the
Rctfory^ and not that he and his Predecelfors, Abbots, have had it Time
oat ot Mind ; becaufeof Parcels and Things pertaining to the Reclory
they ought to claim in Right ot twe ivectory. Pi. C. 503. b. cites 49
H. 6. 16.
19. One of the Commonalty cannot _/'///? '/v_/o/- Rent due to the Common-
alty, but the Corporticnitlelflhall ]ulti .:nd no iingle Perfon of them.
Br. Corporations, pi. 54. cites 7 E. 4 14
20. In Tiefpais the Defendant pleads j, ■ ■'ir Years of the Mailer
and Confreres of a College^ and the Lcale -is''^^ Nvjira appoftumus
inftead of faying the Common Seal, and yet iield good, and it iLall be
intended their Common Seal. Br. Faics, pi. 70. cites 11 E. 4. 4.
21. Debt upon Arrear of Account by the Aiayor and Commonalty of S.
ai^ainft the Executor of T. P. tlieir Receiver, md conined that Auditors
were affigned by the afcrcfaid Mayor d>i,'i '^cminn 'hy ; Catesby faid one T.
is now Mayor, and was the Day ot che . ■ :. purchased, which T. and
- the Commonalty, did not aiTign Aurvcors, ; ' no Plea, though they
ii\A not Jbeww ho was Mayor at thel.me 0, .'ijjignment ; For if the
Predecelibr alfign'd &c. yet the Su -ce; the Commonalty ihall
have A9;ion, and Count generally that tiit -i ai-.d Commonalty &c.
notwithltanding thele Words afcreja.d^ .:.■.:/■ and Commonalty, and that
the Count above was good, and is lue coiurnon Courie, which has all
Times continued, and ii' the Mayor dies, pending the \V'rit, and ano-
ther is chofen,yet thevV'ric, as above, remains good. Br. Corporations,
pi. 56. cites 12 E. 4. 9. 10.
22. So of Dean and Chapter, becaufe thofe Aftions by Cuftom have
been ufcd for all the Body. Br. Ibid.
23. Contra of Abbot or 'Prior, ior thofe AfT ions are by the Head of the
Body only. Br. Ibid.
* Br. Cor- 24. Ip 7'refpafs the Defendant juflijied, becaufe the Freehold was in the
porations, pi. j)^^;; ^nd Chapter, and he as Servant, and by their Command entred^ and
58. cites S.C. FxceDtion was talcen, becaufe he did not Ihew the Name of the Dean- viz,,
that in a par- .»vt r A^itro
ticalar Pa- the proper Name. Le. 307. Arg. cites * 1 3 E. 4. 8.
the Mayor, Aldermen and Commonalty, it was held, that a Man in pleading iTiall fhew who was
Mayor at the Time of the Grant, but not who were Aldermen and Commonalty ; But Choke |. laid,
that though it is ufaai to Ihew who was Mayor at the Time &c. for the better Certainty, yet he had
known ic'adiudg'd when fuch Patent had been pleaded generally, it had been awarded .good ; becaufe
it ihall be taken that there was a Mayor at the Time of the Grant; but if there was no Mayor the
Grant was void.- Br. Pleadings pi. i6\. cites S. C.
Br. Leafes, 25. If Dean and Chapter make a Leafe thus, viz. Sciatis nos Deca-
pl. 45. cites num & Capitulum &c. dimililfe &;c. and does tfO//'tw the proper Name
^'■'"e^"'^ c/ the Dean^ the Leafe is void; per Littleton, Quod luit conctlfum
that b^the per Curiam. Br. Corporations, pi. 59. cites i8 E. 4. 8.
s
bell Opinion
"" ;an and l^liapter maiic a i-iea:c otc. n is not nctciiury 10 cj-^itia mt «,i.oj
— Le. 307. Aig. cites S. C.
26. And
belt Upinion ,,^„.. ^ rir^.-vT r
where the Dean and Chapter make a Lea.'e 8cc. it is not ncceflary to exprels the Leans r>iame of
Jiaptiim.^ Le. 307. Arg. cites S. C.
Corporations. 3 1 5
26. And the Law is the fame where he jnjlijies by Commatidment.
Br.IWd.
27. Debt by R. Alderman of the Guild of St. Mary in Bofton againft
L. upon a Bond made to S. N. late Alderman., which was to him and his
Siicceffors ; per Littleton Juftice he ought to jhew how the Corporation was
made ; Contra ot" Abbot and Prior, or Dean and Chapter, but Guild or
Fraternity cannot be made but by a fpecial Incorporation, and per Bri-
an it id true, tor Sicceffor cannot take Effcff but there is S/ure/^on, for
otherwife this Word Succeifor is void. Br. Corporations, pi. 60. cites
20 E. 4. 2.
28. For where a Man Is bound to the Cbtirch-Wardens and their Sac-
ceffor^, this word Siicccffor is void, and the Executors Ihall have the Ac-
tion, for the Wardens are not incorporated i Per Brian and Littleton
jultice to the fame Purpofe, that a Bond made to the Dean of P. and his
d'uccefj'ors is not good to the Succeflbrs, but the Executors Ihall have the
Aition 3 Contra of Bond to the Dean and Chapter of P. and their Suc~
jtffun, there the Succelfor lliali have the AQiion after the Death of the
Fredeceiror. Br. Corporations, pi. 60. cites 20 E. 4, 2.
29. So of a Bi/hop ; per Littleton Jullice, and Choke Juftce to the
fame Purpofe, and agreed the Cafe by Brian, and that Bond made to
the Abbot or Prior^ and their Succeffors, omitting the Co-vent, is good to
the Succelfor i for no other of the Corporation is able to take the Bend but
the Abbot. Br. Corporations, pi 60. cites 20 E. 4. 2.
30. And that where Chantry Priefi is founded by Jttch Name and Sue-
cefjors, and Land is given to him and his Siicceffors, this is good, and the
Succelfor Ihall have it, and not che Heir. Br. Corporations, pi. 60
cites 20 E, 4. 2.
31. But Bond made to him and his Siicceffors fhall enure to the Execu-
tors and not to the Succellbrs, by which the Plaintilf pray'd Leave
to purchafe a better Writ. Br. Corporations, pi. 60. cites 20 E.
4. 2.
32. Debt upon a Bond ly the Abbot of Saint Bennet's againji the
Mayor, Sheriff's and Commonalty of Norwich ■■, the Defendants faid, that
A. the Abbot, and others of his Covent, imprifon'd f. H. then Mayor ^ in
the Fleet in London, till he and the Sheriff's, and the Commonalty, made
the Bond at Norwich by the Dtirefs aforefaid, and the beft Opinion was,
that the Plea was good. Br. Corporations, pi. 63. cites 21. £. 4. 7.
12. 27. 67.
33. And afcer, fol, 27. xhty wtxQ com^oWd to fl3ew that there was
Mayor and his N-sme, and the Name of the Sheriffs, the Time of the Deed.,
and the Name of the Abbot Sec. Br. Corporations, pi. 63. cites 21 E.
4. 7. 12. 27. 67.
34. But it was held by feveral, that if he had faid that fo many Men
make the Commonalty, Chapter, or Covent, who were imprifon'd to make
the Deed, this is good i For otherwife it cannot be intended that a
Corporation can be imprifon'd ; And where the Mayor is imprifon'd,
the Corporation fhall not have falfe Imprifonment. But per Catesby
the Plea is good ; For the Body is entire, and therefore the Impri-
fonment oi' the Mayor is the Imprifonment of all the Corporation, for
he who refirains my Hand, imprifons all my Body ; So where- one holds
my Feet in the Stocks or my Head in the Pillory, without Authority, this
is an Imprifonment to all the Body. Br. Corporations, pi. 63. cites
21 E. 4. 7. 12. 27. 67.
35. In Aftion brought by any Corporation pretended or fuppofed, it
is a good Plea to fay that there is not any fuch Corporation by Name ^c.
in the fame County. Thel. Dig. 20. Lib. i. cap. 22. S. 19. cites Mich.
22 E. 4. 37.
36. Tref..
3 1 ^ Corporations.
36. Tnfpdfs agamfi the Mayor and Covmonalty ; ic is no Plea that the
Inhabitants 0} the fame Vill have Common there^ for this is another Cor-
poration. Br. Corporations, pi 48. cites 4 H. 7 13.
37. In frefpafs brought by a Dean and Chapter^ hamg Par funs m~
perfonec of the Church oj D. this Dtverjity was taken, viz that // thcf
they demand the whole Church oi i:^. ih^y p.7all fay th^t they wers feif
ed tn Dminico fuo tit de Feodo injure Ecckjice Cathedralts fucs predial
^c. but tf the Demand be oj Parcel only, asofauAcrc, 'Parcel of the
Parfonage ; they ought to fay in Jure EccJelise fute de D. PI C 402
503. b. AJich. 18 & 19 Eliz. in Cafe of Grendon v. the BillioD of
Lincoln. ^
38. Notice m^Y be given to a Corporation bv their Solicitor and
Counlelj PerManwoud. Savil. 20. pi. 50. ?,iich. 24 Eliz Anon
t^%T' c ^l u ^ ^^'fon pleads that he isfeifed, he fjdl fay injure hxckf,.
I C but ^T."?- , ® T.° <^=*Pa^'t>es, and without fuch Words he Ihali be i6ccnd-
S P. does ^a J'^'''-*'! "ihis own Right; But if an Mhct pleads that he was feiicd
not appear, there needs not fuch H'ords^ iot he has no other Capanity^/o oi JDe^^n
———4 Le. and Chapter, Mayor and Commonalty ; per Anderlbn Ch f. Le i ca n]
s.'c.inro7ilf^'^: '^'i"- 31 ^l^- C- -B- in Cafeof the Scholars of All-Souls in Ox-
dem Verbis. ^°^^ ^- Tamworth.
40. In Ejeament the Plaintiff declared of a Leafe by the Warden and
fellows ot All-Souls College. Exceptions was taken, becaufe the
Plaintirt had not declar'd upon a Leafe by the W^arden and Fellows
without naming any Name of the Warden. The whole Court held the
Declaration well enough, and Anderfon fiid it Itands with Rcafon
thathnce the College was incorporated by the name of Warden' and
Fellows, and not by any Chriftian Name, that they may Purchafe and
Leafe by fuch Name without any Chriltian Name, and may be im-
pleaded and implead others by fuch Name, and as the Fellows in fuch
Cafe, need not be nam'd by their Chriltian Names, no more ou<^ht the
vV^arden ; But otherwife ot' a Parfon, Vicar, Chauntry Prielt Le 506
pi. 427. Mich. 32 & 33 Eliz. C. B. Carter v. Clavcoie.
^^^'A-' c 4/'A«'W?o/'ie/^^/- was brought by the Warden' and College of All-
Trin -'r ^0"Js-ColIege in Oxtord, and the Writ was quod clamat ejfejus & H.e-
Kliz. s'c. reditatcm (uam, hut did not fay In Jure Collegm yet adjudged o-ood • lor
and the when the Writ was brought by the Cuitos & Collegium, ic cannot be
^dS u^'T'f '"'■'"u'^^^'"'"J^'''^°"'S''' '"' '" their Incorporation ; for
~-4 Le ^"^y "^" "" °^"^'' Capacity, and the Precedents are both ways Cro
17S.pl 277. Ei'^- 232. pi. 1. Palch. 33 Eliz. C.B. Ail-Souls College v Tam-
vS. C. in to- worth. °
tidem Ver-
b's. -And 272^ pi. 280. S.C. and the Writ adjudged good, and cites 10 H 7. fol. 5. a rood
t^.ile to their Purpofe. ' J' " h '""
42; Pleading quod Villa de Beverly incorporata fait was good enoucrh,
altho that It be better Pleading to fay that the Mayor Burgefjes ec° or
I.A- A A i'lf^f lifts were incorporate &c. Noy. 54. FiJher v. TrulHow
thaSv ni^" aP f'^i"^ ^ >^^'' ^y ^ ^"^^^ ^"'^ <^'^^P^" ^^e Name of the
may grant ^^^" '""" ^e fhewed. Co. Lit. 3. a.
Z Y", ^^ Name of Dean and Chapter, without j?;e^;«? th»r proper Names, and To mav plead ard be
mpleaded becau e .n thcr Corporate Capacity they have no'^l^ame of B^ptiim, or ar^ o7her Name
d,an rhat by which they are incorporated ; but it i/ otherwife in the Cale'^ of a Parlbn o a ViAT-
tor they muft ufe their N.,me of Baptifm. 5 Salk. 103. pi. 5. Mich. 8 W. 3 Newron v Tra'
Vers.
44. An Abbot Prior, Bifhop, Dean, Parfon, or any other fole Cor-
f oration that xsfeis d in Auter droit, cannot difhitm when he h iwncked
by reafon aj Homage Ancejirel^ or m any other Cafe, for they alone cannot
deveil
Corporations. 3 1 7
deveft any Thing in Fee which was veiled in their Church or Houle.
Co. Lite. io2.b. 103. a. ^ „r . • n. u / r
AK If a Prior, Bilhop &c. in a .^lo IVarranto agamft them for Fran-
chije's or Liberties, difclaun, this Ihall bind their Succellor. Co. Litt.
*°i/"lfan Abbot&c, acknowkges the Action in a Writ oi: Annuity,
this will bind the SuccelFor, becaufe he can't fallily it in an higher
Aftion and there mull be an End of Suits j But il the Abbot levy a
Fine or acknowlegc the Atlion in a Praecipe qmd rcddat, the Succellor
{^■ii\\he bound fro Tempore, but \i& may have a H'rit cj Right, and recover
the Land ; But if tn Debt upon a Bond againjl an Abbot &c. the Ab-
bot &c conh'lJes ibe Atfion, and dies, the Succellor lliall not avoid
Execution, though the Bond was made without Allent ol the Covent,
for he cannot fallify the Recovery in an higher Aftion i So it is ot a
Scitute or Recognifance. Co. Litt. 103. a.
47 In Debt for Rent by a Corporation, thev intitk themfehes by Feoff- S, C cited
inent and do jhew Livery to be examed by Letter of Attorney ; And there- f ^aund.
fore 'it was objeaed, that they cannot take unlefs byLetter ot Attorney ; J^Jl, ^^^
fednon allocaturi For all neceffary Circwnjiancesfhall be intended to be ex- 404. pi.
ecuted, as well as in a Feoffment made to other Perlons; and Judg- r,- S. C.
xnent accordingly. Cro. J. 411. pi. 11. Mich. 14 Jac. B. R. Iplwich J^t^S^^^
(Bailiffs &;c.) v. Martin & al'. appear.
• •>— — ^— ^
Bulft. 211.S.C. but S. ?. does not appear.
48 EjcSInient-Leafe was made by a Corporation ; they feal'd the
Leafe and delivered it by their Attorney, having a Letter cf Attorney
^romthem to deliver the fame i Per Cur. they can't do this in any o-
ther Manner but by their Attorney ; they are only to lubfcribe and
feal the Leafe, and to deliver the fame by their Attorney, having thei^r
Letter of Attorney fo to do. Bulft. 119. Pafch. 9. jac. St. John's
Coll. Oxon v. Lord Norris. als. Clark v. Hannes.
49. No Aftion lies at Common Law againft a Dean and Chapter on a
Proiiiife made by them ; becaufe a Corporation can't be bound without
Deed and when a Corporation is fud in a Court of Equity, the Cor-
poration itfelfis notfu'd, hut fowe particular Perfons ol the Corpora-
tion and one may be fu'd that was not of the Corporation at the Time
of the Promife, and where the Promife was to make a new Leafe on the
Surrender of the former, and they Grant a new Leafe to another, it was
refolv'd, that the old Leffee had great Equity to be reliev'd. Roll.
R 82. pi. 28. Mich. 12 Jac. B. R Freviil v Ewebank.
CO In Debt by the Guardians and Fellows of N. for a Forfeiture on
Breach of a By-Law, Hobart Ch. J. that they need not fhew how they
were incorporated; For the Name argues a Corporation. Hob. 211.
Paf^h. 14 Jac. in Cafe of Norris v. Stapes,
51. A Corporation m-xy have fame Things by Prefcription, and fome by
Charter, and therefore may ufe both Titles. Nota. Lat. 113. Hill, i
Car. Lat. i2r.
<2 A Leafe was pleaded to be made by Dean and Chapter, but did not Wood and
n.,ew that the Dean ami Chapter were feifed in Jure Collegii, nor . zvhat ■£/"- Jl^^^an v
tate the Dean and Chapter had in the Land ; Dodendge held the Plead- j^e Court '
in£ ill, becaufe it might be ot an Ellate pur auter Vie. Lat. 14. Pafch. held the
aCar. Newman V. Marlb. . Pleading; ill,
53. In Covenant brought againjl a Bifi.op on a Covenant enrred into ^jj' Venr. 225.
his p'redeceffcr, it was not alleged that he was feifed in Jure Epifccpatus,^^^^^^
and therefore was adjudg'd ill i For in pleading Seilin in all lole Cor-^^j/^^e old
Dotations it ought to be pleaded in Quo Jure they were feifed ; but it is Books were,
otherwile in Corporations aggregate. 2 Lev. 68. Mich. 24 Car. 2. B.th^c where
R. Davenant v. the Bilhop of Salisbury. {[^^^^ Pj^f^<^
Eoifcopus was feifed, that it implied fciftn in Ri^bt of the Bilhoprick, which is trueif it were a
'^ ^ 4 ^1- Corpo-
Q, 1 8 Corporations.
Corporation capable only in his Politick Capacity, or as Abbot Sec. but in regard he m'-^'m al(o tie.
fcifed in his natuial Capacity the Declaration for this Caufc was iicid to be ill,
54. In fecond Deliverance, the Defendants made Crmifance as Bailiffs
to the Majier and Governors of Chrtfls Hofpital &c. for that they nre a
Corporation, and fctfcd in Fee of the Place ivhere, in the Right of the Hof-
pital i upon Demurrer it was objected, that the Conulince was ill
becaufe it did not fet forth How incorporated, norfiy Per eornm precept am
?ior Jhiiv any Writing ; but adjudg'd that this Avowry is good, becaufe
the Incorporation is but an inducement to the alleging the Seilin in
them, therefore need not be Ihewn, nor need he allege any Precept in
Writing. 3 Lev. 107. Mich. Car, 2. C. B. Manby v. Long.
SS- A Bill was brought againil a Corporation to difcover Writings.
The Delendants anfwered under their Common Seal, and fb not being
fworn will not Anfvver in their own Prejudice, Ordered, that tnc
Clerk of the Company, and fuch Principal Members as the Plaintiti's
Ihall think fit, anfwer on Oath, and that a Mailer fettle the Oach.
Vern. 117. pi. 104. Hill. 34 & 35 Car. 2. Anon.
Skinn. S4. 56. Bill againil a Company, if they do 7iot appear, it was faid the
Car'2'sc Pl^i^tiff may take onm. Dtftringas againlt the Company, and have it
Loid Keep- return'd Nthit^ and fo get a Seqitefiration againlt them, and then by
erfaid, tile Courfe of the Court the Plaintiff need not bring them to Hearin^-.
that the Vern, R. 121, 122, pi. 112. Hill. 1692. Curfon v. the African Com-
Pi-ocefs a- Danv
V^i, eainfta ^ ^'
Company is by Dillringas, and not by Subpoena, and if they have no Efiefts there is no way to
compel them to appear.
57. In pleading Change of the Name of the Corporation he ought to
fhew How. 3 Lev. 243. Mich, i jac. 2. C. B. Adtiey v. Vernon.
- 58. A Corporation cannot appear, and therefore cannot cajl an EJfoin,
nor enter into a Recognizance ; Per Cur. Lord Ra\ m. Rep. 79. Palch. 8VV.
3. Burghill V. Gibbons and the Univerfity of Cambridge.
59. An hifortnation was exhibited againjl the Bailiffs and Burgejfes of
Yarmouth ; one of the Bailiffs (there being 2) appointed an Attorney to
appear, but the other %mtihi not confent, and the Court was moved, that
their Liberties might be feifed tor want of an Appearance ; But the
better Opinion was, that upon an Information in Nature of a Quo
Warranto, which is Datum eft Curite intelligi, and which is in Na-
ture of a Perfonal Action, there cannot be a Seifure before a Summons,
(i.e.) the Liberties cannot be feifed upon a Venire Facias, but upon a
Diltringas; but it is otherwife in a Quo Warranto, for there ic is Sum-
monitus fiiit ; then it was made a Quellion, whether a W'arrant of At-
torney made by one of the Bailiffs was not fulficient, becaufe the Cor-
poration did not difavow it, but that was determined. 3 Salk. 104.
pi. 7. Anon.
60. 11 a Writ be brought by Hugh, Prior of Coventry, this too gene-
ral, and ihall abate, but in a Leale fb made had been good. Gilb.
Hilt, of C. B. 189.
61. In the Cafe of the South-Sea Company, in whom the Eltates of
the late Directors are veiled by A£t of Parliament, where the Statutes of
Limitations might have ken pleaded againfi the late Directors, it is pleadable
againj- the Co?npany, who a-dnd but in fuch Direftors Place. 3 Wms'.s
Rep. 143. Mich. 1732. South-Sea Company v. Wymondfiill.
62 A Corporation ihall have the Benefit oj the Statute of Limitations
as well as any private Perfon. 3 Wms's". Rep 310. Trin.''i734. Wych
V. Eafl India Company.
(D. a)
Corporations. 319
(D. a) Mifnofmer of Corporations. Pleadings.
I. rr^ H E King grunced to J. N. to found a Chantry of 12 Priefts,
j^ and that the Provott thereot Ihall be called Provoji of the Chan-
try oj C. and the King after brought Quare Inipedit againll him by
'bia.meot'Provq/toftheHoufeofC. and therefore the Writ abated. Br.
Corporations, pi. 21. cites 38 E 3. 14.
2. Scim Facias agaitifi the Prior of St. John of Hieriifakm in England
upon a Recovery., which was [againll the] Prior of the Hofpttal (f St.
John of Jerufakm in England., the Writ was awarded good, becaule ic
"was known by the one Name and the other i Quod Nota, in A£Uon
againll a Corporation. Br. Corporations, pi. lo. cites 44 £. 3. 16.
3. Trefpafs again/} f. Abbot of St. Mary tn C. the Ijelendant /^/i^, that
it ^vas founded by the 'JSarne of Abbot of the Church and Monaltery oj St.
John's o/'C Judgment of the Writ i Newton faid, this is no Pica ^ For
it may be known by the one Name and the other, and it is good in Ac-
tion againll him, and efpeciaily in Trefpafs of a Tort done by himfelf;
For it was of Goods carry'd away. But if he was to bring Attion, or
h' AS ion was brought again/I- him in Right of the Houfe, there it ought
CO be named by the very Name of Foundation, by which Aniweri
Quod Nota M-axkhimfaid., that the Houfe was founded &c. and ail as
above, and that they and all his Predeccjjors have impleaded and been im-
pleaded by the Name afore faid y and not by the Name of the Abbot 0^ St.
Juhn'sofC. only ; Judgment of the Writ. Portman laid, the Abbot is
known by the one Name and the other., prill &c. and a good Plea, per
Newton, tho' he and his Predeceflbrs have been known by fuch Name.
Br. Corporations, pi. 30. cites 21 H. 6. 4.
4. Quare Impedit againll the Mafier of a College in Cambridge; the
Delendant pleaded, that they are incorporated by another Namej
Judgment fi aclio ; the Plaintilf demurr'd, becaufe he did not conclude
to the Writ ; And per Fitz.herbert, the Plea is not good without Doubt,
by which the Defendant pleaded another Plea, and fo fee that mifuof-
nier of a Corporation goes to the Writ. Br. Corporations, pi. i. cites z6
H. 8. I.
5. In Debt againll a Corporation the Corporation ought to he named by
its Right Name; As if it be J. 'Vnot oi Saint Peter, and the Corporation
is Saint Peter and Saint Paul, this is Mifnofmer, and cannot be aided
after Imparlance, for it is Parcel ot his Name. Br. Corporations, pi.
8. cites 35 H. 6. 5.
6. Obligation was made Abbati Monallerii de M. extra Muros Ebo-
rum. In Debt brought the Writ was, Quod reddat Abbati Monallerii
deM. EborLm, leaving out (Extra Muros) and held good, not withlland-
ingthe Variance. Gouidsb. 122. cited by Gawdy as 5 E. 4. 20.
7. Where Adayor and Commonalty are [tied by another Name^ they may
make Attorney by Special Warranty by their very Name of the Corporation,
and fo the httornty pall plead Mifnofmer, and Corporation cannot ap-
pear but by Attorney, becaufe the Court cannot know ilall appear or not,
if they appear in Perfon ; Per Brian & tot. Cur. Br. Corporations, pi.
63. cites 21 E. 4. 7. 12. 27. 67.
8. Annuity againji the Dean and Chaplains of the King's Free Chapel of
St Stiphen Wejiminfier ; Attorney appeared for them, and madeDetence, and
vnpari'd, and At the Day faid that theywere founded by name of Dean and
Chapter of the Fne Chapel Royal of St. Alary and St. Stephen Protomartyr^
and the Opinion oi all the Juitices was^ that they Ihail be eitopp'd to
plead
Q20 Corporations.
plead it, and this feems to be by Reafon of tlie Atrorney, and Impai-
lance, tor it is contrary to his Wananc. Br. Corporations, pi. 71.
cites 15 H. 7. 14.
9. Trefpafs by J. Abbot of R. the Defendant (hew'd how he faiPd
of his Name of his Corporation. Maricham Ch. J. fiid, Known by otie
and the other, or Suit by Name known is no Pkafur the Plaintiffs lor
he ought to know his proper Name ; But it the Defendant be named
by the Plaintiff by Name known, tho' the Defendant be Corporate,
this fuffices. Br. Corporation, pi. 82. cites i E. 4. 6. and 25 H. 8.
the Jullices of C. B. agreed this in Cafe of a Corporation. But Quaere,
]{ there he not a. Diver^ty hetween a&iofis Real and Perfonal. Br. Cor-
poration, pi 82.
to Rep. lo. An aftion of D«?^f on a Bond was brought againft one P. and it
'"•^^ ^' ^^^s (^'^ refpondendtim Majori Burgen/ibiis tic Linn Regis at Comitatii.
cordingly^ iV^br/o/c/^/P. pleads that it was »o? /3/J Dfi'rtf i and a fpecial A'erdia
Where was found, that the Mayor and Burgelles vjere incorporated by the Nauie
a Man of Majores S Btirgenfis Biirgi de Linn S non per aliiid ; And whether
makes an the Ow;{^o« 0/ this iJ«r^/ fliould bar the Plaintiff, was the <:^eftioni
f/ilitZw- ^"^ Judgement was given by Coke, Warburton, and Nichols, tor the
/L», they Plaintiff i for Coke faid, if the cjjential Part of the Oirporatioa was
fliall ^e- flamed k was ftifficient, and in this Cafe the Mayor and Burgelles svas
dare by ^^q effcntial Part, and Linn Regis was another elfential Parr, and ihoih
w"'^"itd two were duly expreffed, and fufficient to maintain the Adion i and
airege'that Coke faid, that thofe Words (Et non per fl//«^) Ihall be intended to be
the Obliga- iVo7/ per a/iiid Senfti ^ non Litera ; and of the fame Opinion were the
tionwas Qji^gj. judges there. Brownl. 57, 58. Mich. 10 Jac. Lynn Regis
Tei^by (Mayor &c.)v. Pain.
t'le other
Name. G Hlft of C. B. 179. cap. 17.
11. In an yf/? of Parliament Mifnofiner of a Corporation, when the ex-
prefs Intent appears, flian't avoid the Act no more than in a V\'ill, for
Parliament, Tejiament and Arbitrament , are to be taken acc.ording to the
Minds and Intentions of thofe that are Parties to it; and theretore
when the Defcription of a Corporation in an Aft of Parliament, or a
Will, is fuch, that the true Corporation intended is apparent, and it
is not poliible to be intended of any other Corporation, tho' the true
Name of Corporation (which is requilite to be exprefs'd in Grants and
Deeds) be not precifely purfu'd, yet the Ai£t oi Parliament and Will
Ihall take Effeft. 10. Rep. 57. b. Trin, ii Jac. Chancellor &c.
of Oxford's Cafe.
12. A Cor^ot2,t\on by Prefcription miyh?i\'efeveral Names by Reputa-
tion; as if they are called by one Name, tho' it is not exatlly the
Right Name, yet Hit fuffices to defcribe the Perfons they mull anfwer
the VV^rit Arg. 11 Mod. 67. pi. 9. Mich. 4 Ann. B. R. in Serjeant
Whitacre's Cale.
New. Abr. 13. The Nameso/"CiJr/)Oi-^//o;/j are not arbitrary Sounds meerly fo
502. intoti- individuiative, but have a certain and fignifcant Meaning; and if that
demVerbi*, bg kept to, tho' the Words and Sillables be varied, yet the Body Po-
litick is very well named, tor then there is enough faid to Ihew that
there is fuch an artificial Being, and to diltinguiih it from others, G.
Hilt, of C. B. 181 cap. 17.
14. Upon Error out of C. B. upon a ^ua. Imp. by the Chancellor
and Scholars of the Unfoerjhy of Cambridge ■A'i.,M-\\\ the Arch Bilhop &;c.
upon the 3 Jac. i. cap. $. difabling Popilli Reculanrs Convitt from
prefenting &c. and veils I'uch Prefcncations in the Chancellor and Scholars
of the two Univerlities relpeclivcly. Defendant had pleaded in Abate-
ment, that ihe Incorporation was by the Name of Chancellor, Majfers, ami
Scholars
Cofts. 321
Scholars &c. and fo chey had fued by a wrong Name. It was inlilted
for the Plaintiff in Error, that the Name of a Corporation was like the
Name ot Baptifm, and it was debated, whether the Aft of Parliament
verted this Right in them by the Name ot" Chancellor and Scholars,
was an incorporating them by fiich Name, ^noad this particular Pwpofey
or whether it operated only by way of Defcriptio Perfo»,e, as in a De-
vile, and not by way of incorporating them. Per Parker Ch. J. the
Declaration fets forth the Aft of Parliament as an Authority to fue by
that Name, which puts it on the Defendant to Ihew fome fpecial Mat-
ter to avoid it, as the acceptance of another Charter by anotherName fubfe-
quent to the Statute ; Per Powis fenior. Chancellor and Scholars is fuch
a Name, as comprehends the whole Univerfity, both Head and Mem-
bers; per Eyre and Powis junior J. non fequitur, that what will be fuffi-
cient to amountto a Defcriptio Perfona to enable a Perfon to take, will be
ilifficient tor him to fue in. Adjornatur. 10 Mod. 207. B. R. Cambridge
Univerfity v, Vavafor, and Crotcs, and Arch Billiop of York. Hill.
1 2 Ann. B. R.
For more of Corporations in General, See 'B^-JLiliUS. ©tiintjS.
{^annnmiljS. gillCCClTOi:. And other Proper Titles.
Cofts.
Introdu6Hon of Cofts, and the Original of them.
I. ^TJT'UtE of Marlebridge 52//. 3. cap. 6. was the firll Statute
. LJ that^^w the Defendant Datnages and Cojis^ if it v/ere. found tor
him. 2 Intl. 112.
2. Stat. Glouc. 6 E. i.Part 2. S. i. whereas before Time Damages were It feems that
not taxd hut to the Value of the Ifjues of the Land. It is provided """* ""''^
that the Demandants may recover the Cojls of his Writ pttr chafed, tomher^^^^J^"'
with the Damages abo^oifaid. J ^ i> ■ vcrdDama-
^ 1 ges ;» Plea
Plea Perfmaland mixt JHiotu ; For by the Statute of Merlon cap. I. Damages are given ,« Dower upon
dying felled ot the Baron, and by other Statutes Damages are given in Writ of Entry fur DifTeiftn and
m Jyel and Cofinage, and fee the Statute of Gloucefier cap. i . that in all Cafes 'where a Man recovers Da-
ma^es he pal! recover Cojls ; and yet where Gre.it Damages are given by the Statute, he fliall not re
cover Cofts, and therefore it Teem.! that the Statute of Gloucefier is intended to give Cofts where RnKle Da-
tnages are to be recovered. Br Cofts, pi. 29.
Before this Statute, at the Common Law, no Man recovered any Cofts of Suit either in Plea Real
Perfonal, or Mivf. 2 Inft 2SS '
Here is exprefs Mention made but of the Cofts of his Writ, hut it extends to all the leeal Cofts of
the Suit, but not to the Cofts and Expences of his Travel and Lofs of Time. 2 Inft. zSS.
3. Jnd this Acf pall hold Place in all Cafes where the Party is to Bef:)^ the
recover Damages. making of
ryfhrs^S^fMenonf^^^^^^^^^ "^^ °"'^ ^ ^tmt of Do^er U^'^S^r,
4 N Thi,
322
Coils.
"This Claule docs not extend to Rive Cofts where Damages are given to uny Demandant or l'i<ii.,.
tiff in any Action by any Statute made after this Parliament ; Ubl djmpui Caiuur, V iCtas Victor: ir.
Expenfis condempnari debet. 2 Inll. 2S9.
Generally 4. And every Perfon from henceforth (J-jall he compclhd to render
this Branch j)ama^es 'xlxre the Land is recover'd '■i^'-^-inJi him upon his own intrujkn^
rivej Dama- , ^rj
g.stoh.m or his own Aft.
has, and his Heirs, againft the Intruder, Abator, Diffeiror, or other wrong- doer himfelf. a Inft.
5. If the Plaintiff' be barred or nonfuited at Common Law^ all che Pu-
niihmenc, regularly, is Amercement. Jen k. 161. pi. 7.
New Abr._ g. There was no ftich Thing as Colb of Suit at Common La^-ju-, h;it if
511. S. Rin jj.Jp Plaintiff' did not prevail he was amerced Pro falfu Clamore ; if he did
bi"''cke<^ r prevail, then the Defendant was in Mifericordia tor his unjuit Detention
Inft. 1S8. bV of the Ihincih's Rijiht, bat this made the Plaintiff' no Amends for the
I do not ob- Colts that he had laid out of Pocket, in obtaining his Right ; /o it
ferve S. P. j^^^^ ^^^ ,/^, Statute oj Gloticefier, cap. i. but by that Statute, if any Per-
fon recovered Damages in a Plea Pcrfonal or Mixed, he lliould have
his Colts, which was rhe Original of Coji s de hicrcmento ; tor then Dama-
ges were lound by the Jury, and it was thought no Diihonour to the
Court, to tax the moderate Fees of Counfel and Attornies that attend
the Caufe ; fo Matters itood for the Plaintilf till 43 EIiz. cap. 6. Gilb.
Hilt of C. B. 210.
7. There were no Cojis at Common Law given Ex Profe/Jo tinder that
^itle, but the Plaintiif was punilhed in Amercement to the King Pro
talfo Clamore, and the Dcfe.idant in Mifericoidia, where the judg-
ment was againlt him, cum Expenfis Litis under that Title, becaule he
would fuHer twice tor the fame Fault ; But it feems in the Iters where
the Expences ot the Suits began to encreafe, they were zmnt to give their
Cojis in the Grofs, and unblended with the Damages, and the Judges be-
ing in thefe Iters, alBfted with the Officers of the Court, and not hur-
ried or itrained in their Sittings, they could ealily make a Computation
of fuch Colls; but when Ed. i. was changing his Iters, and bringing
in Relidentiary Jultices to go the Circuits and try the Caufes in their
Counties, that there might be the fame uniform Law, then it was ne-
celFary the Colts Ihould be taxed above, and not at the Aflizes; and
thence by the Statute of Gloucelter, the 6 £. i. they introduced Colts
for the Plaintiff, and the Words are viz. upon theAlhz.es, Writs of
Cofinage &c. the Demandant Ihall recover againlt the Tenant the
Colts of his Writ purchafed, together with the Damage aforelaid, and
all this Ihall be holden in all Caufes where a Man recovers Damages ;
this brought in Colts in Real Actions, where there was no Damages,
and alfo in all Perfonal Aftions, for even in Action of Debt there are
Damages for the unjuit 'Detention, and upon Demurrer the Damages are
conielled, and therefore there is a fufficient Authority tor the Court to
alfefsthe Expence or Damage. Gilb. Hilt, of C. B. 214, 215.
[A] To (whom Cofts fliall be given.
[And againft whom,]
I. T iF Karon and Feme join in fltt SftlOIt, Slttl 3 Vcidift fg t^lMX
X for rhe Plaintills, aUU tI)C Jury aifds Damages ultra Milas <S:
Cuihigia
Cofts. 323
Cultasiia per ipfuni, (UlIjO 10 tIjC iStlCOiO circa Scclam fuani expolira
ta t'a iniiro, & pro Muis & cmtagiis iiiis to fa niucD, anB tljeccupon
judgnit'uc IS given, that the Baron and Feme Ihall recover the Colts and
Dimai^ts, tljougl) It W fouitD, tfjat tJjc l3acon onlp crpcnticn ano
nssiutni'ii ti>2 ^iJoncj) tdr t(jc Coils of tf)c Suit, nmnnuclj ass tt]e
ji ci'^t: ijaii notijing, pet tlje jutignKut is gom, tijat tljc Xaron atiO
Jcvfie fijall rcto^et tlje CoffSi foe tiicce cannot be one Siufgnicut
far tDC Coffij, ano auotJjet; fou tijr Danuwesf. {^. 9 Car» X>. K»
bfcttuicn Cj«yftf and Berry, an)UQscO ui a ilDcit Of ^crot* Juttattic
Cr. 9Cac* Kot* 1163.
2. i\n Infafjooi 12 \ ears of Age was Leffor in F.je^ment, the Z^e
wasNoHftiit ; the Father of the Infant --jjas profccutcd the Salt was dead ;
50 1. Colts were given to the Defendant, whereupon the Court made a
i? ///(■, that the Le[Jor (honld pay Cqfls It was doubted in this Cafe, be-
caule of his Intancy ; bat tf his Father had been al'me^ they would have
made hhn pay the Colts, or if he had left JJfets, his Executor /hoit/d, but
here was no Body but the Infant to be charged. Advifare vult. Freem.
Rep, ^73 pi. 478. Mich. 1674. B. R. Anon.
3. Trujiees that aS contrary to their Irtifi fliall pay Cofts, MS. Tab.
1702. Haberdallier's Company v. Attorney General.
4. \N' here on a Bill to call a'Truftee to account, he by Anpwer fahmits
readily to it, though, found in Debt, he lliall pay Interelt for the Ba-
lance only trom the Time of the Account liquidated, and no Cofts j
otherwife if he controverts the Jccciint, there if jound in Arrear fliall pay
Incereft and Cofts, as the PJaintilf niuil have done if he had been found
indebted to him. Chan. Free. 254. pi. 206. Hill. 1705. Parrot v.
Treby.
5, Lord Chancellor King ; An Infant by Prochein Jniy brings a Rill,
and never Jlirs in it after he comes of Age, and the Bill is difnnfjed. The
Infant is liable to pay Colts, and iniiji take his Remedy over againji the
Prochein Amy. 2 \V ms's Rep. 297. pi. 80. Trin. 1725. Turner v.
Turner.
6. The Inhabitants of a Hundred have a Capacity to {aefor the Cojis
of a Nonfuit in Confeqtience of the Statute of Winton, and, of 23 H. 8.
Gibb. 296. Trin. 5 Geo. 2. C. B. The Inhabitants of the Hundred of
Lauiefs v.
(A. 2,) In what Cafes.
I. \ Sfumpfit, for that the Defendant, in Confideration offuch Clothes s. C. cited
/~\ delivered at fitch aPlace, promt fed to pay 8/. and in confideration of by Richard-
a Debt upon Arrearages of Account, the Defendant being indebted in 1 3 /. '°"- ^^'^^'
the Defendant promifed to pay it. The Defendant pleaded non Alfump-
lit ; and Ibnnd againlt him, andfevcral Damages ajffffed, but entire Cojts,
'and Judgment accordingly for the Plaintiff And Error thereof
brought and held that the Confideration upon the 2d Ajfumpjit was not
fufficient ; But for the i/?, and tor the entire Cofts, the Judgment was
alfirmcd ; kx\difor the id Airumplic, /? was reverfed. Cro. E. 537. pi.
72. Hill. 38 Eliz. Grymfton v. R.eyner.
2. In Action on the Caje the Plaintiffwas Nonfttlted, and it was mov- So m Tr^f-
ed, that no Cofts Ihould be given againfl: him, becaule the Daiara- f"-^' f/'" ^^'f
tion was infufficient m Law, lo that li the Verditt had pafs'd tor the ^'L'^;„I°_^^
Pkintitf, he could not have Judgment, but it was anfwer'd, that it hid CoKjlable
been often ruled, that the Defendant lliould have Cofts notwichltand- who was
ing the InfufTiciencv of the Declaration, and that it never was denied tS"",*^ "°^.
° - ' , Guilty and
324. Coits
that what bun only in ©rim(taU'£J CilfC, lor Cofts arc given for Vexation, cire^
a'offi^r' '^ as agreed ptr Cur. D. [ 32. a. b, pi. 5. 6J 18 H. &. [buc it is mif-
the Plaintitf pmued, and ihould be PalLh. 28 & 29 H. 8.] [where ic was fo held
fhall not by Fitzherberc and Baldwin, but Englefield dubitavic] 2 Roll Rep.
takeAdvan- S8. Pafch. 17 Jac. B. R. Pafford V. Webb.
tape of the
Iiiufficiency oT the Writ and Declaration to excufe themfelves of Cofts. Cro. C. 175. pi. 20.
Mich. 5 Car. B. R. Heylor's Cafe.
3. But after Judgment r ever fed Debt does not lye for the Coffs given upon
thejirfi Judgment. D. 32. b. Marg. pi. 6. cites Pafch. i Car. B. R.
S C. cited 4. \\\ Kjett meat \\\i Plaintiff mijiook his Vciiirc Facias.^ and the Jury
and S. P. found for the Defendant. The Defendant had Judgment for his Colts
"^ccor'dinely iiotwichftanding the Venire was miftaken. Godb. 329. pi. 423 Arg.
Pa^hn. -65. cites Mich. 18 Jac. Done v. Knott.
Pafch. '21.
Jac. B. R Pricliard V Reynold. 2 Roll Rep. ; 27. S. C. refoWcd accordingly. H.°tl. 1415.
Mich. 5 Car. C B I'tnigljt Iv S>tnimonDS, the Exception that the Venire was mif writen was
allow'd, and becaule the Defendant might have Judgment he cannot have Cofts; And Ri.hardfoa
faid that B R. in Attion on the Cife by (BrilUltoa U 1^}o£llT, it was found agiinlMiim, :ind the
Plaintiff for the Prevention of Cofts alleg'd, that the Declaration was not fufficient, and it was al-
low'd; But if the Plaintiff be Nonfuit he fhall not have Benefit ot Inch Exceprion to prevent
Cofts, by Reafon of the unjuft Vexation. S. P. as to the Noaiuit. Ha.). 2S4. pi. 507.
Trin. 16 Jac. Steward v. Sudbury.
5. A Man inhabiting in the mofi remote 'Part of England 'was arrcfied
eight times by Latitat., and no Declaration is put in ; and the Councel
prayed Cofts lor the Defendant. The Prothonotary laid, that he Ihall
not'have Colts, unlefs he come in Perfon ; But Richardlon laid on the
Contrary, he Ihall have Colls i tor it appears that he had been put to
travel, and a Day given to fliew Caufe why the Cofts Ihall not be giv-
en. Het. 73. Hill. 3 Car. C. B. Fenn v. Thomas.
6. Whether Cofts might be given on a fpccial VcrdicJ, the Courc
doubted ; For the Statute 23 H. 8. cap. 15. lays, that where a Verdict:
is found againlt the Plaintitf^; But in a Ipecial Verdi6l it is neither found
for or againft ; But it may be faid, that when it is adjudged againlt
the Plaintiff, then it is found againft him ; and 4 Jac. cap. 3, which
oives Colts in an Eje£lione Firmae, had the fame Words, if any Ver-
di£t, &c. But it may be anfwer'd, that as in Demurrer no Colts flu-ill
be recovered, no more in a fpecial Verditt, for that the PlaintilF had
a Probabtkm Caufam litigandt^ and the Statute iiia\ be intended of vex-
atious Suits &:c, Het. 144. Trin. 5. Car. C. B. Fawkenbridge's
Cafe.
7. Affidavit that the Defendant owed but 40 s. the Court ordered the
Plaintitf to fliew Caufe why he Ihould not accept it and on Refufal
he Ihall have no Cofts, unlefs he proves more due. 2 K.eb. 152. pi.
27. Hill. 18 & 19 Car. 2. in B, R. Rhodes v. Brooks.
8. A Prohibition waspray'd to the Eccleliallical Court of Lincoln,
for that the Plaintiff was profecuted there ex Otiicio upon Articles ex-
hibited againft him for not coming to Church., and for fitting irreverently
there when he did come, and becaufe they taxed Cofts againft him, the
Court doubted, whether Cofts ought to be taxed, becaule it was not a
Caufe between Party and Party, but promoted ex Officio Judicis, &
per inftantiam Curise, tho' a Perfon be alligncd by the Court to profc-
cute it. Afterwards, by the Mediation oi the Court, the Cofts were
mitigated, and the Party lubmitted to pay them, and to conform to the
Laws of the Church. Hard. 503. pi. 10. Mich. 20 Car. 2. in Scacc.
Browne v. Lake.
0. If
,e
325
Co(b.
9. If the Defendant pleads a Plea in Abatement , and Plaintiff confejfes
it, the Plaintiff thereby faves Colts i Per Cur. 12 Mod.. 145. Mich. 9
W. 3. Greenhill v. Shepherd.
10. When Proceedings are fet a fide for Irregularity, there fliall never
be Cofts; Per Holt Ch. J. 12 Mod. 435. Mich. 12 VV. 3. Anon.
11. In Debt on Bond, tho' the Money be tender d before ASion brought^
which is refused yet the Plaintiff malt have Cojis ; For the Statute gives
the Court no Jurifdi£lion till after Aftion brought, and therefore
they cannot take Notice of a Tender before. Refolved, 10 Mod. 26.
Trin. 10 Ann. B. R. Player v. Bandy.
12. Whcxt Defendant imparls, and a T^d Perfon demands Conufance of
Pleas, which is refufed to the 3d Perfon as coming too late but which
otherwife would have been granted, no Colts Ihall be paid. 10 Mod,
156. Pafch. 12 Ann. B. R. Manners v. Perne.
13. 'Three Declarations for one and the fame Battery being ordered to be
reduced into one. Plaintiff's Councel prayed Cofts, but was denied.
Notes in C. B. 250. Hill. 7. Geo. 2. Harper an Attorney, v. VVood-
houfe and others.
14. Plaintiff's Attorney delivered a very long Declaration for entering
Plaintiff's Houfe and taking and carrying away his Goods, and in
every Count repeated the Particulars contained in an Inventory of the De-
fendant's Goods taken at the Time they were diftrained for Rent, on Ac-
count of which Diltrefs this A6lion was brought, with fame fmall Va-
riance in the Defcription of the Goods, and laying the TrefpalFcs on
dillerentDaysi the Court, upon hearing Counfel on both Sides, it appear-
ing that the Aftion was brought for one and the fame Trefpafs, order-
ed two of the Counts to beftruck out, and the Attorney to pay Cofts. Notes
in C. B. 239. Hill. 9 Geo. 2. Macdonald v. Gunter.
15. Motion to fet alide Plea in Abatement, which came in two Days
after Declaration left at Defendant's Attorney's Chambers, under the Door,
which was not found there till November \fi. The Agent had appeared
for the Country Attorney, and Plaintiff had given no Notice to the Agent
of Declaration being filed or left ; Per Cur. whether the Plea came
regularly in or not is the only Queltion ? And the Declaration not be-
ing delivered, nor any Notice to the Agent of its being filed, the Rule
for fetting alide the Plea was difcharged with Colts, it being tricking
Praifice to put the Declaration under the Country Attorney s Chamber Door.
Notes in C. B. 251, 252. Mich. 12 Geo. 2. Burnett v. Kendall.
1 6. In what Cafes Colts are difcharg'd by a General Pardon. See Tit.
Prerogative (S. a) pi. 13. and the Notes there.
(A. 3) For not going on to Trial.
J.TXTHERE, upon Notice of Trial, the Defendant makes Affidavit,
\ \ that he attended with his Counfel and Witnejfes, and the Plain-
tiff did not proceed to Trial^ the Court here will make a Rule for the
Secondary to tax the Delendant his Coits, if he finds that Coils ought
to be taxed. 2 L. P. R. 243.
2. The King ifzW pay Cofts for an Amendment, but fhall not paycombdto
Cofts for not going on to Trial ; but where there is a Profecutor, he*,, c &S.P.
fhall pay Cofts for Amendments, and not going on to Trial both, butas ro the
then there muft be an Affidavit of the Name of him who is the Profecutcr,^f°^^'^^^^°^
for that does not appear upon the Indiftment i and if the Detendant^^^f^^^'^
does not know the Profecutor, he ought to apply to the Attorney Ge-[ndiament.
4 O nerai
Q ^ 5 Cods.
nera!, who will inform him. i Salk. 193. pi. 2. Hill. S \V. ;j. B. R.
The King v. Edwards.
3. It upon Notice of Trial Defendant drains Breviats, retains Coim-
fel^ and makts ready his 1] ttncpts before that Notice is countermanded ;
upon Affidavit thereof and Motion, he fliali have fuch CoJls as Mailer
Ihall tax. 12 Mod. 560. Mich. 13. W. 3.
4. On a Motion tor Cotts/or net going on toTrial it appeared t hat a Coun-
termand -was given on Siinday, the Day betore the Commiliion Day^
which it was iaid would have been good, had it not been on a Sunday,
but theCouit held, that Colts Ihould be allowed. Rep. of Prac. in
C. B. 15, Mich. 4 Geo. i. Deigh;on v. Dak -n.
5. Act ion was laid in Cornwall. Notice of Trial zv as given in Town ^
and countermanded in the Country three Days before the Conimi (ft on-Day of
the J [fifes. The Queftion was, whether this vvas a good Countermand
to prevent Colts lor not proceeding to Tiial, Defendant ha/ing lent a
W itiicls from London, who was got as tar as Exeter before he heard
of the Countermand ? Per Cur. Notice of Trial connot be gi'. en in the
Country, but may be well countermanded there ^ and though by that
Practice Deferdunt is put to an Inconveniance in this Cale, yet the
Inconvenieiicies v^ hich muft necefiariiy accrew from the contrary Prac-
tice would be much greater. The Countermand would have been good
if given but two Days before the Ccrnr.u, non-Day. Notes in C. B.
212, 213. Trin. 8 &, 9 Geo. 2. Goodright, on the Deniife of Haw-
key V. Hoblyn.
iee
(B) (A, 4) To whom ; And agalnft whom ^ In-
formers.
S. p. per I. T) Y the Words of the Statute of 18 Eliz. cap. 5. [S. 3.] That eve-
ShutejAnd _|j ry Informer upon a Penal Statute that Ihall willingly delay
'v.^^^h'^'^''^' '^^'^'■> rf'f^'ontinue, or be Nonfuit, or againlt whom the Matter Ihall pals
P3,'yg,ij^.dhy Verdia, or judgment, Ihall pay Colts, it was held, that all In-
is a ipecial ibrmers upon Penal Statutes, which give Action to him that will Sue,
Perfon, and fliall be laid to be an Informer in the Common Courfe of Informers, and
?"°^'°''? Ihall be confider'd as common Informers, though they never before in-
everyPa°ty form'd againlt any ; But where a Statute gives the Moiety, or other
frievcd; Part to the Party griev'd, and not to him that will fue in Common,
'oritisa there if one informs for himfelf and the Queen, he is not within the
Grief to eve- (^yj^p^fg gf ^^ Statutes. This Difference vvas taken lor Law, and
Oif to fee^ ' Judgment accordingly. And. 116. pi. i6z. Knevet v. the London
anothei-ot- Butchers,
fend the
Law ; but ?.\ny grkv'A by this Statute ii he that has Dam.tge ; And to this the Court agreed. Sav.
50, 51. pi. 106. Patch. 25 Eliz,. Walker'sCafe Where the Party griev'd brini;s the Aftion
upoo a Penal Law, he fhall have (Jofts if he recovers, but contra if it be brought by a Common In-
former. Lord Raym. Kep. i-jz. cited by Powell J. as adjudg'din C. B Trin 8 W". 3.
2. Information upon the Statute 21 H. 8. cap 13. againfl tav Parfons,
(viz.) againlt one for JVon-refidence, and againlt the other for taking a Farm i
one of them pleaded Sicknels, and that by Advice of Phylicians he re-
moved into a better Air tor Recovery ol'his Health i the other plead-
ed, that he took the Farm for Maintenance only of himlelf and Fami-
ly i thefc were both good Pleas, and the Informer not proceeding, but
having brought this Iniormation only fW Fetation, and to snake the Dcfeu-
a.i.'/ts
Cofts. 327
dants compoiaid 'with h'nv, they exhibited another Information againlt
hin; upon the Statute iS Eliz. cap. 5. and moved the Court, that be-'
cauie the Informer was a mean Pcrlbn, he might give Bail to anfwer
the Colls, but it was denied, but made a Rule, that the Defendants
ihould not aniwerthe Information before the Informer appear'd in Per-
fon. 2 Built. 18 Mich. 10 Jac. Martin's and Gunnyltone's Cafe
3. Upon an Information for Perjury Holt Ch. J. faid, it' the Profe-
cutor gives Notice cj T'nal (tiiough in an Information) the prjt yiffifes^ and
docs not proceed^ the Defendant mult have Colts. If the Perfun indicfed
giws Notice^ the Profecutor fliall have Colts. Comb. 225. Mich 5 \V"
& M. in B. R. the King v. Allen & al'.
4. \\ hether in an A£tion by Informer &c. for 5 1. upon 31 of El. for But Lutw.
felling an Horfe -joithotit Tolling &c. See 3 Lev. 374. Mich. 5 W. & M. ^°'- ^- ^■
in C. B. Sedgwick v Richardfon, where Levins, who was Counfel for [hat°he*
the Plaintiif, fays, that Judgment was given for the Plaintiff^ (Lutwich)
was the only
Cnunfc-1 wuh the Defendant, and that he alway.'; after the Cafe wa.s mov"d till the Reponol it in 5
Lev. took it, that the Rale of Court was, that no Cofts were given in this Cife; tut this Report put
him on tunher Iiiquiiy, and for that Pmpofe he faw the Record, but no Judf^ment is entied on the
Roll, how Is th^re .mv footflep of the- Cafe in Point of ColK to be found by' me I\emen,'">iance, or
the Court-book; but f'ly.s, that what gives him full Saiisfaftion that the Court ga^'e no Cofts, is,
that the Defendant himlcl.'' inform'd him now, as he had done before, wubin a little Time after the
Cafe was debated, that he had only paid the Penalty, viz the 10 1. in Difcharge of the Suitagainft
him.
5. In an Information againji D. and others^ one Defendant was acquit^
ted, and the relt found Guilty at the Alliz,es, and though the Judge did
f!ot certify a probable Caiife, yet it was held, that the Profecutor was not
liable to pay this Delendant's Colts, becaufe till the 8 & 9 IV. 3. the
Plaintili' never paid Colls in any A6tion, if but one Defendant was found
Guilty; and the Aft of 4 y 5 W. S M. cap. 18. cannot be intended to
make Profecutors otherwife liable than as Plaintiffs were before in other
Actions. I Salk. 194. pi. 5. 6 Ann. B. R. the Queen v. Danvers
&al'.
6. In an Information filed in the Attorney General's Name for beating
a Citjiom-Honfe Officer^ the Profecutor had given Notice of T'rtal, but not
countermanded it, till the Defendant had retained his Counfel, and was
ready to attend, upon which Mr. Kettleby moved tor Colts j But Mr.
Malterman informed the Court, that in Informations of this Nature,
where the King's Name is more than barely made ufe of, the Crown never
receives nor pays Colts j accordingly the Court refufed the Motion.
Barnard. Rep. in B, R. 275. Hill. 3 Geo. 2. the King v. Gohaire.
(B) In what Auiions.
I. T il3 a Prohibition, if IfTue tig joined among others, whether the S. Cat Da-
X Defendant hath profecuted in the Court Chrillian after the Pro-'^^K«(P)
hibition granted, anD It i|5 found againll the Delendant, tIjC Plaintifffo^^:'!
fiiall Ijnue ijis Cofts, as lueU a^ uiljece tlje Dcfcuoant isfounDphii.Facy
(5?iultj> m an attacijuicnt upon a proijibitlon. 99tc{)» 15 Car. 16. v. Lang s. c.
V\s betttJCCJl i-'-'-cey and Lange aH)UO0:eD, aUD tIjCU ViOUCfjEr! CtHL^'^Hg'd;
7 * Car. 15. U)l)crc it iiias fo rcroIbeD pet €\\x^ upon a mm of fc-c ,,« ^l"'
licral ancient Ipitccnentsi. i scand
cited a Cafe
in C. B. where the Suit being coramenc'd i:i the Spiritual Conrt after a Prohibition d-Iiveicd, an At-
tachment
C»2S
Coil
s.
tHchrrenr ilTucd nn t!ie Prchibition, ard becaufe the Parry was damnified, and put to hi? Suit of At-
tnclimenr, which wi^; foU' d to be Tued, the Party there recovered Dimiges and Colls, and fo the
C'ciirt tin.inimoufly agreed here, that the Party fliould have his Dimages and Gofts found by the Jury,
ahd [udgnient acLordinglv Nifi. S. C, cited 3 Lev. 560.
* Jo. 447. cires it as 7 Jac.
Seetit. Mor- 2. 3^11 flJl ^CtlOH upon the Statute of" 21 H. 8. fcap. 6.] for taking a
'T'^'^Vu Mortuary apmft t(jc statute, tlje piflintiff fljailijaDc fonicCo!!^,
KotesTherrtlJOUgl) It t5 ou tt Penal Law, uccaufcit i& bfougljt far a D£Ot. mm
(Kiitric^ 164. Contra ^icl). 12 ijac. 15. smah's cafc, per Cu=
xmw,
3- 3if CO{!0 arCaKarded to the Defendant in a Prohibition by the
Statute of 2 E. 6. upon a Confultation (jraUtCil, Ontl tfjC I'artv for Uiljani
tljcpaue ataarneti brings Debt for them, fje fljaii IjaUc !ji5 Cofts in
tl3!2i Suit. S^ICl). 22 Jac. 'B* E. bCtlUCen Cuckaam and Davis, Dll=
bitatuc, but fp. 22 3ac> 05. E. it uias atDunsea pec Curiam,
tijat ije fljali IjallC COftiS, bCCaUfC Vm i;3 a new Suit and Judg-
ment.
ThisCafe is 4. ^iu aU ^CtiOtt of Debt upon the Statute of i 5: 2 \d% $ f^a. Cap.
in i> •';7 12. of Di It relies upou tljc 'idraucl) Of tijc ©tatutc, bp luljtcl) tlje 5 1.
I^^.v and triple Damages are given tO tljC PartV OnCDeO, for dnvng a Dif-
^09 a pi 12 trefs out of the Hundred, UO COft0 are tO bC RiDCIt bj) tije CaiD, UD
Mich.2& 3 catife tlje Statute bp Jntciituiient tyilicsi treble Dauiagcs ui lieu of
E!i7. Da. tijc iui)oIc. D. 2 CI15. 177- 32- Co. qjagna Cfjart. 289.
tiiel's Cafe.
S. C. & S. P. accordingly.- Bendl. So. pi. 125. S. C.' ■ Mote, that where Jciion Penal is given
hy Statute to recover a great Sum by JBion of Debt for ingrojjing &C. there the Plaintiff pall not recozer
Lofts and Damages in this Adion of Debt. Br. Damages, pi. 200. cites 3 5 H. S. & Trin. 4 M. i. .
Br. Colls, pi. 32. cites 35 H. S. S. P. 3r. N. C.pl. 25!). cites 35 H. b. & Trin. 4 M. i. S. P ,
10 Rep. 116. b. cites Br Damages, pi. 200.
Cro.C. ,^9. 5. But upon the Branch Of tl)(0 €)tatUtC Of i $ 2 pij. f ^^, {j?
pi. 3. North jy|ji(;lj ((; jjj cnattCU, That if any OUC takes more than 4 d. for im-
s cTreTol'v'd pounding a Diftrefs, he Ihall torleit 5 1. to the Party grieved, over and
per 'tM Cur. befides the Sum taken ultra 4 d. if aUJ? ClCtiaU Of Debt be brOUgljt by
ynd that the Party grieved for the 5I. far tIjat tlje DefeuDailt tOOk 6 D. Ultra
whena^jf^ tljc 411. for tijc impounOini]; a Diftrefs, ann tljc Defendant pleads
Q>^'^'Nii debet, aiiU it i^foiuiD aBaiJift Ijim, tlje 3iurp ougfjt to gine (*^
^^^>rNO Coffg ; for ijetC this is a certain Debt bCfOrC tljC SlftiOn btOUlJIjt, ti)d'
gtvesaPenaityXt \}Z bP \X \pt\\\\\ JLalU, and Colfs fliall be given for the Delay in Non-
certain, and payment of the Money at the Return of the Summons, a0 ijC Uliffljt
f «"/z)ififi3a^e paitiit, anu been nifcljargcD of \y\% Colts ; for this is not like
theDefendant to tljC Rrft 15U\\i\) Of tljlS StatUtC, iUljCre triple Damages are ^{\iZ\\,
.iocs pay upon UOr tO OtOCt PCUal StatUtCS, where the Damages or Debt are uncer-
Demand, tain, as upon toe 2 Of CD. 6. till Eecoueri). s^iclj. is Car^ 15. E.
th"ep"r°vto betiuecn North and Mufgrave^ iu B t^tlt Of Crtor upon 3 Jutiijmeut
a Suit, when lu 'Bauco, Uiljcrc Colts Zi'mx upou ^Qbicc, aOjUDgco per Curinnij
he recovers aiin tljc fltft Juna'mcntatfirmen. 3intraturCr. 151^01.975. Ji^eui
hefhallre- entl'lGS i6^, UpOU tljC €)tatUte Of 13 Cll> cap. S- of Forgery Of
Dlmae''s f'llfc Decns. i!3eu) entries 164. upon tljc Statute of 21 ip. s. cap.
becaufeli'e 6. Of Mortuaries, COftS Bt^CU.
(lid not pav tjie Duty by the Statute upon Demand, and he fhall alfo have Cofls, or othcrwile he may
expend more than he recovers ; but where the Duty is uncertain, as to recover treble D images, as oti
the Statute of W.ilfe, or not fetting out Titiies, there no more is given but the treble Value, and no
Cofts. Jo 447 P' 9 Mufgrave V. North S. C adjudg'd. . Mar 56 pi SS. and (5 1. pi. 95.
North V Mafgrave, S. C adjornatur. S. C cited Arg Vent. 13; Trin 23 Cir, 2. B R but the
(^our: held, that <.-offs a'ld Dam igcs ought not to be given in A(Vtion> popular, be the Forfeiture ccr-
t.iin or not ; but whtre a certain Penalty is given to tiic Party grievVI, there he fh.ill recover iiis Cods
and 1) images Eiton v. Barker. .In Debt on the Statute 5 Eliz.. cap 9. about Witnclles the Court
hi:ld, tliat no ('ofts (hall be in a popular .-/clion, be the Penalty ccirain or uncertain; (^ur wliere the
Parly grieved (hiWlrJivi Penalty certain, he fliall have Cofts. i S:il!<. 206. pi 4, Trin. 9 VV. ;. B. R.
Shore v. Madidoti, Comb. 44^. .S. C. accordingly. • Some Divcrfity per Cur Carth 2;o,
Cofts. 329
TrP'p^^fJ^irTvN'. 8c jM in li. R. The Corpnration of Piyniouth v. Coliins, vvhich was Debt for a
^enalty"'of" Cl. brought bv the Corporation Qui tam &c. on a private Att of l^u■IiallleIlt, concerning
the Mew River WatcV brought to Plvmoueh, for diverting the Water Couric, contrary to the Statute,
and held per tot Cur. that the Plaintiffs fliou'd have Cofls, heciufe here was a certain Penalty given
tocert.un PerCons, and fo within the Rule of" Gofts. Skinn. ;rt;. pi. 6. and ;rt- pL 14- Mich 5
W & M in B R. fame Diverfity taken in Cafe of the Company of Cutlers in Yorklhlre v. Kuilin,
which was an A-ftion on a private Aft of Parliament for a Penalty, for retaining an Apprentice con-
trary to that Aft, and ru'ed that Cofts be given, and cite'^ the Cafe next above Comb. 224. Cut-
ler's Company in Yorkrtiire v. Harfley, S. C- 12 Mod. 46 Ciuki'!. Company &c. v. Buskin,
S.C.
(5. bis; 3n an action upon tl)c ©tdtitte of 2 h. 4. cap. i. [n.] Jfy^^
for fuing before the Admiral lor a Thing done upon the Land, III J^^" qj °"
tDl)iCl) Cafe tljC Statute gives tO tije[3iaintt{f double Damages UUtljOUt iota v.Poin-
fuca'aimx of nnp Coffd, I'et \)t fljall recover n0 mcll double Coits ais ten cited
tjouble iDauiao;cs?» Co, 10. Xtlforo [pilfovD] 116. D. 4i s- ^a. ^°«^p"<^-
i59[b.pU 37,3 s] Ibid. ,16.
b irives the Reafon, for that this a Statute of Addition ; becaufe Damages and Cof^s were in fuch Cafe
recoverable at Common Law, and cites S E 4- i ;. b. 14. a. and the St.itute increafcs the Damnges to
' double, and yet he flialt 1-ecover Cofts alTo; For the Statute in ificreafing the Damages does not takd
awav the Cofts • S. C cited ikinn. 555. See Lawfon v Story.
6. And in tl)C faitl Action upon 2 IX 4. tOe Jut-ors may affefs tijc
Daniagcs ano Coftis entirely, If tljcpiuitl, foe Damage's mciuQc
nil. Co. 10. piforri 116.
7. Bat it fecmss upon tljc Statute of 2 1>> 4- "o CoHs fljall be ^Mn
De Incremento bp tl)C COUVt, but only the Colts given by the Jury
ihaii be double, auti uotijins De 3]ncL-cmciito. pIU 16 Car. Ti. E»
IjCtlUecn Trdawny and Babbe, fO COUC UpOU aOblCe. ^iUtratUC P. 16
Car.Eot. 137- ^ , ^ , ,
8. But S^afteC fpoHtieSiBOn faiH, tljerC tUere fome Precedents that * S. C. cited
the Coits given by the jury ihould be doubled, and alfo the Cofts given and ^^^\.
De Incremento ; bUt It * fCCmeO tO IjiUl tlje Otljet l©aP, fClllCCt, tO ':°""''„^|'"-
tioublc tije cofts gi^eu to tlje jurp onlp, uiittjoui; anp Incrcafc by "^' ^^ '
ti)c Court, to be tljc uirc aifo fafe l©ap.
9. In Wajts the Plaintilf Ihall tiot recover Cofts, hecaafe gnat Dama- 10 Rep. nfi
^f.f flr£^?rc'e« by Statute. Br. W'alte, pi. 118. cites 2 H. 4. 17. b. S. P obi-
ter and S. C.
cited per Cur. For this is a Law of Creation, and gives Remedy where none wa-s before, and there-
tore no Cofts fliall be iccover'd.
to. Writ oni'ajfe was brought, and the Wafte found, and Sicrene
prayed that they inquire of the Damages of his Writ and Suit, viz.
Colts, as it feemsi And Per Rickhill and Thirn, where Damages are
given all by the Statute, as in IFa/^c, Decies ta/jtiiiHy ^tiare Impedit^
Sec. a Man fhall not recover other Damages than are in the Statute,
quod Curia conceffit. Br. Cofts, pi. 6. cites 2 H. 4. 17.
II. In J^iiare Impedit^ the Plaintiff recovered Damages without Ibid. pi. 27.
Cofts; For where Damages are given by Statute lince the Statute of '^^'^'S. C.
Gloucefter in Certainty out of the Courfe of the Common Law, a pigjnt,^
Man Ihall recover that which is limited in the Statute, and not other- f^an recover
wife, and therefore he Ihall not have Cofts in Quare Impedit. Br. Cofts, the Prefent-
pl. I. cites 27 H. 6. 10. f"«"t ^^^
Damages,
but not Cofts ; becaufe Great Dam.iges are given by the Statute. Fitih. Damage, pi. 29. cites
S. C. Keilw. 26. a. pi. 2. B. R. S. P. by Fincux Ch. J. 2 Inft. 289. S. P. ■
10 Rep. 116. a. b. S. P. becaufe the Stat. W. 2. cap. 5. which gives Damages^ is an Aft of Creation,
and cites S. C. Skinn. 25 Mich 5; Car. 2. C. B. it was ruled, that if it be a Quare Imp. by
Common Law, then there ftiall be no Cof^s, but otherwife if it be by Statute ; And if tfic Church
is full of the Defendant by Inftitution, then it is a Qua. Imp. within the Statute, but if it is notj
ihen it is at Common Law ; and cites Co Ent. 508, 509.
4 P 12 So
33
O
Coils.
In Decks 12. So in a Decks 'Tantitm the PlaintitFlliall recover no Colb. Br.
'Tantum_y Colts, pi. I. cites 27 H. 6. 10,
Law of Creation, the Plaintiff (liall recover the Penalty given by the Statute [58 E 5. c^j. li.] and
no more; beiaufc it is a Law of Creation; per Cur. 10 Rep. 116. b. Mich. 10. Jac. B. R. in
Pilfold's'Cafc, cites 2 H. 4. 17. b.
10 Rep. \\fi. 13. Contra it is faid InRavipment of Ward. Br. Corts, pi. i. cites
b. s- P- ?"d 27 H. 6. 10.
cues i>. ^. ^^ y^^r brought an ABion upon the Statute i ^ 2 P. ^ M. againll
B./or imlaiaiul impunding of Dijircfjfs^ and was Nonfuit , It was moved
by Shuttle worth Serjeant, it" the Detendant lliould have Cofts upon the
Statute of23 H. 8. and it was adjudged, that he fhouldnot ^ and that ap-
pears clearly by theWords of the Statute &c. tor thisAction is not con-
ceived upon any Matter which is comprifed within the faid Statute and
alfo the Statute upon which this Aftion is grounded, was made after the
faid Statute of 23 H. 8. which gives Cofts, and theretbre the faid Sta-
tute 23 H. 8. and the Remedy of it, cannot extend to any Affion dons by
I 8c 2 P. & M. And Rhodes J. faid, it was fo adjudged in 8 £liz.
3 Le, 92. Patch. 26 Eliz. in C. B. Wrennam v. BuUman.
i^.Debt brought in B, R. /or 16 J. Cojis ot Salt given in an Infe-
rior Court tfpon a Nonjtiit upon the Statute of 23 H 8, Adjudged that
the A6tion did lie, tho' againlt the Statute of Gloucefter, which is,
that no Aclion Ihalt be brought here for any Sum under 40 s. Cro. E.
96. pi. II. Fafch. 3oEliz. B. R.Harward v. Furborne.
16. Avowry for an Amercement in a Lect, for not doing Suit, the Plain-
tiff was nonfiuted, for which the Defendant had a Return, and he
prayed his Colls, but the Opinion ot the Court was, he Ihould not
have Coib, for it is not fuch a Thing for which the Statute doth give
Cofts, for it extends only to Cufioms and Services. Cro. E. 300. pi. 15.
Patch. 34 Eliz. in B. R. Porter v Gray.
17. Atiion upon the Statute 5 Eliz. for Perjury, it wzs found for the
Defendant, and 9 1. atTetTed for Cofts to him i and itwas moved, that
Cofts lliall not be given againft the Plaintiif; for he fueth as a Party
grieved, and not as a common Informer, and fo not within the Statute.
28 Eli z. but it was anfwered, ih^t Co/ sjhall be here upon the Statute
21 H. 8. which giveth it upon every Aifion upon Statute. Gawdy,
this cannot be, for the Statute 5 Eliz. was made after that Statute.
,6)rt^r^ofit. Cro. E. 177. pi. 4. Fafch. 32 Eliz. in B. K. Spire v.
Rots.
18. In Battery, the Defendant was Bail for A. and E. who afterwards
were condemned j Error was brought \n the Exchequer Chamber, and
thefrji- Judgment was ciffirmed, and other new Cofts given by the Jufti-
ces there, and the Record was remanded into B. R. and now a Scire
Facias was prayed againft the Bail, as well for the Damages upon the
firft Judgment, as for the Cofts given in the Exchequer^ It was the
Opinion of the Court, that the Bail was not chargeable with the new
Cojis, tor they take upon them to pay only the Condemnation of this
Court, and not of any other Court. Cro. E. 587. pi. 21. Mich. 39
& 40 Eliz. B. R. Penruddock v. Errington.
Brownl. 98. 19. On a Libel for Tithes, the Detendant fuggefted a Modus as to Part
S. C. Teems of the Tithes, and a Contrail executed m Satisjafhon for the Refl ; and
onlyaTranf- ^gcaufe he proved not his Suggeftion within 6 Months, the Parfon had
y"|'"°^ a Consultation, and CoJis ajfcffed. In Debt brought in C. B. for the
crofts, the Flaintilfhad Judgment. Error was brought in B. R. and
aliigned, that no Cofts ought to be atfelied, hccaufc the Suggejiion lor
the Prohibition was grounded upon the Modus, which, miiji be proved,
and alfo upon the Contrail, which needs no Proof, and therefore the Siig-
gcition being entire, and Part of it needing no Proot, they could not
give
7
Colb.
331
give any Cofts j For that is where the whole Matter of the Sugaeition
requires Pioot. \elvMi9. Hill. 5 Jac. B. R. Cobb v. Hunt
ri ^°u u'%'' ""-t-'^' °Pj"'? "*" "'^ '^^ J^^^'^^e^' ^"d fo declared,
that I the Plaintili in an EjeiJme Firmj: doth miltake his Declaration
that the Defendant in fuch Cafe Ihall have his Colb of the Plai'ntitfbv
rcafon ol h.s unjult Vexation. Godb. 345. pi. 439. Tnn. 21 TaC
t>. K. Anon. J '
21. In 4^/^ brought againll D. t\it Plaintiff was Nonfuit, and D
moved to have Colh, and K was denied by the whole Court becaufe
an Affife is not within the W^ords of the Statute. Brownl. 28 20
Anon. " * "■
Tudr.menr"" t^'"°" W^fJ^'f '<^^^^^ Defendant s <f:tk the Plaintiff hadCro.C. 140.
Judgment. It was affign d lor Error, that los. Damages were given p'- '6-
and yet ii 1. was given tor Colb. The Ch. T. though? it Error hp'^^*«-^-
caule Aftion on the Cafe for Slander was within the Statute 2i'lac'?rTfH
[cap. 16. J but the three others e contra. For tho' it is within the&aceo;duiy,
EranchastoAaionsto be brought within the time limited becaufe ^ut r.y.r'
in that Cafe the Words of the Statute are General, Aftioi's on the ^'"^ «'^^
Gale j yet the Ckufe for Colb are, Atlions on the Cafe for ShnderfVK""''
and this ought to he to the Pa-fonoi . Man, and not to the ^n I of Lands'- Pa.t°1zr
For this IS not properly a Slander, but a Caufe ot Damage. Jo. oV HarwolcfV.
pi. 8. Mich. 4 Car. B. R. Low v. Hurevvood ^"^^ Lo>ve i> c.
and S. P.
ingly by three Juftices and Hide Ch. J. laid nothing one wav or other T ^^^^ ^^^°'^-
Woodvvard S. C. refoWd not to be within the Statute.l-J. G.'^b H^l ofTF^7 ^- P°" "a
in Marg cites S. C. • °' *^- "• ^i?- S. P. and
23. F brought an Aftion o^rrefpafs againlt D. for emrim into his Honfe
.udyrcakuypenhnCheJl, and tak:ngl-^ay h J Goods. Th Deiendf't
pleaded a pecialPlea, viz. that he did it by way of Diftrefs for R.nr
due unto him. The Plaintiff replied, D. i^,,! Vto^rt i^
ihall be Vexation witlotit ameMs ^thrL'e^;t ^hf %at iff iL^'S:
Judgment. Sty. 153. Mich. 24 Car. B. R Frank v Dixon
h.f'^'v Ta*^ '" a &vrW.,/,/,« Magnatum Ihall have no Colls, tho' he
hasa\erdia. 2 Show. 506. pi. 467. Hill 2& . Car^ R R
,n a Nota at the. End of the Calb o? Ld. Peterborough v Wifhams
25. InanAffon upon the Statute 8 H. 6. ./>..f^/. ivlX Se-
condary craved the Direaion ot the Court befoi/he could tax Cofts
and they were doubtlul in it, and rather inclined the Plltift waf o
have no Colb ^ But upon the View of J^nfnrTi'ti (nfr in r^ p ^
the Plaintiff had fued out and executed an Execution for his full Cofts
which exceeded the D..mage, being under 40 s. Holt Ch I You
r'sS? 22'&'? ^r"""" '^^"^"^^^ ^ ^--^y -^eyour.iaTon
%'tu' 1 1 "^^^^--Li;' «-- c-b -^- Mich.
Cont^Ja-Tht^h^H^K''''^^'"'^ "'-^^ ^'''^'^^ "^^'^- '^''' «^^1I be no Cofts,
mi i wt 'fI^I^^' v^TolLnd. ^'" '^' '"" ^ ^^">''"^ ^^^^>^-
29 8^9
0 2 l Coits.
^
y'-
29. S & 9- W^. 3. cap. 10. 6". 3. In all Atlions cf Jiajle and .ddi~
ens of Debt upon the Statute for not letting forth Tithes, wherein thu jin-
gle Value or Damage pund by the Jury pall not exceed 20 Nobles^ and in
all Writs oj Scire Facius and Prohibitions, the Plaintiff' obtaining Jiidg-
ment oj Execution after Plea pleaded .y or Deunincr joined^ jhall likewtfe re-
cover his Cojis.
30. It is the Cc«r/e of the Court of Exchequer, that Plaintiffs /hall
have CoJis in Equity, where they recover, ■without any Order jor them.
M.S. Tab. 1702. Warburton v. Warburton.
31. Ifa £;// in Equity be brought yor rt Partition, no Colts can be
had on either fide, becaufc it is an amicable Suit ; to it is at Lawi Per
the Mafter of the Rolls. Pafch. 7 Ann.
32. Conftant Courfe of the Court, where mutual Account is decreed,
to referve Cojis till after the Report, that the Court may have it in their
Power to punilh the wrongdoer. M.S. Tab. Feb i6th 1709. Rider
V. Bayley.
33. In Ejeiiment of Lands in Kent, there was a Verdtff Pro ^uer' as
to Part, and a Verdift jor Lord Sujjex jor fome Lands in PqffeJJion, and
fever al other Defendants nam'd in the Rule with my Lord Sullex were
acquitted i as to feveral otherDefendants in otherRules there was aVer-
ditt that they were Not Guilty i Per Cur. upon 8 &9 \V". 3. cap.
10. as to all thefe Defendants nam'd in the Rule where all were ac-
quitted, they muft have their Cofts ; as to the other Defendants nam'd
in the Rule with my Ld, Suffex. where Part is tound againlt them
tho' acquitted, they are not to have their Cofts, and the Court certi-
fied, that there was a reafonable Caufe for making Ibch Perfons De-
fendants on aTrial at Bar. Mich. 9 Ann. Regin. Kik.. Ld.Suffex'sCafe.
34. 'Trefpafs for breaking his Clofe, and lor breaking down ot his
Rails i pro Eenfura, and tor fpoiling of his Locks thereto ajfix'd ; Cofts de-
nyed. Trin. 11 Ann. B. R. Mabbot v. VVhitnell.
35. In Cafe for Words, or an Jjfitmpfit where Damages are taken on
one Promife only, or one Set of the Uords, Cofts are given generally • So on
a Writ of Inquiry on one Promife (where two are in the Declaration, and to
one a Demurrer &c. & Judic' pro Quer' and Non Aflumplit to the
other, and a Noli Profequi &c.) the Damages and Cofts of the Suitlhall
be general. Hill. 11 Ann. B. R. Baker v. Campbell, fcr the Cofts
ofSuit are the lame whether the ift. or 2d. Promile be not pertorm'd.
36. Cofts Ihall follow the Event of an yf«w/«f, but if the Account
be intricate and doubtjul there Ihall be no Cofts. M.S. Tab. A<farch 8th
17 1 6. Pitts. V. Page.
37. Held by j udge Eyre in Eflex, Lent AIT 1719, that where a
Trejjpafs was wiljul the Jadge would certity, tho' no Malice prov'd,
and fo was the Practice.
38. And alfo, that where Son Jffault is pleaded there is no Occalion
for a Certificate, becaufe it is admitted by the Plea.
39. Upon a Writ of Inqtiitry executed after Judgment by Default in a
Prohibition, PlaintitF Ihall have his Cofts i adjudg'd in C. B. and af-
lirm'd in Error. Comyns's Rep. 33J, Mich. 6 Geo. i. Bettyfon v.
Savage.
(C) In
K
Coils. 333
(C) In Replevin.
Eplevin again fi titio; the owe came and avo-wed for him/elf, and ,
AV confepd for his Companton Jor Rent Jrrcar ; th& Plaintiff Riens
Arrear. and lb to IlFue, and the Plaintilf prayed Procefs againlt the
other i Per Hill, he is out of the Court, and you Ihall recover your
Damages tor all againft hiin w ho pleaded &c. Nota. Br. Replevin,
d1. 24. cites 21 E. 3. 20. , . , , T, . r.
2 In Replevin, the Defendant claimed Property, upon which they If the De-
were at liiue, and;o.'/;;^>- the Plaintiff to the Damage of zo Marks, ^"^Sf^fp^„
the taking of a Cow ; the Defendant prayed that the Plaintiff might not ^^^^^ ;„
have Recovery oj the Damages for the Co'cv, till the Eeajis ot the Deten- (^ourt which
dant which the Plaintiff has /« Withernam, of which Cape ilFued a- ^ found a-
gainlt the Plaintiff, are delivered ; fed non Allocatur. Per Ti rvvhit up- Z^^f^^^
on this Procefs againft the Plaintift tor the W ithernam the Detendant^,^,;^^_ J^
ihall recover Damages againlt the Plaintiii tor the Detinue ot thtaiiwDama-
VV ithernam ; quaere, tor by the Reporter a Man cannot recover Dama- Br Replevin
ats VJtthcut Original. Br. Damages, pi. 50. cites 11 H 4. 10. XhY2i'
*" 2 In Replevin, the Defendant jnflilyd as Eailijf ; the PLuntitf pleaded !•'*'■
"Jointenancy in the Land -with f. M. and Day was given m the fame
q-erni and at the Day the Court demanded the Defendant, ivho made _ De-
fault" and th£i Plaintiff recovered Damages a, I. becauie he had conlefs'd
the Taking, and did not maintain it. Br. Default, pi. 24. cites 14
"4 If a Man takes Cattle for Damage-feafant, and the other tenders Ibid, in the
J,Znds, and he refufes it &c. now if he fues a Replevin for the';-^^°^«
Cattle hQ ihall recover Damages only for the detaining ot them, and w/f^vs, Sec
for the taking- of them ; for that the fame was lawful, and thcrelore no 17 Ed. ^.
Return Ihall be. F. N. B. 69. (G.) cites 22 H. 7. 30. Contra in Cale 8. b 45^ E^.
of Trefpafs. the other
had th-m in Pound before Amends tendered, it is then too late to tender tlie Amende, and on tlie Avowry
he Det^ndant IhaUhave no Return t.ll a nezo <Tende., and then the Party may h.vc Detinue. Q.ax,e
" H A n I - H 4 4 And if he tender, ielore the Takin?, the Taking is tortious, 7 Ed. 5, 8. and
if- hnmediJely li the ^.xkwe, the Detainer is fo, and he r,un reco'.er Da,„age, lor it, and no Return
fhall be awarded to the Lord. 45 Ed. 3. 9-
? And in a Replevin, if the Plaintiff ^f(:/iZ)Y.f, that the Defendant yet s^ if the
his and detains the Cattle, and che D(;/"£W^?«r appears, and afterwards £'^/«»^.<«f
A/.ij, "•' . -zj' /;,_;) 1 I. .J — „o„, ,^ „„^..r,,^^ ^)1 ;.. ri,,,n^ claims I'ro-
mAes Default, the Plaintiff fhall hx^c Judgment to recover all in Dama- ji^-^'
fes, as well the Value of the Cattle, as Damages tor the Taking ot^J^JJ
them and his Cofls. F. N. B. 69. (L ) cites M. 8 H. 8. Rot. 108. „,, t,.k, &c.
Df/fM^nrmakesConurance, and fvo'XS, and after Day given over makes De\MiU,l\^z^\M.vA\^ fliali
recover his Dmagis hi Taxation ot the Court. Ibid, cues 14 H. 4. 2,
6. 7 H. 8. cap. 4. i?. 3. /i!i;e)*y Jv:want; and other Pcrfon, that
makes Avowry orComifance, or juftifies as Bailiff in Replevin or Second
Deliverance 'for Rent, Caflom, or 'Service^ if the Plaintiff be Livred,
Ihall recover Damages and Cofts.
7. In lecond Deliverance the Plaintiff was norifitited, and the Defen-
dant prayed his Damages and Cofis by the Statute 7 H. 8. cap. 4: Quod
Kota; and the Statute is, that where he is barr'd, or tiie Mutter
^ (^ found
9
?34 Coits.
found againft him, there the Defendant Ihali recover Damages ; Quod
Noca. Br. Second Deliverance, pi. i. cites 19 H. 8. 8. '
8. if the Avowant recovers in Replevin he Ihall not recover Da-
mages J or the 'time mean, but only for the frcfpafs done at the Time of the
Taking ; Per tot. Cur. and faid that it had been always taken i'o
Dal. 52. pi. 23. Anno 5 Eliz,. Anon.
C.O.E. ^20. 9. Error of a Judgment in Replevin, where the Defendant avowed
lop V Ghtp ^"^ '^" ^y^^^'^y^ and tiad a Return thereol awarded, with Colls and Da-
Jin Tiin '^^g^s ' ^'■1'°^ w^s affigned, for that no Colts and Damages are given
;(JEIi2. in this Cafe, either by the Statute, 7 H. 8. or 21 H. 8. tor they are
S. c. this given only in Avowries for Rents, Cuftoms, Services, or lor Damage
nirLin ■^^^^^^"'^> theCourt conceived that it was Error, but would advife, Ez
ard divers adornatur. Cro. E. 257. pi. 36. Mich. 33 & 34 Eliz. B. R. Hallip v
Precedents Chaplin,
were fliewn out of C B. that always fince the Statute Damages and Cofis had been riven ro tlie
Avowant for Amerceraents in Leets, and for Heriots and other Cafes not mentioned in the Stitu"-
And the f uflices conceived that their Courfe being fo fince rhe Statute, the Law fliall be con/lrued to be
fo; And fo inclin'd in their Opinion. But the Jud>^ment was rcverfed for a F^ult in the Kpni^,,;
Ow. 13. Hafclwood's CufeS. C, accordingly. t'le i<.eplcvu.
ID. If a Man has Jtidgmcjit in the Second Deliverance thert Hull be
Return Irrcplevifable aud he Ihall recover i)ii7/v^^(rj. Goldsb. 1S5 pi
126. Hill. 43 Eliz. Anon. ' ' ^ '
Cro J. 510 II. In Replevin the Defendants avowed for ^n Amercement of 10 I
V HodeT ^^'^''^ "^ ^^^ Sbrnf's Tourn for not repairing oj a Way, ivhtch by Ctifcm
S C. The '% c!/ghljor to repair i It being Jound Jor the Avozvants, the Jury af-
Court at fcpd Cojis and Damages. It v\ as objected, that the Colts and Dama-
^'■'^^y^J"ges ought not to be given by the Sratute of 21 EI. 8. [cap. 19.J which
tTereof bu[ ^'"^ "'^'^ extend to Amercements in Turns and Leets, but only to Rents
aftcr-.vards Cultoms, and Services. It was anfwered, that the Colts and Dama-'
on Confide- ges were well afTeffcd, and cited 8 Rep. 3"^?. Grielley's Cafe and
nnion of Joyner's Cafe, that the Avowant, for an Amercement in a Leet Ihould
which'Sves ^^^'^ ^°'S ^""^ D-i'nages, but no Judgment appears. Mo. 893. pf
Cofts in 1257. Hill. 14. I Jac. C. B. Loder v. Samuel.
every Afti-
on where the Plaintiff Ihould have Cofts, they held the Avowant fliould have Cofis, but advifed
him to rehafe his Damages, and take his Judcment for his Cofts, and to have Return and fo it was
adjudg'd, and cites like Judgment given 58 filiz- Chapley v. Harflcv ; and Mich. 44 & 45 Eli?
Mackword V. Shepherd, 2 Roll Rep. 74. S. C. adjudged ihat'thc Ph.intiil fliould have Coft<"
bjt the Court doubted whether he fhould have Damages, and therefore ordered him to releafe his
Damages.
SC. cited 12. Replevin; The Defendant ^-jok-j /or 36 /. Rent for a Tear and
i'.94"'Tn ^"^f-> ^^'"g ^^ ^- 1^^4 !■] by the Year ; ihcPljintiif pleads Payment of 12 /.
Caie of and a?td another Iffue was brought fur the 24 /. and for the 17?. Jfue it
W'mndvd V. was found Jor the Plaintiff and Damages and Cojh taxed by the Jtiry ;
J^"!*^"'"' but It w^^ found agamji the Plaintiff for the 2.d. Iffue, and now mov-
&MC.B '■''^5'^^'^^ ^"^^ Juries finding of Colts and Charges for the Plaintiff is
but tlic Re-'^oid i for when Part is found lor the Avowant, lie lliall have Return,
porter fays and Damages and Colts, and the Rettirn Jhall be for the Defendant
that ii the where any Part is found jor him;, wherefore it was adjudged ac-
;hSe cordingly. Cro. J. 473. pi. 3. Palch. 19. Jac. ^ B. R. Dent v.
fashefup- P^'"^^-
P'jfes) a
Roll Rep. 47. by the Name of Denton and Parfon's Cafe, it is fiid, thatWhiilock movM to have
Judpment for the Cofts and Damages found by the Jury for the Pu.iiuitf, accordinr: to 2 H 6 i. ar,d
"ihat V\ iiitlock J. anfwer'd him, that thi.s he could I'ot have, bccaufl the AvoHant is Adtor and he
is ss a Piaiiuift ui other Ailions, and f.e had good Caufe of taking the Bcafts ; that at the Tim'e of the
(aid Cafe of 2H 6. \. no Law was made which gave the Avowant Coft.s till 21 H S. f>ut Dodc-
lidgc bid him take his Judgment athis Peril ; For that they would lu.tdireft him. 'And Serjeant
Lntwich add', tint in Brownl. 17^. it is expiefsly faid, aid with a Xcta in the Margin, that upon
-"itti;y/ir Rei.t xlc PlatKtiff jcr t.vt pe.:t!id--r, pi.crt, -^nl Jcr il e nU) i:r Jccad, and the tne /Jfue
IS
Coils. 335
;j fuand for the Plaintiff, and the oO-'r for the Defendant ; the Plaintiff JJiall recover his Cofis and Dama-
ges, and the Defendant jlialt h.i'je Judgment of Returvo Habeiido, and no Cofis and Damages ; But that
the Reporter [Brownlow] thought o</je)-a'//c, if there are. tivo fncral Jvo-wries; for then they fliall
recover Cofts and Damages on both Sides ; And Serjeant Lutwich Tays it is probable that the Cafe
intended by Brownlow was the Cafe of Denton v. Parfbns, reported in 2 Roll Rep. ^n. For it agrees
therewitli in the Fail of the Cafe, and then the Serjeant adds a Copy of the Judgment it felf as en-
ter'd upon the Record.
13. Executor fliall have Cofts in Replevin ; Refolv'd. 2 Roll Rep.
457. Trin. 22 Jac. B. R. Farnell v. Keightly.
14. In Replevin of a Di/infs tnktn for a Pe}ialty forfeited to the Ld. Jo. ^2.1. fl
of the Manor for Breach of a By-Larsj ; one Queltion was, v/hecher 9-Hill. 14
Damages and Cofts iliould be given to the Defendant upon the Statute ^^^' "-^^j^-
^ H. 8. cap., 4. and 2i_H. 8. cap. 19? but it was not refolv'd. 15 Car.
Cro. C. 497. pi. 2. Pafch. 14 Car. and 532. pi. 11. HiJl. 14 Car. B. R. James
B. R. Tames v. Tutnev. v Timney
J } S.C. the
Court divided. Mar. 28. pi. 64. S. C. accordingly.
• 15. A Nomine P£n£ is an uncertain Thing, and comes not within
the Statute of 21 H. 8. touching Avowries as a Rent-Charge does,
which is certain. Arg. Sty. 4. Hill. 21 Car. B. R. in Cafe of Re-
mington v. Kingerby.
16. In Replevin the Defendant avowed for a Rent-Charge, and the
Plaintiff perceiving that the Jury would find for the Detendant, be-
ing call'd, when they "Were ready to give their Verdi^, would not appear ^
However, the Court took the Verdifit, which found for the Defendant,
and aflef&'d Damages and Colls. 2 Sid. 155. 1659. B. R. Lacy v.
Berry.
17. In Replevin J the Writ was in the Detinet^ and the PlaintifFde-
clared of a taking Goods at the Parifh of St. M. &c. in a Place there
called Maiden-Lane, and that ea injufte detinuit &:c. The Defendant
fiid, that the Place contain'd a Mefuage with tiie Appurtenances in
the Parifli of St. P. &:c. and that H. M. was feifed in Fee thereof,
and demis'd it to the Defendant for 21 Years, and that the Defendant
deinis'd it to James Peddy for a Year at the Rent of 28 1. payable
Quarterly, and avow'd for a Quarter's Rent. This Avowry, was held
to be ill without Queftion, becaufe the Caption of the Bealls in the
Count ought to be traverfed, and cited 21 E. 4. 64. 9. H. 6. 39. But
exception being taken to the Variance Sec. Decinet in the Writ and
Detinuit in the Count, they agreed to amend on both Sides, and (o that
Point was not refolved ; But Serjeant Lutwich fays it feems a material
Variance, for in the Dctinet the Plaintiff fhall recover as well the
Value of Goods, as Damages for the Taking, and cites F. N. B. 69.
(L) and Co. Ent. 610, 6n. But when Writ and Count are in the
Detinuit^ he fhall only recover for the taking, becaufe this implies
that the Plaintiff had his Goods again^ and cites Hill. 14 E. 2.421.
2 Lutw. 1147. 1 150. Mich. 2 Jac. 2. Petree v. Duke.
18. Plaintiff in Replevin wa.s Nonfuit^ and on Error in B. R. y//i^- i Salk. 205,
nient affirmed. Defendant fhall not have Cofts, becaufe he is not with- ^- *-•
any of the Statutes as to Delay of Execution, and Statutes that give
Cofts Ihall never be extended beyond the Letter j For Cofts are in the
Nature of a Penalty. Carth. 179, Hill. 2 & 3 W. & xM. in B. R.
Coan V. Bowles.
19. In Kcpltvin, the Defendant avow' d and the Plaifitiff being non-i^ 'M.oA^
fuit brought a Writ of Second Deliverance^ whereupon it was moved 547- ^p^-
to ftay the Writ of Enquiry of Damages ; Et per Cur. this is a Su- ^' "
perfedeas to the Retorno habendo, but not to the Writ of Enquiry of
Damagesi for thefe Damages are not for the Thing avowed for, but are
given by the Statute of 21 H. 8. cap. 19, as a Compenfacion for the
Ex^^ence
'Xi,6 Coft
s.
F.xpence and Trouble the Avowant has undergone. Salk. 9f. pi. 6.
Trin. 13 VV. 3. B. R. Pratt v, Rutlidge.
20. No Cofts in Replevin lor the Defendant, \^x.\\tPla!nt!Jf co}7fef[es the
Plea in Abatement to be true. 2 Lord Rayni. Rep. 78S. Trin. i An.a.
Smith V. VV^alkeriind Nois.
21. In Replevin the YlMnix'S. declares for the taking nf his Cattle in a
certain Place called iJ. The Defendant pAWj m Abatement ., that he
took them in a certain Place called C. abfq'ie hcc quod cepit in prtcd' Loco
vocat.' B. prout &c. & pro returno habendo he avows &zc. The Plaw-
tiff confcjfed the Caption to be m C. and thereupon the Avowant bad Judg-
ment that the Writ floould abate^ and for the Return of the Cattle. It was
Refolved by the Court, that would not have Cofts 5 for the Statute
2.1 H. 8. cap. 19. does not extend extend to this Cafe,' but gives (^oltJ
only when the Plaintiff is nonfuited, and the Statute of 7 H. S. cap.
4. gives Cofts only when the Plaintilt'is barred ; but here zVit Plaintiff'
is neither barred nor non-fuited, but the U'rit only abates ; and lie may
have a newWrit, and is not put to his Second Deliverance. Comvns's
Rep. 122. Trin. i Ann. in B. R. Smith v. Walgravc.
(D) In a Writ of Error.
T9W. "7 i. 3 H 'j.ciip. 10. T F a Perfon bound by a judgment hej ore Hxecution
cn^. 20. con- J^ fuc a jyritofErrortu re-verfe it, and the Judgment
^7h' avl be affirmed^ the Writ dijlontinaed^c. tki Dejendatit jhall recover Cojis and
'cn.'hs, that Damages.
from thenre-
\orth the fame pall he put in Execution.
S. P cited 2, In Error of a Judgment in C. B in Fvrmedon the Judgjnent "-jsas
by the Re- affirmed ; And it was moved to have Colls and Damages for the Delay
n"*^"^ Lev of Execution upon the Statute H. 7. cap. 10. whereupon it was doubt-
146 in Cafe ed, becaufe it was in ii Formedon in which (being the principal A£lion)
of Winne no Cofts were allowables But notwithftanding, upon conlidering the
V. Loyd. Statute, which is General, viz,. " That il a Writ of Error was brought
*' before Execution, and the Judgment be afterwards alHrmed, the
" Demandant or Piaintiif fliall have Cofts and Damages," And it men-
tions not any Action, they all rciblvW that Co/Is and Damages ffjall be
given tor Delay of Execution, though in the firjl Adion no Damages were
recoverable; and Judgment accordingly. Cro. E. 616,617. P^- '• Mich.
40 & 41 Eliz,. B.R. Graves v. Short.
3. In all Cafes of Writs of Error before the Judges and Barons i/ithe
Exchequer Chamber, they, at the Prayer of the Party, Uiail award Cofts
and Damages to the Plaintiff in the firji Suit jor his Delay and Vexation.,
and this by the Statute 3 H. 7. cap. 10 But if the Plaintiff in ths
Writ of Error ivas Plaintiff in the firft Suit, then no Cofts and Damages
Ihall be given in Oi!i<t where the Pl.v.ntiff or Demandant has Execution of
the firfi judgment. 2 And. 123.pl. 68. Anon.
s Rep. ioo. 8. Cofts are allowable /// every Caje ■ivhere a Writ of Tlrmr is brought
b. I'cnrud- hefore Execution filed, it is the Dilciciion of the Court what Cofts ihall
S°C bm ^^ allowed, and though the Matter u-pon the Writ brought was doubt-
S P docs ful, yet there was not any Cale, but that Cofts are allowable ; But the
not appear. Cofts muft not be denied by the Court, and therelore the Plaintilf in
-S C. jj^g Writ of Error was awarded to pay Colts. Cro. E, 659. pi. 4. Pafch.
Slna ofrhe 41 E^'^- -B- R. Penruddock v. Clark.
Kf porter.
Ley. 146. at the End of the Cafe of Winne v. Loid.
J. Judgmint
Cofts. 337
5. Judgment vjAS 2^iv^n for the Defendant in C. E. and that Judgment
was i/J/inncd, and iq I. Cofts given in B. R. upon the Statute of 3 H. 7.
It was moved, that the Colts were not grantable, for the Statute is
where Judgment is given againft the Deiendant, and he to delay the
Execution brings a Writot Error, and the Judgment is affirmed; but
here the Judgment is given for the Defendant in C. B, ib no Execution
was to be awarded there againit him ; and although the Plaintiff
brought the Writ of Error, and the Judgment be affirmed, yet it is out
of the Statute ; and of that Opinion was the Court, wherefore a Super-
l<:deas was awarded to ftay Execution Jor the Co/is. Cro. C. 401. pi, 10.
Hill. 9 Car. in B. R. Bawton v. Nichols.
6. A Judgment in Formcdon in the Bcmainder being affirmed upon a
Writ of Error brought in this Court, it was moved that the Dcjendant in
the W^rit of Error ^ being delayed in the Execution, ?night according to the
Statute, 3 H. 7. have Cofts. Refolved, that becaule there were no Colts
nor Damages reeovcred or ailow'd in the firlt A6tion, fo that no Exe-
cution is delayed but only for the Land, that no Colts were allowable
by that Statute. Cro. C. 425. pi. 15. Mich. 11 Car. in B. R. Smith v.
Smith.
7. 13 Car. 2. cap. 2. S. 10. If any Perfon pall fue any Writ of Error If Admini-
for Reverfal of any Judgment given after VerdiQ in any of the Courts afore- Orator brings
fiiid^ and the Judgment be affirmed.^ fiich Perfon Jhall pay the Defendant ^» Error h°
Error double Cofts. fhall not
pay any
Cods, though the Judgment be affirmed ; for he is ndt a Perfon within the Intent of the Statute.
Orth. iSi.'Trin. 5 W. Sc M. in B. R. Gale v. Till. .5 Lev. 575. S. C. and the Court feemed to
be of the fame Opinion, but would advifc; And Levins of Counfel for the PluintitF, in the original
Aftion, being fiiis-ficd with the Opinion of the Court, never moved itatierwurds 4 Mod. 144. S.
C. held accordingly.
8. Sec. II. 'this A^ pall not extend to any Ail ion popular^ nor to any
Action upon any Penal LaWy except Debt for net fettmg out tithes, nor to
any IndiHment^ Prefentment, Inquifitton, Injonnation, or Appeal.
9. A Writ of Error was brought to reverfe a Common Recovery in Sid. zi-.
Wales, and Judgment in the Common Recovery is affirmed ; and now p'- ii- i>. t:.
Williams moved for Colts for the Defendant in the Writ of Error, ac- ^^^ ^- ^
cording to 3 H. 7. cap. 10. and although there is not any Delay here 3°" "^"^
according to the Words of the Statute, yet this is to be intended where Lev. 1 '6.
Execution may be, but here is no Execution to be had ; But the Court S. C. and
denied to give Colts, becaufe there is not any Delay of Execution, and at P^' ^"'■- "<*
the Common Law there were no Colts in a Writ of Error. Raym. 134. ^°^- ^*"
Trin. 17 Car. 2. B. R. Winne v. Llo}d. the^Wr'ic°o"f
Error, be-
caufe no Cofts or Damage in the Original Aaion. It is faid, that Hill. 1 1 Geo. 2 B. R. in Cafe of
;JfirSUfon lU 3ilaUiinfon, it was held, that »ny Delay is good reaibn for Cofts, and fo this Cafe
was denied.
10. A Writ of Error on a Judgment in C. B. in Ireland was affirmed
in B. R. there, andCofls awarded to the Defendant in Error ^ K Writ of
Error was brought here, and the Error afligned here was, that Cofts
ought not to have been awarded upon fuch Affirmance, becaufe our
Statutes do not extend to Attions there. It was adjudged that the
Judgment in B. R. in Ireland be reverfe d quoad the Colts only. Sid.
357 pi. II. Hill. 19 & 20 Car. 2. B. R. Plxham v. Coniers.
11, A Writ ol Error was brought in Cam. Scacc. on a Judgment in
B. R, alter Execution executed, and therefore it was moved, that the
Plaintitt be dilcharged of Colts i Per Cur. this is not within the Statute
3 H. 7. cap. 10. becaufe no Execution is hereby delay d, and alfo the Ex-
chequer Chamber gives Colls. 2 Keb. 391. pi, 79. Trin. 20 Car, 2. B,
R. Harding v. Raadall,
4 R 12. B
33B
Court (aid, 12. B. had friJgjnent in an Fjetlment \n C B. and Execution ef his
ihcrcwasno 2)^i,,vj'7t'j and C'ljis. V. brings Error, and the Judgment is pffirnied.
T^h'^Dt'^ Whereupon B. prajs his Cojh for his Delay and Charges, humould not
tinftion.Hill.hiiv-e them; tor no Colts were in fuch Cafe ac the Common Law,
iiGco.z. and the Statute ot' 3 H. 7. cap. 10. gives them only where Error is
B R. Fer- brought in Delay olExecULion i fo 19 H. 7. cap. 20. And here, though
R'°u\n he had no Execution of the Term, yet he had it of his Colts. Vent. hS.
aw in on. ^^.^ ^^ ^^^ ^^ .^ ^ ^^ Foot V. Berkley.
13. Saunders on 3 Cr. prayed Colts /» a W rk of Error on a J udg-
ment in a .&uare hnpcdit on Verdi ff ^S'^"'.A ^"^1 •''^^ "'' ^ Demurrer by the
other. Damages on 13 Car. 2. cap. [2. Stat, 2 j that wliere Judgment on
Verdift is given, the Party fhall have double Colts ; the Court agreed
on 3 H. 7. cap. [lo.j that if no Execution ivere had oj the Prefentatwn or
Damages, the F arty pall have Cojis for JJelay ef Exicntion in any Part,
but on Cro. G. 425. Smyth v. Smyth, no Cv/ls can be after Execution exe-
cuted, becaule no Delay; the late Statute of 13 Car. 2. is only a.s to the
Security, and by Rule of Court Colts were taxed Nili. 2 Keb. S82. pi.
60. Hill. 23 & 24. Car. 2. B. R. Bucke v. Alton.
14. Holt laid, if the Defendant pleads in Bar of the Writ of Error,
and has Judgment, that the Plaintiff' be barred, then the Delendant is to
have no Colts; but where the Judgment is affirmed, the Delendant is
to have Colts upon the Statute oi 3 H. 7. cap. 10. Comb. 313. Hill. 6
W. 3. B. R. Fufee v. Rowe.
15. Where a Writ of Error is brought, if the Party enters a Non
Prof, no Colts can be had ; For the Statute gives Colts in a Writ of
Error only where it is in Dilatione Executionis ; Per Holt Ch. J. 5 Mod.
67. Mich. 7 W. 3. in Cafe of W^inchurch v. Mafely.
16. 8 £^ 9 ^K i- cap. 10. [11.] If ajter Judgment for the Demandant
the Plainlijf or Demandant Jhall fue a Writ of Error, and the Judgment
jhalt be affirmed, or the Writ of Error difcontwued, or the Plaintiff' nonfuit
therein, the Defendant or 'Tenant pall have Judgment to recover his CoJls,
and have Execution for the fame by Capias ad Satisjaciendum, Fieri Facias,
or Elegit.
17. No Colls are to be had on a Writ or Error where the Judgment
is reverfed. 8 Mod. 314. Mich. 11 Geo. i. Wivell v. Scapleton.
18. But it had been otherwife if the Judgment had been affirmed. 8 Mod,
314. Mich. II Geo. i. Wivell v. Stapleton.
19. Where Judgment was againjl Pivo, and a Writ of Error is brought
by one, and qualhed, the Defendant Ihall have Colts. 8 Mod. 316. Mich.
1 1 Geo, Cowper v. Ginger.
(E) On Demurrer.
I. AT this Day, if a Demurrer be adjudgd againji the Plaintiff,
jr\ he Ihall not pay Colts^ hnx. pall only be a?ncrced. Jenk. 161.
pl- 7- .- .
2. It was agreed upon Statute 23 H. 8. cap. 16, [15.] that it in
Debt there is a Demurrer which goes to the Action which is adjudged
again} the Plaintiff, the Defendant Ihall have Colts, tho' it be our of
the Words of the Statute, and that fo is the Courfe of the Court, and
had been always allow'd, but if the Demurrer goes to the Writ only, and
it is adjudg'd againlt the Plaintilf, the Delendant Ihali not have Colts.
And. 117. pi 163. Hill. 26 Eliz. Anon.
3. By
Coils. '339
3. By Stdtitts 17 Car. z. cap. 7. S. 3. If upon an Avory in any of the
Courts of J-V'efiwinfter^ Judgvient he given on Demurrer for the Avowanty
or him that maketh Coutifance for Rent, he fijall recover Cojfs.
4. Sy 9^K 3. cap. 10 [11.] S. 2. If any Perfon (ball profectite /« This Statute
any Court of Record any Action, wherein upon Deninrrer Judgment (loall be does not ex-
given againfl fnch Plaintiff or Demandant, the Defendant or 'tenant Jhall^^'^'^ '°
have Judgment to recover his Cnfis, and have Execution for the fame by ^^^^^^^^
Capias ad Satisfaciendum, Fieri Facias, or Eltgit. Defendant
Upon a De-
murrer to a Plea in Abatement ; Per Holt Chief J. 12 Mod. 525. Trin. 13 W". 3, Anon.
5. Jffmnpfit; xhe Defendant pleaded his Privilege as an Officer of f>f;e Ld. Raym.
Exchequer in Abatement, and the Plea being held good upon Demurrer, ^^P- ^'^^'
there was judgment, quod Billa caffetur j Et per Cur. ic was held up- HJ's P '
on the 8 y 9 IF. 3 cap. 11. That the Detendanc ihould have no Cofts, held accord-
tor the Act extends only to Demurrers in Bar, and not in Abatement, be- ing'y- ■
caufe it fpeaks of Suits which are vexatious, which does not appear to^°'"''" 482-
the Court on Pleas in Abatement, but on Demurrers in Bar, where the Lovd ^ s
Court fees the Merits ot the Caufe, it does, and it would be very hard C. acc'ord-
ifthe Defendant Ihould have Colts againlt tiie Plaintiii'in fuch a Cafe, ing'y, and
when the Plaintifl' could have none againfi: the Defendant, tho' he'^^^°{^"
fliould have had Judgment, quod refpondeat Oulter. i Salk. 194. pl- thev couW
3. lo VV. 3. B. R. Thomas V. Lloyd. not take it
for a Vexa-
tious Suit vvhere the Defendant has Judgment upon a Plea in Abatement only. J2 Mod. 195.
S. C held accordingly and that it muft be underftood ot a Demurrer where there is a Judgment
final. S P and the otatute meant only to ,pve Cofis, lehere the Merits of the Caufe ivas determined up-
on the Demurrer 1 Salk 194. pi. 4. Mich. 2. Ann. B. R. Garland 7. Extend. 6 Mod.
SS. G-irden V. Exton, S. C, per Cur. accordingly ; For if there was Judgment of Refpondeas Oufter
for the Plaintiff, the Defendant fliould have no Cofts; and cited the Cife of Thomas v. Floyd where
the lams had been refolv'd before. 2 Ld. Raym. Rep. 992. Garland v. Exton. S. C. and
S. P. agreed.
6. i^^ S Ann. cap. i6. Gives Cofls upon In fufficiency of Matters iti
Demurrers, and on Pleas ttnlefs the judge certify a probable Caufe.
(F) Where Defendant, or one or more of the De-
fendants fhall have Cofts.
t. 23 H. 8. cap. 15. Tl*' a Plaintiff be nonfuit, or overthroivn by T'rial in See tit. Nort-
X any Atlion of T'refpafs , Debt, Covenant, Detinuey^^\{^l P^-
Account, Ail ion upon the Cafe H'c. the Defendant pall have Cofis fet by ?J^f ^ute m
Judge of the Court. at large^and
the Notes
there. -—The Words of the Statute are confin'd to Wrdngs done, or D(;bts, or Damages due
to the Plaintiff or Plaintiffs, and therefore an Executor or Adminiftrator is not within the Statute,
and then the Plaintiff pays no Cofts ; For the Tellaror is as it were Plaintiff by him^ and he is not to
recover to his own Ufe ; but is Truftee for the Creditors. Gilb. Hift. of C. B. 217. So an
Infant commencing his Suit by Guardian, there can be no Malice fuppofed in him. Gilb. Hift. ot
C. S. 21 s.
2. 24 H. 8. cap. 8. No Cofis pd!l he awarded to the Defendant in Ac-
tions brought by the King.
3, Where an Original is dtfcontintied, the Defendant fliall not have;
Colts ; But after a Difcontinuance in a Latitat, the Defendant iliall have
Cofts by the Statute of 8 Eliz. cap. 2. Le. 105.pl, 142, Mich, 30
Eiiz. C. B. in Cafe of Bear v. Underwood.
4. Af^
^4-0
Coils.
4. Affampfit; a.fpecialVtrdicl was found, and thereupon cidjialgcd for
the DLfendatit ; and it was now moved, whether the Deteadant ihould
have Cods by the Statute ot'23 H. 8. cap. 15. tor ic was alleged, thac
that is to he intended where the Plantift'is nonfuited, era general Ver-
dia pafles againft him, fo as it appears that he has not any Caufe of
Action ; but the Court ruled, that he fhould have Colts ; lor a fpecial
Vgrdiff is as well a Verdift for him, lor whom it is found, as a general
Verdift, and there is not anyDilference, when Judgment is given there-
upon, but it is as if a general Verdifl: had been given for the Delen-
dant, whereiore&c. Cro. E. 465. (bis) pi, 18. Pafch. 38 Eliz. B,
JR.. Alfop. V. Cleydon.
Ibid, cites S- Where there were feveral Defendants, and only one was fcntenccdy
Pafch 4 J.ic. the other had Colls, becaufe not charged with the Oiicnce for which
The Atroi- j.[^g Sentence was, but with the other Ollences of which they were ac-
v^Vi'i-'^" quitted. Mo. 770. pi. 1064. Mich. 3 Jac. in the Star Chamber,
longhby 6c Dag V. Penkevell.
at' like
Point. Noy loi. Doydidge v. Penkvoll. S. C. accordingly.
6. The Plaintiff brought two JSfions upon 2 E. 6. for treble Damages
&c. and he isNonfntted m one Acfion, and difcontinnes the other^ and held
by the whole Court that the Defendant Ihall not have Colls by 8 Eliz.
cap. or by 4 Jac. cap. 3. becaufe if the PLiincifl had recovered he
fhould have recovered but treble Damages only, by the Statute. Noy.
136. Mich. 7 Jac. B. K. Cox v. Small.
7. Replevin againft A. and B. A. pleaded Non cepit, and k wxs found
againfi him. B. avow'd the taking Jor good Caufe, and it was found for
him. It was moved for Cofts againll A. but [it was anfwer'd,] thac
no Cofts ought to be given againft him, becaufe, the other IJJue being
found ^or B. his Companion fijews that, t he Plaint iff had no Caufe of A ff ion,
and faid it was fo held within thefe two Years in B. R. in Cafe of
tDcntOn il, 'BlCnCljecWUe, and the Court now feem'd of the fame
Opinion. 2 Roil. Rep. 140. Hill. 17 Jac. B. R. Anon.
Hutt. 7S. 8. ln3.Ravipment ofWard, brought by an Executrix of her own
J°Ts^c''' Poff^'^^on; The IlFue being upon the Tenure, and found for the Deten-
thfcoui-t' dant^ the Queftion was upon the Statute 4 Jac. cap. 3. if the PlaintiiF
wasdivided. fhould pay Cofts? Three Juftices held thac the Defendant fiiould not
have Cofts, but Yelverton e contra. Cro. C. 29. pi. 3. Hill, i Car.
C. B. Peacock v. Steers.
Mav, 9. pi. 9. Error i Alter a fpecial VerdiB, and argued at the Bar, there W:xs a
z'^.S.C.bwr.Dii'continuance entered by the Plaintiff,^ as it was agreed he might; Jc
s. P. does^ was moved, that Cofts might be alielied for the Defendant; But the
not appeal, f^^^^^j. ^^^^^^^^ whether Cofts might be affcffed, becaufe there was no Ferdiff
^zw;; in the Cafe. Cro. C. 575. pi. 19. Hill. 15 Car. B. R. Ox-
ford (Earl of) V. Waterhoufe.
10. In Covenant again ff two the Plaintiff" has Judgement by Default
again fl one, and the other pleads Performance, -which is found for him ;
Refolv'd, that the Defendant ihall have Cofts upon the Verdi^l: againft
the PlaintiiF, and the PlaintiiF Ihall not have either Cofts or Damages
againft the other Defendant. Lev. 63. Pafch. 14 Car. 2. B, R.
Porter v. Harris.
See tit. II- 4.7^'^- I- '^^P- 3- If the Demandant or Plaintiff' be A'onfitit, or
Noiiriiit(P) overthrown by lawful Trial in any Acfion whatfuever, the Defendant /hall
pi. 8. rhis have Cofts.
thTNotes '^- ■'^ * iVanantia Charts, the Count was, that the Defendant enfeoffed
thci-e. hit}!, and covenanted that he was jcifed of agoodbftate int'ee,M\<X had f^o.ver
to convey &c. and that the Plaintiff fhould quietly enjoy it from all former
Grants ike. e^^ept a 'ferm of 20 Tears to cue B. of x'hich feven only weretocumo,
and
CoftS. Q^I
and that the Defendant ivonld wan-ant the Premijjes to him againji dll
Men ; andfays^ that at the 'Time of che l-'eoftment there were more than
[even Toars to come of the faid Term, and that one C. having Title entered
and expelled the Plaintiffs and the Defendant relufed to Warrant the Te-
nements to him. Upon /////(?j that there were not more than [even Tears to come
of the faid Term, the Deleiidant had a Verdict ; and it was moved, that
he ought to have Cofts upon the Statute 4 Jac. cap. g. wyich gives C0II3
to the Defendant in all Cuics where the Piaintirt" would have Colls if
the Verdi6t be lor him, and by the Statute of Gloucelter cap. i. Cofts
are given in all Cafes where Damages are to be fecovercdj and in a
W'arrantia Charts the Demandant ihall recover Damages ; and tho' in
this Cafe of Eviftion of a Term an Action of Covenant and not a W'ar-
rantia Chartae had been the proper Remedy, yet iincc the J:)efendant
will accept Judgment in this Attion, he ought to have his Colts ; Rue
tlie Reporter fays i^lsere de ceo, for if the Aftion does not lie, Judg-
ment ought to againlt him tho' the Verdict is ior him. 3 Lev. 321*
Mich. 3 VV. & M. in C. B, Thomas v. Bligh.
13. Where the Plaintiff' difcontiniies with the Leave of the Court, the
Defendant ought to have tiis Colls (as upon a Nonfuit) which cannot
he Moderated ; Per HoitCh. J. Comb. 299. Mich. 6 VV. & M. in B.
R. Poole v. Purdy.
14. It was moved, that one Defendant was put in by Fraud on Piirpofe
that he might make no Defence, but to lecure the PlaintilF from pa)ing
Cofts, and therefore prayed, that if the Plaintiff were Ncnfiiit, or the 0-
thcr Defendant had a Verdi ff, he might have his Cojis. Holt Ch. J. I
tear we cannot do it in any Cafe, unlefs xnKjetlment, and there we'll not
compel! the Defendant to con lefs Leak, Entry, and Oufter, unlels the
Piaintirt' contents. Comb. 364. Pafch 8 VV^. 3. in B. R, Wilcocks v.
Powell.
15. 8^9 W. 7,. cap. 10. [11.] S. I. Where feveral Perfons fjall be
Defendants in Trefpafs, Jffatilt, Falfe Imprifonment, or Ejelfione Firma,
and any of them jhall be acquitted by Virdid, he Jhall recover CoJis ^c. as
if a Ferdtii had been given againJi the Plaintiff', and acquitted all the De-
fendants, unlefs the 'Judge befcre whom ^c. jhall, immediately after the
Trial, in open Court certify upon the Record, under his Hand, that there
was a reafonable Caufe for the making fuch Perfon or Perfons Defendants.
16 S. 'i- Ij the Plainttif Jhall become Nonfuit, or fuffer a Difcontinu-'^^^Scin
ance, or a Verdict Jhall pafs agamfl htm, the Defendant fhall recover hts^""'^"^'
Ofts. gainjlBail
•' which was
r^ n dl/coKtinued
ty an ill Return, hws: n/tde to be on a Simday, now Cofts was pray'd, tliis being a Difcontinuance with-
in 8 &<)IV.%. tor the Words there are, where the Party luffers a Difcontinuance. Holt. Ch.J. this )j
only where the Parly enters a Difcontinuance, and not -ahere it is only hy Slip 0} the Clerks, (as here) Prime v
Mafon. Mich. 6 Ann — 11 Mod. 120. pi. 6 Trin. 6 Ann. B K S. C. the Ketuih was Die Luna; iii
tres Septimanas Sandtas Tnn. the Court held it a void Writ ; For there is no fuch Day, it being
on a Sunday.
17. Four Perfons were arrejled by a Latitat in Trefpafs -, three of them
appear and put in Bail, and for want of a Declaration in Time take three
feveral Non Proffes againft the Plaintiff, and upon a Motion to fet thofe
Non Proffes alide for Irregularity, it Ihall it was held per Cur. to be
well enough ; tor by the 8. Eliz. every Perfon is to have his GMb &c.
though at the firft there was fome Doubt with the Court, that there
ought to have been one Non Profs only, for until the Declaration it
was a joint-Action, whereby the Plaintiff might fever his Demand,
and make feveral Declarations. Trin. 8 Ann. B. R, Anon.
1 8. An Information was brought at the Affifes againft the Defendant
for Non-refidence, which being reniovd into B. R. by Certiorari, the D fen-
dan: demurrd for want oj Junfdiliion ; and upon Argument Judgment
4 S '•jtas
Q42
Coils
^as given for bhn ; whereupon ic was mov'd for Colls upon the Statute
* Secth pf the * 18 Eliz,. 5. and a Caie ot Cannon and Gooding Qui tarn v.
Actions Qui >^,j^.jj^ Mich 6 Geo. i. was cited, whereupon an Infonu.ition on
(T. 8 ) '^he Statute ot the i & 2 P. & M. cap. 7. lor felling Wares by Re-
tail the Defendant demurr'd, C. tor the want of a Joinder in Demur-
on the Pare of the Informer, Colts were order'd tor the Defendant.
On the contrary it was infilled, that this Cale was not' within the Sta-
tute, there having been no Verdict, nor any Judgment upon the Merits i
But the Court agreed it was clearly within the Words and Meaning
of the Statute, for Judgment upon Demurrer is certainly a Judgment
of Law, and if Informers Ihould be allowed to bring Informations in
Courts which have no Jurifdi6lions, without the PuniOimenc of Colls,
it would \tt in great Vexation, and the Statute be thereby wholly
evaded ; Whereupon it was referr'd to the Mailer &c. Mich 13 Geo.
2. B. R. Garland qui tarn v. Burton.
19. The Plaintiff had brought two Ejeflments for the fame Prenjiffes
in C. B. but countermanded Notice of Trial jajl tmie enough to prevent bis
paying of Co/is^ and then brought another Ejethnent in this Court ^ upon
which Defendant mov'd that Proceedings might be flay d in the lafl^till
the Cojis of the two former had been paid ; But the Court wou'd nod do
it, becaufe the Countermand being proper, no Colls are legally due^
But at another Day the Court finding it to be a VeKatious Proceeding,
granted a Rule to flay the laft Ejeftment till t"he tofmer were dilcon-
tinued, and fo the Plaintiff to make his Eleftion which he would pro-
ceed upon ; And it being obje£led that the Detendant^ if he pleafed,
might have carried down either of the former to Trial, they faid, they
wou'd not oblige a Defendant in Ejefctment to hazard his Poiieffion by
bringing on the Caufe by Provifo ; And the Ch. J. cited the Cafe of
ifenUJiCU U, lorn iSrOlljenOC Salk. 258. where a Defendant in E-
jeftment, having Judgment againll him, brought a Writ of Error,
and, pending that, a new Eje£tment, which was not allowed of, and
was called by Lord Holt a riding EjeSlment. Mich. 12 Geo. 2. B. R.
Thrulfout on Demand of Park & Ux' v, Troublefome.
(G) Cofts. In what Cafes Defendant fhall recover
Cofts in inferior Courts.
I. 8 Eliz. cap. 2. S. ^.^^OS'TS, Damages.^ and Charges^ pa/l be a-*
\^ "warded where the Plaintiff doth delay., dif-
continue, or is Nonfuit in the Marlhalfea, and all other Corporations and
Liberties, where the Courts are kept de Die in Diem ; hut there they are
not fo kept^ then the Plaintiff mujt declare at the »e.\t Court after Ap-
pearance^ unlefs he have longer Titne allozved by the Court.
2. 16 Car. I. cap. i^.S. $. In all Cafes where the Plaiuti^s or De-
fendants are to have Cojts by the Laws of this Realm, the Plaintiffs or De-
fendants JImH have tike Gojls in the Stannary Courts.
(H) What
Coib.
34-3
(H) What Cofts; where there are fev^eral A<9:ions
or Suits.
I. T7f THERE aMan^m/^i Debt in the MarPjalfea^ or in London,
V V r>r elfewhere, upon an Obligation^ and ishngly delafd there,
and nonfnitc.i y and after takes a New Suit in C. B. and recovers and reco-
vers his Debc, there hi ihall not recover his Damages for the Suit in
the firll Court, hnt only for the Suit in C. B and tor the Detinue iScc.
which is intended Damage, and the firit Term of Damages is intended
Cofo. Br. Colb, pi. 2^. cites 2 H. 4. 22.
2. Where tzvo bring Affife^ arid the one dies^ hv which the Writ abates,
and another brings another Writ by Journeys Jccounts^ and recovers, he
ihail have the Colls of the firfl: Suit, per Bagoc ; Quod Nota. Br. Colls,
pi. 15. cites 9 E 4. 5.
3. It a Writ doth abate by the Ail of God, in a Jieiv Writ by Jonrnies See Keilw,
Accounts he Ihall have Colts for the flrll, and the Proceedings there- 1 ^7- b- p'-
iipon;_^«/ if the firfl Writ be faulty in Default of the Demandant or ?^^^:^^jf^^^_
Plaintiff, in the 2d Writ the Demandant or Plaintitf Ihall have no Cofts poiis. Anoa
for fuch an infufFicienc or faulty Writ. 2 Inll. 2>J8. S. P.
4. In Trover in B. R. the Court ivere divided in Opinion as to the Stif- Mar. ii. pi.
_/iciency of the Declaration^ and continuing divided upon feveral Motions, ^^p^-p- ^"^^
the Plaintifffor Expedition confented that Judgment be entred agaui(i him, ^ot appear
and fo it was, .^lod nihil capiat ^qv 'B>\\\Am; and then t\\Q Plaintijf be-
gan a new Acfion in C. B. and amended that Fault in his Declaration^ and
had Judgment by Confcffton of the Aftion, and only 3 /.• Damages given
by a London Jury, and thereupon Hendon moved in this Court to have
Colls in his former ASlion, but becaufe the Verdift was found for the
FlaintifT, and upon Exception to the Declaration judgment was given
againll him; the Court held that no Colls thould be given. Cro. C.
545. pi. 10. Pafch, 15 Car. B. R. Sir Martin Lyfler v. Home.
5. A. recovered in 1'refpafs in C. B. and thereupon the Defendant Mar. 11^,2^.
^brought Attaint, and it was found againll him. The Defendant in the pi. 55. S. C.
Attaint ihall not have Colls in the Attaint by the Statute 23 H. 8. [cap. Goft.s were
15.] nor by any Statute which gives Colls for the Defendant. Jo. 432. \\^j'^l\°^
pi. 2. Pafch. 15 Car. B. R. Davies v. Bellamy. that where
the Plaintiil
fliall have Cofts the Defendant fliall have Coft<! ; But they wci'e denied by the Court ; For that our'hc
to be taken in the original Aftion, and not in Cafe of Attaint ; But upon the Rcilituatur Cofts fhaifbe
given ; But th.u is in the oritjinal Aftion. Cro. Car. 542 pi. 6. Dalv v. Bellamy S. C.
If the firft Verdift had paited for the Plaintiff, whereby he fliould have had Cofts, or if it had pafted
fb as he brouj^ht Attaint, and tlie Jurors hid been attainted, he fhould have fuch Cofts as he hid i'l
the firft Aftion, but he fliould not have had more Cofts in refpeft of the .Attaint; So e converfo
where the firft Verdift palled for the Defendant, and hahad Cofts, if the Venliift be impeached by-
Attaint, or affirmed, he fhall have no more Cofts, hut only thofe which are given upon the firft Vcr-
dia, Cro. C. 542. pi. 6. Pafch. i j Cir. B. R. Dily v. Bellamy.
6. The Leifor of the Plaintiff is liable to pay Colls (though he Hiail ne- The LriT)!*
ver be tbrced to give Security lor them) but ihe Lejfor of a Tenant /« ".^jj^ P'*''^-
Poffeffion is not liable to Cofts, becaufe though he may come in Gratis |,'^ra/Ru'ies
and detend his Title, yet the Tenant in PotTeffion is [not] liable of Court on
to Colts by the Law, but only by the Courfe of the Court, unlefs the Demand
^rial be by the LeJJcr's A^cans brought to the Bar^ and then he fljall »fTCr°""'"f° P^y
have a 2d Trial at Bar before he'' has paid the Cofls ,.f ihefomitr Tn^l;^'^^l'^J°^_
But yet the Court for Non-payment ot Colls will not hinder Proceed- ciency or "
ings in the Country j Per Cur. Keb. 106. pi. iiy.Trin. 13 Cur. 2. B. Skulking of
RrLattam v. ' thePlaintlt!
in E]eftmcnt.
Keb. 17.pl. 50, Pafch. 15 Car.2. B. R. in a Nota there.
7. Upon
344- Cofts.
7. tipon Verditi agamll ail Kvif/cf/ce the Conn will tax Colls, and
will not fbfpend it till the new Trial. Keb. 294. pi. 222 Palch. 14
Car. z. B. R. Davies v. the Corporation of Droitwich
8. A Vtrdiff and other unjult Proceedings /;; a/t hiftrior Court was fet
(iftde^ and the Plaintiff in that Cotirt ordered to pay all the Cofts there and
here. Fin. Rep. 472. Mich 32 Car. 2. Vaulx & al' v. Shelley & al',
9. One was bound beyond Sea in Well Jerfey to pay the Plaintilf Sol,
Legalis Monetae prjediftae&c. Pluincill demanded 80 i. Englilh Money;
but was noniuited upon the Variauce^ and brings a new Jffion. B. R. will
not ftay the 2d Action until he has paid the Coils ot' the firll, becaufe
the Merits did not come in Queftion on the Trial on which he was
nonfuited, but that was only on the Variance. Ld. Raym. Rep. 697.
Mich. 13 \V". 3. Bafs v. Firmen.
^ Salk. 104. 10. IndiBment for a 'Trefpafs and Riot; Defendant pleaded Non Cul.
P'- ' ^: ^j and the Indiftment was removed hither ly Certiorari &c. The Defendant
accordirg y. ^^^^^ before the Mafter, and Cofts were taxed ; and now it was moved
that he might go before the Mailer again, that the Profecutor mighc
be confidered for his Charges below, the Mailer's Taxation before being
only ior Cofts iince the Certiorari ; Et per Cur. the Alj/ler on^ijot
not to conftder the Cofis below ^ but only ftnce the Certiorari^ and upon it ;
and then it was movid to aggravate the Fine ; But per Cur. yououghc
not to aggravate the Fine, after the Party has been belbre the Mafter ^
if you do, we will fet afide the Taxation oi'C jfts. i Salk. SS^ Pafch. 1
Ann. B. R, the Queen v. Burners.
II. If a Perfon inclofes Land in a Town under a Cuftom for that
y that
iftom ;
5und a-
gainft the Delcndant, yet the Plaintiff fhall not have the Cofts which
were incurr'd in the Court of Equity, becaufe in fuch Cafe the bring-
ing a Bill was not neceflary ; But where 8 feverat Perms inclnfe Land
under a Ciijfom for that Purpofe, another brings 8 JSions againji them
on that Account, and a Bill is thereupon brought to ejiabltp the Ctijlom,
and to ftay the Proceedings in thofe A6lions ; If upon an IJJ/ie dtreifcd
in that Caufe to try the Cttftom^ a Verditi is found in Fa'-jour of it, the De-
fendant fliall pay the Colls in Equity as well as at Law ; For in this
Cafe the Delendants atLaw were put under aNecelfity of bringing their
Bill to flop fuch Multiplicity of Actions, and the bringing io many
was moft vexatious. Barnard. Chan. Rep 437. Palch. 1741. Codrington
V. England.
(I) Cofts and Damages. In what Cafes. And what
Cofts. Double or treble.
Br. Coih . I. T N Wafte the Plaintiff recover'd his Damages which were trebled,
pl. 26. cites J[^ and his Cofts to 10 Marks, which were not trebled, quod Mi-
'^^■('■.- rum, that he recover'd any Cofts where treble Damages are given by
Tm, that"" Statute. Br. Cofts, pi. ii. cites 5 H. 5. 13.
ilot"recovei- Cofts in Aftion of Wafte ; and Brooke fays, it feems that this is the beft Law. Keilw.
2(S a pi 2 Trin. i; H. 7. S. P in B. R. bvKineu.t Ch. f.
In'an A6tion offf'.'fte againft Tenant tor Life, or Years, the Plaintiff fhall recover the Place waft.
ed and treble Damage.s given by Statute Gloucefter cap. 5 but no Cofts, bec^uf.- no Aftion lay againft
th.'ni it tlie Common Law, but the Attion and Damages are newly given ; but againft the Guirdwri
or Tenant in Dower &c. there the Plaintift'lhall recover treble Dam .gcs and Colts alio, for that an
Action
Colls. 3^5
AftioTlav againft them ar the Common L.w. and for the VVafte Darr.ges fliall be recovered ; and fo
f fill ,\J Rooks that feem Prima Facie to be :u Variance well reconciled 2 Inlt. zhg-
10^11 al the S^^ R. held ihat the Colts ftall be treble in this Action, according to
IeI/ouS Samiges, and not according to the Rate of the Wafte tax'd. Br. Cofts, pi. i8. cue,
the
5E.4. 17.
2 In Forcible Entry the Defendand pleaded net Giiilty, mA found for
the 'Plamttff, and Damages taxed tor the Tort to 10 / and for Cofts of
the Suit si. and it was argued if he Ihall have Gofts becaufe m this
Cafe great Damages, viz. treble Damages are given by Statute i and
after fune Ch. T. awarded that the Plaintiff recover his Damages treble^
which amounted to 10 1. as well for the Damages which he had iu -
tained,as for the Cofts of his Suit; Quod Nota. And io lee that the 5I.
lor Cofts were not adjudg'd treble, but only the lol. and there-
fore it feeems that this ftands for all. Br. Cofts, pi. 16 cues 14
\ ' In forc'hk Entry the Plaintiff recover'd treble Damages and Cofts^In an Aftioti
contrary in>r./. , tor there are no Cofts , and per Pafton the Realon uponjhe
is, inafmuch as the Statute of torcible Entry gives fo but the Statute ot ^.^^^.^^^ ^^,^^
Wafte makes no mention of Cofts, but only ot treble Damages; Quod upon the
l^ota. Br. Cofts, pi. 12. cites 19 H. 6. 32. ^'«;"^= °t
which cives treble Damages, hi this Cafe the Plaintiff fliall recover his Damages-andh's Cofts to the
t'eWe, Sat he Culd have recovered fingle Damages at the Common La*. and the Statute m-
crcafedthem to treble. 7. Inlt. zSy.
4. In Forcible Entry lool. Damages were given, and 80 1. T^^ (f J^^.^.t P.
the Tort, ^nAzol. for the Cojls, and notwithftanoing that treble Da- .^> /,^j^^j_
m ge are given b/the Statute, yet he recover'd Cofts, and all were tre- pi, ,f
ble, viz. "3001. for all, Qiiod Nota. Br. Cofts, pi. 14. cites "one^ecovers
H. 6. 51. Forcible En-
try apot. the Stature 8 H. 6. by C.felf'^n or by Default, he (hall recover his treble Cofts . faid by the
Juftices. Gouldsb. II. at the End of pi. iz. P-^fch. 28 Eliz. cites S. C.
< Jfftfea^ainjitivo of f-isjo Manors, the o«e was foimd^ a Dtfeiformth
Fore of one Lni, Uthc other acquitted of the DilleiUn of thn Manor
in of the other Manor he was found a DMr hut not wUh Force and
the other was of this acquitted, and the Cofts were taxed to 2o /. and
becaufe the Cofts ought to be againft both, tor they are entire and a-
gainft him who is found DilTeifor with Force, the Cofts fhall be treble
fs well as the Damages, therefore their Opmion was, that the 20 1.
Ihall be adjudg'd .^«;/;/ both tn Common, and A,ol. 7;f^^'«^/"'; f^
■was found Dijjet for with Force, and to he recover d 40 1. Bt. Colts, pi. 20.
'''6! In a^n AcJion upon the Statute of 5 Eltz.for Hunting ^^ ^'^ j'^/J*
the Statute gives treble Damages, it was the Opinion ot the Juftices
that notwithftanding that the Statute gives "^^^.1^^^%^?.;^^^ ^^"
Plaintiff ftould have Cofts alfo. 4 Le. 36. pi. 98. Mich. 27 Eh^- B. R.
^t TrSplS^s upon the Statute 8 H. 6. cap. 9. offorabk Entry, the Jury
found Damages 20 1. and 2 s. Colts, and the Colts were increaled by
the Court 01 &. B. to 20 s. and the Danuges and Cofts bemg treb ed, he
had Judgment to recover 63 1. It was aihgn'd tor Error, that the Cofts
alfigned by the Court ouoht not to be trebled, but only thofe Cofts
whfch the^ Jurv airefs'd,^Sed nun allocatur ; For al tj^e Precedents
Te otherwili ; 'and Judgment affirm'd. Cro. £. 582. pL 6. Mieh. 39 &
40 EliL. B. R. Thoroughgood v Scroggs. •
8. It was refolved upon the Statute ot 2. E. 6. that the Statute giv-
ing treble Damages, the Jury cannot give other l^-'^"^'^g!.«,?/"^J^"
the Jury cannot give Colts. Mo. 915. pl- »294' 44 El'^' ^^y ^'
Peck veil. ^ la
3i<^ Coits.
.-.6 S. P.J' -Dj^f^^ges are given by any Statute, u has been controverted V, P,t^'
Kc. Ab. whether the Demandant or Plaintiff Ihall recover CoAs 1J\X T'
5. 5 s P. the lame Ihall be alio doubled or trebled, vvhich Doubt an.f?^ "^'r
Gilb. -^'^"^ 'n i^hofe Cafes, has not been oblerved, which i^ rS ,r / r
cu^ Statute does ..cnafe D.na.es to the douOktZ^.^'Z Sft!"
Damages bejore were give,, there the Demandant or Plain Mail f.
ver h.s double or treble Damages and Colts alio, and ^e G.t aJ .
r rt . . ^"'^''^ °^ '^^ Damaaes ftall be trebled z inlt Iko " ^*
have nothing ^f ^'^ «^ "g^,^^" "'^cre formerly recoverable, there the Deman"dafr ; '
Statute has
already given, and that is Damages onlv. and the Srarnr- nf ri„„^ a
to what ts given by a fubfeouentlratute^' becaull'Se tw sS^t"^^^^ Cofts
which gives Damages only, and therefore for the Court to give Colh^n f.X Tr ''"'^ '^'-■'^'
beyond the Intention of the Legiflature in th.t Statute, GUb Hia of C 6 ^^5 '' """' V^' '" «^
515. S. P, m totidem Verbis. Hard 15- Aro- S P ^' "• ^"^- ^ — -NewAbr.
toll „«,«r no Cofts, beca^fe this Aaio„,aud P.St^",', n™!;' '|;™''
12 In Jftfefor Difei/in done with Force the Plaintiff iLwi
Tre le Damages and his Colls aifo, becaufe at comn o^L t , "phL"
tift Ihould recover Damages and Colts in both C-ife.- P^r r' c
01 8 H. 6. cap 9. is only'an Aft of Addition Pef&r To Ref ''"?
b. M.ch. 10 Jac. B. R. in Pilford's Cale fays that wl.l ^•''^•
grees. 14 H. 6. 13. a. ,9 H. 6. 32. a 22 H 6 . . "%' ""
- - F. N. B. 248. (C) •^^- ^' ^2 £. -
a.
me„,-'.ffi;,-d Co"s- 0« «y <*« «<!»*" was ,M amcabk, but the ot°er'„l ]T
Powell J. (did he had known the Cafe of Jacob v. Mills denied tn ^» r ^
there are 20 Refolut.ons to the Contrary, vi. if a Rem titur be nor -7 .""r^" ^""^' ^"'^ ^'^^
for the whole; For the Judgment is of the whole; mrthrCou'/rere.n f n'^'"' '' "''' '"■' ^^'^
of the Declarations were fuch on which no Damages ou-hT to be 7eZ "' V^^P'"'"". ''"t if one
,. Mod. ,55. Hill. , Ann. B. R. S. C. c.te^d and ^e^L^ cS:' ''. /^JoT^'^; t ^'t '
Tvln ^'^r .. ^4- ^- ^'" -P- '■« ^^^ ^p/V/Vr/^/ Co«r? /or Tithes of a Dnu. w r "' r.
wltkin^n- -PoiSnsgeJtionhad a pL^bn.n, J he JdVcpFoT'hu^^^^^^^
v.Pacy, s. T'^/^/^ ^/^'^ 6 J/o«^/,j. W. takes Iffue upon the Su'apftf ■^£'-^''/'
Cheli'ac- found againil him, and yet he pravs gE bv rltl^f ' ^"^ " ''
cord^gly ; Ccap. X3;S. r4 J y . F.L of P^^'^^St ^ 111^^1:,^^:^-
Wor?,%f Court adjudged, that he ihall not have it, for he Ch funea^il^
the Statute ^"«^ ^o take Advantage of that, and he can never hlv^Tr^cT ^'^
are that he Ergo, he ihall not have double Colh Re ^ che Word^°" "i""°" '
on!u. ^tfo. ""''■ ^°y ^'- VV^^^lington v. Perry. ^ ''' ^^ °'^' °^ ^^^ ^^-''
flial
Confulntio'i
il^ould have pray da ConRi.tation, and then Culd hlv^'lifb ' Coft:" ' '" "^"" *''"'"- °' ^^'-' ^e
See Tu. Prohibition (D. a. z) p|. ,. and the Notes there.
h'Jitbeen ,; 7" '^''^l''^ 9^'^^ °" '-^ M^^e's Certificate were given ?o a Crll.J . f
for other ^f^/^'^ff ^r' <!" '^^ -^^'^''^" '^^^^S'^'^ ^'S^i^'t him lor dfi"rlhtf^t: "
ColLiteral alR'lfed by the Statute of i VV^ & M Show ? , , ^'p .^''""S ^'^'^ 20 3.
Matters only & M. Willct V. Tidney. '+■ ^'''^"^- 3 & 4 V\^
it might
have been otherwife. Canh. iSS. S. C ^ ^ u Mod -5 S r fh^ aa; . .,
iuod, ^. 6. O. the Adtion %v:^% for Money receivM to
the
Colts. Q^j
the Plaintifi's Ul'e ; tiie Defendant iuftified as Coll'-aor nt luTTZZT-rl r "7~V
Matter concerning his Office- For it mav be for Mon I ^-^"f ' «.; h wa. urged, that it is not
of Diftrefs not remrn'd ; And' HoTt Ch P incl ned that if X' A^ '" ^'' T" ^f^""' '^"^ «^^^P>»»
return-d, this does not t^uch his Off.e; " nd i 'do t no u b tt S>St" IT De7*^'" '% «^,^^P'"^"°^
..s^cen.fied b, the J.dge of Afli.e that tt was ...Jl^lZi^ J^'S^^^^ t^^
Mltccovft'^eh/.r^^^^^^^^ ^Z""^'-^ ^^- "P- S- PlaimifFS. C. Skin.
!r. Lr „ K ? c°*' "' "^^'^ ^' '''^"^ Damages, for the Damaees 5)-5- cites ,0.
are not given by the Statute, but v^creafe^, an Aftion on the Cxkf^'P- ^''"-
JyingloraRefcueatCommonLaw. i Salk. 205. pi. 2 H 11 cW h""n^''"^'
&M. Lawlon V. Storv J- f ■ - -"in. 5 >V . that Dama-
■' ■ ges it] fuch
given by the Common Law, and it was ruled that Cofts De hcremem iTiaH b- treble "^llt """'"fr
Cofts De Incremento are alfo double &c. in all Cafes of Officer, &c,^Carth ^2^ S '^C refr, M r^:
Jeveral Debates. Ld. Ravm Ren m >; r ..^;,j„m u i ,""• j^' '^^ *- >^eiolv d after
ferr-d as well to the Word Colhafto'thc' Word" Daillafet' " '" '^°'"' ^''''''^ ^^" ^^ -'
17. It IS a Rule, that in all Cafes where Damages and Cofts are given
ctCou.,wn La^jj and a Penalty ts added by a Stamte^mb double Dama-
^^i, that alfo draws double Colls. Carth. 297. Hill. 5 VV & M in
&. R
IS. Btbt for the Penalty for aaing as a Commiffioner of the Land-Tax.
tllT"fl''f^r ^'f- -.V'' ^'^'"'"^ "'^^ nonfatted', the Defendant
had his Cofts ta^d and paid by the Plaintiff, and a Receipt given M-
terwards the Defendant, apprehending that he was intitled to treble
Colts, got the Judge who try'd the Caufe to certify that he was an
acting Comm.lfioner, whereupon he had treble Colls cax'd, and took
the Flaintiii in execution for Non-payment of them ^ to fetaiHe which
the Court was moved, and per tot. Cur. the Defendant conhided himfelf
■ h' receiving /ng/e Cojis, and fo the Execution bad. MS. Rep Mich
5 Geo. B. R. Vincent v. Strode. ^'
19 Whe.-e Damages wen recoverable at the 'Tme of making of the Statute New Abr.
cfGloucefter, there the Plaintiff Jhall recover his Cojls, which is by the 5'5. S.P.
plain Meaning of the Statute, which fays, the Plaintiff Ihall hwe 'Tt T'"^""
Colls wherever ne has Damages , but if there are ^veral Iffues found for '^"'"•
the Plaintiff or againll the Defendant, intire Cofis are given upon the
™ Pl^f[dmgs, tor It is the whole Charge the Plaintiff was. at. Gilb.
Hilt, or C. J>, 21J.
(K) To Officers and Minlfters of Juftice. Where
they are Defendants.
I. njac. I. -^F any Aaicn upon the Cafe, Trefpafs, Battery, or Falfe
-cap. s J^ Imprifonment, Jhall be brought againji anv fu/lL "^'"^ '^*='*"f'=
cfPeace.Mayor or Baihffof a City, or town Corptrati HeWorough'TM^l
P^trec^e, Conjlabk, Tithingman, Colieffor, of Sub/idy of Fifteenths,fcr1^n;Z,t'^r^
to any any thing by them done by reafon of their Offices, it (hall be /^a;- 1"'^ of
iulior every fuch Juftice of Peace, or other Officer, and all others which tn P-<^5,Clayt,
tkcir Jlififtance, or by their Command, fhall do any thinir touching thetr Of- '^n!^
rlH'^fYf f^^^"]'i ^b^come Nonfait, or fuffer anyDifcontinuance,^^-'^^
2Ji'%^^°'''''^'°"'^^^^ ^' tried foall allow the D f entrant ^^'^^"^
aotwie Lojfs. > 2 1 Jac. cap.
tT.fsrT^ ^°t" ^""'"''^ f ^P'"'°"' ^^^^ ^ Deputy-Conftahle is wirhfn Mo S.c
Sh ?fn ' "^ J^'- p'Pr ^ ^^^^^ "^^ ''°"''' '" ^'ght of the Conftable, pi if;,'.'
and reprelents his Perfon, and Coke Ch.J. thought that an UnderSheriff S C refolv-
13 witnui this Statute, which Bridgmun otCounfel tor the Plaincilf t "^' ''"•=•
agreed. '
•?48
Cofts
Conltable is greed. Roll Rep. 274, 275. pi. 49. Mich. 13 Jac. B. R. Phelps v,
within the winlcombe.
Enuity of-
the Statute as; to plciding tlie General IfTue. 5 Bulft. 77, -S. S. C. Dodei-idge J. held, th.)t
the Statute for double Cotts extended only to the Conftable, and are tliereby given ;o him only ; but
Coke Ch. f. held e Contra ; But [at lad] the whole Court agreed in Opinion agiinlt the Plainrirf',
that the Defendant, as Deputy-Conftable, may have the Benefit oF the laid Staiue to have double
Cofts, but no Judgment was given, the lame being adjourned, and never mov'd a<;ain, but ended (as
the Reporter fays he heard) by Agreement between the P.jrties, perceiving which way the Court
inclin'd in their Opinions againft the Plaintiff. This Statute extends to one Kvho aSs under the
U'arr,7r:t of n 'fnflue of Peace, ihouirh he is no Officer, who did execute the Warrant ; and f^ys, this
feenis to be » arranted by the Words in the Statute, viz. Any other who do any thing hv Conimand of
Juriiccs of Peace, and other Officers therein named. Clay t. Rep, 54. pi. 95. Augull Afliiis, 15 Car,
Coram Berkley J. Wenpenny's Cafe.
3. 21 Jdc. I. cap.12. S. 3. uiU Chiinh-^ardfus andPerfoiis called S'-j;orn-
men executing the Office of Churchwardens^ and all Overfeers of the Poor,
and others which in their jlffijfancc, or by their Covnnand^ (hall do any
'Thing touching their Offices, pall ha-ve fuch Benejit by the lid 7 Jac. 1 .
cap. ^. as if they had been named therein.
4 Trefpafs by Husband and VV^ite for Battery done to chcni both.
Ad Damnum ipforum, it was found that the Defendant did it as Con-
Jlable in Execution of his Office.^ and found for the Defendant ; He
prayed double Coils, according to the Statute 7 'fac. cap. 5. The
Baron and Feme cannot join for a Battery done to them both, and fo
the Declaration and Writ ill, yet it was adjudged, that he being tound
Not Guilty, and what he did was as Ojticer, Ihould, according to
the Statute, have double Colts, Cro. C. 175. pi. 20. Mich. 5 Car, in
B. R. Heyler's Cafe.
Jo. ^05^ pi, ^ Tp. s. brought an Aftion on the G?/J again fl the Churchiaardens,
' '' ^d I -fi^'f^^lh ^"^^ malitioufly prefenting in the Spiritual Ccurt on a pretended
For^he 'Fame of Incontinency ; the Churchwardens had a VerdUi^ and they mov-
Statute faid ed for double Coftsj becaufe they were troubled tor a Matter concerning
does not their Office ; But held not to be within the Statute [21 Jac. cap. 12. J
extend to p^j, ^j^^ Statute intended only where they were vex'd lor Teniporal
Wardens Matters, which they Ihall do by Virtue of their Office, and not for
for Things Pielentments concerning Matters of Fame. Cro. C. 2S5. pi. 31. Mich.
of the Of- 8. Car. B. R. Kercheval v. Smith.
fice in Ec-
clefiallical Caufes. S. C. cited 1 2 Mod. 6.
SC. cited 6. Cafe, for that the Plaintiffs were Inhabitants, and poflellcd of
Show. 215 Lands for Years, in the Parifh of St M. and liable to the Payment of
S C cited Duties for the Reparation of the faid Church, and the Defendant bdtig
Arg. 1 2 Con /table of R, falfely reprefented^ that they were Inhabitants of the Parilb
Mod. 6. of R. £5' fojjeffed of Lands within the Parijh of R. and chargeable there
And Holt juy. fjyg Payment of fuch Duties which they were unduly coiyipelled to pay.
clined to"' Upon Not Guilty found for the Dcfendent, it was prayed upon the Sta-
thatOpinion. tute 7. J^adT. cap. 5. that he might have double Colts. Refblved the
fame was out of that Statute but within the Statute of 23 H. 3. which
gives only lingle Colts to the Defendant. Cro, C. 467. pi. 5. Trin.
12 Car. in B. R. Stone v. Lingar.
7. On Removal of an Order to reimbiirfe an Overfeer of the Poor in his
Expence about a Suit for the Parifh, the Court conceived that Cofts may
be allowed upon a Certiorari, as in Haflefoot's Cafe on removal of Order
Oj a Ba(iard-(Zhild, and per Cur. Colts were allou-ed againlt the Town
of Barvvick St. John. 2 Keb. 500. pi. 63. Palch. 21 Car. B. R.
Culie V. Monke.
8. E. brought an Atlion againji the Collector of the King's Ifax, who
brought it down to Trial by Provijb, and there the Plaintiff was n'mfnii ■ and
now the Delendant moved for Colts in Triplo. Note, the Judge could not
certify
Coils. 349
■*— ' ■"' -- - . .- .1 . I I -, ■- ■ ^— - ■ I ■ . *■
cert ijj in this OAh that the Dclend.iHt wns I'lud di Cj/.'dSfoi\ hecaitfe the
Plaintiff ''Joas mnfttit bcforcK'uidcnce. Hole Ch.J. faid, ic nmlt appear thea
by Affidavits, and there mufl be a fpecial Entry ; Quia fuper examina-
tionem apparct Cur. &c. Comb. 322. Pafcli. 7 \\ . 3. B. R. Sir Philip
Egerton's Cafe.
9. The PJaintifF having (^/ytw/^w/fi^' ^/'j Affion^ which he brought a~
gainji an Officer^ who jujlified as fiich in the EseciUion of his Office, ic
was moved lor double Colls upon the Statute 4 Jac. i. cap. 3. and a
Rule was made to fliew Caufe. 2 Barnard. Rep. in B. R. 171. Trin.
5 Geo. 2. Anon.
(L) In what Cafes there ftiall be full Cofts, or no more
Cofts than Damages.
I. 43 Elia. cap. 6. S. ^. T F in Anions Pcrfonal at Wtjiminjier not be The hten-
X i^'gi^''' any titk or Inter eji of Lands ^ ^^^ ^/ow of the
concerned the Fireehold or Inheritance of any Lands, nor for any Battery, |?-^"'^
it Jhall appear to the Judges, and [0 Jigmfied or fet do'-jun by the J aftices reduce nil
before whom the fame (ball be tried, that the Debt or Damages to be recover- -4Hions,
was to
cd Therein fhall not amount to 40 s. or above, the Judges /hall not award for"^^-"' ''■'*
y^ /I. ^- ^1 . 7~II.:..^:j1 ..'._.. ^ >. . o .j- ^r r^ ; . tn ^ ^ Debt or Da
mage was
under 40 /.
hito the Court
Cojts to the Plaintiff any more than the Sum of the Debt or Damages fo^
recovered [hall amount tinto, but lefs, at their Difcretion, Twder'^o^.
Enron, or other Coitvty Courts, wherehy they thought the Profits of Landlords v.'ould be encreafed and
the Cofts of Defendants diminiflied ; but the Statute failed of effedting tlut f^urpofe, becaufe thev do
not put it merely upon the Damages given by the Jury under 40 s. for indeed that would have been
hard, where the Jury gave too little Damages, to have punilhed the Plaintiff with the Lofs of his
Colts, th'-refore they put it, that the Judge muft certify the Damages proved were not above 40 s.
in Approbation of the Verdid: ; but the Judges thought it exrreamly hard to certify in order to make
PlaintitTs iole the Cofts where they had not prevailed, unlefs the Aftion were exceeding impertinent
and vexatious. Gilo. Hift. of C. B. 2 1 9 , 2 1 4. New Abr. 5 1 2. S. P. in totidcm Verbis. No
Dcuhtbut this Statute was intended to bring bade all Perfonal Aftions, but prov'd ineAeftual • For
as it was worded, it did not takeaway Cofts De hicremento from the Courts of If-'eftininjler if the Damages
were under 4" s hut they only gave Liberty ro the Judge, where Damages were under 40 s. to certify
againlf the Plaintitt having Cofts, unleii in Cale of Battery, or whereTitle otFrechold or Inheritance
came in (>ieftioa ; but becaure it was hard, that when a JMan had alTerted his Right, he fhould pay
Colls fnr If, and th.it if one injured another under the Value of 40 s. that he lliould not be redrefled
in the King's Courts, they never ufed this Power of certifying ; but thus it flood rill the Statute of 22
&25Car. 2.cap 9. Gilb. Hift. of C. B. 211. Gilb. Equ. Rep. 195 Hill 1 2 Geo in the Exche-
quer in Cafe of Reeve v. Butler, S P. and Ibid. 196. Marg. is a Note, that the Ch. Raron faid, th.i:
he could find no Precedent of any Certificate purfuant to the Statute in any of the Books of Entries*
• The Interpretation of the Statute of Gloucefter was, that though the fury was ro fettle the Cofts
of the legal Proceedings, becaufe thefe were Matters of Law to which the [ury could not anrw>-r ■
And thus it ftood till 4; Eli?., cap. 6. [S. 2.] prout fupra. Gilb. Equ Rep 195. Hill, r 2 Geo in the
Exchequer, in Cafe of jUfCbe t). BlltUT- And fay.s, that this Statute is pretty darklv'penti'd and
therefore he believes it had very little or no Etieti. ' '
2. 21 Jac. cap. 16. S. 6. In Anions upon theCafeforflanderous Jfor^j This Statute
■in any Court, if the Jury ajjefs Datnages tinder ^os. the Plaiiitiff'fljall'^^^'^^^'^^
recover only fo much Cofls as the Damages fo afjeffedfJj all amount unto, with- stTuteV^'^
on t any Increafe of the fame. GtoTeper,
»«UT</thcfe
Aitions of SIand:-r, where there were no more Cofts thart Damages ; and it takes away thefe Cofts .Oc
Incremento by expref^ and pofuive Words ; Per Lord Ch. B. Gilbert. Gilb, Equ. Rep. 196 Hiil.
1 2 Geo. in the Exchequer, in Cafe of Reeves v. Butler.
3. Nota, Mich. 5 Car. C. B. it was faid by Richardfon to be the
Rcfolutionof all the JufticesorB. R. and C. B. that in an Aflion upon
the Cafe for Slander^ though the Court are bound by 21 Jac. cap. 16. and
4 \J cannot
35
o
Colij
cannot increuie the Colls whtie the J^amages are ui.dtr 40 s yet the Jury
an not bound by that Statute, and theretore they may give 10 1. Colb
\\hL'ie they give but 10 d. Damages. 1 Sulk. 207. in Cale ol Bro>vn v.
Gibbons.
4. Aflion, for that the Defendant falfcJy and maliciouHy fpake thefc
Words of the Plaintiff, viz. that the Plaintiff committed b\louy^ and pro-
cured him to be arrejled for Felony, and to be tmpnfoned Jvr three DajSy
and was Ibund againlt the Defendant generally, and Damages to 20 s.
it was pray'd, upon the Statute of zi Jac. that he might have no more
(A)lis than Damages, the Damages being under 40 s. But reicilv'd, that
this Cafe was out of the Statute, and tuli Colls were awarded to the
Plaintiff. Cro. C. 307. pi. 7. Hill. 9 Car. B. R. £lizard v.
Barns.
S. C. cited j^ Aftion for calling hi7?i 'thief ^ and ■procuring him to be indited and
Cro. C. 307. i„ipyifci,i'(i -for Felony, until he was acquitted ; Upon Not Guilty found for
the Piaintiflj and 10 s. Damages, it was mov'd upon the St.itute of 21
Jac. cap. 16. that Plaintiff fliould have but 10 s. for Coils. The Court
conceiv'd, that becaufe this is not an Action for Words only, but alio
an Aftion upon the Cafe, in the Nature of a Confpiracy, and the De-
fendant is found Guilty of both, the Defendant fhall have Judgment
tor his ordinary Colts, and that it is out of the Statute. Cro. C. 163.
pi. 5, Mich. 15 Car. B. R. Topfal v. Edwards.
6. 21 Jac. cap. 16. which prohibits more Colts than Damages in Cafe
for Words.^ if the Jury give under 40 s. Damages, does not estend to
Courts Baron ; For if it were, this A61 would totally take away their
Power of giving Cofts De Incremento in fuch Cafes to more than 40 s.
For the Jury there can in no Cafes gives Damages beyond 39 s, u d.
(for if they do fo the Court will have no Jurifdiction in the Caule) and
confequently the Court in no fuch Cafe could give Colts De Incremento
above 40 s. which was never the Intent of the A£l i but this Act ought
to be intended of Courts, in which the Jury may, if they pleafe, give
more than 40 s. Damages i but in Courts Baron they cannot ^ And by
Wright Serjeant, (who was not concerned in the (^aufe as Counfel)
Cojis De Incremento., according as the Cafe requires., are given in all Courts
Baron in England, notwithllanding the Aft cf Jac. i. Lord Raym.
Rep. i8t, 1S2. Pafch. 9 W^ 3. C. B. Lictlewoodv. Smith.
7 Mod. 129. 7, Cafe {or Jlinderous Words fpoken of hts Wife, that fhe was a Whore,
^K ^r^"** ^^^ ^"°^ ^^ ^°^ 1'^''^'' ^"^f**^^ Cttjiomers ; Damages under 40 s. This is not
arreed"to within the Statute ; for it is not the Words, but the fpecial Damage,
3he Difte- which is the Caufe of A£lion in this Cafe, and upon Evidence it is not
renccbe- fufScient to pDve the Words, but the fpecial Damage alfoi for the
twcenan Husband may bring this Aftion alone. So in an Atiion tor llandering
WorTs a°c- his Title, the Plaintiff Ihall have his full Colts, i Salk. 206. pi. 5. Hill.
lionable in I Ann. B. R. Brown V. Gibbons,
ihcmfclves,
\iX\A by Reafon of Confequential Damage.
Ihid. the 8. Cafe for fcamialoa-s Words ^ and that the Defendant procured the Plain-.
Court fsid, fiffto be arrejled J or Felony, and the Jury gave i s. Damages, h was laid, that
that mTri- jf ^ yj,^ ,,-,,;g /T.^/? be laid in Aggravation, and as a Corifequence of fpeakuigthe
'^'c^o'^ii^iy.^ JForrt'j, it might be doubtful, whether full Colts ought to be allovi-ed.
tcul). «ilin< The Court inclined, that the Plaintilf Ihould have full Colls. 8 ^Mod,
Crrton, this ,71 372. Trin. ii Geo. Phillips v. F'ilh. -
vcrv f^oint
•vva'i'debated, (viz.") whether ,t F.ift laid by way of Aggravation, wliich wns only a Conrt-quenco of
fpcjlvinrt the Words, fhould brinj; it out oftlie 6t.itute, .ind entitle the I'laintirt'to lull Colls ; and rt-
lolved, thiit where the Thing hid in the Declaration by way of Aj^^rav.uion would bear an Actio^i of
irfclf independent of the Words &c. in fuch Cdc full Crofts nunild be f^iven ; and that it is the con-
ft.int Dirtercnce in luch Cafes, l\yH<:uhere the If trds fpoken aie the very Gifi of the JHicny thcu^^h ether
llii-gi are Uiti by -Wi^y oj ."IggranMicv, there f^tll le no ri:re Cofis thA» Dam.ig.-s, for the Jury in [\\ch
Cafe
Coils. ^7i
— — i, " -^
Tare can liaveno Confuleration in giving tiieir Vtrrdift v. h.u was laid by way of Ag;',rava[ion ; but
»/ the yiciion was founded on ipeciat Damages, theiethe •iui.oie jhould be uiaiei their Qnjideration.
9. In an Affionfor U'crtfs brought by the Plaintiff againfl the Defen- Sut, ptr
dant, the Plaintifffet out in his Declaration, that he was a Houle- Cur.tu/we
Smith by Trade, and that the Defendant fpoke the Words of him, '//.^j'^/.
(which Words -^ere a^ionabk in themfches) and hy reafon of the fpeaktug thnable, hut
•which Words, the Plaintiff had loji fever al CitfiomerSj naming the 1,1 parti- the the Ac-
ctilarly &c. to his Damage of too /. On the general liliae pleaded, the ''""" ""'"*
Jury lound for the Plaintiff, and gave him only 5 s. Damages. Tlie'^^')-^^ ^-^ /•,
Court directed the Plaintiff Ihould have no more Colls than" Damages, aw"/)^-
2. Ld. Raym. Rep. 15S8, 1589. Trin. 5 & 6 Geo. 2. B. R. Burry v. "•"?." the
Perry. Plaintiff hat
10. IxxnuMicn for Words importing Felony, As he fiole my H:ns ^c/l^^^'l^_
and laid hy the v-^ay of Aggravation of Damages, and that he carried him comm of
before a J lift ice cf Peace, and caufed him to he imprifoncd &c. The jury t'^e VVoi-ds,
gave under 40s. Damages, and vet after feveral Motions in Court t^^ P'-i'miS
Trin. 11 Geo. i. B.R. the Court made a Rule, that the Plaintiff Ihnuld ^mq^I
havQ full Cofts. Ld. Raym. Rep. 1588. Arg. cites it as the Cafe of though the
Phillips and Filh, and Carter and Fi!h. Damages
are under
40 S. for it is not the If ords, hut thf fpedal Damage is the Caufe of the ABion, anri cite' i Salk. zo6.
Brown V Gibbons ; but where the Words are adionable of themleivcs as in the prefent Cafe and
fpecial Damages arc laid by wav of Agt;ravjcion, and D.images are under 4.0 s. there fliall be no
more Cofts ihan Damages, for that is properly an Aftion for Words wi'hin the Statute of 21 lac
cap. 16. and as to the Cafes cited of Cartfr fa. f\S\)-, and ^I)i!lni0 I). ;^l{I), upon confidering that
Declaration tlie Cnurt held, th.it a.s it w.is laid, it was not barely laid in Ag_-;-avation of Damiges
Ti. 22& 23 Car. 2. cap. 9. S. 136. ('49) Ena6]:s, that for making ThisStatutc
the Statute of 43 Eliz. cap 6. more effettual, that/« all ABions of Tref- '''^^wi'e did
fafs^ AJfault, and Battery, and other Perfonal Atlions 'wherein the Judge 21 ''T"^
iit the Trial jhall not find and certify under his Hand upon the Back of the \fGhu"efter
Record, that an AJfanlt and Battery was fufficientty proved, or that theforzSt.uute
Frcehtld or Title of the Land mentioned in the Declaration was chiefly in '^""""t ^' •"'-
^uejiion &c. if the Jury find the Damages under 40 s. Plaintiff (hall not ^fffj'y '''>■
recover more Cojls than Damages &c, and if any more Cofts f hall te awarded md [here'-'
the judgment fha'il be void, and the Defendant ^c may have an Aclion fore the
again jl the Plaintiff for fuch vexatious Suits, and recover his Danwes <7«^J"''S^^."=°"-
Cojis of fuch hit Suit, in any of the Courts at Wejimmfier. ^ ^'"^"l ">
Incremento ought (till toarife in all fuch Perfonal Aftions, where the Judged Certirtcate was not ne-
ceflary in order to the obtaining of Cofts, and (hat was not only by tlie Statute in two Cafes where
Trefpals was do'^e to the Freehold, or to Things fixed to the Freehold, and the Damage's under
40 .s. and in Battery, where the Damages were under fuch Sum. Glib. Hift of C. B. 212. °
Therefore, if the Defendant juftified by any thing that brought the Title of the Land In Queftinti
upon theRecord, there thejudge fliall not certify in order to intitlethe Plaintiff to his Cofts for it was
not a Cafe within the Statute. 2dly, If it was an Aftion of Trover, orTrefpafsde Bonis A'lportatis of
Goods and Chatties not fixed to the Freehold, it was out of the Statute, and no Certificate netefTary
to intitlc the Plaintift to hi-. Cofts, and therefore the Plaintiff" had Cofts De Incremento on the Statute
ofGloucefter So 3dly, If an Aftion of Trelpafs to the Freehold, and an Aftion of Trefpafs De
BonisAlporaiis were joined, and the Plaintiff recovered in general upon both Counts he had no need
of a Ccrtihcaie to ohtam his Cofts ; and therefore Cofts De Incremento went upon the Statute ofGlou-
cefter. G'.lb. Hilt of C. B. 21 :.
ThisCoiiftiudionof the Judges of the Stature of King Chailcs, teem? to be very ri'^ht from the
8 & 9 W. 5. cap. ! 1. for the Inconvenience was found, that the People did Trefpafs upon t'heii- Neigh-
bours, yet not fn as to the Value of 40 s. and to rhey could have no Hedrcfs at the Courts of Weftl
minttcr without loling their Cofts in fuch Actions, and therefore by that itatute a id Manner of Ccr"
tificatc was given. Gilb. Hift. of C, B. 2 1 3 .
12. In
h
352
CoftJ
12. In 7'rcf-pafs of breaking of his Nit, the Delendanc ple.ided Noc
Guilty, and Evidencn is Jcr a Pifcary ; VVinnington prayed lull Colts on
23 Car. 2. cap. 9. S. 149. but the Ilfue being Not Guilty, and 110 Title tn
the Dfclaratioii, nor certijitd by the Judge of Aflife that Title was in Que-
iHon, the Court retufed to give more Colts then Damages. 3 Kcb. 121,
Hill. 24 Car. 2. B. R. Peni^broke (Earl ol) v. Wcltall.
13. In an A£lion upon the Cafs for Common, Peachell prayed Reftitu-
tion of Colts, there being but i d. Damage, and being no Certificate
on the Trial, that the Title was in Quellion, led non allocituri fur
per Curiam, it has been refolved, by the major Part of the Jultices of
England, that the Statute 23 Car. 2. cap. 9. S. 149 extends only to
Trefpafs, and Alfault and Battery, and not to A6tion upon the Cafe
or Alfumplits, or fuch like j which the Court now agreed, and denied
Rertitution, the rather here, becaufe the Title mull be in Q_iieltion.
3 Keb. 31. pi. 59 Pafch. 24 Car. 2. B, R. Brown v. Taylor.
14. In fpecial Aftion upon the Cafe for Battery of Servant, Per qtiod
Servitiutn amiftt ; Barwell prayed Colts without the Judges ligning the
Poltea, that the Battery was well proved ; and per Curiam it was
granted in B. R. on 23 Car. 2. cap. 9. S. 149. 3 Keb. 184. pi. 27. Trin.
25 Car. 2. Peak v.
15. In Trefpafs of taking the Plaintiffs Ball, on VerdiO: for the Plain-
tiff 25s. Damages. Tremain prayed lull Colts, whereupon it was re-
ferred to the Secondary to confer with the Prochonotaries ot C B. and
on their Report per Cur. no Colls Ihall be allowed ; and Colls was de-
nied. 3 Keb. 247. pi. 68. Mich. 25 Car. 2. B. R. Claxton v.
Laws.
1 6. An Action brought in an inferior Court for an Afaidt and Battery,
was removed into B. R. and upon the Trial the f my gave 6 s. 8 d. Da-
mages, and j[os. Cojls, and the Judge before whom it was cried certi-
fied, that the Jffault was ftijjiciently proved. The Quellion was, whe-
ther or no in this Cafe the Plaintiff Ihould recover any more Coits than
Damages? And 3 Points were moved, ill. VV^hether or no the Jud^e
had fufficiently certified, becaufe it was that the AlFauk (and not the.
Jffault and Battery ) was fufficiently proved. 2dly, Whether or no, if
,the Colts and Damages given by the Jury, exceed 40 s. it ihall b; within
the A61 ? 3dly, VV^hecher an A6lion commenced in an interior Court
originally, and afterwards removed hither, Ihall be within the Act ?
And as to this Point the Reporter fays he was told, that the Judges of
C. B. had adjndged, that it was, as to this, all one as it anAction Degaii
here. 4thly, The Reporter fays he was told, that the Judges at Ser-
jeant's Inn liad diti'ered in their Opinions, whether orno Atlions of the
Cafe were within the A61 i but the Opinions of moil were, that they
were not, nor none but thofe named, viz,. Trelpafsand Battery. Freem.
Rep. 365', 366. pi. 467. Pafch. 1674. Hamond v, Rockwood.
17. An Action of Trefpafs was brought Quod Domnm fregit , and Bona
afportavit, and as to the Domtim fregit the Defendant was Jo.'tnd Not
Giiihy, bat to the taking away the Goods Guilty, and Damages afj'ffed to
15 s. The Quellion was, whether he Ihould have any more than Dama-
ges, in as much as being found Not Guilty ai> to the Domum fregic, it is
now no more than it he had brought an Attion of Trover for the Goods,
and that had not been within the Statute ; and a Precedent was cited in
C. B. where it was held, that the Plaincitf ihould have his full Colts ;
fed advifare vult Cur. and (o it was held here attcrwards. Erecm. Rep.
394. pi. 511. Trin. 1675. ^- ^' Anon.
18. In an Affault and Battery the Cafe upon rlie Evidence was this,
Smidi V' " t:he Defendant drew a Sword, and waived n m a menacing Manner a-
Meefam, gatnji the Plainttjf, hut did not touch hnn, lb the Jury were ordered to
icemstobe \i\^ him Guilty as to the Alfault, but n-.'C ot the Battery; and the
Opinion
2 r.ev.
S.C. re-
Cofts. 353
Opinion of the Cciiirc was, that the Plainuift' was to have no more Coils fblvcdac-
than Damages, tor the new Aft excepts A6lions of AlVault and Battery, ^"""^"'g'^'
lb that both mull be proved. Vent. 256. Pafch. 26 Car. 2. B. R. porter j-^^'
Anon. that he
heard.
•» Keb. 55^. pi 58 Smitli V Hadome, S. C. the Court conceived, that he can have no more Cofts
than Damages, and that the Statute does not extend to the inc-eafcd Colls ; but the Court may givi
Judgment tor what Damagts the Jury tax, though only the Allifult be certified.
19. North Ch. J. faid, this Statute was made with refpeS: to the
Statute of 43 Eliz. cap. 6. ior there it is provided in Perfonal Aftions,
if the Debt or Damage is under 40 s. &c the Judges may mark the
Poltea, and the Plaintift^lhall recover no more Colls thin Damages, but
there ^rcfpafs and Battery are excepted, and then this Statute provides
in thole Cales only ; the Di[f'ercnce is upon the 43 Eliz. the Party (foall
have bis ordinary Cofts, uiilefs the Judge certify [_iefs ij but upon this la ft
Statute in trefpafs and Battery, when lefs than 40 s. is given, the Party
thall not have ordinary Co_fts, unlefs the Judge do certi{y ; And he faid it
was held by the Judges, that fuch Perlonal Actions, which did not
brin^ the Title of the Land in Queltion, were not within this Statute,
except Battery, and therefore he held the principal Cafe, being an Ac-
tion upon the Cafe by a Commoner, could not poh'ibly bring the Title of
the Land in Quellion ; and belides, the Statute was made to prevent
Suits for petty Trefpalies. Freem. Rep. 214. pi. 222. Mich. 1676. in
Cafe of Styleman v. Patrick.
20. I're'fpafs in the Palace Court; the Caufe was rembved into B. R. by ^ Lev 124.-
the Defendant, and the Jury having given 15 s. Damages, the Quellion ^''^^^*^ ^
was, upon the Statute 22 & 23 Car. 2. cap. 9. whether the i^f'intiffg'R^'Qgygj
lliould have no more Colls than Damages ; Et per Cur. the Caufe being v. Scuda-
removed by the Defendant, the Piaintiff ftsall have more Cofts, but not more S. C.
if it had been removed by the Plaintilf, for fo he might be more vexa- '''« Court
n II I thought It
tlOUS. 3 Salk. 115. pi. 9. reafonable
that fie
fliould have mere Cofts; the Caufe being remov'd by the Defendant; bur not adjudg'd ; But it being
faid to have been fo ruled in C R. the Court faid they would advile with the Juftices of C. B fo that
the fame Rule rnight be in both Courts.
21. Cafe for eating of his Grafs with Sheep, /o that he could not ;'^ Freem. Rep,
tarn amplo modo enjoy his Common d<.c. this is not within 43 Eliz. lor it^^"*' i" V,
is not a frivolous Aclion, becauie a little Damage to one Commoner, ,|,g 'j^j.y '
and fo to 20, may in the whole make it a great Wrong, and if it wasgave 10 s.
frivolous, the judge of Affife might mark it to be fuch, and though a Damages,
Title is here fet lorth to his Common, yet the Title of Land cannot ^""l, 4° *•
come in Queltion, and fo not becertiticdas in Cafes otTrelpats, neither js^^,.j^ ch
is there any need of a Certificate, if it appears by the Pleading that j. vVind-
the Title of the Land is in Queltion. 2 Mod. 141. Mich. 28 Car. 2. ham, and
C. B. Styleman v. Patrick. ^"°Z?>' .
■' conceived,
that this was not was not within the Statute 12 & 25 Car 2. but Atkins J. e contra ; for though the
Title of the Land could not come in (jiiellion, yet Common is concerning Land, and a Man may
have Freehold in it. North Ch. J. faid, that here it appears his Title was in (^ueftion, for he mull
prove his Title in Evidence, as it is alleged in the Declaratiou, and they all -agreed, that where it
appears by the Record that a Title is in Qu'.;fHon, there is no need of the Certificate of the Judge ;
But per Atkins, it maybe the Defstidant would confels his Title upon the Trial, and then it would
not be in Quellion ; but according to the Opinion oi the other three the Plaintiff had his ordinary
Cofts.
22. InTiefyi^s ior entring his Ckfe &c. the Defendant y/z/fz/t'^/or rf 2 Show. 28.
Way &c. the Plaintiff replied that the Defendant was Guilty extra viam, ^ ^ ^"' ""'^
upon which they were at Ilfue, and the Plaintiff had a Verdift ^ '•^'^ S c~cited"
Quellion was, whether he fhould have no more Colts than Damages ; by Lord Ch,
4 X adjudged 3- Gilbert.
Gilb Equ.
Kep.i9S;i9?.
354 C"fi
)US.
adjudged he fhall have lull Colls, becaufe the Title to the IVay appears
on Recofti, (viz) of -what Extent it is^vtz. fo many Feet m Breadth ^c,
2 Lev. 234. Mich. 30 Car. 2. B. R. Allcr v. Finch.
23. In an Aftion oiTrefpcifs.) upon Not Guilty, at the Aflifes in SulTolk,
a Verdiii was found fcr the Plaintiff'., and 1 o s Damages, and 40 s. Cojhy
and Judgment entred accordingly ; And an Aftion of Ddn was broughn
upon the Judgment, and the Defendant pleaded fpcciatly the Statute 22
& 23 Car. 2. cap. 9. again ft recovering more Cofts than Damages (-where
the Damages are under /\Qs) in Trefpafs^ unlejs certified by the Judge
that the Title was chiefty in ^tiejiion, the Words of the Statute being.
If any more Cods in fuch Attion iLall be awarded, the Judgment fliaJl
be void. To which the Plaintiff demurred, and the Plea was held in-
fufficient; becaufe the Verdift was for 40s. Colts, and not Colls in-
creafed by an Award of the Court. II the Judgment were erroneous,
yet it was hard to make it avoidable by Plea, notvvichftanding that the
Words of the Statute are, Ifiall be void. 2 Vent. 36. Trin. 33 Car.
2. C. B. Page V. Kirke.
2 Jo. z%i.^ 24. Trefpafs Vi et Armis lox fiinging doim certain Stalls oi the Plain-
S-^''^'°'^''^'tift' in the Market Place of H. It was relolv'd p.-r tot. Cur. that the
uue docs not Plaintiff Ihould have his ordinary Colls, becaufe the Statute lliall be in-
exteiid to tended to reach to fuch Atlion only in wliich the Freehold may appa-
thisCafe, rently come in Debate, and this Aftion is not Quare Claufum Iregir,
or other Kut only for deftroying a Chattel, and the Freehold cannot come in
oVcoods— ^"^bate, any more than if a Man Ihould take his Sword out and run a
Skinn. 100. Coach-Horfe thro' the Guts, whereby he died, and the Owner IhaJl
pl. 17.S. C. bring Trefpafs Vi et Armis, and recover under 40 s. Damages, yet he
the Court fhall have his full Colls. Raym. 4S7, 488. Hill. 34 & 35 Car. 2.
Sylu' B- R- Smith V. Batterton.
Cofls ; and
Saunders Ch. J. faid, that a Stall is no Part of the Freehold. 2 Show. 25S pi. 265. S. C. held
accordingly, and if the Stall had been annexed to the Freehold, yet if carried away it would be like-
wife out of the Aft ; and in fuch Cafes, where it appears in the Record, the Poftea need not be
niai-k'd. S. G. cited 3 Mod. 40. S. C. cited by Ld. Ch. B. Gilbert. Gilb. Equ.
Kep. 19S.
Gilb. Equ. 25. Tx&^^?S^iox breaking his Clofe, and impounding of his Cattle ; Up-
Rep. 198. Qj^ jvj-Qj. Guilty pleaded the Plaintiff had a Verdict, but Damages under
b^d'^'ch 4°^- ^Vhereupon Mr. Livefay the Secondary refufed to tax full Colls,
b!' Gilbert, alleging it to be within the Statute of 22 & 23Car. 2. Mr. Pollexfen
moved lor Colls, alleging that this A£t doth not extend to all Trel-
paffes, but only to fuch where the Freehold of the Land is in Quelli-
on ; If the A&ion had been for a Trefpafs in breaking his Clofe, and
Damages given under 40s. there might not have been full Colls, buc
here is another Count for impounding the Cattle of which the Defern-
dant is found Guilty, and therefore mull have his Colts ^ the Plaintiff
had ordinary Colts, 3 Mod. 39, 40. Hill. 35 Car. 2. B. R. Barnes
V. Edgard.
S. C. cited 26. 'in an A£lion of Trefpafs ^uare Claufum fregit, and putting
per Cur. Stakes upon his Ground, it was held, that this was within the late Sta-
Comyns's ^^^^^ which ena£ls, that the Plaintiff Ihall recover no more Colls than
Mich's'w Damages i but li any Thing had been taken away (of how little Value fo~
V B. R. in ' ewr j it had not been within the Statute. 2 Vent. 48. Trin, i \V.
Cafe ot & M. in C. B. Anon.
Fry, which was Trefpafs Quare Claufum fregitj-gc Blada fua ibidem crefcent, fuccidit & afportavir.
The )ury, as to the breaking of the Clofe, and cutting of the Corn in the Blade, found the Defen-
dant Guilty, but as to the carrying away Not Guilty ; but where it docs not appear rliat the Tref-
pafs was committed under pretence of Title, or that any thing was carried away, there we cannot make a
tonftruftion contrary to theexprcfs the Words of the Aft of Parliament.
27. Tref-
Coftj
?55
27. Trefpafs ^itare Clanfumfregit^ a/iJ {declared of divers othtrs Tref-
pafes. The Detendant pleaded Not Guilty as to the Claufuin Iregit,
and juftified as to the other Trefpaifes, which upon the Ill'ue was tound
tor the Detendant, and as to the Claufum fregit it was found for the
Plaintijf. I'he Court held it a clear Cale within the lace Statute, that
the Plaintiff' ihould have no more Colb than Damages, the Damages
being under 40 s. 2 Vent. 180. Trin. 2W. & M. in C. B. Anon.
28. In an Action ofTrefpafs, Qnare Clat/fttm jregit^ and digging up Gilb. Equ.
and carryif/g away of his Trees. It appears upon the Evidence, that the ^5P* ^98.
Defendant had entred into the Plaintiifs Clofe, and digged up feveralQ^^ |*S
Roots of his Trees., and removd than to a Place on the fame Ground.^ about C. cited bV
fwo lards dijlance of. Poilexfen, Ch. J. and Rokeby (Powell abfent,) Ld. Ch. B.
were of Opinion, that the Plaintiff" was to have full Culls, becaufe the Gilbert, and
Roots were carried from the Place where they were digged, tho' not D.fnton'T
remov'd off" from the Ground; Ventris conceiv'd that the taking ofinformV'
the Roots, and laying them a little way oiFin the fame Man's Ground, him, that
could not be taken as an Afportavit, but by the Opinion oi the other ^'■'"- "
two the Plaintiff- had his full Colts. 2 Vent. 215, 216. Mich. 2 W. Sui-tof'''^
&M. inC. B. Anon. C.B. doubt-
ed of this
Cale in Vent. 215. But they ap-ecd, that if any thine was carried oft from the Grounds, the' of
never fo little Value, it would be an Afportavit; For the V\'oi-ds Ahcariavit, & Afportavit, in
Declarations, means fuch a Carrying as amounts to a Converfion to the Defendant's Ufe,
29. In an Aftion of Trefp.ifs G)iiare Claufum fregit., where as to fame
Part there was Mot Guilty pleaded, and as to the other a fpccial Ji!flijicati~
on, 2.viA AVerdi^ upon the general Iffue for the Plaintiff, and the fpecial
Iffueforthe Defendant. The Court took this to be within the hits Sta-
tute for the Plaintiff" to have no more Coils than Damages, becaufe the
IlTue upon the Matter fpecially pleaded, was found for the Defendant,
and k the fame Thing if the general Ilfue had been only pleaded, and
found for the Plaintiff". 2 Vent. 195. Trin. 2 VV. & M. in C. B,
Anon.
30. Debt for a Penalty of 20I. brought by the Corporation qui tarn &c. S. C. cited
ttpon a private Act of Parliament concerning the New River Water brought P<^'' Cur. as
to Plymouth; the AiSlion was brought againft Collings for diverting the •'uledaccord-
Water-courfe contrary to the Statute. Upon Nil Debet pleaded, the ,5^ ]„ p". '
Plaintiffs had a Verdift at the Affifes and the Quellion now was, wl)e- 14. Mich-
ther they fliould have Cofts upon a Recovery on this new and penal 5 VV. 8e M.
Statute ? and after Deliberation it was held per tot. Cur. the PlaintilFs '" ^- ^'
Ihall have Colts, becaufe here was a certain Penalty given to certain Per^
fons, and fo within the Rule for Colts ; but it is otlierwife where the
Penalty is incertain, or where it is given to common Informer; and
fo it was ajudged upon a Recovery on a private A6t ot Parliament, be-
tween the COrpOrtiOn of CUtla*0 tl» EUfltll, that the Plaintiffs fliould
have Colts, becaufe the Penalty was given to a certain Perfon ; but it is
otherwife where given to an Informer. Carth. 230, 231. Pafch. 4 W.
& M. in B. R. Plymouth (Corporation of) v. Collings.
31. Trefpafs &c. Herbam depafcendo S Solum ^ fundum Cariicis ftth'
vertendo S m folojodendo & cum Terra inde projeHa Aqu^e ciirfum fuum
oljtupand' per qtiod Claufum fuum mundat' fuit &c. Upon Not Guilty
pleaded the Plaintiff" had a Verdift, and 2d. Damages; and the Secon-
dary retuling to tax any Colts more tlvan the Damages, it was moved
now, that the Plaintiff" might have lull Colls, as in other Cafes, and
per Cur. upon Veiw of the Statute, the Plaintiff" fliall not have tuU
Cofts in this Cafe, for that it was within the very Words of the re-
Itraining Claufe, which allows no more Colls than Damages, if the
Damages are under 40 s. Quod Nota. Carth. 224, 225. Pafch. 4 W.
6c M.^ in B. R. Laver v. Hobbs.
32. Tref-
336
Coil:
s.
32. Trd^-Ak jor cha/iiig his Sheep^ and that he (che Dcfenlanc) /?</
Loca igiiota COS abduxit S (Icfigavit ; altera Verdict lor ti;e PlaintilF
and 2d. Damages, he had his tali CoHs upon a Motion, princ pally up-
cii the Word ^ibdusit which is the fame in Signification with Alborca-
vic. Carth. 225. cites Hill. 5 W. 3. Coletiiurll v. Hayes.
53, In an Aftion oi Trefpafs feveral 7'refpajjes were Qi forth and the De-
fendant was fonfidNot Guilty as to all but one which was pcdibus ambitlan-
do, and che Damages 5s and no more. This Caufe began oiiginally
in an Interior Court, and was removed hither ; and the Court allowed
iuU Cofts, tho' the Damages were fo fniall ; Quod Nota. 4 Mud
378. Hill. 6VV. &M. in B. R. Roup v. Scntch.
Comb. ;99. j^. 1'refpafs for etitrnig his Clofe, and catting and carrying avvay his
Fr^'^'^S^C ^°''" ' UP°" ^^^ Guilty pleaded, the Defendant is tound Guilcyofall
adjoriiii-ur. ''■^^ Trefpafs, but carrying away che Corn, and as to this he is tound
I Salk. Not Guilty; and it was iTioved to have full Colls, becaufe otherwite
193. pi I. S. a Man might come and deltroy Fruit-Trees and Flowers in a Garden
But'HolT'^''^"'^ do Damage to a great Value 3 yet upon Tielpafs broughr, the De-
Ch. J raid, tendanc could not intilt upon any Right, but plead Noc Guilty, and
that where' che Plaintitf thall have Cotls only according to the Damage and the
the Trerpafs Att did HOC intend inch -wilful TrcfpaJJes, but onlj Qifual TidpaiVes ^ as
**" "^"rVf'^* t^he riding over a Clole in Hunting &c. and leveial Cafes were cited,
^um^^r'the wherein luch deiigned and voluntary Trefpalfes, tho' Nothing be carri-
^ithmay ed away, yet full Colts were given ; but nocwichltanding all this that
comein Siiief-wn.s faid, the Court feem'd Itrongly to incline e contra; &ad\ifare
fliall ^b^7 11 ^'"''^ i ^^^ ^^^ Court agreed, that if he had cirried away, tto' net out of
Qq{{^. the Prei?i//les, full Colts fhould have been given. Skin. 666. pi 4
5 Mod 9.5. Mich. «"VV. 3. B. R. Blichley v. Fly.
Blanchly v.
Fry S. C. adjornatur.
i Salk. 6(^5. 35. Trefpals for a C/o/e ^rf)^fi« &c. Upon Not Guilty pleaded, the
&. C. but Nili Prius Roll was carried to the Aflifcs co be tried, and there, by
no: appear Confenc of the Parties, the Jury had the View, and the Trial was put
off to the next AlTifes, and then che Itfue was tried, and a VerdiiSt
for the Plaintiff, and 10 s. Damages; And the <^ueftion w.as in C. B.
whether the Plaintiff lliould have more Colts than Damages, tor the
■ Judge had made no Certiiicate that the Title came in Queltion ; and re-
folved per Cur. the Plaintiff Ihall have lull Colts; tor it apf-cars upon
the Record, that the Vitw was granted, but the View cannot be granted
unlefs where the Title comes in (Queltion, and therefore the grantin>^
of the View amounts to a Certificate, that the Title came m ^iicffioii ; and
by all the Prothonotaries, it is always the Practice to give lull Colts
where the View is granted. Ld. Raym. Rep. 76, 77. Patch. 8
~\\ . 3. Kempfler v. Deacon.
36. Tho' the Damages are tinder 40 s. in an A^iion removed out of
an inferior Court by Habeas Corpus, ytt the Plaintif'Jball have full Cofls,
and it is not within 22 & 23 Car. 2. cap. 9. Ld. Raym. Rep. 39^,
Mich. 10 W". 3. B. R, Canterbury Arch Biihop v. Fuller.
37. In an Adion ot Trefpals Quare Claufum f-egit of yifnult. Bat-
tery, Wounding, and of Diflarbance of kirn in his quiet Pcjfff/ivn ik.c. upon
Not Guilty pleaded, -^general VerdiB was given for the I'lauititf, and
Damages under j^os. and Mr. Branthwaite moved to have full Colts,
becaufe che Defendant was found Guilty of Wounding, and Dilturb-
anceof the quiet Polieliioii ; But per Holt Ch. J. the Practice has
been always ocherwife ; and he faid, he did noc remember fucli a Mo-
tion to have been made; but Gould J. laid, that he moved luch a Mo-
tion as CO the peaceable I'oliclfion here in ¥>. R. but it was denied him ;
12
and the Motion here was denied. Ld. Raym. Rep, 566. Patch
W. 3. Boiture v. Wotlrick.
3S. It
Cofts. 357
38. Trefpafs {ox chafing^ drivings and "woanding his Sheep, per quod
fame died, and others "were dampnijied, and alfo Jur taking and earrymg
away one Hog oi the Pkintiir; Upon Not Guiliy the jnry found the
Defendant Guilty of all but the taking and carrying away the Hog, of
V'hich they tbund him not Guilty, and gave 2d. Diimages j and the
the Queltion was, whether the Plaintiircouid have more Coils than Da-
mages? And the Court, upon opening the Matter, held the Plaintiff
Ihould have his full Cofts, for this is out of the Statute 22 & 23 Car.
2. cap. 9. I Salk. 208. pi. 7. Pafch. z Ann. B. R. Ven v. "Phil-
lips.
30. Though the firit W'ords are general, yet by the lalt W^ord
(/i[fions^ it is reltrained to iuch wherein there be no certifying ot the
Eattery, or the like; therelore if it be an Aclioa wherein there can be
no fuch certifying, as Debt ^ jiff tunpfh. Trover^ 'Traverfe for taking his
Goods, Trefpafs lur beating his Servant per quod Servitium amilic, it is
out ot the Statute, i Saik. 208. pi. 7. Pafch. 2 Ann. E. K. Ven v.
Phillips.
40. Trefpafs for breaking his Clofe and treading doivn his grafs. Plain-
tiff had a Clofe adjoining to the back oj the Defendant's Honfe, ivhich 'u:as
a Pablick Honfe ; The Dejendant iiftd to fet up a Stable for his Giiejls in
this Clofe, and ferve them there, and often a fed to walk there for his Plea-
fiire, andijcnh others' who pot with Bows and Arrows there. Holt ^Ch. J.
faid, that if the jury give under 40 s. Damages tho" the Title of the
Latid does not come in qucllion he would certify, for this a voluntary
aialitiotis Trefpafs, and the Statute is only to be underlbjod of finall
accidental Trefpalies. 6 Mod. 153. Pafch. 3 Ann. B. R.Dove v. Smith.
41. It was moved to have full Colls in an Aclion of Trefpafs, inter It was held
alia. Cot breaking his Lock upon his Gate, and cited 2 Vent. 215. and 3 within the
Mod. 39. Per Cur. had it been lor taking away the Lock, lull Colls might ^^^ Locks
have been given. But Powell J. faid this feems to be laid as a Trefpal's were fix'd
in order to try the Title, and where the Freehold comes in ^leftion, there to the Ports,
it is held full Colls Ihall be ^ but where the Freehold does not come in andjhe Ports
Queftion, there no more Coils than Damages; but if the Judge certifies ^^-^f ^f^'
the Trelpafs to be voluntary and malicious, there tlie Colts are to be lull s. C. cites
by Statute 22, 23. Car. 2. cap. 9. But it was adjourned to ice if Hill. 12
the ]udge, who tried, would certify. 11 Mod. 198. Mich. 7 Ann. '"'""■ ^^"^
B, R. Butler V. Cozens. "■ ^"''^''•
42. Trefpafs jor chafing his Cow, and his domcfiick Fowls, viz. Hens,
Geefe ^c. with Dogs, which Dogs were nfed to bite tame Fowl, by whoje
/biting they were killed. On Not Guilty Verdict for the Pliintiti", and
he had his full Cofls, becaule this is not a Trefpafs wherein the Right
of Freehold mav come in Quellion. Gilb. Equ. Rep. 197. cited by
Lord Ch. B. Gilbert as Mich. 9 Geo. i. C. B, Keen v. VV^hiftler.
43. Trefpafs of AJJaiilt, Battery, Wounding and hnprifnnnnt, as alfo
for entring and breaking his Hoiife, and opening the Doors of the fud Hoife,
and breaking three Locks, and three Bars, belonging to the faid Doors.
The Defendant pleaded Not Guilty to all except the Imprifonment, and for
that he jujiijies ; and on the Trial the Jullification was yo//;/^ ^i^r the
Defendant, and the Not Guilty (or the Plaintiff, and the Damages 2 s 6d.
and held by the Court, that the Damages being under 40 s. he- could
not have full Colls for the Battery, becaufe the Judge had not certified
the Battery to be v\ ell proved, neither could he have full Colls for
breaking the Houfe &c. becaufe this is a I'refpafs relating to the Free-
hold, the Conllruction ot 22 and 23 Car. 2. cap. 9. S. 149. havmg been,
ihazk extends to Trefpafs relating to the Freehold and Inheritance, and to
fuch Trefpajfes only, which is collected from the Exception, where the
Judge certifies that the Title came in Quellion, which iLews that the
Aft extends only to fuch Trefpaffes where the Freehold might come in .G^uef
tion, and not to Trefpafcs cj Chatt le <; ched by Lord Ch. B. Gilbert.
Gilb. Equ. Rep. 197. as Mich. 10 Geo. i. C. B. Beck v. Nicholls.
4 Y T!tf^)ii.fs
3^8 Cofts.
44. Trefpafs was brought lor breaking and entring Plaintiff's Hcri}^
anil kapntg the Piainttff out of Po[fe/[;on :ifid Ule of the laid l-Jou(e, with
a Continiiando Jor a Muntb^ ■xhcrtby the Plamttjf was put to great J-lspcn-
ces to gain the Pojjejion of his Houfe, and in the mean Time loft the Profit
and bfi of his Houfe ; Yerdift for the Plaintiif, and 2 s. 6d. Damages,
and upon Motion lor lull Colls, it was decreed by the Court ■■, for this
is a pla n Trefpafs Quaie Claufum tregit, and the per quod is only
an Aggravation J and in this Cafe the Title of the Freehold might
have come in V^uellion, andiffo, there fliouid have been a Certificaie
of the Judge, which not being in this Gafe, the Flaintitf can h.ive no
more Coils than Damages. Gilb. Equ. Rep. 197, 198. cited by Lord
. Ch. B. (jilbert as Mien. 12 Geo. i. C. B. Blunt v. Miller.
45. In Trefpafs the Plaintift' declares oi breaki?/g and entring his
C/ofe, and then counts, that B. (the Deiendant) intra Tempus pra^did'
viz. Such a Day, broke and lock'd up the Houje and Barn and took and
detain d fnch and fuch Goods of the Plaintijfs jor four Weeks in the faid
' Hoafe and Earn. The fury found for the Fiaincilf, and 2 d. Dama-
ges. Lord Chiet Baron Gilbert, who delivered the Opinion of the
Court, faid, that tho' he doubted fomewhat at firll, yet he is now
clearly oi' the Opinion with his Brothers, that there can be no more
ColLs than Damages. Here is no Count, but where the Freuhcid might
fofjibly come in ^uejiion ; For this Count is for breaking the Barn, and
locking up the Door of the Houfe and Barn, and detaining feveral of
the PJaintiif's Goods, mentioned in the Declaration, i'l that Hoafe and
Barn. Now here is no fublfantive and independaut Count quoad the
Goods and Chatties, becaufe it is connected with the breaking and lock-
ing up oi the Barn, and in that C&le the Freehold ot the Barn might
come in Quellion j and then locking up the Goodi in the Barn is buc
meer Aggravation in that Count. It a Man will put his Goods in my
Barn without my Leave, he can't enter and break my Barn in order to
come at his own Goods, and therefore upon this Count the Property of
the Goods might not be in Qutltion, but meerly the, Barn that was thus
broken. Gilb. Equ. Rep. 195. to 199. Hill. 12 Geo. in Scacc. Reeves
V. Butler.
46. Another, and ftill, a ftronger, Reafon in my Opinion, is, that it is
laid by way of Detinutt, and not by way of jljportavtt ; For where it is
laid by way of Detinu'.t, he may detain a Diltrets, (Sc contra Vadios 6;
piegios, and not by way of Afportation and Con\erlion; And then e-
ven on the part of the Count, touching the Goods and Chatties, the
Freehold might come in Quellion, and whether iuch Dillrcfs were law-
ful i So that taking this as an Aggravation of brea.king of the Barn, as
indeed it ought to be, the Freehold might come in Quellion in this
Count ; Or it it had been put into an mdependant County m the Define'
only^ and not by way of Afportation and Converlion, fuch Count woalJ
not be good in Trefpafs, and therefore no Damages could hav e been rc-
cover'd lor it and therefore there could be no Coils de Incremento, and
confequentiy there can be no Colts in that Cafe ; This was the Opinion
of the whole Court delivered by the Lord Ch, B. Gilbert. Gilb. Equ.
Rep. 199. Hill. 12 Geo. in Scacc. Reeves v. Butler.
47. The Conltruftion upon this Statute was, that in all Actions of
Battery, and in all Actions where Freehold could come in Qucition, if
the Damages were under 40 s. the Plaintitf" mull procure a Certiricate
iiom the Judge, in order to obtain his Colts i but in all other Peifonal
Atlions, the Law Hood as it did betore the Statute of Eliz.. that tae
Judge mult certify the Action as frivolous, to llrip the Plaintilt of his
Colts ; the plain Confequence of which is, that it there befeveral Counts
Sri Tre.'pajs, and one relates to the Freehold, m ivhicb the Title may CLine in
^hieftiofi.^ and another rcljtes to Chatties de Bums yJ; portal' in which no
'Jitieoj Land can ccme in ^uefion, and intire D.in/jges be jonnd under
40 J. the Plaintiif mult ha', e Coll.s, by ibe Statute of Giouceitcr, be-
taul?
^
Coih. ^5p
taufe die Colts are not remicted by the Scatute of Eliz. wichouc a Cer-
tificate from tlie Judge, and thisis not within the Statute Car. 2. where-
in there is a NecelFuy there fliould be a Certificate of the Judge, to in-
title to Colts i and therefore when intire Damages are tound, there muft
be fome Damage proportioned to that Count, and if there be any Da-
mage proportioned to the Count relating to the Goods, that the Statute
of Gloucefler carries Colls of Courfe. Gilb. Equ. Rep. 196. Hill.
12 Geo. in the Exchequer, in Cafe of Reeves v. Butler.
48. In 'Trefpafs for a very great Detriment ^nAfpoilingofthc 'Plaintiff'' s
Land, it was moved to tax full Colts, though the Damages given were
under 40 s. but the Court faid, that an Afportation was out of the Sta-
tute of 22 & 23 Car. 2. cap. 9. Seft. the kit, but that a Spoliation
was, not; And Page J. faid, that the Courts had difcouraged Suits of
this Nature i For upon the Statute 43 £//,:;. cap. 6 it the Judge certi-
fies the Suit to be vexatious, they will not allow the Party his full
Colts, though the Damages are above 40 s. but he faid, if the Party
had produced ^ Certificate from the Judge of the 'Jrefpafs beirig wilful
and malitions, they would have granted it j and thisis required by 8
& 9 W. 3. cap. 10. Barnard. Rep in B. R. 117. Hill. 2 Geo. 2.
Grandey v. W'iltlLire.
49. In Trefpafs Qtiare C/<7//!/^/;;z/iY_^/?, and alfo for a Trcfpafs commit-
ted on a Chattle fevered ■, Per Cur. the Authorities feem ro run, that a
Trefpafs being laid to be committed on a Chattle fevered, the Plaintiif is
intitled to full Colts. Gilb. 42, 43. pi. 5. Hill. 2 Geo. 2. B. R.
Granville v. Vincent.
50. Where de Son Jffauh Dcmsfnc is pleaded, the Plaintiit' Is inti-
tled to his lull Colls, provided he has a Verdict ; per Cur. clearly ^ but
Judge Lee fiid, that the Rule is not, that the Plaintiff Ihould be in-
titled to his lull Colls in all thefe Actions of Trefpafs, where there is
fpeciai pleading, and particularly cited the Cafe ot pijllpot !)♦ 310112^,
Hill. I Geo. 1. in trefpafs there for breaking the Ptaititiffs Hotife, the
Defendant Jufiified as Bat! iff' under Procefs ^ the Plaintiif replied, that
his Doors were firti ; upon which Iffue was joined ; Verdi£t found for
the Plaintiff, and Damages 2d. Motion was in that Cafe for full Cofts,
but the Court refufed it. 2 Barnard. Rep. in B. R. 277. Mich. 6 Geo.
z. Waflier v. Smith.
51. 4 y 5 ?K y jf/. c^r/). 23.6". 10. If any inferior T'rddefman, Jp. i S^\k.^\^.
prentice, or other diffcliite Perfon, negleCting then grades and Employments, J'^?',^^'*^^'
tt'/w (olloisi Hunting Sc. pall prefiime to Hunt, Ha-'jck, Fip, or Fowl, Bcnnet'v
(aniefs in Company with the Majier of fach Jpprentice duly qualified) heTi\hot,
Osall be ftibjeii to the Penally therein, and may be filed for their wilful S C, and
trefpafs in coming on any Perfon's Land, and if found Guilty, Plaint iJ^'^^'"''.^S^ ^''^
Jhall not only recover his Damages but his full Coffs of Suit. Tvjclr
■w;is laid for
breakinf^ and entering^ liis Clofe, and treadint^ down bis Grafs and Corn, and hunting there, the De-
fendant being an inferior Tradethun, Contra Pacem &c and Contra Formam Jitatiiti. Tne Court
held, that Lontra Formam Statuti fhould only bs applied to the latter Part, which was really againft
this Statute, and that fince the Breaking and Hunting could not be fcparated, the Plaintltt fhould
have his Colh accoruins; to this Statute ^ and Judgment tor the Plaintiff -Comb. 420. S. C. ad-
judged for the Plaintiif; For the Conclufion of Contra Formam Statuti fhall refer only to that
which viould realbnably bear it, and though in Grammer it goes to all, yet in Law it goes to the
Hunting only.- Canh. 582 S. C adjudg'd accordingly. And per Holt Ch. J. it is fufficienc to
lay in the Declaration, that the Defendant hunted in the Plaintiffs Clole without concludinp Con-
tra Formam Statuti ; For that fnnuld come in Evidence-^ 5 Mod, 507. S. C adjudg'd for the:
Plaintiff. For this was an Offence before the making this Acf, which only repeals that Claufe of
the S'atute of 2; Car 2. as to Colls, and therefore though the Declaration concludes Contra For-
mam Staiuti it is well enough.
52. 8^9 JK 3. cap. 10. S. 4. For the preventing ofwilfull dnd md-
licious Trcfpajfcs, be it further enaiied, that- in all J tl ions of trefpafs to
. be comvicncect cr profaitted, from and after the z^th Day of March, 1697.
in
\. '
q6o Cofts.
z> any of his Majcfty's Courts of Record at iVcftiinn/hr, whcruin at the
1'rial of the Canfv it (hall appear^ and he certified by 'the Jndie under his
Hand tipon the back, of the Record^ that the Trefp^ifs upon which any De-
fendant /hall be found Guilty was wtlfttl and mahctcns^ the Plaint ipf (hall
recover not only his Damages^ but his jail Gifts oj Suit, any former Law
to the contrary not-ivithftanding.
But "Note, 53. II ^ !i \V. 3. cap. 9. S. i. Ena^s, that the Statute 22 S 23
that the (2^^ 2. cap. g. (hall e^end to the Principality of IVales and the Counties
in^ ,0 be P^!^^!'"^-
coinmrtrced
in thofe t^ourts, if thcv are commenced there, and remov'd hy Habeas Corpu'! or Certio'.-ari
into the Courts of Weliminfter, there the Plaintiff fliall have full Colts. Gilb. Hift. of C. B.
21*7 _
This Statute maintains th? Statute of Car 2. as extending only to the Courts oF Weft.Tiinflet', bnt
further enafts, that it fhall be exte;ided to the Principality of Wales and Councils Palatine Gilb.
Hift. of C B. 215.
(M) How afiefs'd or tried.
I. Y7|THERE a Man tenders Damages and Cofts .^ and the refi of'ths
y Y Debt upon Statute Merchant, and prays Sare facias to re-'cave
his Land, the Miles and Coltuges Ihall be try'd by Avermenc, ixnd not
by fa}'itig of the Jultices. Br. Colts, pi. 5. cites 47 E. 3. 1 1.
2. It' in 7'rcfpafs brought againft two Detendancs one is found Guilty by
himfelj, and the ot I er Guilty by himfelf, and Damages feverallv adeii'id,
yet the Colts Ihall be jointly taxed. 10 Rep. 117. a. in Piltold's Cale^
and fays, that with this agrees 36 H. 6. 13. and 12 Ed. 4. i.
If there be 3. Sir J . S. brought an x\£tion upon the Cafe againll P. B. upon a
tiio fjj-uestn cfyo^jsr ofGoods and Houlhold-Stuti'i the Defendant pleaded as to Par-
'tie7hi't>"iie'r ^^^■f that they were tixed to his Freehold in S. in Hamplhire, ablque
and one is 'hoc that he tbund them in Other Manner ; as to ano:lier Part, chat rhe
tried, and Plaintiff gave them to him at D. in Hamplhire ; and as to the other
|u,i|ment p^r^ he pleaded Not Guilty ; For the tirit Part the PLiintid'cauied
tTon orthe' ^^ "-^ '^'^ entred, Xon vulc ukerius profcqui, and took Ilfue upon the two
Coftj and Other, and it was (ound for the Plainiiff by fevsral Junes, in federal
Damages ; Counties, and Damiges and Cofts aftcfjed by the Janes; and now the De-
and after- fendant brought Error, ■a.nA afttgncd Error, becdHfe both Juries have af-
mhcVliTue f^JJ'-^ (^ifi-^i ^'"''^ Judgment given accordingly, whereas the lait Verdict
is tried, and ought to do it ; and where two Juries are to try the Ilfue, the Form of
Cofts there- the Entry after the firlt Verdict is, Celiet Executio, undl the other liilie
"P5"?;j,''"-' be tried. See 21 H. 6. 51. 36 H. 6. 13. Anderfon l'aid,fev'eral Ilfues can-
niou9 a" to "0'^^^^'^^ "^'""^ Colts, although they may theDamages, lor it is but one Suit,
the Cofts. therefore but one CoitSj and that is the Iveaion that Judgment Ihall not
Brownl. V be given until the lall Iliue be tried, htcAu\l: t'aAt Cofis ihall be bat once
Brocas'iCik.^f^^ft^.^^ which was granted by the whole Cou rt, and by Periam, that
the Jury may afjefs Cofts J or the whole Suit, Qnod luit ConceHum. 2 Le,
177. pi. 217. Tnn. 33 Eliz.. C, S. Sir John Sands v. Brocas.
4. Aftion oijalfe Iwprifonnient was brought by M. againft two Bailiffs
of a Corporation, who pleaded Not Guilty, and at the Nift Prius the
Plaintiff was nonf'uit i and now Serjeant Richardlon moved upon the
■ Statute ot 7 fac. cap. 5. for double Coit-^, and that upon the very
Words ot the Statute, and the Q^iellion was, whither the Cofls ought to
be ta^ed hy this Court, or by the Jiijlices oj Jf/ije; llvl)artiaid, ti.ai up^a
the N'onfuit me Jultices ol Ailife might iiave co.iiinaniicd the Jury to
have ta.Kcd the liiigle Colts, aid tlicn the lame ludges might haveduub-'
led them, av.d that, withia ihc Words oi the Scaiuic ; but if the Judge
Li rams
Cofts. c^ 6 1
grants this, then upon his Certificate the double Colls fliall be affeired
lor otherwiie the Party Ihall be withcuc any Remedy, and Erownlow
Ch. Prothonatary agreed with that, as to the Certificate, that this Court
ihall ailefs the Colts, and Brownlow had a Precedent accordingly. Win.
l6. Trin. 19 Jac. Major v. tvvoBaililis.
5. After the Statutes made as to Colts, they began to make it a Rule
for the better Execution of the Statute, that the Jury Jhould tax the Da-
mages apart^ and the Cofis apart, that lb ic might appear to the Court
that the Colts were not conlidered in tlie Damages j and when it was
Evident that the Colts taxed by the Jury were too little to anfwer the
Colls of the Suit, the Plaintiff^ prayed, that the Officer mio-ht tax the
Cofts that were inferted in the Judgment, and therefore fiid to be done
Ex allenfu of the Plaintilf, becaufe at his Prayer. Gilb. Hill, of C.
B. 215.
6. Where a Statute (as in Walte) g'mis treble Damages^ the Jury give
Jingle Damagei, which are ojter'-joards trebled by the Court j for it is the
Jury's Fart as to Matter of Fa6l to afcertain tlie Damages, and ic is the
j^ulinels of the Court to fee the Law executed, and confequently to tre-
ble them. Gilb. Hilt, of C. B. 216.
7. An Indebitatus AJjump/n had been brought againji a Colkchr of the
Land-'Tax j The Defendant had a Verditt, but becaufe it did not appear
tipen the Nifi Prius Roll that this A^ion was brought againji an Ofjicer
JNlotion was made, that this might be encred upon the Roll to intitle
the Defendant to treble Colts ; accordingly the Court ordered an Entry to
be made in this Manner, Super examinatione Materiie it appears to the
Cours, that the Aftion was brought againlt the Defendant as Colleftor •
Ideo conlideratum elt, that he Ihall have his treble Colls j Arg. fays
that luch Cafe was cited in Cafe of tlje l!\iUQ; ll» PoiaiVO, and upon ci-
ting that Precedent, the Court made the lame Rule that the like En-
try Ihould be marie in that Cale. Heobferved farther, that in the Cafe of
one i©aUm* ailQ %\K, |©m. CgertOlt, Hill. 7 \V. 3. the like Entry was
roadeupon the Roll. Accordingly the Court ordered the fame to be done
in the prefent Cafe. 2 Barnard. Rep. in B. R. 117. Hill. 5 Geo. 2. in
Cafeof Catherol v. Cowper.
(N) At what Time Cofts may be given.
I. f I iRefpafs againji two for chacing in his Park at D. v/ho pleaded
JL. Not Guilty^ and the one -was found Guilty at fuch a Day to the
Damages of 30 j, and the other Guilty at another Day to the Damage of
13 J. The Plaintiff prayed double Damages, and Imprifonment ^ov 3 Years,
according to the Statute, and could not have it, becaufe he took his Ac-
tion at Common Law, and not a Writ making Mention of the Statute ; and.
it was awarded, that the Plaintiff fhould recover 30 s. againji the one, and
that the YlMViix^ flooiild be amerced, becaufe he is acquitted of the Tref-
pafs done with the other, and that he recover 13 j. Damages againji the
ether, and that he be amerced againfi him, becaufe he is acquitted of the
Trefpafs in common with the other. Br. Trefpafs, pi. 58. cites 47 £. 3.
10. & concordat 9 H. 6. 2. of the Damages in Aftiou upon Statute,
and in Aftion at Common Law. Br. Ibid.
2. In Debt of 20 1. 10 i. is not deny'd, and [as to the other] 10 I. he
pleaded in Ear, Judgment may be of the 10 1. immediately, but no
Colls till the Bar be try'd of the other 10 L Br. Colts, pi. 13. cites 22
H. 6. 47, 48.
4 Z (O) Cofts
Q^2 Cofts.
I
(O) Cofts increaled. In what Cafes.
N Attaint fotuid upon A/Jife, the Plaintiff recovered Coils, and
becaiife they were too little the Court increafed them ; in the
virictcn Book, fol. 12. and in the Printed, ful. 23. lor it is lall'e Print-
ed. Br. Cofts, pi. 8. cites 8 H. 4. 23.
2. In Trefpals againji three ot breaking his Park and killing his Sa-
vages there &c. and the ow appeared, and the others not ; the PlaintiiF
counted that he chaled in, and broke his Park, and kill'd his Savages;
the Dcjendant pleaded Not Gtii/t)'y and the Jury found that he came into
the Park to chafe and ki/I Savages, (brit did not bll any of them) to the
Dannge of tzvo Marks, viz. 13 j. ^d. for the 7rcfpajs, and i^ s. ^ d.
for the Cofts, and the PlaintiiF prayed his Judgment againft him who is
Ibund Guilty, and relcafed his Suit againjt the others, by which the
Court awaided, that the Plaintiff" recover againft the Defendant 40 s.
viz. 13 s. 4d. lor the Damages, and 13 s. 4d. for Cofts by the Jury
aliefs'd, and 13 s. 4 d. more for Cojis increafed by the Court. Br. Trclpals,
pi. 106. cites 5 H. 5. I.
Br. Con- 3. In Trefpafs the Defendant was found Guilty at the Nifi Prius to the
fcience, pi. Damage <f lip s. and becaufe the Defendant had Superledeas and Injunc-
ji. cites S.C.^^-^^ that the Plaintiff fhould notpurfue at Common Law till the Matter
be difeuls'd in Chancery, by which the Plaint iff' expended in the Chancery
10 Adarks, and after the Injuniiion was dijfolved, by which the Plaintiff
pray'd Increafe of Cofts in Banco j and it was awarded that the PlaintiiF
lliall recover 40 s. in Damages, and 3 1. in Cofts. Br. Cofts, pi. 22,
cites 21 E. 4. 78.
4. Error of a Judgment in Coventry was alligned, becaufe the Verdi ff
found 5/. for Damages, and 26 s. 8 d. for Cofis, and the Court a-ivarded
he Jhculd recover the Datnages and Cojis ajfejfed by the Jury, and that he
fhould recover 53 s. ^d. De Incremento ad requilitionem of the Plain-
tiff, and doth not fay Pro Mijis fiiis, and it might be that the Incremen-
tum was Pro Damnis. All the Court, Prater Berkeley, held it well
enough ; for it lliall be intended Pro Mtfts, which was the laft Antece-
dent, and that which might lawfully be increafed and not pro Damnis,
which cannot be increafed. Cro. C. 413. pi. 7, Trin. 11 Car. B. R.
Anon.
(P) Payment inforced. How. Or New Actions
ftopp'd.
1. ' I ^HE Lord Biron was Plaintiff in an Aftion, and spon a A/ba-
I flit ^ I. Cojis •■joere taxed againft him, and he brought another
A[iion for the fime Matter, which was laid to be meerly Vexation, and
that he refufed to pay the Cofts, neither could he be compelled, being
a Peer, and in Parliament Time ; wherefore the Court gave Day to fhew
Caufe, why this At"tion Ihould not ftay until he had paid the Cofts
in the lormer. Vent. 100. Mich. 22 Car. 2, B. R. Lord Biron's
Cafe.
2, Tlie
Coils.
363
2. The Court was moved on the Part ot the Detendanc, that in re-
gard the Plauitiffh^d. obtained the Catije between them to be tried at the
Bar, and theretore he might be ordered by the Court to give Security
to pay the Colts, in Cale the Trial fhould be againlt him ; But the Court
would make no fuch Rule, but faid, if he will not pay the Colls in
Cafe the Verdift be againlt hinij he ihall take no Benefit here after-
wards upon it. Sty. 322. Pafch. 1652. Dudley v. Born.
3. A Motion was made to Itay the Trial of an Ejetlment at Bar till
the Payment oiCofts of a former 'Trial in Ejeffment in C B. (Note, it was
mt letiji'een the fame Perfons, for there ivas another Leffor.') Dolben J.
the Rule of Itaying a Trial for Non-payment ot Colls at firlt was in the
fame Court where the former Trial was, but now the Rule is extended
to other Courts, and forafmuch as it appears in this Cafe to be on the
fame Titk^ it is reafonable to grant the Motion. Holt faid, we cannot
take Notice that it is on the fame Title. Dolben, it appears by Af-
fidavit. Holt, admitting it to be the fame Title, yet here is another
Pcrfof/, (viz.. an Heir or a Devifee) who is not liable to pay the Colls
ot the lormer Aftion j And it was agreed, that where the Lefjor makes
a new Ltffee in the fecond Action, that fliall not avoid the Payment of
Colts 5 Adjornatur. Comb. 106, Pafch. 1 W. & M. in B. R. Tredway
V. Harbert.
4. An Ejetltnent was brought in C. B. and a VerdiB for the Plaintiff,
hut he had no Cofls ; and now the Defendant in that Atfion brought a neis)
Ejetlment in B. R. againft the fame Plaintiff'^ and Sir Francis Winning-
ton moved, that he might have his Colls before he fhould be compelled
to plead to the new Aftion ; but it was not granted, becaufe he had no
Vexation, the Verdtii being for him ; but if it had been againll him, or
that he had been nonfuited, he Ihould not have brought another Action
before the Colls of the firll had been paid, becaufe it was a Vexation to
bring a new Aaion. 4 Mod, 379. Hiil. 6 W, & M. in B. R. Roberts
V. Cook.
5. The PlaintifFbrought Indebitatus Afftmpftt for Mo?iies received after i Salic ^4.
the Death cf the Tejlator by the Defendant, to the Ufe of the Plaintiff asi^- I'-S. C
Executrix 6cc. Upon Non Alfumpfit pleaded, the PkintifF was »o«-^"^^'^'
flit, and now {he brought a new Aftion ; and the Defendant moved rnp°""°'*P'
have Colls before the Plaintiff fhould be permitted to proceed, but de- 7 Mod 48.
nied per Cur. But Note, that in another Action between thefe Parties Elvis v. Ma-
the Plaintifl paid Cofls tor not going on to Trial according to Notice "toS.C.
2 Ld. Raym. Rep. 865, 866. Pafch. 2 Ann. Elwes v. Mocata. %^% ^p
6. In EJeffmefit the Defendant had a Verdift, and Judgment, and
Colls taxed, and then the PlaintifFbrought a Writ of Error in the Ex-
chequer Chamber, and pending that IVrtt, he brought a new Ejekment ;
and now it was moved, that he might not proceed on this Eje6tment
till he had paid the Colts of the firlt. The Court thought it hard that
the Defendant fhould be doubly vexed by the Proceedings on the Writ
of Error, and by a new Ejeftment, therefore made a Rule, if the Plain-
tiff fhould proceed on zhe EjeSiment he Jball pay the Cofls of the ^rff, 0-
therwife hefhall not proceed on the fecond. 8 Mod. 225, 226. Hill, 10 Geo-
Crundeil V. Bodily.
7. In an Action tor an Efcape brought by an Executrix againff the Mar-
(hall, Mr. Strange moved that Proceedings might be llaid till fhe paid
the Cofls of a Nonftiit in a former Aftion upon the fame Demand, and
compared this Cafe to that of a Pauper i But the Court (Ch. J. abfent)
faid, that this Motion has been often made, but never allowed ^ ac-
cordingly it was refufed in the prefent Cafe. 2 Barnard. Rep. in B. R.
94. Hill. 5 Geo. 2. 173 1. Holfey v. Mullins.
8. The Plaintiff had brought z former ABion as Adminiflrator, but in
the Declaration had le'^t Blanks for the Time zvhen the Admiflration was
committed
364
Cofts.
coi/ijiiitled, and for jbme other Particulars relating to it ; the Delendant
denuirred to the Declaration for this Reafon, but the Pkintifi'inilead of
moving to amend his Declaration, got Leave of the Court, upon a Side-
Ear Motion, to dtfcontinae zvithoiit Payment of Cofis as being an Adinini-
Jlrator. Notwithlhmding this, the PlaintitF had llnce brought another
tor the fame Caufe as the former ; upon v\ hich Mr. Strange moved, that
Proceedings in it might be Ikid till he paid Cofts in the former, but the
Court refufed the Motion, by reafon that an Adminifirator is a Pcrjon in-
demnified hy the Law from all Cojls on commencing any ABion. 2 Barnard.
Rep. in B. R. 154. Trin. 5 Geo. 2. 1732, Bird v. Smith.
9. It was moved^ that the Trial might be put sjf till the Plaintiff Jloonld
fay the CoJls of a former Notice. The Court agreed that they grant thefe
Motions in Ejeflment.^ but faid they do it in no other AcJion, upon
which the Motion was refufed. It was then faid, that it would be
but a fruitlefs Thing to pray an Attachment againft the Plaintiff, be-
caufe he abfconded, fo that he could not beferved with it. Whereup-
on a Rule was made, that Service at his laft Place of abode may be a
good Service, and accordingly that Rule was granted. 2 Barnard.
Rep. in B. R. 131. Pafch. 5 Geo. 2. 1732. Cock v. Wilkins. '
(Q^) In Chancery.
Sec Tit.
Chancery
(A. a)
Br. Cofts, pi. I- T-^ Trefpafs, after Jfftie found by Nifi Prius for the Plaintiff^ the
22 cites J^ Defendant obtain'd Subpccna and Injtin^ion to flay the Plaintiff's
S. C. Suit at Common Lazv^ and after the InjunRton was diffohed, and the Plain-
tiff had 3 1. Colts by reafon of the Delay in Chancery. Br. Confci-
ence, pi. 22. cites 21 E. 4. 78.
2. He who is vex'd tortioudy by Subpoena, fliall recover Damages by
Award of the Chancellor, and he who lues Subpaenay??^// find Surety to
render Damages if he does not prove his Bill true. Br. Confcience, pi.
24. cites Inter ftatuta tit. Subpoena.
3. Feme Sole Sues out a Subpoena., and the fame Day is Adarried, is dif-
milied with Cofts. Gary's Rep, 139, 140. 22 £liz. Peer v.
Cawfe.
4. Co/Is tax'd for Scandal in a Bill in Chancery at 100 1. but tho' the
Scandal was very great, yet byLd. Chancellor and thejudges it was re-
duc'd to 50 1, and the Counfel, whofe Hand was fet to it, to pay
the Defendant 5I. Chan. Rep. 194. iz Car. 2. Emerfon v.
Dallifon.
, Chan •5- '^^^^ Plaintiff exhibited a Bill againfi the Father of the new Defen-
Rep. 65. S. dant, and revived it againji the Defendant as his Son and Heir, which
Cintoudemwas afterwards difmijfed with Coffs ; And the Queltion was, whether
Verbis. the Defendant fliould have the Co/Is expended by his Father in the Suit,
before the Proceedings were revived ? And it was ruled he could not,
for they were dead with the Perfon. Xelf Chan. Rep. 147. 22 Car. z.
Lloy'd V. Lord Powys.
6. Decree oithe Commifftoners of charitable Ufes for Payment of Cofts
&c. reverfed. Fin. Rep. 81. Hill. 25 Car. 2. W^harton v. Charles
& al'.
7. The
Coits. 365
2Z. ZO
2.
7. The Pluinciffand Defend-int having joined in CommiJJton to examifie ^'■^^y^n
Witiicfes, the Defendant tiao Days before the Execution of the Comaiiliion,^-.^?- ^_^
caufes the Plahuijf' to be taken in Execution for the fame Caufe depending SmUhV.
here ; the Court ordered the Defendant to pay Cojh and Damages to beHolman.
tax'd', to difcharge the Plaintiff out of Execution at his the Defendant's
CoftSj the Plaintitf giving a new Judgment, and alTo to be at the Charge
of a new Commi/Jion^ and order'd an Injuntlion till Hearing. P. R..
C. 2S7.
8. Plaintiff's Daughters by a fecnnd Venter brought their Bill againd
the Dclendant's Daughters by a firlt Venter, to prove their Father's iVill^
whereby Lands zvcre devifed to be Sold to raife Plaintiff's Portions ; and on
a Trial at Bar, and Verdi ff for the Will., Defendants ordered to Join
in a Sale, but were allowed their Goib both at Law and in Equity.
Chan. Prcc, 93. Trin. 1699. Crew v. Jolliffi
9. Defendant was ordered to pay to the Plaintiff' 100 I. for putting
ill a fcandalous Jnfzver, and the Defendant who h:id fct a Counfellor's
Hand to it was order'd to pay the Plaintiff' 20 1. and to Itand commit-
ted to the Fleet till Payment. 2 Chan. Rep. 386, 387. i Jac. 2.
VVhitlock V. Marriot.
I o Decree againfl an Infant and his 'trnjiees that the Cojis fJootild be
paid out of the Trufl-Money^ but rcverfed^ bccaafe the Money was to be laid
out in Land wherein the Infant was to be but 'Tenant for Life. MS. Tab.
May 5th. 1713. Pellerals PoUin v. Husband.
1 1. Cofts Ihall follow the Event of an Account ; But if it be intricate
ordoubtfull, there Hull b.- no Colts. MS. Tab. May 8ch, 1716. Pitta
V. Page.
12. A voluntary Devifec brings a. Bill to eftablifh the Will againll
one who is not Heir at Law. Defendant by Anfwer claimed under foms
ancient Settlement which he could not f'nd, and hoped when he could, he
Jhcald have the Benefit of ft. It was infilled for the Plaintiff^, that the
Defendant might try his Title by a certain Time, or in Default, that
the Plaintift'might hold and enjov againlt the Defendant. Bill difmif-
ed with Cofts. g Vern. 743. pi. 651. Hill. 1716. Chir. v. Phil-
pott.
13. A Decree oiCoJls neceffarily follows a Decree of Payment of Princi^
pal and Interefi. MS. Tab. Dec. iff, 1718. India Company v,
Ekins.
14. Bill to fet alide Leafes made purfuant to a Power. The Bill
was difmis'd becaufe a Matter purely determinable at Law, (viz.)
Whether the Power was well executed or not. Per Jekyl M. R. If a
Billis brought for a Matter properly determinable at Law^ the Defendant
cught to demur., and not fuffer the Caufe to go on to a Hearing, and if
the Bill be difmifed upon Hearing, the Defendant pall not have Cofls., be-
caufe it was his Fault to let it proceed ; and where the Title is purely
Matter of Law, tho' the legal Eltate is veiled in Truftees, the Cefty
que Trutt ought firft to apply to the Truftees to make ufe of their
Karnes in an Aclion at Law before he brings a Bill in Equity ; for a
Bill in Equity infu'ch a Cafe is only necelfary where the Truftees re-
fufe their Names to be made Ufe of in an Atlion at Law to determine
the Right. MS. Rep. Pafch. 4 Geo, in Chanc. Tichburn v.
Leigh.
15. Mentioned to be a Rule that there flwll be no Cofts allowed a
Party who could never come to his Right without the Aid of a Court of
Equity. MS. Tab. Feb. 15th, 1721. H'alker v, Mackpherfton.
16. This Bill being with Liberty to Defendants to try their Title at
Law, in an Ejeifmeut upon the feveral Forfeitures inlifted on by their
Anfwer, there being an Injunilion granted in the Caufe upon the
Plainciffj Peachy 's giving Judgment in Ejeftment was neceflary to re-
5 A taia
66 Colts.
tain tne BiJJ, and continue che Injuntlion till the Right was tried at
Law, to prevent Execution being taken out upon the Judgment in E-
jefiment given by Order of the Court.
This Day the Caule was let down upon the Equity referved after a
Trial at Bar in B. R. and Vcrdi^ for the Platnti^ as to a Meadow of
gyJores, that it %vas forfeited to the Duke, Lord of the Manor, hy
making a Leafe thereof without Licence, and as to the Refidae of the
Lands in the Ejefc'tment, the Jury find for Defendant^ viz. that they
were not Jurjeited.
Quaere if the Plaintiff, Sir Henry Peachy, fliiU pay any, and what
Colts in this Cafe, lince the Jury have found ^ Parts hi 5 for him in
the Ejefclmenc ?
It was admitted, that at Law, if the Plaintiff recover any Part he
lliall ha\e Colts i but it was faid, that it was otherwife in Equity,
where the Plaintiti prevails for fome Things in Demand, he Ihall have
Cofts fo far as he prevails, but as to the Relidue he Ihall pay Coiis
pro Rata ; that this EJe£lment being tried by Order of this Court, it
Ihould be fubjeft as to Colts to the Rules of this Court, and now it is
lound by Verdi£l that the Duke did infilt upon Forieiture of fe\eral
Parcels of Land, contrary to Lawand Confcience, and thereibre ought
not to have Colts for what he unjultly demanded, and put the other
Party to an Expence to defend.
Per Macclesfield C. I think in this Cafe the Defendant, the Duke,
ought to have his Colls both in Law and Equity ■■, by the Rules of
Law, it the Plaintiff in EJe6lment recover any Part he ihall have Colts,
and this is purely a Title at Law, and Equity has nothing to do with
it ; it is true, in this Cafe the Bill was proper fo far as to have a Dif-
covery of the leveral Forfeitures infilled on by the Duke, to enable
him to make his Defence at Law, but Sir H. P. is not intitled to any
Relief in Equity againll the Forieiture, and therefore the Bill fliould
have been abfolutely difmifs'd at the Hearing, and was retained only
till after the Trial in Eje£tment to prevent the Duke ofSomerfet cak-
he ought to have Colls in both Courts, and the Bill mull now be
jolutelv difinifs'd, fave only that the Plaintiff mult have an Injunction
to Itay Execution upon the Judgment in Ejectment given by Order
of the Court, with Liberty to the Duke to enter up his Judgment up-
on the Verdict, and to bring a new Ejettment upon the other Forlei-
tures which was found againft him, it he thinks fit. Colls to be tax'd
by the Mailer, both at Law and Equity. MS. Rep. Trin. 8 Geo,
in Cane. Peachy v. Duke and Dutchefs of Somerlet.
17. A Decree Nifi hy Default was alter wards vmde abfoLite by Default
aJfo. Upon a Petition of Re-hearing, the Court refufed to re-hear the
Caufc, becaufe the Colls upon the firlt Decree Nifi were not paid, for
the Party cannot jhew Caufe agatnjl a Decree Nifi by Default^ unlefs he
pays the Cojis of the Hearing Nifi, and he ituill not be in a better Con-
dition by fuffering that Decree to be made abloiute by Delault, than
if he had appeared at the Day, and Ihew'd Caule againll it; Per Mac-
clesfield C. MS. Rep. Mich. 9 Gto. in Cane. Hoyle v. Hoyle,
18. A Bill was brought Zy ^ Devife of Land to perpetuate the Ttfii-
mony of a Will; the M alter of the Rolls diimiiied the Bill with Colts,
declaring, that it being only for perpetuating the Tellimony, it ought
not to have been fet down for Hearing. 2 \\'ms's Rep. 162. 'I'rin.
1723. Hall V. Hoddeldon.
19. Equity will not give Colls at Law contrary to a Verdi ff. MS.
Tub. Feoruary I7ch. 1726. Macguire v. M.iddfn.
20. C0II3
Cottaees. 3^7
20. Colts always to be allowed where tbe Fads contejied are frefnmcd
tobeintheKito'-JukdgecftheParty that contejls them. JVIS. Tab. April
4th, 1726. Cockraine v. Blantire.
21. A Sim til Grofs Ihall never be added to a BUI of'CoJls after it is
taxed by a proper Officer. MS. Tab. April 28th, 1726. Parker v. Stanley.
22. Deleiidant not confeffing Plaintiffs title, but putting him to the
Expence and Trouble of proving it is a Circumllance to give Colts.
MS. Tab. February 3d. 1726. Trinity Houfe v. Ryal.
23. Plaintiff' always pays Cojls^ where an Account turns againll him
or -where he prevails in nothing but what he anight have infified on at Law.
MS. Tab. February 29th. 1727. Lyre v. Parnel.
24. The Order for making an Eletiion recites only, that the Plaintiff'
proj'ectites the Defendant at Law and in Equity for one and the fame Mat-
ter, \'o that the Defendant is doubly vexed ; wherefore it provides that
the Plaintiff his Clerk in Court and Attorney at Law, having Notice
of the Order, dn ivithin 8 Days after fuch Notice, make his Eleffion in
vvhich Court he will proceed i and if he ele£ls to proceed in thisCourt
(the Chancery,) then the Proceedings at Law are by that Order to be
Hayed hv Injunftion. But if the Plaintiff llaall elect to proceed at Law,
or in delault of fuch Election by the Time atbrefaid, his Bill is to be
difmilied with Cofts. 3 W'ms's. Rep. 90. Mich. 1730. Anon.
25. One ought not to be condemned to pay Cofts in this Court for
vi/ijliug on a Right which the Law gives him Per Lord Chancellor
King. 3 W ms's. Rep. 205. Mich. 1733. Brown and Ux. v Elton.
26. A I'rujiee misbehaving himfelf v,'2,s ordered to pay Cofts out of his
own -Pocket, and not out of the Trult Eftate. 3 Wms's. Rep. 347.
Mich. 1734. ^^oyd & al'. v. Spillet & al'.
27. An Heir at Law is made a Defendant and injtfls on his 7'itle; he
fhall have his Cofts, tho' it goes againft him ; But if an Heir at Law-
be Plaintiff' and mifcarries in his Suit, he Ihall not have Cofts ; but on
his Suit appearing to be groundlefs, ihall pay Cofts. 3 Wms's Rep.
373. Trin. 1735. Luxton v. Stephens.
For more of Cofts in general. See CljaUCCC)?* DamagClS. iSOUflU't
And other proper Titles.
(A) Cottages.
I. 31. Eliz. cap. 7. Par. 1. 'TT^OR the avoiding of the great Inconve- This e.v-
XJ niences which are found by Experience '«"^^ ^s well
to grow by ere&ing and building of great Numbers and Multitude of Cot- '„ ^."^?f' ,
tages, which are daily more and more encreafed in many Parts of this /^corporate
Realm ; Be it enaifed that after the end of this Seffions of Parliament, no as to natu-
Perfon pall within this Realm of England make, build or ereii, or caufe to be '"3' Perfons
made, builded cr ereifed, any manner of Cottage for Habitation or Dwelling, ^^^^^"^l'
ttnlefs the fame Perfon do afftgn and lay to the f aid Cottage or Building 4 This''
Jcres of Ground at the leaft, to be accounted according to the Statute or Or- Branch pro-
dniance De terns Menfurandis, being his or her own Freehold and Inheri- '^i''!'^ f'*''
tance, lying near to the faid Cottages, to be continually occupied and ma-'^'^f^^.f^^
nured therewith fo long as thefaui Cottage fhall be inhabited, upon Pain newerefting
that every fuch Offender fhall forfeit to our Sovereign Lady the .^utens or Building
Mujdfly, her Heirs and Siicceffors 10/. of lawful Money of England, y^r "^ ^"X.'^°f-
■ e^iery fuch Offence, '^Sf after tiic
■' ' ■" end of this
. „ ^ Parliament.
Idly, it prohibits the Con verlion or oidainingof any Houfing or Building, made or hereafter to
be made, to be ufed as a Cottage.
363
Cottages.
:!dly, Al^^eit the Hoiife or Buildii\f^ were rrade before this AiJi-, yet if the (Jonverfiim were afer
the 2<)th of Mari.1) i 50'}. it is prohibited by this iitatute, for in Point of Converfion th,e Words
be (made or hereafter to be made )
/jthly, Thefe Tliiiif;.'. are proljibited in this Breach, upon Pain of Forfeiture of 10 1. to the Kin!»
or every liach Oftl-nce. 2 lull "y^fi,
This Branch 2. Par. 2. And he it jitrther enaclcd by the Authority afcrcfi^id, that
mflids Pu- £-,j.,.j: Per fori that ajter the end of this Scffion of Parliament.^ fiall Ziillingiy^
upon fucli uphold.^ maintain J and continue any fiich Cottage hcreafitr to ie erefied^con-
as iliali vertfd, or ordained for Habitation or Dive/Img^ivherennto 4 Acres oj Ground
uilmgly as ajorefaid, Jhall not be ajjigned and laid to be uftd and occupied with
uphold, the fame, l^ball forjeit to our J aid Sovereign Lady the .}^teens Majejly^ her
ard'continue ■'^'■''"■^ '^'''^ '^'''^'"'/^'" 4° -f • for every Month .^ that any J lie h Cottage Jhall be
any (uch by him or them tipholden, maintained and continued.
Cottage,
after the erd of this P.a-Iijment, either erefted or converted or ordained as aforefaid for Habitation
&c. upon the Penahy of 40s. to the King for every Month, that any I'uch Cottage fhall be miui-
tained.
So as a Cottage is twofold either newly erefted or builded after our Statute, or of a Houfe built
before or after the Statute, and converted after the Statute to a Cortage. 2 JnlV 'y;^.
But out of thefe two ranches arc fve Exce^tons By the firft Branch of this Act any Perfon may
ereft a new Cottage or convert an old or a new Houfe to a Cottage, it he lay to it 4. Acres of
Grcurd at tlielfall, which n-uft have thefe fnur Incidents; ifi:, 'Jleje Jcres miijl be accom.teii ac-
(otur.g to tie Staiiite or Oidir.jnce.DeAdn.cnfuratione terrsAnno 3 5 E. i. which is .i,tcr tl;e Kcite of id
Feet and a half to the Pole, idly, Tiefe 4 Acres mufi he his ov her Fretl old nvd _ hiheritai:ce (for
neither Grounds hoUicn by * Copy, or foi- Life, or Lives, or for any Kuniberof Years will ferve)
and it muft be Freehold, either in Fee Simple or Fee Tail- jdly. They mufi lie near the faiH Cottage.
4ihly, They mull be continually occupied, thereieith (b long as the Cottage fh.iU be inhabited. 2
lift. ^5^. * Bulft 51, 5i. Mich. S. Jac. S. P. held accordingly in ilie Cafe of.Bro.ke v.
Bear.
This Aft fhall >7o/ pv(fM(^ to r.}iy Cottage, which fhall be ordained (that is converted) or erefted
to or for Habitation or Dwelling in any City, Town Corporate, ancient Borough, or Market
Town.
■ l\or to any Cottages or Buildings ercfted or converted for the necejfary fLiLit.ttion of ixny Lahouvers
in any AJincr.tl Works, Coal-Muies, Quarries, or Delfs of Store, or Slate, or about making of Brick,
Tile, Lime or Coals, fo as the /irae Cottages or Buildings be not above one ALU difiant from the
IMineral or other Works.
Kor to any Cott.iee to be made within 5 Places, viz. Iflihin a Mile ofthn Sea. idly, t'pon the Side cf
filch Part of the Navigable River where the ^Jdniiral ought tohave Jurijdiclion, jo long as a S.zilor fiall
dwell there, or feme Pcrfon of Manual Occupation, for the making, jurnijhing, or viSualling of any Ship
&=f. 5dly, In any Foreji, Chafe, U'arren or Park, fo long as the under Keeper or If'.trrcner dwell
t'.erein &=c
4thlv, AW to an V Co'tage heretofore made, ifl, For a common Herd/man. adly. For a common
Slephe-cd &c. (of whom his Cottage is called a Sheepcote) (b long as a common Herdman or Shep-
herd fhall therein Dwell. ^A\y, For a poor,lanie, fick, or impotent Perfoi. 2 Inft. 727
Note, this Exception extends only to Cottages eiecled or made before this .-/cf, by reafon of tbefo Words
(heretofore made)'but none of thefe 5 can be eretted after this Statute for any of thele ; Purpo-
fes, unlefs there be laid to it 4 Acres of Ground with the 4 Incidents abovelkid ; Lambert Jullice
of Peace pag 47'). milhkes this Part, and for (Heretofore) fays (Hereafter ) But by the S/.itnte 4;
Eliz. cap z cither the Churchwardens and Overfeers or the grearell Part of them, hy the Leave of the
Lord of the If'afte &j. in ll^ritin^ under the Hand and Seal of the Lord, or by Order of the Jiijlices of
Peace at thsir general ^rarter Sejfons, by the Leave of the Lord as is afore/aid, may er?<7 cmvenient
Houfes of Habitation for poor impotent People, and alio to place Inmates, or more Families than
one in one Cottage or Hoa'e. ill, Note that extends only to fiiJ> as be pcor and in:poteiit. It e.'vtends
not to an-t common Herdman or Shepherd, as hath been llkewife mifl.ken 2 lull. -;7.
f^or dotli our Aft extend to any Cottage to be made and decreed upon Complaint made to Jnflices of
Jffifc, or Ji'flices of the Peace, in open Jfffes or garter Sejpons of the Peace, to continue for Habitation
dii'ing the 'Time only of fuch Decree. This laft branch exteiiJj only to Cottages made after our Sta-
tute. 2 Inft. 7;b.
Here fcven 3. Par. 3. Provided alfo, and he it enafied, that from and after the
1 hings l''cn(i of AH Saints next corning, there fhall net be any Inmate or more
obfeived Families or Houfehold than one, d'welhng or inhabiting tn any one Cf'ttage
ift Th..t made or to be made or ereifed, upon Pain that eviry Owner and Occupier of
no Inmate . ^
'>r Under-
fi'ter can be
v.ithinthis "- '•■-■ •-•>-' r '' i ' 1 ' ' ", ' J ]- -j -■ - v -j -■■£> ■> 1 "■
St»iute, but every Muiilb that any jiith Inmate or other tan/iiy than one, Jl all dwell vr
tnhabtt
Cottages. 369
jn habit in any one Cottage as aforefaid. And that all and every Lord and'^"- a f^ottage.
Lords, of Leet and Lcets, and their Stewards within the PrecinU of his „ 2'^'y>'riiis
and their Leet and Leets, pal/ have full Power and Authority within ceming In-"
their feveral Leets, to enquire and to take Preferment ly the Oath of Ju- mates ex-
rors, of all and every O fence and Offences in his Behalf and upon fach tends to Cot-
Prefenttnent had or made to levy by Dijlrefs to the Ufe of the Lord of the '^^.^.'' ^^
Leet, all fiich Sums of Adoney as fo (Imll be forfeited ; And moreover that before t^his
itfhall be lawful for the Lm-H of eijery fach Leet where fuch PrefentmcntSurmc as
(hall be made, to recover to his own Ufe any fach Forfeiture, by Atiion o/after.
Debt in any of the .Queen's Majejlys Courts of Record, whereiinto m Ej- ''^'5'' ^"**
foin, Prcteiiwn or Uager of Lavjfhall be allowed. Couaees'*
having 4
Acres of Ground or rrorc laid to them, as is aforefaid, as others that have no Ground at all.
4thly, Upon Pain that every Owner or Occupier of any fuch Cottage, placing or willingly fuf-
feiinK any fuch Inmate or other Family than one, fhall forfeit and lofe to the Lord of the Leet,
■hithin which fuch Cottage fliall be, the Sum of 10s. for every Alonth &c. This Month is to
accounted according to the Computation of 28 Days.
5thly, And upon fuch Prefentment had or made to levy by Difirefs &c. that is to fell the Diftrefs
iwhich he Ihall take within the PrecinO: of the I^eet for fuch Forfeiture, and if there bea Surplu-
fage over the Value of the Forfcitute, to deliver it to the Owner.
6thly, This Att extends as well to Inmates in Cottages, in any City, Town Corporate, Ancient
Borough, or ftlatkct Town, as in any other Cottage wherefoever. Sec Hill. S Jac. C. B. Rot.
219^. between ^afe Iv ^^tat, in Trefpafs, Salop, a Jufdfication upon this Statute for the Pe-
nalty for keeping an Inmaie.
7thly, Hereby the Aft gives Elcdion to tbe Lord, to take his Remedy by Aftion of Debt, in
any oi the King's Courts of Record. 2 Inft. "^58.
4. Par. 4. ^e it further eriaffed by the Authority aforefaid, that all^'^ tliis
Jttflicesof AJftfes and Jujiices of Peace in their open Seffions, and every ^''^f\^^^^^^'^
Lord within the Precinti of his Leet and none others, pall have full Pcw-\q be^ob-^
er and Authority within their feveral Limits and Jurifdi&ions, to enquire krved.
of, hear and determine all Offences contrary to this prefent Aif, as well i ft. That
by Indiifment as otherwife ' ~ " ' " " ' ~
Execution, for the levying
Elegit, Capias f or ctherwtfs.
Peace, and
Lords of Leets, and noother Jud^rescr Judices can enqilire &c. any of the Offences againft this
Statute. And therefore the Sheriff in his Turn cannot enquire 6cc. of any Otfincc againft this Sta-
tute, committed within the Leet of any Lord thereof
idly, That they may enquire hear and determine ^11 Offences Sec. fo as there is a concurrent
Power in every of thefe three, and the Judgment &c. of fuch one of them as do firft enquire, hear and
determine the fame fhall ftand ; And each of them may enquire of all and every of the OtTences a-
gainft this Aft.
5dly, ^s well by Indiftmenf or otherwife by Prefentment or Information. The difference between
an Indiftment and Prefentment is this, that the Indiftmsnt is drawn and ingrofL-d in Parchment in
Form of Law, and delivered to the Jurors to be enquired of 8cc. And a Prefentment is properly that
which the Jurors find and prefent to the Court, without any former Indiftment delivered to them,
which afterwards is reduced to a formed Indictment. Every Indidm.cfit which is found by the Ju-
rors, isprefented by them to the Court ; For the Record fays Jur.itores prsfentant &c. when they
find an Indiftment. And therefore every Indiftment is a Prefentment, but every Prefentment is not
an Indiftmcnt.
Offence.'; found in Leets, Court Barons Sec. are commonly called Prefentfnents* which was the
Reafon that this A£t, giving Jurifdi£lion to a Leet, doth ufe this Word (Prefentment) in this and
the ^d Branch.
4thly, By the Words (to award Execution by Fieri Facias, Elegit, Capias or otherwife) greater Ju-
rifdiftion is given to the Leet, than it had at the Common Law, fo as the I^ord of the Leet has' by
the ^d Branch, Power to levy the Forfeiture due to him, bv Difirefs or by Aftion of Debt by the
Common Law; And by this 4th Branch, by Fieri Facias, Elegit or Capias. 2 Inft. 759.
5. 6". 5. This Statute p^all not extend to any Cottage^ in any City., or Tiw;; See pi. 2
Corporate, or Ancient Borough, cr Market-Town, nor to any Cottages for ^if ^'^^,
the Habitation of Workmen tn Mineral JForks, Coal-Mines, J^tiarries, 5^^°'"^ *''*•
Delfs, or m the making of Brick, Tile, Lme, or Coals ^ fo as the fame
Cottages be not above one Mile dijiant from the Works ^ and be ufed only for
the Habitation of Workmen.
J B 6.S. 6.
^7o Cottages.
See pi 2 6 S. 6. 'this Aii pall not extend to any Cottage within a Mik of the
and tlie j'^^^ ^^ h^q^i ;^g y/^^ (j| ^^^, Navigable River, where the yidmrral ought
orest ere. ^^ have Jarifdiition^ fo long as no Perfon jbail therein Inhabit^ but a bai-
lor, or Allan of manual Occupation, for making, ftirnijhing or viClualltngy
of any VeJJel iifed toferve on the Sea ; nor to any Cottage in any Forcfi, Chafe^
Warren or Park, for fo long as no Perfon Jhall therein Inhabit, but an Un-
der Keeper or Warrcner ; Nor to any Cottage heretofore made, fo long as no
other Perfon /ball therein Inhabit, but a common Hcrdman or Shepherd^
Jor keeping the Cattle of the Toisun, or a Poor, Lame, Sick, or -^ged, or im-
potent Perfon ; Nor to any Cottage, which upon Cuiiiplamt to the /ujlices of
-/iffife, or to the Quarter Sefjions, fhall by their Order be decreed to continue
Jor Habitation, during fo long a 1'ime, as by fuch Decree jhall be limited.
7. 43 FMz. cap. 2. Par. 5. Ena^s that it jhall and may be lawful jor the
Churchwardens and Over feers^ or the greater part of them, by the Leave of
the Lord or Lords of the Manor, whereof any Wajle or Common within
their Parijh, is or fhall be Parcel, and upon Agreement before with him or
them made m Writing under the Hands and Seals ofthefatd Lord or Lords,
or otherwife according to any Order to be fet down by the Jujliccs of Peace
cf the faid County at their general .Quarter SefJtonSj or the greater
part of them, by like Leave and Agreement of the faid Lord or Lords in
Writ i fig, under his or their Hands and Seals toereff, build, and jet up in
Jit and convenient Places of Habitation in fuch Wajle or Common, at the
general Charges of the Parifh, or otherwife of the Hundred or County as
aforefaid, to be taxed, rated, and gathered in Manner before expreffedy
convenient Houfes of Dwelling for the faid impotent Poor, And alfo to
place Inmates or more Families than one in one Cottage or Houfe, One A£i
made in the 31 Tear of her Majejiies Reign, entitled an AS agamji the
ereding and maintaining of Cottages or any therein contained to the con-
trary notwithjianding, which Cottages and Places for Inmates Jhall »ot at
any time hereafter be ufed or employed to or for any other Habitation, but
only for impotent or poor of the fame Parijh, that (hall be there placed from
Time to 'Time by the Churchwardens and Overj'eers cf the Poor of the
fame Parijh or the mojt Part of them, upon the Pains and Forjeitmes con-
tained in the faid former Ail, made in the faid 31 Tear of her Majejiies
Reign.
8. The Inconveniences that grow by unlawful Cottages, and Inmates
in Cottages againft this Statute, as appears by the Preamble arc great,
being Nells to hatch Idlenels, the Mother of Pickings, Thievings, Iteal-
ing ot V\'ocd &c. tending aJfb to the Prejudice of lawful Commoners;
ibr that new erefted Cottages within the Memory of Man, though
they have 4 Acres of Ground or more laid to them according to the
Att, ought not to Common in the Waftes of the Lord ; but tne great-
eft Inconvenience of all this is, the ill breeding and educating of
Youth, which Inconveniences may be eaiily helped and remedied by
the Provifions of this excellent Law, if Lords ot Leets and their Ste-
wards would look to the Execution of this Aft, which we hold the
readied Means ; For albeit the Cottage erefted or converted, cannot
by^^any Proviiion in this Statute be demoliHied or pulled down, yet
the 'Execution of the Penalty of this Aft will make it uninhabitable
and work the delired Efteft, and they may alfo be amerced lor wrong-
ful Commoning in the Court Earon. 2 Inlt. 740.
* S. C. cited 9. J. S. was indiCfed upon the Statute 3 i Eliz.. becaitfe he had erefjeda
^"^ ^^\ u ^^^^^■S^ S Tears laji paji, and had not allotted 4 Acres of Land according
Court he to the faid Statute Dc tcrris menfurandis 33 E. i. and had continued ic
tnn to be a , tilz-ii^ . ii-tjo r>
Sntutc, I ^^^J" hnce. 1 he hrlt Exception was that chia Indiftment was tor erect-
iSaik. 195. ing a Cottage 5 Years palt, whereas every Oiience ought to bepunilh-
\A. 1 in the ^d within 2 Years by Indiftment or Iniormation, by the expreld Words
j^^j^'i^^gj'^ of the Statute of 31 Eliz. cap. 5. otherwife it is not punilhable, and
rjid" Hill, chcretore noc good, adiy, Bccaufe he dees nVc fay that he voluntarily
13 VV. 3. , continued
Cotta2:es.
ges. 371
continued it ; which are the exprefs Words of the Statute, jdly. For
that it is to be by the Statute De teriis Menfuraiidis whereas there is not
* any fuch Statute, but it is an Ordinance only ; And for thefe Caufes
the IndiSment was held to be ill; and the Defendant was dif-
charged. Cro. J. 603, 604. pi. 30. Mich. 18 Jac. B. R. Stowes
Cafe.
10. One was indifted for erefliing of a Cottage. It was moved that
the Indiftment was infufficient, for that the Words of 31 Eliz. cap. 7.
are (fliall willingly uphold, maintain, and continue) and the Indift-
ment is only, that he continued, and fo wants the }Vords (willing/y upheld J
according to the Statute. It did not appear in the Indifciment that it was
tiewly ereifed, for it is only that he continued, and not that he erecled.
The Indictment was qualhed, becaufe being a Penal Law, it was not
purfued. Godb. 383. pi. 470. Pafch. 3 Car. B. R. Day's Cafe.
11. If Lord of a Manor will fuller poor Men to erecl Cottages on hia
Wafte, though he takes no Rent for them, yet a Fine Ihall be fet uport
them, and the Lord of the Manor Ihall pay the Fine, and after the Cot-
tage built, if the Manor defcends, or is convey'd to another, if he re-
ceives any fmall Rent fof the Continuance of that Cottage, he alfo fliall
pay the Fine thatfhall be allefs'd, becaufe he upholds. Agreed. Jo, 272J
:?73. 8 Car. Chriftian Smith's Cafe. In Itin'. Windlbr.
12. mh& Statute vi\\\ch. gives Power to ereft Cottages in the Walte
for poor People does not extend to Wajte within Forefts. Jo. 269. in Iti-
nere Windfor, 8 Car. in Whitlock's Cafe.
13. In Windlefham in the County of Surry there were diverfe Cotta-
ges and Inclofures made upon the King's Soil, and afterwards the King
fells the Manor ; Per Noy Attorney General this has not dtCpcnc'd with
the Purpreftures, but the Patentee muji be fn'd for the Continuance of
them, and they are to bepuU'd down if they be not now amnted ; For
elfe the King's Grant fhould be taken by Implication to continue a
Wrong to his Foreft, which the King never intended, and accordingly
they were fin'd and arrented. Jo. 277. in Itin'. Windfor. 8 Car. the
Cafe of the Manor of Windlefham.
14. li tht J uji ice in Eyre w\\\ grant a Licence to erelf a Cottage, or Building
make an Inclofure, and Jifrent in perpetuum at a certain Rent, yet if without a
this be not done, fitting the Court, ic may be puil'd down again, and Lichee of
if fuch a Licence and Arrentation be Sedente Curia, it is good for ever. SuftiJcf^ **'
Jo. 277. in Itin' Windfor. 8 Car. Matthew's Cafe. "Eyre, makes
it Purtref-
tiire to the Fovcft, and \s fneahU^ and the Houfc demolijhahle. Jenk. 250. pi. 100, cites D.
240.
15. A Cafe in the Exchequer was cited by the Judge to be refolv'd,Itisagood
that a Cottage cannot by Law claim to have Common. Clayt. 48. pi, 82. ^1*™ for
Augull 1636. before Barkley J. Anon. S«"«»rf*'
Coucbant, but
■whether Sans Nombre the Law is not fettled, but per Cur. it would be hard to defeat it if it wer«
prefcrib'd to Sans Nombre. 6 Mod. 114. Hill. 2 Ann. B. R. Anon.
16. It was moved to quafh an Indilfment for ere£ling of a Cottage con-
trary to the Statute ; the Exception taken to it was, that he evened a
Cottage for Habitation, but did not fay it was tifed or inhabited as aCottagei
But Bacon J. anfwered, that the 'Very Ere^ion of it is an Offence againit
the Statute, and theretbre the Indictment did very well purfue the
Words of the Statute, and therefore would not qualh it. Sty. 33. Trin.
23 Car. B. R. Anon.
17. Though the Freeing of a. Cottage may be prefented at a Court Leet
for the Information 0! the Lord, vet the Court cannot amerce the Offender for
37 2 Cottages,
ic ; Arg. and lb was the Opinion of the whole Court. Saund. 135. Mill.
19 & 20 Car. 2. in Cafe ol the King v. Dickenfoii.
2 Krb. ;4o. iS. A Partjh ervtted a Cotiaee, but ivitbotit any Allo\sjaiice l\ a JuJJlce
pl 10. t> C. py- pcade, as the Statute 31 Eliz. cap. 7. direfts ; Upon an Infbrmacion
[i^Id "th^t '" ^- ^^- ^'^"^ ^^® taken, and found for the King. It was moved to
tiicMaiutc qualli the Information^ for that it does not lie in B. R. the Statute di-
wasonly reStiig., that the Offefue therein expTck'd jhotM be p/iui/h'd i'j' Juftices of
common In- JJJlj'i^ Jujiices of Peace in their Sejjtons^ and Lords of Leets, and no others.
Adtior.t'lL ButTwilden J. held, that notwithllanding the Words f«//^ ;;o o^/wjj
pular; but the Attorney General might fue in B. R. or in other Court ifhcpleafe ;
neither this Sed adjornacur. Sid. 359. pl. 2. Pafch. 20 Car. 2. B. R. the King v.
Statute, nor Mofelv.
any other
of like Nature did intend to prevent the King in fuch Informations as are by the King's Attorney, or
in the Name of Sir Thomas Fanfliaw, and the King in all Penal Laws may chufe his Court, and is
Hot bound by the Negative Words of any Penal Statute.
Saund. 155. 19- Saunders excepted to a P)'i5/f«?7;;ra/ /» a Lcet for ereSing a Cottage,
S. C. Saun- not averring there is no Land laid to it, nor contra Forin'aiu Statuti ; and ic
ders moved js no Oflence ac Common Law, therelore they cannot amerce by Avt-
becaufe it'is ^^"^fors othcrwife than on the Statute, which the Court agreed, and
not founded that this lies at Common Law, nor is four jicres of Copyhold fafficitut
on the Sta- within the Statute ; but being for incroaching io many Foot, and erett-
iute5i Eliz. jng a Cottage Ad commune Nocumentum, per Curiam, ic is well as
Cottages '■° "■^'^5 ^°^ ^^ '■° "-^^ Cottage only, & Affirmatur. 2 Keb, 606. pl. 38.
forittsn'ot Hill. 21 & 22 Car. 2. B. R. the King v. Dickinfon.
faid th:it tlie
Cottage was erefted for Habitation, as the Statute directs, neither does it conclude Contra Formarfl •
ttatuti as it ought, if it had been founded on the Statute ; and moreover, the Statute appoints a cer-
tain Penalty of 10 1. and the Statute is not in this Cafe therein purfued ; Then at Common Law the
Prclcntment is not good, becaufe the Incroachment on the Lord of a Manor inclofing Wafle and e-
rectintr a Cottage therein, is no Offence prefentable in a Leet for which the OlJender ought to be a-
nierced ; for it is not a publick Nufance, but a particular Damage to the Lord ; for although it miy
be prcfcnicd at the Court Leet by the Information of the Lord, yet the Court cannot amerce the O.fen-
tier for it tor the Court Leet can amerce for nothing but publick Nufances, and not for a particular
Trelpafs to the Lord, or any other for which they may have Aftion to recover -Damages. And fo are
the Booksof 48 E. 5. a. 12 H. 4. 8. b. exprei'sly, and fb it was the Opinion of the whole Court, and
thcPrefentraent was quaflied.
20. Exception was taken to an \adi\diment for continuing aCottage 11
Months, frovi sOiiober, 21 Car. till the taking of the hqaefl, viz. ^or the
Space of 1 1 Months, which -was 12 Months, led non Allocatur on 3 i Elii.
cap. 7. and _i 8 Eliz. cap. hat if there were J e-wer Months it were void,
but they would not qualh it till pleaded i But Hale Ch. J. laid, it was
ill and uncertain either way j Adjornatur. 3 Keb. 25. pl. 40. Pafch,
25 Car. 2. B. R. the King v. Naih.
21. Indictment for erefiing a Cottage for Habitation contra Stat' was
qualhed, becaufe it was notfaid that any inhabited it. For elfe it is no
Oftence, per Rainslbrd and Moreton qui foli aderant. Mod.295.pl.
38. Trin. 29 Car. 2. B. R. the King v. Neville.
22. Exceptions were taken to an /«^;///w«? for ere8:ing and continu-
ing a Cottage, viz. ift. It is faid not to have four Acres aj/tgncd^ to it the
Jirjt of November, which is a Month before the Erection ivas, for that is
laid to be the iji of December, a Month after; for this ic was qualhed j
Other Exceptions there were to it which were not moved ; x\s adly, ic
\& faid to be at a certain Place infra eandem Parochiani, -mA names no Pa-
rilh before. 3dly, It does not fay the Ereilion was contra Eormam Statuti,
but only the Co/itinuance is fo concluded to be. 4thly, It does not fay the
Cottage was the Difendant's, and perhaps he might be only a Bricklayer
or Carpenter, and built it tor another, and fo not within this Aft ot 31
Eliz. cap. 7. againil Cottages and Inmates. 5thly, It does not fay it was
Pro
Cottages. 3 7 '^
Pro Hahitatione Hoiuinmn, perhaps ic is only a Cow-Houlc, or Dog-
Kennel, and {o noc within the Statute ^ Sed Qusre ol' thefe Excep-
tions. 2 Show. 280. pi. 270. Hill. 34 & 35 Car. 2. B. R. the King v.
Cane.
23. Exceptions were taken to an Indiftment for erefling and conti-
nuing a Cottage, becaufe it does not fay there were not 4 Acres ajftgnei
to thereto^ which if there were ic is no Offence within the Statute a-
gainft Inmates and Cottages, and for this Exception it was quaflied. 2
Show. 343. pi. 351- P;}fch. 35 Car. 2. The King v. Strange.
24. The Reporter fays he had another Exception thereto, which is,
that it is for Continuance of a Cottage unlawfully creifcd by the Space of one
Tear, from the loth of December "iS Car. 2. and the Indt^lment is taken
the 15th (j January in that Tear. 2 Show. 343. pi. 351. Pafch. 35 Car.
2. in Caie of The King v. Strange.
25. The Reporter adds a ^lare^ if in thofe Indictments for Con-
tinuance of Cottages, they ought not to fay they zvere inhabited during the
Time they are continued ; for it feems Prima Facie that fuch Continuance
is no Offence, unlefs the Cottage be inhabited, on this Reafon, becaufe
by the Statute the 4 Jcres of Land are afftgned to be occupied therewith fo
long as it jhallbe inhabited^ and therefore if never inhabited, there needs
not 4 Acres, nor can 4 Acres be occupied therewith, unlefs it be inha-
bited ; An Heufe built not for Habitation, but for another Ufe, as a
Granary, or the like, is not a Cottage within this Law, but if after-
wards uled for Habitation it becomes fuch, and the Continuance is an
Offence, therefore e contra if not inhabited ; for the Continuance can
be no Offence ; tor by it, unlefs inhabited, there is no Damage to the
Publick, nor feems it within the Intention of the Statute, whi^ch by its
Provilion agaiull Inmates, feems deligned to prevent Increafe of poor
Families &c. It it ihould be otherwife than a Cottage once erected
tor Habitation, though afterwards converted to another Ufe, yet its
Continuance Ihould be an Offence, which feems an Hardfhipi Conli-
der of this, for on firtt Thoughts there is fome Semblance of Reafon
of it. 2 Show. 343, 344. pi. 351. Pafch. 35 Car. 2. in Cafe of The
King V. Strange.
26. An Indi fitment was for erefting a Cottage and not laying four Comb. 507.
Acres of Land to it, & Ulterius prseientant quod continuavit contra ^"^^ ^'"g
Formam Statuti ; Judgment was for the King. It was affign'd for Er-^"i5^'^^^"
Tor (inter alia) that it was not faid Pro Habitatione, and it is no Of- bridge's C
fence unlefs it be inhabited ; For the Statute was made to prevent the and the Ex-'
Building of Cottages for the Habitation of poor People 3 Sed non A1-"P"°". 'hat
locatur ; For if it be Applied to any other Ufe than a Dwellmg-Houfe the^^^ ^•°""'
Defendant mtifi fiew it, or otherwife it fhall be intended to be built fornotTaid'pro
his Habitation. _ 4 Mod. 345. Mich. 6 VV. & M. in B. R. the King and Habitadone,
Queen v. Trobridge. was over-
it fufficesthat it isaccording to the Statute. Skinn. 564. pi 11. The King v Trowbride' S°C
and the faid Exception was over-ruled 5 For the Continuance fliall be intended to be Pro Haoiutione
when the Eredtion was fo ; and if it was otherwife it ought to be fliewn on the other Side,
27. Two Juflices made an Order, viz. being informed that the O-
verfeers of the Poor had retufed to pay 10 s. a Week to a poor Man 5 they
Order that the faid Overfeers ffiall continue to pay him the Arrears till
they find him a Houfe. Ic was objeaed againlt this Order, that the O-
verfeers have not Power to find a Houfe tor him, that muft be done by
the Confent ot the Lord of the Manor, or by the Juftices in Sedions ;
It did not appear that he was poor or impotent, and for thefe Reafons ic
wasquaihed. 5 Mod. 397. Pafch. 10 W. 3. Anon.
28. An Order of Seffions for fuppreffing a Cottage upon 3 1 Eliz. cap. "~
% G 7.,wa8
374
Covenant.
7. was qualh'd ; becaufe Cottages are not to be fupprejfed by Indicimcnti
12 Mod. 406. Trin. 12 W. 3 the King v. Harris.
29. A Cottage implies a Court and Backlide; For a Cottage without
four Acres of Land is againft the Statute 31 Eliz.. cap. 7. per Cur. 6
Mod. 114. Hill. 2 Ann. B. R. Anon.
30. An Information was moved for againft aMan/or ^;/;Maf an Hottfe
upon a Cvrnmon^ and encloftng Part therm] ^ and denied per Cur. and faid,
that they would not call a Perfon into this Court for a Thing of that
Nature, but the Parties grieved might take their proper Remedy.
The like Motion had been denied formerly for the fame Reafon. MS
Rep. Mich. 5 Geo. B. R. Anon.
31. 30 Tears PoJfeJJion of a Cottage erefted by the Pofleflbr, without
Licence or Order, is a good 'title againji the Lord ot the Manor by Vir-
tue of the Statute of Limitations^ if he ihould bring an Ejeiimefit to re-
cover the Poffeffion. 8 Mod. 287. Trin. 10 Geo. the King v. Wilbv
PariiL.
32. A. built a Cottage without Licence on the Walle of a Manor,
and died, and his Heir is in Pofjcfjion by Defcent^ this is a good Title
aoainll rtiiy Efcheat the Lord might have at Common Law. 8 Mod.
£87, 288. Trin, 10 Ceo. in the Cafe of the King v. Parilhoners of
Wilby.
For more of Cottages in General, See COppIjOlO* JI5»fauCC>
And other Proper Titles.
Covenant.
(A) How ;
[In what Caies, and On <what Deeds.']
1' A B Sftion of COStnant nejS upon a Deed indented ftlitfjOUt
jt\ Doubt*
Tho'Cove- 2. [So] an action of Coljfnant lie0 upon a Deed-Poii.
be brought upon a Deed-Poll, yet the Party muft be nam'd in the Deed ; Per Cur. i Salk. 197.
pi ■> Kifch.6W. &M. in B. R. in Cafe of Green v. Home. Plaintiif mav take Benefit^
lho*'not mentioned as a Party ; and if I oblige my felf CO pay J. S. loo 1. the Obligation is made to
him for what Benefit it is. Comb. 419. in S. C.
Cro.J. 505. 3. As if A. recovers a Debt againft B. anti B. pays the Money to
PI..17. Ben.j^_ UpOnWCl) A. releafes all Anions and Executions (JC- to B. and
^^u\ c by the fame Deed promifes him to difcharge the faid judgment, and
c7dSd not to fue Execution ttjCrCUpOU, anO after fues Execution againft !)im,
per tot. Cur. \)z \\m hXoz 3 tBUt Of CoUcnant upon tW i^ceti, anu not an ac-
for the De- tion upon the Cafe. ^iCl), 16 JaC. 03* E- bmuCCn. Bemi/ke and
o"(Pl^?'' \ In London a M*an fhall have a Writ of Covenant ivithout a Dud
2i!s.C for the Covenant broken. F. N, B. 146 (A) cited 27 H. 6. 10,
Covenant. c^yc;
5. If a Man makes a Leafe by Deed-Poll and the LeJJor puts out the Vaugli ugr.
Le(fee, he (hall bave a tFrit cf Covenant upon the Deed- Poll i but if <?^'"fj '""""
Stranger whu has no Right puts out the Lejjee, he (hall not haz^e a Writ p j^ 3 j^
of Covenant againft the Lellbr, becdtife he hath Remedy by AS ion againfi the new
the Stranger; But if the Stranger enter by Eigne l^itk upon the LelFee Notes there
then he fhall have an Aflion againft the Leflbr, becaufe he hath no'j°^'^"!f'7
other Remedy. F. N. B. 145. (K) ant' 2 a'cT"
cordingly.
6. Covenant lies only -where the 'Thing cdvenahteid to be done is to be Vent. %6.
iom in Vntaro by the Perfou of any, and differs from the Cafe where it ^'S- ^^^c
refers ro a Thing which is not to be done by the Perfon of any^ but ^^j,/^^ ^ Co-
to a Thing to be executed in itfelf, Arg. PL C. 138. a. 6 E. 6. -venant ter-
minates in
ilfilf it is not properly a Covenant, bui a Defeafance ; And Windham faid, (to wliicli the other Juftl-
ccs agreed) that a Covenant to do a pefent A3 ii not properly a Covenant ; Js to ft and Seifid.
7. If a Al-in leafe s Lands for Life by Deed, and afterwards ptits LeJJee Ibid, in the
o«r, the Lellcelhall not have a Writ of Covenant againft him, but an"h«e^fcT
Jjftfe. F.N B. 145. (M). fays See 26
£. 5. Judg-
ment 1 77. accordant, for that th4 De'mife is good from his Entry.
8. The Queen by Letters Patents licenfed A. to buy and tranfport in Debt up-
hither Wool. A. by Indenture grants the Licence to B.Jor 8 Tears, and on an Obli-
in Confideration thereof, B. covenants to pay htm 100 1, yearly at -^^''6'^^"^2jr/!'
Day and Aluhaelmas, and that every Tear at Lady-Day, or within 2.0 ^l".J/J"rJ^^_
Days ajter, he will make a new Bond for Payment of the Money ; provided nants \\ an
that if B. does not yearly make the Boftd, or fails in Payment of the Mo- Indenture cf
ney, that then, from thenceforth the Indenture, and every Clattfe^ Sc T^lf^^^^f^^
therein contained (hall be void, and B. fails of making the Obligation at ^^^^J" '^^
the firft Day, yet A. may have an Aftion upon the Covenant, for kajter, and
was faid the Intent of the Parties was only that it fhould be void as to hefhre the
have any Benefit of Covenants broken in Futuro, but as to Covenants °|''J/«'^2«''-
broken before, it was never their Intent but that the Party Ihould 'iXniurt
have Advantage of them. Cro. E. 77, 78. pi. 37. Mich, 29 Sm ^io ^^s by thi
Eliz. Nuns v. Gee. JUer.tofthi
Plaintiff, a,i J
the Defendant cancelltd md avoided, and fo demands JudoTHent ifAftion, and feems by Coke clearly,
that the Plea is not good without Averment that no Covenant was broken before the cancelling of
the Indenture. 2 Brownl. 167. Pafch. 10 Jac. C B. Anon.
9. M. made a Leafe of a Parfonage of D. forfe'Oen Tears^ and did co-
venant tofave the Leffee harmlefs againji B. the Parfon &c. in that Cafe
it was held, if the Parfon fue the Covenant by Right or Wrong, an Aftion
lies upon the Covenant. Brownl. 21. Trin. 9 Jac. cites it as Mapet's
Cafe.
ID. Leafe by the Dean and Chapter of Norwich, dated 38 Eliz. to M0.8t5.pl.
T. for 99 Years i afterward they made another Leafe 42 Eliz. to W.' ^^5 Walter
for three Lives, and covenanted to fave him harmlefs againft T. the^^d Chapter
firft Lefleei It was agreed that the Covenant is good, and yet inof Norwich.
force J for when an Ff rate is created in which is implied a Covenant ;«S. C. andthe
Law, there if the Ef hit e be void^ the Covenant isvoidalfo; bat whenJ"'*'"'^ ,
there is an exprefs Covenant in Deed, there it is otherwife, altho' the^^^^^f^L th^
Leafe be void or voidable i As if he Covenants that the Leffee Jhall en-Dem who
joy during the Term, and the Lefjee re/tgns, yet is the Covenant good, made the
altho' the Term is gone. Ow. 136. Pafch. 10 Jac. Waller v. the Jr^^J"^ ^^^^j^^
Dean and Chapter of Norwich. Time of
the Eviftion,
the Leafe was not void ; and therefore it was adjudged lot the Plaintiff. -—Brownl. ai. S. C. and
Coke
3/6 Covenant.
Coke faid, that if the Leafe wa; originally void, yet Covenjiit would lie; fur otiierwire 5;reat Mif.
chitt niighr happen ; for a Dean niij^ht make a Leafe to A. To-Day and keep it fecrer, and To-
I\!on-(jw make a Leafe to B. and covenant for Enjoyment, and fo avoid the fecond Leafe. 2
Brnwnl. iq4. S C. aigiied. Ibid 158. Waters v. the Dean and Chapter of Norwich.
<S. G. argued by the Cc'unfel, and afterwards by the Court, and Judgment tor the Plaintiff.
i r. A Man may covenant with Pvo fevcrally^ becaufe it dilTers from
the Cafe of a Bond, fot Covenant founds only in Damages; but the
Covenantees ought «o? to join in Anions; Per Crawley and Reeve J.
Mar. 103. pi. 176 Trin. 17 Car. C. B.
il. If I make a Leafe for Tears, referving Rent to a Stranger, an
Aftion of Covenant will lie for the Party to pay the Rent to the
Strangerj PerHaleCh. J. Mod. 113. pi. 12 Pafch. 26 Car. 2. B,
R. in Cafe of Deering V. Farrington.
13. If a Man affigns a Bond to J. S. and afterwards receii^es the yl/o-
wfjj' of the Obligor, if he do not immediately pay it over to the JJfignei^
the Aflignee may maintain an Aftion of Covenant againft him upo.a
the Word Affignavit, and that was the Cafe of Deering v Per
Holt Ch. J. 2 Ld. Raym. Rep. 1242. Hill 4. Ann. in Cafe of Seig-
norett v. Noguire.
14. So if the Obligee covenants to affign a Bond to J. S.ftich a Dy, and
will not allign it, or before the Day receives the Money of the Obli-
gor, by which means he has difabled himfelf to affign it, in either of
thele Cafes it is a Breach of Covenant, and yet in Striftnefs a Bond is
not ailignable. Per Holt Ch. J. 2 Ld. Raym. Rep. 1242. Hill.
4 Ann. in Cafe of Seignorett v. Noguire. ^
(B) Upon what Deed [the PJa'mt iff might have
Debt or Covenatit^
Cro J.599. I. * t©rit of Covenant MZ^ upon t!)C King's Patent, tljOtlg!)
^21 pT 7 l\ tljCUC iSS no Counter-part fealed llj) tt)e IClTeC lOljO 10 tO 1)0
S.C. ad- CtiaCliXD* i^pEcpartgi 14 lac* 15* -y/V J. Brett and Cumberland fOC
judged. — ijig own sacceptflnccv J;iiu i6 3!a*'B«j£l» in a neiu Action iJCttucm
f,?' pf ?i. ti)^ f'^'"^ I9attie0 aojunseri again*
S.C. and 2 Roll Rep. 65. ii. C adjudged 5 Bulft. 163. S.C. Godb.276.pl. 591. S. C. adjorna-
tur. Poph. 136, 137. S. C. &S. P. agreed that it is a Covenant, efpecially it being in the Cafe
of the Queen, Cro. J. 240. pi. 5. Pafch. 8 Jac. B. R. Ewre v. Strickland, S. P. refolved ; for
when he takes by the Patent he confents to all Things therein. ■ Bulft. 21. S.C. but not
S.P.
2. 31f A. grants a Rent to B. payable at a Certain ifeaf! ycatlj), and
covenants to pay the Rent at the Feafl, an SlCtlOn Of COUCnailt UCJS
fot Bonpapmcnt, tljougO lie nuBDt Ijaue Ijao an action of Debt for
it. S19. 7 la* 05. ijetujccn stronge and Wats, per Curiaut au-
juDgeo*
3- 31f one ^an covenants with another to pay him 20 I. at a Day,
tt)OUQ;l) ije maj) Ijaijc an action of Debt for tlje 20 1, ^et be map
Ijaue a J©rit of Covenant at W Cleftion* $;. 7 31a* 15. per
Curiam.
4. A Man Ihall have a Writ of Covenant againji the Sureties, who
became Sureties, or gave Security that a Manjkould perform fuch Covenant
&c. F. N. B. 146. (B) cites 39 E. 3. 9.
15. If
Covenant.
377
5. It" I grant to my Tenant for Life, that be pall not be impeachable for
IVaJie^ he Ihall not plead this in Bar, but fliall have an Aftion ot" Co.
venant thereupon. J^ridgm. 117. cites 21 H. 7. 30. per Fineux, in
John de Pufeto's Cafe.
6. If I grant to one againft -whom I have Caiife of ASiion^ that I will
twt fue htm "within a Tear^ this is not any Sufpenfion of the A£lion.
Bridgm. 117. cites 21 H. 7. 30. per Brudenell, and fays* that upon this
Cafe it is to be obferved, that / ntay fue, and that the other is put to his
A£iion of Covenant.
7. A Covenant in Law will go to lawful Eviftion, though the Leafe
he void ; Rut as to a Covenant real to warrant and defend, there mufi be a
Title paramount, and a lawful Eviftion j and Covenants in Leafes lliall
betaken beneficially for the Leileesj per Coke Ch. J. Brownl. 21.
Trin. 9 }ac. in Cafe of Walter v. Dean &c. of Norwich.
8. A6iion of Covenant will lie on a void Leafe ^ and Sir E. Coke faid, 2 Brownl.
that fo it Ihould do though the Leafe was originally void. Brownl. l/v ""4-
21. Trin. 9 Jac. Walter v. the Dean and Chapter of Norwich, \tc c B*
the's.C. Se
S. P. held by Coke Ch. J. accordingly.
9. It lies upon a Warranty in a Fine far Concefit by Feme Covert and Lev. 501.
that without Deed as feem'd admitted by all. Sid. 466. pi, i. Mich. ^' ^- J'.^''*,
22 Car. 2. B. R. Wootton v. Hale. !!!!.mS^-
290. s. c.
& S. p. agreed by the Counfel on both fides and the Court. 2 Saund. 177. S. C. held ac-
cordingly,
10 A Covenant will Vie on d Bond ; For it proves an Agreement Though a
per Lord Chancellor, Chan. Cafe. 294. Mich. 28 Car. 2. Hill v. f^^J^,";'^
Carr. in Point of
Intereft yet
if it be afflgned, it is a Covenant that the Affignee fhall receive the Money to his own Ufe ; Pet
Holt Ch. J^obiter Lord Raym. Rep. dSj. Trin. 15 W. 5.
(C) What If^ords will make an exprefs Cove7Mnt.
1. nr'J;e^6 U^OCnjJin a DCCti of Leafe, [Iji?,] and the Leffee fhall 5 Biilft^KJj.
X repair the Mills (bcmo; tljE %\)m> leafCD) as olten as need ?; -^^^
fhall require, and ihall leave them fufficiently repaired at the end otcro. j. 599.*
the Term, tiiiUe a CoiJEnaitt, Decaufe it 10 a cleat agtecment of pi. e. s. c
tlje laattie^, ano otljettofe tlje tJSotus /?^«// /^^w, |C. fljoulD^J-adged
ijaieno mti> <^\> Kepott^, m- Ja^ '^"" J- ^''^^ '-'• ^«'«^^''^^«^- words
|)iU» 16. ija.io* J3,. uvmm tl)c fame ipattiegs aoungenasam which wer*
in a neuj action* '" '^\ „
Queen s Pa-
tent, amount to a Covenant on the Part of the Leflee and by his Acceptance of the Leafe, he is
bound by the Covenant. Ibid. 521. pi. 7. S. C. & S. P. refoly'd accordingly. -Poph. i ^(S,
157. S. C. agreed that it is a Covenant; for being by Indenture it is the Words of both Par-
ties, and it is more ftrong being in the Cafe of the Queen. Godb. 276. pi. ?9iS. C & S. P
adiudg'd: but as to another Point Adjornatur. Roll Rep. 5 59-pl- n- S. C. & S. P. Arg. quod
fuitconceffum per Coke Ch. J. For he faid that it is a clear Agreement. And the Reporter fays,
that this was afterwards adiudg'd, but that it was admitted by the Court and Counfel ot the other-
fide, but there was no other fpeaking of it. 2. Roll Rep. 65. S. C. and refolv'd that it was art
expe's Covenant and Judgment accordingly.
2. 3f LelTce far ^eatiS covenants to repair, fC provided a!»t1vSJ, ^'^''^-^^^i^
and u is 3grf.-edj that tl:e Lelibr Ihall find great Timber, fC* '^'J^->fdm\u&i.
^ D nuiftcs
Q78 Covenant.
KoK iiiafee0 a Cotsc nnnt of t\)t part of tlje iclToc to fir.5 great '^(m=
i2^pL ;4. ijei-^ ^p tije ||goii) (attrccC) ano it fljall not be a Clualification of
s Pdoes lije Coi3ennnt of tljeleiTce* Cr. 12 i.a, 05, betuiccn ^0/-/^^ ^arf
not appear. Taj/or, pCC ClUiaUU i
. Sid. ^ M
423. pi. I. cites S. C. adjudg'd.
r But if t!je IcHcc totjcnantsJ to repair, prolsineti aiiuapss, tliat
tljC IClTor IljnU finO great Cinitier, without the Word (agreed) tljisf
piotifo njail not mal^e anp Covenant on tfje part of ttjc Leffor,
l3llt It Ihall be only a Qualification Of tijC COtienant Of tl)e ILelfCe*
'WX. 12. 31a, 15, bctlUCen Holder and Taylor, pet Cliriam.
do 12S. . 4. ^if tljere are Articles of Agreement UtuHe by Indenture fce^
P' V Gcciy t^pj;^ 'g^ jjjig 'J^^ xx[ UlbiClj A. {tgrees that B. Ihall have a Houfc in
S. c\T' a Street in London for certain Years, Provided, ailD Upon ConUttJOn,
jiidg'dwith- that B. ihall receive and pay the Rents of the other Houies of A. in
out^Argu- the fame Street mentioneB xw fl g)£i}eliul£ anneiiiU to tfjc 31n"oc!v
mem for thcj-m-j, . and It tlS further agrCCD, that B. for his Labour in the Collec-
Defendant ^^^^ ^^ ^j^^ ^^^^ tKZ\Mi IhaJl have the Overplus ot the Rents over and
and above fuch a certain Sum. CijiiS 10 nOt anp COljenant Ott t&C
part of %, to lihin Ijim to rccet\3C ann pap tljc Eent0 menttonen
in tOe €)DeBuIe, ijut ti)e l^rouifo anU Contiition oulp will make tije
€(tate of 15. lioiri in tije ^mSz, rtljis being a Leafe) ann luiU not
make a Couenant, Miclj, 4 Car* 15. E. betuieen Geary a>,d Read,
ati)t{tigc33 Upon a Demurrer upon a Decfaration, Wi\) intratur,
\p. 4 Car* Eot* 432,
Br Covenant 5, JifA. leafes to B. for ^Car0, upon Condition, that he lliall ac-
pl. 4, cites qu,j- ^he Leflbr of ordinary and extraordinary Charges, and fljall liCep
|.^; ^r; ntia leave the Houfes at tIjC Cntl Of tlje Cerm in as good plight as he
nam pi 16 " tound them. 3f \)z Ooe0 HCt leaije tljeut tDclt repaireo at tije Cnti of
cites s. c. tlje Cerni, an artion of Covenant lic^. 4° C. 3- s- b.
* And. 19. 6. 3f A. leales to B. for Life, lUttl) a Provifo, tij.U it the Leflee
pi 58Gra- ^\^g yvithin the Term of 40 Years, tljat then tiie Executors of the
p!rk-rS C Leflee fhall have it forfo many of the Years as amount to the Number
and the ' of 40 Years, to be accounted for the Date of the Indenture Of Leafe»
Court held -^cijifi protitfo fljall not be a Leafe, but oulj? a Coijcnant, * D. 3.
"BeSi'4^^* 150. ©.83, t €fi. I. KCCt* Cljet!* 155-
7Z pi. 115 "S C. held accordingly, S. C. cited Mo. 247. in pi. ;SS. S. C. cited Mo. 4S0.
and fays the Realbns of the ]ullice.s feem'd to be I ft, becaufe the Words of the Provifo do no: pur-
port a Grant but an Agreement, and confequently founds in Covenant and not in Demife. idly. If ir
lliould be a Demife then there was not any Perfon to take it ; For it is appointed to the Executors
and Affigns ot Leflee, whereas there are no fuch in rerum Natura nor Parties to the Deed.
Hob. :5 5. in pi. 59 cites S. C
t Mo. 478 pi 6S4 Mich. ^7 & ;8 Eli?,. B. R. Loyd v. Wilkinfon. S C.
iVhat Words will make a Leale tor Years. See tit. Eftate (T. a) (.U. a) (X. a ) &c.
7. 3,f tIjCrC are Articles Of 9grcemCnt between A. and B. bp UlljlClj
it 10 agCCCO, upon a Marriage mtended between A. and C that ail
the Stock of C. fluU remain in the Hands of B. till A. fhall make a
certain Jointure to C. ipfo B. annuatim folvendo to A. InterelFe pro-
inde, fecundum Ratam 8 1, per Centum, (*) $C* 3if 15, l3Oe0 UOt
pap tlie fato 3ntere(t, an aaion of Covenant lies agama ijini up=
on tijcfe iBorHi3, becaufc euerp Sigreement bp Dceo 10 a Co\)e-
nant, ann otijcruitfe a. fijaU not \mz m'^ Kenicoi) tar tlje 090^
ne\). S0* 8 Car* 05* E* betuieen Crojs ana Northey, aojuugeo up^
on Demurrer* Iiutratur, p» sj^ot. ^nipfelfbcmgtieCouciUa
gDlucrcnti?j* . ^
8. 3;f 9» mal^e^aDeed to 15* in tljefe li&OrtlSii I have m my
Cullody one Wmmg Obligatory, in which JJSntttlg Sr>ti{lgatOrp one
N\ illiam
Covenant. 379
William now Itandech bound to the faid B. for the Payment of 400 J.
upon fuch a Day, being the proper Money of B. and I will be ready
at ail Times, when 31 fljall i3£ required, to redeli\er the fame J©rit=
tug ©biiptori? to the laid B. 3if 13, aftti* ticmant!0 tijc faiD ©uit^
Ration of 9* anti !je rcfurcjj to celftEi it, 13. ma}? jane an ac=
fion of Coijcnaut upon tlji0 "Dcm bp loitc of tfjc udocbsj (und
1 will be ready at all Times when 31 fljall ht required to deliver the
fame. ) l^afCJ}. 1 1 Cat. 05* E. bCttnecn IFalkcr and Walker, aOjUUn;*
cB upon a Dcunirrei- pec Curiam, tW £?9attet: bcino; opnicD anti
peccciuco lip tijc Court, but tljc Council of tije otljet \dm OiU not
qucaion it. Sntrntur, mi n Caroli, Hot. s"-
9. 3if a Man conveys Land to another in Fee with Warranty, aull Roll Rep.
aftCC the Land is evifted by Eider Title for certain Years ; tljC ©taU-- ?''•?'■ ?•
tee of tljc lanti may ijaije an miction of Covenant upon tlje fain ^^-^itt
jtBoi'Hj) apina tije ©tantci' upon t!)i0 cmmon, tljougl) t\)zW^t'-i b r.
rantP tic anucrcn to a jFreeljolo ^ Jfoctlje faiO i©otiiiEi mal^e a Co- affirmed. ■
venant if a Chattel be evifted, and a VV^arranty if a Freehold be de- Yelw
manded. S19P Rcport0, Pafcl). 12 31a, in Camcta ^caccarit, bfttuccn '^9 J';;-
Rudge ami Pincouibe, aojuntjcti in a JJBtit of Cttor, ©ioe fame Rudee sic.
Cafe, p* 12 3ac. 15. Jpoijcit.si Eepotts 5. adjudged.
Nov.
J 51. Pinckard v. Ridge S. C. held accordingly. Hob. 5, pi. 6 S. C. lield accordingly in Cam.
Scacc. beall the Judges. Jenk, 291. pi. 31. S, C. S. C. cited by Hobart Ch. J. Hob. 28.
•I Jenk. 224. pi. 83. cites S.C.
10. 3if a Man leafes fOl* ^eatjj, referving a Rent, an ^ftiOtt OfS P- per
Co\jenant lie^for jl^on^paumene of tlje Kent ; for tbe reddendo of^"'-.^"'' .
tljCEent is an Agreement ftC Payment Ot tijC BCUtj iuDlCl) M! been fo re-
mafec a Coijenant* fowd many
times before.
But dubitatur if the Word CReddendo) will maintain an Adtion of Covenant upon a Leaie for Life
2 Jo. 102. Pafch. ;o Car. 2. B, R. Harper v. Bird. 2 Lev. 206. Harper v. Burgh, S. C.
held that the Reddendo is a Covenant in Law.. S.C. cited; Lev. 155.- Refervation
cf Rent by the feveral Words (Yeilding and Paying) in a Leafe for Years feems to be an exprefs Co-
venant For it is the Agreement of both Parties, vix. of the Leflbr and LelTee ; Per Roll Ch. J.
and Judgment, Nifi. Sty. 5S7. Mich. 165;. Newton v. Csborn. S, P. by Roll Ch. J. to which
the Court agreed, and fo a Judgment was affirmed. Sty. 407. Hill. 1654. Porter v. Swetnam. Vent.
10. Hill 20 & 21 Car. 2. B. R. at the End of the Cafe otNurllie v. Hall is a Nota, that it was faid
in that Cafe that the Word Reddendum makes a Covenant Covenant will lie upon the:
Words Yeilding and Paying. Arg. 2 Mod. 174. Leafe for Years rendring Rent free of all
Taxes &c. The Word Rendering &c. makes a Covenant. Carth. 35. Pafch. 2 W. & M. in B. R,
Giles v. Hooper.
11. In Debt the Leflbr leafed by Indenture /or 20 Tears^ rendring
JO I. per jinnmn at Eajier, and other Covenants in the Indenture ex
utraque parte &c. and to the Performance of all the Covenants &c. each by
the fame Indenture hound himfelf to the other in zol. and for Non-Pay-
ment of the 10 1. at Eafter lae brought Aftion of the 20 i. and per
Kewton clearly it does not lie ^ For refervation of the Rent and Non-
Payment of it is no Covenant, and Aftion of Covenant does not lie
of it, therefore this is no Breacli of Covenant, ad quod nemorefpon-
dit. Br. Covenant, pi. 21 cites 22 H. 6. 58.
12. Ahfq; hnpetitione, Denegatione, RefiriSione^ in an Indenture a-
mount to Covenant. Le, 277. pi. 375. Hill 26 Eliz. B. R. Bilhop v.
Redman.
13. The Words of an Obligation were, / am content to give to A. lol.
at Michaelmas and loi. at our Lady Day ; either Debt or Covenant
lies upon it, per Cur. 3 Le 119. pi. 199, Mich. 27 Eliz. B. R.
Anon.
14. Gawdy
380
Covenant.
a Le 104. 14. Gawdy and Fenner J. were of Opinion, that upon a Lsafs
pi. 131. i>. Cffj;. yiars by indent ure by Dimiftt S ad firmara tradidit, that a Covenant
jays It was ||(;g .^g^jni^f the LcHor 11 he enters ; but it a Stranger enters it lies not
dear^Law. without an exprefs Warranty ^ lor in a Covenant againft the Leflbr up-
on thefe Words he Ihall recover the Term itlell. Cro. E. 214. pi. 6.
Hill. 33 Eliz. B. R. Andrews's Cafe.
See Condi- iJ> A. putting the Houfe ill Repair B. covenants to keep it in Repair;
tion(T) pi. they are mutual Covenants. Raym. 183. perTwifden J. cites it as re-
15. and the jolv'd Cro. Jac. 645. Salter [Slater] v. Stone, and Sty. 140. Bragg v.
Mot« there, j^^ightingale.
S. C. cited 16. L. articled by Indenture with C. to pay C.iiol. at a. certain Day,
(, Mod. 55- Q^ ccvffianted^ that upon Payment thereot to him he would give an Ac-
Vb the quittance^ and enter into a Bond of 400/. to'L,. to fave htm barmlefs from
Name of all Claims to ftich Lands in L's Poftjjiton. L. tendered the Money at
Luttonand the Day to C. who relufed to receive it, and give aa Acquittance, and
Ciaidonin ^^ enter into the Bond. L. brought Covenant, and aliigned the Breach
E^d of' ^^'^'^ ^^ tendered tiie Money, and chat C. rel'uled to accept it &:c. Per
Stvlcs that Glyn Ch. J. Here is no Breach alfigned to ground an Aftion upon ^
■where' a For the Articles are, that upon the Receipt of the Money the Delen-
Thing is (j2.nt fhould give the Acquittance &c. and enter into the Bond i And it
b*dOT^e'^^° may be that it was the Intent of the Parties that it Ihould be in C's
upon"Piiy- Elettion to receive no 1. or not, and the Plaintiff is not prejudic'd by
mentand the Detendant's not receiving it j And Judgment Nili &.c. Sty. 481,
Keceipt, Trin 16s:?. London v. Craven.
that Tender ■'•'
of Payment and Refufal intitles the Party to it as tnuch as an actual Payment, and faid the Authorities
have beeti fo ever fr.ice.
17. Covenant was brought upon thele Words, \iz.Iobligemyfelfto
pay fo 7H!ich at fiich a Day, and fo much at another Day ; Per Cur. clearly
this A£lion lies, eipecially if both the Days of Payment are not palt ;
but Hale Ch. B. doubted how the Law would be if the Words were
Tencri ^ fjrmtter Obligari; becaule thofe Words found in Debt, and not
in Covenant. Hardr. 178. Hill. 12 & 13 Car. 2. in the Exchequer.
Is orris's Cafe.
Keb S42. ''S. In Debt the Plaintiff declared on Articles indented, by which C.
pi 51. S. C. upon the Marriage of M. was to receive the Marriage Portion of M's U'ife^
S(5o. pi. 71. being 1500 1. and that C. Jhould convey an Office to M. provided that M.
^i^ii's'c ""^ oj thejirjt Pro/its of the Office, jhould pay to C. 500 / and averred that
Twifden he had conveyed the Office, and that M. had received 500 1. of the
agreed the Profits, but had not paid it to the Plaintiff, and upon Demurrer to the
Provifo but Declaration adjudged that the A£ilon lies upon this Provifo ; for it is
a Covenant, „af ^ Condition or Defeajance, but an Agreement to pay the $00 i. Lev. 155.
ceTved"that Hill. i6 & 17 Car. 2. B. R. Clapham v. Moyle.
it referr'd
to a future Conveyance, and that it fliould be avcrr'd that he had made a Conveyance of the Office,
-and that faying I'cet he hid performed all Covenants on his Part is not fufiicicnt; but by th; other
Opinions Judgment was given for the Plaintiff.
5 Keb. 617. 19. The Court inclined, that the Words Grant and hifeoff, in Cafe of
pi. 84. Hill. ^ freehold, doth not amount to a Covenant, or Warranty i Adjornatur.
clfz B.R. 3 K-eb. 188. pi. 33. Trin. 25 Car. 2. B. R. Anon.
Brown v.
Haywood feems to be S. C. the Court held the Word (Grant) no Warr.inty or a i:* leehold, but only in
( afe of a Leai'e for Years, and Judgment accordingly. Freem. Kcp. ^[4 p). 547. Browning v.
Honeywood S. C that they do not amount to a Covenant, but Pei!i will m :kc a VVarr.inty ; And l^yi,
that if a Chatth he evMcd Dcdi will make a Covenant, come lemble, and cite- Hob. 4. [pi. 0. in die
ct I'incomb v Ridge ]
♦ Noy 131. in Cafe of Pink:ird v. Ridge S. P. See pi 0.
20,
If
Covenants. 381
£0. If a Man ^^'ff^ and transfers a 'thing y^h\z\\ [s not afpgnable or":, ^^-'i^'^o^.
translerrable ; As it he affigns &c. all the Money that lliall be aliow'd P''*^ f»_t:-
him by a foreign State in lieu ol his Share in a Ship, this is a Covenant, jj^gy^^l^jl,^ ^'
and it is all one as if be had covenanted^ that he fhoiild have ail the Money Words Jf.
which he Ihould recover for Lo<s of his Ship i Per Hale Ch. J. Butfgn, Tranf-
Twifden feem'd to doubt; But ludgmenc. Mod. 113. pi. 12. Pafch. 26^^'"' "f^-^^*
^ r> rt i-\ • n" ' . over, do not
Car. 2. B. R. Deenng v. Farnngton. ^y„„, ,^ ^
Covenant a~
gi-i'mft an Eigne Titli', yet aq.tinfl the Covenantor hin'jelf it zvil! amount to a Covenant Kreem. Rep,"
^6S. pi. 47V S. C. and by Hale Ch. J. tliou^^h it does nor amount to an Implicit Covenant againft
Eigne Ttrles, yet they may be good againft the Party himlelf and his A6ts. S. C cited by Holt
Ch. y Lord Raym. Rep (5S5. and fays, that though a Bond is not affignablc in Point of Intereft, yet
the afTignirg thereof is a Covenant that the Afl;gnee fhall receive the Money to his own IJCe. •
S P. by Holt Ch. J. and S C. cited 2 Lord Raym. Rep. 1242. Hill. 4 Ann. in Cafe of Seignioret v,
>loguire. S. C.cited. Arg. 2. Lord Raym. 1419. Trin. ii Geoj in Cafe of Frontin v.Small.
2 1 . Jfbere ever the Intent of the Pdrtics can he cotleBed oilt of a Deed for Covenant
the doine or not doinj^ a Thing, a Covenant lies, i Chan. Cafes, 294."'''' ''^"^?',
1,,. , ^^, iLT-ii r- ■'^ on any fforcb
JMich. 28 Car. 2. Hill v. Carr. .„ ^ 4^^
purporting a!f.
Agreement for Payment of Money. Lev. 47. Mich. 13 Can 2. B. R. Brice v. Car/e, Emerfon & al".
22. Any 'Thing under the Hand and Seal of the Parties which imports an
Agreement will amount to a Covenant j Per Lord Chancellor. 2 Mod,
91 Pafch. 28 Car. 2. in Cane. Hollis v. Carr.
23. Debt upon Bond with Condition^ that the Olligor did acknowkge to
he indebted to the Obligee in 40 /. which he did thereby covenant to -pay "when
ftich a Bill of Co/is jhould bejiatcd by two Jlttornies indifferently^ to be chofea
by them; Plaintiff declares, that he named an Attorney, and delired the
Defendant to name another, which he refufcd. It was objected, thac
this fliall not be taken for a Covenant, but an Agreement, folvendum
the Money when the Bill of Gofts ihould be ftated, and by the Plain-
tiff's own fliewing, the Bill was not ftated, therefore nothing is due j
Sed per Cur. this is not a Solvendum but a Covenant, which does noc
take away the Duty afcertained by the Obligation, and if it Ihould not
be a Covenant, then it would be in the Power of the Obligor, whether
ever it ihould be payable. 2 Mod. 266. Mich. 29 Car. 2. C. B. Otway
V. Holdip.
24. Where a Party to a Deed agrees to pay ^ it amounts to a Covenant^
though the Words Covenant, Grant, &c. are wanting. 2 Mod, 268,
269. Mich. 29 Car. 2. C. B. Harwood v. Hilliard.
25. 6 Anna;, cap. 25. All Covenants., Conditions., and Agreements, in
every Grant, Leafe, or Copy of Court-Roll fo made, pall be good in LaWy
according to the Contents of the fame againft the Reverjioner, and againfi them
to "whom the Intereji thereof pall come.
(D) In what Cafes the Heir or Executor fhall be hotaid
by the exprefs Covenant of the Teftator, without
namim them.
o
I, T N every Cafe tuljCCC tlje CCffatOt 10 bOUtlH I)? a COUCltnttt, tlje Br. Corfi-
JL CxeCUtOt fljaU tie IJOUUD bP it, if it tie not determined by his".f ^ P'- '*•
Death. 43 C- 3- 2. ;""fc.-
& S. p. by
Finch, but Perfey e contra. Fitth. Ccvftianf ^ nl 2t. cites 48E. 3. 22. [but ficms rair^rinted,
j £ aai
0,2
2 Covenants.
and that it flloiild be i. b 2 a. pi. 4]S- P held by Finch, according to Roll ; Buc Wyche negavitom-
,jj,^p hellev and Fit7,hei-bert held, that Covenant lies In luch Cafe againll the Executor, and
faid that To is 47 £. ?■ ^V '^^^ Baldwin faid privately, that there is a Difference between an Oblijr;i-
tion wherein there is no Mention of Executor, in as much as it is a Du:y, but Covenant is Executory,
,rid lound-.only in Damage and Tort, which (as it Icems) dies with the Perfon &c. D 14. a, pi. 69.
Trin. iS H. S Anon. Cro E. 552, 553. pi. 3. Arg. cites S, C. and per Pophain, Clench, and Fen-
rer (ablente Gawdy) a Covenant lies againft an Executor in every Ca(e, thoi;gh he be not niine:! ,
unlWs it is fuch a Covenant as is to be performed by the Perfon of the Teftatur,' which the Executor
canuot perform.
2. A Man covenants that neither he nor his Heirs jhall eref} any^ Mill
in fuch a Place, and afterwards he ereifs a Mill, and an Adion ot" Co-
venant is thereupon brought by [againft] the Heir, and well. 4 H. ?.
57. And fo it is it'the ie^orort/j?/:7e Le[Jee and dies^ or 'tenant- in 'fail
leafes for Tears and dies, and the IJI'ne oujis the termor, he itall have Co-
venant againft the Executors. F. N, JB. 145. (D) in the new Notc.s
there (a) cites 47 E. 3. 22. 48 E. 3. 2. but 38 E. 3. is, that he Ihail
recover the whole in Damages againft the Heir if he has Alfecs by De-
Icent, per Knivet and Skipvvirh.
3. Covenant does not lie againft the Heir upon a Leafe hy Deed of his
Anceftor, if there is not exprefs Warranty in the Indenture of the Leffor and
his Heirs, a fid v.llo, that the Heir has Jfjets. Br. Garranties, pi. 89.
cites 32 H. 6. 32.
4. But '/- li'-re a Man covenants to make a Hutife, and does not doit, but
dies. Covenant lies againfi Executors, and not againft the Heir, becaufe
there is no exprefs Warranty againft the Heir, and yet it lies againft
the Teftator himfelf, for he broke the Covenant, Br. Garranties, pi.
89. cites 32 H. 6. 32, ,• ^
5. K Bond of 1600 I. Penalty entered into 19 Jac. to perjorm Lovc-
nants in an Indenture, the Covenantors to pay 77 /. per Ann. till 1 100 /,
he paid, but the Covenants not being periormed, x\\t Plaintiff fues the
Bond againfi ?/^e //«> of the Obligor. This Court declared, that the
iiool. and Intereft thereupon, ought to be paid, and by the Confcnr
of the Parties ordered and decreed, that the 1600 1. the Penalty of
the faid Bond, be paid by the faid Defendant to the Plaintiff, in full of
all the Principal and Intereft, and 40 1. Cofts. Chan. Rep. 201,202.
1 3 Car. 2. Wake v. Calley.
6. The Lien of a Covenant muft be meafnred ly the Efiat^ in the
Rent or Thing granted ; Per Withers J. s Show. 334. Mich. 35 Car. 2.
B. R. in Cafe of Fountain v. Guavers.
Executor.
(E) [Where it lies againft an Executor, the' not nam'd. ]
Ijf a ^an COtJCnant0, That a. ftall ferve B. as an Apprentice
for 7 ^Gar0, anO Oie^i if a. departs v/ithin the Term, a it^tlt
Bf. Cove- I.
sj'^'J-^" Of Covenant ucg agatmi tljc C;;ccutac of t!)e Covenantor, luitijout
ven'ntpi.' nanunff* 48- ^* 3. 2.
E. 3. li. i^^^ ^^^ ^^' P^" ' • ^'^P''* ^""^ ''^* "i^ozss there ]
2. Covenant was brought againfi two Executors, inafmuch as their
Teftator put one to the Plaintift' to be his Apprentice who departed izith-
in the Term, and it was awarded that one Executor ihall not anf.ver
without the other i For the one appear'd and cher nor, and the Statute
doe.j
Covenants. 28
jU
does not remedy but in Debt and Detinue, and therefore by this Judg-
ment it feems that Covenant lies againll Executors. Br. Covenant, pi.
II. cites 47. E. 3. 22.
3. lt'Te»a>'t ill 1'ail leafesfor Tears and dies, and the IJfue oajls the 7'er~
tnor, he Ihail have Covenant againfl the Executor, which Finch deny'd.
Ibid.
4. In Covenant againft Executors the Plaintiff counted that the
^ejiator put his Son to the Plaintiff for 7 Tears Jpprefjtice, and bound him-
feif 10 the Covenant without mentioning his Executors, and that after the
Death of the Tejlator the Son departed without leave within the Term,
and came to the Executors and they retain'd him^ and per Perfey
Covenant docs not lie againfl: the Executors ; For it does not lie againlt
any, but againlt him who is Party ; as this Word Dedi is no Warran-
ty to bind the Heir, but only him who made it, and fo Ihall not bind
Executors where Executors are not mention'd in the Deed ; But Fincli
Contra, but Wiche was clear that the Executor is not bound, if Exe-
cutor be not named in the Deed. Per Kircon if a Man Covenants to
ferve another ibr 7 ifears and dies within the Term, the Covenant is
difcharg'd by the Death of the Party. And per Perfey where a Man
leafes lor Years without Warranty, and the Termor is oufted, the Ter-
mor fliall not have Covenant j But Finch Contra clearly. Br. Cove-
nant, pi. 12. cites 48 E. 3. I.
5. \i the Le (fee for Tears covenants for him to repair the Houfes leafed
•within 6 2'ears, and diCv^ within the 6 Years, yet his Executors Ihall
make the Reparation, tor it may be made by the Executors within the
6 Years as well as by himfelf j and fo fee Executors bound tho' he
does not exprefs the Executors in the Covenant, but if the Covenant
had been to have been perform'd by himleit during his Life, the Exe-
cutors Ihall not be charged, Br. Covenant pi. 50. cites 10 H.
7. 18.
6. Termor Covenants to build a new Houfe, Leafe expires and LefTee D. 14. a. pi.
dies, yec his Executor is chargeable. Lat. 261. cites D. 14. 69. Tiin.
Anon. S. C.
7. ^. 'Tenant for Life Remainder to B. in Fee ; the Feoffee for Life makes 7- Mo. 74.
a Leafe for Tears by (Dedi S Dimift) rendring Rene by Indenture ^//(^P'' ^°4-
dies 'Within the 'Term, he in Remainder enters i the Leffe for Tears brings ^^^^ % /-.
Covenant againji the Executors of A. Welch, Brown and Dyer, held adjudged
that it did not lie againlt the Executor, ilt. Becaufe it is not lliewn, that the Ac-
that he was Poffeil'ed at the Time of the Entry of him in the Remain. ".°" ^^^ "°'
der, but only by Implication. 2dly. For that without an exprefs Co- j^'~'^"'^'
venant the Executor ihall not be charged in this Cafe 3 for the Covenant ^nlisl].
in Law expired with the Term. But Weiton e contra, becaufe the Leafe $>tran«
was by Indenture. But Judgement was afterwards given againlt the'^J^'"> ^- ^•
Plaintiff. D. 257. a. b. pi. 13, 14. Mich. 9 Eliz. lSin'\^~
S p. ruled
accordingly on Demurrer to the Declaration, becaufe no exprefs Covenant or Warranty of the
Term was compris'd in the Indenture, but only a naked Covenant in Law. D. aj;. b. at the End
of the principal Cafe cites Trin. 2Z Eliz. Broderidge v. Windfor. And 12 cites S. C, accord-
ingly. F. N, B. 145. (M) in the new Notes there (c) cites S, C. ■
It Leffee for Life leafes for tears and dies within the Term, fo as the Leffee is eviBed by him in Re-
mainder or Reverfion, It was Refolv'd per 5 J. tliat by this Covenant in Laiv the Executors were
not liable. Wentw. Off Ex. iij. and fays, that in the fame Cafe Ld. Dyerfets down another Rsfo'
lution after, to the fame Effeft.
But Serjeant Eenloe reporting this later Cafe to be of a Leafe made by Tenant in Tayle, before tie
Statute i,z H. S or not ivarrantable by it fets down the Opinioti contrarily, viz. that the Adion was
maintainable againft the Executors. Wentw. Off. Ex 125 Bendl 150. pi. 208. Mich. 7 & 8
Eliz. Stranfham v. Searles S. C, tha; this Aition doss not Jie againft the fiiid Defendants, and cites
D. 257. pi. 14.
But
Covenants.
>
_i^
Bi4t if Htc EiiBion of Breacli of Covenant is <;; <£a Life of 7efiatar himfslf, no doubt but the Exi-
cutor ischai-P'-'^'le Wenrw. Ort Ex 12,-. D. 257.3. Mai-j;. pi. 15. lays, r!..,c fuch Judgment
was given Trin. 22 Eliz. Rot. 659. in Cafe ofiSroUunUig b. {TJiinfor in Sutiolk, the Opinion
then was th.n iiik'> Acuon iicb againll the Executor of the Lel1o<-, who was Tenant in Tail. Jbid.
ci^e^Pa^ch. 41 £li7. Rot. 194. tJ. R. _Jgoke U. 3i3int',S, where it was ruled accordingly, where
I'cr.ant Par auter Vie made a Leafe tor Years, and Cefty que Vic died during the Term.
8. But if A. feifed in Fee makes a Leafe for Tears and dieSy and the
Heir oiifls the Lcjjee^ he lliall have Covenant agatnfl the Har, for this
Covenant in Law, by reafon of the Privity; Per Brown. D. 257. b. in
the Cafe above.
9. Lefjee 0/ a Term of a Stock of Sheep covenants for him and AlTignes,
Covenant lies not againll AfTignee becaufe it is Pcrfonal,- but it binds
Executors. Lat. 261. cites 5 Rep. 17. [Pafch. 25. Eliz.j Spencer's
Cafe.
10. Leffee for Years of a Houfe covenants to repair it -within 6 Tejrs
within which Term he dies, no Reparation being made. Covenanc
lies againft Executors ; otherwife if the Covenant had been to repair
during Life. Per Cook. Arg. 4Le 171.
11. Covenant by Lelfee ro i?£/)^/r the Buildings, or to pay the .G)iiit
Rents ilfuing out of the Land, Executor muft do it tho' the Covenant
mentioned nothing of Executors, tho' Opinions have been otherwife
and that it was only a perfonal Covenant, and cires 5 Rep. 24. [Mich
43 & 44 Eliz. B. R.] aaintlfar % l^iUe which at firlt feemed llrong
to that Purpofe, but at lalt it was refolved to be a Covenant runnino-
with the Eltate, and fo both Executor and Affignee bound to pertorin
it. Wentw. Off Ex. 124.
12. Wentw. Off. Ex. 124 fays, that in the faid Cafe of }©inllfor ij»
IpiUC (5 l^ep. 24) [Mich. 43 & 44 Eliz. B. R.] it was faid per
Popham Ch. J. that if the Covenant had been to do a Collateral Acf nei-
ther the Executor nor Affignee had been bound, and therefore a Cove-
nant by Lelfee lor Years to build a new Houfe upon the Land within tivo
Tears and dies within the Time, he doubted if the Executor be bound to
do it or not, iho' it concerns the Land let, fo as the Rent or Fine
was the lefs in refpeft of the Charge of the new Buildings; But if the
Covenant had been to build it elfeivhere than upon the Land let or to
do any other collateral Thing not pertinent to the Land let, it is clear the
Executors are not bound; Yet, if the Time expired in Leffet's Life
and the Covenant not performed, the Executors are liable to JJJamages
in Aftion of Covenant as the Judges agreed, tho' not Reported by
Ld. Coke, who Reported only the Point in Q^ueftion.
13. If a Man makes a Leafe by thefe Words, QDcmife and Grant')
and dies, an Afilion o'f Covenant lies not againll his Executors, as it is
faid in 9 Elii. D. 257; but otherwife upon exprefs Covenant; Per
Coke Ch. J. 2 Brownl. 214. Hill. 7 Jac.
14. Q^ Eliz. made a Leafe for Years, rendring Rent and the Leffee
covenanted to pay it. The Q. died and the Reverlion defcended to
K. James Afterwards the Le/fee affign'doyer the Term, and the Afjtgnee
paid the Rent to the King ; The K.ing granted the Reverfion by his Letters
Patents; The Patentee accepted the Rent of the Affignee; The Patentee
brought Aftion of Covenant againft the Executors oj the firff Leffee and
tidjudg'd maintainable, which muft neceffarily be by reafon of the Pri-
vity ot Contract transferr'd by force of the laid Statute of 32 H. 8.
cap. 34 For there was no Privity of Eltate between them, the firll
Leffee having afiign'd his Term before the Grant of the Reverlion to
the Patentee, which proves that by the Statute the Privity of Contraii
is transferred; cited per Cur. Saund. 240, 241, Pafch. 21 Car. B. R.
as Cro. J. 521, 522. [pi. 7. Hill. 16. Jac. B R. Bret: v. Cum-
berlandj
IS- Leafs
Covenant. 3 3^5
15. Leafe for Years, yielding and paying Rent &c, the Lcjpe died. In.
Covenant againft his Executor, Exception \\\i3 taken that this was a
meet Covenant in Law comprifcd only in the Words Yielding and Pay-
ing, and not an exprefs Covenant to pay it i But Roll Cti. J. anfwer-
ed that Covendnt lies againfi an Executor tipon a Ojvenant in La-ju, the'
he be not named, though otherwife of an Heiti For he is not
bound by fuch a Covenant. Sty. 387. Mich. 1653. Newton v.
O sborne.
16. In Covenant againft an Executor upon a JJ'ridng feakd by 'tejia- Keb. 155.
tor^ •whereby he covenanted to he accountable for all Agonies as Jhotild be ?^-9'>- ^tict
charged by hi>n upon yi. payable to B. The Court held that the -Aftion ^ (^'^^['^^^j
well lay, and that it would do fo upon any Words purporting an Agree- infiikd,
vie nt for Payjnent of Money. Lev. 47. Mich. 13 Car. 2. B. R. Brice v. that Aftfon
Carre and Emerfon . °.f Account
lies pro-
perly , and not Covenant for Money ^o delivered ; But per Cur. rliere is no other Remedy againft Ex-
ecutors, and had it been againft the Party himfeif, fuch Agreement being by one Perlbn to pay Mo-
ney charged upon J. S for which an Account lies not, he being not chargeable as Receiver or BailitF,
theonly Remedy is by Covenant. Judgment (or the Pluintift.
17. Executrix of a 'termor for Tears affigns all the Rcjidiie of the faid^p^^o^i^-
Term to P. refervhtz a Rent, and P. covenanted to repair. P. dies, and .; l?^^
P's Executrix enters &c. Parker Ch. J. held, that P's Executrix may j,,,. ^^\^^^
be charged either as Executrix or Aflignee, but that Plaintiff having Poffeffion
charged her as Executrix, Judgment can be only againft her as Exe- of the Term
cutrix. 1 Salk. 316. pi. 25. Trin. 9 Ann. B. R. Buckley v. Pirk. «f'^= Tej--
J r J y J tator, and
an Adtion is brought againft him in the Debet & DctineC for Rent or Non- Repairs, it is abfurd fot
him to plead no AlFets ultra what will fatisfy fuch and fuch judgments, beciufe in fuch a Cafe the
Surplus of the Profits, Rents, and Repairs deduited, is all that is Affets, and liable to the Judg-
ment, and therefore the reft of the Profits are fo appropriated to the Payment ot Rents and Repairs, as
not to be exhaufted by Debts,
(F) Covenant ifi Law. In what Cafes the Law will
create a Covenant without the fVords of the Party.
'• T jF a Man leafes for Years, and oufts the Termor, i)g (Ijtlll fj^ilC ^'■- Cove-
1 Covenant apinft Ijim, tljousl) tijece be no crpcefsi Coijcnant"^"'' p';.'^-
in toe Deeo* * 48 e* 3 • 2. u» 1 7 ♦ & 1 p. p;^
Parfey, that
Termor fliall not have Covenant, but Finch e contra clearly. Fitih. Covenant, pi. 21. S. P.
by Parfey, (at fupraj but Finch faid it was an erroneous Opinion,
t Br. Trefpafs, pi. 65. cites S.C.
2. 31f a ^ait leafes certain Goods for Years by Indenture, tuljiclj O^^- 104,
ace eviaed within the Term, })et ije fljail itot fja^e a ttSctt Of Cobe^ \°^i ^^\
nant; fOttljere tfje Law does not create any Covenant upon fuch Per- c°''p "!"'
fonal Thing. €mtU^iZ\). 11 €\r^Mmzm Bedford and Bull. Fennerand
Gawdy
held, that Aftion of Covenant would not lie, but Clench feemed e contra j fed adjornatur.
3. If 2. Man leafes Land for Years without Warranty, and the Lefee
is oiified by J. N. by title., there he ihall not have Writ of Covenant a-
gainft his Lelfor, for he has not broke the Covenant there i Contra if
he had made thereof Warranty, but contra per Needhapi J. tho' no
S F War- "^
386
Covenant.
Warranty be in the Deed, yet Writ of Covenant lies Brooke fay?,
and lb fee here, and ohen eile where, that \V rit ot Covenant lies.otcen
upon Indenture without this Word (Covenant.) Br. Covenant, pi. 38.
cites 32 H. 6. 32. And fo it was faid per Jufticiarios. P. i M. i
SeeCC)p'- 4. li a Man leafes for Years, rendring Rerit^ this is a Covenant in
10. iupi-i. Lawi Per Coke Ch. |. 2 Brownl. 215. cites Dyer 15 H. 8.
5. Leafe is made for Years, and the Words are fuch, fjnd the Lcffa
(hall do fiich a Things thefe Words imply Covenar;t without any thing
more j'Per Cur. Mo. 135. in pi. 280, Trin. 25 Eliz.
6. That Apprentice fhali be loyal, 8* Secreta fm vtlaret y ftmilia,
without other Words of Covenant exprefTed, thofe Words imply Co-
venant. Mo. 135. pi 280. Trin. 25 Eliz. Stanton's Cafe.
7. Aftion of Covenant lies upon the Words Demife and Gra/it^ in an
Indenture of Leafe, though there are no other VV^ords comprehending a
Warranty in them. Refolved by all the Jullices. Cro. J. 73.pl. 1.
Trin. 3 Jac. B. R. in Cafe ofStile v. Herring.
S. C. cited S. A Man made ai(?«/e for Years, with Exception of divers Things,
Show. 3S9. and that the Le£ce fhall have Conveniens Lignum non fuccidcndo i3c. vendcn-
do Jrtores 8<.c. 'Now the LeJ/ee cut do-w» 2'rees, and the Leflbr brought
an Aclion of Covenant J and the Opinion of the Court was, that the
Aftion would lie, and that it is as a Covenant on the Part of the Lef-
.fee, becaufe the Law gives him reafonable Eilovers, and by this Co-
venant he abridges his Privilege. Mar. 9. Pafch. 15 Car. Anon.
Sulfa Leitfe 9 If a M'du grants a Water-Cotirfe by Deed, and the Grantor Jfops it^
be madeof ji^g Grantee Ihall have an Aftion of Covenant ; Per 3 luftices, and a-
^«rioufi a,,d ^^ by Twifden. Saund. 332. Mich. 21 Car. z. in Cafe of Pomfrec
the L4or V. Kicrott.
deflroys all
rfce /F'W our of whidi &c. Covenant lies Ibid, per 5 Juftkes, which Twifdea J. agreed.
So if a Man demife a middle Room in an Houfe, and afterwards does mt repair tie Roof, lb as the Lelfe
cannot enjoy the middle Koom, Covenant lies ; Per Rainsford. But Twifden J. (aid, that thefe are
voluntary Afts of the Leflbr or Grantor, and it is a A'fisfe^f^Kce in them to annul and defeat their own
Grant ; but that in the principal Cafe, [which was a DemiL- of a Hjule, with the Ufe of a Pump,
•which he fufFered to be out of Repair, (0 that it became ufelefi] there is only a Nonfe.ifar.ce, for which
no Aftion lies ; As if I grant a IFay over my Land, 1 am not bound to repair this, but if I voluntarily
llop it, an Aftion lies againft me for the Misfeafance. Judgment was given in B. R. according to the
Opinion of three Juftices, but was afterwards reverfed in Cam. Scacc. for the Reafons given by Twif.
den. 1 Saund. ^2Z. Mich. 21 Car. 2. B R. in Cafe of Pomfret v. Ricroft Sid. 429,' 490. pi.
17 S. C. adjudged, and Judgment reverfed. Vent. 44,45. S, C. adjudged in B.R. by three
Jullices, contra Twifden. 2 Keb. 569. pi. 77. B. R. theS. C. adjudged (or the Plaintiff.
10. If a Leffor enters upon the Lands leafed, and cnts down the timber
'Trees, and carries them away, whereby the Lefiee lofes the Lops and
Shade of them, yet he fhall not have Covenant, but he may have Tref-
pafs, or an Aflion Sur Cafe upon his fpecial Damage; and in the Prin-
cipal Cafe the LefTee might repair the Pump, lor though the Soil, or
the Pump, be not granted, yet when the Ufe is granted all is granted
whereby the Grantee may have and enjoy fuch Ufe i Per Twifden J.
Saund. 322. Mich. 21 Car, 2. B. R. in Cafe of Pomfret v. Ricroft.
11. In Articles of Agreement for a Marriage, and Payment of 600a /.
Portion, thefe Words, viz. Whereas it is intended to levy a Fine ^c. a-
mount to a Covenant to levy a Fine i Per Finch C. 2 .Mod. 91. Pafch.
28 Car. 2. in Cane. Hollis v. Cam
12. If the Lejfee he di /trained by the Lord paramount^ though he can-
not have a Writ of Mefne, yet he Ihall have a Writ of Covenant in
lieu thereof Raym 2J7. Hill 30 & 31 Car, 2. C B. and cites Mich.
2H 6. I. b.
13 Covenant
Covenant. 387
13. Covenant will lie on a Refervation ; As where R^enc, or fuch a Rcferv.i-
Room with a Paffage to it, is referved, Covenant will lie on the Words Is"^^"''^'^"'
of Refervation without any exprefs Words of Covenant. Carth, 232. yj.„j,„j j,°'
Pafch. 4 W. & M. in B. R. Bulb v. Coles. Leffee's
Part; Per
Gawdy. Cro. E. (J 5 7. cites D. 37. 21 H. 7. 37. 11 Rsp. 51. a. See Tit. Conditions
(X. a_) pi. I . and the Notes.
14. Per Holt CIi. J. the very referring d 'thing to Ai-hitration is a mu-
tual Undertaking, that each Party fliall perform his Part of the A-
ward ; lor otherwife it cannot be faid to be referred. 11 Mod. 170,
171. pi. 8. Palch. 7 Ann. B. R. Lupart v. Welfon.
15. If a Man ciffigns a Bond, and afterwards brings an Aiiion thereon
in bis Name, this is a Breach of the Agreement i for the very Ajjignment
imports a Covenant, that the Aflignee fliall bring the Aftion in the Af-
fignor's Name, and recover, and have the Money to his own Ufe. 1 1
Mod. 171. pi. 8. Pafch. 7 Ann. B. R. Luparc v. Welfon.
(G) In what Cafes the Law will create a Covenant.
I. TiF 0 ^^2n leafes to me by Indenture the Land of J S. of which Cro J. 7;.
X J- y. was leiled at the Time, upOIl tOljiCl) I encer, and he re-en- ^d^j^j^gj^"
ters, 31 iijall IjttUc a JJBcit of Covenant upon t\0 antientuce, Jll'see
tijouffl) a tsas not m tlje Lanli bp tije Leafe, out lij) eitcppel ■, foe Tit. Eftop.
ttjE icfloc ijS eltappcD to fai?, ttjat a uiag not in of IjtjS Leafc* Ctin. ?«'> ^^), p'-
3 Uac. 03. i^. ijettueen ^^/^dwrf H^mV;^ anjuogeo, auo tljat fiicf)''^^ •
Cca^ctfe IS not gaoo*
2. So foe tljC CaUfe afOtefaiO, if a ^an leafes to me rtiy own Land, Cro. T. 75.
oftiJljidj 31 am feifcD m ifee, oc otijcruiife by indenture, if3jamp''„^„^-
oufteu HP anottiec tljat Ijatlj Eist)t, 1 njall \mz a iJBrit of (2i;oDe= SoL „ot
nant* m* 3 3ia. 15» E» in ^v//^ ««^ Hemng's Ca/e, pet cutiam, cieariy ap.
pear, tho°
it feems to be admitted.
3- tB^tn a Man leafes to me the Land of J. S. of which J. S. is* Hob. 12.
feifed at the Time, 3i fljail IjatiCa UBtit Of Covenant before Entry upon p' U S C.
J. S. and Re-entry by him, fOC I need not allege an Eviclion ; fOC t!)i0^'','^ ,^^%
i!3 a Covenant in lato, UiljicD i^ btobe min ije i^ not ftUcD of tljc iTliOiJ
Lanu at tije Cimc oftlje Demtfei foe tlje mofa Demife impottiS amon, that
potoec of lEttino;, ann it is not reafonable to infotce tljelLelTee to '^^ ^aion
emet into tlje lann, anD fo to commit a ^tefpaisi. J^obatt'iSEc--'^/^'-'^' ^"'
poct0 18. p. 1 1 3]ac. Uettoeen * Holder and Taylor aDjuQgeD* Con- were an ex-
tra Cr. 3 3!a» "B* E. in t "iV/Z^'j Cafe before citeD prefsCove.
nant for
Quiet Enjoyment, there perhaps it were otherwife. Brownl. 23. S. C. but S. P. does noc
appear.
t Cro. J. 75. pi. I. S. C. See fupra pi. i.
4- 3lf a Man leafes the Land of J. S. by Deed to J, D. J. @).0w. toy;
being in pofTcOion oftbe lanB at tbe ^ime of tbe leafc, anti m% l-J":^
Leflee enters upon J. S. who re-enters, pet 51* D. iljaU [nOt] l^Z anj) the c\»re of
action Of Covenant tbcteupon, becaufe tbe Cobenant in law ougljt Bedford v.
to be fiCeH upon an Cffate, but bete was no Ellate, for it was a void Hill. -,6
Leafe, auti tljc lejTce a Dsffeifot b? bis entrj)* ^iz\^, 37 etii?. ^i^^ b.r.
X^. E* m nare-s Cafe, pCC j'CnnCC.
'^88
Covenant.
If, a Man 5. So if a '30^11 \tHlt& CCrtatll Goods to % D. which are the Goods
leafes Lands ^^ another, ;md in his Poliellion, if l)e CaUUOt CUjOp ti)eUI, J)Ct IjC
nfihi'c°h ' fiJ^H not ijn\)E onp Coijenaut againft tijc LciTor, teainfe tjc u.?a» ne=
Goods the ut a iLcftec* $?9tci> 37 eii> 15* E. ^^^''-^'-j ca/i, mmxmiu
LcfTor was
pclfeiTcd altho'igh by a wrong Title; and afterwards the Owner feiies th^m, an Action of Covenant
v.ill lie ; Per Fcnner. Ow. 105. 36 Eiiz,. B. R.
Oiv Tc,-. 9 3ifa C^an leafes Lands for ^2at:0, anti a Stranger enters before
f ^''^ the Lellee enters, ije fijall llOt Ijalje 311 ^Ctmi Of CODCIiaUt lipOil t|)!0
tv in ChI^" ©UitEC, bCCaUfe he was never a Lellee in Privity tU (jaiJC tlje aCtiOlU
of Bedford s^iclj* 3 7 €\ih per jf cnnec*
V Hall. 7. Indenture of Ze^/e recited, thzt in Co/ijider at ion H. th& Lcfeepaild
build a Mill upon the Land demifed, and a Water-Coiirfe by the Land
deniifed, F. the Leflor (the Defendant) leafed the faid Land to H. (the
, Plaintiff) by the Words Dedi S ConccJJi. The Plaintiff alligned the Breach
of the faid Covenant in Law, in that the Dejendant hid flopped the faid
Water-coitrfe fo made by the PlaiHtijf^ but in the Indenture there is not
any exprefs Covenant^ Claiife, or Agree7nent that the Lejfee pould enjoy the
iVater-Courfe fo made, but only the Covenant in Law ariling upon the
Words Dedi & Concelii, which, it feems admitted, (r«««o? extend to a 'Thing
not in Effe at the Time of making the Indenture. Le. 27S, 279. pi. 377.
Hill 28 Eiiz. B. R. in Cafe of Huddy v. Filher.
8. Bill of Sale oj Goods for 48 1. 10 s. with a Warranty and Covenant Sec.
Breach affigned J that at the Time of Sale the Defendant had not the PoJ-
feffion or Property of the Goods. Demurrer to the Declaration, & Ju-
dic' per Quer' in C. B. Writ of Error in B. R. becaufe it could be no
Breach ; tor the Intention ot the Covenant was only to lecure the Pol-
feliion, io that till Evidion the Covenant was not broken. Parker Cft.
J. faid, that the Plaintiff cannot ufe the Goods without being liable to
an Aclion, which is a Damage. If the Cafe had been, that the Defen-
dant had had the equitable Right, but another the legal one, it had
been proper to have laid it before the Court by Pleading it ; And Eyre
J. laid, ihzi Warranty., in the Nature of it, imports as zveli IVarranty of
the Property as PoJJejJion, and Judgment affirmed. 10 Mod. 142. Hill,
II Ann. B. R. Hackee v. Glover.
(G. z) What is a Real and what a Perfbnal Covenant.
W
■RITS of Covenants are of divers Natures, for fome are merely
Perfonal, and fome Covenants are Real, to have a real Thing,
as Lancls and Tenements i As a Covenant to levy a Fine of Land is a real
Covenant. But a Writ of Covenant, which is mere Perfoaal, is, where
a Man by Deed does covenant with another to build him a Houfe &c. or to
ferve him, or to mfeojf^ 8i.c. and lie does not the fame according to the
Covenant, then he with whom the Covenant was fo made Ihall have a
Writ of Covenant againft him ; And there is a Note in the Regifter,
« which is this, A Writ of Covenant ought not to be made according to the
Law Merchant without a Deed, becaufe no Plea of Covenant can be
without Deed, and every Man ought to be judged according to his
Deed, and not by another Law. F. N. B, 145. (A).
They are 2. Leffor covenants to pay J^uit Rents during the Leafe, and dies ;
bound. QuLtre, if the Executors of Leffor are bound to pay them. D. 114.
eI''"^^. _:pL 60. Pafch. 2 & 3 P. & M. Anon.
venanrcd lo rep/tir and allovi) iU T.ixes ; Kis Grandfon and Heir beinp; only Tenant for Life, is not li-
able to thole Covenants. Fin.R. i>6. Hill. Z) Lar. i. Woodward v. Jiarl ot Lincoln.
3, A.
Covenant.
389
3. A. conveys a Manor to 3, and covoiants tvith tkem, 6* qicolibct eo-
rum, that he has conveyed a good Efl ate to them ; This is a real Covenant,
and goes with the Ellate, and therefore after Partition, and by Reafon
of the Word (Quolibet) the faid Feoilees may have feveral A6lions of
Covenant. Jenk. 252. pi. 63. cites 5 Rep. 18. b. Slingsby's Cafe.
4. Three Coparceners pnnhafe Land tu Fee, and mutually covenant for And. 55.
them and their Heirs, with them and every of them, and their Heirs, pi 152
that Survivors /Jjall convey to the Heirs of fuch as (hall die firft, at the ^j'j'_| -J^
Cofts of fuch Heirs. Relblved, that this is a real Covenant, and goes f^,„\ Coo'k,
to the Heir of Covenantee. Jenk. 241. pi. 24. S. C. '-
Bendl. 22S.
pi. 260. S. C. and the Pleadings. D. 357 b. 55S. a. pi. 59. S. C.
5. A. 2;rants Lands, and covenants that the Lands fliall be difchargcd ^iXio^ \\
of the Rc'fit, it is no more than an ordinary and perlbnal Covenant, Shares out
which muli: charge the Heir only in refpeft of AHecs, and not other- "^J^^^^aj'w
wife, and thereupon the Bill was difmilied. Hard. 87. pi. 5. JVlich.Riye,.vva-
1656. Cook V. the Earl of Arundel. ter, which
56 Shares
ivere charged with a Rent of 500 I. pev Ann. to the Crown in Fee, and 100 1. per Ann. to H. M. for
Life; and Sir Hugh, in his Agreement with B h.id covenanted to tiifch.ir^e the 14. Shares hehad i'
creed to fell B. from ihcj'e Rents. Decreed that the PIdintitf fliould ehjoy the 14 Shares difcharged of
thofe Rents, and that ilie other zz Sliares fhould be fubjeift to the Plaiinift's Iiidernnity therein, not-
■withllandinp it was infifled thitSir Hugh's Covenant to difchar^e the 14. Shares of thofe Rents was
tnerelv Perroiial, and did not. nor could char<;c tlie whole Rents upon the 22 Shares. Chan. Cafes
212. Trin. 25 Car. 2. Lord Cornbury v. Middleton.
6. Covenant *to renew a Leafe for Years, or Lives, binds the Land. 9 Mod. 58.
Chan. Cales 260. Fafch. 27 Car. 2. Tanner v. Florence. S. P. Afhtcn.
V Brcfland.
. A leafes to B. for tliree Years, and in Covftderathn of B's laying out loo/. in Improvemenlt,
covenants at the End of tlie Term to grant a ttei:/ Le.ife at the fame Rent and Covenants. C purcha-
yc/ the Inheritance. Decreed that C. ruke good the Covenant. 2 Vern. 447. pi. 41 1, Mich. 1705
Ricliardibn v. Sydenham
* And it will lie for AfTignee of the Term againft the Grantee of the Reverfion ; Arg. Show. 194.
cites And. pi. 14S. . Fin. R. 212. Fiacli v. E. of Salisbury, S. P.
7. Covenant in general to fettle Lands of fuch a Value, and names none,
this binds all the Lands ; but where a Man fettles fuch Lands in par-
ticular for a Jointure, and covenants that they are of fuch a Value, there
fuch Covenant binds the Perfon only, and not the Land ; Per Mr. Keck,
Counfel ; and decreed accordingly. Vern. 64. pi. 60. Mich. 1682.
Girling V.Lee.
8. A. granted a IVater-Conrfe to B and his Heirs through Bl. Acre and ^j,|. g
JVh Acre, and covenanted for hinifelj^ hts Heirs, and Afftgns, to cleanfe Cafc's 27.
the fame, and that Fines and Recovtnes levied &c of the faid Grounds p\. 4 S. G.
Jhould be, and enure to confirmSc. the faid Water-Courje, Afterwards a '"'°f''^^'"
Recovery was had, and a Deed executed, declaring the Ufes as afore- ^'
faid. The Court held, that this was a Covenant running with the
Land, and made good by the Recovery. Chan. Free. 39,40. pi. 41.
Hill. 1691. Holmes V. Buckley.
9. 1{ Tenant in Fee grants a Kent-charge out of Lands, and covenants to i Salk. 198.
pay it without Deduifion, jor himfclf and his Heirs, you may maintain P'- 4- ^''^**"
Covenant againft the Grantor and his Heirs, but not againft the Alfignee, k^j/]]
foritisamere Perfonal Covenant, and cannot run with the Land ; Pers. c'&S, P.
Holt Ch. J. Ld. Raym. Rep. 322 Hill. 9 W. 3. in Cafe of Brewilcr v. by Holt Ch.
Kitchin. " J
JSht the
other three Judges thought that this Covenant might charge the L.3ni,hiM^inNfitt<re of a Grar:t,
cr at leaft a Declaration going akngnvith the Grant, fliewing in what Manner the Thing pranted fliould
he taken, and this being by Indorfement, they reckoned tht Indorfement as Part of tie Died, and lb
Judgment was given for the Piaintifl. 12 Mod. 171. in S. C.
5 G 10. Lcflee
390 . Covenant.
lo. Lellee for 6 Years covenanted to Danr and Lime the Land duran-
te I'trmnio. The Court was ol Opinion, that this was a Covenant rela-
ting to the Land, and tor the Advantage of the Reverlion, and would
have gone to an Affignee without his being named in the Covenant, and
attends upon the ReverJion, and the Heir may bring an A£tion upon it,
10 Mod. 158. Palch. 12 Ann. B. R. Sail v. Kitchingham.
(G. 3) What a Con trad:, and what a Covenant.
-c
IONTRACT made by A. with 20 others, that A. pall have all
the Wool growing of their Sheep, or all the Skins coming of
their Bealts killed, or all the Milk of his Cows, this is not Contraft,
but Covenant. Mo. 174. pi. 307. Mich. 25 & 26 Eliz. Anon.
PI. C. Ai-o-. 2. Covenant is when a Man covenants by Deed to do^ or that he has
30S. S. P. done fome Thing i As ro make a Feoffment &c. But if 1 covenant and
grant with you, that luy black Horfe pall hencefor-ward he your Horfe, you
Ihall have no Atlion ol Covenant againll me, though 1 retain the Horiej
for I have not covenanted to do any Thing in Future, nor th;it any
Thing was done in Time palt. Finch. 49. b.
(H) What Perfons Ihall have the Advantage of a
Covenant. The Heir,
Fitzh. Co- I. npJp^J^^S are fome COtsenatlSj of which none fhall have Ad-
venant, pi. | vantage but the Partv or his Heirs. 42 Ed. 3. 4.
17. cues _»- o ^ -T i
S. C. & S. P- hv Tho'p, and fo he faysot fome Inhabitants [Tertenants] of the Land, fo that every
one that has the Land fhall have the Covenant.
Bat where 2. COlien?.Ut0 of Inheritance Ihall defcend tO t\}t titlX*
t he re IS 311
Alienation of t'le Eftate to which &c. the Alienee fhall have Covenant. Br. Covenant pi. 5;
cues 41 E. 3- S' Fitz,h. Covenant pi. 5. cites 41. E. 3. 3.
Fit7.h. Co. 3. As if an Abbot covenants, attti fjati) ufcti Ciiue out Of Q9inli
venant, pi. ^.q j^^g in the Manor of B. lor him and his Servants, 1)10 ||)CU'!3
^■•j,"^!! (ijaUljimarimintaseof tl)i0 Covenant, If 15« ^m not altcn. 42
Br. Cove- CU. 3- 3*
nant, pi. 5- '
cites S. C.
* Br Cove- 4. [So] :jfan Abbot and Co vent COtieiiailt t3 fillg fOt tIjC COlJC^
nam, pi 17. Kautcc, m\\i W fi)eii*0 in fuel) a Cfjappel, W IpsiviS at all Cimcs
filn Brooke AwH IjaDc a mxit of Cotjenaiit foe t\ic not mm teeccof. * 2 p. 4-
lays that it 6. \}, atDUUffEO Co. 5- ^pcncet is*
fccms if the „.,„,.
Lord aliens his Manor, the Heir (hall not have Covenant bitzti. Covena^t, pi. jj. cit«
S C
If I cove- 5. If a Man make a Covenant by Deed tc aagther and his Heirs to enfeoff-
jiantwiih ^i„i and his Heirs of the Manor of D. &c. now if he will not do it,
■f, ""'^ '•'" and he, to whom the Covenant is made, dies, his Heir fhall have a ^Vric
^"llldTo' of Covenant upon that Deed. And alio his Aifigns Ihall hive a Writ
him and his of Covenant wlierc the Covenaoc is made to him and his Affigns. F.
xU^'fIoS^ N. B. 145. (c;
tucntiluUbe tothcHeir; For the Heir fliall have Covenant ; Per H; de C'j J. TJm, 558. Tan,
4. Car.
Covenant. c^pi
4Car. B. R cites Laughter's Cafe. — S P. And 55 Hill, itf Eli?, in pi. 151. Wootton v. Cook
S P. andjudfjmcnt for the Plaintiff ; becaufv: in the Rej^ilfsr is a Writ of Covenant for the Heir in
the fame and like Cafe, and for thnt the [nient of the Cotenant is to have the Inheritance convey'd to the
Heir, which Covenant, had it been perforra'd, the Heir would have advantage of wli.uevcr by the
Performance of the Covenant would have accrued ; and by the fame Rcafon he fli.iU have the Da-
mages wlii;h accrue by the Non-Performance thereof, and therefore and becaufe there is Privity
enough between the Father and his Hsir tc convey the Aition Judgment was given as before.
6. If A. covenants iiuith J. S. and his Heirs to make a Conveyance to one
and his Heirs, his Heir cannot have Covenanc, becaufe it is a Covenant
in Grofs ; But othenvife it is where fuch Covenant is in another Conveyance,
and goes -with the EJtate. Palm. 558. cites it as faid by Jones J. Pafch.
4 Car.
7. A. convey'd Land to B. in Fee and covenanted with him his Heirs andy^^n. 175.
Jsffigns for .Ghiiet Enjoyment. £'s was ejecfed and died and his Execu- ^ ^- *"'^
tors brought A£lion of Cosenant ; Refolv'd that the Eviftion being of^-^,'" ^/f
the Teflator, he could not have either Heir or AlHgnee of this Land, dees That" "
but the Damages pall be recoiiered by the Executors tho not named in thethz Acfion
Covenant i Becaufe they reprefent the Perfbn of the Tcltator, 2 Lev '^"^ brou;;ht
26. Mich. 23. Car. 2 B.R. Lucy v. Levington. by the Exe^
-' J J enter for
-Freem. Rep. 105. pi. 121. S. C. but S. P. does not appear.
Dam;
laees.
(I) [Who fhall have advantage of the Covenant.]
The AJj^gnse.
I' TJf a C^an leafes Land to another by Indenture, tl)i0 COtienaUt
1 in lauj, cceaten 1)p tlje uiacn (Demije) njaU tja to tfje aiTignce
of tfjc Cecm, anD Oe fljall fjaue aouantase of it* Contra, si^icl).
32 CI.
2. A. by Indenture let an Houfe to J. S. for 40 Years. The Le/fee S. P and
covenanted, with the Lellbr, that he -woiild repair the Houfe during ^yf^e Teems to be
.^erm; and {_Leffor covenanted that'] if tt Jkou Id be repaired upon the View^- ''~'.'^'''^^'-\
cf the Le/Jor, then the Lefjee jhould held the Leafe during 40 Tear after ^Z-'/ercllfdy
firji Tears ended. J. S. granted over his Term by thefe Words, To- Mo. 159.
turn interefle terminum & terminos qu£e tunc habuit in tenenientis illis.pl- 503-
Catlin held that the Poifibility of taking the laft 40 Years was inherent
to the Land and Term and Ihould go to the Affignee^ but three other
Jullices/Wi that the Words (totum Terminum &c. quae tunc habuit
&:c.) did not extend to the Pollibility of the future Term, hut that the
Jfftgnment was a Separation between the firJi 'term, and the Pofp.bility of
the 2.d. and confcquently determined j For it could not Hand in Grofs di-
vided from the Term to which it was firll annex'd. But they all re-
foived that the want of the Word (Afftgns) did not hinder the Pcffthili-
ty i for it was a thing inherent which paifed without fuch Word but
yet they held if there had been the Word (Affigns) yet the Afffns
could not have taken the Pufjibility. Mo. 27. pi. 8S. Paich. 3 Eliz '^B
R. Skerne's Cafe.
3. Upon the Words Demife, Grant &c. the Aflignee UlUI have
Covenant, tho' but a Covenant in Law. 4 Rep. 80. b. Trin. 41 Eliz.
Mokes Cafe, al'. Nokes v. James.
4. Lejeefor Tears makes a Leafe for Part of the Term, the Under-Ltffee
covenants not to do fuch an Act, and then Lefjee grants his Reverjion.
The. Quell ion was if the Covenant pafs'd to the Grantee or remain'd
with the Gr.intor. It was infijldtbat the Words of the Statute H. 8. are
Afprmative
^Q2 Covenant.
jiffirmatii'e only that the Grantor pall have Action on the Covenant ^ and
that this in Reafon ought to imply a Negative^ that the Grantor ihall noE
have Action thereupon and not to lubjeft rhe Lellee after Alfignmenc
to two A6tions ; But to this the Court delivered no Opinion becaufe
the AJfignment of the Reverjfon not being pleaded to be by Deed it ivas
void notwithftanding Lc^ee had attorn'd, and for this Reafon Judgment
was given for the Plaintiff^ notwithftanding what eKc was alleg'd.
3 Lev. 154. Mich. 35 Car. 2. C. B. BeeJy v. Furry.
(K) In what Cafes the u^JJigme fhall have Advantage
of a Covenant.
Br Cove- i. rTp|^(J^i^(J5 JitC fome CCtlCntintjS chat none fliall have Advantage
nant, pi 5. J^ ^^ j^^^. ^.j^^ Party to the Covenant, or his Heirs. 42 CD* 3. 4.
. Fitzh- Covenant, pi. 17 cites. S. C.
2. %\^ZK.t ntC iov^t COtlCttilUtSi which have an Inheritance of the
Land, ujljiclj fljall pafsi tuitlj tlje lano* 42^3* 3-4-
Br. Cove- 3. As if a Prior covenants tDttl) 1i5* co ling in aChappel in his Ma-
nant, pi 5. nof of D. tor him and his Servants (m JfCC, RS It fCeU10 tO be 111=
citess. c tenHcQ) tljc amsnee of tlje ^anoc fljali JjaHe Couenanc foe a "^iz--
Sstha°k fault* * 42 €. 3- 3- !)♦ Co» $. ©pencet i?- b* becaufc it iis an^
feeiT«ifthe ilCtCQ tO SPailOC* t 2 J|)» 4. 6. Ij.
the Lord
aliens his Mjnor, the Heir fhall not have Covenant, but in this Ca'e, the Affignee who was a
Younger Brother to the Heir and had purchafed the Manor, brought hi5 Action as Heir to his Grand-
father who was the Grantor and Covenantee, whereupon the Defendant ple.ided in Abaremsnt of the
Writ, to which tlie Plaintiff replied that he is enfcolf'd of the Manor, and fo is Tertenant, but this
Point was not adjudg'd but it was admitted this is a Covenant which goes with the Land Fit/.h.
Covenant, pi. 17. cites. S. C. Thel. Dig. Lib i. cap. 21. pi. 3. cites Hill. 42 E. 5. ^. &2
H 4. 16. S. P. Co. Litt. 585. a. S. P. cites the fame Gales and 6 H. 4 I. & 2 j Fitzh.
Covenant, pi. 15. cites S. C. Br. Covenant, pi. 17. cites S. C.
Fitzh Ci- 4. But if tIjC COtienaUt be tofing in the Chappel of a Stranger,
venanc, pi. ^y^ ^ffignec fl>ill uot IjatjE Co^eiwnt* 2 |). 4- 9- anjuDsen, Co*
\:^1 5. g'penccc 18.
Br. Cove-
nant, pi. 17. cites S. C. as if the Chapel is /cjered from the M.wor, it feems that the Alienee Ihall
not have Covenant, for want of Privity of Blood. Co. Litt. 385. a. S. P. and cites t>. C
♦ Br. Cove- 5. ^poit CClUaHt^ Of Partition, if OtlC Coparcener covenants to ac-
n*"^ p' 5- quit the other auti Ijct l)tvi^ of Suit, tlje aiTignce Of tljC laiin fljalt
!!!lFin,h. ija^e iBcnefit of tW Coijenant* * 42 ^D* 3- 3- b. Co* $■ ©petv
Covenant, CCC 1 8.
pi. 1 7. cites
S.C. — Co. Litt 384. b^S^ a S P. and cites S.C. bv Finchdcn ^ Rep. i?. a. S. C. cited
by the Reporter, and fays the Reafon is, becaufe the Acquittal falls upon the Land,
Cro. C. 503. 6. 3if A. feifed of Lands in Fee conveys it by Deed indented to B.
pi. 4. S.C. and covenants with B. his Heirs and Alfigns to make atlj) other Alfu-
Seed per' '"^^c^ "P^" Requeit, foc tljc bcttec ©cttlcmctit of tljc lanO fc. ann
Cur. and aftCC B. conveys it to C. tuijO conveys it to iX anD aftEL* D. requires
Judgment A. to malce another Allurance aCCOtQinO; tO t!j£ COiJCltanf, atltl \)Z W
^hH — f^'f"^!^' ^' fl^^l^ 13'^^^ ^^ ^rtfon of Colicnant m tl)i9 Cafe ngainlf 3.
pi -; 's'c li? tl)2 Common laiu, a? 3fl-tsnce to oa* Cr, 14 Cac, X. E. b^
tmzw
Covenant. ^9'^ '
! otScc Sill' ^"^ff'"*^"^ ^^^^ mm mmit ttjc i^UMnm foe an ;■- ;^^^J^
was broughr as AfllRnee of AlTignce of the Covenantee, and n.e ws that th- r "'' ^'^J°"
the Plaimitf, and Frances hi.s Wife, and to the H<rirv of the Hnl J Conveyance was made to
alone, without naming his Wife, who is yet a 1,"',^ To n^r . ' "?'^ '^'' ^^ ^""S' '>"= ^aioi,
it was adjudged for the Defendant. --L lo 406 pi T% r 7^ t^l Yi'*^''^"?"^ ^ ^'""'="'= Brampftoti)
tion broujjht by the Air.gnec attaches it fi in hisPcrlbn that H, r =>='^°'-dingly. By Ac-
inS mtercfted in it ; though before any Breach or Smt rom- ^ TT^" ""™^ '^^"'^^^^ "' h<: bc-
Bar to the Ain,.nec feo.n odnging thrAdic^ Cro r T" ^" r ' ^^'"'<>.by him had been a good
cited Arg. Mciun.257. ^ " ' '= '''-"°"- ^'°-<- )25.^- t-- P-r tot. Cur .-S.C. &S. P.
cap. 21. S. 4 cices^F. N. B. Tic. Covenant. ^' ^^ ^'^- '-cordingly,
if the Leafe
the f^rft Lef,ee and his Aflignees «.;. /r^^,:;'' ^"
Adjudged thac /e was duelo hta^ A&l rf'S'L!? '"'h'"'' '" '^•
who was the Covenantor. Cited by l"oL Mo r, ' "I"* T " *•
El,z,. in the Court of Wards. RandJll v. Il'tkef ■"■ P'' '"'■ " '*
II. A Man made a Feoffment in Fee reCenuHfr h.^.t c * y-^
Reltcf, and by the Deed mted that^ttlTv^^ I ^''iK'f ^^^'^^U WMo. ,8;.
Jiram in bis Manor of D and keep the Diltre J rill h/ ^^«f. /» ^'- C. Mich,
much as he had lulbined in nL\l u v x^ "'^^ lacisfied ot fo 26 Eliz,
imdeaFeoflmentover I vv?sx^o^!,ed^h r ^'^r''^" r^^P' Feortee and S. P.
Feoffee might diftrcm bec-iur^fr w ' V '" "''' Cafe the /..W f,='<^ P" ,
Lafds; fnd i/thTV: d f,LS had norb" "'"'"" wit'h the STy.Tur'"
pi 318. Mich. 24 Eliz. AnM -^ ' ' ^^"'"' J- ^^°- 179. >" ^he A-
^ '• vowry
they gave
f=r,l,= I>l.i„,i«„h.v., Rem™ of, he O,™"'
tator or Inteftate ftall Ko t?his W^, 'r ^f}' ^"^'^ ^" '"' ■!>= Tef-
fes!^ (irdTh^l£vF?Hti^.t£^^^^^^
-heA.,„ee .ppHes-hl-slXl'aSrXfS Coi/"-rS
394
Covenant.
Land, and is evifted, whereby he loles ail, ic is Realbn that he iJ,ould
take as much Benetit ot the Derr.ik and Grant as the hrll Leiibe might,
and the Lelfor has no other Prejudice than what his fpecidl Cuncradt
with the hrlt Lelieehad bound him to. 5 Rep. 17. a. Palch. 25 Eliz.
B. R. the.4th Refolution in Spencer's Cafe.
* Le. fiz.pl. 14. A. leafed to B. for Years. B. covenanted th.!i: it Ihould be law-
?-'S.C. f^i lor A. his Heirs and Afligns to enter, and fee i'l what Reparations
inefv^'^per " "^^^ Houfes were, and that be and his JJ/igus, -xtihtn one Month after
tot. Cur. Notice^'would repair. Tlie Houfes afterwards lell into Decay, and A.
granted the Reverfiou over to C. for Life * [in Fee, v.'ho upon View
gave Warning.] C. as Affignee of A. brought Covenant i it was fiid
the Action did not lie, becaufethe Houie became ruinous before his In-
terell in the Reverlion ; but Anderfon and otliers e contra j becaule the
Covenant is, that after Notice he would repair, and therefore be the
Houfe ruinous when it will, and in whofe Time foever, yet it he does
not repair upon Notice, he breaks the Covenant, Mo. 242. pi. 3 So.
Mich. 29 Eliz. Mafcall's Cafe.
Mo. i_4;.pl. i_j. A Man was poff'efedjor the 'term of 6 Tears of a Tavern in London,
5c>2^1-ur- ^^^ leafed the fame unto another /or 3 7dY?rj, and h 'xas covenanted betwixt
l^l;^^^^t,^f^tbem.,thatdunng the 3 Tear s quoltbet menfe^ Monthly, the Leffee Jboiild give
but not re- ' an Account to the Lefor oj the Wine which he fold^ and ihould pay unto
foived. him for every Tun fold fo much Money j and alcerwards the Lcfor grant-
ed the 3 J^ears 'uuhtch were remaining oj the 6 Tears to another^ and he did
requelt the Lellce to Account, and he would not, whereupon he brought
an Action of Covenant; and the Deiendant pleaded, that he had ac-
counted to the Affignee of the 3 Years, and upon that there was a De-
murrer joined ; and the better Opinion of the Court was, that it was no
Plea, becaufe it was not a Covenant which did go with the Land., or the
Rever/ion^ but was a collateral Thing., and did not pafs by the Jfjlgnmetit of
the "i Tears. Godb. 120. pi. 140. Hill. 29 Eliz. B. R. Anon.
Cro E. 4^6, 16. Lejfee for Tears a///giied over his Term by Deed to y. S, and cove-
V, Auder, lies, although the Alfignment was but by Parol, becaufe there was
S. C and Privity of Eltate. Mo. 419. pi. 577. Hill. 33 EJiz. Awder v. Nokes.
by Popham
and P'enner, when the Eftate paffes, thouj^h it be by Parol, the Warranty and Covenant enfuss it, and
the Affignee of the Efaie fhal I have the Benefit thereof ; and Coke Attorney General, who was of
Coimfclwith Defendant, faid, that the Law was clearly i'o. S C cited 5 Rep rt;. a, as re-
Iblved accordingly, Pafch. 59 Eliz, B. R. in Error on a Judgment m C B. per Pophain and the whole
Court, and upon Conference had with dirers other Juitices,
17. Where a Covenant is annexed to aT'hing, which of its "N mare cannot
pafs without Deed at firll, in fuch Cafe the J///gnee ought to be in by
Deed, otherwife he Ihall not have Advantage of the Covenant; but
where the Covenant is not fo, but runs with the EJ-a'e, the Affignee ihall
have Covenant without ihewing any Deed of Alhgnment. Cro. E.
373. pi. 21. and 436. pi. 52, Hill. 37 8c 38 Eliz. B. R. Noke v,
Awder.
Mo. 419. i8. Affignee of a Leafe by Eftoppel ffiall not have Advantage of any
pi- 57T- Covenant. Refolved by all the Juitices. Cro. E. 437. Mich. 37 & 38
t'\'^^':fr Eliz. B. R. in Cafe of Noke v. Awder.
&S. P. accordingly.
Mo. 527. 19. I'he Affignee of the Reverfion of a Terni (li.ill take Advantage of
pi. 695. Ma- ^ Covenant againft the Lellee of a Term ; As itWiefecoad LeJ/ee covenants
w 'ft ^-i ^^ ^^^^'^ ^^^^ Pojfeffion peaceably to the Leffor^ his Extciitors or AJJigns.^ or to
S C. ad-'^' leave the PremilJcs in good Rtpair &CC. and chough it was ob)ectetl that
judged ac- the Covenant was not broken until the Term w. is determined, yet per
Car.
Covenant. 39 c;
Car. this is a Covenant that runs ivith the Land^ and broken injlantly zo/f^coi-dingly.—
the Determination of the EJiate^ but becauie he did not avcr^ that he ^-'''% ^°\^"inl^
the Remrfion at the 7'ime of the Grant, if vvas hoiden to be an apparent J",, ;,g /ljia„t
Fault, and lor that Caufe Judgment vvas for the Defendant. Cm. E. of the Leter-
<Q9, 600. pi. 6. Hill. 40 Eliz, B. R. Matures v. Weftvvood. mwathn of
jy^T t^ T the 'Term,
as to leave peaceable Poffeffion to the LelTor, his Executors, Adminiftntors or Affigns, is a Covenant
annexed to the Eftate, and runs with tlie Land, and theitfore tiie Affignee fliall have Advantage over
it; Pei'Gawdy J. but Fenncr J. e contra, for that the Eftate is determined, and (b no Rcverfion, and
fo Defendant now is but Tenant at ^utterance. Goidib. i ;6. Matures v. Wefiwood.
20. A. feifed of Lands in Fee made a Leafe for Lifs, the Remainder for
Life rendriii^ Rent., and after achm'wledged a 'Statute, and afterzvards bar-
gained and fold the R.everJion and covenanted with the Bargainee, his Heirs
and Affigns, thrt it Jbould be difcharged''Joithin two Tears of all Statutes and
Incumbrances, excepting the Eft at es for Life ; the Statute is extended, and
thereupon the Rent and Reverf'ion is extended; the Bargainee grants the
Reverlion to the Plaintilf who brought Covenant; reiolved becaufe the
Covenant was broken before the PJaintitt-'s Purchaie, that the A6lion
was not maintainable by him againlt the Defendant. Cro. E. 863. pi. 40.
Mich. 43 & 44 Eliz.. Lewes v. Ridge.
21. If Le^ee covenants to do any Thing upon the Land as to build or re-
pair a Hotife, there a Covenant will lie for the Allignee by the Common
Law i but if it do not by the Common Law, yet it is clear that it will
lie by the Statute 32 H. 8. Refolv'd. Ow. 151. Mich. 8 J ac. in Cafe
of Alfo V. Henning.
22. ULeffee for^Tcars covenants to repair and fufiain the Houfes in as
food Plight as they 'u^ere at the Time of the Leafe made ; and afterwards, the
Lelfee affigns over his Term, and the Leffor his Reverfion i the Allignee
of the Reverfion Ihall maintain an Aclion of Covenant for the Breach
of the Covenants againft the firll Leifee ; Per Doderidge J. and Moun-
tague Ch. J. againS the Opinion of Haughton J. Godb. 270, 271. pi.
378. Hill. 15 Jac. B. R. Anon.
23. In Debt for Rent, and lliewed that B. by Indenture leafed to J. S. Jo. 242 pi.
for 200 Tears rendring Rent at Michaelmas, and afterzvards conveyed ^^-''^^^J^^Qp'^
Reverfion to the Plaintiff who for Rent behind brought the Atlion againfltbe^^f^^^^^
JJignee of J. S. who conleffed the Leafe, hai [aid, that B. covenanted to he S. C.
for him, bis Heirs and A[ftgns with J. S. his Executors and Affigns, ^^/rrtliough
if he be diflurbed for Refpite of Homage, or be forced to pay any Charge, or^ff^^f^f^^
Iff lies lofi, that he Ihculd retain fo much of his Rent, as he Ihould be en- ^^^^^^ ^f^
forced to pay; And, that by force of a Writ ifi'uing out of the Ex-theCourt
chequer for Refpite of Homage and Ilfues loll, fo much was levied by held, that
the Sheriff, which he hath retained of his faid Rent. Reiolved, ^^^^'[^ff,^H'f
the Affignee lliall have Benefit of the Covenant, both by the Common ^,g^, ^^l" '
Law and by the Statute 32 H. 8. for that it was a Covenant which did Defendant
run with the Land ; and at the Common Law he might have taken Ad- might retain
vantage to retain the Rent referved upon the Leafe, for it may be ap- g^^^^"^'
pointe^d to ceafe at the Will of the Parties. Cro. C. 137. pi. 1 1. Mich, might^well
4 Car. B. R. Bayly v. Hughes. plead it in
Bar of the
Aftion, but itappearing that the Charge for refpite of Homage was not good," and the Covenant did
not extend in Law but to a legal Charge, therefore Judgment was given for the Defendant; but fays,
that Crooke faid nothing, but leemed to bee contra.
• 24. A. leafed Land to J. S. for 21 7'ears referving a Rent, and likewife.
agrofs Sum by Way of Fine payable after the Death of VV. R. Provifo that
for default of Payment A. might re-enter. A. levied a Fine and aj/ign'd the
Reverfion to B. adjudg'd, that this Cafe is not within the Statute 32
H. 8. and the Condition of Entry not transferred over by transferring
over the Reverfion ; For a Man cannot by his own Acl divide a Condi-
tion
396
Covenant.
tion which goes in Deflruclion of an Eitace. Scy. 316, 317. Hill. 165 1,
B. R. Dekins v. Lathain.
Sid.157.pl. 25. As Adignee of Leflee fliall be charged in Covenant for Repairs
8. Kitchen Qhough the Affignes are not nam'd in the Covenant) in refpeft of his
S.C.Td-°"' having the Poffelfion according to 5 Rep. Spencer's Cafe, fo the Ajjignee
judgf d. of the Revcr/iofi U.iall have ABion 0/ Covenant for Default of Repairs in re-
Ipeftof his having the Reverfion, though Affignees ^re not najned in the
Covenant i Arg. to which all the Court agreed. Lev. 109. Mich. 14
Car. 2. B. R. in Cafe of Kitchen v. Bucklev.
2 Show. 1;^. 26. Covenant by B. an AJftgnee of a Reverfton againji M. and N. two
pl. 1 1;. S. C.Zf/7tf.f, upon a Leafe for Years, rendring 70/. 'per Ann. Rent, which
adjoi natur. jj^gy j^y. fhemfehes, and for their Executors, Adminijlralors and AJftgns, cove-
nanted to pay to the Lejjor, his Heirs or AJftgns, according to tne Reier-
vation i and/or i?^/;? Arrear, unA incurred after the Alfignment, B. brings
Covenant. M. Nildicit. N. the other Defendant p/M^^tY/ /« ^^r, that he-
fore the Afpgnment to the Plaintijf he by the Confent of the LeJJor^ releajed to jV}.
and that the Lejfor accepted htm as his fole 1'enant,, and that he paid the
Rent to him, which the Lefj'or accepted as of his "tenant ; and upon De-
murrer it was objetted, that the Covenant enfuing the Rent, aDif-
charge of the Rent is a Difcharge of the Covenant. But on the other
Side was cited the Cafe of Brett and Cumberland, that no Acl of tiie
Lellee can difcharge himfelf, or his Executors of a fpecial Covenant,
of which alfo the AfTignee of the ReverJion ihall have Benefit by the
Statute 32 H. 8. and Judgment for the Plaintilf accordingly. 2 Jo.
144. Pafch. 33 Car, 2. B. R. Alhurft v. Mingy.
(K. 2) Who fhall take Adv^antage of a Covenant.
Perfons coming in by Aci in Law, or not named.
I. 1^ ' Xecutors fhall have a Writ of Covenant of a Covenant made unto
r J their 1'efiators for a Perfonal Thing. And it appears by the Regi-
fter he may fue a Plaint ol Covenant in the County, or in the Hundred-
Court &c. and that he fliall have a Recordare to the Sheriff for to re-
move the fame out of the County into C. B. as it Ihall be done in a Re-
plevin fued there i and it the Plaint ot Covenant be fued in the Hundred,
or in other Court of other Lord, he ihall have an Accedas ad Curiam
direfted unto the Sheriff to remove the Plaint into C. B. F. N. B. (D)
2. If a Man demife or grant to a Woman for Tears, and the Le(Jor cove-
nants with the Leffee to repair the Houfes during the Term, the Feme
takes Husband and dies, the Baron flrall have an Aftion of Covenant as
well upon the Covenant in Law upon thefe W^ords, Demile or Grant,
as upon the exprefs Covenant. 5 Rep. 17. a. per Cur. Pafch. 25 Eliz.
B. R. in the 5th Refolution in Spencer's Cafe.
3. iJo it is of a Tenant by Statute Merchant, or Statute Staple, or Elegit
of a Term, and he to whom a Leafe for Tears is fold by Force of an Execu-
tion, Ihall have an Aftion of Covenant in fuch Cafe, as a Thing annex-
ed to the Land, although that they come to the Term by Aft in Law.
5 Rep. 17. a. per Cur. Pafch, 25 Eliz, B. R. in the 5th Refolution in
Spencer's Cafe.
4. As if a Man grant to a Lejfee for lliars that he fhall havefo much Ef-
tovers as will ferve to repair his Honfe, cr that he /hall burn within his
Houfe, this is appurtenant to, and Ihall run with the Land into whofe
Hands foever that the Lands Ihall come. 5 Rep, 17, a. b. per Cur.
obiter.
Covenant. o^^j
•>■
Obiter. Pafch. 25 Eliz. B. R. in the jih Refolution in Spencer's
Cafe.
5. LcfTec covenanted with the Leflor, his Executors and Admini- 2 Lev. i:
itracorsj to nfap-, and ka-vc in Repair, at the End of the Term. InfameReafon
Covenant brought by the Heir ic was objected, that it lay not for him ; ^°'" *^°""-
butit was anlwered, that it is ■xCo'venant running isoith the Land , andRgnf Sa-
Ihall go to the Heir though not named. Belides, it appears that the cheveral v.
Intent was, that it JI:o(ild continue after the Death of the Lejfor, it being Frogat
with him, his * Executors and Adminiftrators, and therefore fhall not
determine by his Death, upon which Judgment was given in the Ex-
chequer for the Plaintiif. 2 Lev. 92. Mich. 25 Car. 2 B. R. Lougher v.
Williams.
6. Cijiy que queUfe of ^ jRraf-cr^^r^? executed by the Statute cannot ^°'^' 2^5-
bring Action upon a coilateral Covenant, lor that remains with the Feoffee^ ' '^" 1"
&c. though Celty que U(e may dilhain as incident to the Eftate to bcHerle v.
executed in him. 2 Mod. 13S. JNlich. 28 Car. 2. C. B. Cook v.Cooke. S. C.
Herle. adjudged.
7. But of Covenants running -with the Land he may take Advantage ;
Arg. 3 Le. 225. in the Cafe of S)CCit ll» SCOt fayes' the Statute 32 H.
S. has been fo expounded before.
8. A Bijhop granted a Lcafe to J. S. who covenanted with the Bi/}jop andl Salk. 109
bis Snccejjors, to repair and leave repair'd at the End of the Term ; the? '°| p.
Bifiiop died, and the Leafe expired in his Succeffors 'lime, and the Repairs ^^^^^^^
not den-: i The Sutreffor died, and the Executor of the Succeflbr broughtof the Bi-
Aftion of Co\enanr, and adjudged that it lay for him. 2 Vent. 56. ^>op by
Trin. i \\\ & M. iu C. B. Morley v. Polhill. Yf^°'P '^=
■' L.eale was
made, andadjudg'd the Aftion well bi-otiglu by them.
9. Lcjlor covenanted to renew the Leafe at the Reqiicji of the Lejfee with-
in the Term. The Leffee died within tlie Term, having laid out a
conliderable Sum of Money in improving the Preniilies, and the Execu-
tors of Leffee requcjled a new Leafe within the Term. It was objefted
chat the Executors might be infolvent Perfons, and fo the Lefior in
danger of loiing his Rent. Ld. C. Macclcsheld faid, that the Meaning
of this Covenant was, that the LefTee might be reimburfed what he had
laid out in Improvements, and therefore immaterial whether the Letfee
or his Executors require the Renewal ; And chat there is to be a Claufe
of Re-entry in the Leafe, and the Value of the Prcniiffes being doubled
by the Improvements of the original Leffee, fuch Claufe will fecure the
Landlord againil any infolvency of the Tenant, and therefore ordered
Ltefendant the Lelibrto pay Cb/j'in this Court, and at Law for an
Ejeftmen: brought againlt the Plaintiif, and in which he had recovered
Judgment, 2 Wm's. Rep. 196. Mich, 1723, Hyde v. Skinner.
(K. 3) V\^ho fhall take Advantage of a Covenantj
and againft whom.
By Statute 32 H. 8. cap. 34.
I. 32 //. 8. cap. 'i^.TTTT HEREAS diverfe had leafed Manors fc?f. ^w^RefoIutions
V V c^^^^ Hereditaments for Life or Lives or Tears^'^^ J^'^g-
hy Writing, containing certain Conditions, Covenants^ and Agreement sf^^^l^^^^
as well on the Part of the Leffees and Grantees their Executors and Affigns^-s^z H. 8.
as on the Part of the Leffbrs and Grantors, their Heirs and Succeffors; cap. 54.
And whereas by the co,mnm Law, no Stranger to any Condition or Cove- '■ "^'"^
tmnt could take Advantage thereof by Rcafon whereof all Grantees of R(-'!l^,lZitn^
5 i "jerjioiis
39H
Covenant.
ral, viz that '-oerjioHi arid all Grantees and t'ateiitees of the Kii'/g of Ahbcy-Lai-di ciu>d
the Crtititee ^^^j.^,, ^^^ hntry or Atiion for any Breach ^c.
iovlu^JeT It IS eiiatfed that ail Perfons, Bodies Politick, tbeir Pfeirs, Sucafurs,
com"»/o>i Per- and yjjji^nes iiihtcb have or pall have any Grant ofourfjid Lord the Kin^r^
Jon ai v.ell of any Lord/hip Sc Rents, tithes. Portions, or oibcr Hereditaments or
its cj tJ.'. any Rcverjion thereof '•d'hich belonged to the Monajieries Sc. or ivhich be-
t"Jli'i'L l°'^K^^ ^0 any other Perfou q3c. and alfo to all other Perfons being Grantees
Mvaiitai;e (jr Alfignees to or by oiir faid Lord the King, or to or by any other Perfon or
oiCaidiii- Per/ous, and the Heirs, Executors, Succejlors and AJ/igns of every of them
'^"*- fhali and m.-iy have like Advantage by Entry for ^inpayment oj Rent
J. ^, ,. ^^ or for doing H'affe or other Forfeiture, and the fame Remedy by Ait ion only
'te?:c!sio for not perjormmg Other Conditions. Covenants and Agreements contained
Grants Kitir.e in the fdid Leaj'es, again/i the Leffees and Grantees their Executors Adna-
by tie Succef- jjjjifjf^j.^ ^;^^ Afjlghes as the Lefjors aad Granters, their Heirs or Suaef-
foYsoj the^^ .^^^ ought, fbciud or might, have had at any time or times S^'.
the Kin.^ be Ci;".ly niiiied to the Aft.
5. ■V\'l;cre the Statute fpeaks oi Lejfc?s, tliac the fame doi-s not extend to Gifts in Tail.
4. Where the Statute fpe .I<j of Grantees and JJfignees of the Keverfi^n an Jlijis^me of part of the Str.te
of Reicrfon tfay take jdd-MVt.\":e oi tiie Conditio;!. ..-Is i/'Le)Tee foi- Lite be, &c. and ihe Rever.lon is
granted for Life Sec. So il Lellee for Ycsrs &c. be, and the Reveifioi is granted for YeaK, tlie
Grantee tor Years ftali t.ike berefic of the Condition in rei"j)edt of the Word (Executors) in
the Act.
5. .^Grantee ef pari of the Keveifion fliall not tike Advantage of the Condition j4s if the Lea/e be
of three Acres rrfervii^- a '.(.e. It upon Condition, and tlie Rcvcrii.n is f^ranted of iwo Acres, the
Kent fhall be apporti.jned by the acl ol the Parties, but the Condidon is dcltroyed, lor that it is en-
tire and againfl common i\ij;hr
6. In the King's Cafe, ti: ; Quditioti in that Cafe Is not dejiroyed, but remai>:s fill in the Kin^.
7. By aSt in Law a Condition may apportioned in the Cafe of a common Perjon ; ..Js if a Leafe for Years
be mad; of two Acres, oi-e of the Nature of Borough Englifti, the other ac the Common Law, and
the LelTor havi -g nrue two Sons, dies ; Each of them fhall enter tor the Conditio.! brokc.T, and a
Condition may be spportioncd by the att and wrong of the LeiTee.
8. If a Leafe for Life be made referring a U.e)it upon Condition cfc. and the LelTor levies a Fine of ths
Reverfion, lie is Grantee or Ailigaee of the K.everli'jii, but without Attornment he fhall not take
Ad v.inta'^e of the Condition ; for the makers of the Statute intended to have all neceflary Incidents
obfervcd'^ othcvwife it might be railchievous to the L-ffee.
9. Tiicre is a Diverjity between a Condition that is comptilfary, and a pozver of Revocation th.it is vo-
luntary ; For a Man that i\as power of Kevoe.uion, may by his own Act extmguilh his power ot Re-
vocation in part, as by levying ot a Fine ot part, and yet the Power fhill remain for the Refidue.
Becaufe it is'in Nature ot a Limitation, and not ot a Condition ; and Co it was refblv'd in the <£art
cf i)l)rcU!l'burp'0 cafe. Dyer 59.
10. It the L?JJhr harg.ii.'is and fells the Reverfton by Deed indented and inroUed, the Bargainhee is not in
en le Per by the Bargainor, and yet he is an AlTignce within the Statute. So if the Lrjj'or grants the
Reverfion in Fee to tie i4fe of Jl and his Heirs, A. is a lufScicnt AfTij^nce within the Statute; Becaufe
he comes in by the act and limitation of the Party, albeit he is in thj Poll, and the words of the Sta-
tute be 7*0 or i?v, and they are Airignces to him, t:io' they are not by him But fuch as come in rneer-
Is by an all inLatv, Asihe Lord of the Fillein, the Lord by Efcheat, the Lord tiiat enters or claims
for Mortmain or the like, fhall not take Benefit ot this Statute.
11. If the Lejfor, in the Cafe before, bargains and/ells the Reverjion by Deed indented and inrolled, or if
the Lcflbr makes a Fecfnient in Fee, and the Lejfee re-enters, the Grantee or Feotfee Ihall not take any
Advantage of any Condition without making Notice to the Lejfee.
12. Albeit the whole Words of the Statute be, for non-payment of Rent, or ftjr doing of Wafte, or
ether Forfeiture, yet the Grantees or Ailignees fhall not take fienetit of every Forleiture by force
ot a Condition, b\iz on\y oi fuch Conditions as either are incident to the Reverfion, ^Js Rent, or Jhr the bene-
fit of the St.xte, Js for not doing of JFaJle, for keeping the fioufes in reparations, for making nf Fences,
itowring of Ditches, for prelerving of Woods, or fuch like, and not for the payment of any Sum in
Profs, delivery of Corn, JVood, or the like, fo as {other Forfeiture) fhall be taken as oihtr Purteiturcs,
like 'to thole Ex.miples which were there pur, viz of payment of Rent, and not doing of Walte,
which are for the benefit of the ReiJerllon. Cd Litr. 215. a. b.
This Aft' extends not to Grants of EjTales in Fee or in Tail, but only to Leaies for Life cr Years.
Cro. E 86;. pi. 40 Mich 42 & 45 Elii. C. B. Lewis v. Ridge. Extends not to a Ncmme
PaiiA t'o. Lite. 162. b.
2. li Leffee for Tears of 20 Acres grants his hit ere ft of 10 Acres, this
was Apportionmeiu at Common Law, and the LcHbr Ihall have jtveral
Avowries and feveral Atiions of Debt ; lor in this Cafe no Mtfnaity was
created as was ac Common Law, but Very Lord and Very Ttnanc,
and
Covenant. c^pp
and for this ilJijcbtef the Statute was made , For if the Tenant before
the Statute had made a Feoifmenc of divers Parcels, to hold by an
Halfpenny or fuch little Thing, then the Lordjhoiild know the Ward but
of tins Moiety &c. Per Plowden. Mo. 93. pi. 230. Pafch. 12 Eliz.
Anon. «
3. A Lcafe was made for 30 Years, and Lelibr covenanted to repair the
Houfe, and to do other Things. The Leffee granted parcel of the '2'erm
for ten Years ; It was holden that his Grantee lj.ould not have an Atiion
of Covenant^ by the Statute of 32 H. S. of Conditions^ for be is not 'Teuaut
tothe Jirft Lejfcr i But if Lelibr grants his Keverlion lor Years, his
Grantee (liall have Covenant or benefit of Condition with which the
Leilce is charged, for he is an AfJignee within the Statute, becaufe the
Leli'ee holds of him; Per Plowden, Nichols and Chambers, bun
Ipelley e contra Itrongly. Mo. 93. pi. 230. Pafch. 12 Eliz.
Anon.
4. k Leafe of tbne Manors y rendering for one 61. for another 51.^0-97,98.
for the third 10 1. with Condstwn of re-entry for Non-pay.Tienr the?'' ^4i, Ap-
Lc[for granted the Reverjion of one Alejjhage, and the Lcfee attorned sMoncux's
alter the Leff'or bargained and fold the Reverjton of all and the Leffee at-?', held ^c.
' torned, and Rent in one Manor is behind. It feemed to feveral thatcordingly,
the Bargainee ot the Rcverlion is aided by the Words (to or by the^"'^ '"'^^'"^ ^°
LelFor &c.) for this is the Intent of the Law &c.and within Statute 32Th^'c
H. 8. to take Advantage ot a Condition ; They all but Mounibn, held he?d tlw'lan
that the Alhgnee ought to be of the intire Reverliou, as it was in the^n WjJIgnee
Lelibr himlell, and not of part of the Reverlion, nor the Grant of it of^ ^'"■' "/ **
lels Ellate than was in the LelFor himfelf at the Tim.e of the rn-.\kmg^f"'{'J^^
the Condition, and upon that adjudged not ^ and holden that the Re- Ad varitaL
verJion within 32 H. S. ought to be expeftant upon a Term or Frank- "f the Con-
tenement, and not upon Tail. Dy. 308. b. 309. a. pi. 75 Pafch lA^i't^onorCo-
Eliz. Winter's Cale. ' "^-^enanr,/.
th/it he hath
Reverfion of nil thenh.gden:ifed. And Coke Ch. J. faid, that the Opinion of Mounfon 14 Eliz
509. a. was good Law Ow. 151 Mich. S J.<c. in Cafe of A]fo v. Hemming. Godb 162
m pi. 227. Wai-bui-ton J. cited D. 209. Winter's Cafe, that he that briigs Action upon the Statute"
ought to have the whole Reveifion. But Colce Cli. J. and Foffer faid, that he need not; For it had
been adjudg'd, that if the Revei-fion be granted in Tail, the Grantee fliall take Advantao-e of this
!>tatute, and Ihall enter for the Condition broken. S. C. cited 2 Bulft 2S2. and Colce Ch T
iaid, it is as common as m:iy be, that an Affignee of a Reverfion for part Ihall have Benefit of a Cove-
nant, and that fo it is in the Cafe of i^^ill U» grange, in Pi. C.
5. If Tenant for Liie be dilleifed and Reverjioner confirms theFJtate of
Dijfciforj and the Tenant for Life re-enters, the Dilleilbr is now an Al-
lignee, but othervvife it isj if Reverlioner rcleafes to Difleifor. Per Man-
wood. 4 Le. 29. in Cafe of Lee V. Arnold.
6. A. feifed of Copyhold Lands., part Borough Engltjh and part at Common
Law, by Licence of the Lord leafcs them on Condition and dies within the
Term, leaving two Sons, tbeyonngefi pnrchafes the Reverfion of the Lands
at Common Law of the eldelt ; lor the one part as Heir in Boroucrh
Englilh, and of the other as Alfignee of his elder Brother he Ihail take
Advantage ot tiie Condition. xMo. 113, 114. pi. 254. Pafch. 20
Eliz. Anon.
7. Afiigme of an jlffignee fhall have Aftion of Covenant i Refolv'd.
5 Rep. 17. b. Palcn. 25 Eliz. B. R, the 7th Refoiution m Spen-
cer's Cale.
8. ^ooixheExeciitorsofthe JJfignee of the Affignee. Ibid.
9. So of the Executors or Admmifhators of every JJignee ; for all are
comprized within the Word (Alfignees,) becaufe the fame Right
which was in the Tellator or Inteltace fliall go co his Executors or
Adminiflrators, Ibid,
10, This
^oo Covenant.
Covenant in jo. This AiSt extends to Covenants which concern the Thing demifed,
aLeafeby \)^i „Qt to Collateral Covenants, cited as Relblv'd. 5 Rep. 18. a. Pal'ch.
Leffor /. re- ^y g ■^_ j^ Spencci's Cafe.
new the -> '^
Term on
P yrnent of lol lies againft the AtTignee of the Reverfion. And. 8z. pi. 14S. Pafch. 22 Eliz.
Iftccd V iStoncly. But a Covenant by Leffor ?d rir/j.rir .1 Uridine on Lund not in the Le/rfe, will not
bind die Gra: tee of the Reverfion ; and if fuch Covenant was by the Leffce, the Gr.m-e: of the Re-
verfion fliall not take Advantage o\ them. Arc;. And. 82. So a Covenant by LeffL-e of a Houle
for three Years to account and pay for every Tun of IV'ine fold in the Hcufe fo much h Collateral and s;oe.<i
not with the Land, or the Reverfion by Affigiiment of the thre: Years.' Godb. 120. pi. 140. Hill.
29 Elii. B. R. Anon.
4 Le. 54. II. A. feifed of a Manor leafed the fa.iie for Years, rendring Rent
pi. 9^ S. C. w'ith claufe of Re-entry ; A. levies a Fi//e fur Connfance tie Droit co the
VeTbft'"" Ufe of himfelf and his Heirs. The Rent being demanded is behind.
The Queftion was whether the Coiittfor be an yl[jri;{ncc within the Scaiiute
32 H. 8. 34. Man wood thought that being Cejly que tifc, zvho is in by
» ' yjff in Law he might avow and re-mter without Attoriimenr, for that he
is in by the Statute 27 H. 8. Ent that it the Right had been in the Cu-
ntifee and he had died without Heir, that the Lord hy Kfcheat might a^M'-J:,
tho' the Conufee himfelf could not. Harper J. held that the Heir
might avow and re-enter without Attornment. Dyer J, held that Co-
nulor cannot enter or avow before Attorntnenr, and is not Alfignee
within the Statute. 3 Le. 103, 104. pi. 152. Palch. 26 Eliz. C. B.
Anon. _ ^
12. He who is in by a common Rtcovery is not an AlTignee, tho' the
Recovery was to his Ufe, for the Vvrii diiaffirms his Polfeffion. Per
Mounibn J. 4 Le. 29. pi. 82. Mich. 27 Eliz. C. B. in Gale of Lee
V. Arnold.
The Report 13. He who hath a i^dt'tT^^o;; /j' Limitation of an ufe or by a common
is rcflefted Recovery tho' he be in en Ic Poll, yet he ihall take x\dvantage of the
upon by Condition as an Aflignee within the 32 H. 8. But the Lord that comes
Maynard to a Villcius Lands, or a Lord by Efcheat cannot take advantage of fuch
andfaid,' Condition; for they come to Land by reafon of their Seigniory,
that there i^f,h[ch is z 'Title Paramount. 3 Rep. 62. b. per Car. Mich. 37 & 38
was tio iuch j-jj (2. B. in Lincoln College's Cafe.
F.clolunon. ^
but Ibid 19'' the Court faid, that that Report in Lincoln College's Cafe, v.hether there was any Re-
folution in the Calc or nut, is fuunded on fo good Reafon, that Conveyances fiicc have gone accord-
ing to it.
Cro. E 805. 14. A Leafe for Years was made to A. rendering Rent with a Claufe
pi. 6 S. C. QJ Re- entry iox y^ovi-'^-\^'m&v^f,x.\\^ Reverfion was granted to C. who levi-
adprnatur. ^^j^ ^ ^-^^^ thereof to B. who before any Aitornment granted the faui Reverfion
s^ pl I. to C. his Son and Heir, to whom A. attorned ; the Rent was in Arrear
.s'c. the * and C. enter'd ; Refolv'd, that the Entry was lawful by Virtue of the
Court held Statute 32 H. 8. of Conditions ; for tho' the Stature is General, viz.
-*'^d°-'^fT'd Coth*2r Perfons being Grantees or Alfignees, ihall ha\ e like Advantages
to give" ^ &<-"•) Grantee or AlJignee by Fine Ihali not take Advantage without
Judgment Attornment; for when a Statute fpeaks of Alligns, it ihail be intended
for the De- {^^\-^ conipleat Affignecs as have al] the Ceremonies and Incidents re-
*^"<^^'"' ''^^ quilice by Law ; yet here the Son was a compleat Alfignee within the
"er beino'^^ Statute, becaufe there was an a61:ual Attornment made to him, and the
moved K Words viz. (as the Grantors or Lellbrs might) are not to be intended
was ad- of the immediate Grantor, but of any Grantor, bctbre he can take any
journ'd. Benefit of the Condition. 5 Rep. rii. b. Palch. 43 Eliz. B, R.
MaJlory's Cafe.
15. AJfgnee
Covenant.
401
^S- ^Il'g"ec notnatned is not hound Z;j'' collateral Covenants, As to build
a Houfe De Novo ; but though not named he is bound by Covenants
that are fur the Benefit ot" the Eltate according to the Nature of the
Soil, As to lay fo many Acres every Year to Palture. Cro. J. 125. pi.
II. Trin. 4 Jac. B. R. Cockfon v. Cock.
16. A. leafed Land to B. for 7 Years, who covenanted to pay the Rent ^ Bulft. 281,
_ ^ ■ - - jri — — -t~ ...— ^ ..i..*, ^v^.v-iiuiiL iiaics 11, that
for Non-payment ot the Rent. Ow. 151, \$z. iMich. 8 Jac. B. R. Alio A devifed
V. Hemming. the Rever.
fion toC.
his WiFe for Life, who jrranrcd it over to T). if C. fhall fo lon^ live. B, attorned ; and adjudged
that D. may have Covenant for the Rent.- — — • Roll Rep. So. ;iitl)ot»C I), iijming, S. C. ftates it as
a Grant to C. for Life, and rhat B. attorned, and afterward'; C. leafed her Reverfion for 40 Years if
Ihe fo long iived, to whicli C. attorn 'd. Adjudged accordingly.
17. T.eafe to Husband and Wife ; Husband dies ; The Wife accepts the
Land ; fne ihall not be charged with collateral Covenants though Ihe
agrees to the EJt ate ^ becaufe they don't depend on the Ellatej Arg. 2
Brownl. 136. Mich. 9 Jac. C. B. in Cafe of Bagnall v. Tucker.
18. Copyhold Land is not within the 32 H. 8. For the J[/ignee is not in Cro. J. 505.
by the Copyholder, nor is privy to the Leafe made by him, but is in pi- 7 Beal '
only by the Cujinm, and may plead his Eftate immediately under the I.ord^ "■ Brafier,
per tot. Cur. on the fir'll Opening. Yclv. 222. Trin. 10 Jac. B. R w^n-^"**
Brafierv. Beale. and'Cner
Fleming! ruled that he could not, neither by the Common Law, nor hy the vStarute, and Judgment
accordingly for the Defendant. Brownl. 149. S. C. per tot. Cur. — --—Co. Comp. Cop 8-7
S. 21. cites S. C. accordingly, '^' ''
19. Grantee for T'ears of the Reverjion fliall take Advantage of a Con- Godb. i6z.
dition within the Statute 33 H. 8. cited by Coke Ch. J. 2 Bulft 282 '" P' ^-'•
Mich. 12 Jac. as adjudg'd'm C. B. in LCOnarIl'0 CafC, and faid that it^^^e^^s^c ^'
is very plain And clear that fuch Grantee may have an Aftion of Cove- as a Cafe In
nant at the Common Law, and that the old Difterence was between aLd Dyer's
Covenant Perfonal and Real. Time, that
V , rj n . r., ^ . ^ -, • ^ , ' ^ . Lejfeefor
lenrs leajea o'u'" ^-->--t -- ^
theRi
he would not charge his Memory with the Reafon, but faid, that he was well afTured that the Cafe'waa
yuled as he had fiid. And ibid, in the principal Cafe there, Pafch. 8 Jac. C. B. ISriffOtO b
©rifioixi, S. p. was held by Coke and Foller accordingly, but Warbur;oi J doubted.
20. A Lejfee for J'ears covenants for himklf, his Executors and A ffigns, Jo 223.pl.
that he "would net cre£l any Building in the Garden demis'd to the Preju- 5 S. C. ad-
dice of the Plaintiff's Light &c. The Lelfee alfign'd, and his 4^^«ff Jnfwa' ^"^
ereifedan Houfe tn the Garden to the Prejudice of the Plaintiff's Light\c. loiuterll^Co-
In Covenant for this againft the Executor of the Lejfee^ he pleaded that tienantxhs
the Lcfee had ajftgnd to J. S. -who entred and faid his Kent to the Plaintiffs Aftion
and that the Plaintiff accepted him tor his Tenant &c. On Demurrer &c. '^°«{'' /'^w/y
Per Cur. the Aflion lies, and that here being an exprefs Covenant, it^f« LfAe*
fhall bind him and his Executors, and no Affignment or Acceptance oj the S.C
Rent from the Affio nee Jhali take from him the Advantage of filing him or^'"^^^^^"'^-
his Executors upon exprefs Covenant^ no more than if a Lellee had oblioed^^^'
himfelt in an Obligation to pay his Rent, his Affignment over ot his
Term, and the Acceptance ot the Rent by the Lelfor of the Allignee
ihall not take from him the Advantage of the Obligation. Cro. C. 188.
pi. 8, Pafch. 6 Car. B. R. Bachelor v. Gage Executor of Gage.
- -J . . ' i'fffee for
irs kajed over Part of the Term upon ConJilht!, (which is fo much as a Covenant) and afterwardi
ntcd the Rs'vcrficv, and it wis ruled, that the Grantee might enter for the Condition broken and
Reafon (as he faid he remembered) was, becaule (Execu'ors) are named in the Statute: but 'faid
...„lll,^ r.^.r />!,.,..»« u;.. Af„~„ :.U .1 -U r.._ u... r.j .1 1 n _rr . j i .. „ _ '
5 K 21, The
^o2 Covenants.
Sid.401.pl. 21. The Earl of Lincoln makes -x Leafe of Lands in Lincolnjhire at
8. S. C. and London^ rcndring Rent, -which the tenant covenants to pay ; she Earl
held th;it affigns the Reverjion to 'Thtirsby^ who for Non-payment of the Refit brings
th.z ^^^"°" ^fi Jffioii at Lmdon. The Delendanc pleaded a Surrender, and there-
brou"ht. uponiirue; Refolvedj that Debt is maintainable only upon the Privity
."Vent. olEftate, and goes with the Reverfion at Common Law, and the Al-
io Nurftie fjgnee might have maintain'd it before the Statute ; but Covenant did
s C ad'- "°"- S° ^'^ ^^^ Allignee before the Statute, becaufe it went only in Pri-
jo^riied. — vity of Contraft, and now, though by the Statute, the Covenant doth
2 Keb. 4^9. pafs to the Affignee, yet the Nature of it is not altered by the Statute,
pi. 95. and but it is allignable only as a Contraft, and therefore may be brought
'''^j" 5o '„i where the Contract was made, i Lev. 259, 260. Hill. 20 & 21 Car. 2.
;"s'.c:i-B.R.Thursbyv. Plant.
ioiT.arur.
Butibid. 492. pi. 44- adjudi^ed torthe Plaintiff Nifi. Saund. 257. S. C. adjudged for the Plain-
tiff. But upon Ei'roi* brought in the Exchequer Chamber thejuftices and Barons were ofdiverfe
Opinions Prima Facie, wliereupon the Matter was compounded, and lb not determined in Cam.
Scacc.
22. Condition that Lejfee (hall not afjign over to any but his Kindred.
Leffbr affigns over the ReverJion, and Leflee alEgns over his Term,
and breaks the Condition ; Quaere, if this be a Condition within 32 H.
8. 34. or a collateral Condition? Atkins J. thought ic a Condition,
within the Statute 32 H. 8. cap. 34. but others thought it a collateral
Condition, & Adjdrnatur. Raym, 250. Hill. 30 & 31 Car. 2. C. B.
Lucas V. How.
5 Lev. 264. 2 2_ Devife of the Reverfton of a Term for 1000 Tears to A. for Life, and
v^Eader '^^^ ^^^^ w\x^\^ the Term, then to hisfrft Son &c. A. may bring Co-
S. C. accord- venant ; For the Devife of the Term to him palled the whole Ellate,
ingly. and the Remainder to the Son was a Pollibility and an executory De-
vife. 2 Vent. 128. Hill, i & 2 W. & M. in C. B. in Cafe of Dowfe
V. Cale, and cites 8 Rep. 96. Manning's Cafe, and 10 Rep. Lampet's
Cafe.
24. At the Common Law an Afjtgnee of a Reverfion might have main-
tained an Aftion ot Covenant for any thing agreed to be done upon the Land
itfelf ; Privity ot Contraft is not thereby transferred fo as to make the
A&ion tranlitory, but it muji be brought upon the Privity of Efiate ; for
if a Man does covenant to do any collateral Thing not in the Demife,
and the Word Affigns is in the Deed, yet they are not bound if they have
no Efiate, fo that it is not the naming of them, but by Reafon of the EJiate
in the Land they are made chargeable ; Per Cur. 3 Mod. 388. Hill, 2 W. 3.
B. R. in Cafe of Barker v. Damer.
4 Mod. 80. 25. A Copyholder makes a Leafe j the Leffee covenants to repair ; the
'' d"' d Copyholder farrenders to the life of A. who is admitted ; the Lffee affigns
cordlnely" ^'^ Term. A. may bring Covenant againlt the Affignee tor not repairing,
Skinn. for that he is within the 32 H. 8. cap. 34. as much as any Thing can
29(J.S. C. be within the Equity oi the Statute i Per Holt Ch. J. Show. 284.
^^''firft^HoIt ^^^' ^"'^ Judgment accordingly. Mich. 3 W. & M. Glover v.
Ch. J. in°^ Cope.
clin'd againft
the Plaintiff; fed adjornatur. Ibid. 505. S. C. adjudged for the Plaintiff. Carth. 205.
S. C. adjudged after two folemn Arguments for the PlaintitF. — — i Salk. iS j. pi i. S. C. adjudged
accordingly." Comb. 185,186. adjudged accordingly.
(L) rrh!)
Co\cnants. ^03
(L) //7jo fhall be hound by it ijohhout naming^
The Afjiones.
I
JF a span leafcs for Years, ailH tljC LelTee covenants (n X\)\^ 9]9ait= 5 ^^ep- 24-
net i Provifo femper, & prted' J. tlje \SMZ doth covenant, that!:^^-^''^ ,
he will repair, maintain and fuftain the Houfes UpOlt tl)e ll^ltmllTe^, Chapter of
ad omnia Tempora necellaria, during all the faid Term i aiHJ nftCC tlj0 Windfor's
Leflee affigns over tijc ^^eciu, tlje ^fliffnec fljall&c bOttnO l)j) tljijs Co- Care, S. C.
Dcimnt to repair tlje l)miz^ ourinn; tfjc life of tlje firff JLelTeej tljo'^^/^t^^"^ ;,
tljC aiTignCC IJC UOtnasneD, llCCaure the Covenant runs with che Landj^^'Eliz.^ *
being made tor che Maintenance ot a Thing in Elle at the Time of the b. R. per
Leafenmnc. P. 38 €U "B* E. bmOECtl tljC Dean Ofmfi^forandtox.Cm.
///W^ atiiutujcti inn wtit of cccorupcm a Siuosment in Baucar~S'°,^-
tijercof. fea.PV
Eliz. B. R.
Hyde v. Windfor, S. C. adjnviined Ibid 552. Pafch. 59 Eliz. B. R, the S. C. and Judgment af-
firmed. Mo 599 pi. 5Z3. S C. adjoniatur, but afterwards adjudged with thefirft Judgment.
2, But tlje laiTiffncc fljaU not be djargen in a I10rit of Coljcnant s- p. by
for anv Breach alter the Death oithe Hrlt Lellee, in aS UUlClj a0 ItiSS*""^^ ^"
Pafonn! to tlje lelTee Ijimfclf* p* 3 s €1 13* 3a* agtceo betlueencro "e Ln
tlje DmX of mmifir and Hide. (bis) pL 7.
in Cafe of
Hyde v. the Dean &c. of Windfor, S. C. S P. by Gawdy J. accordingly, and Fcnner J. in-
clined to it ; But Popham and Clench e contra, and fo it was afterwards adjudged. Mo. 599, 400, pi.
523. inS. C.
3. Refolved, that when a Covenant extends to a 'thing in Effe^ Parcel* S. C. &
of the Demi fe., the 1'hing to be done by Force of the Covenant is qiiodam^.^- 'i"^'^»
modo annexed and appurtenant to the thing demifed, and pall run with the j o'if 'j\iich
Land^ and ^all bind the Affignee though that he be not bound by exprefsi^Car.z.'
Words i but when the Covenant extends to a Thing which had not Ef- B. R. and
fence at the Time of the Demile made, this cannot be appurtenant or ^'''^ ^°"''"^.
annexed to a Thing which had not ElFence ; As if the Lellee covenant ^^""^ ^° ""
to * repair the Houfes &c. this is Parcel of the Contract, and extends
to the Supportation of the Thing demifed, and fhall bind the Affignee
though that he be not exprefsly named ; But in the Cafe above, the Co-
venant concerns a Thing which was not in Efle at the Time of the De-
mife made, but to be newly made afterwards, and therefore it fliall
bind the LefTee, his Executors and Adminiftrators, and not the Af-
fignee. 5 Rep. 16. Pafch. 25 Eliz. B. R. the firll Refblution in Spen-
cer's Cafe.
4, It was refolved, that if the LefTee covenant for himfelfand his„p
Affigns, to make a new Wall upon Parcel of the Land demifed^ there, in as foived^'upon
much as this is to be done upon the Land demifed, it fhall bind the the Statute
Affignee i for this being to be done upon the Thing demifed, the Af-52H. 8.
fignee is to take Benefit of it, and therefore he fhall be bound by ex- ^*' ^^'^
prefs Words. £.'/Mfthe Covenant be for him and his Alfigns, tfthe^^^'^^^^°l_
thing to he done be merely collateral to the Land, and does not touch the fion or the
Thing demifed in any Sort, there the Affignee Ihall not be charged i Grantor,
As it the Leflee covenant tor him and his Alfigns to build an Houfe upon might have
the Land of the Lejfor, which is not Part of the Demi fe, or to P-iy any^fQ^^g^^nt
collateral Sum to the LefTor, or to a Stranger, this iliali not bind theagainft the
Affignee
404
Covenant.
jj]lgriee,foY Aflignee, and here the Affignee Hull not be charged any more than any
bytheJc- other Stranger. 5 Rep. x6. b. the fecond Relolution in Spencer's
lept.we of p r
tUPoJj'4'on '^^^'^•
he had made
hiriilelj fubjecf to all Covenants nnceryiing the Land, and the Building of a Wall wss a Covenant inliecent
to the Land with which the Affignee (liould be charged, though there wanted the Word Aflignees
IB the Deed. Mo. 159. pi. 500 Hill. 26 Eliz. Anon.
5. If a Man demifes Sheep, or other Stock ofCattk, or any other Perfonal
Goods^ tor any Time, and the Lellee covenants for him and his Af-
figns, to deliver at the End of the Time fuch Cattle or Goods as good
as the Things demifed are, or fuch a Price tor them, and the Lellee af-
figns over &c. this Covenant fhall not bind the Affignee, becaufe it
is but a Perfonal Contra^, and wants fuch a Privity as that is between
the Lefibr and LelTee and his Affigns upon Account of the Reverlion.
5 Rep. 16. b. 17. a. the third Refolution in Spencer's Cafe.
6. But in Cafe of a Leafe ot Goods Perfonal there is not any Privity,
nor any Reverlion, but meerly a Chofe en Aftion in the Perfonalty,
but cannot bind any but the Covenantor, his Executors and Adminiltra-
tors ; So it is if a Man detnife for Years a Hoiife and Land with a Stock
or Slim of Afoncy, rendring Rent, and the Leliec covenants for himfelf,
his Executors and Affigns, to deliver the Stock or Sum of Money at the
End of the Term, yet the Affignee ffiall not be charg'd with this Co-
venant, for though the Rent referved was increafed in refpect of the
Stock or Sum, yet the Rent does not iflue out of the Stock or Sum, but
out of the Land only; and therefore as to the Stock or Sum, the Cove-
nant is Perfonal, and ffiall bind the Covenantor, his Executors and Ad-
miniitrators, but not his Affignee i And it is not certain that the Stock
or Sura will come to the Hunds of the Affignee, becaufe it may be waft-
ed, or otherwife confumed or perilhed by the LeJiee, and coniequently
the Law cannot determine at the Time of the Leafe made that fuch Co-
venant will bind the Affignee. 5 Rep. 17. a. in the 3d Refolution in
Spencer's Cafe.
7. If a LeJ/ie for 77ars covenants to repair the Honfes during the T'erm^
this ffiall bind all others as a Thing appurtenant and which riinncih witb
the Land into whofe Hands foever the Lands Ihall come, whetlier by
Act in Law, or b}' the A£i: of the Party, for all is one with regard to
the Leflbr ; and if the Law iTiould not be fo, great Prejudice would
accrue to him ; and it is but Rcafon that they who take Benefit of fuch
Covenant made by Leflbr with the Leflee, ffiall be bound by fuch Co-
venants made by Leflee with the Leflor. 5 Rep. 17. b. Pafch. 25 Eliz.
B. R. the 6th Refolution in Spencer's Cafe.
Gouldsb. 8. AlFignee of Leflee for Years is chargeable with a Nomine PoentS
129. pi. 25. incurred after the Jthpimcnt, but not belore. Mo. 357. pi. 4. 4S6. Trin.
^xz S.V 3^ Elii. Thyn v. Ch'olmley.
& S. p. a-
preed. — Cro E, ^S^. pi. % S C. Gawdy and Clench held, that the Aiition lay, but Fenner e contra,
abrente Popham, adjornatur.
9. It a Lefjee covenants to difcharge the Leffnr De omnibus oner il us Ordi-
nariis et t'.xtraordinariis, and to repair the Hoiijes, an Atlion lies againft
the Aliignee, in relpttt that the LetTee has taken upon him the Charges
of the Reparation, the annual Rent was the lets, v.hich trenches to
the Benefit ot the Affignee, Et Qui Icntit Commodum, fentire debet ec
Onus. 5 Rep. 24. b. Mich. 43 6i 44 Eliz. B. R. J)can and Chapter of
Windfor's Cafe.
10. Error; Lejfee for Tears covenanted to pay yearly during the 'Term ^ to
the Church-Wardens of S. 20 s. and to repair the Hatfes, and becaufe the
Jjjignee did not pay the 20 s. nor repair^ Covenant was brought againft
the
Covenants. 405
the Affignee ; Refolved, the Affignee is not to pay this 20 s. becaufe it
is a collateral ihing to the Covenant i alfo it is noc fliewed for whac
Time the Sum was behind j and thereupon adjudged that the Declara-
tion was not good, and the Damages being intire, a Judgment in B. R.
was reverfed. Cro. J. 438. pi. 10. Mich. 15 Jac. in Cam. Scacc. Mayho
V. Buckhurlt.
II. In Debt/or Kent an AJJtgnce is chargeable for the Time he enjoys it,
and is in Poffeflion ; Per Hole Ch. J. Show. 348. Pafch. 4 W. & M.
Buck V. Bernard.
(L. 2) Extent of Coveiiarit to difcharge.
1. T) O N D to make Appropriation difcharged of htcnmhrances though
J3 a Pen/ton was charg'd upon it, yet held that the Obligee was
not to difcharge it of that Penlion i Arg. 3 Le. 44. cites 3 H.
7- 4-
2. Covenant in a Feoffment with Warranty that it is difcharged of
all Rents, this lliall not extend to Reiit-Seriiices which are incident to
the Lands of Common Right ; Arg. 3 Le. 44. in pi. 64. Mich. 15
Eliz.
3. Bond or Covenant to make a Feoffment of Land difcharged &c. does
not oblige to difcharge it ot'fach '2'hings with "which it is charged by the
Lawi Arg. 3 Le. 44.
4 A Bishop in 1635 leafed Lands, and covenanted to pay all Taxes du-yem. zz'^.
ring the ierm. Adjudg'd that this Covenant cannot bind the Succeffor, un-^- ^'- ''"^
kfs fueh Covenants had been tifaal in former Leafes j And though fuch ^^?' "°''j.
Covenants had been in furvier Leafes, yet it cannot bind to pay a new Tax but Hale '
(as the Tax for a Royal Aid made in 1665.) made by Parliament, butCh. J. faid,
ought to be intended of fuch as were then in Ufe, viz. Synodals &c." would be
And Hale cited a Cafe to have been {o adjudg'd before. 2 Lev. 68. JifjJ'j [°^''"
Mich. 24 Car. 2. B. R. Davenant v. the Biftop of Sarum. new Taxes •
and that
they all knew how late this way of Taxes came in. . 3 Keb. (Sp. pi. n. S.C. and Succefforis not
bound bur only by ancient Charges.
5. A Covenant to difcharge /m« T^xej extends to fublequent Taxes
of the fame Nature, not of a different Nature. 1 Salk. 198. pi. 4. Hill
9 W. 3. B. R. in Cafe of Brewfter v. Kidgell.
(L. 3) To repair. Extent thereof.
I- /^Ovenant was to repair the tfoufes, Edifices and Buildings, with 2 Brownl.
\j^ neceflary Reparations, and to keep the demifed PremiJJes with 5^- S- C.ar-
Palmg and Fencing, and at the End of the Term would leave the S^^^^'^^^^
Houfes, and other the Premiffes, fufficiently repaired, maintained &c.!_I!!""B"ui'ft.
Breach was alfigned in not repairing &c. the Pavement in the Court, and 102. S.C and
in carrying away Locks and Keys of a Cupboard^ the breaking of the C/^/j Judgment in
Windows, C'dXT\\ng!Lff9.y 2k Shelj, which was not Ihewn to be fixed &c.^: ^•*™"^"
i L Ic"^-
^o6 Covenant.
It was objetted, that the Pavement was out of the Covenant ; tor it h
neither Building, Paling, nor Fencing; fed non allocatur ; For it is
wiihin the Intention of the Covenant, and iiQ^ia'i the Building, and with-
ia the VV^ords of (leaving them fufficiently maintaiijcd, repaired &c.)
And it was obje£led, that the AfTignment of the Breach in Glufs being
broken cannot be in Glafs wliich is but crack'd^ and it is not within the
Intention of the Covenant that fuch petty Things lliould be a Breach
thereof; fed non allocatur ; and as to the Shelves, though not iliewn
to be fixed, they Ihall be intended to be lb, and it is laid, that Diverlie
Res affixas afportatje fuerunt, and fo a former judgment was affirmed.
Cro. J. 329, 330 pi. 8. Mich. 11 Jac, B. R. Pyott v. Lady Sc.
John.
',^^^«f"r' 2. Tenant in Fee of a Houfe and Mill made a Leafe to L. for 31 Tears,
hwt.?'. a.nd L. (iemifcd the Mill to J. ^. for s Tears ; a-ittiwaxAs L. damfcd the
does not Hoiife and Mill to F. for 3 i Years. F. co'vcnanted to re-pair during the
clearly ap- ajorefaid 'term of 31 Tears; J. S. refufed to attorn. The Queltion was,
ih'H "q ' ■ ^'"^^ bound to repair the Mill, the Covenant being to repairduring
pi '5- Fc ^^^ Term, and nothing in the Mill pafs'd during the 5 Years for want
but obfcure- of Attornment ; But refolv'd, that he was bouna to repair; For Hale
ly reported ; f^id, that though the Leafe did not commence tn Point of luterefi, yet it did.
buc (ays, in Point of Computation, and this Covenant was 10 repair during the 31
bdd That Years. Vent 185 Hill. 23 & 24. Car. 2. B. R. Lew in v. Forui.
thoui^h till Attornmc -rthe Defendant has but an Intereft and noReverfion, yet the Term begins by
Computation from the fii-lt Day, and though there is no Remedy for the R -nt till Attornment but by
Covenant for enjoyinsj ti.c Rent yet it was the Defendant's FduU that he diJ not take a Covenant tha:
he Defendant fliould attorn ; And Judgment for the Plisintitf
3. Covenant in a Leafe to repair &c. pr^dimiffa from the T'ltne cf the
Leafe to the Determination thereolj and io well kept in P..epair, Ihall give
up at the End of the Term, not faying from Time to Time; akerwards
the Lellee builds a Malt-Houfe, and if the Covenant fhall extend to it
was the Queflion ; and held that it fhould in this Cafe ; For it is a con-
tinuing Covenant, and though the Houfe had no alhtal, y^'c it had a
potential Being at the Time of the Leafe; Judgment Nili, Skin, 121. pi.
hltlv^'^' ^7- '^""- 35 ^^'■- 2- B. R. Brown v. Blunden.
tar'lc, S.'c. 4- ^- g''''^"ti a building Leafe of ^ AleJJuages to B. who covenants to
pull them down, and build 3 others in their Room., and to keep and leave
'■ • thefaid 3 new built Mejfuages, and all other the faid Preinifjes, Houfes
and Buildings^ to be creeled in good Repair. B. builds 4 Houfes iufhad of
3 ; per 3 jultices, contra Rokeby B, muft leave all 4 in Repair,
becauie of the lail VYords which they held made a diftinct Covenant. .
2 Vent. 126. Hill. I & 2 W. & M. in C. B. Dowfe v. Cale.
5. A Covenant was to keep in good Repair the Houfe, Outhouies
and Stables ; The permitting the Racks in the Stable to be in Decay is a
a Breach of Covenant if they were fix'd up lor \j{i:, and lay not loofe ;
Admitted. 2 Vent. 214. Mich. 2 W. & M. in C. B. Anon.
(L. 4) Conllru6iion, and Extent of Covenants in
general
I. \ Covenant in Law flian't be extended to nwke a Man to do
f\ more than be can do. Brownl. 22. 12. Jac. Rot. 538. Bragg
V. Wifeman.
■ 2. A Covenant for perf effing a Conv/yance hy further afjurafice, and for
&/iiel enjoyment &c. -Ji-hen tley rol.'oii- an e.\pyefs Grant, they are not to
give
Covenant. 4.07
give any things but to a[]tfi farther and f upper t, being a VV"all or Monu-
jiienc abouc ic, and therefore cannot be be intended to exceed that
whereunto they are faid to be but Handmaids, and they are not to
be taken as if" they Hood alone, without refpecl to the whole Con-
text, and Intent of the Deed ; So Claufcs m company have other Con-
ItrujSlions than when they Ibind alone. Per Hobart Ch. J. Hob. 275.
Mich. 13 Jac. in the E. ot' Clanrickard's Cafe.
3. Covenant ought to be conllru'd according to the Intention of the
Parties, As it one Covenant to leave all the Timber upon the Ground at
the Expiration ot the Term, and after Cat tt doiion it is a Breach of
Covenant tho' he carry it not away ; but if a Stranger cut it down
k is no Breach ot Covenant, Skin. 40.Arg.pl. 8. Pafch. 34. Car. 2.
B. R. Anon.
4. So if Covenant be to deliver an Horfe, and the Defendant Pw-
foHS and theu delivers him ; Covcn-^nt Yxus. Skin. 40. Arg. pi. 8. Pafch.
34 Car. 2. B. R. Anon
5. Words of Covenant Ihall be conltrued favourably to fitpport an
Eftate as to create a Leafe, but words of Covenant Ihall not he conjlni-
ed conditionally to defeat an Eftate. Per Juftice Powell, at Lent Affifes
in Devon. 1708.
(L. 5) Conflruclion and Extent as to Repairs. And
Fleadinsis,
o
I. \ Leafed a Houfe and Land to B. B. covenanted to leave it in
l^\*> the fame Flight at the F^nd of the /«•??/ as they were at the
Coinmencenienc. At the time ot the Demife the Land was fown, and the
Houfes in good Repair, and now in Attion of Covenant the Count w.as
that the Houfe zvas ruinous and the Land not foivn, and it was held well,
and that a Man by fpeciai Aft [or Covenant] may bind himfelf to a
Thing which the Law does not bmd him to, As where a Houfe is burnt
by fliddain Adventure, Covenant lies though VVafte does not. Br.
Covenant, pi. 4 cites 40. E. 3. 5.
2. ii a Man covenants to leave the Land as he found it^ and the Wind Br. Wate,
tears up the Trees by the Roots, the Covenant [as to this] is void. Br. P'- iS. cites
Covenant, pi. 4. cites 40. E. 2. y. ^- '^■
3. li'Alicns come fuddenly and barn a Houfe^ VVafte does not lie, As where
but Contra ot Covenant by fpeciai Words, per Gand. Br. Covenant, pi -Leffee co-
4. cites 40 E. 3 5. f "« V°
^ ' •' •' leave the
as good Plij^ht at the end of the Term, as he found it. Br. Wafte pi. 19. cites S. c'
4. If I have a Farm with a Stock of Cattle and I covenant to render fo
many at the End of the 7'erm, there it they die by afiiddain Murrain., yet
I muft make them good at the End of the Term, per Morrice quod
Cand. conceflit. Br. Covenant, pi. 4. cites 40 E. 3. 5.
5. If a Man Leafes for I'ears, and a Strangers enters by I'itle, the Lef-
fee fliall not have Covenant againft the Lefibr himfelf j For he has not
broken the Covenant, and alfo there is no Warranty ; but per Needham
he Ihall have Covenant, for the Lellee has no other Remedy. Br. Gar-
ranties pi. 89. cites 32 H. 6. 32.
6. It a Man leafes aManor for Tears, and the Leftee Covenants to keep the Mo. 3 1 3;
Houfes of the Manor in as good Eftate as he found them, during the term ; ^.\a- ^ ''•
the '^''■^^ *™^
.o
B Covenants.
E. I. Fitzlf. the Le(lee does Wafle in the Houfes and in cutting of Allies, the Lef"
Covenant. jor brings Covenant before the End of the Term tor the Allies > For as
^ ^ to them it was impoflible that the Covenant Ihould be performed for he
S.C cired cannot repair them, but otherwife it is of the Houfes, Per Cur. 5
JjciCur. — Rep. 21; a. Pafch. 35 Eliz. B. R. in Sir Anthony Maine's Cafe, cites
»s. C. cired Tempore E. i. tit. Covenant 29. and fays that with this agrees F. N. B.
){A^°f' ^4^ CO and 12 E. 3. tit. Covenant 2.
Godb 3;i. pi. 429 S C. cited by Chamberlaine J. 2 Roll Rep. 347.— Mo. 525. Arg,
cites 12 E. 5. tit. Covenant, pi. 2. S. P. 2 Roll Rep. 532. Doderidge J. cites 10 E. 5. tit.
Covenant [but it feems niifprinted for 12E. 5.] but fays that Covenant does not lie during that
Term, becaufe he was to relinquifli his Farm, and this is not during the Term, but that Walte lies
frefently.
1. LefTee eovenants to repair^ provided Leffor finds him Timber. Lef-
fee is not bound to repair without Timber found by Leffof. Per An-
derfon Ch. J. 2 And. 72. cites 5 Eliz.
8. Slruiiiira & Paviawenta are Syf/oniwoiis and a Covenant to repair,
and leave in Repair the Struflures extends to the Pavements. 2 Built,
103. Trin. ii Jac. St. John v, Piott.
Poph. T415. 9. Tenant for Life of a Park made a Leafe thereof, with all Profits
Talbot V. qJ- fhg Deer for 5 Years, and the LefTee covenanted to repair the Park,
hwas'ob "''^ to leave it well repaired in the End of the Term ; and in an Adion
jetted that of Covenant brought by the LefTor, after the End of the Term, the
in Fine Breach affigned was, that the Defendant did net repair., hut at the End oj
Termini j^^ cj^^y.^^ j'^^-jf ^ajlum^ (viz.) in Permittendo the Park Pales to be in De-
wfn "b"*^" '^^y ^^- •' ^^^ objected, that this Breach was not well affigned ; be-
caufe it may caufe there was an Inftant of Time in which it could not be properly
extend after faid, that fecit Vaftum ; Sed per Curiam, though a thing cannot be
the Term, done in an Inllant ol Time, the VVafte cannot [may] happen Permit-
nem^Ter" t^ndo in fine Termini, fo Note the Difference between doing a Thing,
mini had' and permitting a Thing to be done. 2 Roll Rep. 38. Trin. 16 Jac.
been ftiffi- B. R. Talbot v, Levifon.
cicnt, and
cited old Book of Entries 169 ; For when he Covenants that at the End of the Term he would
leave the PremilTes in Repair, & Ad Finem Termini, he did Wafte, this muft neceflarily be
intended a Breach ot tlie Covenant, and therefore it was adjudged that the Attion of Covenant
well lies.
10. Leflee Covenants to repair the Houfe to him dimifed, during the
Term^ or within three Months ajter Notice given, and to leave it fo re-
pair d. Adjudged that it is the Eleftion of the Lellbr either to give
Notice, or if the Leflee does not repair the Houfe during the Term
to bring Covenant, and that they were feveral Covenants.^ and if the
Leflee comes without licence after the Term to repair the HoufCj he
is a Trefpallbr, the firft Covenant being abfolute, the fecond Conditio-
nal, and the one does not take away the eff'eS: of the other. 2 Roll R.
250, Mich. 20 Jac, B. R. Anon.
This Houfe 1,, Leflbr covenants to repair, Leflee covenants that ab ^ Poft
^^^^^^^^^^Evundationcm ^ Reparationem di6li Mefuagii by the Lefor his Heirs and
fes and Out--^'fig"s, he at his proper Colls and Chiracs bene ^ fufficienter repararet
houfes, now & fultineret. Held that though the Mefluage was in good Repair at
tliisCove- the firft, yet if afterwards it decay, the Lelfor is firft to repair it be-
T^It °<t!''^- '^^^^ ^^^ Lefl'ee is bound thereto. Cro, J. 645 pi. 7. Mich. 20. Jac.
i_.ciior Irian c -ri "r* oi o
beconrtrued.B. R- Slater v. Stone.
to extend
only to fuch Buildings as wanted Repair. Ibid. Adjudged that Covenant docs not lie, for tho'
it wu.s in good Repair and Leflee puU'd them down, yet it is not within the Reach of the Covenant,
if the LclVor decs not firll Rep.iir, but the true remedy was by Adtion of Wafte. z Roll R,
24S. 8. C.
10. Iq
Covenant. ^09
12. In Covenant the Plaintiif declared on a Covenant to repair allthe
Pales in a Garden demifed (except the Pales on the WeJl-SideJ and af-
Jigned the Breach in not repairing the Pales contra forinam conventioniSy ^c.
but did not fhc-jj that the Defetl -was of Repairing the Pales not excepted ;
The Defendant pleaded, that he had repair'd the Pales fecundum con-
ventionem, &c. After Verdicl for the Plaintiff it was moved in Arreft,
that the Breach was not well afligned ; For the DefeQ: might be in the
Pales excepted ; Sed non allocatur ; For it fhall be intended after a Fer~
diff, that the Jury gave Damages, for that the Defeft was in the Pales
to be repaired by the Covenant, and the rather, becaufe the Iflue wa8
upon the Repair Secundum Conventionem, which does not extend to
the Pales excepted. But agreed that if the Defendant had demurred
Judgment ought to have been for him. 2 Jo. 125. Hill. 3 1 & 32 Car.
2. B. R. Anon.
(L. 6) Conftmdions. Exclufive of Legal Incidents
or Adv^antages.
I. TT ESSE E for Life Covenants fufficiently to repair the Hoiifer «/Da1. 28. pi.
I J his own Cojis during the Term ; he is not effcpped by this Co- ?■ ?• ^ I"
venant or excluded by it of the Benefit, given him by the Law, of|^°"'^^'" ''"
cutting Timber for the Repairs, Mo. 23. pi. 8d. Pafch. 3 Eliz. Anon. Mo. 7. In
pi 2;. Pafch.
3 E. 6. Aiion. S. P. by Montague, Bro*n and Fitzherbert.
If Leflbr Covenants that Leffee may ctit Trees in other Lands not leafed^ Dal. 28. pi.]
yet Lellee may cut the Trees growing upon the Land in Leafe. »• S- C. in
Mo. 23. pi. 80. Pafch. 3 Eliz. Anon. bTs.— ^f'
. of Eftovers,
Mo. 7. Pafch. 5 E. 6. Anon. S. P. by three Juftices.
(L. 7) Breach or Performance what. And by whom.
i.TF a Man makes a Feoffhent of Land l^y Deed with Warranty.,
X, and a Stranger extends a Recognifance of the Feoffor's upon the
Feoffee, Covenant lies here. 17 Ed. 3. 18. a.
2. It A Farfcn makes a Leafe for Tearsy and afterwards re/igns, it is a
Breach of Covenant. Hob. 35. cites 12 H. 4. 3.
3. Where a Man is bound to make ftire EJlate by fuch a Day of Land^
called H. to the Annual Value of \ol. and he makes Eftate by the Day of
Lands called H. to the Tearly Value of 8 /. he has not perform 'd his
Covenant. Quaere. Br. Conditions pi. 9. cites 27. H. 8. 29.
4. If Lord of a Manor ^ in which are Freeholders and Copyholders^ is feif- So if A. is
ed of a Chalk-pity and leafes it with a Covenant that neither he nor any^'"""^ '"
of^ his Henauts or Undertenants fkou Id dig Gravely other than for Repairs iffc'ln^tht
it Leffee of a Copyholder digs, the Covenant is broke ; Per Hyde. Keb. Ca(b ^. ;/
775. in pi. II. Mich. 16 Jac, B. R. in Cafe of" Bourman v. Afton. Undtrui^avt
,.,..„,,,,,. , _ . to C and A.
digs ; thti IS a Breach, tor thou;;h he is not the ImmediateTcpant to C. yet he ;.s fo mediatel v and Inds-
ment acc.irrimgly. Lev 14.;. Burman v Afton, S. C- Keb. 8c6 pi 76, S. C. and per CuV Un-
dertenant IS any that comes in under the Lord's Interclt, ard cited the Cafe of * BrCITldllti tl
CnUiiaJUfcn, w here the Covenant was that Leffcc a d his Affigns would pay the Rent, and adi
5 ^i judjjed
.4^^0
Covenant.
judged that the Tt-naiir ar Viill or his A!T\f,r\ee is within the me iiiiiig thereo' j and fo per Hij'e
if Leafe for fio Years be o*' Copyhold, which has Common in the Waftc, and I.alc:.- covenants thai Ije
nor his alligns fhall nor u'e the Wafte with Catile, in this Cafe if hii IJnder-Affigiiee of jari puts in
Cattle it is a Breach, and Jud<;inent accordingly.
* Sty. 407, 408. Hill. 1654. B R. adjudg'd Nifi.
Freem.Rep, 5. The Tellator of G. was Regifter to the Archdeacon of SuffiiJk, and
2o, ii- p'- grants the Ojfice of his Scribe to the Plaintiffs and covenants that he (hall en~
^\ Iv'd ac- J'-')' '^ ^-^ ^°"<? ^-^ ^'^ "'' '^''y "^'^■"'^ Per fan had or did claim the Place of Regifcer
cording'v, Under him, and that he ivould not revoke, annul, or evacuate the faid
and that the Grant; afterwards he furrenders his Place to the Archdeacon, and the Plain-
Covenant jjfj- being dillurbed brings Covenant ; Refolved that it would noc lie,
not r^evoke beciufc that having furrendred his Place, the Archdeacon did not claim
&c. extends under him, but his Eftate was abfolutely drowned j and the Covenant
only to the was but for as long as he or any Body claiming under him h;(d the
Grant nf the Office of Reeilkr. Freem.'Rep. pi. 10. Mich 167 1 in C. B. See-
the Stnbes -i /^i ij- _ i. I. ■" I
Place. AndPl"gV. Gladding.
Vaughan
Cii. J Taid. that it is no more thati if a Juftice of Peace grants to one to be his Clerk, and covenatiis
not to revoke or annul the laid Grant, yet if he be afterwards put out of Commiirmn he hrh no;
broke the Covenant. For it 's but while he is Jullicc of Peace ; And fj of a iiailltf of a Manor,
or Keeper ot a Park, the Owi-cr may difpark.
6. Leffte covenanted with the Leidbr, that Lejfor Jhall cut 20 of the'
hefi Trees grooving on the Land at any Time daring the Term , but bejors
the Lejfor cut the Trees the Leffee cut 5 Trees for Houfe-boot. The Court*
held that this is a Breach of Covenant, by deftroying the Eledion of
the Lellbr, and it v/asthe LelTee's own Fault to make fuch a Bargain.
Freem. Rep. 397. pi. 516. Trin. 1675. Moterton v. JoUin.
Keb. ;S9i 7. Debt was brought on a Covenant in a Charter Party to pay the
pi iz. Bdi'- Plaintiff' I I. a 'Ten fur Goods imported ■, The Breach alfigu'd was in not
S^C & " paying for fo many Tons, and one Hogfhead, which amounts to fb much.
S. P. agreed. The Declaration and Breach in affigning the Non-Payment ior the Hog-
_^l_Freem. Ihead is ill j For the Covenant is only to pay fo much per Ton, but
f**?- 5"9- otherwife it would be if it had been to pay Secundum Ratam of fo
Ren'^v'* much per Ton. 2 Lev. 124. Hill. 26 &Z. 27. Car. 2. B. R. Rea v.
BaVnes' Burnis.
S. C. & S. P.
per tut. Cur. See tit. Apportionment. (A) per tot.
8. 30,000 /. is Covenanted to be laid cut in Land, the Morrey need
not be laid out all together upon one Parchafe, but ij laid out at fe-
■veral Times it is jtifficient. Per Lord Talbot. 3 Wms's. Rep, 228.
Mich. 1733. Lechmere v. Earl of Carlifle.
(L. 8) Afkions. When the Adion fliall be
brought.
1. A Man made a Leafe for Tears, and the Leffee Covenanted to make
£\ Reparations ; The Leffor granted the Rever/iun to another, and
the Leffee f)r Years made his Wife his Executrix, and diid; It was hold-
en in this Cafe by the Court, that the Grantee of the Reverlion poald
not recover Damages, but from the time of the Grant, and not for any
time before ; But yet the Wife the Executrix pould be charged for the
Covenant. 4 1 r
fwt repairing as "well in time of her Husband as in her oivn time; And if
fhe do make the Reparation, depending the Sui: i Yet thereby the
Suit fliall not abate, but it Ihall be a good caufe to qiuilify the Da-
niae;es according to that which rtiay be fuppofed, that the Party is
damnified for the not repairing from the time of the Purchafe of the
Revcrlion, unto the time of the bringing the ASlion, 3 Le. 51. pi. 72.
Trin. 15 Eliz. C. B. Anon.
2. Covenant to ft! fer a Recoi'erj laithin a Tear. All the Terms are
paft and no Recovery fufForcd, yet ao ASion lies on that Covenant
lejlre the Tear be fuUf Expired though all the 'Terms are fafi^ and that it
is impoffible to do it within the time prefixed. Per Popham Arg.
4 Le. 170.
3 Leflee co\cnanted to leave the Honfes, Trees aud Weeds at the End Arg- Mo.
cf the Term in as good Plight as he found them. Lellee cuts dozvn a "-}}, ^- ^'
Tree^ the Covenant is broke and the Leflbr llvall not Itay till the End § 'p ^^^
of his Term to bring his Aflion of Covenant, becaufe it is Apparent inglv as to
that the Tree can't grow again, and be in as good Plight as it was tlie Trees;
when he took the Leafe. PerDoderidge J. Godb. 335. Trin. zi Jac. ^"^f '|^''^
B. R. in Cafe of \Vaterer v. Mountague, cites E. i. Covenant, 29. [he Ho'ufo
the Leffor
Ihall not have Aftion of Covenant before the End of the Tern. F. N. B. 145. (I) cites E. i.
Covenant, 29.
4. / oblige vtyfelf to pay fo much Money at ftich a Day and fo much at 5 Lev- 584.
another Day ; The Court held clearly x.\id.x. hOixonoi lies if both Days ^^'^'^^^
are not paffcd. Hardr. 178. pi. 4. Hill. i2 & 13 Car. 2. in Scacc. Nor- j,ut by the
rice's Cafe. Mame of
Nowell's
Cafe, that Covenant lies at the firft Day, but that there is a Quaire there as to Debt.
^. Debt dgainjr the AJJignee after the Leffor has feveral Times refufed to
accept him for his Tenant. 2 Saund. i8r. Mich. 22 Car. 2. Devereux v.
Barlow.
6. Covenantwas brought againfl: the Defendant as Affignee of one J.
V. and the Breach alTigned was, that neither the laid J. Y. in his Lite-
time, nor the Defendant lince his Death, had kept the Fences &c. in
Repair. After Verditl tor the Plaintitf judgment was arrelled, be-
cauie the Atlion does not lie againfi the Defendant as Affignee for a Breach
in the Life-time of the Affignor., and this Breach being alfigned for a De-
tault ot Reparation of the Fence, as well in the Lime-time of the Ai-
lignor, as in the Time ot the Defendant fince his Death, and intire Da-
mages given, the Plaintiff cannot have Judgment. Lutw, 360. 363,
Trin. 12 W. 3.Britton v. Vaux.
(M) In what Cafes it lies againfi an Ajjigncs.
X. T jf A. demifes to B. feveral Parcels of Land, antl t!)C Leffee cove-Cro.C.2zi,
X nants for him and his Affigns to repair f C, anD VXiZl tIjC LelTce af- ^"- P'- ^■
fignsto D. all his Eltate, in Parcel of the Land demilcd, nilD after D. Ki"! s'^c'
does not repair tijat to Ijiiii atTisneu, tljc IMst iiiap fja^e an action ExceV^on '
of Coi3aiant ajjaina D» tljc ^.limnee. '^i. 7 Cat* 13» H. bctimn^^^ fk-n,
Conham and King aDjifogeij pcv Cliuaiii, tijt^ bciHS mo^Cii til acrcil^'^''^. ^«-
of Parcel
only of the Thinf^ dcmifed, he is net chargeable with this Covenant anv more thai the AfTi 'nee of
"parcel
4T2 Covenant.
Parcel fhall be charged in Debr for the Rent ; led non allocatur ; for this Covenant is dividable, and
follows the Land with which the Defendant as AfTignee is chargeable by Common Law, or by the
Stat. 5z H. S atid Judgment for ihe Plaintitf. Jo. 245. pi. 3. Conan v. Kcimie, 6.0 ad-
judged.
2. If a Man leafes for Years, and the Lepe covenants to make Repara-
tions and other Covenants, and affigns his Term over, the AfTignee ihall
be bound to thofe Covenants i For they run with the Land. Br. Depu-
ty, pi. 16 cites 25 H. 8.
3. J. S. Lejfee covenanted to repair^ and afteriiards ajjignd his Term to IV.
R. whom the Lejfor accepted for his Tenant, and recovered the Rent of him,
W. R.ftiffered the Houfe to be burnt down. Though by Acceptance of the
Rent of W. R, after the Adignment to him the Lellor is barr'd of his
Aftion of Debt for Rent againft J. S. yet adjudg'd upon Demurrer that
Covenant well lies againft him. Brownl. 20,21. Hill. 8 Jac. Filher v.
Ameers.
f ^h*^"^! 4" Covenant by Grantee of the Reverjton lies againfi the Lejfee after Af-
*" '"' ' ftgnyii^f't of the Term, though no Notice nor Acceptance of the Rent had
been pleaded., where there is an exprefs Covenant tor Payment of the
Rent i Per Cur. 3 Lev. 233. Trin. i Jac. 2. C. B. Edwards v. Mor-
gan.
5. Covenant will not lie againft one meerly as AJfignee o^ the Land.
I Salk. 198. pi. 4 Hill. 9 VV. 3. B. R. in Cafeof Brewlter v. Kidgel,
cites Hard. 87. pi. 5.
6. Leliee covenants to rebuild and finifh a Houfe within fuch a Time ;
the Time expires ; the Houfe not rebuilt. Lelfee alfigns. Per Holt
Ch. J. The A/Iignee is not liable for Breach before Affignment ; But if the
Leliee had allign'd before the Term expired, the Alfiy;nee would be
bound. I Salk. 199. Pafch. 12 W. 3. B. R, Grefcot v. Green.
(N) In what Cafes it ought to be brought agnt}?^
the AJJtg7iee ; And in what Cafes againll. the
Ajfigmr.
* s c. cited I. J JT a 99ait leaftg fot ^^eatjj, tcnTiting Eent:, anti t^c Leffee co-
by the Name jj^ venants for him and his Afligns to repair tljC ipOUfC during the
"Jljy Term, anD aftet tlje Leffee afligns over the Term, atlU tt)C Lellor ac-
ct)tapc ' cepts the Rent from the Aflignee, atlD aftCt tljC Covenant is broke,
cro, j."909. nottnttljftanninn; tlje Acceptance of t^e Eent from tljc aflignee, pct
.p',=* -j^ad- an aman of Co\)enant Uejs affainll tlje firrtlcfTee, fot tijc leflec
dSaindff ^^■'t^J coucnantcD ctpcef^l}? foe tjim ann ijtis amgiijEi, ant) tW Perfonai
on Demur- Covenant cannot be transferred bp tlje ACCeptanCC Of tIjC JKent^ ^»
rer. lo Ja. TB* K« bCtUlCen * Ventrice and Goodc heap aD)UOpO i anQ tljE
tCro. J. fanie Cecm, bettOCen t Bernard andGodskalimmSii''^' |)«i6 3ia,
Tc ad ^*3^» bCtUlCCn Sir J^.:^ Brett and Cumberland aUjllIIljeJ UpOn DC=
jud-ed ' murrer. p, i6 car* 15. E. betlDCen Nrton W and Ackland
tcroj ati)uco;cti upon Demurrer. 3!ntratur C;). 15 Car. Hot. 549- 'Cr»
511 pi. ;. 6 Car, X^. E. between ?>^f Countejs of Devon and Collier aDjUtlRCD
f. ^ v^'' luljcre tlje 'Breacb mag for Banpapment of Eent. 13. 20 Car. B.
Poi.t d-- bcnurcn c.-ofts and Ta,ier aOjuogen upon Dcmurtcr, teijetc tlje
■pcaded 'Breaclj luasi for Bonpapmcnt of Kent. J.ntratut pH. 19 Car*
long in j^ot. 'BariiarD.
(^leltion,
;ind iiUcr much Aigument was at length rcfulvcd, that he was chargeable \vi:h the Breach of this
Cove-
Covenant.
413
Covenant, and that the Affignee of the Reverfion fliould have the Adion, by the Statute 32 H. S.
fotitisa Covenant in Fair, and by the exprcfs Woids runs along with the Land; and notwithltanding
the Affignment, the.Covenaniorand his Executors are always chargeable, fo that neitlier by the Af-
fOTinentover of his Eftate, nor by any AAhe can do, can he dil'charge himfelf or his Executors„
wTio are chargeable by he Aftof their Tcftator, having AfTets as long a? the Leflbr continues the
Reverfion in him ; for the Executors are rot chargeable by reafon of the Privity of Contraft, but by
reafon of the Covenant itfelf, and by the exprefs Words of the Statute of 52 H. 8. Such Remedy a»
theLeflbr might have hadagainft the LeiTce or his Executors, fuch Remedy the Affignee fliall have
againfl them, it being a Covenant in Fait, which runs with the Land ; But otherwife it is of a Cove-
nant in Law, which is only created by the Law, or of a Rent, which is created by reafon of the
Contract, and is by reafon of the Profit<! of the Land, wherein none is longer charged withtbemthan
the Privity of the Eftate continues with them, and this Covenant may charge the Affignee who has
thcEllate, and the LeiTee and his Executors who made the Covenant, all at one and the felf fame
Time, but Execution fhall only be againfl one of them ; for if he fue an Adion againft the one, and
after againfl the otbei-, as he well may do, if he take feveral Executions, he who is laft taken in Exe-
cution fhall have an Audita Querela ; wherefore it was adjudged for the Plaintiff. Roll Rep.
559. pi. IT. S C. and it was held by Coke, Dodcridge, and Haughton, that the Affignee fhould have
Advantage of this Coven.int at the Common Law, becaufe it is a Covenant for Reparation of the
Thing leafed. 2 Roll Rep. 63, 64. S. C. adjudged for the Plaintiff. ■ Poph. 156,137 S. G,
adjornatur. Gndb. 276. pi. 391.8. C. adjornatur. ■ S. C. cited Cro. C. 188. in p|. 8. i
Ibid. 5S0. pi. 5. cites S. C. S C. cited per Cur Saund 240, 241. which fee at pi. j.
II Cro. C. 580. pi. 3. S. C. adjudged that the Aftion well lay.
2. 3lf ^ leflCC COlJCllillltSi, that he and his Afflgns will repair theScethe
Houfe HemifCO, anri ttjC Leflee grants over his Term, flnU tlje 3^^°'"°"-
fiffiiee OOC0 not repair it, an action of Cotienant m eitljer aBainttBrm v
tlje atTtgnee at Common Lniu, becaufe tljtg Covenant run0 tuitlj Cumberland
t&e laiiD, or it lied ajtatna tlje letTcc at tlje election of tlje jLelTor, «" pi '•
25 p, 8. OBrook Co\jenant 3^- ^"p"-
3. Q. Eliz. made a Leafe lor Years, rendring Rent, and Leflee co- ♦ S. C cited
venanted to pay it. The Queen died, and the Keverlion defcended to Arg. show,
K. James j alter which the Leflee aflign'd over his Term. TheAf-'93«
finee paid the Rent to the King, and afterwards the King granted the
Reverfion by his Letters Patents, and the Patentee accepted the Rent
of the Aflignee, and after brought Covenant againft the Executors of
the firft Leflee i and adjudg'd maintainable. Saund. 240, 241. perCun
cites Cro. J. 521, 522. 16 Jac. * Brett v. Cumberland, and fays, that
this mufl; necelFarily be by Reafon of the Privity of GoncraSl transferr'd
by Force of the Statute 32 H. cap. 34. for their was no Privity of Ellate
between them ; becaufe the firft LeJ/ee had ajjigri'd his ^erm before the
Grant of the Reverjion to the ?&t€ntee^ which prove that by the Statute
the Privity of Contraft is transferr'd.
4. If Ltfde tor Years ajigns over his Term, the Leffor having Notice
thereof, and he accepts the Rent from the Affignee, he cannot demand
the Rent of the Leffee afterwards, yet he may fue other Covenants con-
tained in the Leafe againft him. As for Reparations or the like i Per
Jerman J. Sty. 300. Mich. 1651. VVhitway v. Pinfent.
5. A Diverfity was obferv'd between Debt for Rent and Covenant for
Rent; For \i the Leffee afftgns over, ahd after Lcff or accepts the Afftgnee
for his Tenant, he cannot afterwards maintain the Debt for Rent againft
the firft Leflee, but he maintain Covenant againft him ; And one ^iD-
Weljaitl'jS Cafe in 13 Car. I. was cited by the Chief Juftice, and it wa3
alfo now agreed, thzt'if Leffee aJfigns\\\%Texm., and after Leffor. afftgns
his Reverfion, and the Affignee of the Reverfion accepts the Rent of the
AlTignee of the Term, yet he may have Covenant againft the firft Lef-
fee, Sid. 402. in pi. 8. Hill. 20 & 21 Car. 2. B. R.
6 Though upon an exprefs Covenant for Payment of Rent Cove-
nant lies againft the Leilee for Rent arrear after his Aflignment, yet ic
feems that fuch Action lies not againft Leffee on a Covenant in Law, as
upon (Yielding and Paying) after Affignment j Nota. Sid. 447. pi. 9.
Pafch. 22 Car. 2. B. R. Anon.
7. If a Man covenants to pay Rent, and after afftgns, the Leffor may
upon this Covenant charge the Party, or his Executors, or the Afftgnee,
i N at:
^ I ^ Covenant.
ac his Election j and fo it is ij there be 20 Affiinnums^ for che Party and
his Executors are always liable upon the Deed to the Covenant i
Diftum tuit. Freem, Rep. 337. pi. 417. Trin. 1673. in B. R..
Anon.
8. If the JJJignee breaks the Covefiant he may be charged, or iheLef-
fet^, or his Executors ; but if an Affignee nfftgns over^ and thsjecoad jif-
Jignee breaks the Covenant., t\it Jirjt Ajjigne^ cannot be charged.^ but the le-
cond Allignee that broke the Covenant, or the LeJJee, or hts Executors
may ; Per Hale Ch. J. Freem. Rep. 338. pi. 417. Tun. 1673. in B. R.
Anon.
I Salk. 8r. 9. A Leafe is made for Years to E. G. referring Rent. G. enters, and
^^■^^^I'^^l'' dies poffejfed ; S. his Executor, ^th June 1658. afjigns to P. and P. the
C and'lude- 4'''^ jfp'^i ^689 afJigns to J. M. and for half a Year's Rent due on the
mentinC. lit of January 1689 Covenant was brought againft P. The fole Quc-
B. reverfed ftion was, it Notice oftheAfJtgnment fliould be given to the Plaintiff, and
^"^- ^•f"'^ adjudg'd maintainable by 3 Juftices, contra Ventris. But this judg-
held that"""^^"'- ^^'^® aiterwards reverfed in B. R. upon the Matter in Law, viz,.
there was that Notice of the Affignment to the Plaintiff w^f mt neccjjary :, For
no Privity of by the Aifignment the Privity of Eftate was gone, and there was nothing
Mate or to fupport the Aftion againft the Defendant, he being only AiJigneei
be°twee?the 2 Vent. 234. Mich. 2 VV. & M. in C. B. and 4 W . &: Ah in B. R. To-
PlaintifFand vey V. Pitcher.
Defendant, ... «
and thefe failing the Plaintift's Aftion muft fail likewife, becaufe that miift he founded either upon
rhe one or the otlier ; And as to an Objection that it might be aflign'd to a Beg[5ar, the Court an( wer-
ed, that it was the LelTors own Fault and Folly to take the firft Allgtiee for his Tenint, and th.tt the
LclTor was not without Remedy ; For that he might bring Covenant againft the LeiTee's E\-ecuior,<;,
or he might diltraiii on the Land. Show. 540 S. C. in B. R. and Judginent in C. B. rever'ed.
. 4 Mod. 71 S C. in B R. and that Judgment in C. B. reverfed. Cacth i'j7 S. C, adjudg'd in
C B. but reverled in B. R. 12 Mod 25. S. C. and Judgment in C. B. reverfed, and Nil Dic-
tum as to Point of Notice. ■ Comb. 192. Richards ','. Turvey S. G, and by Holt Cti J. Affign-
ment by Affignee difchargcs him ; becaufe he was only ch.irgeable as having the L^nd ; And there is
no more Reafon for his giving Notice to the Leflbr of his Affignment over, than of the .^ffignmcnt to
him by the Leflee ; and Judgment in C. B. was reverfed S. C. cued Lord Riym Rep. 56S. and
Holt Ch. ]. faid, that that Judgment of C. B. was reverfed in B. R. by the Or)iiiion of (he whole
Court, which Reverfal was grounded upon the Reafon of Walker's Cafe ; Rep. 23 &c.
10. Executors of a T'crfit a^gns it over. The AJJtgnee afjigns it over to
another. The Execucor ftill liable, but it feems that the Executor's
Alfignee is difcharged on his affigning it over. 4 Mod. "jd. Hill. 3 & 4
W. & M. in B. R. in Cafe of Pitcher v. Tovey.
(N. 2) Againft whom. By Agreement to the
Eftate.
Roll Rep. I- A Feoffment was made by Deed with divers Covenants. One of
3 59- Arg. Jf\. the Feoff ees feafd the Deed, but the other Hid not, but he occupied
cites S. G. ^fifi fiirviv'd. Adjudg'd that he fhall be bound by the Covenants and
hala'Leafe ^"^^^ °^^'^ Companion. D. 13. b. pi. 66. cites 38 £. 3. to « hich Shelly
to one for agreed.
maiiider to another, and that LefTee for Life only ftal'd the Counterpart, yet if he in Remainder af-
the Death of Leffcefor Life agrees to the Eftate, he ihall be fubjeft to the Covenanr,s. S G,
cited Arg. 3 Built. 163. cites S. C and Ibid. 164 cited by Coke Ch J. Co. Litt zjo, b. 13 1.
a.S. P.
(N. i)
Covenant. 4-Tj^
(N. 3) Lies againft whom. Grantee. On Covenants
by the Grantor, Feoffor, or Leflor.
LEffor for Years covenanted m the Leafe, that at the End of the Term
he would make a mw Leafe to the Leffec or his Jf/ignees, and after
granted over his Reverjion^ and at the End of the 'Term the Lefjce brought:
Covenant againji the Grantee. Cited by Gawdy as a Cafe which he re-
membred lately adjudg'd in C. B. and to this all the Jultices and Ser-
jeants agreed. Mo. 159. in pi. 300. Hill. 26 EVvl,
(O) What will exthiguijh a Covenant.
I. TiF cl Man covenants with Tenant for Life of an Houfe to find a'F'^^'*^'^ "**
X Chaplain to fing fC, in the Houfe every Saturday during the ^""^^^ °^"^
Life of the Covenantee, if tJ)C Covenantee furrenders tO t|)0 i/effUt tiic a„ ; this '
Houfe, and re-takes an filiate for Years, J?£t tlje COijeUtint CemaUliS, i^-ems mif-
a. pi. 5. S. P. by H^nkford, that the Covenant is not extinft, but is a Thing executory between theiDj
and lies in Privity by way of Action, though the other has the Houfe.
2. "Si/ljCfime JLt!tO if he had granted the Houfe ovetj and JjC had not
retook an Eftate. 6 ([). 4. 3. (dUstC t!jig, fOt ilfteC tlje (ScaUt, tJOUJ IS
it Iniuful fat tlje Cljapladt ta come mta tlje tpoufe UJitljaut a ■^DitP
pars 0
3. A Covenant in Law is abridged by an exprefs Covenant, though it be* See Tit.
in the Affirmative. D. 19. b. Marg. pi. 115. cites 4 Rep. 8. and 31 H.^je^vaciott
8. 4. pi. 2. that * Refervation to the Lelfor excludes the Generality of the^ ^
Law, and that the Heir Ihall not have the Rent.
4. It was faid by Manwood Ch. B. that by the Recovery c/the Damages^
the Leffee fiould be exciifed for ever after, for making of Reparations j
fo as if lie fufter the Houfes for want ot Reparations to decay, that no
Aftion fliall thereupon after be brought for the fame, but that the
Covenant is extinft. 3 Le 51. pi. 72. Trin. 15 Eliz. C. B. Anon.
5. A collateral Covenant in a Leafe to do a Thin^ upon other Land not S^« T'."^-
leafed is not gone by LeiTor's Entry into the Land leafed. Mo. 402. pi. Fn"c'"T2
534. Pafch. 37 Eliz Carill v. Read. and tiie^
6. If a Man by Deed doth covenant to btiild a Houfe, or make an £- Notes there,
jiate, and before the Covenant broken the Covenantee releafes to him all Ac-
tions, Suits and Quarrels, this does not difcharge the Covenant itieit"
becaufe at the Time of the Releafe nihil fuit debitum, there was no
Debt or Duty, or Caufe of Aclion in being; But in that Cafe a Releafe
of all Covenants is a good Difcharge of the Covenant before it be broken.
Co. Litt. 292. b.
7. If an Efiate be created, and a Covenant in Law annexed to it, the
Covenant pall ceafe if the Efiate ceafes ; But if an exprefs Covenant is an-
nex^d^ and the Covenantor does not perform it, AiJion lies for not per-
forming it, though the Efiate be avoided -^ Agreed Arg. 2 Brownl. 159*
Pafch. ID Jac. C, B.
8. When
4^6
Covenant.
8. Where an Eft ate is detennifiable and nlatme covenants are in the fams
Deed, there -when the Eftate determines the Covenants are gone ; but if E-
ftate pais, the Covenants may be good enough ; As where a Charter of
Feoffment is madQ with a Letter of Attorney to make Livery^ and a Cove-
nant to quietly enjoy from henceforth^ if the Party be dijimbed before Livery
the Covenant is broken j Arg. Freem. Rep. 175. in pL 187. Mich. 1674.
Done V. Dr. Barebone.
sMod. 158. p ^ covenants with B. to pay a Rent to the Ufe ofC. thoush the Co-
Herle^S C. '*'^"^"^ (being Collateral) is not transferr'd by the Statute ot Ufes with
adjudged. ^^^ Remedies incident by Law to the Grant, yet the Covenant is nof
difcharg'd ; And Judgment accordingly. Mod. 223. pi. 12. Mich. 28
Car. 2. C. B. Bofcowen v. Crooke.
ID. A Covenant however good in its Creation may be extinguifhed
afterwards by the Death of the Covenantor to whom the Covtnantee was
Heir; Agreed by all the Judges of C. B. Comyns's Rep, 333 Mich.
6 Geo. I. Madge v. Mudge.
1 1. A. covenants on his Marriage to lay oat 3000 /. in the Purchafe of
. Land, and to fettle it on A. in 7'ail, Rcfnainder to B. A. Ptir chafes the
Manner of D. with this 3000 1. and never fettles it, bat fujfers a Reco-
very thereof; As the Covenant was a Lien on the Land, fo the Recovery
fuffered of it, difcharges the Lien, and bars B. of the Benefit of the
Covenant, and of tbe-Remainder. Refolved without Difficulty. 3
Wms's Rep. 171. Hill. 1732. in Cafe of Sir Sam, Marwood v.
Turner.
12. If LefTee covenants ?o r^/i«/> he is bound to do it, though the
Hotife is burnt down. Comyns's Rep, 627. pi. 268. Hill, 12 Geo. 2.
Chefterfield (Earl of) v, Bolton (Duke of).
(P) What an Extinguifhment, tho' the Leafe
continues.
I. "TyT recovery ofDatfiages in A£lion of Covenant forNhn-reparation, the
j3 Leffce Ihall be excus'd for ever after from making Reparations,
Co as if he fuft'er the Houfes for want of Reparation to decay, no Aftioa
fhall hereupon be brought for the fame, but the Covenant is extinft ;
PerManwood. 3 Le. 51. in pi. 72. Trin. 15 Eliz. C. B.
2. The Prior of N. made a Leafe for Life by Indenture, by which
Lejee covenanted to find Vi£fuals for the Cellerer at all Times when the
Cellerer came came thither to hold Court ; The Prior was diflblv'd,
and the Pofleflions given to the Dean and Chapter newly erefted, it
was held, that LeJJeepould perform the Covenant to hm that fupplfd the
Office of Cellerer, viz. the Steward. 4 Le. 187, M. 17 &.18 Eliz. B. R.
Anon.
3. A. leas'd a Mill to B, and A. covenanted to ^nd eight Men to grind
in the Mill every Day, and that if A. fail'd therein, B. fhould retain fo
much out of his Rent. B. pull' d down the Corn Mill and made it a
Horfe Mill. Per tot. Cur. hy the Alteration A is difcharg'd of his
Covenant and the Converfion is Wafte, tho' for the Lellbr's Advantage.
Cro. J. 182. Trin. 5 Jac. B. R. City of London v, Grahme.
4. Debt on Bond condition'd to perform Covenants in a Leafe ; De-
fendant pleads, that after and before the Original purchafed, the Leafe
•was cancelled by Co«/i«? of Plaintiff and Defendant. Per Coke Ch. J,
held clearly, the Plea is not good without Averment, that no Covenant
waa
Covenant. ^ij
was hoke before the CauceJling the Indenture. 2 Bruwnl. 167. Pafch.
10 Jac. C. B. Anon.
hr,.
(QJ Continuing Covenant, tho' the Leafe &c. is de-
termined or furrendred.
I. T F a Parfott leafes his Gkhe for Tears and a.keT reftgns^ by which
X the Leafe is void, yet A(Elion of Covenant lies agatnlt him i Quod
Nota. Br. Covenant, pi. 42. cites 12H. 4. 5.
2. B. ^t'/^ certain Land for term of 10 7'ears of A. It is Covenanted be-
fivecH A. and B. that if B. pay 100 1, to A. ivitbin the f aid 10 Tears
that then he (ball be feifed to the Ufe of B. in b'ee^ and B. farrendered his
Term 10 A. and ajter paid him 100/. within the 10 2'earsi there B.
jhall have Fee ; For the Years are certain ; Contra where it is covenanted
that if ke pays 100 1, within the Term ajorefaid, and he furrenders and
pays the 100 1. this is not goodj For there the Term is determined,
but in the other Cafe the 10 Years remain notvvithltandino- the Sur-
render. Br. Expolition pi. 44. cites 35 H. 8.
3. By the Statute 13 A//S. [cap. 20. j of Leafes it is enacted, thatCi-o. Eli_.
if a Parfon is Non-relident on his Living for the Ipace of 80 Days, all ^45- '" pi.
Leafes made by him, and all Obligations and Covenants &c. for en- ^- '^I'^l ^.y*
joining it Ihall be void. It was adjudged chat where a Parfon made ^sl'^held
Leafe for Years, in which were divers Covenants on the Lelfee's part, accordingly,
and afterwards the Leale became void for Non-reftdency &c. that for
a Covenant broke before, an A£lion of Covenant did lie. Cro. E. 78.
in pi. 37. Arg. cites 26 Eliz. Walls v. Cox.
4. In Covenant the Cafe was, Tenant for Life leafed for Years, and Le 179. pL
the Leffee by Indenture granted bargained and fold all his Eltate, to have -54- '^'^^-
&c. in tarn amplis Modo & Forma as he ought to hold it ; this im-j^^^^c c^"^"
plies no Warranty^ being the Words of the Lelfee for Years of a Te- \Zrt is no:
nant for Lite, but determines with the Eftate on the Death of Tenant tor any War-
Life. Cro. E. 157. pi. 42. Mich. 31 & 32 Eliz, B, R.. Landy-''^"fy ; Fo"*
dale V. Cheney. !'i= Plalntirf
Js nor Leflee
, , ■ ,,, - r . ■ , i butAfli?nee
to whom this V\ an-anty in Law cannot extend ; but admit that the Warranty extends to th- Plaintiff
yet it determined with the Elhte of the Tenant for Life, and lo th; Covenant ended^ with the
Ellate.
^. If Tenant in Tail makes a Leafe for Years and dies without IJfiie, the Le. 779, in
Covenant determines with the Eltacci Arg. And of that Opinion wasP'- ^54 S- ^^
the Court. Cro. E. 157. in pi, 42, Mich. 31 & 32 Eliz. B. R.
6. Leflee for Years of a Difleifor covenants to leave the &c. in good'^'-'y 75 S.
Bepair, and yield them up to the Leffor. LelTor brings Covenant and ^- '"^^ ^°'^'''
Leffee pleads, that A. was feifed in Fee tiJl by the Plaintiff diffetfai'i''^.^^'}'^
and atterwards A. re-entred who infeoffed J. S. who is yet feifed &c. and chL/ed of
upon demurrer adjudged a good Barr. Cro. E. 656. pi. 21. Hill. the cwe-
41 Eliz,. B. R. Andrews v. Needham. nant. For
, ,„,,...._ if [he Land
be gone the Obligation is dilcharged, and cites 20 H. 6. and 45 E. - 8.
7. A. leafes to B. for lo Years, and covenants ^Z ri^e c;/^/ of the Tarn
to leave jour Acres of the Land fallowed and plow'd, and in the Leafe
was a Provifo that if B. miflike his Bargain, that on a Tear's Warning B.
may furrender his EJiate; B. ^.itti^^x^s, farrendered accordingly. The ac-
ceptance of the Surrender is no difpenfation ot the Covenant, but other-
5 O wife
j^[S Covenant.
wile ii chc Provilb had been ifi tkc end oj lo Ttars; for then it the
Leiibr accepts the Surrender belbre the lo Years expires, it is i!np.)lii-
' bie tor the Leiiee to perform the Covenant. Noy. ii8. Auitin v.
Moyle.
5 Brownl. 8. An A8:ion was brought upon an cxprefs Cvvauftt in a •vjidahk
M4 '5'^' Zfii/'J;; adjudged that the Aftion would lie though the Leafe was void,
ed — (')w" ^"^ ^'^ke Ch. J. faid, that if the Action Ihould not lie, a great Mifl
iq(). Wal- chiet might happen ; For a Dean might as To-day make a Leafe to A.
kVv.tlie and keep it licrer, and To-morrow make another to B. and covenanc
Dean &:c. of jQ gj^jyy^ and fo avoid the fecond Leafe. Brownl. ai. Trin. 9 Jac.
c'^nd'here "^Vaker V. the Dean &c. oi Norwich.
a Difteivnce
is taken, ivhen an Efi.tle is created in tvhich is implied a Covenant in Lain, there if the Eftate he v.vd the
Covenant is void alfo ; hut wlien tiiere is an exprefs Coven.wt in Deed it is othervvilc, tho' the Ell.itc be
void or voidible. An Exprefs Covenanc depending on the Nature of the Conveyance and whicli
h or\\v aiixilityy, and goes along with the Eftate, is void, if the Conveyance is void. Arg. Ch,
Prec. 4'/(S. Mich. 1717. in Cafe of Furfaker v. Robinfon.
See (A) pi. 9, If a Covenant depends on the hitcreji of a Leafe^ As a Covenant to
S. C. 'f'^^-'^^^'i-cpair the 'Thing deinifed^ or to pay F.ent, thefe Covenants are void if the
Mi'lbike Leafe is void, becaufe they immediately depend on the Leafe i But
where the Coven-inn is tor a Collateral Thing, as a Covenant that the
Lellbr is Ownei at the time of the Leafe, or the Lelfte fiiail enjoy ir,
or fliall be difchargcd and faved Harmlefs, thele Covenants being Col-
lateral to the Leale and Interell are good tho' the Leafe is void^ Per
Haughton Serjeant. Arg. Ow. 136. Palch. 10 jac. in Cafe of Wal-
ler v. Dean &c. of Norwich.
Lev. 45 S. 10. A. poifeifed of a Term for Years _f)-^;;/5 fo much cf the Term as
C the Co- p^j^ y^ unexpired at his death ; the Grantee ajjigns and covenants that the
Obu"at^ion JJJigHcc floall enjoy againfi a!l Per fons^ and the PlaintilF alfigns a Breach
being both and liiue upon it, and Verdift for the Plaintiif ^ It was moved in arrelt
tor the Cor- of Judgment that tlie Aftion did not lie, becaufe the original Grant
roboration i-,j;f,-jg void tor the uncertainty, the Covenants are void alfo, becaufe
-1-hkh was' ^^^ Bond depends on the Covenants and the Covenants depend on the
void, they Leafe. But it was anfvver'd, that the Term is not well affigued, but
are alfo both [h^c here is a Covenant that ftands diftincl by itfelf, and if there be not
void; and ^^^^ Covenant, then the Obligation is fingle; Adjudged lor the De-
(IsSle- 1'end.ant. Raym. 27. Mich. 13 Car. 2. B. R. Capenhurlt. v. Ca-
porter fays, penhurlh
iie heard) for
the Defendant Keb. 130. pi. 54. I<?4. pi. Il3. 185. pi. 156. adjudged for the Defendwr.
— ^S. C. cited I Silk. 199 Arg. Et hoc fuit concelTum, per Holt Ch. J. becaufe that was a
i-elative and dependent Covenant, and if there be no Eftate granted the Covenant fails. S. C.
cited Ld. Raym, Rep 5S8. But per Cur. the Covenant in this Cale was that the Covenantee fhould
enjoy the Term which was impoirible, where no Term palled by the Deed.
Ld. Raym. 12. Where there is a Covenant and a Bond to perform it, and it re-
Rep ;S>8_ S. i'^,^^ j^ ^ ,^ E/ate and is to wait upon it, if there be no Eftate granted, as
^ and°'ro"r^vhere there is a Bargain and Sale but not enrolled, the Covenant tails
judgment As where the Deed was by the Words Grant, Bargain, and Sell&c. to
in C. B. wasthe Plaintiff, and the Deed was not inroUed. But where a Covenanc
^^'T'^'*' ,^ is diltinO:, feperate and * hdependant, it is not Material whether any
Walle*rv^ 'Eftate palled, and the Plaintiff need not ihew it, nor fay Quod Defen-
Dsan&c' dens Conceffit. But the beft way is to declare Quod cum Teftatum
of Norwich exiftit, &c. and Judgment accordingly. 1 S.ilk. 199. pi. 5. ,Mici.
10 \V. 3. B. R.. Northcotc v, Underhiil.
(R) Di.
Covenant. ^i^
(R) Dilpenfed withall by becoming afterwards
Unlawful.
I
F a Par fan has a Term with Condition mf to alien , and then A Leafe for
comes the Statute againji keeping a Farm^ yet it feems the Con- ^^^''^ was
dition is good. Arg. 2 Brownl. 142. in Cafe of Portingcon v. -l^ogers, Qel-tyman
cites [D. 28. b. pi. 189J 2S H. 8. Leoman's Cafe. befofcTi^"
H. 8. wlv>
covenanted not to alien mihout Licence, and then the 21 H, 8. was msde, which prohibited any
Cleigvmin to hold any Land in Farm, whereupon the Clergyman alfiRnd v^ithout Licence, and the
Covenant was held not to be broken, becaule 21 H. S. 15. made it unUwhil for him to hold it.
12 JMod. 169. Per Holt Ch. J. in delivering the Opinion ot the Court, Hili. 9 W. 5. cites D 27.
Though the Statute counter-oaih a Licexce, becaufe every J^Ian is privy to it (which they
would not agree) yet it was iaid tiiat this Statute ought to he alleged, it being Erudition that where
a Stature Licences a Thing it ou;;lit to be pleaded by thofe that will take Advantafre of it. D in.
b. pi. 17S. Hill. 2SH. 8. Abbot of VVeftminfter v. Leman. '
2. A. had Eftate in the Lands of B. and before the Statute 3 2 H 8. Becaufe the
enabling tenant m Tail to wake Leafcs for 21 Tears or three Lives i A. was ^^-^ ^f: '""*
loaud in a Recogtiizaiice to B. not to alien «Scc. but for Term ot his own f^'y "q" "'
file. It was held by Bromley, Portman, and Harris Serjeants, that A. Ab-.lity to
could not leafe tor 21 Yeais without Forfeiture notvvichlt-inding the'^o ''> t'i=
Statute; But if he leafed for 21 Years or three Lives, they chough c ^°'''''''°'^
that Remainder-man could not avoid the L cafe alter A's. Death wich-^,e^r"bv
out Iffue, nor the Donor neither, though in the Statute were nodifpenfed
Words of the Donor or Remainder-man. D. 4S. b Pafch. 33 H. 8. pi. ^i'h- Pei*
<.. E. of Bridgwater's Cafe. H°'t ^ h. J.
5 ^ 12 Mod.
ifip. Hill. 9 W. 5. cites S. C. in Cafe of Brevvfter v. Kidgell.
3. Covenant upon a Charter- Party for Freight zvas dated 10 of Februa-
ry, then comes an hSc ot Parliament, and fays that all French Goods im-
ported after the gth of March folloiving fijall be' Forfeited^ a;td prohibited the
importing:, And this Agreement was ior the Freight of the French
Goods, and this was pleaded in Bar, to which the Plaintiii" demurred
and the Court inclined for the Plaintiff, 7iot being a thing that was
malum in fe ; the Court feemed Ibongly for the Plaintiff; Sed quaere.
Skin. 161. pi. 9. Hill, 35 & 36 Car. 2.'B. R. Dean v. Tracy.
4. Covenant upon a Charter Party for the F'reight of a Ship, the De- See pi. ;.
fendant pleaded^ that the Ship was loaded '•jsith French Goods prohibited by which fcems
Z«w, to be imported, and upon a Demurrer the Plaintiff had J udg- ^° '^^ ^- *-"• ■
ment ; For the Court were all of Opinion that if the Thing to be
done was lawful at the tiine when the Defendant entred into the
Covenant, though it was afterwards prohibited by A9: of Pariiamenr,
yet the Covenant is binding. 3 Mod. 39. Hill. 35 Car. 2. B, R. Bra-
ibn V. Deane.
5. Where H. Covenants Mt to Bo an Aft or Thing which was law- 12 Mod.
ful to Do, and an AtJ oj Parliament cgmes alter and compels him to Do !i59. S. C
it, the Statute repeals the Covenant, i Salk. igS. Hili. o W 2 Sc^ P ^-^r
B. R. y y • :i- Holt Ch. |.
6. So if H. Covenants to Do a Thing which is lawful and an A^ f/the Opb'oi^
Pi«W;^;7/t'«; comes in and hinders him from Doing it, the Covenant is of the Court,
repeal'd. Ibid. " Comb.
7. But if a Man Covenants not to Do a Thing which then was un- ^\ \ ^
lawful and an y://? ccmes and makes k lawtui lo do it, luch Att ofHoltCh.J.
Pariiameac
/I'lO
Co\cnaot,
Parliament does mt Repeal the Covenant. Per Hole, i Salk. 198. pi.
Hill 9 W 3. B. R. Brewfterv. Kitchell.
8 Jiin it' a Man covenants ror/o a Thing which was fiot lawfal be-
fore ' and an A£l makes it la'wful, that A6t does not repeal the Covenant,
,2 Mod 169 Hill. 9 W. 3. qer Holt Ch. J. in delivering his Opinion
of the Court in the Cafe of Brewrter v. Kidgell.
(S) What is a Covenant ; And what a Conditional
Leafe &c.
t,-.*. -^ FACiF nf a Houfe for Life by Indenture, provided always,
;i :;i;-s"L thaticheLeSie within 6^ Years then next enfuing, dm
c"rc,fol,8.. ,heThis Executors and Affigns fliall have and en,oy the Land as m
i ^V^"' Reht of the Leffee until ?he 60 Years are expired i The Court
Beneii. op. l<;'g'" °' rZ this was not a Leafe but only a Covenant. Dy.
'^^L f;:^a'^ pi s" t'hh. r& 4 p. & M. Parker v. Gravenor.
it] that the ■' . Years was held by this Provifo ; becaufe nothmg cF
Opinion of the Cou.-t was that ™ ?-"£ 'r 'f^, ^is Life, in his Life as Remainder to him and
IJid Teim was given in bact to tin. i-eutc
liib Executors tor 60 Years.
2 LefTee covemrited that :tfrould he lawful for the Lefjjrto ciit the
2. i^ejiet coit cmenanted that ttjbonld L-e law riljor the Lef-
?it7l artw ;ZMZ,d the Ufec\o.e.a,ne4 that he ...Li
fee ^otaKeumuo^ , '^ , . p •/ (^judged a Covenant and not
Tc::^^^ S'lnrl^pp^rs c\b^e only -abridge the
GeneralitTo the Covenant, precedent to which u is adjoined Mo.
^07. pi! 987 cited per Cur', as Fafch. 16 Eli.. Hannington v. Hoi-
^""f Arbitrators award that A. Ihall have the Lands, peldi»s <^»\
3. Arbitrators awa^ .^ ^^^ ^ Condition ; tor a u mt
Z:ihJ^b^O:^"^^^'^^^^^f^^"^\ viz. the Arbitia.
kmttotKw J i^Eliz. B. R. Trefliamv. Robins
'"'• A \ecoLr made a Leafe for Tears, Provifo that ^f the Lfe dus
A* firZ his Exeat ors Ihall pay the Rent to him who fujjcr d the
t^Z:^^"i^^iSlt.^^^^. 707. pi. 9«7. cited per
5. A Kect^t /« ^ Covenant, ^i to ay, whereas it
«;^.^^m^ 'H^?n,entPrecedenr though it be relative to the tormer
payment of on but Covenant lies for not repairing ttie neage. ^ f
the Rent. ' p^jch. 34 Car. 2. Anon.
2 Bvownl. " 7 '
2T4. pe*-^, ^
Fleming Ch. J-
(T) That
Covenant. ^21
(T) That Vendor &c. has a lawful Eftate &c. not,
withitanding any Ad done. And Pleadino-s
^mj Adjudged that the Words (Nocwithltanding any Aft^ extendi ^ ^- ^- ''-
as well to the Time ot the Covenant made as to rh^ T L f ^^^^"^j greed by all
the Piaincitf.
the Lands &.C and ,n Covenant brought by the Lellee, the £r.^f/& i^'-« B"d-
A«^^^^^. that the Lejfor had not a lawful R.^ht and Ejlal t Zah af'^ ^'''^
Leafe audfo had broke his Covenant ^ and adiud-ed that the Cove •.^- '.''-
"^i n'rhe^SiT's V^ -"^^ Tu '' .^^^ned J G^nerd, and ^ 1 1" Jet olT
not m the Flaintnl s Notice who has the rightful Eftate, but ^he De P'- 19 S C.
Covenantor,
the Covenantee. -^ 2 Show. 45o. S C cited npt- Tn,' ,„^ am ^t. • i , and not of
and agreed for ,ood and found L.^. and S. P^h 'dTcSdinS' '^^itll " 'f ^^1,7^ f & ^'!°"^^'
B.R. Lancaflure v. Glover. S. C. cited Ibid. 475. Ar}. ^^' ^ ^ J^'^- ^•
3- A. and B. were Jointenants for Years of a Mill; A. affic^ns all hfs Yelv i-,c
Intereft to C. without the Alient of B. and dies. B.'after, b^ Inden! ^^'ad?'"
ure reates the Leafe, and that it came to him by Snrvroorp,p\ and .rants '^""^^'^ '"^^
the Refidueojtkelenn to J. S. and covenants that J. S. Ihali quSfy en f^r^'
joy notwithftanding any Aft done by him C eie^s T S «nH .if a "°'r ■
ed th.t the VVords]for'any Aft don^ by him) Sd nol^ qualify ^L'tl: TIT^. ^"^•
neral Covenant to J. S. Cited per Yelvercon j" Litt. R. xMich . Sr^r ^ ?• cited
B. as the Cafe of Johnfon v. Proftor. ^ * ^' P^^ Harvey
Sir Thomas Earsfield-scifc^'^'"
»«« tne Land was m3.rf, but not by a Title under I but L ^ fS/,'"-' ""
greement to extend againft all Incumhi-anrM „„>~»i r ^^ ■ was an A-
The affirmative Covenant is t^egat^veto^w^^^^^^^ '^""'<^."°' ^' ^^'^"'i"-^ ^dly,
the Vendor was nor to warrantl^ut Lainft hiS S d,e v'1 '"' °"^ '' ^^ <^-?^^'sly declared thl
without. 5dly, Qu^re, If this maf no Se mad:, nf^ o 'L f '' '°, ^r'^' becaule Security abfolu-c
havng all the Writing, and Purchale Deeds i^we^r. ? 1 u ^'""''^ ''-'Conveni.nce, if the Vendee.
Title to a Stranger b/'Col.a.on . ^S:^^;^^:^^:^^::,- l"^" {^SS '^" ^^ ^
5 P • (Uj Covenant
42 2
Covenant.
(U) Gorenant that he has Full Power &c. to
convey &c.
B. need not A Makes a Zfi^/e by Indenture to B./oc ti 2e^rj if C. fo long live.* i
sverthatC. J-^^ c. is dead at the Time 5 This Leafe is abfolute. A. covenants
the^Com-" by this Indenture with B. that A. has full Power to demife this Land
mencement to B. as aforefaid. In covenant brought by B, againft A. upon this, he
of the Leafe, fjced not pew how A. had not full Pffiver ; it is futHcient tor him to declare
T-^' ^'1 h g^»<^'^<^lb that A, had not full Power; for what Power he had lies in the
Aaion ^ ^ Knowledge of the Covenantor, and not in Knowledge of the Cove-
brought, nor nantee. Jenk. 305. pi. 79.
ihew who
had the Right 9 Rep. So, K 61. Trih. 10. Jac. adjudged inljB. R. and that Judgment in Cam. Scacc,
Bi-adfliaw's Cafe. Cio. J. 304. pi. 6. Salmon v. Bi'adfliawj S; C. adjudged in B. R. and in Cahi.
Scacc. accordingly.
2. If one enters into Ai-ticlcs to fell Land, and he had not any good
Title at the Time, }et it is fufficicnt if Vendor has a good Title at the
'Time of the Decree^ the Dire£lion of the Court being in ail luch Caies
to inquire whether the Seller can^ but not whether he could make a Ti-
tle at theTime of the executing the Agreement j Per the Mafter of the
Rolls, zWms Rep. 630. Trin. 1731. Langford v. Pitt.
3. A. articled to fell to B. but neither at the Time of the Articles^
tior at the Time of a Decree pronounced thereupon, could make any Title^ the
Reverfion in Fee being in the Crown, and yet the Court indulged hini
with Time more than once for getting in this Title from the Crown, which
could not be effc£Ved witliout an Aft of Parliament to be obtained in
the following Seffions ; However, it was at length procured, and B.
decreed to be the Purchafor, Cited by the Mailer of the Rolls.
2 W^ms Rep. 630. to have been the Cafe of Lord Sturton v« Sir Tho,
Meers.
(W) To convey at the Cofts of &c. as Vendee or his
Counfel Ihould advife.
t. rr^HE Plaintiff covenanted to make an Afliirance b}^ a Day of
X Lands, as the Counfel of the Defendant ftiali advile ^ and on
perfecting thereof the Defendant is to pay 300 A and 300/. more, generally
within 3 Months when demanded. Breach was ajpgned in Non-payment
of the whole. The Defendant pleads the Plaintiff had no EJiate which
he could convey, to which the Plaintift' demurred, in regard this Pay-
ment is collateral, and the latter is general, without Reference to the '
td the former ^ But per Cur. the firll depending on the Alfurance, the
latter mult be lo that is fuWequent j So if no yiffurance, nor Thing is to
he paid, and fo the Plea of the Defendant is good, although the Plain-
tifl avers he was always ready to perfe£t it, and that the Defendant
never tendered, nor has paid &c. prgeter Twifden, who conceived it is
Sit
Covenant. 423
ac the Defendant's Peril to caufe an Aflurance, and if the Plaintiff re-
fufes for to convey by Fine &c. then he is liable, elfenot; But per
Cur. this is good in Action by the t)eiendant for Non-aflurance, but
here the Aftion is for the Moneys and fo the Defendant hath Eleftion
to plead, as hercj or that he tendered fpecial Conveyance by Advice,
and the Plaintiff refufed ; Judgment for the Delendant nili. Keb. 734,
735, pi. 15. Trin. 16. Car. 2. B. R. Audley v. Berry.
2. There is a manifell Difference between a Covenant to make a. Con-
veyance at Charge of Covenantee^ and a Covenant to convey to Covenantee,
and he covenants tu be at the Charge of it ; For in the firft Cafe, Cove-
nantor is not obliged to perform till Tender of the Charges ; but in
the fecond he is to convey at his Peril ; and if Covenantee will noc
pay, he has his Remedy againft him upon his Covenant, but where
Covenant is to make Conveyance at Charge of Covenantee, Covenantor
ought to give Notice to Covenantee zvhat Sort of Conveyance he intends to
make, that Covenantee may judge what Charge to tender i Per Holt
Ch, J. 12 Mod. 400. Pafch. 12 VV". 3. Steer v. Shalecroft.
(X) To convey. Notice ; In what Cafes to be
given.
i. TF covenant be to make ^ Feoffment ^c. before fach a Day , Cove-
X nantor ought to give Ndtice when he will make it, that Cove-
hantee may be there to receive itj otherwife if it be to make a Feoff-
ment on a Day certain j but in that Cale, Covenantor muft plead a Ten-
der on the lalt convenient Time of that Day ; Per Holt Ch. J. xz Mod.
401. Pafch. 12 W. 3. in Cafe of Steer v. Shalecroft.
2. li A. covenants "juiih B. to make further Jfftirance to B. at the Cofis of
B. A. ought to give Notice to B. what fort of jiffurance he will f?iake, and
then B. ought to tender the Cojis, and then A. ought to make the AJfurance ^
But it the Covenant isj that A. Ihall make ct, new Demife to B. at the Cojis
of B. (as the Covenant, upon which this Aftion was brought, was) or
any particular Afjurance fpecijied in the Covenant, then B. ought firft to
tender the Cofls, and then A, ought to make the Affurance i For in the
former Cafe B. cannot know what Cofts will be fufficient to tender, be-
fore he knows what fort of Aflurahce A. will make 3 but in the latter
Cafe, by the Infpeftion of the Covenant itfelf, he will know what fore
of Aifurance will be made. Ruled by Holt Ch. J. upon Evidence ac
the Trial, at Lent AlTifes, at Southwark. z La. Raym. Rep. 750.
March 27. i Ann. 1702. Heron v. Treyrie.
(Y) That he is feifed in Fee SCc. And Pleadings.
1. A Covenants that he feifed of Black Acre in Fee-flmple, where
_/^« in Truth it was Copyhold in Fee according to the Cultom j
Per Cur. it is no Breach of Covenant, and the Jury fhall give Damages
in their Confciences according to the Rate that the Country values
Fee-fimple Land more than Copyhold. Noy. 142. Grey v. Brifcoe.
2. Leafe
424
Covenant.
2. Leafe of a iMelfuage Jor lean, ia which the Lejfor covenanted, that
he was laivjiilly feijsd m Fee; Leilee brought Covenant, and affigiied for
Breach^ that the Lejjor was trnt feifcd in Fee, and had a Verdi6t. It was
moved in arreit of Judgment, that the Breach was too general, becaule
he did not Ihew that any other Perfon was feifed in Fee, nor any Cauie ■
why the Lellbr was not feifed i Sed non allocatur : For as the Covenant
ti general^ fo the Breach may be ctjigned generaUy., efpecially iince in this
Caie where the Defendant by pleading Non eft faclum has m.ide the
Declaration good, and fo allows the Breach if ic had been his Deed ;
And Judgment for the Plaintiff. Cro. J. 369. pi. 3. Pafch. 13 Jac. B. R..
^ , g , Mufcot V. Ballet.
"V GUniiton 3- l^ebt upon a Bond conditioned to perforrn CovenantSj one whereof
v.'Audley, was, tliat the Defendant was feifed of an indefeafible Eltate in Fee-fini-
SC. adjor- pie. The Defendant pleaded Performance. Th^ ?ii\.ni\S replied, that
tiatur. ^^ was not feifed of an indefeafible Ejiate in Fee-Jimple ; The Defendant
demurred generally, becaule he fuppofed the Plainti^' ought tojbew of
what EJiate the Defendant was feifed, becaufe he had parted with all his
Writings to the Plaintiff, who mult therefore well knov/ the Title,
and it is not like QStaUfijntU'^ Caftj becaufe there the Covenant was
with the Leiiee lor Years, who had not the Writings, but adjudged
that the Breach was well alfigned according to the Words of the Cove-
riant, Raym. 14. Pafch. 13 Car. 2. B. R. Gliniller v. .Dudley.
I
(Z) For cplet Enjoyment. And Pleadings.
I. ^Ovc
lOvenant was brought ly the Leffee againfi the Leffor, becaufe the
.,1 Lefor after the Leafe made a Feojfnientto one who oil fled the Leffee,
and it was awarded that it lies well; (^uod Nota ; and yet the Lelfee
vmht have bad Re-entry, or have had ^iiare ejecit infra Terminum by
the Statute and yet this does not toil tne A£tion of Covenant which is
given by the Common Law, notwithftandmg that Quare ejecit inlra
Terminum is given by the Statute i but Brooke makes a J^ihtre, if he
cannot recover againjl the Lefforby the one Writ, and agamfl the Feojfee by
the other Writ ; for he may recover by two Quare Impedits ot one A-
voidance. Br. Covenant,' pi. 7. cites 46 E. 3. 4.
2. Covenant that Leffor might he 4 Days a Tsar in the Houfe without
being put out, on Pain of loo 1. The Lelfor came to enter, and Lejfee
Ihutthe Doors and the Windows. This was held to be no Breach ot Co-
venant withoutfaying that the Leffee put him out ; Arg. Godb. 75.
cites 3 H. 48. Br. Condition, iS- „. ^ , n „ ,
3. Ifa Termor be o/</?fi^^j' him who has no Rtgiot, he Ihail not have
Covenant againft the Leffor, for ht may have Kjeifione Firma ; but if
he be oufted by him who has Right, there lies Writ of Covenant. Br.
Covenant, pi. 20. cites 22 H. 6.52. , . . „, ^ , ^.^
4. If Dtfeifor leafes the Land by Deed with Warranty^ and the Dtf-
feifee re-enters, Writ of Covenant lies; Contra if a Stranger enters. Br.
Covenant, pi 40. cites 26 H. 6. -^ r r , ,
5. In Debt, if the Defendant pleads Condition or Defealance, that be
and his Feoffees permit N. N. Plaintiff' to enjoy two Hotifs in D. for 20
Tears that then &c. It fuffices to fay that he and his Feoffees fuffer'd htm
to enjoy them &c. without /hewing 'the Names of the Feoffees, becaufe Suf.
ferance is no Aft; But il i: was that he and his Feoffees ftialJ mnkc E-
ftate.
Covenant 425
ft;ite, there ic is Contra; For rhis is an Acl; Noce Cihe Diverlicy i Pec
Cur. Br. Conditions, pi. 157. cites 17 E. 4. 2.
6. Bond was continued to furrender certain Copyholds, and to fuffer
him and his Heirs quietly to enjoy the lame without Interruption of
any; the Defendant pleaded Perjormaiice^ and that the Plaintiff' continued
peaceably in P off effion^ lor a certain Time, according to the Condition ;
Out that aftenvards the Rent b^ng anear^ the Lord entred fm- a Forfeiture
according to the Cuftcm. This was held a good Ple:i, fb it he was Te-
nant at Common Law, and the Obligee ceaied, the Obligation is faved i
becaufe it was the A61 of the PlaintitFhimfelL Dyer 30. a. pi. 205.
28 H. 8. Anon.
7. In Debt upon Bond ; the Condition was, that whereas W. the
Obligor had fold a certain Meadow tc G. the Obligee, that he -would
warrant the fame againfi the King^ Lord^ and all others ^ and that he ffjottld
enjoy the fame licaceahly to him and his Heirs to hold of the Lord ot'VV^.
by the Services thereof, according totheCultom of the Manor. The De-
{ta&dm pleaded ^t hat the Meadow was Copyhold^ Parcel of the Manor of B. the
Cultom whereof was, that it the Rent be in arrear&c. the Lord might enter
foraForJtiturc,aud that G. was admitted to him and his Heirs, and had
peaceably enjoy 'd the Lands, and died feifed, and that the fame defcended
to his Son who did not pay the Rent, and thereupon the Lord entred for
a Forfeiture ; and upon a Demurrer to this Plea all the Juftices agreed,
that when a Man binds himfelt and his Heirs to Warranty, they are
not bound to warrant new Titles of Aflions accrued by the Feoifee, or
any other alter the Warranty made, but only againit fuch Titles as
■were then in Elle at the Time of the VVarranty, and therefore, becaufe
the Title to enter, given to the Lord by the Cullom for Non-payment
of Rent, accrued alter the Warranty, the Defendant was not bound to
warrant againft it. Dy.42. Mich. 30 H. Greenliif's Cafe.
8. Bond lor quiet Enjoyment, as that Leliee lliail take, reap, and carry
away his Corn peaceably, without Interruption; Lelfor coming on the
Land in Harvelt when Leflee is reaping, and faying that hejhallnot
reap any Corn there, though he reaps and carries away, yet it is a For-
feiture. Godb. 22. pi. 30. Hill. 26 Eliz. C. K. Anon.
9. Leale lor 6 Years with a Covenant that Leflee Hiould enjoy it quiet-
ly during the 'Term difcharged of '■Tithes, and that if Tithes Ihould be re-
covered, he Ihould recoupe in his Hands the Value of the Tithes io
recovered. Covenant lies again ft Lelfor li LcJJee is u fed for the Tithes
after the Leafe ended, tor that is within the Litent of the Covenant ; Per
tot. Cur. Cro. E. 916. pi. 7. Hill. 45 Eliz. B. R. Lanning v.
Lovering.
10. In Debt on Bond to perforin Covenants ; the Covenant was for
quiet Enjoyment, without Let, Trouble, Interruption, &c. The
Plaintiff alfigned the Breach, that the Defendant forbad the Tenant to pay
Rent to the Plaintiff'. The Court held this to be no Breach, unlefs there
were fome other Aft ; And the Defendant pleaded, that after the
Time thePlaintiif faid, that the Defendant forbad the Tenant to pay the
Rent, the Tenant paid it to the Plaintiff. Brownl. 81. Trin. 9 Jac.
Whitchcot v. Lindfey.
n. Debt upon OW/_jrt?/o« upon a Condition, that where the Plaintifi'
had a Leafe ] or 7''ears Irom the Leflbr of certain Land, that the Leflee
Ihould enjoy this Land during this L.eafe without Lscidion ; the Breach
was alltged in the Replication, in a Recovery of this Land by A by Ver^
diti, and upon a good Title ; the IJue was, that the Recovery was by Co-
vin ; and it was found tor the Plaintiff; he had judgment, which was
reverfed in the Exchequer-Chamber ; For A. might recover this Land by
Verdict, and without Covin, under aTitle derived fromthe Plauitij} him-
flf; there-lore the Plaintiff o/^_o/:-r to /hew that A. had an eldtr Title to the
fiid Leak nude to the Plaintiit'. Jenk. 340. pi. 45.
5 Q 12. In
426
Covenant.
12. In Actions on Breach of Promile or (Jovenanc lor Enjuynient <"<<c.
ao-ainll Incumbrances, the Plaintiff ought x.ojhi.'-j!} a lawful lncitmi/ra,uc.
Cro. J. 425. Pafch. 15 Jac. B. R. Broking v. Cham.
13. Ihe Lelibr made a Lcafe lor Vears, and covenanted that tieitber he
vcr his b.xecutors^ or Heirs, jhotild intermit the Lejfe.y but that he /hould
■quietly, enjoy daring the Term. In an Aftion ol" Covenant brought tor the
JM-cry ol the Executors, it was adjudged that the Plaintiff' need notjhrjj
that the Executors cntredhy an elder and good Title, Tor HSto the Plain-
till' it is all one, whether the Action is brought againlt the Co\enantor
or his Executors, but ijthe Entry had teen by a Stranger, then he mujl fet
Jorth an Entry by an elder and good Title. 2 Roll Rep^ 21. Palch. 16 Jac.
B. R. Forte v. Vines.
14. G. L. brought an A£lion of Covenant againft N. M. and declared
that C C. had granted the next Avoidance of the Church of D. to T M.
iind that A''. Al. --joas his Executor, and that N. iM ajjlgncd this to G.
L. his Exectttors, and Jffigns, to prefent to the fame (Ihurch zvhen that
Jhall become void.^ and co'venanted that the fame Perfon, "-jjho fhall be fo f re-
lented by hini, jhall have and enjoy that without the Let cr Dijiurbance of
the f aid C. C or N'. A<f. or any of then/, or any by their Procurement \ and
after G. L. frefented f. S. and alter J. tf. prej'enie.i another, claiming the
/ir/i and next Avoidance by the Procurement of C C. and ruled ch.it De-
claration was not good j tor it ought to fay that C. C. granted to 7. /K the
next Avoidance, and procured him to dijlurb, and that by h;s Procurement
he -was dtfturbed; Athowfiiid, it feemsto me to be but littleDitieience to
iay ht dilieiled me by the Procurement of J. S. and he commanded (. S.
todilieiie me, and he did that accordingly at his Commaiid. Win. 4.
Pafch. 19 Jac. Lewings v. March.
15. Leale tor Life by A. to B. A. covenants for him and his Heirs,
that he would lave B. harmlefs from any claiming by, from, or under
him. A. died. A's IVtje brought Dower, and recovered. B brought an
Atfion of Covenant agamft the Heir ; Adjudged againft the Heir, be-
caufe the Wife claimed under her Husband who was the Leflor; but if
the Woman had been Mother of A. the AEt'ion would not have lain againll
the" Heir, becaufe Ihe did not claim by, from, or under A. Godb.
333. Triu.2i Jac. and fays it was lb adjudged 11 H. 7. 7.6.
16. in an Afition of Covenant to pertorm Articles, which were, that
the Piamtilf Ihould hold and enjoyLands tree from all Titles and Incum-
brances, and lor Breach the Plaintiff Jhezveth that B. dtedfeifed, and that
his Wije had Title to Dcwer, to which the Plaintiff demurred ; and per
Cur. this Covenant goes to the Land, and there can be no Difference
between a Covenant to difcharge the Land of all Titles, and that the
Defendant fliali hold the Land lb dilcharged ; Judgment tbr the Plain-
tiff Nili. Keb. 937. pi. 53. Trin, 17 Car. 2. B. R. Andrews v. Tan-
ner.
cited S. i^. If a Man fells Land with a Covenant tor quiet Enjoyment without
^^'*^ ^y- any Diflurbancc &c. thefe Words mull be intended a lawlul Dif-
^ijf~the' turbance. Vaugh. 119. 122, Palch. 21 Car. 2.C. B.in Cale ot'Haycs v.
Lejfor is /jjm- BickerltalL
felt the Dif- 18. But per Vaughan. If the Covenant be exprefs that he fhall enjoy
t:irber the j^jg Term without the Interruption of any, whether fuch Interruption" be
r^ot"conilder l^'M'*^ "'' t'J'''t>o"^i there the Lelfor Ihail be charg'd for the tortious
riie Word Entry ot a Stranger, becaufe the Covenant can have no other Mean-
Lawful, nor ing. Ibid. 119. •
diiverhe
Leffet' to bring a-i Aftion of Trefpats, but he may maintain hi>; Action of Coverant. 2 .Show.
42.-. Pa'ch. I Jac 2 B. R. dofs v. Young —Where the Wordi of Covenant were, that he Oiould
quietly enjoy two Ciofcs ailiiiffl all claiming or freterJing to cl.iim .u/v Right in them. This exrendj 10
ail Inicn-uptions whufocver. 10 Myd ^S^ Hill, 5 Geo : B. R Chuplain v Soutliipte.
19. The
Covenant.
427
19. The Defendant covenanted ^/&rff ?/;?? Plaint ijf pou Id enjoy Black-
j/icre withoiit any lawful Let, Suit or luterr/fptioft, immedtately after the
Death of Z. and the Platntijf Jhcws in his Declaration that the Lands
were part of the Dutchy of Conrjuall and did belong to the King i and that
he by his Letters Patents had conveyed them to J. S. &c. The Defendant
demurred becaufe the Plaintiff did not allege an Entry, and io could not be
dilturbed. Per, Cur. the Declaration is good enough, for having fet
forth a Title in the Patentee of the King, the Phiintirt'lliall not be en-
forced to enter, and I'ubjecl himfelf to aa Aftion by a tortious A£t.
Judgment for the Plaintirf. Freem. Rep. 123. pi. 143. Trin. 1673.
Cloake v. Hooper.
20. The Delendant leafed Lands to the PlaintiiF, and promifcd that
he fhould enjoy it quietly, -wtthout Interruption of any Perfon ; and the
Plaintiff Iheiius an Interruption, but doth notfhew any Title tn the Interr tip-
tor, nor any lawful Interruption. The Court gave Judgment for the
Plaintiff, upon the Authority of Dyer 328. and Hob. 35, And Wyld
laid, that where in a Deed a Man covenants, that he hath a good Right
to Convey, Sc. and that the Party fhall quietly enjoy, one Covenant goes to
the Title, and the other to the Pojfcf/ion. Freem. Rep, 4J0. pi. 612.
Pafch. 1677. Anon.
21. In Covenant the Plaintiff' declar'd on a Demife of a Mffuage to
the Defendant together with a Garden, and. an Ploufe of Office at the
tipper end thereof, and covenanted for Enjryment of the Premiffes fo demifed,
and affigns a Breach, that the Defendant had built a Houfc on part of the
Garden, whereby the Plaintiff could not have the Ufe of the Garden, ac-
cording to the Form and Effetf of the Deviife •■, the Defendant pleaded,
that notwithllanding the faid Building, the Plaintiff might have the
Ufe of the Garden according to the true Intent of the faid Demile, and
traverfed, that the Building did hinder the Plaintiff from the Ufe there-
of, according to the true Intent of the faid Indenture j and upon Demur-
rer it was adjudged, that the Ufe of the Garden is the Ufe of the
whole Garden, and not a Palfige only to the Houfe of Office ; and the
Travcrfe is of more than alleged in the Breach Secundum veram Inten-
tionem of the faid Indenture, and the Court cannot underftand the
true Meaning of the Indenture but only by tiie Words in it i and
Judgment for the Plaintiff, 3 Lev. 167. Trin. 36 Car. 2, C. B.
Kidder v. Weft.
22. A Suit tn Chancery for Wafie tho' groundlefs, is no Interruption
or Diflurbance within the Covenant for quiet Enjoyment -^loithotit any
vianncr of Interruption, it not touching the Leliee's Eftate or Title.
2 Vent. 214. Mich. 2W&M. in C. B. Morgan v. Hunt.
23 All which iaid Profits, Salaries, Pen/sons ^c. of the faid Office I do 2. Vent ^9.
hereby engage my felf, that the laid A.Jhall receive and enjoy daring his Life, S. C. in C
and that 1 will not receive any Part thereof during yi's Life. This was a ^■ — ^'^^od.
Covenant from one that was admitted to an Office to him that refign'd'*^- •" "■^•
the fame. The Court of Common Pleas were of Opinion that this
Agreement did not bind the Covenantor to pay the Money. Bnc Hole
Ch. J. and Eyre doubted of that Matter ; But all agreed that A. mull
Ihewfor Breach that he could not receive any of the Money. Carth.
189. Mich. 3 W. & M. in B. R. Killigrew v. Sayer.
24. Covenant in an alfignment of a Leale, that the yff/tgnee fjouldSikXm.r!,^';.
quietly Enjoy Sc free and clear of and ^r&m all Arrears of Rent; thep' 3"-S. C.
J^reach alligned was, thd-t tht Rent was arrear, and not paid i the De- j''gJ|^^^c'-"°'''^-
I'endant pleaded that he left fo muck Money in the Hands of the Plaint if, , galk. 195.
ea Intent tone to pay it over to the Leffor in difcharge of what Rent was then pi. 2. S, C.
arrear &i.c. And upon a Demurrer this Plea was held good nctwith- the Court
Handing the Objefclion, that the Intention was pur in If] ue ; lor if i'^!",e'p)g'^'^"
been Ad Iblvendum, it would have been good, and ia this Cafe the '^.^gj gygj^
Plain titf
428'
Covenant
but held Plaintift'might have replied, Non reliquit &c. in manibus fuis ad iol-
clc.Hy tl.at yenf^' ^.j;, . ,viod. 249. Mich. J W. iii M in £. R. Griffith v. Har-
if It had •/- ' '
K-tn reliquit I""'-''^-
ad tolven-
duni it had been good, and that Non reliquit Mode & Forma had been a good Traverfe.
25. Vendor covenanted that Vendee fhould enjoy, quietly and clearly
acquitted oj and from all Grants kUc. Rents, Rent-charges ^c. whatfii-
ever. An annual Rent of lis. 6 d. was payable thereout to the Lord
ot the Manor, as a quit Rent incident to the Tenure of the Lands fold.
This, tho' there were no Arrears due of the faid Quit Rents, was held
per tot. Cur. clearly a Breach of Covenant, and Judgment accordin<T-
ly. Comyns's Rep. 180. Trin. 8 Ann. Hammond v. Hill.
10 Mod. 26. A Covenant to enjoy without Dtjiurbance generally fliall be con-
585. Hill, flrued a Difnirbance by legal Title, but where a Aian co'venants exprefsly
B R Chap- ^gc-lnfl thoje who claim or pretmd to have a Right, the Breach is well
lain V. South- alfigned tho' the Dillurber has no legal Right. Comyns's Rep. 23c.
gate. S. C. pi. 127. Mich. 2 Geo. C. B. Southgate v. Chaplin.
accordingly,
and the Court (aid, that fo was the plain' Intent and Meaning of the Parties; For if it was to extend
to legal Claims only, then the Tenant would be pur under the Hardfhip of trying the Ri<;ht for
the Landlord ; which was the very Thing the Tenant plainly defign'd to prevent by this Covenant.
27. A. Covenants that B. fhall quietly enjoy, and that he will not
do any Thing to molcfl, hinder &:c. Setting up a Gate crofs a Lane, through
which there zvas a Way to the Land, is -a Breach ; Adjudg'd in C. B.
and affirm'd in B. R. It was urged for the Pkintitf in Error, that
nothing appear'd in the Replication to fliew that the ferting up the
Gate was unlawful ; for there may be another Way which might maka
it nece/Tary and lawful to fet up a Gate. But per Cur. this appearing
to be a necejjary Way for the Enjoyment of the Clofe it is not material
to B. whether it is fet up by Right or Wrong. For in either Cafe, if
it is 2.n Objiruiiion, it ought not to be erefted there. 8 Mod. 318.
Mich. II Geo. Andrews v. Paradife.
(A. a) That it is clear of, and difcharged of Incum-
brances, and Ihall be faved Harmlefs.
I. T F a Man be bound to make a Feoffment oj certain Land difcharg'd,
\_ and after makes the Feoffment, and Seigniory is ijftimg out ot it,
yet the Bond is not forfeited i For this is a Thing of common Right.
Br. Conditions, pi. 126. cites 3 H. 7. 14.
2. The Earl ot H. covenanted with the Lord C. to make him a
good fure fufficient and lawful Eftate in Fee-limple of the Manor of
D. belbre Ealler, dtfcharged of all former Incumbrances except Leafes ^
where upon the ancient Rent, or more is referred; after, and before the
Feoffment he made a new Leafe rendring the ancient Rent. By the Opi-
nion ot 4 contra 2. is no Breach. Dy. 139- pi- 34. Hill. 4 P. & M.
Huntington v. Clinton.
3. A. bargained and fold Land, and covenanted that it fliould be
dilcharged ot all Charges. He had granted a Rent before to begin 20
Tears ajter; when the Rent begins it lliall be laid a Breach. Arg.
Goldsb. 59. cites it as adjudged in 8 Eliz,.
4 A Man levies a Fine ot cert-ain Land, and after covenants that the
Land is dilcharg'd of all Ails and Incumbrances done by hiin, and in
Trutii
Covenant. 429
Truth the Pcft-Fittc was not paid. Per Dier ic is clear thaL the Cove-
rant is broken ^ For ail the Lands of" him that levies the Fine are
charieable for the Poft-Fine, and efpecially this Land of which the
Fine was levy'd. Dal. 78. pi. 1 1. 14 Eliz.
5. Covenant &c. upon an Indenture reciting a Leafs made ly D. B.
cf a Mejfiiage, i^c in -sjloich Indenture the Defendant covenanted^ that
the Original Leafe was good and not incmnbred ; then he alFigned the
Breach^ that A. and B. clainid a Ink under the Defendant to part cf
Fremifes, by Virtue of a Leafe which he made to them ^ the Defendanc
pleaded as to Parcel, that A. and B. had /:o 'title under him^ and as to the
Reftdue^ that the Plaintiff' had Notice of the Leafe before the Defendant
(ijjigncd the Original Leafe to the Plaintiff, and that after the Death of
A. the other tenant B. attorned tenant to the Plaintiffs upon Demurrer to
this Plea the Plaintiff had Judgment. i Lucw. 317. Levett v.
Witheringcon.
(B. a) That the Lands are or fhall be of fuch a Va-
lue. Extent thereof.
!• A Covenant that Lands limited in Joint tire with fever al Limitations
Jf\ over, iliull continue tor ever of the Annual Value of 200 1.
■extends to all the Limitations as well as to the Jointure EJiale. Lord
Raym. Rep 365. Mich. 10 \Y. 3, Anon.
2. JfH. Limits an EJiate to A. for Life Remainder to B. for Life,
Remainder to the iji. 2d. Sc. Son of their 2 Bodies, Remainder to his
own Right Heirs, with fuch a Covenant annexed to it, that the Lands
fhould be and for ever continue of the Value of 200 I. a Year, it will
extend to the Ejlates for Lif, and the EJlates tail ; hut if for Default of
Iffue of the Bodies of A. and B the Rever/wn defcends to the collateral or
lineal Heir of H. hejhall never take advantage of it, becaufe he is not
privy to the confderation of the Deed nor party to the Deed, nor is his
Efiate raifed by the Deed. But ifia fuch Cak the Remainder had been
limited to the right Heirs of A. or B. or of J. S. they might fue upon this
Covenant becaufe they had taken by the Limitation of the Deed, and
are privy to it. Per Holt Ch. J. Lord Raym. Rep. 366. Mich. 10
V\^. 3 . Anon.
(C. a) Where it reftralns the Generality of the Grant
&c. the Covenant being particular, and referring
to Words, VIZ. until &c. Ihewino; the Intent. .
L the Condition ot the Obligation had been to make him a fare Ef-
tate i the Obi iger is to do it at his Peril. If it be to make a fure U-
~Wv ^V''"?i^'<?'\''''^"pf«y^'^y'^'^^^^^<^, the Obligee ought to cer-
<^ii^ what Mate he ssxW have, and if it be not fure, yet t1:e Obliga-
S R j;iQU
/^^o Covenants.
tion is not forfeited ; for it is left to the Judgment of the Obligee and
his Counfel to advile a fure Eltate. Jenlc. 128. pi. 60. cites 7 £.
Cro. E. 6"]^. 2. In a Leafc by De?!iife, Grant i3c. there yjas a Covenant fur LeJ/le's
h Id b ^ ' -^'I'^t Enjoyment without Evt^ion by LeJJur or any claiming under him ;
Popham ; ^^ '^'^^ ^^^'^ ^Y Popham Ch J. and the whole Court, that the faid Es-
but Judf,'- prefs Covenant qualijies the Generality of the Covenant in Law^ and re-
ment was drains it by the mutual Confent of both Parties that it fhall not ex-
S'^'p". °"j^^ tend further than the Exprefs Covenant ; For Claiifula Generalis non re-
'''jertur ad exprcffa. 4 Rep. 80. a. Trin. 41 Eliz,. Nokes's Cafe, alias,
Nokes V. James.
Cro. E. S09. J. A. and B Jointenants for Tears of a Mill ; A. grants his Moiety tn
^d' '^ ? r"* ^: ^' ^^'^ ^"^ '•> ^- not knowing of the Grant by A. and lb chinking
^ ^°""cro. himfelf intitled to the whole as Survivor ^m»?.f ?^e yJc////, Lands &c.
J. 259. pi. and all his Eltate, Title &c, in it to J. N. ^nA covenants that J. N.
_2.S.C. ad- pall enjoy for any Aif by him Sn:. J. S. evifted J.N. of a Moiety ; ad-
jornatur judg'd and affirmed in Error that Covenant lies. For this Cafe is
2. S C ad- "o*^ ^''^^ •^o Nokes's Cafe 4 Rep. 80. b. For there the Grant was once
judged in good j or the whole and became ill by Evittion afterwards, and therefore
C. B. and the Covenant enfuing qualified the General Coven.inc. Buc here the
}^?.^^"^} Grant according to the Purport oi it never was good ; For B. had no
B. R by 4 Power to grant the Moiety of A. that being granted away by A, to
Judges a. J. S. and yet in B's. grant to J.N. he has expielsly granted the Mill, and
gainil one. Land &c. fo that the Grant being Dejeifive at firjt as to a Adoiety,
"~^ p'°^^"'- which is the Subftance and Agreement of the Parties, this does not
^'johnfon" qualify the General Covenant. Per tot. Cur. Yelv. 175. Pafch 5 Jac.
s!c. ad'udg-B. R, Johnfon v. Proftor.
cd Nifi &c.
and nothing was faid. S. C, cited by Yelvenon J. as a Cafe in which he was of Counfel.
LJtt. Rep. J05, Z06. Mich. 4 Car. S. C cited Aig. 2 Show. 430.
4. Tenant in Fee-fimple grants 100 Trees to B. and covenants that
B. may take them within 5 Tears ; the Grant implies an abfolute Li-
berty to B. to take ; but it the Covenant were on the Part of B. not to
take after the 5 Years it would not extinguiih his property, nor confe-
quencly his Power to take them after the 5 Years, and therefore if he
took them he might plead Not-Gailty in Trefpafs but Ihould be an-
fwerable to an Aftion of Covenant tor it ; Per Hobert Ch. J. Hob.
173. Hill. 12 Jac. in Cafe of Stukely V. Butler.
5. Condition was that ;/ A. pall truly exercife his Office of ^c. and
alfo (hall Quarterly make his Account of all Monies by him received for
Cufioms^ and Pay all Monies -by him receiv'd^ and do Account at fuch
Times as he pall be thereunto reafonably required that then <&c. the
Cla.uk o{ reafonably Required goes only to the Payment of the Money
being the lalt Antecedent, and alfo the Account is limited to be made
Quarterly and exprefs'd by Words, and therefore the Words can'c
extend to it. Litt. R. loi. Trin. 4 Car. in Scacc. The King v.
Points.
6. In Covenant the Plaintiff declared, that the Defendant fold Lands
to him which he had Purchafed of one IVoolaPon, a Trujhe for the Sale
of Delinquents EJlates^ and covenanted^ that he was feij'ed oj a good E.fiate
in fee according to the Indenture made to him by Woollafione and affigned
the Breach, that he was not feifed of a good Eftate in Fee; the De-
iendant pleaded, that he was feifed of as good an Ellate as \Voolafton
&c. conveyed to him ; The Plaintiff Demurred and hud Judgment ; for
the Covenant was abfolute that he was feifed of a good Eflaie in Fee,
and the Reference to the Conveyance by Wcolalton ferses only to the
Limitation
Covenants. 431
Limitation and Quantity of the Eftate, and not the Defealiblenefs or
Indetealiblencfs oi" the Title. Lev. 40. Triu. 1 3 Car. 2. B. K. Cook
V. Founds.
7." The Defendant granted a Fee -Farm Rent to the Plaintiff'^
and covenanted that he was feifed in Fee, and had good right to fell }
and in an Action of Covenant the Flainiiif alfigns the Breach^ that the
Defendant had no good right to Sell ^ he having Piirchafed it of the late
^niftees for the Sale of the King's Lands ^ pleaded that it was farther agreed
in the Indenture^ that all the Covenants therein fhoiild not extend farther
than to Ads done by the Vendor and his Heirs ; whereupon the Plaintiff
Demurred and though it was placed at the end of the Indenture far dif-
tantjrom the other Covenants it was adjiidgi d, that this had qualified the
Jirfi Covenant, and rejirained it to Atis done by the Covenantor, Lev. 57.
fiili. 13 & 14 Car. 2. in B. R. Brown v. Brown.
8. Leffor of certain Gravel-pits in Black- Acre covenanted that he hisKeh. ')'!<;.
Heirs, AJ/igns or Undertenants would not dig or fell any Gravel there. Inpl"-S-G.
Covenant brought by the Lellee he alfign'd the Breach, that ff. S. an '^djornataf.
Undertenant dug and fold Gravel in other Pits in Black- Acre. It was ob-
jefted that Covenant extended only to the Pits demiledj but the Court
held that it ought to be intended of other Pits in the Clofe and not of
thof^ demifed to the Plaintiff", and Judgment for the Plaintiff. Lev.
144. Mich. 16 Car. 2. B. R. Burman v. Alton.
9. A pnor Covenant floall not be retrained by afubfequent one when
they make but one intire Sentence, and not dilUnct Covenants, in which
Cafe the Conllruclion mult be upon the whole Sentence. Saund. 58.
Pafch. 19 Car. 2. Gainslord v. Griffith.
10. So where there are reflriBive Words at the end of the laji Sentence,
and may be indifferently applied to both the Precedent Sentences. Ibid.
1 1. And a general Covenant in Law may be reflramed by a Particular
Covenant in Fail. Ibid.
12. Again if a rejiriifive claafe be in thejirjl nr the lafi Part of a Sen-
tence, or a: the beginning of the firit or at the laffc Sentence, which
in good fenfe may be applied either to the one or the other, there it
Ihall extend to both Sentences. Ibid.
1 3. But if fuch a Sentence be placed in the Middle of one or both Sen-
tences, Contra. Saand. 60. Palch. 19 Car. 2. Gainsford v, Grif-
fith.
14. In the Condition of a Bond to perform InJiruBions in a Paper an- 5 Keb 45.
fjcx'd Sec. reciting, that whereas Lord A. had deputed J. Deputy Poff-'?^- f^-^- '"•
Mafter of the Stage ofO. to execute the faid Office for 6 Months, if the A"^/or fhe De-
jfjhallfor and during all the 'Lime that he fhoutd continue Poji-Mafler &c.fendant Nifl»
perform the InJlruQions in a Paper thereunto annexed &c. Here, though Ibid.
the Words (during all the Time &c.) are indefinite, yet by the ln-59 pl;4.p.
tention of the Condition the Obligor is not to be anivverable for T. lor g^g^J'^'j^J^^P"
any more Time than the 6 Months i the Condition Ihall refer to thethe Deputa-
Recitalonly. So in aCondition it was recited, that a Sheriff had con-tlon wasbut
ftituced luch a one to be Bailiff of a Hundred &c. if therefore the faid|°f '■^
Defendant lliould execute all Warrants to him direaed then &c. War- J^°"securi"y
rants here are only fuch as were directed to him as Bailiff of the Hun- -was bound
dred3 and not other VVarrants. 2 Saund. 413, 414. Pafch. 23 & 2400 longer ;
Car. 2. Lord Arlington v. Merrick. and had it
° been du ring
the Continuance of the faid Deputation it had been our, and her; it is all one ; and Judgment fo- the
Defendant.
15. \\'here the Generality of the Covenants zvere rejirained to Ads 0/ his
cwn^ but there was one Covenant absolute, as that he had good and law-
ful Power to graht &c. which was contrary to the Intent of the Parties
and the Tenc^r of the Deed, it was relieved. Fin, R. 90. Hill. 25 Car. 2,
Feildcr v. Studley.
16. Charle*
4 3 '2 Covenant.
MS Rep. 1 6. Charles Har«-ard in Conlideracion of Marriage, and Murriaae
"^^"^"^'Chi Settlement, covenants " That he the faid Charles Harvvard ihall and
cheftei-7. '' " ^■''*' by Deed or Deeds in bis Life-time, or by his Will, give, grant,
Bradford & " coijzey, fettle or devife for ever^ all other his Lands Sc and all Rtgbt^
Ux'. " 'Title (3c. after his and his Wife's Death, unto the [aid Katherine his
" Daughter, and fiich Child or Children of her the j'aid Katherine his
" Daughter by A C. her intended Husband^ to he begotten in fiich Manner
" and Froponton as to him the [aid C. Hanvard fhall feem meet, and fball
" not, neither will, give or grant to the/aid Katherine his Daughter any
" further or other lift ate therein than for her Life ; provided that the faid
" Katherine, or any Child or Children of the faid Katherine, by the faid
" J.C. to be begotten, (hall be living at the Time of the Death of htm the
'''• faid Charles Harward, and not otherwifc."
Lord Chancellor faid, Thefirft Thing is as totheConltruftion of the
Covenant ; The next Thing is as to the Rents and Profits of the Ellate
of Charles Harward. — By the Covenant he put himfelf under an Obli-
gation to di.fpofe of the whole Eflate fubject to the Eltate tor Life to
his Wife,
Ey the Will he gives the whole Elkte to Truftees and their Heirs,
to the UfeofhisGrandfon tor Life, Remainder to his firlt and other
Sons in Tail, then to his Grand-daughter, and the Heirs of her Body,
Remainder to his own right Heirs, i. e. to his Daughter, who is his Heir
at Law. He dire&.s that his Trultees Ihould prclent fuch Perfon to the
Church of Tallerton as his Daughter Ihould appoint. All the Benefit
that his Daughter was to have out ot his Elhite, was the next Prelenta-
tion to Tallerton as his Daughter Ihould appoint, (probably he intended
the fecond Husband) and the Remainder in Fee, although the took the
fame by Defcent, not properly by the Devife. And what ariles by
this Covenant }
On this Covenant there are two Qiieftions:
lit. Whether Charles Harward was under a Neceiruv of giving any
Thing at all to his Daughter ? if not under a Neceliit'y, whether the
Difpolition he had made in Favour of his Crand- children was good or
not ? And then another C^uellion, that fuppoiing he was under a Necef-
fity of giving tbmething to his Daughter, what that fomething was ?
Whether flie was to have an Ettate in the whole, or whether it was in
his Power to adjult the Proportions between iicr and her Children, and
leave her fome minute Thing or Part ?
The Words are, unto Catherine his Daughter, and fuch Child or
Children, arid if the Word (or) disjoins the whole, then it is clear he
had an Eleftion to give to any Child, or to all the Children exclufive of
the Daughter, and it would be equally clear to give it to the i:)aughter,
exclulive of the Children, were it not for the reltriflive Words, which
exclude him from giving her a greater Eftate than for Life.
In the Cafes mentioned, (to wit) Co. Litt. 225. a. i Le. 74. Mo. 239,
the Rule is laid down generally, (See the Books) but Cafes may happen
from the difierent Penning of the Claufes, where the Intent ot the Par-
ties may appear i'o clear, that a Conjundive ifiall (land for a Disjunfclive,
and a Disjunctive for a Conjunctive, but the Court ought not to do Vio-
lence to the Words where there is not any Thing in them to take away
the natural Scnfe and Meaning of thofe Words.
In this Cafe, if the Words had been only to the Daughter, and to fuch
Child &c. as to him Ihould feem meet, then the Daughter mufl: have had
loniethingi but the Word (or) afterwards makes the Difficulty.
If the W^ords had been, I give to mv Daughter, and fuch Child of
my Daughter &c. as he Ihould think fie, or to my Daughter and the
Children ot (ny Daughter, there would be no Necelfity there Ihould
be a CouItru6fioD to vary the Words, or put (or_; lor (and) but here
there
Covenant.
433
there is no Violence done to the Words to ufe the whole in the Dis-
juniS^tive, it m£iy be taken in that Senfe, and therefore he rather thought
they would be taken in the disjunfti^e Senfe throughout.
Provided that the faid Katherinei or any Child or Children &c.
What Event was here to be provided for ? If the Daughter, or any
Child or Children were living, the Provillon was to take Place.
If in the Beginning the Words are to be taken in the Conjunftive, fo
as to oblige him to give fomething to the Daughter, then the latt Words,
which are plainly in the Disjunttive, would bind him to convey to his
Daugi:ter though his Daughter was dead. Another Reafon why he
thought the Words ihould betaken in the disjunftive Senfe was, from
rhe other Proviiion that was made, that helhould not, nor would "ive
or grant to his Daughter any further or other Eltate than for Lile. — •
He is bound to make a Difpolition of the whole ; he might give the
whole to his Daughter, but that was not his Meaning. — This is put up-
on him by negative aild rellrifiive Words — The FamilJ^, not the
Daughter only, but the llFue of the Marriage, was chiefly under the
Conlideration of the Parties.
With regard to the Daughter, he might chufe whether he would or
would not give any Thing to her, but he might her an Eltate for Life
if he thought fit.
Another Reafon, and that is from the v/hole Tenor of the Covenant.
If the Words (in fuch Manner and Proportion as he ihould fee meet)
refer to the Children only, and the Power of Difpolition is not over the
Whole, and the Daughter mull have an Eltate tor Life in the whole in
all Events, it would be an abfurd Provifion to fay, I give to my Dauo-h-
ter, ot her Child or Children &c. provided that I do not give her
more than an Eltate for Lile, is plain, if not, to put them all under one
Rcllriction, that Negative is tar from affording an Argument for the
Conltruftion contended for, for the Event was uncertain whether the
Ihould have Children or not.
But if the Daughter was under the Power of her Father,, he might
give her as minute a Part as he thought fit, if he was under a Neceffity
of giving fomething to her, what that was to be was in his Difcretionj
but not more than an Eltate lor Life,— A further Reafon for taking the
Words in the Disjun£live is, that it feems to have been tlie Intent, and
to be ttipulated that he might give to one, or 2, or to 3 &c. in fuch
Proportion as he thought fit.
But he relied chiefly upon the Words of the Provifo (provided that
faid Katherine, or any Child or Children &c.) — The Authorities feem
to warrant this disjunftive Senfe, but the Realbn of the Thing that a-
rifes from the fame Place and Words doth warrant this Conllruftion.
And as to the negative Words, that he Ihould not, nor would give or
grant any further or other Eltate, do refer to the fubfequent Words
(tor her Lite.) It was to be left in Doubt, whether Ihe Ihould have
even that, or not, and the other Claufes will tall in with it when the
Whole is taken disjunctively. — He has done as tar as he was bound to do,
he was obliged to convey the Inheritance for ever, he has by his VV^ill
given to his Grandfon an Eltate Tail, Remainder to his Grand-daugh-
ter in Tail, Remainder to his right Heirs.
His Lordlliip's prefent Thoughts were, that Charles Harward had
underltood the Covenant in the right W^ay, that he would not take any
Thing from the Grand Children which he had given them, but the
Rents and Profits are to go for t lie Benefit of the Plaintiff" Charles;
And decreed accordingly.
5 S (D. a)
^Q^. Covenant.
(D. a) Negative and Affirmative Covenants. Con-
ftruSion and Pleadings.
A^
Pfirmati've Covenants do hot take away the Power which the Law
X A K''^"-:> As where Leffbr covenants that Leffee may take Hedge-
boot &c. by Affignment, yet he may take it vi'khout Alfignment i Arg.
Cro. |. 481. cites D. 19. [b. pi. 115. &c. Trin. 28 H. 8. Anon.]
Hob. 1 7 V 2. Leffor covenanted that U.jfce floall have fnffictent Hedgeboot by Ajftgn-
citesS C. j„^„^ o/>;5;e Le^or's Bailiff-, Bauldwin and Fitzherbert held that he may
ma'wkc" take it without Affignment ^ For the Law by Implication gives it to
k without him, but ^elly e contra. D. 19. b. pi. 15. 28 H. 8,
Affignment,
but other wife had it been in the Negative.
Ibid. Mavg. 3. If A. leafes 2 Acres of Meadow to B. and co'venaiits that it fMll be
pl. 117. ches lawful for B. to cut the Grafs at the Affignment of A. yet B. may cut the
Mich. 40 & Grafs notwithftanding thofe Words; Buc if B. covenants on his Pare
C B Brown '^^ ^ Negative, Aftion of Covenant will lie j or if it was a Condition,
V. Eyre, which is a Negative in Law, as Provifo that he ihall not &c. widiouc
where the Affignment &c. in this Cafe if he does, then clearly A. may enter j
Lordgratiud g^^ jj, ^^e Other Cafe it is a Grant of the Leflbr in the Affirmative j
VtakisZe^'^^ Baldwin and Fitzherbert j but Shelley e contra. The Reporter
pe/n/am adds, Qusere bene Cafum. D. 19. b. pl. 116, 117. Trin. 28 H.S.
Cufiodis, and , , , , , t i
there Anderfon held, that this being in the Affirmative the Law clearly does mt take away the Liberty
given to the Termor by the Law, but that he may well take without View of the Keeper, Quod Glani
vil conceffit, unlels it be according to 29 E. 5. 91. quodnon liceat capere nifi per Vitum Cultodis&c.
4. Debt on Bond for Performance of Covenants in an Indenture^
whereof fome were in the Affirmative, and Ibme in the Negative ; De-
iendant pleaded a Performatice of all the Covenants generally. Upon De-
murrer it was adjudg'd for the Plaintiff. Cro. E. 691. pl. 29. Trin. 41
Eliz. B. R. Cropwel v. Peachy.
5. In Debt upon an Obligation condition'd to perform Covenants ofUn"
der-Sberiff's Bailiff', Part in Negative, Part m the Affirmative, the De-
fendant as to thofe in the Negative pleaded negatively, and thofe in the Af-
firmative, that he had obferved them ; to which the Plaintiff rep//rf/7, that
the Defendant was not ajfijling at the Arrefi of J. S. to which the Defen-
dant demurred ; the Court conceived the Plea ill, without ffiewing hov/
he had performed them, and yet the Replication is good to ffiew a
Caufe of Aftion; for the naughty Plea was a Trap that the Plaintiff
ffiould have demurred, and io no Caufe of A6lion would appear ; Judg-
ment pro Plaintiff Nili. 2 Keb, 405. pl. 21. Mich. 20 Car. 2. B. R.
Clavell V. Caller.
(E.a)
Covenant. ^q^c^
(E. a) Diftin6l: and Independent Covenants. What
fhall be laid fuch.
I. A Covenanted, that notwith/fattdiiig any AB done hy hlm^ yfjt'Litt. Rep.
±\ * "was feifed in Fee, and alfo, that there -was no Rever/ion in the ?°' ^ ' ' p ''*'
Crown ^ and lurcher, that it was of the annual Value of 300 /. a Year, ThCf°J.j \ q*"
Court upon the firil Argument refolv'd, that the lail Covenant was ab- held'accord-
folute and dillinfit, and had no Defendance upon the firil Part of the '"g'y ^y all
Covenant. Cro. C. 106. pi. S.Hill. 3 Car, C. B. Craylbid v. Cray-'''^,^°"'f'
ford andadjudg.
^"™- ed for the
Piaintiff.
S. C cired by North Ch. J. 5 Lev. 46 Trin 55 Car. z. C. B. in Cafe of J^crbtll b» 93ill0, which
•was, vir. Covenant &c. in whicii the Plaintift declared on a Feoffment of Lands, wherein the De-
fendant's Teftator cotenatiieci, ih,it tiotivithfianding any thh.g hy him done, he was feifed in Fee &c. with-
out any Condition &c. And 2dly, ^bat he had full Power to fell. And 5dly, That tie Lands were dear
(f all hciwilirance by him or his Father. And 4thly, That the Feoffee pottld enjoy ap,ainfi Peifons claimins;
tinder him, his Father, or Grr.vdfather, and affigns the Breach, that the Teftator had no Power to fell,
Upo:i Demurrer it was agreed, that </:)«/« were diflinli Covenants, and; fudf^es againft North Ch. J.
held, tliat though the Covenants are diWmtt, yet the two fir jl are of the fame Import ; for if he is feifed
in Fee he hath Power to fell, and when by the firft he covenants only againft his own AGs, it can ne-
ver be intended, that immediately by another Covenant of the fame Fffcit he would covenant againft
the whole World. Now in CfiipforD'SI CflfE the Covenants v/erc of different Natures, and concern-
ing different Things, thougli of the fame Lands ; but in this Cafe the two fubfequent Covenants arc
particular and reftrained, and therefore the middle Covenant Ihall not be indefinite and general.
(F. a) Not to alien SCc.
I. "It Eflee for Years covenanted, that if he, or his Executors, or Af-
I J figns, did alien, it fhould be lawful lor the Leflbr and his Heirs
to enter j Lejfee afterwards made his Wife Executrix, and died. She mar'
ried again, and the Husband being poiiefled of the Term in Right of
his Wite, who was Executrix as aforefaid, aliened the [aid ^erm. Bald-
win Ch. J. held this no Breach of the Condition, tor that the fecond
Husband cannot be faid Aflignee \ his Ellate being given him by the
Law, and not by Alignment of any nomore than a Tenant by the Curte-
fy &c. But Brown and Shelly held, that the Husband was Aflignee in
Law, and that an Aflignment in Law is as an Aflignment in Deed, and
that the Lands are fubjeft to the Condition in whole Hands foever they
ftall come. D. 6. a. b. Pafch. 28 H. 8. Anon.
2. Le^ce for Years covenanted that he would not ajjign the Land, or any
Part thereof, without the Confent of the Lefjor. The Leffor, during the
Term, entered into Part of the Land demifedj and then the Lejfee afjigned
tne Rejidue of thel'erm in the rejl of the Land, without the Confent of the
Lejfor. Leflbr brought Covenant. Roll Ch. J. held, that the Cove-
nant was collateral, and confequently broken by the Alignment of the
Term, notwithftanding the Leflbr had entred on Part of the Lands j
And judgment Nili. Sty. 265. Pafch. 1651. Collins v. Shellev.
3. Lelsec covenants net to afjign his Term without the Lelibr's Con-
fent in Writing. If Lelfee devifes the Term toJ.S. without the Leflbr's
Conftnr, it is no Breach ; For a Devife is not aLeafe^ Sic Dictum
luit. Sty. 483. Mich. 1655. B. R. in Cafe of Fox v. Swan.
(G. a)
43^
Covenant.
(G. a) For further AiTurance.
; Le. I. pi. I, A Bargained and fcld his Lands to B. in Fee by Deed indented,
% c'h'w jTa.* ^"'^ covenanted to make to the Vendee a good Rfiate in Fee before
aecordinolv. C^^>''f}n^s next following^ afterwards, and bejore Cbrijlmas^ the Bar-
gainor caufed the Deed to be enrolled ^ the Quellion was, whether he had
performed his Covenant without doing more ? The Court held that he
had not, but that he ought to have levied a Fine, or fnade a Feo^ment
before Chrijlmas ; and fo it feems, that where the Feoffment had been
made before the Inrolment, the Fee had palled thereby, and not by the
Inrolment. And. 27. pL 61. Mich. 6 E. 6. Anon.
2. Baron and Feme make Leale for Life, and the Covenant was, thaC
he Ihould make fuch realbnable Affurance as the Cuunfel of Lejfce Jhoiild
advife, and the Counfel advifed a Fine with Warranty by the Husband
and Wife with Warranty againfl; the Baron and his Heirs. Delendanc
retufed ; Col'enant was brought, and it was moved, that it was not a
reafonable Alfurance to have a Fine with Warranty, becaufs the War-
ranty did trench to other Land ; but per Cur. it is the ordinary Courfe
in every Fine to have a Warranty, and the Party may rebuct the War-
ranty. Godb 435. pi. 499. Pafch. 3 Car. B. R.Goad v. Winch,
nilb. Equ. J. A Covenant tor further AiTurance -wi/i not be afjljled m Chancery
T^^rW'^' w^erc the original Conveyance it felf is void ; As il a Man covenants tojland
Kohinlbn, ' f^^'fcd to the Ufe of a Meer Stranger^ and covenants to make Jinfher A/fu-
i. C. in [o- rance^ this Covenant depending on the Nature of the Conveyance, if
tidcmVeibis. that be void, the Covenant which is only Auxiliary, and goes along
with the Eftate, muft be void too. Arg Ch. Free. 476. pi. 298. Mich.
1 7 1 7. and decreed accordingly. Furfaker. v. Robinfon.
(H. a) What are mutual Covenants j and Pleadings.
I. r~|~iHE Plaintiff covenants, that if the Defendant would pay 40/.
X he would convey as the Counfel of the Defendant fhoidci advife ;
thefe being mutual Covenants cannot be pleaded in Bar one ot another,
vfhich was alligned for Error, and Judgment affirmed Nili. Keb. 178.
pi. 143. Mich. 13 Car. 2. B. R.. Hames v. Baily.
5 Salk. loS. 2. Covenant to pay an annual Rent of 60 1, and to repair. Plaintiff's fays
P'- ^- ^•.^- Defendant entered^but does not aver a Leafemdde. Detendant pleads heought
thu^ viz. "°'- ^° ^*^^ Rent becaufe no Leafe was made. Per Holt, in mutual Cove-
that'Cove- nantsw/'^ere thePerformance of onedoes dcptnd upon another^the precedentCove^
nant was f/ant iHuJl be performed Jirji. Per Eyres and Dolben, the Covenant and En-
^'°A«'ici"r "y '^n^ount to a Leafe i And fo was Ipai'tingtOll attO JjBlfe'SCaiei But
of ALnee*^^ per Holt, it has been held aliterever hnce ; judgment tor the Pkiutiffi
nient &c" i2 Mod. I. Mich. 2 W. & M. in B. R. Copley v. Hepworth.
wherein the
Piaintirt covenanted with the Defendant facere Dimiffionem to him of a Mill^ paying 20 I. Rent per
Ann for foniany Years, and the Defendant cf>venantcd to pay the Kent during the Tcim ; The Plain-
titVbrouj^lit this Aittioii for Nonpayment of Rent, in which he let fortli that the Defendant entered
and enjoyed the Mill &c. The Defendant pleaded, that the Plaintift did not make any Leafe to himj
iti-d upon Dtmurrer to this Plea it was adjudged, that thefe Articles did not amount to a Leafe, being
«,ily a Covenant Faceie Dimiffioncm, and Holt Cb. J. held, that the making a Leafe was a Matter pre-
cedent,
Covenant. 437
ctdent, and chat the Phiiiitilf could not be initled to the Rent till a Lcafe v/asmade; but Eyres', Dol-
ben, and Gregory Julticcs contra, becaufe thcl'i are mutual Covenants, and equal Eemedijs are oa
both Sides; ane it is allef^eri that the Defend uitenrred, but upon the other Point the Defendant hid
judgment upon arguing the Demurrer. JMich. 2 W. 5.
3. In Debt on a Deed, in which the PIaintitF/« Confideration of i loo /.
to be paid to him by the Defendant, covenanted to afjign to the Defendant
10 Shares in the Corporation of Linen Mannfafi ure on the loth of January
next J and the Defendant covenanted that he woiildthen accept thofe Shares,
and at the fame Time pay the Plaintiff the faid iioo/. &c. Both Parties
bound themfelves to each other in the Penal Sum of 2200 1. to pertbrm
Covenants. Breach was ajfignd in Non-payment of the iioo/. on the
faid loth of Janiiar.y after the Date of the Indenture. It was inlilled
for the Defendant, the AlEgnment ought to precede the Payment, be-
caufe the Covenant to pay it was in Nature of a Condition orDefeaiance
to fave the Forleiture of the 2200 1. and therefore the Condition lliuli
be taken moft fivourably tor the Obligor, fb that if it may have 2 In-
tendments the belt lliall be taken for him. And by the Refolution of
the Cafe in D. 17. a. the Payment in the prefent Cafe mull relate to the
Acceptance ot the Aflignment, and not to the Day of making it, and if
fo, it was impolfible Defendant ihould accept it before it was made ; fo
that the true Meaning zvas^ that the Plaintiff Jhoiitd affign the Shares on
the 7,0th of January^ and the Defendant [hotild accept it, and upon fuch Ac-
ceptance the Money Jbould be paid i and of this Opinion was the whole
Court, Lutw. 490. 492, 493. Pafch. 5 W. & M. Elwick v. Cud-
worth.
4. Covenant upon Articles of Agreement between the Teftator S. and
the Defendant, by which it was covenanted and agreed between them,
that S. (hoiild affign to the Defendant his Interefi in a Houfe, &c. and that
the Defendant jhoitld pay to S. 30 /. The Plaintiffafligns tor Breach, that
the Defendant has not paid the ^o I. &c. The Delendant /)/e?^^j, that S.
did not affign his Interelt in the Houfe to the Defendant. The Plaintiff
demurrs ; and adjudged tor him, becaufe thefe are mutual and inde-
pendant Covenants, and the Parties may have reciprocal Aftions, and^
therefore the Plaintiff may bring his Afliion before the Affignment of
the Houfe, and the Defendant has a Remedy after, if the other Party
does not perform his Part. Lord Raym. Rep. 124^ 125. Mich. 8 W. 3.
Trench v. Trevin.
5. The Plaintiff's Teflator undertook a Voyage to Ruffia, and there was
toobferve the Oiders of the Defendant's Brother, which was to dra-ijO
the Czar of Mafcovfs Tooth. The Defendant paid him 56 /. and covenant-
ed to pay him 100 1, more fuch a Day of January then folhimng^ and for
Non-Payment of this 100 1. an Action of Covenant was brought. The
Detendant pleads, that the Plaintiff's Teftator did not perform his Pare
of tlie Agreement ; but it was held, that the Agreement here was reci-
procal^ and not conditional, and the Defendant mutt bring his Action tor
not performing ot the Agreement on the Plaintifi's Part i and this isnoc
like where Ipromile to give a Man Money for building a Houfe, here
I am not to pay the Money until tiie Houfe is built, and here likewife
is a Day certain when the Money is to be paid. Judgment per C^aer'.
Mich. 7 Ann. B. R. Siiefieild v. Styles.
6 . A Leajefor 2 ears was made rendring Rent, and a Covenant to re-
pair, ivnh d Re-entry for Non-performance. Ejeftment was brought, and
Breach aliigned generally lor Non-performance of Covenants. The
Lellee's Agent ask'd Lelfor what Rent was due, and that it Ihould be
paid him , but Lelfor replied, he would not trouble himfelt about the
Rent, but would fet alidc the Leafe ; and the Defendant being pre-
pared to prove a Tender pleaded Pertbrmance generally. At the I'r.i
■ J T ' :iie
498
Covenant.
che Deleiidancotlering :o prove the Tender, the Plaindif did not infill
on the Non-payment of the Kent, but proved a Breach of Covenant
lor not keeping a Barn well thatch'd, and ibund for the Plaincifl! The
Defendant was turned out of PolfefFion, and alter brought his Bill for
Reliel'againll the faid Verdift, and to have a new Leafe granted for
io muchof the Term as was not expired. Per Cur. if a Bond had been
given tor Performance of the Covenants this Court could not relieve a-
gainft it ; but Ld. Chancellor faid, he could not apprehend what Da-
mage the Leffor could fuftain if the Leffee fuffered the Buildings to be
out of Repair, fo as he kept the main Timber from being rotten, and
left all in good Repair before the End of the Term ; and therefore re-
terred it to a Mafter to fee what Damage was done (if any) tor Non-
performance of Covenants, and at what Time &c. 2 Mud. Cales 90.
Hill. 10 Geo. I. Hack V. Leonard.
7. It was admitted Arg. that where Co-jff//^«?^ are mutual an Aftion
will lie for either of the Parties, w\tho\ii averrifig Perfonnance on his
Part, though one is the Conjideration of the other, and though Pro or In
Conlideracione is in the Declaration. 8 Mod. 294. Trin, 10 Geo. in
Cafe of Shelbourn v. Stapleton.
(I. a) Determin'd and vvalv'd. In what Cafes.
I. \ Sold Lands to B. and it was covenanted betwixt them, //^a?
J^\_' A. tipOH Reqiiejl made unto him or his Heirs Jhotild make Jfftirance
to B. of the faid Land. A is attainted; Now the Covenant is fufpend-
ed for A. has not any Heir; afterwards the Heir of J. is rejiorcd by
Parliament with a faving to others all their Rights &c. B. is not aided
by that faving k as he can make Requeit to the Heir of A. &;c. 4 Le.
174. cites Clovell v. Moulton.
z. A. leafes by Deed to M. for 10 Tears, and M. covenants at the End
of the Term to have four Acres of the Land fallo-w" d and plow'd, and in
that there was alfo a Proviio, that if M. mi/likes his Bargain, thac
ttfm a Tears IVarnmg he raay furrender his Eltate, and alter M. furren-
ders accordingly, but had not left anyfatloived ; and adjudged by the
Court that that Acceptance of the Surrender has not difpcnfed with the Co-
venant. Noy 118. Auftinv. Moyle.
3. Otherwife it had been if the Provifo had been in the End of the 10
Tears for then if the LefTor accepts the Surrender before the 10 Years
expire, it is impoffible for the Leilee to perform the Covenant ; Judg-
ment that the Plaintiif fhould recover. Noy 118. Auftin v. Moyle.
4 The Defendant fold Lands to the PlaintiH, and covenanted that he
had a goodlitle and Right to fell, and there was ■x Provifo in the Deed,
tnat if 100 1, was not paid at a future Day, that the Grant, and Bargain
and Sale and allpould be void. The Money was not paid at the Day, and
fo the Eilate was void ; but yet the Plaintiif brought an Ailion oj Cove-
nant, for that the Defendant had no Right to fell ; and the Defendant de-
mands Oyer of tbe Deed, and demurs. The Queiticn was, Whether the
Eitate and all being void by the Non-paymentof the Money, an Aclion
of Covenant would lie ? And the Court inclined it would, for there
was an Ji^ion attached in the Bargainee immediately upon the Sealing of
the Deed, which cannot be deve/led by the Non-payment of the Money, tor
he might have brought his Atiion as foon as the Deed was fealcd ; But
if the Words had been, that the bidtnture fall be void, it would have
been
Covenant. 439
been ftronger aaaiiiit the Plaintiff, lor then there would have been no-
thing to ground his A£tion upon. Freem. Rep. 41. pi 48. Trin 1672.
Raynolls v. W^oolmer.
5. A, covenants with B. tc pay 20/. at his Marriage^ or 'when J. S.
pall die, which Ihall firft happen j though B. brings no yiciinn when J. S.
dies, he may zvhcn he ajterwards marries ; For per Cur. though the
Plaintiff was intitled to his A6lion upon the firft Contingency, if he
tarry till thciecond happen, it is but in his own Delay, and the Delen-
danc ih.iil not tulce Advantage of it ; Judgment for the Plaintiff. Ld,
Raym. Rep. 133. Mich 8 VV. 3. Loggin v. Orrery (Lord.)
(K. a) Count.
I- /covenant becaufe the Defendant did not hold Covenant oi all the
\^ Lands and Tenements that he had leafed in D. and becaufe he
did not pew the Certainty oiihe Lands and Tenements, therefore Writ
Was abated. Br. Covenant, pi. 8. cites 46 £. 3. 4,
2. So in Writ of Covenant to levy a Fine, it Ihall be of/o many Honfes,
fo many Jcres of Land, lb many Acres of Meadow &:c. Ibid.
3. Covenant was brought, and the Writ was C^uod teneat Conven-
tioneni inter eos Faftum dc Omnibus Ferris et Tenemcntis which he had
in the Counties of L. and G. and counted that he conanted to make him Sure-
ty of all Lands and 1'enement which he had in the Counties aforefaid, and
that he frayd him ^c. and he would not make it, to the Damage &;c. and
the Defendant pleaded to the Hrit, becaufe it was general De omnibus Ter-
ns et Tetunientis &c. without Certainty, et non allocatur i but the Wric
awarded good per Judicium, and yet contra 46 E. 3, 4, and alfo Wric
of Covenant to levy a Fine fhall be more certain, and the fame of Pre-
cipe quod reddat i but it was faid, that contra here, becaufe it is only to
recover Damages ^a?id no Land. Br. Covenant, pi. 9. cites 47 E. 3. 3.
4. Covenant upon a Deed to deliver two Pieces of Cloth, Price 40 s. and Br. Vari-
the Price was omitted in the Writ, and yet the V\^rit awarded good ; tor^"'^^' P';'?'
he may put it in the Count, and in CoVenant he fhall recover only Da-*^'^|r'r;
mages. Br. Brief, pi. 364. cites 7 E. 4. 25, 26. venant'pL"
5. In Pleading toyl-y in fitch an Indenture it is contained fo and fo, is no 29 cites
direft Amrmative that the Party did thus and thus covenant and grant, ^^'•
for to fay that it is contained in the Indenture, and to fay that it is co-
venanted in the Indenture, are two Things; Per Bromley Ch. J. PJ,
C. 143. a. b. Trin. i Mar, in Cafe of Browning v. Beiton.
6. But if the Indenture had been inrolled De Verboin Verbum, then
it had been fufficient to have faid ut fupra ; tor by the Inrolmenc it had
appeared to the Jul^ices judicially, and then the faying that it is con-
tained in the Indenture is a putting them in Remembrace of a Thino^
apparent to them in the Record ; but as it is here it is no good Plea; Per
Bromley Ch. J. PI. C. 143. b. Hill. 2 Mar. in Cafe of Browning v.
Befton. ^
7. Tenant for Life made a Leafe for i j Tears, rendring Rent to him, or
to his Heirs or j^jjigns ; but there was no csprcfs Covenant that the Leff'ce
fcoidd (ujry it riurmg the Term ; the Tenant Jor Life died within 'the
Term, and he in remainder tntred on ths Leffce, who thereupon Z-nw/'?
an Ml ion oiCo\cn'int againji the Executor cf the Tenant jor Lije ; but it
was adjudged againft him upon the infufliciencv of his Declaration j
ifl. Becaufe he had not alledged in FatJ that he' was pojffjed and ajter-~
wards e^plltd, but only by Implication ; 2dJy. Becaufe the particular EC- -
tatc
ZL40
Covenani
the
declar'ii
that by h-
tatiim «■■
iftit, tha
he leafed a JeflVeyS
tatc ■With the Remainder over ought to have been certainly al!edg\i, and not
zvith an Eo que i^c. D. 257. pi. 13. jMich. 8 & 9 Eliz..
In Covenant 8, In Error of Judgment in Corenanc, it was affigned that the
■ Piainiiu Yljiin&S duhred ^iicd cum per fcriptiihi hidentatim fa^iiiiH inter eos tef-
tatmn fnit, &c. and did mt allege in I alio that he hy fuck an Indenture
did Covenant. It was the Opinion ol the Court, that the Declaration
„,„„,.-- was good, and fo are all the Precedents, and Judgment was affirm-
■ft,t,that ed. Gro. E. 195, pi. 12. Mich. 32 & 33 Eliz. B. R. Wilfon v
he leajed a
Mejjiiage and ■
f/l't 'l"e'inc"c€ven,i«ted mt to ereB any Biiildhig in tie Garden. It was movc<i that this Declaration w^«
not e-ood bcc.iulc it is that by llich Indenture TcfiatHm exifiit and does not fay exprefily that Dm-if.t (b>
Corvenit 'and compared it to the Cak of ©rolling V). Igt Coil Plowd 141. where it is Contiiietur
in' tali''lndcntura &c, and z E. 4. 21. But all the Court conceived it well enou2;h, and that the
uTual Courfe in this Co\irt is to declare in this Manner, that by fiich Indenture Tcltatum exittit &c
Cro C iSS. pi. S. Palch. 6 Car. B, R. Buchelouf v. Ga-e. Jo. 213. pi. 5. S. C. bar
S. P. docs not appear.
Bulft. 2!. 0. Le£ee for 21 YeaTS covenanted to repair, and leave in Repair. Lejfor
S, C. but S. largaind and Cold the Reverfion to A. and B. zvho hargaind and fold to E.
p. does not ^^0 ^,.(,„^/^;Cow;m«^ againftthe Leffee for not repairing, but in the
appear. Declaration did not name himfelf AJfignee^ yet adjudg'd good. Cro. J,
240. pi. 5. Pafch. 8 Jac. B. R. Ld,_ Euro v. Strickland.
10. Covenant is brought upon an Indenture, that where A. had in-
feoffed B. of certain La'nd that B. Ikould hold iz di [charged of all Dozv-
ers ■ and alleo^es Dower recovered againll him 3 and the Court is quoa
^ejiatimi exijitt by the faid Indenture that fitch Feoffment was made^ and
that the Covenant was made ut fupra, icithout a, pofitive Affirmation
that the Covenantor had tnfeoffed the Covenantee^ and had covenanted uc
fupra ; The Declaration was held good by the Words Tellatum ex-
illit ; But fuch Words will not ferve where a Deed is pleaded in Bar,
nor in a Replication. Judged and affirmed in Error. Jenk. 331. pi.
63. cites Cro. J. 537. 17 Jac Bultivant v. Holman.
11. A. leafed an Advowfon to B. for 40 Years, B. covenanted that
he imuld not alien -without the Afjent of A. and becaule he had aliened,
without Alfent A. brought an Aftion ot Covenant ; the Defendant
pleaded.^ that he had not aliened without his A[fcnt, and found for the
Flainnilf ; It was moved in arrelt ot Judgment, that the Plaintiff had
not alleged that the Alienation was by Deed., becaufe an Advowfon can-
not pafs without Deed j but adjudged for the Plaintiff, For it lliall
therefore be intended, that the Alienation was by Deed, and fo the
Breach well laid. Winch. 34. Trin. 20 Jac. Anon.
12. In Covenant &c. the Defendant demurred to the Declaration,
for that the Covenant was, that the Plaintiff' and his Wife floould enjoy
certain Farms &c. and the Breach afligned was, that the Defendant did
enter on the Plaintiff ; but per Coke Ch. J. it is well enough, 2d. Ob-
iection was, that the Declaration is, that Itcet the Plaintiff had perform-
'ed all the Covenants on his Part., the Defendant had not performed the Co-
■venavts an his Part: Now the (licet) is not good without the \\'ord (Ta-
men) ; For it ought to have been (tamen) the Defendant had not per-
form'd his Covenants, otherwile (Licet) is nodirecl Affirmative ; Coke
Ch. J. thought it would be better with a Tamen, but up;in the Matter
it feems good i And Judgment for tlie Plaintiff Roll Rep. 267. pi.
41. Mich. 13 Jac. B. B^. Pembcrton v. Plact.
To. xo'^ pi. 13. ■F'^'we 'Ti.na?itfor Life Remainder to Baron in Fee made a Leafe to J.
i(J S. C. S. for Years, wherein J^. S. covenanted with Baron and Fane their Heirs
ftates it, tliat ^^^^ Affi'i^ns to repair, and they conveyed the Reverfion to A. And for
'r'"^d^'and Default of Repairs, A. brought Aclion as Afignee to the Baron, w:thout
the Feme averring the Feme to be Dead And refbl\-cd tu be well brought 3 becaufe
the
Covenant. 4<^t
I'oa
the Efiatijor Life hung transferred with the Fee^ is thereby drowned ■i.nd^^*' thsHc
contbunded in the Fee. Cro. C. 285. Mich. 8 Car. B R. Maior^^. '^^.'^^'■'
V Talboc. ■* P'"^*^'"^
y. i.ai.^^<.. Grant to A.
and his Heirs.
A. brought Covenant againft J. S. anci exprefs'd al! this in his EXeclai-ation, and that the Defendant
had not perform'd t'le Covenant in repairing the Houfe, wliich is come to hiin as Affignee of the Heir
of the Baron, without laying that the Wife was Dead. It was objefted that the Covenant ought to
be as Affignee of the Feme fo long as fhe lived, and not as AfTignee of the Heir of the Baron during
Jier Lite, and cited Brecon's Cale and Treport's Cafe; But three Juftices (abfcnte Richardfon CH,
J.) e contra ; For they agreed that each paf^'d his own Eftate to ilie Grantee, and in regard to
Strangers who may receive Prejudice, the Feme's Eftate continues, fo that it any Rent-Charge or
other Charge v/as made by the Feme, the Grantee fhall hold it charg'd during the Life of the
Feme, but in Truth the Eftate of the Feme was merged in the Keverfion in Fee, and this is no Pre-
judice to the Leffee for Years; For he is fubjeft to the Covenant, as well after the Determination of
the Feme's Eftate as in her Life ; And adjudg'd that the Aclion was well brought. S, C. cited
Vent. 160.
14. In Coijenant^rottgbt agahiji an ExectUor^ the Bref.ch affigned -^jas ^ Keb. 400.
for Non-payment of Rent; the Defendant pleaded Plefic Admintfir.i'vit.'^^\^\ ^■^•
After Verdift for the Plaintift'ic was moved in arrei. of Judgment, c"ourt' held
that the Declaration was ill, for it was (by a certain Writings per the Per quod
Quod Teltatum exilHt,) that the Teftator covenanted, whereas, the Xeftatum
(per Qiiod) Ihould be omitted i For tho' in Goveni^n: (Per quodd.ial "'^''1'"^ '" ^^
icriptum Tellatum exiltit) has been allow'd to be t,ood, yet it ought ^^g^Ver^
lobewithfuch Addition, becaufe it is not fo precdc an Affirmation ; did.- — •
but the Court thought it to be all of one and the fame Senle, and If in Cove-
therefore good, and judgment for the Piaintirt'. Sid. 375, 376. pi. 2."?^*^^^^"
Mich. 20 Car. 2. £. K. Stephenfon v. Stephenlon. JrllSilL
InAevturam
te'fiat^ Ex'ijfrt, that the Defendant diJ Covef?a)it -y ihls with a Profert is good) becaufe when he lays,
tfie Indenture attefts that he did covenant, this is a certain Allegation that there V/as fbch an Indenture ;
and the Indenture is only Traverlable on the IlTue Noneft Faftum. Gilb. Hilt, bf C. B. 101,
15. Covenant to deliver Coals upon Requeji at the Port of N. and to put
them in fiich .Quantities as the Plaintiff Jhonld appoint, in ftich Veffels as
the Piaintifffhottld prepare i and the Plaintiff alleges that he did requcfi
hirn^ &c. at Londoi. The Defendant pleaded he was ready at the Day
to deliver them. And the Plaintiff' demurred. And it feenled to the
Court that the Defendant's Plea had not been good, but the Declarati-
on was naught for wantoffuffcient Averment, for he ought to have averred,
that he did appoint the Defendant what .Quantities he jfhould put into fuch
and fuch Vefjels as he had prepared ; for where the Plaintiff is to do thefrji
M, he ought toaver Performance, and cited 7 Rep. lo. Sty. 47. Parme-
ter V. Greffum. Belides, when the Thing to he done or delivered is a
matt-er of Bulk, there ought to he a certain Time agreed, and the Party
ought to give convenient Notice cites i Init. 210. Sembleq'le Declaration
fuit male. Frecm. Rep. 93. pi. 107. Pafch. 1673. Griffith v.
Manfell.
16. Covenant &c the PlaintifFdeclared on an Indenture, in which
the Defendant covenanted, that he was feifed in Fee, &c. and that he
•would free the Lands from all Incumbrances; and alfofor quiet Enjeyment i
and the Breach affigned was upon an Entry and EvtSfion by T. S. and
concludes Etfic conventionem fuani pradicfamfregit, in the ftngular Num-
ber; and upon a Demurrer to this Declaration it was objected, that the
Breach did relate to all the three Covenants, and therefore the Con-
clullon was ill, becaufe he did not Ihew what Covenant in particular.
But it was anfvver'd, that Conventio is Ncmen Colleliivum, and if 20
Breaches had been affigned, he Hill counts De placito quod leneat Ei
Conventionem inter eos faftam; And of that Opinion was the
Gourtj and that the Breach being of all three Covenants, the Recovery
SV io
442
Covenant.
in one would be a good Bar in any Aftion to be brought afterwards
on either of thofe Covenants. 2 Mod. 311. Trin. 30 Car. 2. C. B.
After V. Mazeen.
17. In Covenant brought /or dijimhing the Plaintiff in a Way, the
Breach aiWgned WHS, that J.S. diji ur bed but pewed not what Title f. S.
had, and therefore ill. 3 Lev. 335. Trin. 3 W. & M. in C. B.
Holms V. Seller.
So if Bond jg. Where a Covenant refers to an EJlate Scc. and is dependant upon it
is given for ^^ rjy^its Upon it, and there is no Eft ate granted, the Covenant fails ; but
of Covenants "^kere the Covenant is a Diftin^, feperate, and independant Covenant, it is
the Cove- not material whether any Eftate pafs'd, and that the Plaintiff need not
nants and fl^ew it, nor fay, Quod Conceffit but the Way to declare is with a J^uod
Obligation ^^^^ Teftatum txiftit, but fuch a Covenant fubfifts with or without the
foTtheCor- Eftate. I Salk. 199. pi. 5. Mich. 10 W. 3. B. R. Norchcote v.
roboration Underbill.
of a Grant
■which was void, they are all void. Lev; 45. Mich. 15 Car. 2. So it is in cafe of Promifes.
Vclv. 18. Mich. 44 & 45 Elii. B. R. Soprani & Bernard! v. Skurro.
19. Covenant for not repairing brought againft an AJJignee of an Af-
ftgnee; The Plaintiff need not fet forth the intermediate Affignment.s.
8 Mod. 72. Pafch. 8 Geo. Lovelock v. Sorrel.
(L. a) Affignment of the Breach.
t. T N Covenant notwithftanding that diverfe Covenants are mention^
\^ ed in the Writ, yet in the Count he need not ff:)ew the breaking of
all. Thel. Dig. 85. Lib. 9. cap. 6. S. 4. cites Hill. 40 E. 3. 5.
2. Covenant by Indenture between the LefTor and LefTee that the Lef~
for during the Leafe fhallbe jour Days in the Tear in the Houfe without be-
ing oufted in Pain of 100 1, and the Leflbr comes to enter, and the
Lejfee faftens the Doors and the Windows, this is no breaking of the
Covevant without faying that he oufted him, and the fame Law feems
to be of other fuch like Condition. Br. Condition, pi. 35. cites
3 H. 4. 8.
3. D. Leffee for Years among other Covenants, covenanted that he pall
not cut any Trees, by which they pall be wafted and was obliged to perform
&c. In Debt brought upon the Obligation, and Breach alligned in cutting
20 Oaks, the Defendant pleaded that he did dot cut the faid 20 or any of
them Mode & Forma prout &c. the the Plaintiff faid quod fuccidit 20
prout Sec. The Jury found that he had cut 10, yet the Plaintiff' had
Judgment ; for the Covenant is broken if he cut but 10, and the refl
is only Surplufage. Dy. 115. b. pi. 67. Pafch. 2 & 3 P. & M. Tir-
ril v. Dun.
4. Leafe for Tears of {evtralMeShagcs dated in November, and to com-
mence at Michaelmas next following, in which the Le^ee covenanted to re-
pair all the faid Meffuages, except fuch as the Lefforft:)ould by Writing appoint
to be pulled down during the Term, and gave Bond for performance. In
Debt on the Bond by the LefTor, Defendant pleaded Performance &c.
the Plaintiff replied, and floew'd the Breach in not repairing one Meffuage,
parcel of the demifed Premiffes, and averr'd that the faid Meffuage was
not appointed to be pulled down during the Term, and upon this they were
at lifue, (viz.) whether the Defendant had repaired it or not ; and ic
being found for the Plaintiff, it was mov'd in Arreft of Judgmentj
that the Averment in the Replication was infufficient ; For the Leafe
being dated in November, and the Term being to commence not before
Michaelmas
Covenant. 4.^3
Michaelmas following, the Houfe might be appointed to be pulled
down before the commencement of the Term, and then the Defen-
dant is not bound to repair it i And fo the Averment does not Anfwer
the Exception ; but after many Motions it was refolv'd by all the Juf-
tices that this Averment was fuperfuous ; lor it had been fufficienc to
have affigned the Breach in not repairing the Mefuage without averring
that it was not appointed to be pulled down. And if it had been
fo appointed, it ought to be fliewed on the Defendant's Part, becaufe
it tends to his Advantage ; for fuch Appointment would difcharge the
Covenant as to that. Le. 17. pi. 21. Fafeh. 26 Eliz. Smith v. Peaze.
$. In Covenant the Plaintiff declared that the Defendant by hia
Deed dated i Oft. 28 Eliz. did Covenant that he would life his befi en^
deavours to prove the Will of J. S. or otherwife that he would procure
Letters of Adminifiration by which he might lawfully convey fuch 7'erm to
the Plaintiff, which he had not done, licet ftepius requijitus &c. The
Defendant pleaded that he came to Dr. Drury into the Court of the Arches^
and there offered to prove the Will &c. but becaufe the Wife ofthefaid J. S.
would not fwear that it was his Will, they could not be received to prove it ;
upon Demurrer it was iniilled for the Detendant, that the A£tion did
not lie i for the Covenant limits no Time when the Thing fhould be
be done by the Defendant, fb that it being a Collateral thing he has
Time during Life, but admitting that he had covenanted to prove the
Will upon Requeft, then the Plaintiff ought to fhew an exprefs Re-
quell, and the Time and Place when and where it was made, becaufe
it is tor his Benefit, and without fuch a Requeft fpecially and certainly
laid, it was held per tot. Cur. that the Action would not lie, and that the
Bar Ihall not help the in fufficiency of the Declaration. Le. 124. pi.
170. Trin. 30 Eliz. B. R. Cater v. Booth.
6. In Covenant the Plaintiff declared, that the Defendant alligned
to him all the Right and Intereft which he had to the Lands in N.
lately granted by the Lord D. to one F. for the Term of 20 Years,
and covenanted, that the faid Premiffes then were, and pould
continue 'Free from all Incumbrances and former Grants made by the Defen-
dant, and the faid F. or either of them^ and that the Defendant was law-
ful Owner of the faid Leafe, Term and PremiiTes, and alligned a Breach,
that F. before the Afftgnment of the Term to the Plaintifli had granted
two fever al Parts to two P erf on s fever ally for 20 Tears, &c. the Defendant
pleaded, that F. had granted his Interefl in the Lands, except the
Lands fofeverally demifed by him. The Plaintiff Demurred, the Quellion
was, whether by this Covenant the Defendant Ihall be intended to be
Owner of the Term only, or of the whole Land during the Term, and
held the Word (Premifl'es) extends as well to the Land, as to the Term
of Years; For it takes in every Thing before-mentioned, and which
might be incumbredi and this appears more Plain by the fublequenc
Words, viz. that the Defendant is lawful Owner of the Leafe, De-
mife. Term of Years, and Premiffes, which Word (Premiffes) needed
not to be in the Deed, if it were intended only, that the Term grant-
ed fliould be difcharged from Incumbrances. And. 236. pi. 253. Trin.
32 Eliz. Anfley v, Fiske.
7. Covenant for that the Defendant by Indenture did Covenant that
he his Executors and AJfignees would repair a Mill let to the Defendant,
and allcdges that the Mill was defective on Reparations, and the Defen-
dant his Executors and Affignees did not repair it, and it was demurred
upon the Declaration, becaufe he did not alledge that he nor his Execu-
tors or Alligns did not repair it the Action does not lie and it oughc^
to be alleged in the disjunftive, and not in the conjunclive, and of
that Opinion was the Court. Cro. E. 348. pi. 23. Mich, 36. and 37.
Eliz. B. R. Colt V. Howe.
8. An
444
Covenant
Cro E 974, 8. An Houfe is leafed by the Woids grant y demife ^c. and th;
K75. pl.i^S Lellbr covenants that the Lejfee pall enjoy &c. without Eviffwn by the
C. adjudg Lcljor or any clatminz under him. and ii Bond is nven for performance of
becanfe nor Covenants, the Lcijee ajjsgns^ and in an Ejectment the Leale is recovered
'd that ifom the AlFigneei per Cur. the Plaintiff (who was the Obligee) oughr
to fheio that the recoveror had Eigne-T'itle ; For otherwife the covenant
Law was not broken. 4 Rep. 80. Trin. 41 Eliz. Nokes's Cafe.
in
the Reco-
veror
entred up-
bn good
Title ; For otherwife there is no Caufe of Aftion, and pleading the Recovery to be by Verdict is not
Ivlaterwl; becaufe it may be upon falfe Verditt and without Title. 5 Mod. 571. cites S. C.
zccordingly — S. C. cited by Vaughan Ch. J. Vaugh. 122. though the Eviftioa was by Courfe
of Law.
Lutw. 4.57.
Darby v.
Piltarfe.
S. C. and
9. The Covenant was /or ^iiiet Enjoyment agnin^ B. and all claiinin^
under him ; the Breach alTigned was becaufe he ivas oiijied by J. S '-joho
did claim under B. but did not pew How. But all the Court of B. R,
held it well enough j For he is a Stranger thereto and cannot ihew it
certainly ; And adjudg'd in B. R. for the Plaintiff, but by the Opini-
on of all the Juftices and Barons, Judgment was reverfed in the Exche-
quer Chamber. Cro, E 823.pl. 22. Pafch. 43 Eliz. White v. Ewer.
10. ^/)/)>-f?;?zVe£o«^ was conditioned^ ill. Toferve well, zdly, To
Account duly, sdly. To make fatisiaclions within 3 Months after No-
tice, of all LofTes which he fhould fuftain by the Apprenticelhip. De-
fendant pleads performance generally, the Plaintiif alfigned for Breach,
becaufe upon Account he was found in Arrears 60/ of Polifb Money which
he received and converted to his own Ufe. And fo &:c. And tho' he
did not alledge he received it as Apprentice yet it may well be intended,
for it is Merchandize and Judgment for the Plaintiff. Cro. E. 830J
831. pi. 39. Pafch. 43 Eliz., C. B. Cutler v. Brewfter.
11. A. Leafed to J. S. the Plaintiff 35 Eliz. the Barton of B. for 6
Years, and covenanted that he pould enjoy it during the J'erm quietly and
•without Interruption^ and difcharged fro?n 'tithes iBc. and that
if the T'tthes were demanded and recovered againft him during
the 'Term he pould recoup in his Hands fo much of the Rent as thi
'Tithes amounttd to. J.S. brought Covenant and affign'd the Breach that
42 Eliz. the Parfon fued him for Tithes there growing 38 & 3Q Eliz.
All the Court held that this Suit after the determination of the Term was
a Breach of the Covenant, for he did not enjoy it difcharged &c. within
the Intent of the Covenant ; but becaufe it was alledged that the Suit
was lawful, or that the Tithes were due^ for he was not bound to dil^
charge him from illegal Suits &c. and fo the Breach was not well
affigned, it was adjudg'd for the Defendant. Cro. E. 916. pi. 7. Hill.
45 Eliz. B. R. Lanning v. Levering.
12. In Debt on Covenant to pay 100 1. Quarterly, the Plaintiff de-
clared that 100 1. for 4 Quarterly Payments were unpaid^ and fays not
when due and ending it is not good. Show. 8. Mich. 4. Jac. 2. in Cam.
Scacc. and fo a Judgment in B. R. was reverfed. Piltarfe v. Darby.
Judgment
reverfed,
becaufe it appear'd by Computation that 6 Quarterly Payments were due when he demanded the
100 1. and it is not fhewn for what Qiiarterly Payments he demanded the faid 4. Quarterly Pay-
ments and it is not fufficient to fay that they were due the 25 December before the Aiilion brought,
for this is true if they were due before.
S. C. cited 13. Covenant for that the Plaintiff by Indenture let to the Teftator
■^•"P; =^ a Houfe in Fleet-ftreet, for Yearsj and the Leliee covenanted to repair
Siiow.47^. ^^ -ixitllfrom Time to Time during the Term ; and at the end oj the Term to
iL-— ibid. ^^^"^^ the fame well repaired to the Le^or i and Alfigns the Breach, tor
i,iic,. & C that he did not leave it well repaired at the end oj the Term. Exception
cited i)tr v/as taken to the Declaration, becaufe the Breach was alfigned in not
^^'' delivering up the Houfe well repaired at the end of the Term, and
he
CovLoant. 44 1
he does not fl'czv in what Poi&t it was not 'isacll rcpatnd i Sed non Al-
locatur ; For the Breach being according to the Covenant isfufficienc.
But if the Defendant had "pleaded^ that dt the aid of the I'erm he deliver-
td it up -well repaired ; Then if thie PlaiHtiff will affign any Breach, he
ought Particidarly to ^evj in what Point m was not repaired^ io as the
Defendant might give Particular Anfwer thereto ; And Williams J.
laid, it was lo refohed in a Cafe between 'BoylC flllO %dX\>Z., that
in a Declaration in Aftion of Covenant, it fulHces to aliign the^Breach
as general as the Covenant is ; wherefore it was adjudged tor the Plain-
tiff", Cro. J. 170, 171. pi. II. Trin. 5 Jac. E. R, Hancock v. Field
& al'.
13. Where a Breach of Covenant is fufficiently alleged the not lliew-
iing the Breach according to the ufual Form of Etfic non tenuit Conven-
tioncm is not material, and there need not be a Repetition. Cro. J,
297, 29S. Hill 9. Jac. B. R. Barvvick v. Gibfon, in the Exchequer
Chamber.
14. In a Covenant were infenjible JVords and though the Deed wa;;KollRep.
only between A. of the one Part, and B. and J. S. of the other, yet^"^ff'' 5^'
J. S. who -zt'^i «o Party nor fealed the Indenture was named as a Covenan- ti,g infenfi-
ior. In aiiigning the Breach the Infenlible Words, and alfo the ble Vvords.
Name of J. S. may be omitted. Cro. J. 358. pL 18. Mich 12 Jac.
B. R. Goodman v. Knight.
15. Covenant &c. againlt the Defendant, f(rr ploughing Lands "which
were not Niiper laid down toPafiure j The Quertion was, what time ffiall
be comprehended by the (Nuper) but not relblved ^ but in fomeCafe 14
Years may be Nuper and in fome Cafe 20 Years may be faid Nuper,
but all the Court agreed that the Plaintiff' ought to have floewed a certain
Breach (viz) that the Defendant had ploughed up Lands, and fhewed
what Lands which were not lately Arable j and therelore adjudg'd,
quod Querens nil capiat per Breve. 2 Bulft. 258. Trin. i2jac.Genner
V. Larking.
16. Tenant for Life of a Paik made a Leafe thereof, with all Pro-Popham.
fits of the Deer for 5 Years, and the Lellee covenanted Tearly^ and in 146 Tai'bot
qnolibet dildorum annoruuiy to deliver to theLeJfbr fo many Deer. Breach was, ^- Lacen,
that the Leffie had not delivered the Number of Deer meneioned in the Cove-^'-F"}'''
fianty after the s ^ears ^ But per Curiam, t hole Words, in quolibit dic-c° J^ingly"
rorum annorum, lliall not have Relation to the natural Life of Lelibr,
but only to the 5 Years, and not to the Life ot the Lelior. 2 Roll.
Rep. 38 . Trin. 16 Jac. B. R. Talbot v. Levifon.
18. Covenant whereby the Defendant covenanted to find the Plaintiffln Covenara
xsith A^eatj Dnnk and yipparel^ and other Neceffaries, and alligns the^-)' *"' -^?-
Breach as general as the Covenant, and does notjhew what other 'Things^'"'^'l\^'
were neceffary j and therelore the Court held, that the Declaration was lia(];er'&r
ill, and the Judgment being upon Nihil Dicit, and inure. Dimx^ts Breach i\'"
given, the Judgment was reverfed- Cro. J. 486. pi. 5. Trin. 16 Jac figned ri^t
B. R. Mills V. Aftell. V''^^' ^■'>y
he liip.wted
floufet and did not inftruB hie Apprentice in Hi 'frade, nor find him Meat, Drink, and other Neccffuries SPa
is no need to affign the Small fo |)articularly ; and Judgment for the Plaintiff". 5 Lev. 170. Trin "6
Car. I.e. B. Proder v. Burdett. z Show. 442. pi. 405. Burdet v. Proftor, S. C and Judo-jnent
in C B. aflii-med in B. R. Ibid; 175 cites t> C. 5 Mod 69 S. C and JudgmSit af-
firmed. I Show. 242, 245. in the Cafe above it is faid, that the Rule wherethe Covenant is<»e-
neral that the Breach may be fo too, as in Cro J. 504. 969. Cro Eliz,. 914. Noy 50. reaches not ciiis
Cafe, thole Cafes being all of Covenanti to enjoy, and there it lies I50t in the Party's Knowleio^e.
S X 19. Co-
Covenant.
446
aRoll Rc-p. 19. Covenanc, -whereas he had fold to the Defendant all his Copy held
22 Buvnell j^^ujfi ifj f. that if it did exceed the Qa^ntity of 8 Jcres, to bQadnuafur-
V. Wood, ^.j ^^■^■Q..^i,2^ to to the Proportion of 16 Feet a/id an half J ur every Pole, that
S.Cadjuap^t /7(;//jort/^ pay j Or every Acre over and above the 8 Acres fo to be admeafnrcd^
X^il'i^htl.''- according to the [aid Rate of 4 /. for every Acre, and alleged ^t hat the Copy-
grecmeiit hold Land was 12 Acres meafared by the [aid Meafiire. The Delendant
hut been, ^^j^ there were not 12 Acres meafured i but lound for the Plaintiti" ;
bl''rir\fme'!.'-' It was faid, the Breach was not well aliigntd, becaule it was not at-
lured, then kged that the Lands zvere admeafured, and till then the Snrplufage cannot
the mutual l;e knoivn ; Sed non allocatur ; {ot ihc Plaint if might meafure it pnvate-
Burwell v. Wood.
2 Roll ller. 20. Covenant, for that he let to M. a Water- Mill in the Panih oi S.
144. Pieney and all Houfes, Buildings, Walls &c. and Dams, to the laid Mill be-
V. HunifriesjQ[,g[r,g for 21 Years, and that he covenanted to repair the Ho/iies, Dams,
^^[^''^'l^f^ U'iuer-Coiirfes and Banks to the Mill belonging, and leave them fiificiently
tendeddwt repaired &c. and four Mill-ltones. A Breach aiiigned -dias m nut rtpair-
■ they are in i„g the Mill and jlIill-Banks, and Jor not leaving the Mill-Stones ; Ex-
the (ame ception was, becaule not fhewedin what Fill t hey -juerc, nor '■diheihi.r it u^as a
^'^'^^' Corn-Mill, or Fulling- Mill ; Sed non allocatur; For all is one, the
Breach being alfign'd in not repairing &c. And adjudged' tor the Plain-
tiff. Cro. J. 557. pi. 2. Hill. 17 jac. B. R. Brelley v. Humphry.
Palm. 27S. 21. Debt for to l. ufon a Deed reciting, that whereas W. C. had given
5. C. but" (ii-jers of his Goods to J. A. the 'deflator i he covenanted, that if the [aid C
6. P.docs ao^^jjfjui^ pay a Debt of 6} I. (Jor which thefaid J. A. flocd bcnnd in 120 /.
appear. Jq pay to one J. S. upon the zd of Jane then nest following) and fJjould fave
harmlefs the [aid J. A. from the fame, that then the Plaintiff Jbould have
and enjoy Conccffio'nem of the [aid J. A. oj the Moiety of the faid Goods ;
Ad quas Convent iones perjorniandas he obliged himfelf by the faid Writing to
the Plaintiff in 60 1, and alleged in Fatio that the faid IF. C. upon the 2
JunefecundimFormamSFffeti.'Scripti pr^d' paid 63/. by which IF. C.
'has faved hnn harmlefs from the faid b^ I. fo that he was not damnified,
and that neither thefaid J A. m his Life-time, nor thefaid E. his Kxecu-
tris ftnce had made any Grant unto him of the Moiety of the faid Goods
granted him by the faid J. per quod Atlio accrevit &c. The Delendant
pleaded, that the /did IF. C. had not paid the faid 63/. &c. Whereupon
they were at llibe, and Verdi6l and Judgment for the Plaintift^ and
now alTigned lor Error, that here was not a good Breach, ift. Becaufe
he does not Ibew what the Goods were whereof the Deed of Gift was made ;
Scd non allocatur, becaufe the Generalicy is fufficient. 2dly, The Al-
legation is, that he hap faved him harmlefs from the 63 /. whereas it ought
tu have been from the 120/. 3dly, Becaufe he does not Jhew that he re-
qnefied a Grant of the Moiety oj the Goods, and tender d a Writing unto him
tojeal; For he being the Party who is to have the Benefit thereof, ought
to malce the Tender i And tor thefe Caufes, but principally for the fe-
cond, the Judgment was reverfed. Cro. J. 66i.pl. 10. Hill. 20 Jac.
B. R. Archer v. Dalby.
Palm. 588. 22. K.Conufee of alStattite, extends and ajftgns it to B. and afterwards
Perfon's ^ grants the Land to C. and covenants that notwithjlanding any Aif done by
Cafe, f-.C ^^^^^ ^j. ^^y o^/3£r by his Confent, the Statute extended, and Exca/tion re-
accordingly. ^^^^^^^ ^^ torce-^ Adjudg'd that this Alignment was a Breach; But re-
verted in Error ; For notwithltanding the Aliignmcnt the Statute itanda
in P"oice, but it the Declaration had concluded Eo quod concelfit to
him &c. whioh implies a Covenant, this Action had lain ; But not-
witlfianding this Ajjignment, the Statute is tn Fcrce, and the Ccnutec
may
Covenant. 4^1.7
tnay releafe it. But if he had ccvtnatiitd that the Grantee fijotild have it
•witbottt Dijinrbance, this AJfigummt -xoiild- be a Breach by reafon of the
H'ord (Grant) but here the AClicn is IrcngH ai a Covenant in F-JQ. z Roll
Rep. 399- Mich. 21 Jac. C. R. Pcurfon v. Jones.
23. Upon a Marriage between the Son of T. and the Dauehter of C. Lat. iffz.
it was covenanted, that after the Marriage ^c. T. pould find to his Son^-^- 'i^'']
andUife, and their Iffues, competent Entcrtaniment of Meat c^'"i J^rink^^^'^°]^ff'^^^*
and during the Life cf'T. and to live with him in his Houfe^ and that if the^h^ix the *
(did 7! the Sofjy and his Wife, fhould dijlike to live together, that then ?y^tf Wife and
Son and Wife jbould have fiich Lands and Goods oj ^. the Father^ and to Father diC
hve where they pleafe. The Son having J/fne dies. The Wife takes a fc-''^^'^^^^^^
cond Husband. The IVife and 7! the Father difJike^ anA diiagree &c. Husband dc-
And now R. brought Covenant upon the Indenture for the Lands and Goc^h. manned the
Whitlock faid, that that is a Difligreement within the Covenant, be-'^^"'' and
caufe it came in lieu ol' Maintenance. Doderidge and Jones on the|^°°^'\"^"?
contrary; For the Difagreement between the Father and Son, in theo7theFa-
Lile of the Son, had not been fufficient ; But by the Court, that T. ther.brought
ought to find Meat and Drink &c. to the W ife and her Illue by theCovcnant.
firft Husband, during the Life of T. and Judgment was given accord- ?°^}^-
ing to the Opinion ot Doderidge and Jones. Noy. 865 87. Hill i Car. ^af^es the'
B. R. Crabb v. Tooker. Aftion as
brought by
the Son's W\fc and her fecond BaroPj but ad]-jdp;ed that a mutual Difjgreement between all ought to
be alleged, and therefore fudgment was (^aod Querens nil capiat ; but all agreed that the Wife
might have boarded with T. the Father if flic would, but the fecond Husband could not.
24. S. covenants to furrender her F.J} ate for Life in a Copyhold upon Re- ~ Show. 175.
qiuji; and to permit B. to enjoy the fame, and to take the Rents, Ifjius and^-^- cited.—
Frofts. In Covenant B, aiiigns a. Breach, that jhe did not Jiiffer him tn*^^f^f^^l^^
enjoy the faid Lands, but had received the Rents ksc, from the 7}mki!!gof ()W. ■^i.c-i^.
the Indenture to the Jime of the Writ &c. Exception was taken, that there 1 1- S. S, it is
was no Requeft as to the Permiffionj Sed non allocatur ; For the Re- ^"^'^'^'^'.'^^S.
quell is only to the Surrender. 2dly, That a Special Dilturbance isj^^^ aflfm as
notalkged. jdly, The Breach is too generally without ihewing what'many '^" '^
Profits Ihe receiv'd ; But the Court conceived, that in Covenant a M.'« Breaches as
fr.ay affign as many Breaches as he --vOill, but not * m Debt upon an Obligation ''^. ^"'^
for Perjormance oj Covenants, for in that Cale there ought to be a Certain-^^"^''
ty, and certainly ailign'd, but in a Covenant it may be affign'd as general
as the Covenant is. Cro. C. 176. pi. 23. Mich. 5 Car. B. R. Syms v. Smyth.
2j. Leffee covenanted to repair the Houfe with convenient, ticccffary^
and tenantable Reparations, and the Breach afftgned was in not repairing
for want oj 'Files and daubing with Mortar, but did not fhew that the Houfe
net tenantable; and the Court were ot Opinion, that he ought to have
fi-.ewn it, for there might be a ityj Tiles and a little Mortar wanting,
and yet the Houfe might ha\e convenient, necelFary, and tenant-
able 'Reparations. Mar. 17. pi. 39. Pafch. 15 Car. i. Conysby's
Cafe.
26. In Covenant againfl the Leffee for Tears of a Houfe for not repairing^
he pleaded that the Houfe was cafually burnt down ; and upon Demurrer ic
was infilled, that the Plea was contrary to v/]mz Leffee had e.xprefsly co-
venanted 10 do ; And Roll Ch. J held, that though the Houfe was burnt
by Negligence, or any other Means, the Lellee is llill bound by his
Coxenant ; and Judgment Nili for the Plaintilf. Sty. 162 Mich. 1649.
Compton v. Allen.
27. Covenant in a Leaje lor Years was to pay yearly 2c/. at Michael-
mas and Lady- Day, by equal Portions, and the Breach alTigned was, that
he did net pay the Rent due at the ajorefaid feveral Feafls, during the Term
aforefaid. It was objefted, that the Breach ought to have been alfign'd
par-
448
Covenant.
parciculaiiy j buc adjudged, that ic was well aliigncd, tor j/crhaps he
never paid any Rene at any of the Days j and lo a Judgment in Dur-
ham was affirm'd in Error, i Lev. 78. Mich. 14 Car. B. R. Coniers v.
Smith.
Jtlod 290. 2.S. In Covenant on a Warranty in a Fine thfe Plaintiff ^e<r/-j/-W, that
194 S. t'.. one S. habcns legale Jus S Tituliim did enter upon him, and eviif htm of a
adjudged by q'(;Ym for 2 cars. Exception was taken, that tkis might he by a Title derived
hnn'lT f^o"'tf''«P^^'"^'u^'"'J^^f- Adjornatur. Mod. 66. pi. 14. Mich. 22 Car.
Car. i^B. R 2. B. R. Wootton V. Heal.
th.1t the -
Ple.idingis ill, and not help'd by the Verdift, and Judgment for the Defendant. Lev. ;oi.
.S. C and Judj;nient accordingly. . Sid 466. pi. 2. S. C. the Pl.iintiff prayed Judgment againit
liinifclf for his own Expedition. 2 Saund. 17;. S. C. adjud;j'd.
aKcb. 754. 29. In Debt upon a Deed, containing feveral Covenants^ for Perfor-
pl. 16. Bur- mance whereot the Defendant obliged himfelt in the Penalty of 40 1.
"rf ^s ^c' ^'"-^ counts, that the Defendant had broke the Covenants. Upon Noa
ftate's tlii.s as e^ Fa6lum pleaded, the PlainciH: had a Verdift, and it was moved in
an Action ot arrell of Judgment, that the Declaration was ill, tor there was no parti'
Debt ciilar Breach affigned of any one Covenant ^ adjudged for the Plaintiff j
'^'n'^IiV"" For though this would have been ill upon Demurrer, yet here it is cured
Perform"'' by the Verdidl. i Vent. 114. 126. Pafch, 23 Car. 2. B. R. Barnard v.
ance, and Michell,
not an Ob-
ligation generally, but a Deed with Covenants, and a Penalty fubfequent on Non- performance there-
of ; Adjoniatur. — . Ibid. 766. pi. 44, S. C. held and adjadg'd accordingly.
30. Covenant that Baron and Teme fljould farrender at the next Audit at
C. and Breach alTigned that there ivas an Audit bih of April, and no Sur-
render ; to which the Defendant demurred, becaufe this is not faid (jhe
next Audit') but being averred that he did not farrender ad pnedittum prox-
imtim iter, it is well enough ; Per Twiiden and Rainsford, the relt be-
ing ablent, and Judgment for the Plaintiff. 2 Keb. 865. pi. 18. Hill.
23 & 24 Car. 2. B. R. Read v. Jackfon.
31. Debt upon a Bond tor Performance of Covenants, amongft which
one was, that the Defendant thould convey fuch a Tenement Jor the Lije of
the Plaintiff, and the Life of two others, fuch as the Plaintiff Jhviild name,
and that he would give him Poffeffion before Chrijimas. The Delendanc
pleads, that he always was, and is ready to convey, if the Plaintiff would
name his Lives, but by renfon the Plaintiff' would not name his Lives, he
could not make his Conveyance. Upon this Plea the Plaintiff demurs,
and Ihews for Caufe, becaufe the Detendant had not alleged that he gavt
him PoffeJJion before Chriflmas, and that he might have done, though he
could not convey till the Plaintiff had named ; fed per Cur. Judgment
was given for Delendant, becaufe the Poffeffon jhall not he intended a di-
vided Thing, but a Pcfjeffion purfuant to the Ltafe that he was to make ;
for othervvife the Polfellion given would be an Aft done to no Purpole,
for he might turn him out again prefently ; Adjudg'd for Defendant.
Freem. Rep. 121. pi. i42.Trin. 1673. in C. B. Twytbrd v. Buntley.
Vent. 175. 22. Covenant tor quiet Enjoyment againft all Perfons claiming un„
d otao-'^^'^^^^ ^- ^- andy&ciwj that fuch a one did dijturb him, damans Titulum
pear . .under Sir P. V. and the Detendant demurred, becaufe he did not fay Le-
2 Lev. 2.6. galem Titulum; and for that the Court took this Difference, that where
S.C.butS. P.^ j\^.jfi Diakes a general Covenant againj? all Perfons, there a Breach of Co-
f^oe^»o^^?^ rj^fiant /.ball not be alleged by a Dijturbance, anlefs it be by a lawful Di-
\ Keb i()~.f^urbance i but otherwife it is when the Covenant is to enjoy quietly againfi
pi. 58. S d "^af articular Perfon, according to the Dillercnce taken in Cafe of CtCP
adjudg'd. jjj^j0 ^^ <S!M)i iu Hob. 34. And the Court faid generally in Covenant ic'
is
Covenant. 449
is fufficient to follow the Words of' the Coveiun:. Frcem. Rep. 103.
pi. 121. Pafch. 1673. Lucy v. Leviilon.
33. y/. and B. were bound in a Bond to C. for the Payment of 20 /. at a.
certain Day. A. covenants with B to fave him harmkfs from the (aid
Bond. B. brings, an" Aftion ot Crjenaut^ and alleges lor Breach that C.
j'ncii him m the Exchequer upon the [aid Bond^ and had Judgment againjf
ban, buc he does not allege that A. did not pay the Money at the Day. Ic
was urged lor the Detendant, that lor all appears, the Money might
be paid at the Day, and then, though C. did fue B. and recover, yet
ic was no Breach of the Covenant, becaufe the Suit was tortious, and
the Covenant fhall not be extended to fave harmlefs from VV"rono-s, and
therefore he ought to have averred that the Money was not paid at the
Day J But on the other Side it was faid, that there is a great Difference
between a general Covenant to fave harmkfs, (for that Ifjall be intended only
againfl lawl til Wrongs') '^"^ ^° 7^"^"^ harmlefs again ft a particular Perfon^
for that IS againfl tortious as well as rightful Ad stents Hob. 35. Befides, it
cannot be irucnded chat the Money was paid when it is fet forth chat
(1 fued and recovered ; But Vaughan Ch. J. faid, the Books did gene-
rally make a Difference between a general Saving harmlefs, and when
it is againlt a parcicular Ferion, buc he did conceive there was none at
•alii for the Reafbn was, the fame in both, which is, when a Man is
wronged the Law gives him his Remedy, which holds as well againlt
every Body as againil a parcicular Pcrfon ; But the ocher Judges were
oi a contrary Opinion, and gave judgment pro Quer', Vaugh'm being
gone into Parliament. Frecm. Rep. 142, 143. pi, 163. Hill. 1673.
Hill V. Browne.
34. Covenant, in which the Plaintiff declared, that the Defendant ; Keb. 142."
covenanted to build htm an Houfe according to the Rules prefcribed per Sta- P''. '*■ ^' ^"
tut um^ for rebuilding London, and aliigned the Breach, that he did ?;o^ l^s^C.*^"
■cover the Cant divers \!Uith Lead, according to the Rules prefcribed per Sta-c'wd Ld.
tuluni prxdf, there was Judgment by Detault, and a U^ric of Enquiry Raym. Rep.
and 15 1. Damages. It was moved in Arrell, that the Breach was nocl^',P"L ,
fufficiently alhgned, he not alleging in Fad, that by the Ad the Cantilivers ^'■^°y ^"-J'
ought to be covered with Lead j but per Hale, it being fiid that he did not
cover them with Lead Secundum Regulas per prsdift' Scatutum pr-e-
fcriptas is an Averment, that the Statute {0 prefcribed. 2 Lev. 85.
Palch. 25 Car. 2. B. R. Dixe v. Jeninan.
35. In Covenant on a Bill ot Sale, that the Defendant was the legal
Proprietor (if IV. fold, and had Power ; the Plaintilf'alieges 5r^^i-j&, that
he was not Proprietor, and does not fay Et/tc non tenuit Ccnventioncm, fed
inj regit; the Defendant p/^.'/^/j tenuit Convent ionem:, to which the Plain-
tiff demurred i and per Cur. the Breach is fufficient, and \\\q. Et/tc infregit
is but Form, and well enough befide; Judgment lor the Plaintiff 3 K,cb.
396. pi. 97. Mich. 26 Car. 2. B. R. Streeting v. Hinde.
36. In Co\-enanc /or not repairing a Hotife let in S. being in Decafii, not
faid wherein, to which the Defendant demurred, and Ihewed for Caufe,
that it v\ as not particularly fet forth wherein it was m Decay, which per
Cur. is ill, as well as in VValtei And Judgment for the Defendant, if
Parties do not agree to amend, 3 Keb. 478.pl. 11. Trin. 27 Car. 2,
B, R. Portland (Countefs of ) v, Andrews.
37. A. granted a Rent-Charge of 200 1. to B. and C. their Heirs, fori Mi.l. 153.
the Life ot M. ad Opus 6? Ufum of M. and covenanted to pay the Rent^"°''^ ^•
ad Opus &. Ufum of M. The Rent not being paid, B. and C. bring Cove &''s'''p'\^'
nant, and allign the Breach in not p ^ymg the Rent to themfelves Ad 0/;«.- Agreed acS
Ufum of the faid M. The Defendant demurr'd, becaule the Words incordin^iy,
which the Breach is affigned contains a aVt'^/z?/m' P>-£^«««; i But it be-^"'"' '^'''/
ing affign'd in the Words of the Covenant, the Court held it good. ff' '^'"'^"^
Mod. 223. pi. 12. xMich. 28 Car. 2. C. B. Baicawen v. Cooke. AlXoJ-^
ienA.int
night have pleaded it, that being a Performance in Subftince, bat i: ihall not be intended without
p'eadirg ir, arid Judgment lor tiie Plaintitf.
i y 3S. Co-
45°
Covenant.
2 Show.
;6. pl. 159-
S.C. but
S. P. does
not appear.
K Show.
248. pi. 251.
S.C. the
Court
thought the
Declaration
ill, becaufe
altoi^ether
informs! ;
but tlie Ex-
ception on
whiLh tlicy
^S. Co\'en-3.m that the Plauit iff' fljGiild have the Jirjl Quarter's Rent dm
at' Lady- Day ^ after the Date of the Deed i Breach ailigned, that the De-
jeiidant obffraxit et impedivit ctnn (the Plaintiff) a recipendo &c. It was
moved in arrelt of Judgment, becaufe the Plaintiff Ihews not how he
was hindred, and cited i Bulll. 139. 3 Cro. 121. PClI \l» Cl05jCr»
But it was anfwered and confefs'd, that Non permilit is too general,
fur there is no Aft done, but by inipedivit & obllruxit it is clear fome
A£t wat done to the Plaintiff's Hindrance, which A£t the Defendant
beft knows himfelf } Adjornatur. 2 Show. 75. pi. 58. Trin. 31 Car. 2,
B. R. Prefcott v. Pemberton.
39. CovenAnz Jor Paynu/it cf Rent which was referved payahk at then
fnofi nfttal Feajis of the Tear^ St. Jvbii the BaptiJ} and Chrifirnas, or within
1 4 Days after, thefrfi Payment to be at Chnfimas next after the Date.
Breach affigned in Non-payment oi'ihe Rent at Chnjlmas firll, and t':ok.no
Notice of the i^thDay after ^ and upon Demurrer it was urged,rh2c ihe 14
Days after fhould not reler to the firft Payment at Chriltm-iji, but tliac
it was to be abfolutely on Chrifbnas Day ^ but held by the Court, that
the Defendant had 14 Days after the Jirfi Chrijimas a.s well as any ocher
to pay his Rent in ; and therefore judgment was given lor the Defen-
dant. 2 Show. 77. Trin. 31 Car. 2. Anon.
40. Plaintiff declar'd of a Covenant to repair all the Pales of the Gar-
den demifcd, except all the Pales of the IVcJl Side, and alfiga'd t.ie Breach
in not repairing the Pales contra For mam CojrJ^iitionis^ "joithout fbe-jDing ihat
the Default was in the Pales not excepted. Defendant pleaded that he had
repaired the Pales according to the Covenant. Verdiit for the Plaintiff,
and Judgment accordingly by reafon of the Verdict ^ but it was agreed,
that if the Defendant had demtirr'd. Judgment ought to have been for him.
2 Jo. 125, 126. Hill. 31 & 32. Car. 2. B. R. Anon.
41. A Breach may be voell ajjigned though not diretily ivithin the Words
of the Covenant j As where in a Charter- Party it was mutually covenanted,
that the Majrer of the Ship (who was the Plaintiff) Jhould pay two Parts
of the Port-Charges^ and the Faff or of the Defendant the ^d Par^ through
the whole Voyage. The Mailer declares, that he failed from L, to C,
and paid 2 Parts of the Port-Charges for himfelf\ and the yt Part for tht
Defendant^ who not repaid him. After Judgment by Default, and a
Writ of Enquiry return'd, it was objefted, that the Defendant was not
bound by this Covenant to pay the 3d Part to the Plaintiff, but to the
Collector of the Port-Charges, and theretcre he ought to have ihewn,
that the Defendant had not paid the 3d Partj Sed per Curiam, the
Plaintiff having averr'd, that he paid the 3d Part, it iliall be intended,
that the Defendant did not, and in his Default the Plaintiff was Ibrced
to pay the Whole to prevent the Ship's being Hopped in the Port,- And
though it was not faid, that they were paid in this Voyage, yet it Ihall be
intended fo to be, it being alleged to be paid in the fame Ports where
the Voyage was faid to be made. 2 Jo. 186. Hill. 33 & 34 Car. 2. B. R,
Bellamy v. Ruffell.
42. Covenant with aBrewer for Grains ; the Brewer mixes Hops with the
Grains and fpoils them i Covenant lies though he declares fpecially. 2 Jo.
191, 192. Pafch. 34 Car, 2. B. R. Goodhand v. Grilfith.
43. Covenant brought on Articles indented, and in the Memorandum
it was, De Placito Conventionis fra[i\ but the Declaration was, as it is
in A^ion fur le Cafe, quod cum per faihim Indentatum tejlatur ; ^iiod De-
fendens concejjit, and concludes not proat folet in Cov:nant,EtJic mf regit Con-
vcntionem. Alter a Breach affigned, and a Demurrer, the Court was of
Opinion, that this is an A£lion of Covenant, and that it is not mceffary to
conclude Et Jic inj regit ^ nor ufual in Pleading to fay De Placito quod teneat
Conventionemi But the Covenant being that the Delendant non relaxa et
a Debt
Covenant. 451
a Debt affigned to the Plaintilt" without his Leave, the Court was of adjudg'd the
Opinion, that the Breach was not well aflij^ned ; and gave Judgment, ^'^'-"'?^"''°"
quod (^uerens nil capi;it per Billam. z Jo. 229. Mich. 34 Car. 2. becfufe'the'**
Copping v. Slaymaker. Covenant
was, that he
iflioulci not alien without Licence, and rhc Bi-isch t^ai;, that he made a Leafe contn Foirnam & Effec-
tum C:onventionis prxdiftjc, and does not fay abfque Licentia ; Held naught, and Judgment for the
Defendant. Skinn. 120. pi. 15 S C. that the Plaintifl not alleging; the Rclcafe to be without
his AfTent, for ouglit appears it may be with it, and fo no Breach of Covenant?. 2 Show. 309;
pi. 519. S. C. but S. P. does not appear.
44. Covenant &c. upon a Leafe, wherein the Defendant covenanted
to repair- the Buildings with all needful Reparations^ principal 'timber only
excepted ; and the Breach affigned was, and that after the Demife 2 Barns,
Parcel of the tenements demifed, were in Decay for want of 'Thatching and
Walling, and net for want of principal Timber. The Defendant Protef-
tando chat the Barns were not in Decay, pkads that he was ready to re-
pair &:c. where necelTary, (principal Timber only excepted) /-/Y/ tber';
'dHas a Ncccfftty of t-^o principal Beams of Timber to fupport the faid Barns,
of which the Flaintiff had Notic-:, bat re fifed to ddrjer them ; and upon a
Demurrer to this Plea the Plaintiil had [udgment, bicaufe the Udin-
danc gave no Anfwer to the Breach particularly alleged by the Plaincifi, thai
the Barns were in Decay for want of Thatching and Walling, and not (or
want of Timber. 3 iS^els. Ab. 122. pi. 3. [Mich. 3 Jac. 2.J cites Lutw.
308. Brailsford v. Parfons.
45. Covenant &:c. on a Leafe of an Hnife for Years, wherein the
Defendant covenanted to repair it at his own Charge, and all AqiiediiBs^
Bridges, and Fences ^c. with Banking.^ Ckanfmg^ and Fencing ^c. during
the Term ; the iJrw^^ affigned was, that the Houfe and 20 Perches of
Bank, 10 Bridges, and ^o Perches of Fence were broken, pulled up, broke
down and fpoiled. Exception was taken to this Declaration, that the
Lreach affigned fo generally was not good ; but adjudged that the JJe-
claration was good, the Breach being affigned according to the Words of
the Co'-cenant: i Lutw. 326. Hill. 3 & 4 Jac. 2. B. R. Lee v. Johnfon.
46. A. covenanted with B. to obtain a Grant of Lands from C. A is
bound though C. has no Title. Comb. 172. Mich, i W. & M. in B. R,
Scounden v. Hawley.
47. Covenant to permit the Defendant to carry (iway Trees ^ Breach quoi
nan permifit, fed objlnmt £1? obfittpavit ; held well upon Demurrer, and
Judgment tor the Plaintiff, i Show. 252. Hill. 2 W. & M. Dve v.
Wells.
48. Breach of Covenant may be well affigned in the Words of the In-
denture tho' there are disjun£live Words in the Covenant. Carth.
124. Pafch. 2 W. & M. in B. R. Rawlins v. Vincent.
49. Covenant to keep in good Repair the Houfe, Outhoufes and Stables i
and the Breach affigned was, that the Defendant had permitted the Racks
in the Stable to be in Decay. After Verdict it was moved, that the Plain-
t\Spould have fet forth, that the Racks were fxed in the Stable, and fo
Part of the Freehold, for they might be in the Stable and lay loofe,
and Pollexfen Ch. J. was of that Opinion j but the other Juftices con-
ceived, that it Ihouid be intended that they were fixed for life there, and it
would be very remote to give it any other Coultru£tion j and {o Judg-
ment was given for the Plaintiff 2 Vent. 214. Mich. 2 W. & M. in
C. B. Anon.
50. in Covenant &c. the Plaintiff declared, that the Defendant had
covenanted j or herfelf, her Executors, Adminiflrators and Afftgns, that fhe
would permit the Plaintiff' to make a Drain &c. and the Breach affigned
was, that fhe affigned the Lands where the Drain pould be made to one T.
ijcho wculd not permit the Plaintiff to make the Drain ; there was a Plea,
and Replication, and Demurrer ; and it was objected againft this De-
cJa-
45^
CoVdUUlt.
eLa'auon that it Wds ill, becau{e the Covenant was tor the Defendant
&.C. or her Ailigns, to permit &c. and the Breach is laid in the Af-
li^nee's not peraiitting, arid it appears by the Pleading that the j^Jftgn-
liVfit made to f. iDas diverfe Tears before the Demife made to the Plaintiff
:ui(i this Covenant cannot extend but only to the Alfigns of the Defen-
dant after the Leafe made. Belides, tofiy Non permilit, without Ihevv-
ingfomeipecialDilturbance, and which ought to have been particularly
let forth, that the Court may judge of it, is ill ; and judgment accord-
ingly. 2 Vent. 27 ^J. Hill. 2 & 3 \V. & M. in C. R Targett v. Lloyd.
1 Salk. i9()/ 51- Covenant by the Allignee of a Term againlt the firit Leffee, in
197. pl. 2- ' which he covenants, that the Plaintilflhall enjoy /r^^ ^«(^ c/^^r of aU
S.C, the Incumbrances^ and favcd bannlefs and indemnilicd jrom all arrears of Rent.
5ken^ro°" ^"^ affigns fx Hreach, that 64 /. Rent was arrear^ and that he delired
the^AlT^'f^n- the Defendant to pay it, but he did not do it i the Defendant pkads^_
ment of "the that as to 60 /. Pare of the faid 64 I. that he had left it in the Hands of
Breach in ^;,^ Pla'tnti(f\ ea Intentione that the Plaintiii7''-^'''/W pay it to the Lcfor^
a Difturb-^ ^;a/ as to the 4 /. Refidue of it, that he bad paid it bimfelf to the Lefur
ance or ' &c. to which the Plaintiff demurred, becaufe ea Intentione ad folvend"
other r^e is uncertain ; for his Intention is not a Thing ilfuable ; Sed non Al!o-
cialDamni- eatur ; for he might reply, Nonreliqait Modo ^ Forma, and thereupon
^'^.^""l^j Ifiue might be joined, and upon this lilue he might give in Evidence
whicTthe any Matter to prove his Intention ; and it was excepted to the Decla-
Rent being ration, hecaafs no Damni/rcation is/bs^i'/iy for it is hot like to a Condi-
behind is tion of a Bond broken, tor there is a Damage immediately by the Par-
"" "^aken^' '^'^^ ^^'mg fubjeft to the Penalty, but it is otherwife here, till an Ac-
by^he*^" tion brought, or Diitrefs taken, or other Damages accrued i and Roll,
Court, and Tit. Condition, Cooper and Pollard 433 was cited, which was the
they took f^_,^g Q^fg [^ Elfeft ; and another Cafe lately adjudged upon the fame
fi'i''! mere R^afon. Skin. 397- pL 3i- Mich. 5 \V. & M. in B. R. Griffin v. Har-
thc'Countcr- rifon.
bond or _,..,. , -r 1 1
Covenant is f^ivcn to fave harmlefs from a penal Bond btfore the Condition broken, there if the penal
Sum be not paid at the Day, and To the (Condition not preferved, the I'arty to be faved harmlefs does
by this become liable to the Penalty, and fo is damnified ; but if the Cou'itcr-bond be given after the
Condition of the Obligation is broken, or to fave harmlefs from a fingle fiill without a Penalty, there
the Counter-bond cannot be fued without a fpecial Dimnification. 4 Mod. 249 S. C. accord-
ingly-
52. The Plaintiff declared, that the Defendant covenanted to pay
yearly during the Plaintiff's Life at the two Fealts of Michndmas and
Lady-Day^ 3 /. ds. 8 d. by equal Portions, and aliigned for Breach^ that
3 /. 6 .f. 8 d. for a Tear at Lady- Day, laji was in arrear and unpaid ; the
Defendant demurred and objefted, that it does not appear when the
Money became due ; for it might be behind and unpaid at Lady-Day,
and yet might become due at Michaelmas or Lady-Day before ; but
the Court held this v.ell enough upon a general Demurrer, and gave
judgment lor the Plaintiff, i Salk. 139. pi. 3. Trin. 6 VV. & M. in B.
R. Stagg V, Hind.
5 Mod. 195. 53. Debt upon Articles of Agreement, by which the Defendant was
_S. C. ad- Defendant was to tender a Conveyance to the Plaintiff, his Heirs or Af'
]-"'* Sive? A'" '■> ^"d ^^^ Breach aifigned was, ehat the Defendant did not tender a
fitTtaken. Conveyance to the Plaintijf; and it was objefted, that this Breach was
—12 Mod. not purfuant to the Covenant by which he is to tender to the Plaintiff
86 SC. and 01- his Alfigns. But per Cur, the Difference is between doing a Thing
f.me Diver- ^^ ^ ^^^^ ^^ j^j^ Alfigns, and by a Man or his Alfigns. In the lail Cale
"•*'■ the Breach mult be in the Disjunftive, that it was not done by him or
his Alfign.s, but in the titlt Cale it is lufficienc to lay, that it was done to
him, f )r an Aftignment Ihall be intended to b^- done to the Plaintiff him-
lelf, and if he alhgns his Incerelt then to the Allignee, and if he did allign
his
Covenants. ^5^
his Interefi: that ought to be fliew'd on the Side ; And fo a Judgment in
C. B. wasaffirm'd. i Salk. 139. pi. 4. Mich. 7 W. 3. B. R. Sinith v.
Sharp.
54. In an Aftion of Covenant the Breach may be affigned as large as the ^^ wasMcS
Covenant is, for all is recover aMe tn Damages, and thole Damages lliall^^ ^'^''"
be tor the real Damages which the Party can prove that he has a£luatly £„^,^*^^J^f.
fuitained. Bat in Delpt upon a Bond conditioned to perform Covenants tn a form Cove-
certatn Indenture fpcci/ied, there zprecife Breach maji be jhe'son, becaufe a"an" you
Breach is Forfeiture of the whole Bond i Per Cur. Ld. Raym, Rep. J"'^'^ ^■^^''
107. Mich. 8 VV. 3. in Cafe of Brigftock v. Stannion. Breach- hut
in an Aftion
of CovetMitit as many as yu wi.V. Freem. Rep. 157. pi. 1 74. Pafch. 1(5 J4. in C. B. in Cafe of King r.'
Cjogle.
55. 8 £? 9 }V. 3. cap. U.S. 8. EnaSIs, that in all J& ions in any of
lUs i\iajefiy''s Courts cf Record, upon any Bond, or on any Penal Sum, for
Niin-Perjcrmance of Covenants, the Plaintiff may ajffign as many Breaches
as he jhall think fit, and the fury upon Trial of fuch Aiiion pall affefs,
mt only fuch Damages and Cojls as have been ufiially done, but alfo Dama-
ges for fuch of the f did Breaches as the Plaintiff Jhall prove, and like Judg-
ment pall be entered on juch Verdiii as hath been ufually done in fuch Ac-
tions ; and if Judgment fiall be- given jor the Plaintiff on a Devitirrer, or
by Confcjiun, or Nihil dicit, the Plaintiff upmt the Roll may fuggefi as many
Breaches as he pall think ft, upon lahichpall iffue a Writ to the Sheriff\
to fummon a Jury to appear before the Jufttces of AJJife, or Ntft Pritis^ to
enquire of the Truth of thofe Breaches, and to aff'efs the Damages.
56. By the '6 ^ ^ W. 3. cap. 10. and 4. & s ■^""■■■^ ^^p. 16. the Plain-
tiff may afjign as many Breaches as he pleafes on Bonds to perform Covc-
imvts &c.
57. Covenant was brought on a Penalty of certain Articles, wherein
the Delendant had agreed to pay fo much per Chaldron for ' all Coals laden
either in Newcapie or in the River Tyne, and brought to London j the Breach
alfigned was, that the Coals -were laden on fuch a Ship infra Portum de
Tinmotith, (viz.) at North-Sheilds, and brought from thence to London.
The Defendant demurred, becaufe it did not appear that Tinmouth is
upon the River Tyne, and fo the Breach not well alfigned, and the
Court cannot take Notice of it judicially, and therefore inclined a-
gainlt the Plaintilr^ but gave Leave to difcontinue on Payment of Colls.
5 Mod. 3J2. Trin. 9 \V". 3. Toddatd v. Middleton.
58. "DtitVi^iv^t covenanted with the Plaintiff, that hz -would pay hins
100 1. in Money, and give him Credit for 100 1. more upon the Plain-
tifl's afftgning him 1000/. Stock in the Bank of England, and that the
Defendant -ivould accept the fame upon Notice on or before 2./\th of May next
following. In Covenant Plaintiff' alleged Notice to Defendant, that
Plaintifl would /e r5(?rt(y to make the Transfer on thefaid 24thof May^j
but the Defendant did not come to accept, and Non-payment of Money
aflign'd for Breach &c. And per Cur. the Breach is ill alligned, for
they fliould afSgn for Breach, that they had tendred aTransfer, and that
Defendant did not accept, for there was nothing to be paid but after Trans-
fer. 12 Mod. 248. Mich. 10 W. 3 Shales v.Seignoret.
59. In Debt on Bond to perform tn Covevants, the Replication muftftiew ''-rf. Rsym,-
a cei tain Breach ; But in Covenant it is enough to aflign a general ^"^P- '°J',
Breach ; Per Holt Ch. J. i Salk. 140. pi. 5. Tnn. 1 1 W. 3. B. R. Jj?^^^fy ^' '''
Ch. J.
60. Apprentice covenanted with his Mafitr not to buy or fell without theLd. Raym.
Maffer's Leave, -jcithin two Tears ; in Covenant the Breach -dihgned was,^^P 'i'^^
that the Defendant Diver/is Dicbus S Vicibus, between fuch a Day and^^ ^ ^^^t^
fuch a Day, fold to H. and ither Perfons unknown j Goods to the Value of anoiher
5 Z 109 1.
^54 Covenant.
Bleach was loo 1. After Verdift for the PlaintifFic was moved in arreft of Judg-
laid for ment, that the Breach was incertaii:^ both ai to 'Times and Per fans ; Buc
bou<'"h^t P^"" ^°^'^ ^'^ '^ certain enough j For it is fo defcribed, that if another
Goods in the A6lion be brought the Defendant may plead a former Recovery for the
fame Man- fame Caufe, and aver this to be the fame Selling ; to which Gould J.
"^ri'rf"'^ ^'^"agt-eed, and that the Aftion here being only for Damages it is well e-
CDidLew' hough; And Judgment for the Plaintiff, i SalJc, 139. pi. 5. Trin. 11
^ W. 3. B. R. Farrow v. Chevalier.
61. Coveu'dnt to grind all his Corn which hz Jhotild tife in his Houfe at
Plaintiff's Mill ; Breach afligned, that there were 500 Barrels of Wheat
ground and ufed in Defendant's Houfe which he did not grind at Plain-
tifl's Mill ; but ill, it not being faid it was his Corn, iz Mod. 327.
Mich. 1 1 \V. 3. Hamley v. Hendon.
Ld. Raym. 62. AlFumpfit to deliver Corn on or before the 5th of January into a
Rep. 620 Barge to be brought by the Plaintiff to receive the faid Corn. The
^ *"h^1^ a ^^^^^^ allign'd was, that he did not deliver on the 5th of January ; ic is
tohs being good without a Verdift, becaufe there mult be a Concurrence of both Par-
■withouta ties i Per Holt, i Salk. 140. pi. 6. Mich. 12 W. 3. B. R. Harmon v.
Verdict; Owden.
but however,
it is aided by the Verdift, and Judgment for the PlairttifF.
2 Lord 63. In Covenant for not repairing the Heir nffigns Breach that the Pre-
Raym. Rep. lY^jfjeg yvere out of Repair, tali Die & per Decern Annos ante tunc
and held 'which included his Ancefiors 'ttme^ and held good, i Salk. 141. Pafch.
that the 4 Ann. B. R. Vivian v. Campion.
Breach is
certainly and well enough afligned.
94. A Covenant was, that the Defendant jhould Dauce^ Sing and A£}^
under the Society of Comedians, and obey Orders ; and Ihould A^ and be
Afftfiing to no other 7'heatre, but what -was appointed by R. and the Breach
affigned was that he Aiied at Oxford, without the confent of the Plaintiff.
The Defendant demurs to the Declaration ; and Pengelly for the De-
fendant excepted to the Declaration, ift. That it it is fet out with Pofi
ht£c &c. which muft be conftrued from the filing of the Declaration
(or bringing the Writ) and it Ihould have been Poll confetlionem in-
denturas, i. e. That he the faid W. did Covenant that he, for five
Years after the making, would not A£t &c. 2dly. This Breach is
not well alfigned j becaule it does not appear that the Play he Acled was
fublick, and if not fo it was no Damage to the Plaintiff^ and the de-
lign ot the Covenant was not to rellrain any Dancing A£\:ing &c.
unlefs where it drew others (to lay out their Money at other Play-
houfes) from the Play-houle of R. Salkeld contra that this Breach is
well alfigned according to the Covenant, and it is not material whether
the A&ing were for Gain or not, but take it to be for no Gain, 'tis yec
Prejudicial to the Plaintiff^ for no Body will fee his Play when they
can fee another tor nothing. Holt and Powel held, that quod Poll
hsec non ageret &c. in the Declaration fliould have been Quod abinde
non ageret &c now Pojt hxc was right in the Recital of the Covenant but
wrong in the Declaration ; becaufe Polt haec mufl be taken to be after the
prefent 'Time; So that the Breach is laid to be after the Declaration. But
it was adjourned tho' the Court thought it could not be made good.
II Mod. 133. pi. 13. Trin. 6 Ann. B. R. Rich v. Wilks.
t>^. Covenant to leave the Premiffes in good repair at the end of the Term
Sec. Breach ajftgn^d that by one Month before the end of the Term they were
not in repair m any Part thereof y contrary to the Form and ejf'eff of the
Covenant ; Exception was lor that they ought to have fiid that the De-
fendant did not leave that in good repair ac the end of the Term, i^ii
non allocatur. Trin, loAnn. P. R. Hamond v. Royfton,
66. Cove-
Covenant. 4.55
66. Covenant by LelFor with his LefTee, that he (hotdd repair the
Premises dcmifid before Michachnas next. Breach affign'd by Leiiee, that
the zSth September the Premiffes were out of repair to be done by the Lefor
according to the Covenants coutain'd in the Deed. On Demurrer to the
Declaration, Judgment was tor Deiendanr, for this is altogetiier uncer-
tain, and it is but Argumentation, that the Leflor had not repair'd ;
the Breach lliould be allign'd in the Words of the Covenant, that he
did HOt repair. There is a Difference between a Covenant Executory
and one not, and laying (according to the Covenant) is uncertain.
Pafch. 10 Ann. B R. Mitchel v. Hamond.
67. A Lejjce for Years Covenants that it /hall be lawful for IV. and two
ethers his Leffors, their Exectiiors, Jdminijlrators or y^Jfigns, or any of
them with IVorkmen^ and other Company to enter and view the Premifjes tf
in repair &c. IV. brings Covenant and aHign'd a Breach^ that he with
Workmen came to the Defendants Houfe fuch a Day and at fuch an Hour
and requejlcd him that they might enter and that the Defendant recufavit
et non permijit, and that IV. and the two other Leffors came the Day and
Hoar to the Defendant's Hotife^ and reqiiejled., and Defendant recufavit &c.
without faying pojlea Set It. &c. Defendant pleads to the whole, and fays
he did not rej life the Plaintiff to e«m-, but anfvvers nothing as to the 2d
Breach alfign'd &c. Sed per Cur. It is a good Plea ; for the two JJftgn-
iHcnts in the Declaration are but one Breach^ it being all laid to be at
the fame Time and Hour for all three might come together and requeft,
and not W. firft, and then he and the other two aicerwards &:c. Mich.
lo Ann. B. R. Wright v. NichoUs.
68. In aifigning of a Breach if there be a varying between the AJpgn-
ment and the Words of the Covenant, fuch a Faii miijf be ajjigned as is a
Breach in Law of the Covenant ■■, per Parker C.J. Palch. n. Ann,
B. R.
69. LelTee covenanted to lime and dung the Land durante Termino,Pei'Eye J-
Leflor died within the Term, and his Heir brought Covenant and jj^^^ ^Jf"""*^
affign'd the Breach, that after the Defcent of the Land the Deiendanr faij^that*"^
did not Durante Termino Lime and Dung the Land. The Court held Defendant
the Breach not well alfign'd i becaufe the not Dunging it and Lim- did not do
ing it fince the Defcent is no Breach of the Covenant, it it was limed "j^''.^""S
and dung'd fo fufficiently before, that it did not need it. Adjornatur. ^ox th™ '
10 Mod. 158. Pafch. 12 Ann. B. R. Sail v, Kitchingham. Breach
ought to be
affign'd in the Words of the Covenant ; And per Parker Ch. J. he fhould have Taid that I)efendant
did not lime them at all, and thnt the Clofes remained unlim'd during the Refidiie of the Term ,
that where a Man is to do one Particular Act during the Term, and which is not an Aft of Con*
tinuance, cnce doing it within the Term is well enough. MSS. Kep. S. C.
70. In Covenant the Plaintifi declares that he the Plaintiff, did Cove-
nant with the Defendant to transfer at a certain Day, fuch a jhare of
Stock with the Dividends and Profits that in the mean timefhould arife up-
on the fame to the Defendant at the South Sea Houfe, at the ufual Hours,
•when the Books of the Company are open, and that the Defendant did Cove-
nant to accept the fame, and pay fo much to the Plaifttijff for it, provided
the Plaintiff did tinder it at the 7'tme and Place above mentioned ; and he
avers that he was at the South Sea Houfe at the Day, at the ufual Hours
when the Books are open, to tender the laid Share of Stock with the
Dividends and Profits of the fame to the Defendant ; but that the Defen-
dant did not accept the fame, Sed penitus Recufavit & adhuc reculat
acceptare &c. The Defendant demurs fpecially. Per Cur. the Plaintiff
has not intitled himfelf tohis Action, for that he has not fhewed, what
are the ufual Hours of keeping the Books open, and that he was at the
Place a convenient Time beforejhutting the Bocks, ready to make a Tender ;
and
4 56
Covenants.
and the Rejufai being not exprejly laid to he at the 'ftme and Place^ pall
not be fo tntendvd ; il it had been fo laid, it would have been good.
Gibb. 6 1, 62, 63. pi. 9. Pafch. 2 Geo. B. R. Bowles v. Markwich.
71. Where the Covenant was that Leflee Ihould quietly enjoy two
Clofes againji all claming cr pretending to claim any Right tn them, he
alFigned the Breach thus that J. S. having or pretending to have a Clann
Time ont oj Mind did enter upon the [aid Clojes, and held well aligned,
and that this Cafe differed iVom the Cafe of Kerby v. Hanfaker, for it
is impolfible here that the Difturber could claim under the Plaintiff'
himfeh, by reafon of the Words Time out of Miud. 10 Mod. 383, 384.
Hill, 3 Geo. I. B, R. Chaplain v. Southgate.
(M. a) Pleadings and Affignments of the Breach.
Joint and Several.
t. rTpWO mude indentures between thtm quod cufM (iterque Ohligatui
JL fuit alteri in two Jingle Obligations they Covenanted between
them ^uodji Uterque eorum ficterit et obedierit Arbitrio et Ordinationi
A. et B. &c. that then the Obligation of htm who Jhall be void and the
Ohliga.iion of hitn who /hall not perfor??i itfhallbeinforce^ and therefore
per Littleton each has bound himielf as well for his Companion that
he fliall perform the Award, as that he himfelf lli;ili periorm it, and
the Defendant pleaded Perfonnance and did not fay that the Plaintiff had
performed alfo and yet good per tot. Cur. For it ffiall be intended that
each pall perform his own Part, for thefe Words quod uterque peter it is
as much as if he had faid quod uterque eorum pro parte fua peterit i For
it is no more but every one for his own Part, and thefe VVords quod
uterque Obligatus alteri in 100 I. is good alfo, and Ihall not betak-
en by this, that both of them are bound to each of them, but fhall be
taken, quod uterque /)ro /t tenetur ahtri feparal iter. Br. Covenant pi.
27. cites 39 H. 6. 9.
2. And alfo in Indentures they fay in the end, ad quas quidein con^
ventiones peritnplendas uterque teneatur alteri in 100 1. this is good and
every one by himfelf feparately is bound to the other ; For thofe
Words are good feverai Words in themleh'es. And fo fee that thofe
fhort W^ords are feverai in themfeives as well as if each feverally by-
two Covenants had Covenanted with the other. Quod Nota, per
Cur. Ibid.
5 Le. i(Jo. 3. R. B. by Deed covenants with j^. Perfons and their Affigns S ad
Pf J''59- £^ cum quolilet eorum, that he was laivfully and folely fetfed ot a Refto-
T^ith's^Cafe '^y- ^'^° of the Covenantees bring Covenant againlt R. B. and held ill,
adjudg'dfor becaufe it vvas a Joint Covenant and the others ought to have joined,
the Plaintiff; Where it appears that every of the Covenantees bath a feverai IntereP or Ef-
but rcverfcd;^;^^ the Covenant poall be feverai in refpecl of their feverai Interefts i
Cam Scacc ^""^ ^^ Covenant be with the Covenantees et cum quolibet eorum, thefe
the Aftion ' ^V^ords make the Covenant feverai. As if a Man demife Black Acre to A.
in C. B. be- and White Acre to B. and Covenants with them et quohhet eorum, &c,
ing brought the Covenant is feverai, but if the Demiie had been to them Jointly,
the Cwe* ^^^ Words cum quolibet eorum are void ; for a Man by his Covenant in rel-
iKinteesand pcQ: of feverai Interell cannot make it luit Joint, and then feverai by
adjudged the words cum quolibet eorum. 5 Rep. 18. b. 19. a. Mich, 29 & 30
therefor Eliz. in Cam. Scacc. Slingsby's Cafe.
the Plainnft ^ ^
_ Le. 47 pi. rto. Anon. S. C in the Exchequer, and adjutlp'd there by the whole Court,
that Covenant did not lie by one of them onlv bat ought to be br mght by all. S. C. cited
i!y Coke Ch, J 5 Biilft. o'S. S. C circd by F.lcmi^g Ch, J. Ballt. 26.
4. One
Covenant. 457
4. One, Lydiate and 6 oxhev Aicr chants covenant jiparatttn with ihe^l'o- ^-^^^
Mali er and Owners of a Ship by a Charter Partj, that one (hall fay 7^ [',;^^,°on ^'"
iUHch, another fo much &c. ]or Carrying of Goods, and the A/a/er <?«^ Lydiate SC.
Owners covenanted w'nh the Merchants /o Ship certain Merchandizes r^Jadjornatur.
'flic h a Fort &c. Held that though the Merchants join in the -Ibid.
Covenant (id elt) conveniunt feperatim, yet this Word feperati}?i makes ^'^^^V^^^'-
this leveral Covenants and not a joint Covenant, and whereas it was^'^t J.g(oiy'j
lurther added, performationeni omnium & lingularum Conventionum the Court
quilibet mercacor Seperatim obligat leipfum &c. in double the Freight, differing in
This is feveral too by reafon of the Word feperatim, and this \V ord ^^'"'^°";g.
lliall refer to the feveral Covenants before, and luhen Covenants are fe- tore moved
vera! they are as feveral Deeds, and the Covenant here on the Fart of r/jf the Parties
Mafier and Owners is Joint. $ ^^P- 22, 23. Hill. 39 Eliz. C. B. to compound.
Mathewfons Cafe. 546 S, C.
3iiiud"''d [hat it is feveral S. C. cited per William'; J, Bulfl. z6. to be adjudg'd that the Word
(.Scparatim) makes the fame to' be feveral Covenants, and not Joint,
5. The Plaintiff declared that J. and E. dimifertiut ; This imports a Canh.<)-j.
Joint Covenant as to the Intereji granted, hut as to Atls fubfeqnent it im-^- C. ac-
ports a feveral Ccvcnant. i Salk. 137. Mich, i VV. & M. in B. R.^'^^fjj^-^^
Coleman V. Sherwin. ifijis. C— '
Show. 79. S. C,
6. If J. conveys 3 Manors to B. C. and D. feverally, and covenants with
them y ^noltbet eormn, that he has convey'd to them a good Eltate j
Thefe are feveral Covenants and not a Joint Covenant. Jenk. 262.
pi. 63.
7. E. feifed in Fee of a Manor convcfd it to the Ufe of himfelffor /.;/<?, ^Wd. 207.
and then to his Wife till T. his Son Ihoiild be 2^; and died. T. granted ^^y Ha"vey
Rent-Charge to JV. and covenanted that he had not altered any EJtate made -j t^jf x.
by his Father, and had done no Atf whereby itjkould be altered, and that recited that
the Landpould be open to the Dijlrefs of N. Adjudg'd that there were fe-^e was feifed
veral Covenants; For the two firlt were Negative, and thelaft Affirma-°^^^'^^^^''£''"
tive. Litt. Rep. 63. Arg. cites Mich, i Jac. C. B, Ersfield v. his patlici-
Napper. had convey-
ed to him,
and fliys, that this Grant was before T. was 24, and that T. covenanted that he had good and lawful
Power to grant notwithftanding any Aft done by him, and that the Land charged fhall be open and
fufficient to his Dillrefs ; and for that the Lmd was not open to thcDilbefs, Aftion was brought ; that
T. pleaded that he had done no Aft, but that the Land fhould be open, and adjudged againft him,
that the Words (Notwithftandin g any KQ. &c.) do not extend to this laft Covenant as to the Land's
being open, which is abfolutely ofitfelf.
8. The Plaintiff had a Reverfion of two Hotifes, one in Fee, and the* - Bulft.
ether for Tears, and makes a Leaje for 2'ears, with Covenant [ * by the ^°\- ^^■
Leffee] for Reparations of both Houfes; and Quellion was, whether the pj^^ ^ q
Plaintiff Ihould have one Adion, or leveral Attions, and adjudged that in s'R.and
he Ihould ha\e a joint Action for both. Erowni. 20. Mich. 7 Jac. Pyot Judgment
V. Ld. St. John. |." '^■^- ^^-
■' nrmed.
9. Indenture of Covenant between A. and B. of the one Part, and C. of ^ Brownl.
the other Part. Among other Covenants one was, it is agreed between ^ [{qD^
the Par ties J that C. enter into Bond to pay A. 160 /. by fuch a Day, which s C. ad-
was not f>aid. A. dies. B. and not the Adminiltracor of A. ihall have pdg'd ; for
the Action on this Covenant ; For the 160 1. payable to A. in his Life '5^'^ a pmt
being to be obtain'd by his Suit on this Indenture, no one can have __q^|Jj. '^.
Aftion upon it, but thofe who are Parties during their Lives, and after 26 S. c!
their Death the Executor or Admmifirator of the Survivor. Yelv. 177. held accord-
Trin. 8 Jac. B. R. Rolls v. Yace. mgly and
-' (o Judg-
ment in C. B, affirmed. And per Fleming Ch. J. where there Is Matter precedent) and apt Words to
0 .\ dra-ar
4^8 Coveiiaiit.
draw feveral Contldei-ation.-;, as in * £L3stf!)tUifoa'5 tafc before, there iVvci-dl Actions of Covenant
are to be brought ; but othcrwile it is where no fach ISiatier appc.irs, as in this principal Cafe, and
therefore the Covenant here being joint, the Piaintitis ought to join in the Action or Covenant, and
fo the Judfjment well given for themy and to be affirmed. Fenner J. faid, that if a Man be bound
to three, vSolverdnr.i to o'le of them, this is joint, and they ought all of them to join in the Action, and
fo in the principal Cufe herd. * See pi. 4.
Keb. 184. 10. Ccveiia/it agii'mik B. and C. on a Covenant in an Indenture Artijl-
P^/)'-^-C- ciallj' to ercff an Hon] e &c. Judgment ivas agamji B. by Default. C.
foi-^ttil'^De- fl'^'^'^'^'^ ^^^^^ ^^ ^-"^ ^- ^^^^ drtificially ereiUd ijc. and lo to liiue, and
feiidant. "" found for C. A Writ to inquire of Damages was mov'd for againlt B. be-
cauie the Afil to be done was to be done by both, and B. is condsmn'd
oi Non-feafance by the Judgment ; But the Court denied it, and held
that B. Ihould not be charg'd with any Damages j For it appears that
the Covenant is perform'd, and C. Ihall have Colts againit the Pkin-
tiif. Sid. 76- Palch. 14 Car. 2. B. R.. Boulter v. Ford.
11. And Windham J. held, that if C. had pleaded chat the Hoiiie
was artiticially erected by him, (without faying by them) and the
Jury had found accordingly, it had been good Performance, becaufu
the Thing requir'd to be done is done, and therefore there is iJilit-renco
between this Cafe and the Cafe where two covenant to go to I'orkj there
the one cannot plead that he went^ but mult plead that they two wentj
For there is a Ferfonal Att to be done-, and the one cannot go to Yorlc by
Deputy as he may erect an Houfe. Sid. 76. Pafcb. 14 Car. B. R. Boulter
V. Ford.
12. The Court conceived, a Covenant to do fcvcral 'Things is as feveral
Covenants, and tiiough he might have aliigned one Breach, yet leverai
are good enough i Judgment lor Plaintiti. 2 Keb. 69. pi. 43. Pafch.
18 Car. 2. Young v. GoUing.
13. A Covenant was between A. of the one Part, and B. and C. of the
other Part, ^ qnemlibet eoruni. A. brings Covenant againll B. only, and
good. 2 Lev. 56, Pafch. 24 Car. 2. B. K. Bokon v. l^ee.
14. A. and B. covenant -with C. for them' elves, and every of them, that
if they renew fiich a Leafe, they will affign the 'lerm to C. A. dies, and the
Covenant being broken, C. fties the Exfctctor of A. Objeftion that this
is a joint Covenant, and io ought to Ibrvive in Charge to B. But per
Cur it is joint and feveral, for (every of them) is as much as for (each
of them) and fo the Party hath Election to iue either the Executor or
the Survivor. Freem. Rep. 248. pi. 262. Hill. 1677. May v.W^oodward.
15. A Covenant which is joint in itleli Ihall be taken feverally when
the Breach affign'd is afeparate Acf of one of the Parties ; per Holt Cii.
J. Cumb. 164 Mich, i W. & M. in B. K. Coleman v. Sherman.
Butifjwfi 16. A.B.andC. in Conlideration of fuch a Rene relerved by a
eMy cf'tht Jyecd-Poll concejferunt B diimfertint to the PiaintilF, and on this Covenant
qfZ'!^'L- '" J^^^ ^^^ Plaintiffbroughtan Attion againit A. and alJigned for Breach
mife, tiien that A. and another by his Command entred on the Plaintiff ; and he
the Actio'i Ihewed further, that A. B. andC. had nothing but that one D. was feifcd
fliould have ^f^ ^-Ve. A. the Defendant pleaded that B. and C. were feifed, and had
brought a- Power to demife, and traverfed that D. was feifed, and likewife tra-
gainS him verlcd that the Defendant enter'd and kept the Plaintiff out ; and upoa
only ; And Demurrer to this Plea it was adjudged, that this Atiion muft ht founded
I'i ntithn ^p^f^ ^^^, jy^^^ Dimiferuiit, which is a Covenant in Law ; tor there was
'fovVhxd^aiiy no exprefs Covenant, and therelbre as the Interelt granted to the De-
Ti/W.'t lie II lendant by that Word is joint, f 3 mult the Covenant be ^ and iffo,
an Adrion then this Aflion being brought againit the Defendant alone, cannot be
ought to be jiiaintaincd, but it ciipht to be brought jointly againft A. B. and C. who
S'thcm ^'"^r*^ ^^^^ Lellbrs. I Salk. 137. Mich, i W.'& M.ln B.R. Cuiem.m v.
all ; [>er Sherwin.
Holt
Comb. 16^. S. C. And Ho!t CI? J oncning the Rfatrer, "aiii, that this Adioa was brought on a
Covenan?
Covenant.
459
CfjveiKir.t in Law made by the Word Concefli ; and it appears here,' th.U the Demife v/as a joint De-
niife made by die Defendants Sherwin, Dover, and Ensficld, and therefore this Covenant implied by
Law, ought regularly to be joint ; Sed per Cur. in fiich a particular Cal'e as this is, where one of the
L^ITors hiui (tBu.xUy done wronr by his Entry on the LeflTee luiihoKt the .'fJJ'ent cf the others, the Covenant
in Law I'hall not be taken to be joint, fo as to charge the other LelFors with this Ptrfcna! U'ron:^ of
their Companion ; for it is unre.ifonabie that the Innocent fhould be punidied v/ith the Guilty, there-
fore as to thit Breach, (viz ) the Entry of Slierwin, and turnin;; the Plaintiff out of PonfefSon, the
Atiion is will brniirjht aj^ainll him alone ; but as to the two other Breaches affigncd in the Declara-
tion, this A<3:ion of Covenant oui^ht to be brouf^ht againft the LelTors, for as to that Purpofc the Co-
venant in Law is joint, and not feveral ; for in iiich Cale there is no particular Pcrfonal Tort done by
one more tlim another, and if feveral Actions fliould be permitted in luch Cafes, the Plaintiff would
irecoper Damages two or three Times for the ilime Thing. Carth. 98, 93. S. C.
(N. 2)
P!eadin2:;i. In Bar &c.
&
t. ^ I "Rerpafs of taking f<ir Toll contrary to the Grant of H. 3. theDe-
X tcndant pleaded Grants of King John of the ajorefaid Cujiom ; the
PlaiHUJf aUeg'dCoh'ipoJitiofi bet-zvtcn tht: two Vills, ami that the Defendant
by the taking had broke the Coiupo/utcu ; And per Knivec clearly he Ihall
plead \t as here, and Ihali not be drove to W'^rit of Covenant, and by
Conlequence may rebut in this Cafe^ and lliall not be drove to Writ ot
Covenant. Br. Earr, pi. 109. cites 39 E. 3. 13.
2. U a Leafe tor Years be by Deed^ and that the Lejfee p:)all not be.
charmi of Reparations^ he ihall rebut by this in Action of W^alle, and
fhalinct be put to Action of Covenant. Br. Covehant, pi. 42. cites zi
H. 6. 46.
3. \Vhere a M:i.n grants to his Tenant that he will Kot dijtrain him he~
fore fiKh a Icafi^ there if he diilrains he fhall have only an Aftion of
Covenant i per Fineux Ch. J. But Brook makes a Qusre iliereol, for
he fays it I'eems that it pall be pleaded in Bar to avoid Circuity of At'iion.
Br. Barrc, pi. 52. cites 21 H, 7.23.
4. And it a Man leafcs Land for Life or Tears ^ and after grants by ano-
ther Deed that he jhall not be impeached of JFaflc, there if he brings VValle,
the other Ihall have only A&ion of Covenant, per Fineux Ch. j. But
Brook tiiys, that it is uled to the contrary, for he m.ay plead itin Bar
to avoid Circuity of Aftion. Ibid.
5. If a Covenant be to make an EJlate by the Advice of J. S. it ought to
be fbewn -what Advice J. S. gave^ Per Hobarc Ch. J. Arg. Hob. 295, cites
26 H. 8. I. and 16 E. 4. 9,
6. In Covenant for not Repairing, if Damages are recovered^ it was
fiiid by iManwood, that by this Recovery .of Damages the Lejfee pall be
exciifed for e'jer after from making of Reparations j So as if he fulFer the
Houfestor want of Reparations to decay, no Aclion ihall be afterwards
brought thereupon for the fame, but that the Covenant is extinif. 3 Le.
51. pi 72. Trin. 15 Eliz.. C. B. Anon.
7. In Debt upon an Obligation to perform certain Covenants in a Pair of
Indentures-, the Plaincitf alfigned the Breach in one of the Covenants, viz.
that the Dej endant f};onld do all Reparations of fuch a Houfe demifed to him^
and that be had not repaired, but fuff'ered the fame to decay. Defendant
fiid, that the Plaintiff had acquit tedand dfcb.irged htm oj the Reparations.
Plaintiit demurred. iVIanwood iaid, that tlie iame is an Acquittal and
Dilcharge ot the Reparations, as well for the Time part, as for the
Time to come, by Force of the laid Covenant, and amounts to as much
460
Covenant.
as if lie had rcleafed the Covenant. Then it was moved, jf the Covenant
being hroken jor want oj Reparations P It now the Acquittal and Difchar;^e,
or Rcleafe of the Covenant, Jhould take away the Ailion upon the Obligation
•which -was once forfeited before ? And Manwood held that it punld net i
lor ifonc be bound in an Obligation for the Performance of Covenants,
and before the Breach of any of them the Obligee releafeth the Cove-
nants, and afterwards one of the Covenants is broken, the Obligation
is not forfeited, for there is not now any Covenant which may be brolcen ,
and thereibre the Obligation is difcharged ; But if the Relcafe had been
after the Covenant broken, otherwife i all which Dyer and Mounfon
conceflerunt. 3 Le. 69. pi. 105. Mich. 20 Eiiz. in C. B.
Anon.
8. Rcleafe of all Anions is no Difcharge o[Coi>enants not broken. And.
64. pi. 138. Mich. 23 & 24Eliz,. Digs v. Chute.
9. It was faid to be adjudged, that in Covenants perpetual, (/'they are
once broken, and an Aftion ot Covenant brought, and a Recovery upon tt,
if they are atiierwards broken, a Scire Facias pall be upon the Judgment,
and need not bring a new W^ritot Covenant. Cro. C. 3. pi. 7. Hill, 24
Eliz,. B. R., Swann'sCafe.
10. Lellee for Years covenanted to build an Hotife on the Land within
the firfi 10 Tears. In Covenant the Delendant pleaded that the Lefor en-
tered^ and had Pcfl'tffion for Part of the ^th liar &.c. Per Gawdy he fhcald
havepewed, that the Plaintiff would not fiiffer him to build; And the
other Jultices feemed of the i'ame Opinion ; but would advife. Godb.
69. pi. 84. Mich. 28 & 29 Eliz. B. K. Barker v. Fletwell.
1 1. The Leffor covenants that the Leffeejhall repair the 'Tenements, when
„ they are ruinous, at the Charge of the Leffor i In Debt for Rent, the Leffee
■ Bea^l "s^'c. pkaded that Matter, and that according to the Covenant he had repaired
but itHted the Tenements, being then ruinous, with the Rent, and demanded
only that Judgment if A61:ion &c. and good; Per Gawdy and Clench Jultices ;
the Leflor ^^^^^ 1 1 R. 2. Bar. I02. but Fenncr J. contrary, for each fhall have
was w re-^'-^ft^io" againll the other, if there be not an exprefs Covenant to do it.
pail-, but' Le. 237. in pi. 320. Mich. 32 & 33 Eliz. B. R. Beal v. Taylor.
nothing laid
as to Leffee 's _
repairing it; Gawdy conceived, tliat the Law gave Liberty to the LeUee to expend the Rent in Re-
parations, or otherwilc the HouCe miy fall upon his Head before itbe r.;paired. But Fenner e contra ;
For it Leflur will not repair it, Leffee is to have his Covenant againft him. Clench agreed ivith Gaw~
dv, but that Leffee fllould have pleaded it, and cannot give it in Evidence on the General Iflue, (as
in this Cafe he had done as ftated here).
Cro. E. 22 2.
Biownl. S9. 12. /;; Debt on Bond for Performance of Covenants the Defendant pleads
Mich. 5 ^, Releafe, and Iffue is join'd upon it, and found for the Plaintiff, and he
v^'civ'^s't h^s Judgment, and affirm'd in Error, though the PlaintifFdid not allege
~Yelv.7S. any Part of the Bond, and a Breach of it in the Defendant; For the
S. C. and ' Plaintiff is forced by the Defendant's Plea to anfwcr to the Rekafe, and has
Brownl. „q Occafton to Ooew any Breach of Covenant ; For the Law requires that,
iT"an°£or^'^^« i? is pleaded that no Bond was made, and not where the Bond and
of Yelv. ' Breach are confefled, as in this Cafe is impliedly done. Jenk. 280.
pi. 4.
Brownl ^. , j. [-The Plaintifl'is not bound to allege a fpecial Breach when the
S C. but £)eiendant's Plea contains fpecial Matter, [As in] Debt upon Bond for
TtLThI Performance of Covenants in a Leafs made by A. Tenant in Tad, in which
tionofYcl- was a Covenant, that A. might enter from Time to Time to view the Repa-
vcrton. rations. Defendant p/f^rfe^, that A. died, and that B. jhe Iffue in Tail
entred before any Covenant was broken. The Plaintilf replied, that B.
came with him on the Lands to view the Reparations, an d traverfed that B.
entred Modo S Forma prout Sc: The Phiiiuiil had a Vcrdid. Error
was
Covenant.
^6i
uas brought, Ibr that no Breach was alleged ol: Covenant in the Deien-
iKint, and lo there waa no Cauie ot' Action. But per Cur it needed not
in thsCafej lor by the fpecial Iflue tendered by the Defendant, viz.
chat tne lli'ue in Tail made an Entry on him belore any Covenan: bro-
ken, he inlorced thePlaincitf to make a fpeciai Replication to the Point
tt-ndered, and lb cannot affign any Breach of Covenant, but muft necef-
firily anlwer to the fpeciai Matter alleged. Yelv. 78. Mich. 3 Jac.
B, R. Jeffrey v. Guy.
14. A IVanantta Charts depending is no Bar in Covenant, becaufe they
are of feveral Matters, one Real, and the other Perfonal. See Hob.
3, pi. 6. Hill. 5 Jac. Pincombe v. Radge. And ibid. 28. S. C. ciced by
Hobart Ch. J. And fee Yelv. 139. S. C.
15. In Covenant againft LeHeeyor Nou-fayment of Rent, he ■phaded^^''^"'''^^- '">■
Le-Md by Dijircfs. Plaintiff demurr'd, and judgment for him ; for^r5? Aftioa
1 • !->! • /• in- ..;>.. ^ , ■^ I - , T^ ^ ot Covenant
this Plea IS a LonjcUton that it was not paid according to the Refervation ^brought up-
for the Plaintiff could not diitrainunlefs it was behind alter the Day on an Inden-
2 Brownl. 273. Mich 7 Jac. C. B. Hare v. Savill. tuie upon a
• r-K 1 - /- r fpeciai Cove-
nant to fay Rent at certain Days tliercin Ipecihed and rcferved. The Defendant pleads, that 710 Rer.t
v.'as behind. The Plainiirt demurs to th.it Plea; and it was held by the whole Court to be a bad Pica
in Covenant, for by that Plea the Defendant confefTes the Covenant broken, and that Plea tends but
in JSIitigation of Damages. Brownl. 19. Tiin. 7 Jac Hare v. Savil.
16. In Debt upon an Obligation with Condition to perform Covenants in
an Indenture of Leafe, the V)t\en&mx. pleads, that after, and before the O-
riginal purchafcd^ the Indenture "was by the Affefit of the Plaintiff, and the
Defendant cancelled and avoided, and fo demands Judgment of the AClion j
and feems by Coke clearly, that the Plea is not good 'ivithout A^cerment
that no Covenant "was broken before the cancelling of the Indenture. 2. Brownl.
167. Palch. 10 Jac. in C. B. Anon.
17. Aftion of Covenant brought, for that the Defendant did not pay a
Rent ''dotth which the Land was charged i the Defendant pleads he was to
enjoy the Land fttfficiently faved harmlefs^ and anfwers not to the Breach ; and
adjudg'd a naughty Bar by the whole Court. Brownl. 22. Mich. 12
Jac. Cowling v. Drury.
18. Accord with Satisfaff ion by Deed \s A good Plea in Difcharge of^"4'^'°"
Covenant, as well before the Breach as after, becaufe it is an Attion^Q^J^j;"^
merely Perfonal, in which only Damages Ihall be recovered, and hvot pleadable
enures as Releafe of Covenant. Palm. no. Pafch. 17 Jac. B. R. R.o- in Bar tmiefs
bards v. Stoker. " be exe,t,ted
on both Parti,
3 Lev. 189. Mich. 55 Car. 2. C. B. Ruflel v. Ruffe 1.
19. Pleading byway of Bar or Replication that Tejiatum exiflit per^ Roll Rep.
talem Indent iiram is not good, though in a Declaration it is fufficient to ,"°' ^^"^-
induce the Aftion and affign the Breach ; Per tot. Cur, Cro. J. 537- Hoiman
pi. 2. Trin. 17 Jac. B. R. in Cafe of Bultivant v. Holman. S C ad-
judged in
C. B. and affirmed in B. K.
20. Leflee covenants to do all reafonable Carriages for his Leffor >
•with his Carts &c. Leffee pleads he has no Cart &c. A good Plea ;
for he is not bound to keep Carts &c. on Purpofe. Lat. 202. Hill. 2
Car. Manners v. Vefey.
21. The Plaintiff brings an Aiiionfor Breach of Covenant upon a Deed j
the Defendant /)/£<3(^j a parol Agreement ajterwards in D ifc barge oi the
lormer Covenant ;but the Courc held the Plea not good. Sty. 8. Hill.
i.2 Cur. B. R.. Forcelcue v. Brograve.
6 B 22. In
462
Covenant.
Stv SS S. C. 22. In Covenant/or vot repairing &c. the Phiintiff' fljews /or Breach^
burno Judg-;^^; the Hotife ii]as burnt down through the Negligence of the Defendant i^c.
"'*"^' and that he did not repair it. The Delendant traverfed that it was not
burnt down.,prout &^c. and adjudged an ill Traverfe ; hecaitfe the Defen-
dant's not repairing IS the fahjiantial Part., rhe other being buc Induce-
ment. Hard. 70. cites Paich. 24 Car. B R. Allen v. Reeve.
23. In Covenant &c.yor Non-payment of Rent ^ the Defendant pleaded
in Bar, that the Plaintiff' entered into Part of the Land d em t fed before the
Rent due, tor which the Aftion was brought, and fo had fufpended his
Renti The Plaintift>f/)//cfl^, that the Defendant did re-enter, and fo was
polJefed of bis Jormer Efiate. Upon Demurrer Roll Ch. J. i'aid, the
Plai'ntift'oughtto Ihew that the Defendant e;??)-?,?' and continued in Pof^
fcfjion till ajter the Rent became due j theretbreNil capiat per Biilam, Nili.
Sty. 432. Hill. 1654. P^g^ ^'- P*''^-
24. In an A£lion ofCovenant on DemifeofaFree-llone-Quarry to the
Detendant, the Defendant covenants not to dig m any other Part of the
Coiumon, and now Breach being ajjtgned m digging, the Defendant pleads
Non locavit the Quarry pr^dUT ; to which the PlaintltF demurs, the
Deniife being by indenture, and the Covenant collateral. The Court
agreed the Plea Irivolous ; Judgment for the Plaintitf, Nifi. Keb. 751,
pi. 44. Trin. 16 Car. 2. B. R. Armin v. Bowes.
25. In Debt for Rent on a Leafe for Years, the Defendant pleaded
in Bar that the Leff'or did Covenant, that the Lejfee might deducl fo much
Jor Charges, and upon Demurrer this was adjudged a good Plea, it
being a thing Executory and the Covenant in the iame Deed, and the
Party lliall not be put to Circuity of Jtf ion and to bring an a£lion of
Covenant. Lev. 152. Mich. 16 Car. 2. B. R. johnfon v. Carre.
26. In Covenant or a Conveyance upon a Covenant, that the Vendor
.■ was feifed in Fee and Breach alTign'd that he was not feifed in Fee, the
-Gilb. Defendant pleaded quod non infregit Conventioneni fuamy this is ill, being too
c'b iM General and argumentative, «/)o« ^ Z)t7//.'//Ttr, but it is heip'd alter a
cites's. C Verdia. 1 Lev. 183. Trin. 18 Car. 2. B. R. Walhngham v. Comb,
and (ays
thai in Covenant the Defendant ought to traverfe the Deed or the Breach, and both cannot, he hKth'd in
l\on fregit Conventionem.
£7. Defendant pleads in Bar of Breach for Non payment of Rent a
former Bargain and Sale of the fame Land, without pleading Entry accord-
ingly, it was faid no Entry was requilite being on the Statute of
Ufes. Sid. 399. pi. 6. Hill. 20 & 21 Car. 2. B. R. Banks v.
Smith.
% Lev. 1 54. 28 If Leffor after AJfignment of the Reverlion brings Co'venant, LelTee
Mich. ;s can't plead that he has aflign'd over his Reverlion, but either Lellor
^^r r Sr^'or his Grantee, who brings the firlf Action of Covenant and recovers,
Bedy V fiiall Bar the other (viz..) J-elfee Ihall plead fuch Recovery in Bar to
Purry S. P. the 2d Aftion. Sid. 402. per Twifden J. Hiil. 20 & 21 Car. 2.
ArR. B. R.
5 Keb 4o._ 29. In an Aftion of Covenant to repair from 'Time to Time a Houfe de^
P'- ^°^ ^ ""■?«//«,-/, the Defendant pleaded that before the Jifiou brought, the Houfe de-
B^R!''w"al- mifed being burnt in the Fire was repaired in convenient Time, to which
tonv.Wa- the Plaintiff demurred, becaufe it was not /hewn ^ by whom it was re-
terhoufc pair'd i and in Truth it was rebuilt by the PhiifJtiJf'; and per Twifden J.
C^-^htld this is no Performance of the Covenint, unlets it be fuewed to be done
th°"'the' b\- the Detendant himfclf, though Repar.icion by a Stranger be an Ex-
Def'endam cufe of vValle jSedcuria contra, that being repaired it is a good Plea by
mull ihcw vvhom loever ; but thii: lieing a liard Cafe, rhe Court gave Leave to the
whorejuir- pj^jnciff to wave his Demurrer, and t.ikc lifue th.it he did not repair
ic
Covenant. 463
it in convenient Time, chc Houl'e being yet uncovered, i: Keb. 535- j^p^j^Vpi^^j
pi. 53. Trin. 21 Cur. 2. B. R. Wiiltoa v. Johnfon. tiff built it"
this is no
ExcuT;.- ; nnd |ud;;ment for the Plaintiff. 2 Saund. 420. S. C adjudg'd that the Plea was ill, be-
caufe HOC {hewn' by whom it was rebuilt ; though it was obji-dtcd that it was tiot material by
whom it was rebuilt ; and if by .1 Stranger it could not be built ag.iin by the Defcndmt ; and he
Iiavin^ alTij^ned all his Intereft before, ic lay not in his Notice by whom it wa^s built, but that it
could not be prelUmtd to be built by the Plaintiff, for that he could not intermeddle with the Po!-
fcflion durint; the Term; But by the Reporter, i: beinp; alleged, that the Plaintirt had rebuilt at
Ills own ClKivp;e, Hales refuted to hear tlic Rcafons, & quafi in a Paflion without confidering the
Matter in Law, gave Judgtnent for the Plaintiff.
30. Debt upon Bonf, condhionsd to perform Covenants, one of-jjbicb
Wiis Jor PajMtut of fo much Money upon making fuch an fiffiirance ; Thie
Defendant pleaded that he paid the Money on juch a Day i upon a De-
murrer the Plaintiff h.id Judgmenc, becaufe the Defendant did not fay
tn the Plea laben the Afuraiice was made, that the Court might judge that
the. Money was immediately paid purfnant to the Condition. 2 Mod. 33.
Pafch 27 Car. 2. C. B. Duck v. Vincent.
3 I. It was agreed, that a Rekafe of all Debts, Duties and Demands,
did not rekafe Covenants that ivere broken ; nor any other Word but the
Word Covenant. Freem. Rep. 235. pi. 245. Mich 1677. Anon.
32. When Debt ofi Bond to perjorm Covenants in a Deed is brought,
and the Defendant cannot plead Covenants perlbrmed without the
Deed, becaufe the Plaintiff has the original Deed, (and perhaps De-
fendant took not a Counterpart of it) we ufe to grant Imparlances till
the Plaintiff brings in the Deed; and upon Evidence if it be proved,
that the other Party has the Deed, we admit Copies to be given iu
Evidence. Per Cur. Mod. 266. pi 17. Trin. 29. Car. 2. C. B. Anon.
33. Where Covenants are rf(://))-0(r^/, Non performance by one is no
Bar to the Afclion of the other. 2 Jo. 216. Trin. 24 Car. 2. Shower
V, Cud more.
34. In Covenant the Breach aflign'd was, that the Defendant did not
repair. The Detendmi pleaded gemral/y .^nod reparavit S de hoc ponit
fe fttper Patriam. This was held good after a Verdiif. 2 Mod. 176. HilJ.
28 & 29 Car. 2. C B. Harman's Caie.
35. In Co\'enant c« an Indenture for Rent, Nil Debet is fio Plea, and
Judgment was given tor the Plaintiff 3 Lev. 170. Trin. 36 Car. 2.
C. B. Tindall v. Hutchinfon.
36. Covenant upon a Dcmife for rears, rsndring Rent ; and Breach
afligned for Nonpayment. Defendant pleads, that part of the Rent
\yas to be allowed &c. Per Cur. This a Covenant againil a Covenant,
and Judgment Nili for the Plaintiff Comb. 21. Pafch, 2 Jac. 2. ia
B. R Burroughs v. Hays.
37. In an Action of Covenant the Plaintiff declared, that whereas
by an Agreement in Writing made between him and the Defendant,
it was agreed between the laid Parties /or a Dc7nife of a Leaf e for 99
Tears, cf and in a certain Meffiage Sc under a certain Rent, and the
ufual Covenants as in all Demifes granted by the I'rnffecs of the Earl of
Roc heft er isoereujcd, omnium quorum con/idcratione, the faid P. did. agree to
pay the faid C. 180/. at Michaelmas next follo-juiug, Q licet the Plaintiff
penornied all of his Part., the Defendant had not paid the Money, Sc. the
Defendant p/f^^tv^ z>; Bar, that the Plaintiff teiiipure quofiippoiiiturprurd'
conventiofiem fieri nu unqiiam poftea nihil habnit in Tcnementis pr^tf fo
iii^neJ to be demtfed. To this the Plaintiff demurred, and Judgment by
the whole Court was given lor the Plaintiff, lor though that may be
pleaded in an A[fionfor Dtbt for Rent, yet it cannot be. pleaded in Covenant
for a Sum in Grofs. Belides, the Agreement does not necclfarily -import
that the Leaie fliould be made by the Plaintiff; it may be undcrflood,
that it was agreed that he fhould procure a Leafe for the Detendant.
2 Vci.t. 99. Mich. 1 W. & M in C. B. Clarke v. Peppcn.
3S^ A.
464-
Covenant.
:. Vent, zr
Mich. 2.
Be M. in
C. B.
S C cited
by HoltCh.
J in deli-
vcving tile
Opinion of
tiic CoUi't
Tfin. 1-,
W. 5. Ld
Eaym Kcp.
<)9i. and
faid that
it was
a found
Judgment.
1 2 Mod.
S. C. and
Judgment
ior the
Plaintitf.
38. A. coveiunrs with B. to Pi7y h\m 303/. for the Ufg of the Wife 0''
.-•/. lor her Lile only, and Covenant brought upon this, and Brea^li
alfigned, that there was ib much oi the 300 i. arrear ; Dclendant pleads
that there was another Indenture between him and the Plainti/i"y/;y6-e
the Dace or Delivery of the Covenant-Deed declared on, reciting the
faid Covenant and Jgreenient iot the Payment of the 300!. wherein it
ivas Covenanted and agreed, that fo long as ji. and his llije did cohabit,
the Payment of the 300/. jhould ceaje and avers y that they did cohabit
J or the Time the faid Arrear became due and pleads, this in Bar of the ^f^
Jgreement. There are expreis Words that the Payment lliall ceale
during the Cohabitation ; and there had been no great Harm to con-
llrue this as a Releafe of the Arrearges during the Cohabitation ; But
yet it being a Sum in Grofs, and the Covenant Temporary and not
Perpetual, they held it no good Bar. 12 Mod. 552. cites 2 Vent.
217. Gawden v Draper.
39. Where Provifo goes by way of Dcafeafance of a Covenant, it mull
be pleaded on the other Side, but it is otherwife where it goes by way of
Explanation or ReJiriHion of the Covenant ; Per Holt Ch. J. and Judg-
ment accordingly. 2. Salk. 574. pi. 2. Hill. 10 W. 3. B. R. Clayton
V. Kinafton.
40. If A. covenants with B. to convey to him all bis Right and Title to
the Manor of D. to which A. has no Right, it is not a good Plea in
an Aftion of Covenant, that He had no Right &c But he mult make
fuch a Conveyance as woul4 in Truth pals all hi.s Tide m Caie he had
any ; And he is ejlopped by his Covenant to fay he had no Title. Per
Holt. 12. Mod. 399. Pafch. 12 W. 3. Anon.
41 In Debt on Bond for Performance of Covenants if the Defendant
pleads an ill Bar, and the Fhinzill replies and a/figns a Breach which of
his own fhewing appears to be no Breach, the Detendant Ihall have judg-
ment i Arg. 2. Ld. Raym. Rep. 1080, xoSi. Mich. 3 Ann,
2 Lev. 26.
S C.Hale
and Rains
ford held.
(O. a) Plea in Excufe.
t. T N Covenant the Defendant cow«^;//oYj? to give Security ^ the De-
X fendanc pleaded that he offered Security, and refolved that it was
rot good. Poph. 206. Arg. cites Mich. 2 Car. B. R. Roffe v. Har-
vey.
2. A private Aci of Parliament which makes the Conveyances of A.
void, is no Excufe of Breach of Covenant entered into by B. to C. for
ford held ^""^^ Enjoyment by C. of Lands conveyed by B. to C. being Part of
ihz\.MsAB the Lands before conveyed by A. to B. and the Conveyance whereof is
u/PaWwwew/made void by the private A£l of Parliament. Vent, 175. Mich, 23 Car.
makes r.ot 2. B. R. in Cafe of Lucy v, Levington.
any new
Title, but only remoles an ObJlruBion of the old ; and faid, that doubtlefs A. was named in the Covenant
for this Purpofe, in Cafe a Fine levied by one claimins^ under A. and unduly obtained from her
Jhould be avoided; but Twifden being of a contrary Opinion, Error was immediately brought, but
•whetbecame of it the Reporter fays he knows not. 2 Keb. 851. pi. 54 S. C. the Aftion being
brought by the Executors, Judgment was given for them Nifi, this iStatute being in Nature ot a Judg-
ment, and not of a Legiflation.
3. In pleading an Excufe for Non-performance the Party mnjf (hew
all done by him that he was obliged to do ; Per Hole. Ch. J. Show. 335.
Mich, 3 W. di M. Wynne v. Fellowes.
(P. a)
Covenant.
465
(Ra)
Pleadings. Performance.
t. A Man cannot plead p,era/^j Quod Performavit omnes et fin^ulas Br Condi-
^ r\ Conventiones in Indencura pr^dia*. fpecificat' ev plrr.fZusT
Penn^plendus, bur/.///,,:. cm,,,fy I, PoTm. has orform'H ■""--«
.nd where .n Cov^nanc the Ddendinc lays' chac the ctenan^s at that'"-^' ^- ^
he /hall pay 10 I. by luch a Day, and inteolF him by the fame Dav
? 4'-'For he iha;r^"°"h ''? ^ ' '^"^ P--Pi-'it/thfs l^no goo'd
2. Debt upon Bond ibr Non-performance of Cot).;;^;;? j /« ^ i,^/-. one
; v/ Z-' r ^^'^'^^i O'dmmy and extraordinary &c The Defender
'I:m hepauitbcRent, -^h,ch was all the ChaL ordinary or m"^^^^^^^^
t. that Day, and then he affign^d the Praniffes to P. ZVuZltZi'
.erth.svya.heldan ,11 Plea, becaufe the Covenant blT in the Sn^
lative, that he and his Affions ihould difcharae the Plam IF I . ^z".
finite? v^Lem^an. ''" "' ^'^ '^ ''• ^^^^ "^^^^ ^^ «• ^ ^^^ot 0/ VVeil
^Lt ^n '^.^f ^'^^^'" * Recognisance to B. to permit B. and all his
Tenants m D. to have Common of Pa/lure for their Cntl. ,„ t^Jp f ,•
D. when they Itotild lay Fallo.v, Ld i. tlZ^^L^^Z tod^'ttiel
crca^fcto^e done, any AG or Thing to Ler the ConrfeslfhcFill "ff S
ctherwile than now they are. In a Scire Facias brought in Chancery UDon
pmitteatkejaid £. and all the Tenants oj D. to have Common &c And
erM t?e CourftSc" On' ""t^'^ '" ?^ ^^"^"^^y' ^^- ^^ had not al-
f r. ;.• • ^" ■^'^■nurrer, becaufe the Pleadin^r was Gener-d
the Opunon oi divers Juftices was that the Plea was good TBut Harper
^ot.^Vir.btiseco.ra, but it was ordered againfl him^. Dy. ;;"p?^6: '
SS;^";;^^:^^l^r^^J^-^^^-^^P-^-'dGenerS;?.S^^
fliew which
hasperfonned. t Co. Litr, 3ot.t^ Jf
fU ^Lv I ''^w^'^^'h^ Covenants are in the Bisjtinaive, fa that it is in r p
the EMion of the Covenantor to do the one or the other, there it ough to be pl^"' S C ''
/p..;./Y..^.^ and the Performance of it; For' otherwfe the Court ^'S-^^^dd
cannot know what Part hath been performed. Le. 3 1 1. pi. 40 Pafch f-.d.ngly,
33 Ehz. C. B. Oglethorpe v. Hide. ^ ^^ \^\ the
Ca'e being
upon Bond to perform Covenants wherenf /:;«,. ^.., ■ .r \t ■ . in Debt
S. U fcc J). P agreed by a . Co Li[r -r.- h < P ,. j- 'i TT^ "^- ' °- ^'^Y V- Luttre ,
forn^ed.. -S. P Jer Cur S Rep ^1 b 'buMf rh' p '"'''^'I'S'.v ; tora Negative c.nnot be per-
the Defendant demurs, he ftall haVe'/udrLr £ V "^ \'^^''\ ^'"^ ^'^'g"'^ =■" '" ^''^^^K and
that the Plaintiff had inv Cuu.c 'f^d''^ ' °t l^^Z '" ^''^'a ^'^"J-'^ " '^"'"^ "'" ^PP"^
held on Demurrer, thntV^.^r. /,,;/nf the 6^^;;;^, ''" ' '*'• '^^'^^^'^«- ^^^ ^^- i"'"'^ ^- Dell, it was
6 C , '
466
Covenant.
lie cu<;iu to [ilead a fpeciil Performance, and Ihevv liow he has performed them, and Judgment NilT.
• -Gilb. Ei'.u.Rep. 255. cites S. C. of ()<;!ethor;'e v. Hyde, and 8 Rep. i ; ;. Pafch. S [ac. Tur-
ner'jCafe, alias, Turner v. Lawrence, and fays, that a Negative cannot be laid to be performed in a
proper literal Senfe, (though the not doing may improperly be called a Performance) and therefore on
a fpccial Demurrer the Defendant's Plea would be bad ; aliter on a general Demurrer- Wlierc fome
of the Covenants are in the Disjunftive, there the Defendant cannot plead Performance generallv be-
caufc both the Alternatives are not to be performed, and by Pleading f^erformance generally he does
rot fliew in certain which is performed by him, and therefore this is bad on a General Demurrer which
fllew^ the want of that Certainty ; but where the Plaintiff does not demur for want of fuch Certainty
it fhall be intended that the Defendant performed one of them, and therefore good enough ; but in
botli theie Cafes, vvliere the Covenants are in the Negative, or the Disjunctive, and the Dc'fendanc
pleads Performance generally, and the Plaintiff replies and adigns a Breach which is ill affigned, and
tl-.e Defendant demurs, the Plaintift fhall not take Advant.igc'of this ill Pleading of the Defendant's
becaule by his Replication he admits the Performance of all the other Covenants, but that only where
he undertakes to aflign the Breach,
6. When there are in an Indenture Covenants in the Negatrjc for not
doings and in the ylffinnati'Vefor doing, the Defendant ought to pJead fpe-
cially to the Negatives that he has not broken tiiem, and to the Cove-
nants in the Affirmative Generally, that he has performed them ail.
Mo. S56, pi. 1.175. Mich. II Jac. C. B. Refolv'd per tot. Cur. Norton v.
Syms.
7. When the Covenants Negative are again ft La'X, and the Affirniatiit
lawful, there he may plead Performance Generally, and the Court is
to take Notice that the Covenants in the Negative were void and a-
gainll Law. Mo. 856. pi. 1175. Mich, ii Jac. C. B. Norton v.
Sims.
S P. Holt's g_ N^^hen all the Covenants are in the Jffirmativc and Matter of Faff,
Ar^ fn Cafe the pleading Performance of all the Covenants, without ihewing how,
ofAimifley is good; Agreed by all. Palm. 70. Mich. 17 Jac, B. R.. in CaL- of Ley
V. Cutter. V. Luttrell.
Keb :;54. 9, Covenant togo in fiich a Ship out of the River Thames to C. in Spain,
pl 5. Lath- ^jfi ^^^^ decederet, procederet S non devuirct. The Y>Qicn.ddm p!eadedPer-
er^ S^C ' ' jormance generally. The Court held the Plea ill, and took a. Difference
adjornatur. between a Negative Covenant which is only inAffirinance of an j^ffirtnative Co-
Ibid, vcnant precedent ^ and a Negative Ctvcnant, which is additional to the Jffir~
57-- pl- 7'3- viative Covenant, as here ; For in the tirll Cafe Performance generally
V RUmer '^ ^ good Plea, but not in the laft ; but he ought to plead Specially ;
.S C. the' and in the principal Cafe the Defendant ought to have departed and
Court held proceeded, and might have gone to x'\lrica or the Well-Indies if he had
the Plea j^Qj {jggj^ reftrained by the Negative Covenant, viz. Quod non deviarct,
theyTad ''^"^ ^° '"^ '^ clearly conditional. Sid. 87. pi. i. Mich. 14 Car. 2. B. K.
been fevcral Laughwell V. Palmer.
Covenants,
but the Court advifed Amendments by Agreement.
Sid.31S.pl. 10. In Aflignment of a Leafe it is covenanted, that the Leafe then
9 Gamsford r^.^j Bona, Certa, Perfecfa, y Indcfeajibilis Dtmi[Jio m Lege Anglicc
.s C h-'* Leafe in Law &c. S itajlabtt iij retnancbit qtierenti durante Ref/duoofthe
iiourt upon fi'd 'Term i^c. and that the Plaintiff J^uiete £5* pacifke haberet, teneret ^c.
leveral Ar- durante toto Re/iduo Termini^ without any Let Sc of the Defendant See.
guinents in- ^ Stranger enters, and a Breach is affign'd, that at the Time of making the
n''n)blei Alignment the Leafe Non fitit Bona, Perjctia 8" Indejeaftbilis &c. Et
that the lad Judic' pro Qucr' ; tor the/irji Sentence is indefinite, and has no Connefliott
Words did with the latter Sentences. Saund. 51. 61. Paii;h. i9Car. £. Gainsiord v.
not qualify Griffith,
or mitigate
the firff, but that they are diftinft Claufcs, but yet they allowed the Rule, thit retraining Claufe? at
the Beginning, or at the End of a Sentence, fliall govern the whole ; but that h:re the lalt Word%
(That lie ihall enjoy it without the Let or Interruption) cannot, without Impropriety of Speech, be
applied to the firrt Claufe of (Indefeafible Le.ife.) 2 K.cb. 201, 202. pi. :;4. S. C. the Court
a/jrccd, that had the Words been to enjoy notwitliftanding any Ait, that Ihcu'.d have gone to th;
whole;
Covenant. 467
whole: (cii adjornatur Ibid 21:; pi. 51 S. C. tlieCoui-t agreed, that tlie latter Words could
not qualify the former, they not btin^ Senfe it joined together ; and Judgment for the Defca-
dant.
11. A Man cannot plead Performance of Covenants in an Indenture If" f^e does
without /bc-jjii!g the Lideuture. Sid. 425. pi. 8. Mich. 21 Car. 2. -B. R.^'"^*^.''^^''^
TaplcOC V. Woolridge. Indemure It
is a good
Caufe of Demurrer. Vent. 57. S. C. ■ Ruled, that on fuch Plea he muft fliew the Indenture;
Sid. 97. pi. 25. Mich. 14 Car. 2. B. R. Lewis v. Ball. Keb. 415. pi. 124. Lewis 7. Bull, ii.C. Si;
S.P. atijudgcd. Carth. j. Hill. 2 S; ? Jac 2. in Cafe of Fortune v. Davis, S. P.
12. An /'// Plea of Performance oi Affirmative Covenants is not aidid by
the Replication^ as the Pieu of Pe-foriiiatice generally to Negative Covenants
snay be. Show. i. Pafch. i VV. & M, Fitzpatrick v. Robinfon.
13. M. bargained and fold to B. the Plaintiff' and his Heirs a Mejjtiagt
&c. and alfo Ingrefs^ ■^^'^A, ^'"i Regrefs at all Tmies for B. his Heirs and
JJfigns^ from the Gatehoufe ^0 a JJ'i?// adjoining, to drain Water for his
and their necefjary Occaftons. Debt upon Bond for Performance of Cove-
nants, one oi which was^ that he was feifed in Fee of the Premijfes, and
another was for quiet Enjoyment J and free from all Incumbrances, and an^
ether was for a farther Ajjurance ^c. The Defendant pleaded Perform-
ance generally. The Plaintiff rf/)//W, that at the I'lme of Sealing (3c. he
was not J eifed in Fee Secundum Formam i^c. Conventtonts &c. 'of the fiid
Well, prout&c. And upon Demurrer it was objected, that there was
no Covenant in the indenture that he was feifed in Fee of the Well, and
oi this Opinion were all the Court, and confequentiy, (though it was
not expreily fiid by the Court) the other Covenant, that he was feifed
in Fee of the Meli'uage and Premilfes, do not extend thereto, and
therefore the Replication was not good. But Powell J. faid, that the
Plaintiff ought to have alleged, that the Plaintiff [_Defcndant'\ had not any
Po-wer to grant the f aid Liberty to draw Water out oj the faid Well. But
then an Exception was taicen to the Plea, becaufe in the Indenture is a
Covenant for quiet Enjoyment againll all Incumbrances &c. and to
fuch Covenant the Defendant could not plead Performance generally,
but he ought to have fct forth, that the Houfe was free from Incum-
brances at the Time of the Convej'ance made, and not incumbred in.
any Manner, and that no farther Affurance has been required, or fuch
an Affurance, and no other, which he had executed. But per Cur.
this Plea was held good in Subftance, but Powell J. faid it was not the
belt way of Pleading, but that it had been better if pleaded as above-
mentioned. Lutw. 603. 60S. Hill. 13 W. 3. Butterfield v. Mar-
Ihall.
14. Where the Covenants are to do a Matter of Law, As to convey, dtf~
charge an Obligation, ratify, or to confirm &c. there it mull be pleaded
fpeaally, becaufe it being a Matter of Law to be performed, it ought
to be exhibited to the Court to fee it be well performed, who arejudges
of the Law, and not to a Jury who are Judges of the Fa^ only.
Gilb. Equ. Rep. 253. in Cafe of Fitzpatrick v. Strong, cites i Le.
172. Dy. 229-
(Q,a)
468
Covenant.
(Q. a) Pleadings as to Conditions for Performance of
Covenants,
l.T^EBT upon Obligation J the Defendant faid, that it i$ htdorfed
1 J upon Condition, thai if the Dejeiidant obferved the Covenants
contained in certain Indentures, that then &c. and faid, that in the In-
denture ts contained, thathepalldofuchandfuch a Thing, and that he
has done them, and the Plaintiff" e contra, and found tor the Plaintiff;
and the Defendant pleaded in arreft of Judgment, that ih.& Dejendant
has not alleged that tbofe are all the Covenants contained in the Indenture,
and yet goud by all the Jultices ; for where the Plea is referred to a Cer-
tainty^ as here, to the Indenture, itjhall be intended that this is all which
is in the Indenture, and after the Plaintiff recovered ; Quod Nota^ Br.
Conditions, pi. 144. cites 6 E. 4. i.
2. Debt upon Obligation with Condition to perform all Covenants con-^
tained in certain Indentures, the Delendant cannot plead the Condition
and rehearfe the Covenants, and fay generally, that he has perjcnned all the
Covenants, but fhall fhew how j Per tot. Cur. Bn Conditions, pi. 2.
cites 26 H. 8. 5. and 20 H. 8. and 35 H. 8. accordingly i Quod
Nota.
3. As touching Conditions for the Performance of Covenants in In-
dentureSj the Delendant ought to plead the Indenture, and the fpecial
Manner particularly, how he hath performed every Covenant. Heath's
Max. 46. cites 27 H. 8. i. and 33 H. 8. Brook Covenant, 35. and D,
279. n & i2£liz. and D. 26. a8 H. 8. But fays, that as it feems
there one need not aver, ^i^e funt omnia Sjingnla Conventiones &c.
becaufe referred to a Matter in VVriting. The like of a Records and
lor chat realbn it feems of Neceflicy that he need not to plead proiit in
eadan indentura &c. Quaere tamen. But if not referred to VVriting or
Record then it lliall be otherwife. As if I am bound toinfeoffyou ofali
my Lands in Dale, I niull lliew the Number of Acres, and plead alfo
^H£ funt omnia &;c. But lays, that at this Day the Courle of the
Practice is, (notwithltanding the Covenants arc reduced into VVritincr
after they are recited in the Flea) to iniert this Claufe, P rout per ean-
dmi Indenturam pknias apparet. Heath's Max. 46.
4. Debt on Bond agamll H. P. for Periormance of Covenants, by
which the Plaintiff covenanted, that E. the Defendant's Brother Jhould
enjoy fuch Lands till Michaelmas folkwing, rendrifig Rent, and H. the
Dtjcndant covenanted, that his Brother poutd quietly furrender the Lands
to the Plaintiff, and that the Defendant would permit the Plaintiff to
have in the mean Time Jree Ingrefs, Kgrefs &c. to fuch Lands as by the
Cuflotn of the Country Jhould he frejh. ' The Delendant pleaded, that
he did permit the PlatntiJ^ to have free Egrefs and Regrej's i3c. into
fuch Lands as by the Cultom of the Country did then lie Irelh. Excep*
tion was taken to this Plea, for that the L)efendant did not Jbew which
Lands did lie frejh according to the Cujlom of the faid Country i but ad-
judged, that where an A6t is to be done according to a Covenant, he
who pleads the Performance of it ought to plead it Ipccialiy, but in the
principal Cale no Att was to be done but a Ptrmitcance as abovefiid
and it is in the Negative, not a Dillurbancc, in which Cale Permih't is
a good Plea, and then it lliall come on the Plaincitf's Part to Ihcw in-
to what Lands the Delendant nun permilic him to have free Ingrefs and
Regrcls ^c. and cited this Dillercncc to be ib agreed by the whole
Court
Covenant. ^6()
t^uurt in 17 E. 4 26. And fo was the Opinion ol' the whole Court in
the principal Cuie. Le. 136. pi. 186. Mich. 30 Eliz. C. B. Lictlccon
V. I'errtes. -
^. Debt upoa Obligation r<) pcrforfu 'Cji.'ena^ts In an Indenture, which ^^°y ^'P-
were, ift. That he lliould marry M. the PIaintili''s Daughter before Lim^elT '^"
fuch a Day. idly. That f.S. [a Slrr^nger] and [K.] his IFife /tJoiM s'cAay's,
levy S. ¥iHs of fuch Lands to the J>iendant and the faid M. and to the that Judg-
Heirs of their Bodies, sdiy, That the Inheritance of the faid Lands '^.™'*'^'
iliould remain in the faid J. S. or himfelf till the Fine levied. 4chly^|3^nft*he
Whereas he had made a Leafe for Years of Part of MarOi-wood to the Defcndaut
faid M. the Plaintiti's Daughter, tbat he had tsot made any fonner Gnt//^, upon the
KorJboiM make any thereof -without the Plaintiff's JJfent. To the lall Co- ''°."" °^ '"
venanc in the Negative the Defendant /j/f^^f^/, that be had not made «//)' Matter of
former Gtant of the Leafe, nor any Grant after the Obligation "-Jiiithont KtcoJd,^
the Fiatntiff's JJjent, and as to all the other Co'Otnants that he had per- ^ndKhix
formed thet?t. Refoived, becaufe thie Covenant to levy the Fine is an^K''."^"
Ati to be done by a Stranger^ iind to be performed on Record, in both ^P^^^h^j^'*''^
which Cafes he ought to plead and Ihew how he had perlormed it jthe Plea
for * Aifs of Record mtift bejheivnfpecially, 2dly, The Covenant beino-was not
in the t Dtsjtinflive, he ought to have Ihewed fpecially which ofS°"^' ^^-
them, and not pleaded Performance generally. And 3dly, He plcads'?s'^g'j|^j'^]^-3
h& did no>t grant without the Plaintiff 's Confent^ which is a 4: A'i?^,^//^ wiife werc^
Pregnant.) and fo not good^ and judgment for the Plaintiff! Cro. J. Strangers
5C0. pi. 7. Hill. 17 Tac. in B. R. Lea v. LutheJl. t° the
•'•'^ ^ \ , Aft, viz.
to the levying of the Fine, and alfo to the Indenture of Covenants, but fays the Court were not agreed
as to this Reafon . Palm. -o. S. C. adjudged upon the Point as mentioned in 2 Roll Rep. fu-
pra. But Mountague faid, he faw no Difference in Reafon, v, hen the Aft is to be done by a Stran-
ger, and uhcn by the Party; and if a Condition be, that the Obligee fhould do an Aft to a Stranger,
tliere he ought to fhew how he has performed it. Doderidge faidj that the Reafon is, becaufe the Ob-
ligee is a Stranger to him who ought to do the Aft, and therefore the Obligor ought to fhew How
this Aft was performed by the Stranger ; and t^aughton faid, that the Reafon is, becaufe he cannot
fay that he performed all Covenants when the Aft is not done by him. — But Kelw 95. b. pi. ^.
.^lich. 2 2 H. 7. cites Mich, i H. 7. where it was agreed, that if the Condition bcj that J.S. a Stranger
ifhall infeofl the Obligee, the pleading a General Performance is fufficient.
* But Co Litt. 505. b. fays, that if any Covenants in the Condition are to be done of Record, th?
Defendant muft fhew the Performance fpecially^ and cannot involve it in general Pleadino'.
•j- Co. Litt 305. b. S. P. accordingly.
^ Co. Litt.503. b. 5. P. accordingly.
6. In Debt upon Bond for Performance of Covenants, which was,
that the Defendant (being a Sheriff's Officer) fhould not let go at large
any Person arrefted 'Without the Licence or Warrant of the Sheriff ; and the
Breach afligned was, that he let at large at Weftminfter, without any
Warrant &c. fuch a Perfbn who was arretted, but did not ftt forth the
Place, or thi Ttnie -johen the Perfon was arrejfed. All the Court held the
Declaration good, becaufe the Efcape, or the Letting at large, was the
material Part of the Covenant, and the Modus or Manner of the Arreft
is not in Queftion, nor any Part of the Covenant, but the letting him
go at large is the Subftance of the Covenant, and that is alleged to be
at Wellminfter. Sid. 30. pi. 6. Hill. la. Car. 2. C, B. Jenkins v. Han-
cock.
7. There is a Diverfity between Covenants \n Indenture conftfling o/T'^^ ^'*''"*
federal Parts in the Jffirmative, and a. Condition of a Bond conlilting ot"*^*^^' , _
feverai Parts i for in thelail Ca(e he muft Ihew in Pleading that he hasj^u're^he
performed the feverai Things comprized in the Condition particularly jought to
but in the Cafe of Covenants Performance generally is a good Plea, have plead-
Sid. 21 J. in pi. 18. cites Mich. 16 Car. 2. XrOOl\0 ij.DOtUn, where in^^/J.^]f';^
Debt on Bond conditioned to deliver a Brief at every Church &c. be-the°very^ °
fore fuch a Time &c. the Defendant pleaded, that he delivered at the Words of
Church &c. but did not fay at what Time &c. and upon Demurrer itthe Condi-
was adjudged tor the Plaintiff, that the Bar was infufficient. "°"' ^"'^ ,
■ ■ J >-' ' not general-
ly, ai he did by this Plea J and of fuch Opinioti the Court ftsmed to be; (id adjornatur. Lev 14':.
6 D JSIich,
470 Covenant.
Mich i6 Car. 2, B.R. Brooks v. Dean, S. C So v/heve the Condition funht-r was to deliver
tlie Money CoUefted on fuch Briefs before fuch a Time, and bccaufe he did not let forth particularly
what Sums he received, but only pleaded Perforniance generally, it was adjudged ill Sid -" ■; Tnn
16 Car. 2. B. R. Woodcock V. Cole. '"'■
8. A£lion oWebt upon a Bond, the Condition was to feal an hidentnre of
Det/iife^ and to perprtn all Covenants contained therein. The Deteudar.t
pleads, that he fcaled the Deniife, and performed all the Covenants i\\trQ\a.
The Plaintiff demurs, becaufe he does not fet forth lahat the Covenants
are. Judgment pro Quer' Nill. Freem. Rep. 20.pl. 23. Mich. 1671.
in B. R. Brian v. xMunteth.
9. Debt upon Bond for Performance of Articles, which were, that
Defendant pould educate, keep, maintain, and provide for C. the Depen-
dant's Son, in one oj the Univerfities in this Kingdom, until he had pafjed
all his Degrees, and ivas a Majier of Arts in one of the faid Univerlities ;
and when he became Mafter of Arts, as aforefaid, the Plaintiff was to
pay fo much to the Defendant for his faid Son's Ufe. Delendant in his
Plea anfwered to every thing, but only that he did not Jhe-ja -joho main-
tained him from the 'time he became Bachelor op Arts, until he became Maf-
terof Arts, and for that Reafon Judgment was tor the Plaintiff. Holt's
Rep. 206. pi. 12. Hill. $ Ann. Annelley v. Cutter.
(R. a) lilue. Trial Judgment and Recovery
of what.
If the Term I. T F the Lefjor ctijis the Leffee he fhall have Covenant, and fhall re-
be not ex- J^ cover his 'term and Damages, and if the term be expired he (loall
pire|\he recover all in Damages. Br. Covenant, pi. 33. cites 26 £ 3. and Fitzh.
Thai I recover „ <^ i z jj j
the Term Covenant, 3.
again if he ,
has put him out ; But /f a Suanger puts him out ly Eigne litle, then he fhall recover all in Damaget
againft the Leflor. F. N. B. 1 4 5 .' ( M )
2. If tenant in tail makes a Leafe for I'ears by Deed, and dies feifed
of Affets in Fee-fimple, yet the Iffiie vn lail may enter, and therefore the
Leffee fhall have a Writ of Covenant againft him to recover Damages, but
not to recover the term; for his Entry was lawiul cites 38 E. 3. 24. Note,
the Writ of Covenant for the Leffee who is oufted by a Stranger by
Title is, Quod teneat Convent' ike. De Damnis & de Perditis. F. N.
B. 145. (M) in the new Notes there (c).
Br. Condi- ^ Covenant by the Leffee iox Years againft the Leffor for oufiing him
izS^ates 'is^ithin the term, and the othtv jiijii fed by Claufe of Re-entry for Rent ar-
&."c. rear ; and the Plaintiff' faid, that there was a Parlance between him and
the Defendant, that the Defendant fhall be at table with the Plaint if
and recoup the Rent according to the Rate, by which for fuch Time he
recoup'd fo much, and the reft was 4 s. which he tendered, and the De-
fendant refufed, and yet he is ready, and tender the Money to the
Court, Judgment ; and prayed Rcflitation of the term and Damages; and
fo fee, that by Aftion of Covenant he ihall recover his Term ; and the
Defendant faid, that fuch a Day the Plaintiff" ihevved to him that Vic-
tuals were dear, and therefore dellred him &:c. by which he re-entred
for the Rent ; and the other faid, that he departed of his own iree
Will, ablqae hoc that he defired him 3 and after he waiv'd this, and
faid that he was ready at the Day to have paid &c. if any had come
to demand it Sec. Brooke makes a .^u^re, ^ fuch Parlance, as a-
bove.
Covenant. 47 1
bove, without Dccii, be fufficient to difcharge Covenant which is by
Deed ? tor ic is not fufficient ; Per Parle. Br. Covenant, pi. 13. cites
47 E- 3- 24.
4. In Covenant the Plaintiff counted upon feveral Covenants, and
well, and the Defendant anfwered to all ^ for he lliall recover Dama-
ges fcverally for every Covenant. Br. Covenant, pi. 34. cites Fitzh. Iflue,
86. and M. 10 H. 6. 23, accordingly.
5. In Aftion of Covenant a Man may take Urua upon every Covenant
to have the more in Damages ; Contra in Debt upon an Obligation for
Non-performance of feveral Covenants ^ for there the Breach of any Cove-
nant is a Forfeiture of the whole Obligation. Br. Covenant, pi. 47.
cites 10 H. 6. 23.
(S. a) Qualified or relieved in Equity.
1. ripHE Bill is to be relieved againft the Forfeiture of a Leafe, in
X which there is a Covenant, that if the Leffees fhoiild let the Pre-
mifles for any longer than three I'ears^ except to the Ifife or Children of the
faid Leffee, without Licence of t he Lcffor or his jyfignsjirjt had^ then the
Jatd Leafe to be void i Tlut the Deicn(i&ms have entred upon the Pre-
miires, on Pretence that the Executors of the Leifor did alien the
fame to the Plaintiff without Licence, and have culled the Plaintiff
who purchafed the fame ; This Court on reading Precedents, forafmuch
as the laid Executors fold the Leafe for Payt/2ent of Debts to which the fame
was liable, and if fliehad not been Executrix there had been no Forfei-
ture. This Court decreed the Plaintiff to be relieved againft the faid.
Forfeiture. Chan. Rep. 170. 1656. Cox v. Brown.
2. Covenant to perform Articles tor the fettling of Lands of which the Co-
venantor had no PeJfeJJion, but only a Poffibility of Defcent^ after a De-
fcent decreed to be fettled. Chan. Rep. 158. 21 Car. i. Wifeman v.
Roper.
3. Breach of Covenant, though proved to be ??iaf^ fo the Advantage of F'm.'Rep.
the Covenantee, yet no Relief in Chancery, though it was urged that the "7'^- „•
Penalty was exceffive, beyond that ot a Bond of double the Value.?- ^ ^°^^'
2. Chan. Cafes 198. Trin. 22 Car. 2. Blake v, the Ealt India Com-
pany.
4. A. fells a Parfonage and covenants againji his own Aifs, but there
was likewife a Covenant that he had good and lawful Power to grant and
convey the Premilies to the faid Vendee, and his Heirs, which was con-
trary to the true Intent of the Parties i Decreed that the general Words
ought not to oblige the Plaintitl', being contradiiied by all the Sicbfequent
Covenants, and the Plaintiff felling only fuch an Eftate as he had.
Fill. R. 90 Hill. 25 Car. 2. Feilder v. Studeley.
5. A. Jfftgnee by way oj a Mortgage of a Leafe for Years of a HouftBut wliere
with Covenant to repair. A. was never in Pojfeffton. Per Cur. it waSp^''°""'^
A's. tollv to take Alignment of the whole Term and fo fubjeft him-J;^^"y.Jo„
felf to the Covenants in the Original Leafe; yet as he is only a Mort-a Leafe and
giigee and never was in PolfelTioni the Court dilmifs'd the Bill, and leltthethe Leafe
Fhiincitf to recover at Law, as well as he can; per Commiflioners.^^^ ^(J"""'**
Mich. 1692. 2 Vern. R. 275. Sparks v. Smith. of M^'S
to A. for
100 I. A. never en-erM and loft the 100 I. Mortgage Money, but was fued by the Lefor for the
Ground Rent. A, bvoughta Bill for Releif but it was difmili'd, the Moit^f;e being by way of
Aflignment, and not by way ot Underleafe. 2 Vern. 374 pi. %%(>. Pilkington v.Shaller.
6. Tenant
^j2 Covenant,
The Court 6. Tenant in Tail by Deed covenants in the fame Deed, fiot to Dock.
obferved ^^g Efitail or ftrffer a common Recovery , he has only one Child, a Daugh-
ihat the ^^^^ ^^ whom he gave a good Portion on Marriage, he luifers a com-
waJulxwife mon Recovery and by Will devifed the Ellace to his Daughter for Liie,
that the and to her firll &c. Sons in Tail, and it ftie furviv'd her Husband ihe
Premijjes fliould havc it in Fee to her and her Heirs, on Bill by the Daughter
jijoi.l^i I'eMh ^^^ j^gj. pjusband, for the Specifick Execution of the Covenant it" was
"rJjnaltto infilled for the Plaintiff that the Agreement was Executory, and like a
the tifes It- Cwcnaut, that a Man ivoitld not execute a Po-joer, as in the Lord Peter-
mite/, burgh's Cafe, the 15 Leafes fet afide per Cowper C. this Cafe differs
vhich latter ^^^ ^j^^^.^ ^^^ ,^^ Agreement (Stibfequent to tlie railing of the Power) to
b°ing"EJe- extinguifli it but here all is in the fame Deed, fo you knew his Power
cutory, was and therefore accepted a Covenant, by which to have Damages. 2
the ftronger Vem. 635. Hill. 1708. CoUins V. Piumnier.
afford fome Pretence for a Spfcifck Execution thereof. But upon the whole his Lordfhip thought the
later Covenavt <ivas vo be Coiiitru'd as Relative to and tieperiiietit upon the former and to be Refhaini
hi that and to have meant no more than that the Father fhonld not by fuftering a Recovery, prevent
the Preraiffes from being ehjoy'd according to the faid Limitations. Wras. Rep 104, loS. S. C,
7. But where Tenendntfor Life with Power to make Leafes, covenanted
in a fubfequent Deed not to make Leafes, yet afterwards executed his
Power the Court of Chancery fet alide the Leafes ; But the realoa
was as' Lord Chancellor obferved in the Cafe of Collins v. Plummet,
that this was an Agreement fubfequent to the faifing of the Power, to
" ■ extinguifh it whereas in Collins and Plummets Cafe, the Covenant was
in the Deed. 2 Vern. 63J. and VV^ms. Rep. 105. 107. cites it_ as Lord
Peterborough's Cafe.
8. A. the Father of M. ( ^ Feme fole) mortgaged Land for raiftng fart
of a Portion on her Marriage with J. S. and afterwards died, "leaving
only M. his Heir. M. afterwards join'd with B. in a Fine and by-
Deed declar'd the Ufes to her Husband and felf, and the Heirs Male
of the Body of the Husband. The Mortgagee calling in his Money,
J. S. join'd with M. in an Alignment of the Mortgage and covenanted
that he and Wife or one of them would pay the Money. J. S. died leaving
W. S. his Son by M. and after M. inter-married with W. R. and died.
Lord C. Cowper decreed that the Perfonal E/iate of J. S. pall not go ifi
Eafe of the Mortgaged Premijfes, the Debt being originally A's and con-
tinuing (o to be, the Covenant, upon transferring the Mortgage, was art
additional Security for Satisfaffion only of the Lender, and not intended
to alter the Nature of the Debt. VV^ms's.Rep. 347. Pafch. 1717. Bagot
V. Oughton.
9. So that it feems as the Reporter obferves, if a Feme fole mortgages
and receives theMoney, and an after Husband joins in afftgning the Mortgage
and covenanting to pay the Money and dies ; his Perfonal EJate (hall not be
liable to the Payment i Secus if the Husband had receiv'd the Money.
ibid. 348.
10. Breach of Covenants is Triable at Law, for Equity will not fet-
tle Damages. MS. Tab. March 17th 17 19. Staftord v. Mayor gf
London.
For more of Covenant in general. See acttOtl (M. c 3.) COttOitiOlIt
IDZhU €mz. <J5tant!3 (H. 7O and other proper Titles.
Covin*
Covi
in.
v>ovin. Foi 549.
473
(A) [Difcountenanc'd in Law.] * Covin ;s a
fee ret AlTent
determined
in the hearc
J. T if il Man that has a Right of Aftion to CCtttlltt Lands 6^ CO^tU, of 2 or
_£ caufes another to cuft the Tenant Of t|)C ILiinD, to the intent to more Men
recover it trom him, and he recovers accordingly aijilinft i)i;U t)^ 3C= -"j^^.^ ^^^'
tioii tmXi, vtt fjc fl)ail not be rcmitteD to })is aniiuit Enjut, uiit isi^not'iKr, per
in of t\)z eftate of Ijim uiljo taa^ cl)e ©utlec* * 41 3ff* 28. ciina* Montague
aHjutipii, aiiD affifc mjj asama Ijim* t 44 SIT. 29, ch. j pi.
L.. 54. b. itl
Cafe of Wimbifii v. Talboys.- 9 Rep. 109. b in Merial Trefham's Cafe. Arg. and no. a.
S. C. cited per Cur. Co. Litt. 557. a b. S, C, cited Sid. 21. in pi. 5 But Fraud may
be by one alone. 9 Rep no. b. per Curiam
•f Br. Remitter pi. 46. cites S. C Br. Falfificr dc Recovery, pi 40. cites S. C. See tit^
Remi-fer (Ci pi i. S. C. and the Notes there S. C cited 5 Rep 78. a.
■^ Br Falfifierde Recovery pi. 45. cites S. C S C. cited 8 Rep. 15;. a. S. P. by Clench
•»nd Gawdy. Poph. 64. and Ibid. 100. S. P. by Popham and Gawdy in Cafe of Goodale v. Wyat.
2- Sif a^aitdifleifes Ut£ of Land, to which a Woman hath Title Br. Falfifier
of Dower, of Covin, aitU UJltlj COUfCItt of the Woman, to the Intent de Recory
to endow her, anti 1}G ciiDoiDS \)tt III tijc CouHtcep accornmijlp, pet E' c^L!!!!l
ttnsiijsof no effect agauift nie, but 3] maj? ouft ijim beraufc of tlje Br conufion
Comii. iDtibitatur, 44. M. 29. pi. 20. cites
I 5 E. 4.
S. P. by Littleton, and Cur. cited.- S C. cited 8 Rep. 132. b. S C cited by Mountague CIi.
J. PLC. 54. b. Co. Litt. 55 a. S. P. Co Litt. 557. b. S P. and fays, that lb it is in all Cafes
where a Man has a rightful and juft Caufe of Aftion, yet if he of Covin and confent does raifc
up a Tenant by wrong, againft whom he may recover, the Covin fuffocates the Right, fo as ths
Rerovery, though upon good Title, fhall not bind or reftore the Demandant to his Right. But if a
Difleifor, Abator or Intruder do endow a Woman that has lawful Title of Dower, tiiis is good and
fliall bind him that has Right, if there was nofuch Covin or Confent before the DifTeifin, Abatement
or Intrufion . Br. Dower, pi. 59. cites 12 AfT 20. S.P. Br. AfTife pi. iSi. cites S. C. 8c
S. P. accordingly. .^ir. Damages pi. 96. cites S. C. & S. P. Fit7,h. Dower pi 42. cites
Kill 24 E. 5. 4<5. S. p. Peik. S. 594, qg^, 596. ■ 3 Rep. 78. a. S P. per Cur. in Fermor's
Cafe, and cites feveral Year Books, and D 29^. For thougii her Right be lawful and fhe
has purfued her Recovery by Judgment in the King's Court, yet the faid Covin makes all illegal
and tortious though Recoveries, and efpecially where they are upon good Title are much favour'd
in Law.
3. 'SCIje fame J^atUj though the Endowment was upon a Recovery Br. Falfifier
againft him in a Writ of Dower, bCCaUfe Of t!jC CO^llU ^^m^^^f^l^'
29* cites SC
Br.
Dower pi. i^. cites44. E. 5.4^. S. P. and Ibid. pi. 59. cites 12 AflT. 10.' S. P. admitted. Br.
Affife pi. I Si. cites S. C. and S. P. admitted. Br. Damages, pi. 96. cites S. C. and S. P.
admitted. S. C. cited 8 Rep. 33. a.
4. A Rejignatiott by an Abbot by Covin fliall not abate the Writ. 3
Rep. -7^. b. cites 4 E. 2. Cui in Vita. 22.
j;. An hjlateis vuule to the King and by Letters Patents granted over,
• and all this by Covin between him, that granted to the King and the
Patentee, to make aii h'soajion out cf the Statute of Mortmain, jhail not
bind but be repealed. 3 Rep. 78. b. cites 17 E. 3. 59. and 21. E.
3- 46-
6. The Buying Goods in a Market Overt, by Covin does not alter the Br Tref-
Property. £r. CoUufion&c. pi, 4. cites 33 H. 6. 5. P^^^ P'- -^■
cites S. C.
■ PI C. 4<). cites S. C and that the Plea of Covin was admitted good without fhcwmg any
Thing of the Covin fpeciallv S P. per Cur. ; I-lep. 78. b- S, P. admitted per Cur. Cro. E.
S<5. pl.6. Hill. joElii, B. R.'inCafcof VVikcsv .Morefoots. 2 Inft 713. !>. P.
6 £ 6 A
.474
Covin.
S C. cited ^_ ^ li'oman and her Husband as Adimmflrators of tbejir/l Husband-^
Sid. 21, per yg^i^^i;,.^^ a D^it and while that Suit was depending, the Son of the bi-
tefiate by Covin bet-jueen him and the Defendant^ procured now Letters of
Admimflration to him and his Mother johitly^ and after Judgment re-
leafed tothe Debtor ; The Husband and Wife I'ued Execution, the Debtor
brought an Audita Querela, hanging which the 2d Adminillration was
Repealed per Sentence, and the Covin and the repeal pleaded in Bar, and
upon Demurrer Judgment was againft the Plaintiff in the i.\udita Que-
ia. D. 339. pi. 46. Hill. 17. Eliz,. Anon.
8. Covin is always to the prejudice of a third Perfon ; per Wray.
Le. I So. pi. 255. Trin. 3 1 Elizi B. R. in Cafe of Fiih and Brown v.
Sadler.
9. The Common Law fo abhors Fraud and Covin, x.hxt all Aliszs
well judicial as others^ and which of themfelves are juA and lawl'ul, yen
leing mist with Fraud and Deceit, y??^// in Judgment of Law be tortious and
not lawful '; Quod alias bonum et jultum elt, \\ per vim vel Fraudem
petatur, malum et injultum efficitur. 3 Rep. 7S. a. Hill. 44. Eliz. ia
Fermor's Cafe.
10. A. DiJ/iifor enfeofs A. with Warranty^ «W the DilTbifor ^^^r-
ivards with others procures B. to diffeije A. and that C. who has an elder
Right and cannot enter, pall bring a Scire Facias againfi E. to execute a
Fine levied to him ; by which Means A. is to lofe his Warranty ; lor
. upon the Scire Facias no Voucher lies i All this is done accordingly,
and Judgment is given for C. againll B. A. upon this Covin }nay well
maintain a Writ of Confpiracy in the Nature of an Action upon the Cafe
againfi the Diffeifor and the other Confpiratorsy and the Judgment in the
Scire Facias ihall be avoided j And this A£lion upon the Cafe ihall avoid
it for the Vexation and Falfehood, and lofe ot Warranty. Refolved
by the Council. Underftand this regularly by all the Judges of Eng-
land. The Remedy for C. is^ he may have a Scire Faaas againfi A. now
the Terrecenantj if the Fine was not executed and pending this Scire
Facias, A. Ihall bring a Warrantia Charts againll the Difleifor, and fo
the Right of every one fhall be faved. Jenk, 49. pi. 94.
1 1. Tenant in Tail difcontinues and dies, his Heir within Age ; a Stran-
ger ly Covin diffeifes the Difcontinuee^ and enfeoffs the Infant within Age;
the infant is not remitted, although he knew nothing of the Covin. By
•all the Judges of England. Jenk. 193.
5 Rep 7S, 12. Tenant in Tail who has a W'iie makes a Feoffment and dies ; the
a. S. P. per f ^o^^^ js diffeifed to the Intent that the Diffeifor fiall endow the Wife ; This
^"ri<^esin Dower is worth nothing becaufe of the Covin. Jenk. 193.
England,
except 2. Hill. 44. Eliz in Cane, in Fermor's Cafe.. Co. Li;t. c; 5. a S. P. Fov Covin in this Cafe
Ihall fuffocate the Right that appertained to her and fo the wrongful Manner fliall av<.id the Matter
that is lawful.. Co. Litr. ^57. b. S. P. ^5 Rep 31. a, S P. 6 Rep. 5S. a. S P. obiteh
-^ S Rep. 132 b. 133. a. Arg. cites 44 E. 3. 45. b.
13. Debt is brought by a Woman Adminifiratrix ; She has Judgment ;
before Execution this Admintfiration is revoked by Covin, and committed to
the faid Woman and her Son ; the Son releafes the Debt ; the Woman fues
Fxccution i the Debtor brings an Audita Querela i It does not lie be-
caufe of the Covin. Jenk. 28 j;. pi. 17-
14. The Plaintiff, a Woman, who had 150/. given her by her Brother, the
Dejendant, upon her Marriage, gives a Bond privately to her Brother to
repay the faid Money ; The Husband being Dead zviihout Iffue, the De-
fendant fued the Bond at Law upon the Plaintiff; wheixn^ow ff:c preferred
her Bill here to be relieved againll it, being a Fraud by Reafon it was
done witloDut the Privity of her Husband. It was urged lor the Defen-
dant, thai it was good Reufon for the Ilu.sband or any of his Ill'ue to
be
Covin. 475
he relieved, in Cafe they had been concerned, but that there was no
Reatbn that the Woin-Zn herfelf, who gave the Bond, fliould be re-
lieved. But ordered that the Bond iliould be delivered up; for being
once a Fraud no accident of Death or Courfe of Time fliould alter the
Cafe ; and the Plaintiff' was relieved notwithfiandmg it was her own
Jgrecweiit, being done in Fraud of the Husband. 2 Freem. R.ep. loi. pi.
III. Mich. 1687. Gay v. Wendow.
c
(A. 2) What Perfon or Perfons may do it,
i£)l)ilt cannot be but between two. 39 I), 6. 19. 6, B""- Collu-
lion &c. pi.
25 cites S.
C. S C. cited 9 Rep. 109. b. SC. cited 6 Rep. 58. aj
2. Covin may he upon good I'itle; As where a Feme had for her Jointure Ibid, 54 b.
Eltate Tail with VVarranty, and had been impleaded by Aftion upon .V^'^^''
good Title, and by Covin had conjefs'd the Atiion ; it is within the ch°V"c"it«
II H. 7. 20. For though the Title of the Aftion is good, yet if Ihe had 15 E. 4. 4.
vouch'd and recover'd in Value this Recovery in Value would go in Br. CoUu-
Eenefit of the Ilfue in Tail which is now loft by the Covin. Per Hales. ^^\,^?.' u
J. PI. C. 50. b. Mich. 4 E. 6. Wimbiih v. Talboys. ^ j fo 6 '
(B) Jfhat Things may be averred to he upon CoIlufioiL
Kecords.
Ijf Jt Recovery bv a Stranger, pending the Writ, \}t pleaded in Fitih. Brief
Abatement, tfic^Dcmannant caniiot auec it ta bcbp Coiimp.'^^v
ijetluccn tlje tenant ana tljc @)traitn;cc» 41 C« 3- 1 1- !_iin
Dower the
Tenant faid that he himfelf diiTeifed J. N. who re en t red pending the Writ, Judgment of the Writ;
and a good Plea ; The Demandant faid that J. N. entred by Covin to abate the Writ ; and no Plea j
For where this Entry is lawful, it cannot be by Covin. Br. Collufion &c. pi, 20. cites 15 E. 4. 4.
S. C. cited 8 Rep. i 52. b. as held, becaufe the Entry is lawful and mix'd with no Tort.- S. C, cited
PI. C. 45. b 44, a. as held by the Opinion of the whole Court that the Demandant cannot have fuch
general Averment of Covin without Ciufe fiicwn Ibid. 4S. a. S. C. cited accordingly; For as
the Demandant had not denied the Title of J. N. fuch Averment of Covin is repugnant to the Thing
confefs'd.
2. Formedon was brought by Covin of the Tenant againft himfeli^
becaufe he was Feoffee upon Condition and had broken the Condition and
would have the Land to be lofi againji the Feoffor^ and this Matter was al-
leged by Feoffor who was a Stranger totheAftion; tor the Defendant
conlelled the Aftion, and thereupon Proclamation was made, if any-
one could fay any Thing why the Demandant Ihou'd not have Judgment
and Execution ? Whereupon the Feoiibr came in as above, and Ihew'd
as abovci, and the Matter was examin'd and confefs'd, and the Tenant
■put to give Bail to attend his P unijhtnent fur 'the Difceit. Br. Coliulidn
&;c. pi. 15. cites 7 H. 4. 19.
3. In an ji^ion Perfonal Collufion fliall not be inquired.^ nor in Avowry.,
nor in Writ ot Fntry at the Common Law, per Frovvike quod Kingfmill
ConcelTit ; and faid, that in Ghiare Impedit^ the Collufion fliall be in-
quired, and fo in JJpfe. Br. Coliulion. pi 48. cites 10 H. 7. 3.
4. In
476
Covin.
9 Rep 1 10. A In all Cafes where Avirment of Covin or other Thing is given by
Trefliam's Statute or Common Law, there a Man lliall aver it generally where there
^^' can be no fpecial Caufe of it, but where there may be ayp(?rr^/ C^rt/t-,
there the Averment muft be fpecial ; Per Mountague Ch. J. PI. C. SS-
Mich. 4 E. 6. Wimbilh v. Talboys.
5. Covin fhall tie-ver be intended or preftimed in Law unlefs it be ex-
prefsly averred ; Refolved. 10 Rep. 56. Trin. 11 Jac. in the Chan-
cellor &c. of Oxford's Cafe.
(C) In what Cafe the ordinary Courfe lliall be changed
by Covin.
The Cafe I. * 39 51)«6. 50. \ ^^tl comes by Habeas Corpus out of London,
wjs that a /^ null had no Caufe to have the Prifon tlUt lip 1)13
Wan came (j^jj^in^ It UltllS ordered, that he Ihould be in Execution till he had paid
donbroc" the Debt recovered againft him after the Writ brought, and tililt aft£C
B°byPri- ^C fljOUll! bC remanded to anfwer the Plaints there. ^ 3!u05UtCnC
viiege, by fl)jn{ tie fttip'o foc CoUufiom t 7 ^» 4 19- l3»
him in Bank and it ap^tarM by Examination that he was arrefied in London in the Vacation when he need
not -cme ai't't his Suit to If^'eflminfler 5 and therefore the Opinion of the Court was that he fiiould be re-
manded and therefore the Plaintiff in C. B. pray'd that he might firft anfwei- to his Suit there when
he was prefcnt and the Count was in Debt of 20 1. and the Defendant as to 40 s contels'd the Aftion,
and to th'- rell oleaded another Plea, and Judgment was given of the Sum confefs'd and 4 s. Damages.
Lavcon faid the Adtion in Bank is taken by Covin of the Defendant, and he conhjfes fart to he com-
mitted to tie fleet, and fo to bedifmifs'd in London, and then the Plain:ifF here will releafe the Condem-
nation here to him, and pray to examine the Covin ; For it is not any Dury between the now Plain-
tiff and the Defendant in this Court, and for the Sufpicioufnefs Prifot awarded the Defendant to the
Fleet for the Condemnation confefs'd, and when that is fatisfied, keep liim tor the Plaint 111 London ;
For when he has fatisfied this PlaintifF he fhall be remanded into London. And lo fee that the Covin
Ihall not aid him ; For he thought by the committing to the Fleet to be difcharg'd in London, and ^a
Ars deluditur Arte, for Fraus memini debet patrocinari &c. Br. Privilege, pi. 51. cites 59 \L6. 50,
. Br.Colluftnn&c. pi. 24. citesS.C. „ , ^ , o • en n-- u n 1
t Br Collufion Sec. pi. i 5 cites S. C. Br. Judgment pi. 18 cites S. C. Fit^h. Procla-
nation, pi. 14. cites S. C. Br. Proclamation, pi 2. cues S. C.
ThisinDyer 2 3if Land be allen'd pending a Writ Of DCbt bj> CODltt, to avoid
149. a. pi. the Extent thereot fOt tl)C DCbt, pCt UlbCll tlJC COUtU appear^ UpOll
l°2 M \. tbe Eeturn of tlje elegit bp tlje ^ijcnff, tijc laiiD fa aliciieD fljaU be
rcSJre WtenDeD* D. 3, 4- 20a» 149. 80.
thTcafe" and Brooke thought that upon fuch Return by tiie Sheriff a new Wiit Ihould ilTue reciting
jt Iibid MaiR cites Trin. 55 Eiiz. B. R. 3flOtDfj'0 tiafe who brought Debt againff B. asHeir,
v/'ho pleaded Riens per Defcent the Day of the Writ, and found th-r before the Writ brought he
had alien'd the Aflets by Covin to defraud this Debt, ana Judgment for the Plainilrt ; and that it is.
well found tor him upon Office of Aflets by Defcent.
The Goods o jf a 95an maltCiS a Deed of Gift of his Goods in W Ltfe=time
are liable |j« (j^Q^in to ouft his Creditors of their Debts, pct aftCC W DCatt) tlje
ditors inThe ^ endec Ihall be charged fOt tl)em» 13 ^. 4» 4» ^*
Hands" as Executor of his own Wrong, if the Gift be Fraudulent ; and Judgment accordingly Cro.
T 2-71' pl - Hill. 8 Jac. B R. in Cafe of Hawesv. Leader. Yelv. 196. S. C. adjudg d per tot.
Cur.- % Le 22Y pl. 2S4. Hill. 16 Eliz S. P. by Dyer.
4. If the T'enant in Formedon cofifefa the ABion by Covin to make a
thiid Perfon iofe liis Entry, Proclamation pall be made, and il the third
Perfon comes and alleges the Covin, the Matter Ihall be examined, and
the Judgment Ihall Itay, and the L'urty jhali k ^iimjhsd. Br. Eorme-
• dou, pl.^-ii. cites 7 H.4. 19.
a
Covin.
5. A Man was arrejied in LondoUy and a'^ter another brought Aiftou a-
ga'mii hm in Eaiik^ and had him arrelled by Capias by Covin, by which
chey iarceiifed in London^ for by this he is a Prilbner to the Bench j
and the Tlaintili' in London prayed Procedendo, and that the fJoviu
might be examined. Per Cur. we cannot examine the Covin yet, tor
the Capias is not returnable till 15 Hili, But per Littleton, ifhedoes
rot come at the Day, and be let to iMainprife, the Plaintili in London
niayha\e a new Bill againft him, Br. Privilege, pi. 41. cites 10 E.
4. 16.
6. A Man fued 'Corpus cum Cm/a out of London^ jind it was found by
Examination, that the Action by which he claimed Privilege was fued by
Covin, ibr the Plaintitfin Bank difallovved his buit againlt this Prifon-
er ; for the Suit was difcontinued by two Tears, and now revived by the
Plaintiff and tlie Attorney in Advantage of the Prifoner, where another
Suit \%~7cs, thereof taken ot iate Time againll the Prifoner, by which,
upon the Examination of the Matter, and Attorney, and the PlaintiM^in
this Court, for their Falfity, were committed to the Fleet, and were
fin'd, and tlie Prifoner remanded to London. Br. Privilege, pi. 43.
cites 16 E. 4. 5.
7. A Man had a Grant of the nest Prefntation ; The Church voided,
A. B. prefented ; The Grantee brought .!^uare Itnpedit and recovered^
and had ^Vri;; to the Bijhop, who returned ihat the Grantee of A. B. had
rcfigned, and another is tn, by which the Plaintitthad Scire Facias to ex-
ecute the Judgment though there be the two Avoidances ; lor he [hall
recover upon the frji Avoidance, aad ihe Ait of the Defendant fj all not
prejudice the Plaintiff:, for then by Covin the Grant never Ihould take
Eitieit; Per Frowike Ch, J. Br. Scire Facias, pJ. 141. cites 21
H. 7. S.
S. A Jimpk Man drawn to make Leafesfand to enter into Bonds was re-
lieved. Toth. 268. cites Cuddington v. Hutton, in 8 Jac. fol. 905.
■9, A Man relieved againjl his own Dcid^ the fame being gotten by
Threats and Praclice, though the fame be vejled tn an Injant, and the
P.urchafor to become bound in Recognizance to alFure it when &c.
Toth. 26S. cites Maneright v. Roberts, 10 jac.
10. The Plaintiff relieved «^i^;a/?/7/.f 0'32;/',! i^e/f^/f, being an ignorant
Ferfon. Toth. 268. cites Sumner v. Tilling, 12 Jac. ii. A. fo. 49.
11. Judgment was had /'« i2 6W. Fa. againjl the IVife upon a former
Judgvient, and after two Nihils returned a Motion was made to qualli it,
becaufe before the Set. Fa. brought, jhe was married, and this Writ was
brought agai/iji her as fole, by the Contrivance of the Husband and the
Plaintijf, to opprefs her and lay her in Prifon ; and it was Ihewn, that
thePlaintiff knew that Ihe was married, and that fte could have no
Relief either by Writ ot Error or Audita Querela, becaufe the Hus-
band would reieafe it. The Court faid, they might /d'? ^/rW^ the Jtidg-
■ment for this Mifdemeanor ot the Plaintiff. Vent. 20S. Pafch. 24 Car.
2. B. R. the Lady Prettyman's Cafe.
477
•(D) Pleadings.
I- "T^N-lRTinthe Pofi ; the "termor for Tears by the Statute of GIou-
J2j cefter prayed to he reusmd by Default of the Vouchee, and faid,
that the Recovery was by Covin between the Demandant and the tenant
wJbo kafed te him £>i.Q. to make bun hfe his I'erm^ and traverfed the Dtf
6 F fei/ht i
478
Counfeiior.
fnfin ■■, and per Pollard and Fitxherbert J. clearly, the Covin is noc
material without traverling the Point ot' the Writ j and therefore the
Covin alleged, and the I'raverfe of the Diffei/in is not double ; i>^uod
Notai For he is compelled ot'Neceinty to Ipeak of both, and therefore
it- is not double i Quod Nota. Br. Double, pi. 55. cites 14 H. 8. 4.
2. Covin is not traverfahk by Plea but only in Evidence at the Bar.
Winch. 90. Trin. 22 Jac. C. B. Adams v. Ward.
For more of Covin in General, SeeJFUte (E. b. 3) (I. b. 4) JfraUt!*
Papmeitt EcmttteC* And other Proper Titles.
Counfeiior.
(A) Confidered , How ; And in what Cafes favoured
or not.
I . fnr^HE Fees to Counfeiior s are not in Nature of Wages, or Pay, or that
f which we call lyizZ-^ri', or Hire^ which are Duties certain, and
grow due by Contra£l for Labour or Service, but -what is given him is
Honorarium, not Merces, being a Gitt which gives Honour as well to
the Taker as the Giver ; nor is it certain or contra6led ; for No Price
or Rate can be fet upon Counfel which is invaluable and inellimable, {o
as it is more or lefs according to the Circumftances, namely, the Ability
of the Client, the W'orthinefs of the Counfeiior, the Weightinefs of
the Caufe, and the Cultom of the Country. It is a Gift of fuch a Na-
ture, that the able Client may not negleft to give ic, without Ingrati-
tude for it is but a Gratuity, or Taking of Thankfulnefs ; yet the
worthy Counfeiior may not demand it without doing wrong to his Reputation,
according to that moral Rule, Multa Honefta accipi polFunt quae tamen
peti non poffunt. Pref to Dav. Rep. 22, 23.
2. 5 Eliz. cap. 14. S. 15. Counfeiior not pnnifhahle for Pleading, or
(hewing a [alfe Deed tn Evidence, to the forging whereof he was not Party
nor privy.
Ibid, cites 3. The Counfel of the Party's Caufe not to be examined in the fame
** C*"^- Caufe. Toth. no. cites 11 Eliz. Lee v. Markham.
Thimble-
thorp V. Thimbkchorp, S. P.
4. The Counfellcr's Clerk not to be examined in the Caufe. Toth.
no. cites 13 & 14 Eliz.. fo. 93. Breame v. Breame.
5. Daniel Hill having put in for his Client a long infiifficient Demur-
rer to a i?/7/ exhibited againll his Client, in which fuppoied Demurrer
were many matters of Fact, and other Things frivolous and vain, the
Lord Chancellor Egerton awarded 5 1. Colts againll the Party, and
ordered, that neither Hill, Atifwer^ Tcmurrerj nor any other Plealhould
irora
Couiifclior. A'lo
iVoiTi chencet'orth he recerfd under the Hand of the [aid HtU. Gary's
Rep. 3S. cites 27 April, i Jac. Hill's Cafe.
6. A Counfellor \n Law retained, has a Privilege to inforce any , IfaCoun-
Thing, which is inlormed him by his Client, and to give it in Evi-''-''//'^''*-'
dence, ic being pertinent to the Matter in (^ueftion, and not to exaniine{^'"^'jj^'"'^^fl
whether it be true or hiKci but it is at the Peril of him that informs oj^^/cwrf-
him i for a Counfellor is at his Peril to give in Evidence that which his'XT hii Cn-
Client informs him, being pertinent to the Matter in Queftion, other- ""''^ C.mfe,
wife Aclion upon theCale lies againlt him by his Client. Per Popham?;",'^'^^'"'^'
Ch. J. and Judgment accordingly. Cro. J. 90. pi. 18. Mich. 3 Jac.againfthim
B. R. Brook v. Montague. , for fo doing;
7. But Matter not pertinent to the IJftte or ih&MnttQv in QuelHon, he ^""^ '' '^^ "^'^
need not to deliver ; For he is to dilcern in his Difcretion what he isP'^^'ZI-^ ,-
to deliver, and what not i and altho' it be talfe, he is Exculable, be- CHcnt and **
ing pertinent to the Matter. Cro. J. 90. pi. 18. Mich. 3 Jac. B. R. itlhailhe
in Cafe of Brook v. Montague. intended to
8. But if he gives m Evidence any T'hmg not material to the Jfue "^hich^lJ^^^^^^
is Scandalous ^ He ougilt to aver it to be true, otherwife he is punilha- tohi'sClfl
ble i For ic Ihali be intended as fpuken malicioully and without Caufe^ em's Inftiuc-
which is a good ground lor an Aclion. Cro. T. 9. pi. 18. Mich 2 "o"^- P<=r
Jac. B.R. in CVe of Brook V. Montague. "' ' f^'y^^^J-
9. So if a Counfellor objccls Matter agamfl a Witncfs 'which is Slander- Mkh^uSy^.
ctis; It there be Caule to difcredit his 'leltimony, and it be pertinent toB. R. Wood
the Matter in Queftion i It is jultifiable v\ hat he delivers by Informa-^- G^'ifton-
tion, altho' it be falfe. Cro. J. 91. pi. iS. Mich. 3 Jac. B. R. in,. J'j^ff^^'J;
Cale of Brook V. Moantague. great°and''
■*<■ o-n. r J r in • Valuable
jMan BiJhopSandcrlon, to the Pleader vii. Counfellor, in his AiTi'e Senncn at Lincoln, bcin"- the
5d Sermon ad Magiftratum, pag. 164., is viz. Not to think becau<e he has the Liberty of'the Court
and perhaps the Favour of the Judge, and that therefore his Tongue is his own, and ha may
fpeak his Pleafure to the Prejudice of the Advcrfary's Perf'on or Ciuft ; and not to feek prepollerouf-
ly to win the Name of a good Liwyer, by wrefting'and preverling good Laws ; or the (.)pinion of tie
beft Counfellor, by giving the word and the fhrewdeft Gounfel; and not to count it, as Protacroras
did. the Glory of his PrcfelTsop, by fuhtiity of Wit, and volubility of Tongue to make the worfe
Caufe the better ; but like a good Man, as well as a good Orator, to ufc the Power of his Tongue to
flisme Wit and Impudence, and protect Innocency, to cruHi OpprelTors and fuccour the Afflided", to
advance Juftice andEquity, and to help them to Right that fufter Wrong, and to let ic be as a ruled
Cafe to him in all his Pleadings, not to fpeak in any Caufe to wreil Judginent.
10. Counfellor may take Fees of his Client, but he may not lay out
jT/o««)' for him, and if he does, Hobert Ch. J. doubted what Remedy
he might have. Winch. 53. Mich. 20 Jac. C. B. Gage v. Johnfon.
11. Counfellor brought a Bill for Fees, due to him from the De ten -
dant being a Sollicitor, and was to account with him at the end of
every Term i the Defendant demurs. Demurrer was allov\ ed and the
Bill diimifs'd. Chan. Rep. 38. 15 Car. i. Moor v. Row.
12. A Lawyer who was of Counl'el may be examined upon Oath as a
Witnefs to the Matter of .Agreement, not to the Validity of an yi{furance, or
toinattcr of Counfel. Mar. 83. pi. 136. Pafch. 17 Car. Anon.
13. It a Counfellor fays to his Client that fuch a Contraii is Simony, and
the Client fays he will make it, Simony or not Simony ^ and thereupon
the Counfellor makes this Simoniacal Contract, it is no Offence' in him.
Per Reeve J. Mar. h^. in pi. 136. Pafch. 17 Car. Anon.
14. A Counfel was examined as a Witnefs to prove the Death of a
Pirjbn, yet he is not bound to anfwer toother Things which may dif-
cioie the Secrets cf his Clu>it's Caufe. Per Roll. Ch. j. Sti, 449.
Pafch. 1655. Waldron V. Ward.
15. Cojls were tax'd lor Scandal in a Bill in Chancery at 100 1. buttho'
the Scandal was \ery great, yet my Ld Chan, and the Judges reduc'd
it to 50 1. and the Counfel, whofe'Hand was fet to it, to pay the De-
fendant 5 1. more. Chan. Rep. 194. 12 Car, 2. Emcrfon v. Dallifon.
i6. BiU
480
Counfcllor.
16. Bill by Executors ola Counfellor lor .2: 6>/;« in. grofi for Advice
,^/;^^'P^/-';j- ofcheir Telbitor in leveral Cuufes, wherein Delendanc was
concerned. Defendant demurred becaufe if he Ihould anfwer the Bill ii.
would draw him under a Penal Law, it being againlt the Courle ot n!!
Courts of Juilice for any Counfellor at Law to make luch Contract as
in the Bill is luggefted for his Fees in a grofs Sum to be paid upon the
Event of any Caufe. Therefore this is a Bill of fuch a Nature as ought
not to have any Countenance in a Court of Equity j Demurrer allowed.
Fin. R. 75. Hill. 25 Car. 2. Penrice v. Parker.
Ordered that 1 7. What a Gounfellor ^«mw o/z/j' as Counfellor, and under a Con-
he be not tradt of Silence he fliall »o; be put to an fix; er. Chan. Cafes 277. Trin.
^"'"''"iMat ^^ ^^^- ^- B^l^^rode V. Lechmore.
ter Ill/which ^^- Contra, where it is to difcover a Settlement in Trufi for pay-
he was of ment of Debts. 2 Chan. R. 29. Shalmer v. Trelham,
Counfel ei-
ther by indifferent Choice of both Parties, or with either of them, by reafon of any Annuity or Fee.
Gary's Rep. I4';. in Cafe of Dennis v. Codrington. It ii again ft the Duty of a Counfellor to
(iifcover the Evidence, which he who retains iim, acquaints him with ; Admitted by Hale Ch. J.
Vent. 19;. Pafch. 24 Car. 2. B. R.
19. The Bill was to difcover an ancient Bill of Entail, fuppofed to he in
the Defendant's Hands ^ and that he had per ti fed it., and that in Difcoiirje
he had acknowlegcd fuch Deed and other like Charges. The Defendant
fays by Plea that he was a Counfellor with A. B. 'that on a Reference
between the Parties, it was agreed that nothing that paf/ed then fhoiild be
made fife of on cither Side, or be difclofed. Ciian. Cafes 277. Trin. 28
Car. 2. Bulltrode v. Lechmore.
20. A Counlel may be a ll'itnefs if he voluntarily agreed to depofe
the Truth, but he is not compellable lb to do (though it has been held
otherwife formerly) ; by three judges contra Holt Refolv'd. Cumb.
467, 468. Hill. io\v. 3. B. R. Matthews v. Temple.
21. In the Cafe where Mr. M formerly an Attorney of the Court,
(now Counfellor at Law) was accafed of foul Practice in his Profelfion j
The Court faid, though he be now aCounJel,yet perhaps that will not dif-
charge him Irom being an Attorney ftill ; and then we may get his De-
mands taxed as fuch. And does any Body think, but that a Counfellor at
Law is a kind oi-i. Minilter of juilice, and Right, and as fuch, punilli-
able for Misbehaviour in his Proielhon ? And Holt Ch. J. faid to him
Vv^ili you have the Point tried whether a Counfellor at Law may cora-
v.fit an Extortion ? 6 xMod. 137. Pafch. 3 Ann. B. R. Anon.
22. One Mr. Dean, who was a Barrifterat Law, having made a Rill as
a Sollicitor, -a Motion was made to tax it, which was granted, but the
Court faid that if he infilled upon having his Bill paid, they would
herealiier treat him as a Sollicitor ; And Mr. Jultice T. Powys faid,
that fo it was ruled in Chancery by my Lord Chancellor Harcourt, in
the Cafe of one Mr. AliioUy and if Gentlemen would not take Fees after
the itfaal Manner they aught not to recover them by any Aciion at Law.
Hill. 12 Ann. B. R.
2?. Notwithilanding Counfeliors are not OfHcers of any Court, nor
. inveiled with any judicial Office, but barely Pra6life as Counfeliors ;
yet inalmuch as they have a fpecial Privilege to praSlife the Law, and
their Misbehaviour tends to bring a Difgr^ice upon the Law itfelf ; it
feems clear that they are punipable for any foul PraB ice as other Mini-
flers of Juilice are. 2 Hawk. PI. C. 151. Cap. 22. S. 30.
24. it is certain, that no Counfellor or Attorney can juftify the uling
any deceitful Praffice, in Maintenance of a Client's Caufe., and that they
are liable to be feverely punilhed, for ail Mi(d\imcanors of this Kind,
not only by the Common Law, but alfo by Statute ; For it is cnafted
by IVtfim. I. cap. 2a. That if any Serjeant, Pleader or other, do any
Manner
Counterfeits.
481
Manner of Difceit orCuUulion in the King's Courc orconfenc unto it,
in Dilceit of the Court, or to beguile the Courc or the Party, and
thereof be attainted, he ihall be imprilbned for a Year and a Day, and
from thenceforth fliall not be heard to plead in that Courc for any Man,
And if he be no Pleader, he fliall be iinprifoned in like Manner by the
Space of a Year and a Day at the leaft. And if the Trelpafs require
greater Punilfinient, it Ihall be at the King's Pleafure. In the Con-
itru£lion of this Statute the following Points have been holden. ill.
That Coiinfellors &c. who are not fyvorn, are as much within the
Meaning of it as Serjeants &c. who are Ivvorn. 2dly, That all Fraud
and Faiihood tending to impofe upon or abufe the Juftice of the King's
Courts are within the Purview of ic. Hawk. PI. C. 254. cap. 83. S. 28,
■29, 30.
For more of Counlellor in General, See other Proper Titles.
(A) Counterfeit
I.
33 R T?Na£i:s that obtaining Money by any falfe Token or Ccantofeii ^ Inft. 1:5.
^^i*- ^- I^j Letters, and being convitfed thereof by Jf'itfieJJefs or Co«- cap. 60 lavs,
fcfflon lefore the Lord Chancellor, Jujlices 0^ JJftfe, Jujiices of the I^eace,\^'^^^"'^ ^'^
or by any Atiion in any Court of Record, pall bepiintfhed at Difcretion, the^^J'^^^ "^at
Pains of Death only excepted. upon this
Statute for
tills OfFencff, the Offender cannot be fined, but Corporal Punifhment only infiifteri But where
T. was indifted upon this Statute, becaufe he by a falfe Note in the Mame of J. D. obtain'd into his
Hands a Wedge of Silver of zco 1. Value, of which he was found Guilty, and had Judgment to ftand
on the Pillory, and alfo to pay a Fine to the King of 500 i. and to be imprifon'd during the King's
Pleafure; and to be bound wiih Sureties for his good Behaviour. Cro C. 564 pi 10 Mich 15
Car. B.R.Terry's Cafe,
2. An EJlate that is to be devejled on a Condition of Payment of loo I.
cannot be de veiled by ^.Ihani Payment, of part and real Payment of Part,
but there mull: be a real Payment of the whole. Cro. E. 383. pi. 4,
Pafch. 37 Eliz. B. R. Goodale v. VViatc.
3. A Clothier oi G. made Clothes which were dearer and more ven-Cro. J. 471:
dible than the Clothes of any other, and he put a fpecial Mark upon fays ir was
tiiem ; another Clothier counterfeits the faid Mark and puts it on his ^'■°"?^'^ ''^
Clothes which were not fo good, but yec fells them as dear as the''_l"s''c
other i Aflion on the Cale lies againft him i Doderidge J. fays it cited per
was adjudg'd 23 Eliz.. in C. B. but fays, not whether the A£lion lay Duderid.c;e
for the Clothier or the Vendee, but ic leems ic is ior the Vendee,' 2 Roil I- '^^ '"■°"^''''
Rep. 28. Trip. 16 Juc. Sicr'Vo h'
If an Information h'es for counterfeiting a Letter fending for a Perfon 144.
in another's Name to Brentford to come to him, when no Mifchief is
done or intended ? Court divided, 2 Show. 20. pi. 13. Mich. 30 Car. 2.
B. R. the King v. Emercon.
FormoreofCcunterfeics in General, See other Proper Tides.
6 G Coun-
482
Countermand.
(A) What is or amounts to a Countermand • And of
what it may be.
I
F A. gives me 20 1, to diffofe for his Soul after his Death, A. fhall
not have Debt nor Account, for this amounts to a Gift as it feems ^
Per Needham Br. Done &c. pi. 52. cites 8 E. 4. 5.
2. Money given to befto-j) in Chartty may be countermanded till be-
ftowed. Jl). 22. pi. 135. Trin. 28 H. 8.
4 Roll Rep. 2 There is a Diverlity where fuch Gift is made to a Stranger to dc-
cited —Cjit ^^'^^^ '^"'^'^^ °^ ^^^ "^'^'^^ ^\'\\\ and Pleafure, As a New Year's GiVt &c. or
142 S. C. on a Coiiftderation or former Duty, or in Sacistaciion of another Thing,
cited Arg. D. 49. pi. 9, lo, II. P.iich. 33 H, 8. in tlie Cafe of Lyte v.
Penny.
Eutif it be 4. Money hailed to A. by B. Ad Opus ^ Ufum C. yet till the Delivery
Solvent toC. fQ Q tlie Property continues in A. and he may countermand it. D. 4.0.
whieh IS in- , , ^ ■' '^ t^'
tended in ». pi. 1 4, IJ.
Satisfaction
of a Debt it is fiot Countermandablc ; Agreed. Arg. Cro. J. 6S7. pi. 1. Trin, 22 Jac B. R. Harris v.
Betfoire, 2 Roil R. 440. S. C.
5.. A. fur chafed $ Marks per Jnnu7n in the Name of B. and C. -With
this Itniji that A. might enjoy tt during his Lije^ and after it Ihould be
to the ere&ing of a School in the Town where the faid A. was born and
buried, as the Feoffees declared in their Anfwer^ And in his Life-time,
alter the Purchafe, he repealed his Intent of converting the iame to the
Ui'e. of the School, and devifed the lame to j. S. which Jullice VN'ar-
burton prefently decreed for him, faying his Will was his Declaration.
But in his Words there was but a Meaning only expreft (me contradi-
cente) for it J. C. make a Feoffment to the Ufe over according to arti-
cles annexed, he cannot alter the fame by a latter Will, contra it it be
to the Ufe of his Will. Gary's Rep. 40, 41, cites 19 June, i Jac. Lit-
tleton's Cafe.
6. A. being indebted to B. in 100 1. bailes 100/. to C. to fay B. yet
before Payment A. may countermand it. For A. himfelf may have
paid it afterwards. D. 49. a. Marg. pi. 10. cites Mich. 4 Jac. in Scacc.
Turberville v. Porter.
S. P. per 7. if 1 fay to you, Bnild for me fuch a Houfe and I will give yon 10 /,
Doderidge And before you have provided Materials, or have been at any Charge,
J- *"" l^^"^ I will revoke my Promifcj and countermand my prefent Agreement,
f^cont'ra" '^^ '® "^'^ S°°^ > ^'^'^ Meum ell Promittere, & non Dimittere ; Per
butHMgh- Croke J. 2 Roll R. 39. in Cale of Winter v. Foweracres.
ton iaid, it
rnay be confiJered in Damages. So where it was to take a Journty to Lc>}7d.ir. anil htlp t<i fn<{ a
it'll!, and before any thing provided for the Journey of the Defendant, it wa,s accorc'ed and agreed
betwivt Plaintiff and Defendant, tliat Plaintiff ihould be difchirgcd of his Journey, and Defendant of
Payment, Judgment was for the Plaintiff"; but it feems, if the Matter liad been K'eil ple.ided it wonldl
luve been .idjudged tor the Defendant. See Cro. J. 620 Cbii)pl. 10 Mich. iS Ja, £ R, Trefwallcr
V, Kcyne.
S. JBu£
Countermand. 483
8. Eui wh<irc it is I;y -zvaj of Contraif ic is not couiucrmandable. z
Roil R. 3-9. Trin. i6 Jac. B. R, per Dotleridge and Crookc Juitices,
in Cafe ot Winter v. Foweracrcs.
9. Oetendanl pro/-;;//f(/the Plaintiff, that ij riaintiff ii^Nild prcciire a
Feme mprifoued to be delivered oiit^ he would repay him all fitch Monies as
he fhould dishmfe therein. Defendant pleaded, that belbre the Plaintiff
had paid any Money Ibr her Delivery, and betore the Plaincitf had
done any thing relating to it, he revok'd his Promife, and counter-
manded the Plaintiff', that he Ihould do nothing as to her Delivery.
Adjudged by 3 Juftices that he could not countermand it. 2 Roll
Rep. 39. Trin. 16 Jac. B. R. Winter v. Foweracres.
10. I^he Law refpe£ls Alatters of Profit and lutereft largely^ but of
Pleafure, Skill, Eafe, Truit, Authority, and Limitation, yi?n(?/)' i and
iheretbre thefe may be countermsndedj bun io cannot the other. See
Fin. 8. b. Wing. Max. 376. to 381. iScc.
11. A Feme fole infeoffed a Man within the View^ and direded him to Vent. iStf.
snter without other Livery. They •intermarry before any Entry made by Pat-fons v.
hifn, and then hi enters j Adjudg'd chat the Entry was good after Mar- *^""~^ ^- ^
Tizge^dinA not'cotintermanded by the Marriage. 2 Lev. 34. Hill 23 & 24 cordiYgiy
Car. 2. B. R. Parfons v. Pierce. But fays, that perhaps it mignc be ■ Mod".
ctherwife had ihe married a Stranger. 91- pi- 59-
Paitbiis V.
Pet-nr, S C. ftares it, that the Feme was Joir.renznt in Fee with another, and adjudged that the En-
try was good. 2 Keb. 872. pi. 29 S. C. adjornatur. Ibid S80. p] 57 S. C adjudged accord-
ingly. 9 Salk, 16 j Parfons v. Pettit, S. C. accordingly. Pollexf. 45. S. C. arsrucd and
adjudged.
12. A Man gives a Warrant of Attorney to confefs a Judgment, and
dies before the Judgment is confefled j this is a Countermand. Yenc.
310. in a Nora. Pafch. 29 Car. 2. B. R.
13. A. poffeffed of an Office for two Lives executes a Deed^ appointing,
that after his Death one R. H. then in his Office Ihould be Deputy,
and dtre&s feveral Annuities to be paid out of the Office. After«'ards A.
hy afubfequent Deed made different Appointments of the Pro/its of the Of-
fice. A. kept both Deeds in his own Cuftody during his Life , and in
Support of the firft Deed it was infilled, that ic was an abfoluce Difpo-
lition of the Profits of the Office without any Power of Revocation,
and oughc to lland, and that though both Deeds were ail along in his
Cullodyj yet fo (generally) Voluntary Sectlemencs are^ and y(X the
firlt Ihouid' prevail. But Ld. Chancellor held, that the yfr/? Deed was
£inly an Authority, and therefore clearly countermandable by the fecondj
and decreed the tirfl: Deed to be delivered up. Wras's Rep. loi. Mich.
1707. Young v. Cottle. '
14 Though a. Letter of Attorney IS revocable at Common Law, yet
where ic concerns Payment of Debts ic iliali be continued in Equity. G.
Equ. R. 70. Pafch 9 Ann. in Cafe of Hungerford v. Plungerford
.For more of Countermand in General, See ^^.UTl'iJffe (H) Pd^UgCjcf,
And other Proper Ticks,
Court
484
"TS^ Court.
S. C. cited
bv Hirfe J.
(A) Office of the Court.
[Or what the Court may adjudge without being found
by Jury, pi. i, 2.]
i.'T7C7Ipa'2r;ff;rJUiCft»inareafon»bleTime, fijaH bC SBiUtiSt^ l>j)
^t'p"1d- P^J^'^^* CL'J, Llt*5o.b,
— S p. ad
to reinovirtr Hav rick'd by Lice-cc on the Land of another Godb. iSz. p!. 401. Hill. 1 7 Jac. B R.
VS'ebb V. PaternoHer ; Roll Rep. I4^ l-iZ. S. C. &S P. rgreed. Poph 1^1. S. C.
& S. P. refolved. Pa'm. 71 S. C & S P. .idjudged that the Plaintiff had convenient Time,
* Refolved 2 JEIjflt f* all ftC fuiU JJ reafonable * Fine, Cuftom, or Service,
accordingijr, tjg aUHititE'C' tD t!)e DKcretfon of tie 3iuff!ce0 More ioljomtoe
that It may (jj^isfe BepcuBs, iiiJiuii vljv tiUz ^tdtt of tfje Caie nciieaQaig befijce
D-muner tljenii fcc iualoiirulaiCfsj ill itde c^meia appcrtauijs totU Conit^
o/on Evi- fance of tije lax, iuio tijEteocctJ lie oeciDcj oi? toe aiuaices. Co*
dence to £|(;^ j;6. J)« S9- tl»
upon Con FcfKon or Proof of the annual Value of the Land. 4 Rep 27. b pi. 16. Mich. 42 & 4;
Eliz B. R Hu' hard v Hammond — S. C. ciird by Hide J. Mod. 159. ^ Where a Fine for
Adrrirrance to a <^opy!io'ui« arbiirable at the Will of t.ie Lord, and he irapofes a Fine, the Jury is
to try whether it be reafonable or not ; Per Cur. Cro. E. -,>i. pi. 5. Mich. 50 & 57 £Uz,. B. il. Jack-
man v. Hoddefdon. ■ See Tit. Trial (F) pi. 5. and the Kotes there.
Bridgm. no. 3- lif tljC SUtJ) ftX'Q d. fpecial Verdia:, that A. mutuo dedit 500 I, to
SC.and B. for vviiich B. inleoiied A. Of CettilUl JLa!l50, upon Condition, tlMt
Ju.iRment jj-j^g p^i^j jq him 650 1. at a certain Day three Years after, it ihould be
j-"^f.^'- lAutullor him to re-enter, ailH fO lea^f JS (t tO tlje COUtt, SltjetljeC
b'r' J tljig U Hfurp or not ; tljougD tt appears iicre to t\)c Court tijat
Cro 1-5=8. jnoretljmi lo u fat looi. 10 refctiuo, \}mnQ rcpcD to tljepto=
p'; t^- . fit0 U)I)iclj tljc ifeoiTee 10 to Ija'ac b? Ujt jfcaifiiicnt, ttDfcij arg foiinD
Tac B 'r to a ccifain m\m, pet becaui'e tlje Jiut? WD not foiino it to be
in Cafe of HfUtl', tlje Court ihall not adjudge it to be Uluiy, fOC tfjete OUgbt tO
Roberts v. {}£ jjn ufuttoits aiiU corrupt Contr.ift, Of tcijicf) tt)c Coutt caniiot
'i>naine, {j.^^j Coiiuraiice uiitljoiit tlje finUins of tije 3tirp» s^icf). 15 3ac.
rrou"con' ^'^. H' bcttneeu ivci' and Wor field aojaDgeu m a s^rit ci'^^ctor upon
traft, the' a Juntjuicut lu OSaiico, UJljcre it ioa0 alio auitiOBta,
Verdia . T , rv
found the At^reement prom &c but did not find that Corrupte Agreatum fuit. It was obiected, that
it ouo-htto hsve been found exprefsly lomake it an Otfence within the .^tatu'c ; fed non allocatur ; for
there Is a Diference between an Infonnation, which ought to be precifely allej^cd, and a flecial Ver-
diit, whcrcm all the Circumftances are found, which heinjr apparent to theCourt to be ul'urious,
and cannot by Intendment have any other Conftruftioi, it fufhceth, and here it is apparent that the
Money was lent for Interell, and is more tiian the Statute permits, ard therefore being Ulury appa-
rent, the Court (li ill ]ud';e it accordinj^ly, and cite,'! it as adjudged in Ca'e of iijgginjj C, SsfJtrBttl,
that if the corrupt Agreement be not CAprclTcd in the Verdict, and the Matter is apparent to the Court
to be Uliirv, the Jury need not iTicw that it was corruptiv, for Res ip'a loquitur ; but otherwife it is
it It be oidy 'implied', wherefore it was adjndged for the Plaintiff.
Court. ._ 4g.
■Lev. 279.
Care of-pfr.-r l,.\\tUto-^nC-.B: f" letS of"n of • fc J^'l ^^ ^^ ^° ^^-^ i-"
ty, a.dtl,c Jury found, that Thoma. TyrcVhcId ccnain LndVnf T t,^'^^^ P'"^'^^'^ NotGuil.
not, and .,, the 4. of Eli., did infeotf Jol.n Ty er l4 Son and Hd/ w." "L"°" ^^• ^"^"^ ^"'^ "-
Tyre.- tor fortv Yenrs, if I,c fliould fo long live, to he In"ent tiS 'nv. ""u"^" '. ^='^'" '° Thomas
ry, fiiould not have her Dower during f,i, Li l Tho™ ^ r" 'n "f l'*""" '"^ ""^"^ed to mar-
fenduru took ,t (or a Herior, and they fou d the SratuTe oTLu f.'^r ^^^ ^'^''^ °^'^"' ^'' '^'^ ^he De.
adjudged, that fora.nH,cI, as' the Feok^cnt w no foun^ bvtt I rv °r7'"f " ^''^• ^"^^ '^ -^'
Court could not aa udgc it to be fraudulent, airhoughVhe jurv h d fo,^n^ r" " f;;^"^^''^"^. vet the
nicnt. to prove the Kraud. . Brown. ,6. xTk v 1" fleton S C P,^;'"'""^"^" ^"'d Induce-
Cur. for the Judges havenothinR to 6o..nh^l/ofFlALlfBt^^^^^^ P'^ '°^-
C. BTvre V. Littleton, S. C. adjudged for the Plantiff Nifl ^!_1 rT. ■ T " ^^'^'■'"- >o he.
~~ S. C. ct.-d . Jo. p. -^ S.^C."cited by BrLg^'f '"'L^.X'iiT.TjS:'- '° '''^- ^^ ^
5- Jf i1 JtltP finds, that T. S. with his n\vn \f^r,»,, j t , ^
to be iculed upon hi.'.fclUnd B h s Son MmTt7u'Jr'''f L^"dsCro. C. „s.
and fintljS other Badges ofFraud nnti nt^cr h"?n r ? °^ ^ T'^^'^'S c'&'-
i^ not mm nm t\)% uias Done b/^?aS or Ttoff ?£%n!!-J,!^''^'^^
Ciu-iam'asrcefupiufT&
Judgment
— — Jo- 4" 7, 4^S. pi. ;. S. C. & S. P. bv ' Tuflice<; rnnr« R».l I «, accordingly.
r.rt^wSr'"'''^'^^"'^^^^^ ^^^C^'^^^ Ex Officio ..^^.
. trary for the Defendant^ a^AlI /x. IbiS* '^^ ^' °- ^"'^'' '^'^"■
.. '^'. ^!}/-^i% ^^""J ^f '^ ^"^ ^-^"' "P°" ^^^''^ -O^^^-f P^^^^f^ -with Warrant
ffflonndfor the Plaintiffs and the Dijfafin 'without Force and Anns
and jo iee that is the Office of the Courfto inquire of it, thZh it be
Waif^rlV"- Tf .'. u"- '" f'/^'^'^ '^' '^' m.\all be bund Sr che
PJa.nt.ff, ulhali be mended to be ^vith force and Arms, though c Ihali
not be inquired or prefented. Br. A/Iife, pi. 67. cites '7 H. 6^40
to ?he Ixch'e au'eTl^/r "J f^^^t^y - /-^«iAr J^vas reLn'd in- D. intending
rZilJ^^ SS'^V f^-"-^ ^"IT"' ^3 £//^. which >«^-g>beyonI
i;L ?; ^/^'"'Slif^'^Fe^ of divers Manors ^c. covenanted to /iand^'^T'
f fdto certam Ufes, wtth a Provtfo that he mtght revoke ay ZkeVi"^'
Jtd the fame upon the Tender of a Rin<r of ks Value A^^J Yf^^
further fr,tin/i tuf^t T J n 1 ■' r ^ "J 5 ^' raJUe. Ulncl It was Indenture
h pUs id^^^^^ ^^ ^^/«;^J'. after till hts Flight beyond Sea, ^..^in-ird. but
^^^t'ropts, and that hts Flight was without Licence, and that he did not'^" ^'''-
fotnid The Barons at firft doubted, but afterwards thn»ahrrr>V '"''■' "°V
fpecal Matter fnnnri Kxr fi,^ T ' ^u'- ^uerwaras tnougtic that thepriw tothc
rnv in fnn ..^u^^ J"'"^ "^^^ fufficientto inform the Court of 0^=^ till
Cm m apparent, and therelore they awarded a feifure of the Land^'""^^'-'''
Mo. 193. pj. 343. Trin. 26Eliz. Ld. Paget's Cafe ^^^ ^'^"'^•^nd in u
■was a Pro-
void on Tender of los &C n u/pnr U«,.«„J C -1 r- , Vlfo tO be
.here, . P,i,, Seal „> ddlv„Vd T, h m'Vom^di"'"? '""" '' "" S"?' >■" °" »«*<1"««'
Co„„ dec,.d i, ,,,/Ki,.,. A J'Ktd"^=C.to''?r*r"?,lJ'iLtSy'«S J.^
buc
486 ^^-
■ ~, '. '■ ^ w-.f. ,H,ff>,-7fi-om rhem in two material Circumlbnccs which alter the Law
but f.id that th. P-^P^^^^/ f^,,^ S 7f S'^V by En,l,m BUI. .here the Jud^e. are -o ad,ua,e
in the Cafes; i ft. ,^ "^' 7'" " " ,' „ ^^„ in a Court of Law, and the t raud was matter ot b-tt,
upon the Fraud only, a.d there they were in a ^oujt °^ ^ . j^^ ^j, j„ ^,,^, Cale rh. Jury
Nottingham, alias, Dudley =, Cafe.
o In rrovcr and Cmverfton of Platfe and Jewels &c. if the Befat-
lefmnd by fpeaal Verd'^a tnfuch Cafe that the f/^'»^'^ /'"^^'f ^'^.f ^'^^J^
may adjnd.^e any Con'vcrfwn ; Per Coke Ch. J. lo Rep. S*^- t>. 57-
Br Trefpa^.'^t 'i/)^'}^'^^-^- 'V^^^ ^ ^^^^ ^!f f \S^e1of ^•
y\. ;6S. cites Tf 7>f/},,,A be brouPhc by the firft Lelfor ^gamft :he Lefiee tor Years
\. K. 4 Z7. he oa&fby h,s Plea ro fe: forth what Day h>s Leilor died, and at
•g^a cited t^^^^llJce! and where che Land lies, -^ -vh^^D.y h^ e -
in Mod. feinon, and fo leave it to the Difcretion ot the Couitj hetnc uc a
feems to be ' j, .['^e P^.tfeliion in reafonable Time or not. Per Hide Ch. J. A.od
""'^'cro'^/ 139- Tiin. 15 Car. 2. cites 22. E. 4. 18.
AiU. f /ac R R. Stodden .. H,,rvey S. P admitted as to tl.e Reafonablenefs of the Tin-.e being
to be determined by the Court
fP) Oi what Things the Court fhall take Conufance
ex Ojich.
r T fF) an ^fttou uaon t!)C Cifc upon a Refcous, if tf)C piaiutiff
I decl rel hatA v^ ^>' Obligation m 20I.
andtOat 3C Sdlvvritagamft Ijtm mumeB - the^^enltofCori-
wal o take A. fC. and tljflt t^e Shenft thereupon r Ocl 6 Car. a -
relied him apud Launcelton in Comitatu Cornub.s p ^S. ofthe
D tendant apSd Wettmonalterium refcued h>n;out ot the Cuftody otthe
Kmiaii and Kendall, ati)utigeii 111 Camcm ©csccaru III a \mu 01
mm upon a 3^utismetit gibm in ^anco MiJ.
Co T : 2 cwrp court Of i^cftmtnftec oug^t to take BoUc^ of to.
P.".^A?R. Cuftomsot other Courts of VVeltminfter. CO. ^. lanC 16. f). ^ K^
II H. 7. 15 -^ ^
«i;:,?5^c!";S's^.s;^^^: i. £J:.i 'c^^ c;J^/.i is,f ^^i
Court. 487
R H in Cafe of Mounfon v. Bourhe. Pl-C. 510. b. 321. a. S P.— ^ 4. Rep. 99. b.
S- l^ and cited 6 E. 4. i. and n E. 4. i. Jo. 417, 418. pi. 5 S G. and S. P. per Cur.
q. Tint Other wife (t IJJ orinferiour Courts. QlO, 2. Lane 17. aBuft'ic
j^ ■" , . Lcimties ra-
i\» 3. 9. U* ^ /.j/;>;eandthc
Crayui Sfjfiovs of IFahs are not accounted Tuch Inferiour Courts, but the Courts of Weftminfter iTiall
talvc Nonce of the Proceedings of thofe Courts. Saund. 74^ Palch. 19 Car. 2. Arg. and admitted
bv three [ulfices, and cited Cro. C. 1 79 pi. 2. Hill. 5 Car B. R. Griffith v. Jcnkinv, whereof
the Proceft of the Grand Scffion.s the Court of B. R. took Notice Judicially, and fo Cro. E. 505.
Mich. 9S EJiz [I3rOligl)ton b. JSatlDal] this Court took Notice of the Cuftom of Wale.', to give
Judf>,mer,t final upon a Qiiod ei detorcejt.- Sid. 351. pi. 13. S. P. per three Juftice.'i •
TheKing'.s Courts cannot JudiciiUy take Notice of the Privileges of the Citique PoVr.s, which ^^.f-
tcnd only to certain particular Towns. 2 Inft. 557. But otherwife it is of a judgement given in
C. B. in a Precipe of Lands that lie in any of tha County Palatines of Chelkr, Laiicafter and Dur-
ham, for they are e.'cenipted from the Jnrifdidlion of the King's Cuuits, and within them art Jura
Rei;alia, aiid plenary Jurirdictlon, and fo known to the King's Courts ; for they take Notice of all the
Counties in England, becauf.- thev be immediate to them for direttion of Wnt.s; and therefore .u'ho'
the Tenant doth admit the Jnriiyiftion of the Court in thote Cafes,_ the Judgment ag.nnfl: him for
any of fuch Lands is void. ' And thus are the Doubrs in fomc Books in this and other like Cafes fuU
ly relblv'd.
4. 3if a Leafe l3C pleaded tO llC ninUe bp tI]C l^lHg under the Exche- S. C. cited
quer Seal, tljouijl) 11)10 \^ iiOt iTooQ b^ ttjc Commoit lai;], but t3P Ff ^A"' ,
tdcCitftomcfrije eroiutof^cctjeiiucv, petit iginot ncccflarp to pi "9 Mi^h'"
plCaB Ot aUcr tljC CUffOm of a COllVt -, foe tt)e Culloms and Counes 14 Car B.
ol every ot the Kioto's Courts arC %\^ a laU), antJ tljC CommOlli^- S.G.
3Laiu tailed JQotice of tljem mitljoiit ptcatimg» Co. 2 Lane 16. ?,'!j^Jy^
t). aourigcD* ch. J. Cro.
C, 528. pi.
6. Hill. 14 Car. B. R.
5. A Man convi&ed in 'Trefpafs hrotight Attaint^ and it appeared to
the Court that he ^^^ «o^ 7«W« fz«f, by which the Court ex Officio
fent him to Prifon. Br. Office del &c. pi. 13. cites 16 Afl. 4.
6. Affife 'was taken and the Juftices thought that there was Rr)xr in
the taking of it, by which they would not render Judgment. Br. Office
del &c. pi. 23. cites 16. AfE 6. and lays fee 4 H. 6. 23. 35 H,
6. 24.
7. A IVIan indifted of Felony without any Counfel learned in Law,
ftewed Charter of Pardon difagreeing from the Indiftment and from his
Name, and the Court perceiving that the King would pardon him
remanded him to Ward, to purchafe abetter Charter &c. Br. Office
del &c. pi. 25. cites 26. Alf 46.
8. Vkar General of the Bifiop who has his Power in his abfence is no
Officer immediate to the Court of Bank, nor the Court will not award
VV^rit to the Billiop to him in Quare Im.pedit before that it be fo cer-
tify'd, per Thorp, quaere who Ihall Certify it and how. Br. Office
& Off pi. 13. cites 38 E. 3. 12.
9. Ths Com-t /hall not take Comifance cf a Peculiar Jurifdiifion. Br. S P. But
Prefentation pi. 13 cites 11 H. 4. 7. Judj;es iTiall
be bound to
take Notice (j/« Qww/;'. Mar. 125. in pi. 204.
10. As if Sheriff fir-ves Prccefs in the Franchife this is good. Quod
Nota. Ibid.
11. In ^uare Imped it {{char Title to the King he confefs'd by the Par-
ties in Plea pending between them we ought to award * Writ to the * Sr Prero-
Bilhop lor the King, iho' he be not Party. Per Hank and Hill. Butgatvepi.
Culpeper Contra, J^ao-re, Br. Prerogative pi. 16. cites 11 H. 4- H- L?t^'^'g^ g
12. In Affile the Court of Office ought to 7nake the AJJ'tfe to enquire if^ p_' '
the DiJJ'eiJin was with Pcree^ bv reafon of the King's Fu.e. Br. Offii.e
del &c, pL II. cites 11 H. 4. m.
13. The
4bb
Court.
Br. Charter 13. The Court: will not nor ought not x.o Arraign a Felon of Felo-
de Pardon ^^, p^y^g^^^ ly yj[i of Parliament^ though the Felon prays tt 3 quod nota j
S C. —So F°^ every one fiiall take Notice of the Aft of Parliament. Br. Corone.
tliatifthe pi. 30. cites II H. 41.
Felon would
plead Not Guilty, the Court ought to refuse it by rcafon'of the Pardon. Br. Notice, pi. i. cites
26 H. 8. 7.
14. It was agreed that if the Party Defendant will admit an ill Writ
cr ill Count or the like, yet if the Court perceives it, the Court Ihall
not fuffer it, and this feems to be reafon ^ For Amicus Curia may inform
the Court ot Error. Br. Error pi. 49. cites 1 1 H. 4. 45.
15. In G)^uarc Impedit between two Parfons if it «;)pf^rj to the Court
that the King has T'itle by Mortmain or otherwife, there the Court may ex
Officio aivard Writ to the Bipop for the King who is no Party to the Suit ;
per Hill and Hank. Brooke fays Qiijere legem inde. Br. Office del
&c. pi. 20. cites II H. 4. 71.
Br Faux. 16. It was faid that the Court ex Officio is bound to abate the NVric,
Latin, pi. j£- jj. appears to them by a thing Apparent in the Writ that it is not good,
s C. and ^^ ^^ ^^^^^ Larin, or for want of Form notwithftanding that the De-
fays a Stran- niandant make Default, and the Matter was inufmuch as it was Rex
j^erasAmi- Hibernite, where it fliould be Dominus Hiberniae. Br. Brief pi. 210.
<^^^^f' cices4 H. 6. 16.
nijy (hew ~
it, but Efljigner cannot plead it but fhall fliew it.
S. P. Br. 17. The Court ex Officio ought to reverfe the 'judgment if they fee Er-
Evror pi. j,Qj.^ though it be not afjtgn'd by the Party. Br. Error pi, 9. cites
IK R 4 9 i^- 6. 46. per Cheyney.
Per Hulll. and that a Stranger may inform the Court of Error.
18. ^ualejus was returned and the Jurors were demanded and ap-
pear d, and the Court of Office made i" roclamation if any would inform
the King or his Serjeants &c. and none came by which the Juftices de~
manded two of the Jurors to try the Polls, and the Jultices faid that they
Jhould inquire if this Juror, ivho was demanded, had any Thing withitt
the Hundred, or if he be withm the Dijirefs of the Abbot, or if be be fa-
vourable, and fo it was done of another, who were found indifferent, &c.
by which the Court difcharg'd the firll two, and the other two try'd the
Remainder of the Pannel, and the Court faid to them that they fhould
tnquire ifthofe, whopall be Sworn, have fufficient Franktenement within the
County, and ij they are within the Dijirefs of the Abbot ^or favourable, and
after full Inquell &c, were commanded to inquire of the Collufton, who
iound no Collulion, by which the Abbot recover'd, and Brown de-
manded the Value of the Land per Ann. (to the intent the King ffiould
have the Iffiies in the Mean time) w ho faid to 40 s. &;c. Br. Office del
&c. pi. 28. cites 20 H. 6. 38.
19. Note that it was not deny 'd, but that where an Abbot or fuch
1 i ke has a a peculiar or exempt jurifdidion, or Lord of a Franchife has
Returna Brevium or the like, the Court will not take Conufence there-
of j but fhall Write to the Sheriff or Bifhop and not to the other, quod
nota; For the other is not his Officer immediate to the Court. Br. Office
and Oif. pi. 2. cites 35 H. 6. 42.
20. Ajife of an Office, and made his Title that he ought to take for the
Adjournment of every Effoign ^d. and the Court found /^ Examination of
the Clerks that he ought not to have fo much, by which they awarded
that he ffiould not make fuch Title ; For they may have Notice of eve-
ry
Court. 489
ry Fee there J bv which afterwards the Piaincitf amended his Title.' ~
lir. Office del &c. pi. 26. cites 8 E. 4. 22.
21. la 2^refpafs of znking his Esdih, xht Defendant [aid that a Stran-
ger held of him^ &c. who leafed to the Vlamtiff &c. and for the Rent
ike. he dtjlrain'd^ the Plaintif [aid Nothing in Arrear^ and found for
him ; And by the Opinion ot' all the Juftices becaufer;^^ Statute is in the
Negative^ Scilicet, the Lord pall not therefore be punijbed 8i.c. Now of his
ContelJion it appears that the Defendant is Lord in which Cafe this
Writ nor A£lion does not lie, though the Defendant has admitted it
yet the Court fhall abate it ex Officio; For otherivife the Defendant pall
bejinedy which is contrary to the Statute, Br. Office del &c. pi. 29. cites
10 E. 4. 7.
22. In Ward, the Plaintif fur?nis\i that the Anceftorof the Infant dfd
in his Homage ; the Defendant pew' d a Gift in Ifailto the Anceftor of the
Infant^ abfqtie hoc that he dfd feifed in Fee ^ and it was debated if he
iliall traverlb the Dying feifed in his Homage or not; and at the End
oj the 'Term the Defendant would have amended his Bar^ and the Court
would not fuffer it ; and Vavilor who was with another Defendant
would have changed his Paper, [Plea] and the Court would not /uiTer it.
Br. Office del &c. pi. 30. cites 2 R. 3. 13,
23. Debt fipon an Obligation, the Defendant faid the Plaintif is Out-
lawed, ^ndprafd thereof Judgment for the King, Brian faid this cannot
be, for the King has not Aftion thereof pending; But if the Kin^ brino-s
Detinue cj the Obligation and this Matter be contefs'd, they may give
Judgment. Br, Prerogative pi. 107. cites 4 H. 7. 17.
24. Of a general Pardon by A61 of Parliament, the Juitices ouo-ht Br. Char-
to take Notice and to allow the Pardon though the Felon pleads Uoz '"^ '^^ ''^'^-
Guilcy, becaufe it is a general Aft, quod nota. Br. Parliament, pi. i 1°" ^}r<
cites 26 H. 8. 7. , ' ^ cites S.C.
25 Though the Court ihall take Notice of the CuPom of Gavelkind ^""y^ ^'^^
in Kent without pleading, yet of a fpecial CtiPom to devife &c. or that o'^ ^"^^
the Lands are holden in Socage, or that the Feme [hall have the Moiety for s! P.
her Dower, they ought not to take Cognizance without fpecial Pleading
they being Particular CuPoms ; But for the Cultom of Gavelkind it luffi-
ces to ihew that it is in Kent and of the Nature of Gavelkind without
pleading the Cuftom ; For the Court take Notice what the Cullom of
Gavelkind is. Cro. C. 562. cites it as agreed in C. B. per tot. Cur.
Mich. 41 & 42 Eliz. in Cafe of Launder v. Brooks.
26. If on Demurrer on a Matter in Law though the Parties will join
Iffueon fome one Point, upon which, if itltood alone, Judgment ihould
be given for the one Party ; Yet if upon the whole Record matter in
Law appears why Judgment fhould be given againit the faid Party
the Court mull Judge fo ; For it is the Office of the Court to judge the
Law upon the whole Record, and the Confent of the Parties cannot'^ pre-
judice their Opinions, nor quit them of rheir Office in that Point. And
therefore though Montague in Cafe of DlUe % ^mxm^X)^^, PI. C.
69. a. llaggers a little in that Point upon the Book of 34 H. 6. yet in
the Conclulion he refolves that the Court muft Ex officio judge upon
the whole Record. Hob. 56. in Cafe of Fofter v. Jackfon.
27. If a Judgment be given in London and this comes into B. R.
we ought to take Notice of the Ciiflom of London, becaufe in the Court
there the Cullom need not be alleg'd, and therefore if we in B. R. do
not take Notice of it we may reverie the Judgment, where there is
not any Caufe ; But if a Cullom be in another Place we ought not to
take any Notice thereof, without its being alleg'd; Per Doderidge J.
and agreed by Coke Ch. J. Roll Rep, 106, pi, 47. Mich. 12 Jac.
B. R.
6 I 28. The
4 90
Court.
28. The Court is no: bound to take Notice of the New Style, but of
the old Engliih Style, (21 Car. B. R.) For the Old is that whereby ali
Accounts in the Common Law are guided, and not by the New which
is Foreign, and goes 10 Days betore the Englilh Style or Account ;
The old Style is called the Gregorian j the lormer was made in the
Time of Julius Csefar the Emperor, the latter in the Time of Pope
Gregory the 13th. 2 L. P. R. 235.
29. This Court of B. R. is »ot hound to take Notice of Orders made,
and of 7'hings which are done at the Affifa, although it he by a Judge of
this Court ■■, becaufe he A£ls not there as a judge of this Court j Mich. •
24 Car. B. R. For the Judges of Affiles &:g. do A61 by fpecial Com-
miffions, and not as Judges of the Common Law of any ol the Courts
of Weftminller ; but the Manner is^ upon an Order made at the Jffifcs,
to get it drawn up by the Clerk of the AlTifes, and to move the Court the
next 'Term to have it made a Rule of Court -, and when that is done both
Parties fhail be bound by it. 2 L. P. R. 238.
30. This Court is not bound, ex Officio, to take Notice of private
Orders made at the Cmmcil-Tabk : By Rolle Chief Juftice. For they
are Matters but of particular Concernment, and not Matters of Law
or publick Bulinefs, whereof, as Judges, they are to take Notice,
2 L. P. R. 240.
31. This Court is to take Notice 0/^ G^wcij/ Statute, viz.. fuch an
one as concerns the Publick ; for that is become a general Law that
evcr\' Pcrfon is bound to take Notice of. Eat not of a particnlar Sta'
ttite which concerns fome particular Part of the Kingdom, or parti-
cular Perfons only, in their private Incerefl; ; For thole publick Statutes
are proved by (hewing the printed Statute Book. But a particular Statute
mull be proved by an exemplification or Copy examined by. the Record it felf^
and muft be fet forth particularly in ali Declarations and Pleadings.
But upon a general A£t the Plaintiff may fay, that the Defendant did
fuch a Thing, contra formam Statuti in hujusmodi cafu edit' & provis'.
2 L. P. R. 241, 242.
32. Court will take Notice Judicially w/:''^? I)^?j' of the Month Term
begins^ and that the Caufe of Aftion accru'd after the Declaration de-
liver'd, which was generally as of Eafter Term, and fuch Declaration
refers to the firft of the Term, if there be no. fpecial Memorandum, la
Mod. 647. Hill. 13 W. 3. Thompfon v. Southwell.
33. It is 2. Privilege due to the Clerks of C. B. not to be fued in any 0-
ther Court, except for Treafon or Felony, than in C. B. without their Con-
fent; and per Holt Ch. J. this Privileges is due to them of Common
Right, of which B. R. will take Notice, but that otherwife perhaps
it might be of the Clerks of the Exchequer. 2 Lord Raym. Rep.
869. Pafch. 2 Ann. B. R. Ogle v. Norclite,
34. B. R. will, upon a Writ of Error ^ take Judicial Notice of all Pri-
vate Cujioms in Private Places, tor they below are as much bound to
proceed upon their Cuftoms, as the Judges here are upon the Common
Law. Per Holt Ch. J. 11 Mod. 68. pi. 2, Hill, 4 Ann. B. R.
Anon.
(C) Oi
Court. 491
(C) Of what things the Court ought to taks Conufancey
<whhmt Averment thereof.
I- T J fl C|3iin 1)0 indifted, that he killed a Serjeant of London in the
X Execution of the King's Proceis, i8th Day of November be-
tween the Hours of 5 and 6 i tIjOUlj!) Itt tCUt!), tljlS kiltie llC(ll!j tit
ii^oljcmbcr, i$ part of the Nighc, pet tlje Court is not botmia, zz
©fi'icio, to tahe notice tljcteof, no more tijan in tlje Cafe of oaur--
glavp, U3itl)oiit tficfe }©orD0, in nocte eiu^ocsn mei, ot noctantcc*
Co. 9. Mackalley 66. rCfOlljeO*
2. 3n an 3intJictmcnt of Burglary, tlje Court id not bounH to
tal%£ Jl^otice tljat it uiag Done in tl)e Higljt, (tljouiTl) tije Tnne ai-
ledg'd ought to be in the Night,) WitljOUt tiJC i^OtUlDS BOrtC ejU£j=
Srui UtU or noctanter. Co. 9 Mackaiiey 66. tj.
3. l!f upon a picantns it appears to tljc Court, tljat a Proclama-
tion of a Fine iCVltfil upon the btatute of the 4 H. 7. was nUltlC Ter-
mino Trinitatis 7 Junii, $C. tl)OUSl) tljlS 7ti)DnP Of SiUUe U).lu 'Dlt^
iDoniinicus, auB fo not Dirs juriBicus, vet tIjc court 'in ■ not
taite notice that it was Dies Dominicus, lUItijOUt HU CrprCfS aXiet'-
mcnt tljCreOf. D*2. CU 182.52.55. Fijh and Broka. Com. 265.
tlje fame Cafe.
4. 3!f upon tlje pleaBing of a if tne it appears to tlje Court, tijat
one of the Proclamations was tliatJe Termino Paichse 3 1 Juni',' tUijeU
tl)erc is not, nor ncuer teas fo nianp Davs in tijis ^ontlj, tOe
Court toill tafec notice of tljis luitljout an? aijermcnti if or it is^
impoffible. C). 2. 182. 52.55. Pijh and Rroket. COUl. 265.
5- :jf upon pleaDing a ifmc appears to t!je Court, tljat one of a Manda.
the Proclamations was niaUC tl)e 25 Junii Termino Pafchae, UlfjerC all '"^'' J^^
June was out of the Term, pet tljC COUtt fljaU UOt tafeC UOttCe" f^if^
tljcreof, luitljout Sl^crment, as bp atierment, tljat tljc f eaS [i:ermj wi.ich was
ofCaffcr commenceti tlje fame licar tljc i ^dixU f finiuit ultimo""' ,
^aii. D. 2. ci. 182.52. Com. 266. ij. Ftp and Broket auctteo ^;;™=-
tljere-. Com-t tak-
ing Notice
that that Day was after the End of the Term,quafh'd the Writ ; and fays that fo it was done in the
Cafe of a Capias, by which the Marfhall hei-e was fi-eed of a Debt Sid. 504. pi. 11 Mich. 18 Car.
2 B. R. Sterlings Cafe. 2 Keb. 91. pi, 9. S. C. Sid. ;o8 pi iS the fame Term in Cafe "
of Champion v. Skipwith, the Court doubted if they ought to take Notice of the Day of the Month
of the Beginning and End of the Terms of Trin. and Barter which were Moveable.
6. 3in an Action upon tlje Cafe, if tlje paintiff declares, tljat in ^"V*-^^
Coniideration of 20 1. tlje Defendant; affumed to deliver tO tl)e |plain= * ^^^!^5 .
tiff 20 Gumbos tritici, iuljtClj IjC IjaS UOt UClimtetl i tfeOUH-l) it tS '^^^s^'^aL^
averred bP aU ^UgUce what Combus is, pet t!)e COUtt OUgf)t tO taUe a Covenant
notice tljcreof, it being tljcPhrafe of the Country Of jiJorfolU anti^^''to pay
g)Uffoife, ants otljcr paces, anD tljere U3cU fenouin. (*; ^iclj. iiP"'^^g^'
ja. "B. K* betujcen Cock and tbomighgood, pet Curiam mp Ec=;nd petit
ports* 1 1 3ia. Lodinage
Exception
was taken, becaufc the Plaintiff did not pxprefly aver in his Declaration what the Words meant;
becaufe they are Termini incogniti ; but per Doderidge and Jones, it is accnrdmg fo the Covenant
and good. Palm 598. Pafch. 'ai Jac. B. R-. in Cafe of Conftable v Cloberie Words are to be
taken according to the Intent of the Parties, and this Intention and Conftrudion of Words fhall be
taken a-T'-ording to the Vulgar and ufual Senfe, Phrafe, and manner of Speech of thcfe Words, ar.d
of that Place where the Words are fpokea as in the Cafe of Jl^a Marii and Main-fKorn ir^ftead of
Forfwora
492
Court.
Po'^v.-nvn Riilft. 1:5, 176 Tiiii 9 Jac in Cilc oF Hewer v. Pointer. .As to Adtions Hroii^ln for
llandalous Words nor uell known to the judgo.<, in wh,iC Cdfcs the fime fliall be jjood witliout uii
Averment and where an Averment fhall help ic. See tir. Aciioiis for Words (L. b.)
If an Aftion 7- 3!U .lit SCttOU UpOH tljC CafC, iftfjC Paintiff declares that the
is brouf^ht Delendanc ibid tO I)|U1 qualciam Carucas lignatas, SlllgliCC Car-rooms,
^TsT "d"^- ^"^ ^'^'^t f^J^ Defcnoant pcomifcti ficniani facerc pt;.^mctn0 Carucas
according ' fiSlUUa^, ^tUTllte CaDrOOUlSl i tljaUSD it (6 not averred what is in-
to tlie tended by tl)C WOfQ Car-rooms, nOt Ulljat It fiffniflC^, pct tljC iDC^
Phrafe of fiaratioit is goon i jfoc it is a Phrafe in London uiill fenotiiit, of
llv whert ^^^I'^lJ tljc Court ougljt to tatie Bmct, tw being a Pbcafe of tijc
they are Countrp* Ct, 21 ^a. 00, jR* Kot» 1416. CHtrED, 'Bp Cac'coomgi ijs
fpoken; intcnncc a ^arlt inljicl) tlje lotn si5apot puts upon a cart*
though the
Court does not know what they fignify, yet an Aftion lies without an Averment of their Sitrnificj-
tion. For the Judges thcmfelves ought to take Notice of Ens^lifh Wtirds fpokein any Country. Koll
tit. Aftions for 'Words (L. b.) pi. 1. cites it as adjudg'd I\Iich. 14 Jac.
Br. Error 8. ju a Wut of Error upon a lunsmcnt in an inferior Conrt,
cites' s'^C ^f '"1" ^trOC bt aftiSnCU, that the Record is quOD quadam Curia
So if ^^^^^ tuit die Mercurii, illj. 3 Martii, $C, Vi^ZXZ Monday was the
it be Curia third Dflp ano uot n^elinefaap, tljifi is esrcoc, of uiljlclj tijc Court
tenraDie {0 JQ tSt^e Jlt^OtJCE* I $> 7- I^- tl. aDjUCgeD.
lovis in
fcHo SancVi Andrri, and the Feaft was the Friday this Ycir, it is Error for which the Judgment
was reverfed. Ibid — —So where Error was afligned that the Judgment was given at a Court held
at Lynn, 16 Februtry, 16 Eliz. and this Day was Sunday, and fj found by Fxamination of the
Alnunacks of tl.at Year, it was ruled fufficient and th^t a Trial fcr Pais was not Neceflary, though it
was Error in fadto, and the Judjtment was reverted Cro E izj. pi. 12. Patch. :,i, Eliz B. R.Page
V Faucet. Le. 245 pi. 32S. S. C. accordingly, though the Error was adign'd at the Bar only ;
And Calci were cited that the Juftiees might judicially take Notice of Almanack:,, and be informed
by them.
Br. Error, 9. J,^ jj ^xit Of Error UpOU HU Ind lament of Trefpafs, fuppOfinQ;
pi. 69. cues ^{jp .2i;rcfpaf0 to be done Die Jo\ is prox' polt Diem Penteccftes, lUt hz
Your pi 2-' alfSlWerJ for eStrOr tljat Dies Pentecoltes is every Day of the VV^eek,
cites s.c fo tljat It 10 uncertain Wjctljer Ije intenUG Diem 3oW in tbc fame
— Fitzh. })Bttli\, or nert mzth, pet tije Court ouKljt to tafee Conufance of
Error, pi. jjj^ ^^^^^ fcUicet, tljflt iPentccoKe nicituc a L3ente, quoo eft quin«
s'("'" que, $ Code, quon e(t Secern, $ Ijoc c(f quinquieg ncccm iOie^
poft pafcljam, anti tljISDapi^ Die0 Dominicug, tIjc firll Dap of
]3entcco(t, ano fo olict-tuieri tlje error icit'oout more iProof, 7 $p*
6. 39. aniutJKcu* Com. 122. In
And the 10. 3jn Account, if tfte H^IatUtiff declares, that tlje Defendant was
Defendant j^jg Bailiff fC. in fuch a Day in fUClj a I^Cat $C» till the Feaft of St.
kd'tTan- Michael f c. tljougl) In tlje Declaration It igi not m. ^tcljaei tlje
fwcr not- ardjangel, or %u jpicljael in ^onte Cumba, pet tljc Court fhaii
wichftand- intend it to be St. Michael the Archangel, bCCaufe tl)l5 10 tljC molt fa-
T^n'l ^''" "1^"^ ^t. a3icbaEl, ano tbercfore t\it Declaration 1.0 certain cnotiglj*
ar^ Count. 20 1), 6. 23. anjuugen,
pi. 13. cites
S.C. Fitzh. Count, pi. 31. cites S C. Br. Expofition, pi. 20. cite.i! S.C. and if he was
his Bailiff or Receiver till the Feaft of aaother St. Michael, the Defendant might plead it. • Br.
Jour-s pi. 5. cites S. C.
Br. Jour, II, But if IjC ball declared from fuch a Day fC. till the Feaft of
yl. 5 cites jhe Bleffed Virgin Mary, tbi0 baQ UOt bCfn ffOOU, bCCnUfC It 16 uncer-
J- o _ tain tobat ifeaa be mtenog, tbete being ttoo- 20 D, 6. 23- per
}-it^h. jKelDton*
C:ounr, pi.
31. cites S.C. & S, P.
12. jn
Court
ftjic ti3C fUtij Coimtj) uue !)ClJ3, pst tijc Coutt fljall not take €^-' nnrpriotcd
luifance tijcrcof uutDout Slijcrmeut. 21 11^.6. 13. an a\)a-mcnt)"\^'"'
tljcrc nwDc. Sp,ocer.,
pi. 1 76. cites
gt H. 6. i;. Br. J-ouk, pi S4. cites ;i H. 6 (J, [but it fhould be (15) there being no lol. 6. in
cither of the Editions of tlist Year, txit rhe fol. runs on frora jo H. 6. ro 52 H 6 ]
13- 1'fa93mt pleads a Thing tO bt done at fUClj fl jfcaff, or be-Fitzh.Co'jm,
fore fucti a Feait, tl)i0 i5 wcU enouglj tuttljout a^ocmicnt Of tljePJ>?'-,'-''"
Month wljeu tDiis if can U3a!*> 15 Ip. ?• ^- b. aonutteD ^o d, 6. 23. s; p ^J"'
not eiadrljr
appear. Br. Count, p!. 15 cites S.C but S. P. docs not fully appear.
14. 3;f tit Trefpafs tl)C Defendant juftifies for an Amercement in theCio.C 27J
SheriH's Turn, which bj) ttje ^tfltUtJE: Of tfjC 3 1 CS. 3- [Ciip* 15.] is to pi. 15-
be held intra Menfem poll Feltuni Palchse & MichaeJis, anO t{)C 2^£=S-C.ad-
fcuDnnt faps tlje jaiaintitT lua.ii aincicen at a Court held the iSth of'('^''^^^^"T-
April infra Merilein Paichae, nnQ DD?6 not fay infra Menfem poll Fef- 5 s'c. and
turn PafchK, auu tlictcfoix aouiBsca not td U a poopiea; fotp^'-cur.
ti}at tl)ouffl) itappearfi i^\) tljc aimauacl^ tijat tlje isti) of ^pcil iua£i^'^=<^°"''^ .
infta $?3cineui attcc tijclcaff of€aftcr, pet tbe Couitisi not bouuo ^^""k, n"-
to tal^e Boticc tijcreof imtljoiit an averment tijcrcof, not to in- r^^j^,^^
fycct ail almanack foe iti but (*) it uia0 faio b.u 31uatcc 3oue0, *poi. ,.6.
tijat tljEi) are boiiiiD to tahs Notice of immoveable jTcaft^, auo not ,--^y^^
of moveable ifCaftiS, 33 tt)l0 10. ^^IClJ. 8 Cflt. 15. R. bCtlUCen <3ny-)^" °V,e
j(?a /j//i Bedie aojuoseu upon Demurrer. Jintratur IpilL i Eat. 43. bat oni'y of
immovcablr,
Feafts; and Judgment br the Plaintit
15. If a Wojnan triiigs an Appeal upon the Death of her Brother, and 5 Le. 9;.
tlie Delendant admits it without Challenge or Exception, yet thej?P' J^?-
Court ought to abate the Appeal. 2 Le. 162. per Wray, cites 10 H. 5 (^ ^^^^^
4- 7- ?■=" Wray.
So if
file bi-ings Appeal ofthe Death of her Father ; per Car. Palm. 311. Mich. 20 Jac. B. R.
16. The Court ex Officio abated a Writ againftan Heftier, becaufe Sr. Office
fee was ?Kt named a commoft Hojikr in the Declaration. Br. Oi5ce del*^*^' ^."P'-'
Sic. pi. 12. cites II H. 4. 45. "test's! a
though the
Plaintiff admitted the Writ and Count. • S. C cited by Rhodes J. and agreed by Periam J.
Gouldsb. 101^. in pi. u. 2 Le. 162. in pi. 1^6. and 3 Lc. 92. ijj. S. P. by VVray, and cited 11
H. 4. and 58 a. 6. 40.
17. The Court ex Officio is not bound to take Conufance ofthe Error in ?f to an
Writ of Error, but the Party Ihail affign it. See 24 E. 3. 34. if the'^'^^'*'"
Party affigns Errors, though they are not Errors, the Court Ex Officio I'lieDefcn.
pall fee if there are any vtber iMch by the Parties are not toiich'd &c. and d'ant pleads
alfo to lee the Record, if there is any Matter to affirm &c. Quod Nota. i" Bar by
Et, Office del &c. pi. 9. cites 20 H, 6. 18. 28 H. 6. i r. ^°'"^' ^""^
does not
•flic w tlie Deed, and the other pleads in Bar, and does not except thereunto, but they were at Iflue
this is Error ; For the Court Ex OScio oui;lit to have adjudged it ill. Gouldsb. 106, 107. in pi. li *
per Rhodes J. fays fo is :he Book ot 22 H. 6. or iS H. 6 and jhat he canlhew the Cafe.
6 K 28. Where
^p^ Court.
Br. tuiciio- i8. Where an Indittir.ent is ialuflL-icnr, ox Exigent i'.7SJ:u;lai i<;hei-v it
Hcas,v>l_5o d^is not lic^ there che juttices upon lutoraiacioa ihali a-iVard Hapcrfedeas
cues t>. ^. ^^ Q^^.^.^_ g^_ Q^^^,g ^gj ^^ pj_ g_ ^i^^^, ^ £_ ^_ ^
5 Le. 91- pi- ig. In a Formedon ot a Manor the I'einvn pleaded Jointenancy by Fine
'TVu-'"^'^' ^'"''^' '^•'^'- '^'^^^ Demandant averred the Tenant [ok Tenant as the Writ
b'R.'tlie pippolld, and found for the Demandant. Ix. was uliigned for Error, that
6 C. in rot!-\vherc, upon Joincer.ancy pleaded by Fine, the \Vric ought co abate
jkm Vcrbi,';. without any Averment by the Demandant againll it, the Averment has
been received againft the Law &c. Though the Tenant hath admitted
and accepted this Averment, viz. fole Tenant, as the Writ fuppofes,
yet W'ray held, that the Court fliould abate the Writ without Excep-
tion of the Party. 2 Le. i6r, 162. pi. 196. £i Eliz. C. B. Anon.
feoldsKiofi. 20. Though the. Defendant by his Plea admitted that the Action lay
f'-. "• ^, C- agdinft hm^ yet when the Matter at the Beginning is not fiifficient to charge
cordim'W "^-'''''j as where the Defendant was charged as Adminijirator on a Jjiuple
1. If Ac- CoHtraif^ the Court Ex Officio ought to abate the Writ without Excep-
a iimple Hughlon V. Vv ebb.
Contraft of , t-> •
the Tcftator, and he pleads to it, and does not demur upon the Declaration, Judgment Hiall be given
a^ainft him, and the Court Ex Officio will notabate the Writ without Challenge of the Party. Yelv.
\l. Mich 2 Jac. B. R. in Cafe of Fifh v. Richardfon, ciies lo H. 6. \\ liere it appears to the
Court I
admits
Court that the Writ ought to abate, there the Court Ex Oiftcio ought to abate it, thoiigji the Party
lits i: by Pleading in Bar; Per Cur. Roll Rep. i'^6. pi. 15. Pafch. 15 Jac. B. R. Anon.
Wilde |. zi . jifftimpfit to deliver an Indenture ante finem Termini Sand ^e Tr in''
held, that tunc proxini' feqiient\ The Promife was 5 /«;;/;. The Plaintiff' alleged,
the Court ^i^^^^ Trinity Term incepit 7 Die Jiinii^ t? /inivit 26 Junii. Anderfon
tallTNoVice held, that the F.JJom Day is thejirjl Day of the Term] which was 3 Jii-
of die Be- nil, and then the Indenture was not to be delivered till Trinity Term
gin-iins^of was a Twelvemonth J but the 3 other Jufticcs contra, for the Plaintiff
Terms ; bat ].j.^g gj^p^j^jyly allgge(;j that the Term began the 7th of June, and the
V theOurt Delendant had not denied it, and the Court F.s Officio are not tofearch the
cannot take Rolls of the Court, and although in Law the ElFoign Day is the firll
Notice of Day ot the Term, yet in common Speech, that is the firll; Day of the
the Days of ']-g,.p,.j whj^ij t;he Court fits ; and Anderfon, againll his own Opinion,
lS'^t'isTn''g^veJudgi:t?ent for the Plaintiff. Cro. E. 210. pi. 6. xMicIi. 32 & 33
their dW-" Eliz. B. R. Bifliop v. Harcourc.
cretion, and
cited the Principal Cafe of Bifliop v. Harcourc. 5 Keb. 397. pi. 98. Mich. 26 Car. 2. B. R. in
Cafe of Aldertmi v. Miller.
22. Though in Judgment of Law every Judgment relates to the firft
Day of the Term, yet where the Plaintiff in liis Declaration exprefsly
Jets forth an Award iti Rafter Term in S fiiper 20 Mali, that the Defen-
dant impnfteruuipotdd fiirceafe fiich Suit &c. and that the Defendant after
the 20 Mail profecuted the Suit to Judgment, though it appears to be all in
one Term, yet the Defendant iLould have demurr'd to it, becaufe it is
■ fpecially laid down in Time the one to be after the other, and having taken
Iff ue t'.pon the Point oi tht A6"tion, viz. Non Affumpfit, the other Mat-
ter alleged in the Declaration is only Collateral and Inducement, and
now the Court cannot judicially take Notice of it without reforting to the
other Kecord, v'vl. the Record oj the J udgrntnt, which they ought not to
do, becaufe the Plaintiff has precifely alleged it to be after 20 May in
Time. Yelv. 35. Pafch. i Jac. B. R. Huys v. Wright.
23. If Tenant brings Trcfpafs Vi S Armis againji his Lord, the Court
ou'J-ht to abate theVV^rit Ex Officio; But when it is abateable by collate-
ral Adatter of Fail De-hcrs, of which th«y cannot take Notice as
J udge.?,
i
Court. 495
Judges, it is otherwife, unkfsitbc pieaded i Per Cut. obiter. Palm.
511. iMich. 12 Jac. B. R.
24. In Alliimplk the Plaintiff ^ftrA-rriJfl', th<xt Defendant being indebted l'^^'^^- ^^°,
in him in 15 1. z« ConfidcratioH the Plaintiff '■^ould give hiin 'Time for Pay- I^'^q
went thereof until the firft Day of Eajrer Term, promifed to pay ^c. It was the fud<^es
aliigned ibr Error, becaufe it was notjhcwn "when Eajicr Term began ; fed Ex Officio
sion allocatur ; for it is well known to the Court, and the Aclion is oi^ght to
conceived attet the End oUhe Term. Cro. J. 548. pi. 8, Mich. 17 Jac. ^'^^I'^J'
B. K. Auliin v. Bewley. g^dcr
Term, and
totber Terms. Affirmed in Err«r.
"1$. Writ sf Inquiry of Damages was awarded rettirnsbk Die Lance poji
iqtiuidcn. Htllarii primo Caroli, and the Sheriff returned the hiquifztion
taken before him z'j Die fanttarii^ which was after the Day of the Ret/irit
cf the Writ, and fo without Authority ; But forafmuch as it was not af-
figned upon the Record, although in Truth it were fo, the Court would
not take Conufance thereof i and it may be that Die Lunte poll quinden'
Hillarii was the 28 or 29 Day ot January, and then the Inquilition is
well taken, and fo it ihall be intended i and if not, the Court Ihall not
take Notice thereof unlels it had been alfigned ; whereupon the Judg-
tnent was affirmed. Cro. C. 53. pi. 11. Mich. 2 Car. in Cam. Scacc.
JVIorris v. Fletcher.
26. The Court is bound ex Officio to take Notice of all Matters
■^hich do appear upon the Record depending before them, but of Matters
dehors, viz.. To fearch the Almanack jor Days, and to compute Times men-
tioned in the Record, they are not bound ex Officio to do it. 2
P. R. 234. cites 21 Car. B, R. {4 Car. B. R.
27. Suhmiffton to an Aivard was It a quod it be made before Eafer next Sty. 97. S.
€hfi'.ing. In Debt on the Bond the Delendant f/^arf'f^/ that Nullum fe- 9: ^o".J-
ecrant Arbitrimn ante Fejium Pafihcf. Plaintiff r£/)//V<^, that before Eajfer ^q^^i\\q^^
^iz, isth of April folhwifig the Arbitrators awarded, &c- After Trial Ex- .^hether the
ception w'as taken to the Verdi ff, becaufe it did not find that the Award Court is
nvas made before Eafler, and the Court cannot take Notice ex Officio, ^T^"^'".
that the 13th of April was before Eafter^ but it was anfwer'd, that the "f fhe a1-^
Replication alleged it to be before Ealter viz. 15th of April, and that manack, and
the Defendant in his Rejoinder had omitted the Words QAnte Fefium the Feaft
Pafchic) fo that the Time was not ia Iffiie. And upon this Reafon Days there
Mr. Hales told the Reporter that the Court relted for that Points For |^" ^°'^^°'^
he held that the Court otherwife could not take Notice of the Time
Ex officio, tho' Mr. VV^efton faid, that the Opinion of Roll was, that
they might if they pleafed. Ail. 85. 87. Mich, 24 Car. B. R.
Kinalton v. Jones.
28. The Court is not obliged to take Notice ofthe J)^_y of the ^'^^- ^oo-
Months upon which the moveable Terms is. Lev. 196. Mich. 18 Car. P'-jl ,?-^"
T> ?^ /" nu-i and 5 1.
2. B. R. Courtney V. Philps. j^^^.j^„
the Day
efiheMomhh alledg^d in the Record the Comtvazy take Notice of it, and the Day of the Return
ihall be tried by Almanacks; Arg. Qiiod fuit concefl'um per Curiam.
(D) In
^9^
Court.
(D) In what Cafes the Court ought to take Notice
of the EcckJioJVical Law,
*Cro.C <;\6.x. Tif Adrhiniftration 6c granted to B. of the Goods of A. durante
pi 1 6. Da- j^ Minore state of c. aun tt iippEats ill picaDinn;, tf)at C is of
p'Ti's c ^^'^ Age of 1 6 [* 17] m Court dum to tahc iSocice of tlje ecclcfi--
curia adviia-nflical LsU), t^iit ti)t ^mmmmoix issuoio, anD DetcrmuicD*
re vult. SI9ICI). 14 Car* 15. B,» bettneetl Damporte and Pincent^ pCt 3l0nCg«,
5 Rep 29 cvoue anD lacrfeiep, but oatampfton z contra*
a. Hill. 40
jliz. C. B. Pij^p;ot's Cafe. S. P. Cro. E. 602. pi. 14. Pigott v Gafcoif^ne S. C.
Inafmuch as the Conufance of the Right of Marriages belong to the Ecclelinfticdl Court, and the
faine Court has given Sentc-nce in fuch Cafe, the Judges of our Law ought (tho" it is contrarv to
the Reafon of our Law) to give Faith and Credit to their Proceeding* and Sentences, and to think
that the Proceedings are confonant to the Law of Holy Church ; For Cuilibet in Arte fua pento cit
ciedendum; and fo have the Judges of our Law always done, as appears in 54 H. 6.14. b. 1 1 H;
'J. 9. a. b. 4 Rep. 29. a. pi. 18. Mich 27 & 28 Eli/,. Per Cur. in Cafe ot Bunting v. Leping-
y^^xi S. P. refolv'd. 5 Rep. 7. a. Hill. 5^ Eiii.. Cawdry's Ca'e. 2 Vent. 45. Per
Archer J- S P. and cites 4 Rep. 29. 7 Rep. 4^^ b S. P. Per Cur. inKcnn'sCafc -
Jenk. 289. pi. 26. S. C. and S. P.
2. The Judges of the Common Law lliall take Conufance what is tH
Law of the Church or of the Admiralty &c. and not to take tt as the Bijbop
pleads ity nor to ivnte to Certify it., per Moyle and Prifot, -and yet the
Laws are different ; For they Judge that where a Man and a \V'oman
make a Contrail ot Matrimony, that immediately the Man may cake
the Goods of the Woman, contra by our Lawi and that he who is born
and begot before the Efpoulais is Muliery if the Father and Mother in-
termarry afterwards, contra to our Law, and yet if they certify fuch
Mulier our Law ihail take it as a good Certificate, there Caveatur
and Jhall aid it by fpecial Pleading &c. £r. Quare Impedit. pi. 12.
cites 33 H. 6. 12. 32. 34H. 6. 11. 38. and 35 H. 6. 18.
3, A Parfon and a Vicar were at Iff tie for T/lbes^ and did not take
Advantage of the j^«r/y^/(J?/o;;, yet when the Court perceived it they
difinill the Matter ex Officio j For it is a fpiricual Caufe. Br. Office
del &c. pi. 17. cites 22 E. 4. 23.
7 Kep. 4. The Court ought to take Notice of, and give Credit and Faith
h^MM ^^' *-° '■^^ Proceedings and Sentences in the Spiritual Court, and to think
4Tac!^in that their Proceedings are confonant to the Law of Holy Church;
the Court For Cuilibet in fua arte pento eji credemlmz ; tho' what they do there
of Wards be againlf the Reafon of our Law, 4 Rep. 29. a. pi. 18. Mich 27
CaftT? ^ 2^ ^^'^- '^h^fi^'^t Refolution in Bunting's Cafe.
.— ,'\Io. 169. pi. 503.. S. C.
5. When a Bipop refiifes a Clerk prefented to him, he ought to ajjign
the Catife in certain^ becaufc tho' the King's Court cannot properly de-
termine Schifrns Herelies, yet the original Caufe of Suit being Alattet
whereof the King's Court hath Cognizance, the Cafe may be alleged
that the Court may confult with Divines, or if the Party be dead.,
direft a Jury to try it. 5 Rep. ^7 b. ^S- a Hill. 32 Eliz, B. R.
jn Specot's Cafe.
'E) What
Court. AQj
(E) What Things the Court may do. [Refufe to
gi7e Judgment. In what Cafes.]
'■ HF^df/lnr^'^r tijatm Tenant in Br. >d,.
ate t(j£ Demandant had before brought fuch Writ IcrTJrS " k" ''^'^^^ ^^~
where the Parol v.as put wfthout Day by ISWe ffl fZthZ'll f =7"'
pear0 ait apparent Deceit: th€ Cfllltt mao r/S ? ^^^ TF '^P= /""^gr"
In wh^t Ofes the Comt may ^^..,, a Jtidgrr^m, See Tit. ©aCaC
per toiunj.
(Fj What Things fliaU be hmdm to a Court.
See Tit.
Conu lance
"' 1 ^ctfrf '"^^"rL' S°"" ^>" ^^"ers-Patents to a Corporation '^'''".^'^'
Bot a.iy Ua.ufe m the Patent to make a Bailitfor SerLan tfo execunS
the Piocefs Of tfje Court, ailtJ tO rctlim JUtlCS at ^t f l<?mrf
CuSnSi ^^* " ^'^^/^^//^.w;^.rM.'.Cai pec
TtjE J[yat£nt to make a Baili/{ to execute Writs ot Enniiirv of fi ^ SeeRollTit.
the Knquuy ought to be made, fot tDe Bailiff cannot execute it i^af
TOuch as he cannot execute it without eivine an Oath tn <-h^' -^mI."^
an.D a©ltTI«, which the Letters do n!t df e l^im Povve^r to do^^'S
W 10 not ncccffatili) implieD m tfjc ©rant m\)z Court Mi'r ?h
a^it nia? te none m. court. SQidj. 4 Car.^ r ffrS
^.r..//wifb././,. pec curiam, iii a Wofertoroutof an m"
feriour court, ann tlje fira|u4ment reSS^ac?orD^^^^^^^^ '" '"^
Juuf4^a^on of the CourtA^^/li^W FoUlh a net ^^^^ "^^
have no other Jurifliaion chan is expreffed in the EreaL %:^lZ
Court cannot prekribe. 4 Inft. 200:213 "^^':, rora new
4. It is incident to every Court created by Letters Patents or Aa of
Parliament and other Courts of Record/?. .»pn>«y.ri'^i^^
mectnar d.m zn Ommpt or dirturbance ofthe Court, but where t S t
only a Power granted as to impofe Fines and Amercements Jh.^
ought tobepurfucd. But in cafe where iuch ^ PotTfZp2htt
i^venmphatohY the Law a P^rfou cannot be committed i SX S
mtBasIor Matnpnfe until he Ihali be delivered by the ?ZZs^t
oomautted h,m. 8 Rep. ,„. b. Hiil. 7 J,c. .v. Cham't Cak "
. . ^ ^^ (G) At
49^
Court
(G^ At what Time the Court ought to be held.
T T IF tllE Kine; grants a Court to be held die Jovis every Week,
I it map be held in one Week, and be tijetlCC ^^P'-^'^l^ for t";'o
vv^eeks a ftS^'^lcaijins a meeU wan, ^tcl). 4 3ac. :b. e. be-
^^f'^^lSlUt TO^^bf othervvife, if the Words in tljC l^atent fl^ould
be, €t non alUer, vel alio modo. %l, 4 BC, 15. E, DettBCen Coa
auDClerlt* ^^^ ^ ^^ ^^^^^^^^ ^j.^,^^^^ (©lauccRri^. caluniniat
Q< iou SuiiBum lescm $ Confuctuctnem Ecsm nullum lurare d^bet
^" t'l atS blS^b^S - ^ certain D.y, aitt. XW i^ CD^H,
antl held at another Day, t^i0 i^ MU. 38 ip, 6. 7.
Fitzh. Leet. pi 2 cites S. C.
Br Coon 5 But if a Court-Baron Ijatl) bCCtt W at 3 Cettattt Dm tW mag
Baion &c. ^g jjciti at r.uotljev IDag. 38 Jp* 6, 7.
pi. 17. cues ■ c r-
S.C. Fi«'i- Leet pi. 2. cues S. U
6 Q H 3 f^P 35- Enaas that * No Countj fhaUbe held bat frovt
Month to Month , ^ and where a gnat sr fer,n l^as keen uf^d itjbali^:t
Br. Court
B;tron Sec.
pi. 17, cites
s. c.
♦ Tliis is
in Affir-
mance of ..,„.,
t^,c- Common^'-^^^^''-
I^av.' and
Cuftom of the Realm 2 In ft.
County Court. 2 Inft 70 . ^ £ 6 [.«*. 2 5.] v/herebv it is provided th^t w C>««/y ^t// i. /»«-
t This IS 4^nWiv the Statute ot 2 ^.0U4? s j . j.^ !,^^„ j,^ ^^ j^ [, ^^j „„
^^hSCS- ^d"h';r:f f "be'S:^^'^ t.,:.o .,. lega, Month in thisLi^. and not according
10 the Month in the Calender. 2 Inft. 71.
-The WordCCounty) is taken in ihe Commoi Senfe for the
Nor/hall any Sheriff or his Batliff make hisToiirnhy the Hundred,
.„. .imce in a Tear tn the due and ctijioimd F/ac,, to unt once after Eafier
■ and once after Michaelmas i
But now by
the SiJtute ^„f fwice
tiE.y.Stat.
I . cap 1 5 •
'"'"■''' %paU r„.ke. his ^ourn once in tU Momh after Eaper,n„'>the^o^^me in the Month after St.
for
Lord r.kc ,ays ^iSie IherXo^Vn forVirii^i as to l.y «s the Co Jt 1
rt'n^fm'JirLe'SJttt anJr"shenff Ihall lofe the Profits theteof. 2 It.a. 7 1.
^u- r, r q And theVie'-jJ of Frank-pledgepall then be made fo that every o-ne have
ThtsClaufe , ^■^"l^f/'''i% niadc JO, vtz. that
extends to his Fratichijes. Anatm yteju uj fi^r'i< f t J. ,„,„.. „r>>dtobe and that
the Enquiry .. j,',„.', Peace be kept, and the tithing kep intiu ujectiove, f^»^ ffj
of Felo'Ltes, [^^^ f^f' f/ ^^„,,„, ilj, fo much as he -was wont to hav.for h>s Fn.v^
STes, maktng .nthe fme ofK- H. ottr Great Grandfather.
and other . , , . . 11 Tklnac innuirable in the Tourn, Now by this
Mifdecds the View of ^r\^^'^^^'lllrl.fcIcc^Z^^^ Frank-pledge, being her«
Cbule it is provided that the Artie e of the fourn ^°"f ;"'"|;"fg ■ ^,-, ^ourn but once in ths /car,
underfiood in particular Senfe, fiiall be dealt w.thal by the J^^"" ;";^;„'^°aed; and therefore it was
vix. at the Toirn holden after £»«- -'^ J^.^^ £^,,f .^ M J a Char'ta, is to'be underftood of the
well rcfolved in 24 H. "-thatth.sClaufeo the Statute o^ 1 g .^ ^^^^ ^^^^^, ,^^^^^^ ^^ ^,^.^ ^-^
Leeis ot the Tourn, and not of other Le^"'.^Pf.;"^,X fame Days which are cont.uned in the CUar-
Court. ^9p
^alh been certainly ufed ; And the next Words to this CUufc be, lu fcilicet quod quilibct habeat
lilicrtates I'uas, quis habuit &c. do explain the Meaning of this Chapter, that it extended not to the
LceCioKtiK Subjciis, bist they fhould have their Liberties as before they had; And this alfo appears
by die Coni;lulion of ihis Chapter, £t qaod ViL-ccomes &c. comcntiis in de eoquod Vicccomes habere
conliitvit de vifu fuo faciendo; lb as it rauft be Vifus fuus, the Sheriffs View, which ot Neceffity
mult be Parcel of the Tourn, and it is faiJ in the Mirror that this View of Frank-pledge (Parcel of
die Tourn) fliould be made once every Year. 2 Inft. -z.
It i'cems certain, that fince thefe Statute?, the Slieriff is indiftabie for holding this Court at another
TiiTie than what is therein limited, or at any utujfual Place. Alfo it has been rcTiilvcd, that an Indidl-
incnt found at the Sherifi's Tourn, appearing to have been holdcn at another Time is void ; But it is
observable, that neither ot thefe Statutes do exprefsly mention a Court Leet, and therefore it isfaid in
feme Books, that they do not extend to it, neither do I find any Refolution, that an ancient Court
Leet holden at any other Time, or at an unufual Place, is void ; But on tlie Contrary it is faid, that
a Court Leet may be be holden at any Place within the Precinft which the Lord thinks fittin™' and
it fcems to be agreed, that a Prefcription to hold fuch Court oftner than twice in the Year is'^nn I,
which feems hardly reconcileable with the general Rule of Law, that no Prefcription can ftand'good
againli a Statute which has Negative Words, if a Court Leet be conllrL'cd to be within the Purviewr
ot the abovenientioncd Statutes. _ It is true, indeed, that both Sir Edw. Coke and Kitchen endeavour
tolblvethis Difficulty, by olFering a Diftjnftion that the faid Rule extends not to Statutes made in
Affiimance of the Comnxjn Law, but it is qucftionable how far this will amount to a good Anfwer,
fince it leems to be holden by others of good Authority, that the faid Stitutcs were not made in Affirm-
ance of the old Law, but arelntroduftoiy of a new one ; j-et it is certainly fsifeft to hold a Court Leet
• at the Times accuftomed, for it is faid, if it be holden at an unufual Time, it is void ; And it feems;
■that no Court Leet granted fmce the Statute, can be hold-^n at any other Time than what is limited
by it, becaufc every fuch Court is derived out of the Tourn, to which the Statute certainly did extend,
a Hawk. PI. C. 56. Cap. 10. S. 6, -, 8,
9. A Leet cannot be held at any other Time, but only within a
Mouth ajter Eajier end Mtchadmas^ ««/#/} f hat it is Zy' Patent or fpecial
Prejcriftion. 2 Saund, 291. Hill. 22 & 23 Car. 2. at the End of Da-
Jcins's Gife, fays, Vide Stat. Magna Charta, cap. 35. 31 E. 2. cap. 15.
Tit. Leece 32. •
10. One enters i5! Plaint in a baft Court to purfne in the Nature of a Mo.6S.pl.
Writ of Entry in the Pofl^ and bad Summons againft the Party until jiich 2^5- >'5. C.
a Day^ at which Time, and after Sim-fd^ the Steward came and held '" f°'?^=™-
the Court, and the Sumnions was recurn'd ferv'd, and the Party made nal*^'^ T
Default, and Judgment given ; the Queftion was, if the Judgment was 41"! 'sc^in
good. Dyer, Welch, and Benlowes held che.Judgment good, altho' tof'^'em
the Court was held at Nighty and Dyer faid, that if it were errone- ^'^''''^
ous, he coul'd have no Remedy by Writ of falfe Judgment nor other- * S. P. pep
wile, but only by way of Petition to the Lord, and he ought in fuch ^"'■- ^^ .-•
Cafe to do right according to Confcience, for he hath Power as a * '^'' p,- ^'"*
Chancellor within his own Court. Owen. 63. Mich. 6 Eliz. b^ r'^"
Anon.
1 1. A Man may prefcribe to hold a Leet oftner, and * at other 'Times 2 Le. zS,
ithan are mentioned in the Statute of Magna Charta, Cap, u. [35] For ^"P'- ^'■
St is in the Affirmative i Per ail the Jultices. Cro.E. 12?, pi. 4 Kill ^^'^«^^f"
3t eiz.B.R.Patridge'sCafe. '^^' 'scll^p.
flie Juftices S, P. as to a Lcef by Prefcription, per Cur. cites 20 H. 7. 22. 8c iS H 6 r i but
where a Leet Isby Grant it washcid a good EKCeption, th.1t the Defendant did not Ihew that the
Court was within a Month after Ealter, but only faid that it was held the 25 Apr. Cro E zl> pi s
Mich 55 & 54 Elit. B. R. Porter v. Gray. Ibid. 500. pi. 15, Pafch. u'EJiz B R the S C but
aD. P. Per Brian; By Magna Charta cap. 55. Leet fliall be held bur only once in a Year,
vir. at Mich only. But by Anno 24 H 8 this is intended of the Leet ot the Tourn of the Sheriff
and not ot other Leets. Br. Leet. pi. ;t;. cites 8 H. 7. i. RollRep.201.pl 5. Ai-g. cites 8 H 7 [i]
that the Reporter thei-e Teems ot Opinion tliat a Leet is within a Stature ; But Coke Ch. J- faid that
it this fhould be fo, it would overthrow all the Leers in England, and that the faid S'atute' is of
Towns, but a Leet may beheld by Prefcription at any Time of the Year; And Doderid^e feemcd
to be of the fame Opinion. Trin. i 5 Jac. B, R. "
The Difference is between a Uft by Grant or by Prefcrrpihn ; In the firft it muft be fhewn to be held
within the Time limited by the Statute, but in the laft Cale it is otherwife. Cro. E. 245. Porter v.
Gray. -But where in an indictment it viaslM to hs held at F. the S/xteeKlh Day^of Seftemher,
(without faying within a Month of Eafter or Michaelmas) yet it was held good. 11 Mod. 227.
Queen v Jennings. and cites the Cafe of the King v. King.'
* The one may prefcribe to Jiold 3 Couvi Leet at othe*' TJrees than mention'd in Magna Charta ;
Bat
5oo Court.
But unlefs thjt Prefiription appears it fhall not be prefum'ii ; Per Cur- ii Mod, Trin. 8 Ann. 3.R.
228. Queen r Jennings.
12. Ic was aflign'd for Error to reverfe an Outlawry, that a County
Court ivas held z^ Feb. and that the next County Court "isja^ held 23
March following^ fb that there were not 28 Days between thofe two
County Courts, and this was held erroneous ; But Tanfield laid, that
this ought to be affign'd as an Error in fait ; For it might be Leap-
Year, and then it is good, and that Matter ilFuabie. Cro. j. 167 pi
T. Trin. B. R. Leech's Cafe.
(H) In vi\i2it Places the Court may be held.
I. A Court Baron Oltgljt tO b6!}CHl upon fome Part of the Manor,
Jf\ for if it be tjclD out of tijc ^anoi: it 10 boiQ* Co.
Lit. 58.
2. Butif tljC Lord, bCing feifedoftwo or three Manors, hath ufually
Time out of Mind, held Court Barons at one of the Manors tor all tljC
q9anarjji tljenbp tijc Cultom fuel) Coutts are tuell f)elo, tijougt)
ttjep be not Ijclo tDitljm tlje fcberal ^anoris* Co. Lit, 58.
3. 3 cultomary Copyhold Court cann6t UC l)ClO cut ot the Manor.
Co. 4 betiDccit Meiwich and Litter, 26. refolbeD, Co, 4. 27. bctuieen
Oijton and Moitneux rGToI'uEii, rt)at V^z ^trtDatD caniiot maUe
©raut0 ann i:irimittaucEj3 at aiip Court ijtiD out of tl)c ^anoc.
4. Lcet may be held at any Place injithin the Hundred ; Contra of
Court Baron i Per Brian. Br. Leet pi. 23. cites 8 H. 7. i,
5. Leet may be held in any Place •s.vithni the Precind u here the Lord
fliall pleafe. Br. Court Baron pi. 8. cites 8. H. 7. 3. Per Brian.
6. Law Day may be in Auters terres. D. 30. b. pi. 209.
(I) iFhat fliall be faid of Courts of Record.
The Court, i. nr]|) Qc ^OUtt Of Admiralty i0 nOt OH? COUtt Of HeCOttl,
of Admiral- j^ j,|^^ tijcrcfore 110 Kecognijance can be tal^cn tbcre, ^r, 8
ccurt^ofR^- ^^^» '^* ^^^^ ^^ ^^ arDUQseo,
cerd, Br.
Knor. pi. 1 77. per Brooke, who fays itreerasfo; becaufe'nhhelily the Civil Law, 15 Rep.
5;.S. P. and for thefame Rearon and cites Sr Error, pi. 77 accordingly [but it is mifpiintcd for
l^-jl ,^ Inii. 155, Cap. 22. S. P. Noy. 24. per Warburton S.P.
2. Clje EngHlh Court of Chancery prOCCCUiUg UpOlt a gillbpiElia,
antib)? uiai? of Decree, iisno Coiirt oflRecotO. 37 l>. 6. 14. b*
pec prifot.
s Inft 580. 3. ^Ije County Court \% tlO COUtt Of KeCOtU, (iQ, Ittt*
.S.P. — 4 117. Ij.
lift, 26;. ^^^ ^^ g p And though a Plea be holdcn therein by a Jufticis."! (the King',<
w!'Jw..f it fs no Court of Record; For of u Judgment therein a Writ ot falfe J-xlgmenc lies, and
7jT\\lol^n^- ilnft- HO. <S Rep. n. b. S. P. .a jcr-tlea^aas Care.—Cn. L,tc n, b.
4- ^De
Court. 501
4. '^hZ Hundred Court 10 110 COUtt Cf EeCOCUt €0. lltt ^ ^^^ >43-
117- 0* Inft. 2(Jj.
Cap. 54. S. P.— — Ibid, 267. Cap. 56. S, P. — Co. Litr. 117. b.
5. 3 Courc Earon l]2i na COUCt Of KeCOtH. CO, Lltt ^ I"ft_i45^
^^7- ll* 4'lnft.263.
Cap. 54. and ibid. z6S. Cap. 57. S. P. Co. Lict. 117. b. S. P.
6. The Leets and T'ourns are Courts of Record^ and have Juthority to That is, the
affefs Ftius. Br. Leec, pi. 39. cites F. N. B. 82. Leets and
Tourns
which are for the publick Weale, a.s for keeping the Peace, thefe are Courts of Record, and confe-
<)uently for keeping the Peace ih.c Sheriff is Jiid^e of Record and may take Recognizance for the keeping
the Pace Ex Oficio ; But yet all the Pleas holden before him in the County are not of Record, nor Pleas
held k fore him in t1 e Cotwty by I frit of Juflicies are not taken as Matters of Rerord ; For thefe Pleas
are held before him by reafon of the Courts, which he has by reafon of his Office, as the County
Courts and Hundred &c. F. N. B. 82.
7. Wherever there is a Jurifdi£lion ercwlcd v,\ih. Power to Jine and'^^^^fp
imprifoH that is a Court of Record, and what is there done is mat- ^^"^ '^ *
ter of Record, i Salk. 200. pi. i. Trin. 12 W. 3. B. R. Groen- ^eaed de
Velt V. BurweJl. Novo by
Parli.iment
to con-jtSf, and fine, and impr'rfin either of thefe 2 make it a Court of Record. 12 Mod. ^Stl. per
Hoh Ch. ] who delivered rlie fudpment of the C jurt, in Cafe of Grenville v. College ofPhyficians,
S. C. Carth. 494 S. C. & S. P. by Holt Ch. J.
(I, 2.) What fhall be done in Cafes where the Court
is divided.
I. TN B. R. and C. B. and the Exchequer, or in the Exchequer
X Chamber where all the Jultices are affembled, if the Jultices
are equally divided wo 'Judgment /ball be given. 12 Rep. 117. in Sir
Stephen Proftor's Cafe.
2. And fo it is in the Court oi Parliament. 12 Rep. 117. in Sir
Stephen Proftor's Cale.
3. It is the Ufage of C. B. when the Judges are of 3 Opinions, to
gi\e the Rule according to the Opinion of the 2 which agree. 2
Vent. 24. Trin. 22 Car. 2. C B Rudyard's Cafe.
4. In a Motion in jirreji cj Judgment if the Court had been divided lj R;,yn,
en the firll xVlotion, the Plamtiff might have entred his Judgment, but Rep. 486.'
where there is a former Rule to flay Judgment, this Rule mult itand 495- S C.
or be difcharsed, and difcharg'd it can't be becaufe the Court is equal- ^ ^j,**'
ly divided. >cr Cur. i Salk. 17. pi. 7. Trin. ii VV. 3. B. R. Ivefon^f^^, ',',
V. Moor. former Mo-
tion it can-
not be entred without Continuances, there mud be a Rule for Judgment which'cannot now be had, the
V.ourt being divided. 1 2 Mod. 0;. 167. S, C. & S. P. that here was an Advifare vult Indefinitely,
:ir.d fo Judgment cannot be cnred vuthout Contir uances, and while the Court is divided it continuss
:in Advlare vult. If the Rule had been Temponry and expired the Matter had been at la -ge. 5
Med. Trin 205. ^ Ann, B. R. VValmfl.-y v Rufll-l S. P. and cites S. C. — But if it had boen upon
Denmrrer or fpecial VerdiB , then it would be adjour'd to the Exchequer Chamber. 5 Mod. i jj. Hill.
5 Jac. B. R. The Countefs of Plymouth v. Throgmorton.
5. At Niii prius Plaintiff' had a Verdi^, and on a Motion for a new
'trial the Court were divided in Opinion i And no Rule being made,
PlaintitF was at Liberty to lign tinal Judgment, Barnes's Notes ia
C. B, 322. HiJi. 10 Geo. 2. Cartlidg^ v. Eyies,
6 M CK.) The
5o2 Court.
?cclnur. (^) The Court of Co;0nbk and Maiy'hnl.
fhal and
Juvirdiftion
of iKe Court (.T;^£)^, Parl» 22 O. 3- mimeua 4. Fifteenths granted upon
cfMaiftal- |\^ divers Conditions tO \}t ClltECCB III tijC RcliS Of parlia^
JirMarfhul ^'^'^'^t, fdilCCt amOllS OtljCL'S), that there be no Marclchalley in Eng-
and Mar- land, except the Marefchalfey of the King, and oi' the Guardian of
flialfea, England, when the King Ihall be out of England.
* This 2. * il)» 4. nUmCrO 79. tljC Commons pray againft the Court of
^■??'^be ^j^g Conltable and Marlhall i tUlt HO Slfcnt tljCretO, fimllC tlUO* lU!^
;6 accord-* I'^txQ 99- foi* Ijoltstng pltas of Si5atter0 triable Up tlje Iiii(!icc?^
ing to Pryn. accoiuuio; to tlje common %m i but no Mmt t|)cicto.
lie's Abr.
of Cotton's Records 411. And the anfwer was, that the Statutes therefore provided fliall be obferv-
cd. But Ibid. No. 99. is a D. P. but it feems it fliould be Mo. S9.
3. 8 Rkb. 2: cap. 5. Pleas ivbich touch the Common Laiv, and ought
to he difciifjed by the Common Law^ JhaU not be drawn or held before the
Conjiabk and Marpa.l.
♦This IS to 4. \-i) R. 2.. cap. z. T'o the Conf able it appertai'ntlUo have Cognizance
be under- cfContracJs touching Deeds cf jlnns and IVdr * out of the Realm, and alfo
ftood^in any ^- cj'jgj„^^ ^/^^^^ toHch War imthtn the Realm, ivbicb cannot be determined
Part beyond nor difcuffed by the Common Laii: , "-jcith other Vjages and Cufionis to the
the Seas, Jame Matters pertaining, which other Conjlables heretofore have duly and
in Partibus reafonably tifed in their Time ; and that every Plaintiff. pall declare plainly
exteris & . ^ i^^^ Matter in his Petition bejove that any Man be feiit for to anfjDer there-
for upon ' ttnto. And if any will complain that any Plea be commenced before the Con-
the Sea the Jiable and Marjhal, that might he tried by the Common Law of the Land,
Admiral _ the fame Plaintiff fh all have a Privy Seal of the King without Difficulty, di-
ha^ Juriu ^-(.[iai to the [aid Confiable and Marfhal, tofucceafe in that Plea until it be
which^Ad- difcuffed by the King' s Council, if that Matter ought of Right to pertain to
miral (our that Court, or otherwife to be tried by the Common Law of the Realm ofEng-
En;;iifli land, and alfo that they furceafe in the mean time.
Kepttine)
cannot meddle with any tbinj; done beyond the Seas upon the Land, and the Conftable and Marfhal
ihall have no Conuianceof any Thing done upon the Sea. 4 Inll. 124.
They pro- 5. i Plen. i^. cap. 14. All the Appeals to be made of Things done out of
ceed accord. ^^^ Realm, fhall be tried and determined before the Confiable .ind Mar foal of
CuiWs England for the Tme being.
and Ufages
of that Court, and in Cafes omit ted according to the Civil Law, Secundum Lefjem Armorum ; and
therefore upon Jitainders before the Confiable and Marfhsl for the Time being, ?;o L.i7u{ is forfeited or
Corrupmi of Blood wroun;ht 4 Inll. 125. cap 17.
Confidcration upon the Sratute I H. 4. cap. 14. wjs had, how the Word Appeals fliall be intetidcd
before the Conlbble and Marflial. And 2i £liz. TBOU^ljUi'S Calf, Peliiion was nsade to the (^uccn
bv the Heir to mikc a Conftable and Marfhal, but fhe would not. Admitting that the King "grants a
Commiffion of the Office of a Conftable and Marfhal, whether the King may have any Remedy be-
iore them by Indidtment, or Information by the Attorney General 1 Hut. 5. Anon. [But it is there
left a Quxrr.J — -See pi. 9.
6. At the Reqiicji of the Commons the King granted, that one Bennet
William, who was imprifoned to anfwer before the Conjiabk and ALirjbal
of England ,yi'o///^^(? tried according to the Ccmmon Laws of the Realm, not-
withjh'.nding any Coimniffion to the contrary; and thereupon a JFnt was
accord-
Court. 503
accordingly direScH to the Jujiices of the King's Bench, as may appear
Prynn's Abr. ot" Cotton's Records, 429. 5 H. 4. pi. 39.
7. It tzvo E/jgh/hmeii do go into a foreigfi Kingdcmy and fight there, and 5 f"'^- 48.
the one murders the other^ Lex Terrae extends not hereunto, but this ^^-^-^^^^^"^
ience fliall be heard and determined before the Conftable and Marlhal,"^^s,anf'
and luch Proceedings lliall be thereby attaching of the Body, andPl. C. 65
otherwife, as the Law and Cullom of the Court have been allowed byM'-ii:i5Sc
the Laws of tiic Realm, z Inlt. 51. cites 13 H, 4, 5. ?f ^''>.
' Uowtie s
Cafe.
8. Appeal of Treafon lies not at Common Law^ but it lies before the
Con/table and Marfhai, and there it iliail be determined by the Civtl
Law. Br. Trefpafs, pi. 197. cites 37 H. 6. 2, 3.
9. If a Siibjeft of the King be hiied by another of his Sabjeffs out of
England, in any foreign Country, the JVife^ or he that ts Heir of the
Dead, may hai'e an appeal for this Murder or Homicide before the Con-
ftuble and the Marllial, whofe Sentence is upon Tellimony of Wicnefles
or Combat. And accordingly, where a Sabjecl of the King was flain
in Scotland by other of the Kmg's Subjeils, the Wife of the Dead had
her Appeal theretbre before the Alarlh.il and Conltable. And fo it was
refolved in the Reign of C^. Elit. in CafC Qi Mt JFraUCt.SS Dl'ilfee,
•who ftruck otfche Head of D. in Partibus Tranfmarinis that his Brother
and Heir might have an A.ppcai, fed Regina noluic conftituere Con-
ftabularium Anglix &c & ideo donnivic Appelium. Co. Litt. 74. a.
10. Matters done oat oj the Reahn of England, concerning War^
Combat, or Deeds of Arms, fliall be cried and determined before the
Con liable and Marllial of England, before whom the Trial is by VVit-
nefles, or by (Jombac, and their Proceeding is according to the Civil Law,
and not by the Oath ot 12 iMen. Co. Litt. 261. a.
i\. The Court of the Conltable and Marflial >&^u^ Contifance of Con-
traBs, ot" Deeds of Arms, and of li-ar cut of the Realm, and alfo of
things touching War within the Realm, which may not be determined or
dilculled by the Common Law, and alfo all Appeals of Offences done out of
the Realm^ and they proceed according to the Civil Law. Co. Litt.
391. b.
12. If A. givesB. -J. mortal Wound in a foreign Country, and B. comes in-
to England and dies, this cannot be tried by the Common Law, becaufe
the Stroke was given there, whence no Vifne can come, but the fame
ihall be heard and determined before the Conllable and Marlhal. 3 Inlt.
48. cap. 7.
13. If a Man h^ Jiricken upon the High Sea, and dies of the fame
Stroke upon the Land, this cannot be enquired of by the Common Law,
becaufe no Vifne can come from the Place where the Stroke was
given, (though it were within the Sea pertaining to the Realm of Eng-
land, and within the Liegeance of the King) becaufe it is not within
any of the Counties of the Realms neither tan the Admiral hear or
determine this Murder, becaufe though the Stroke was within his Ju-
rildiftion, yet the Death was Infra Corpus Comitatus, whereof he
cannot enquire i neither is it within the Statute 28 H. 8. becaufe the
Murder was committed on the Sea, but by the fiid A61 of 13 R. 2. the
Conftable and Marflial may hear and determine the fame,- 3 Inft.
48- <-'ap. 7-
14. The Judges of this Court are the Lord High Cojijfahk of England,
and the Earl Alarpal of England, and this Court i,s the Fountain of the
Marflial Law ; and the Earl Marlhal is both one of the Judges and
to fee Execution dene. 4 Iiiii 123. cap. i-.
15 This,
504. Court.
15. This Court of Chivalry was anciently holden in the King's
Hall. 4 Inft. 123. cap. 17.
16. Neither the Statute 26 H.^. cap. 13. nor that of ^^H.S. cap. 2.
ftor the Statute of 5 E. 6. cap. 1 1. do take away the Jarifdidton of the Con-
Itable and Marilial where one accufes another oj High Treafon done out uf
the Realm, tor of fuch an Accufation of one againft another of any
High Treafon done out of the Realm, the Conllabie and Marllial
Ihould have Conufance thereof, becaufe High Treafon is not triable by
a Jury according to the Courfe of the Common Laws ol' the Realm in
that Cafe for want of Proof 4 Init. 124^ cap, 17,
For more as to the Court of Chivalry before the Conftable and Mar-
ftal, See 4 Inll. 123. to 130. and Prynn's Animadverfions &c.
4 Inll, 59 to 74 &c.
ou
(K. 2) The Court of Honour.
Sid. 552. 1. TNaCafe where the Earl Marfhal was a Lunatick, it was held,
pi. 5. the j^ (-j^3[. ^ Court ot Honour, touching Arms and Honour.^ may be
Parker" holden betore the Earl Marlhal only, or C omniillioners deputed to ex-
S. C. held ercife chat Offi*.e j but Matters relating to Life and Member mull be
accordingly kept before the C'.nftable and Marlhal. 1 Lev. 230. Hill. 19 &; 20
by all the Car. 2. B. R. Parker's Cafe.
Jufticcs, ^ ._ ., 1 1 •
prsEter Twifden J. who thought that Tuch Co rami'Ti oners are illegal and grievous, as appears by the
Petition of Right, viz. Star. 5 Car. op i. S. C. cited Show. Rep, 553. 2 Hawjc PI. C. 14.
cap. 4. S. 13 cues S. G and fays, it feems to be the better Opinion of tfie Court, that during the Lu-
nacy of an EjvI M:rfhal, it may well be holden before Commiffioners deputed to CN-ercife his Office ;
and it feems hard to fay that fuch Commiffioners, founded on the plain Keccllity of the Cafe, and in-
tended to prevent a Failure of JulHce, as to Cales of which no ohcr Court ha-; Conufance, are a^^ainft
the Purview of the Petition of Right made in the 5d Year of the Reign of King Car. i, which com-
plaining that Commiflions had been granted for the Trial of certain capital Offences, and other C)ut-
ra^es, by the Martial Law, under Pretence thereof divers of the King's Sabjeifts had been put to
Death, prays that from thenceforth no Comtuiflions of like Nature might ilTuc forth to be executed
asaforclaid.
2. The Conn o[ Honour cannot commit for Painting of Arms, becaufe
that is a Trade, which a Perfon educated in it, may lawfully ufe; but
though they may do lor ordinary Ufes, yet, unlels they are Herald-
Painters, they cannot do it for great Solemnities or Funerals without
Licence, much lefs may they order the Ceremonies of Funerals without
Licence, but this o«^/7; to be dtre^iedby the Heralds, As lor all Noble-
men by Garter King of Arms, for all Gentlemen on this Side Trent by
Clarencieax, and beyond Trent by Norroy ; Refolved. Lev. ,230,
Hill. i9'& 20 Car. 2. Parker's Cale.
3. A Libel was in the Court of Honour, letting forth, that there
are three Kings at Arms, Garter, Clarencieux, and Norroy, and ^^K
Heralds, skillul in Delcents, Pedigrees, and Arms, to whole Oifices it
belongs to marlhal Funerals &c. and that the Defendant had encroach-
ed upon their relpeftise Offices, by Painting ArmSj M.irjbaling Funerals
^c. The Defendant for a Prohibition fuggeltcd the Statute of Magna
Charta, that no Man ihill be diifeifed of his Liberties, or free Cuftoms,
tlicfeThinc'sbut by Judgment of his Peers &c. It was inlilted againft the Prohibit
do belong to tiooj that a Court of Honour is an ancient Court by Prelcripcion, and
their reCj'ec- ' ^l^j^
.Show. Rep,
;^3 Rund
V OlJilh,
S C. and
HoltCn. J
fjlJ, this
Matter de-
fcrVJS De-
b,ite ; for if
Court of Admiralty. 50^
ih.u being a Court ot' great Arciquicy, they have endeavoured co extend t've Offices,
hs [urifdiclion, but have been reltraine.l by leveral Ai5t,s of Parliament, f'''-'" '^'^^''.^
aiui tiiuc the Statute 13 R. 2. cap. 2. declares the Earl Marlhal's Autho- ^j Latv^fl""
jity, and gives Remedy iJ:" abuled, but not by way ot' Prohibition by the Wrono-,
I he Courts ot'Law, but by a Privy Seal trom the King, directed to the «"J there-"
Earl Marllial, not to proceed ; Sed per Cur. it what is let forth in the ^°'J^ dircfted
Libel istrue, ic ir a Wrong done to the Polleilions ot the Heralds, lor j^j^^^'^'^'^j"
vshich they might have an Aftion, but here is no Manner of Com- the Plaintiff
phiinc of any Thing done againlt the Rules ot Honour, therefore a ta declare
I'nhibiticii v\as granted, becaufe this Matter canno: be otherwife de- Sec
termined. 4MCXI. 12S. Trin. 4 W. & M. in B. R. R.uaeirs Cafe.
4. CoiKerning the Co////;7«//ti« (?/ the Court of Honour, no doubt ic
was formerly held Vef ore the Conjiabk and Marjhal, and lb all along till
13 H. 8. wiien the "then Conltable was attainted of Trealbn, and its
being held before the ALxrjhal alone is no ancienter than the Court oi
t\ie Council of I'ork^ which obtained by Encroachment only j For firlt
it was but a Commiliion of Ojer ^«(/ I'trmuier^ yec it after drew in A-
bundance of other Matter, and all by the great Power of the Prelideut
of the North; Per Holt. And he faid. He never knew what fort of
JnrifdSion a Court ot Honour has as to Matters arijiiig •within England^
Icrthe St-atiit^ of 17, R.2. gives them x^uthority only of Matters arifing
out of the Realm, and Feats of Arms within the Realm, by which
ihey would have meant Coats of Arms and Efcutcheons. And he
laid, The Minilters of that Court underllood this Matter of Arms well,
iind gav-e Coats of z^rms, and kept Pedigrees ol Families, and if they
/ind People that affttme Jrms^ to whom Arms do not belong, or at lealt
thofe they alfume belong not to them, their way is to Poll them up,
but by what Juftice or Law he could not tell, it cannot imprifon,
for it is no Court of Record. He faid, It were to be wilhed the Par-
Jiaraent would give them Jurifdiftion of IVords tending to difparage
iVlen of Honour, and fuch as generally provoke Gentlemen to fight.
And per Cur. They hav-e no Pretence to hold Plea of Words. 7 Mod.
127. HilL I Ann. B. R. per Hole Ch. J.- in Cafe of Chambers v.
Jennings.
5. The Court of Honour has not Jurifdiffion of Words tending to the ^J" P^ece-
Breach of the Peace. 7 Mod. 125. 128. Hill, i Ann. B. R. Chambers '''="/ ''/'"S,
. . ' to be found
V.Jennings. of fuch a
Suit for
Words in the Court of Honour, a Prohibition was granted. zSalk. 555 pi. iS, S. C.
The Court of Admiralty.
I. YT©EI3€ ^iuot Vt 3]ii(ficci3 2. b. among tlje Conffitutt"34. cap. 22.
il. 0110 of Bins SlfteU, one l^, ^Ijattlje sovereignty of all the';,"'^ 'ef .
Land to the Middle ot the Sea about tiie Land fcCionS^tO tfjC Hinsl^Xerfio^''
in Eiafjt of W Cromn ► &c 7 5 to
2. gi^aftct ^elocn tolouie, tljcrcttn^a Record in 'SCitrrt ton'134
iJittCnri ill 34C« I- that it was agreed bv all the Princes of the Chriilian
' 6 N W^orld,
i^o6 Court of Admiralty.
World, [hat the Narrow Sea, and the Sea which is abour England, be-
longs to, and is within the Jurildiftion ot the King of England.
3. 34 Cti. I. Rot pat. S^embrana 21. an SUnucal mane ofDo.
ver verlus Partes Occidentales ufque Scotiam, ajlU aU0tf)CC QQllUCili
of the Thames verfus Partes Boreales ufque Barwick.
4 Eot. g)cati3e 4 c. 2. i^, s- ©ciatijj qiioti affiD;naiiiniu0 ?c*
% €, amtiiuallum f Capitaneum iflat* noiira; Ji^aiituni ftc.
5- Eot.^cotise 7 €, 2. ^» 7. De Capitancofj ^Vomicalla Jflot;^
Ecffijs iQaliium ©ccineutaliiim conftitiito.
6. Hot* S)Cotis 8 c» 2. s^embrana 2. i©iUiElnm0 tie ©cap Ca=
pitancuss $ SlDm(ranu0 f lots EcffijJ ijcrfus 33artcsi ©ccioentalcs
aiigiiie. ^biDcm. 3u auattjer place m\ot\)tt aointcal.
''. 2 j;). 4. Rot. pari. Bimieco 9- tljc Common0 prap again!! t(je
Court of tlje Sinmiraltp fOt holding Plea of Matters triable before
jurtices, accorninn; to tlje Common Laa, Q5ut no $lflcnt to
tl}l0.
seePrynns g 4 {[), 4. sQumcro 47- 3In a Petition bp tlje Commons! ao;alnft
Sr&c.'on tljc Sllsnnrnl, amone: otter CljniD;0, it 10 prapen, that the Admirals
4 Inft. So uie rheir Laws only by the Law oi Oleron, and the ancient Laws of
the Tame Pe- the Sea, and by the Law of England, and not bv Guftom, or by other
titionat Manner. a:>ioe tije anfiucc.
large, and
the Kini^'s Anlwer.
"s '
9. 4]^). 4. mimcr0 63. another pettttOH, that the Admiral hold
his Courts upon the Sea, or upon the Sea Coalts, and not within a
Franchife or Vill i and that Suits commenced be determined before
Adjournment to another Place. XUt HO aJTeilt tO tW*
(A) Of what Thhigs they may hold Plea, in refpe^ of
the Place where they arife.
I. 2 H. 5. cap. 16. [6] T T is enaaed. That tfje COnfCtbatOt Of
X tf)c ^rtice ann @)afe Conbuag bv tlje
mm af^igncn, fljaU fjaiic i^otocr to cnqmrc ot ©tfcuces "none
againft tbc '3Crucc anb fafe Conbuct of ttje l^ing upon tije jjigt)
gieas, out of tlje OBobp of Coiintiesi, anb out of tbc ifrandjifc^
of tbe Cmciue ports, as tlje abmiralg of t!jc Etngs of (Englanb be-
fore tlji0 'SCmie reafonabip after tlje olb Cuftoms, anb late upon
tlje main^eaufeb, l)abe bone oc ufebi anb fo to malie procefs,
♦ Hob. :s. 3lubgmcnt, execution $c.
pi. lo^.ii.c. 2. Cljc Court of Slbmtraltp cannot fjolb piea of any Contraa
t Hob. 79. jnade upon the Land beyond Sea, but only of Things done upon the
Mich\ Sea. jpobcrt'iS Kcports 107. betujeen tbe * Spa»ijb ambalTabor anb
Tac. c. k S)ir Richard Btngiey a j^coljtbitton gtantcb j anb 109. bettoceu t Pai.
die s. c. mer and Pope n pcoljibitiOtt gtauteb.
r^^K^^ 3. [OSUtJ afaContraa be mabe upon the Sca, but it is after-
•, ^^^_^- wards fealed upon Land, tlje COUtt Of abmiCattP CamiOt DOlb PIca
Hnb 79 pi tljereOt: IpObart'S EepOCtS bCttOeetl Palmer and Pope.
t':4 and
iHid. 211. pi. 270, S. C and S. P. refolv'd and a Prohibition granted; But ifit Iiad been a Writino-
only without Seal, it had made no Change as to the Jurifdiition; If the Cor.traft was at Land
t ho* the Breach was at Sea, yet becaure thcf'e two mult concur to make the Cauft; of Suit, wliich is
intii-e, the Party fhall be forced to fue in the King's Court, becaufe that and the Conimoii Law inuft
prevail againll other Courts and Laws, and cited 48 E. 5. 2. 10 H 7. F N. B. ti8.
4. 27 H,
Court of Admiralty. c^oj
4. 27 H. 8. cap. 4. Pjr^icies, jMurders. and RvbbaicSy done upon the A Mur-
Seas vr in any Haven, River., or Creek, where the Ainural pretends /o'l^^atSea
have JarifiiiRion, Jhall be iuquird and tried ^c. in ftich Shires andZ^'cl""[^^['
Places of the Realm as fhall be limited by the King' s Commijjton, as ;7 ble ouly by
done at Land and fiich CJommiJpons under the great Seal pall be direiled to the Civil
the Admiral, his Lieutenant^ or Deputy, and three or four other fubjianti-^'^'^' ^"'
al Per funs as the Lord Chancellor /hall name, to hear and determine fuch force'of 27
Offences, according to the Courfe of the Common Law tts^d for Felony doneH. S. 4.
•within the Realm. ' and 28 H.
8. 15. it
may be tried and determined before the King's Commiffioners in any County of England, acceding
to the Courfe of the Common Law ; yet the Killing of one who dies at Land of a Wound received
at Sea, is neither determinible at Common Luv nor by force of either of tliefe Statutes ; but it
Icemv, that it may be tri-d by the Conftable and Marflial, or before Commifficners appointed, ia
purfuance of the Statute of 5; H. S. 2} Hav^k. Fl. C. 79. cap. 31. S. 12.
5. 28 H. 8. cap. 15. S. 1. All Treafons, Felonies, Robberies, Murders, This Statute
and Confederacies, committed upon the Sea, or tn any Haven, iJ/wr, '* |° "'"''-
Creek, or Place where the Admirals pretend to have Power or y^urifdiSfion, ^^ s'eT'^"
Jhall be inqitir'd heard, and determui'd, in fuch Shires and Places of this to be intend-
Realm, as Jhall be limited by the Ktnfs CommiJJioner ^c. after the common ^d it felony
Conrfe of Law us'd for Treafons, Felonies, Robberies, Murders, and Co/;- ^^ '^^'"^
federacies of the fame committed upon Laud within this Realm. j^^^^^ ''p"™
if it be com-
mitted in a Creek or Place v/here the Adtniral has not Juii'Uiftion, the Commiflioners have nothino-
to do to meddle with it; Per Coke and Fofter Ow. 123. Mich. 7 Jic in Cafe of Leigh v. Burley!
A Pirate upon his Arraignment before CommilTioners of Oyer and Terminer, ftood mute a'.d
would not directly anfwer. Saunders Ch. B and Brown and Dyer f. being ask'd their Opinion
held, that he fliould have the Pain of Fort and Duie ; And this by the good and rcafonable Intend-
ment of the Stature of 28 H. S. cap. l^, and Judgtnent was-given accordingly. 5 In ft ,14,
S. P. but fays, it is out of the latter Words of the Aft vii, " And fuch as fhall be convici: of any
" fuch Offence by Verdift, Confeffion or Prorefs." For he that ftandeth mute is not convift of the
Offence, but fuftereth for his Contumacy, and it is neither by Verdift, ConfefEon, or Procefs.
The Commijfior. for 'Trial of Piracy by Statute 28 H. 8. cap. l j is good-, tho the Chancellor does not afpcint
the Cominifponers as that Statute appoints ; Per Hobart Ch. J. Arg. Hob. 146. D.2II. b.212. a.
Pafch. 4 £liz. S. P. where the Nomination was by the Lord Keeper, and held good by the ci-eatep
Kumber; and this was before the Statute 5 Eliz. cap. 48.
As to Criminal Offences, the Statute 28 H. S ctp. 15. extends only to fuch which are done Super
altum Mare, for if they are done in a Creek or Place where the Admiral has not Jurifdiction, the
Commiffioners have nothing to do to meddle witli it; Per Foffer. Ow. 123. Mich. 7 Jac. in Cafe 06
Leigh V. Burlcy.
It' an EveUfhman comifiifs Piracy, he\t upon the SuhjeB of any Prince or Republick in amity with the
Crown of England, they are within the purview ot the S:atu;c of 28 H. S. and fo it was held where
one (Hlinterfon, Smith and others, had robbed a Ship of one Maturinc Gantier, belonging to Bour-
deaux, and bound from thence with French Wines for England, and that the fame was Felony by
the Law Marine, and the Parties were convicted of the fame. Molloy 60. cap. 4. S. 8
^0 it is (/ the SuhjeH of any other Nation or Kingdom, being in j4mity with the King of England, com-
mits Piracy on tlx Ships or Goods of the Englifi, the fame is Felony, and punifhable by Virtue of the
Statute, and fo it was adjudged, where one 'HiXZXiiS, Captain of a French Man of War of about 40
Tuns, and divers others, fetting upon four Merchant Men going frotn the Port of Briifol to Cirmar-
then, did rob them of about 1000 1. for which he and the reft were arraigned and found Guilty of
the Piracy. Molloy 60. cap. 4. S. 9.
But before the Statute of 1') Ed. 5 . if the fcthjeHs tf a. Foreign Nation and feme Enehp had joined to-
getljer and had committed Piracy, it had been Hreafon in the Englijh, and Felony in the Forcit^ners; And fo
it was faid by Shard, where a Norman being Commander of a Ship, had, together with fome £ng-
lifh, committed lloberies on the Sea, bemg taken, were arraigned and found Guilty ; the Norman
of Felony, and the Englifh otTieafon, who accordingly were drawn and Hanged. But new a?
this Day they both recei'je Judgment as Felon f by the Laws Marine. Ibid.
6. A Commiflton illued out of Chancery according to the Statute of
28 H. 8. 15. to the Admiral and others, to inquire hear and deter-
mine all Trealons, Felonies &c. done within the Jurifditiion of the
Admiralty, and they illued out a Precept againll Lacy, tor having ^ru-
en a mortal Stroke to J. S. upon Scarborough S.tnds, (being a certain Place
in which the Sea has Flux and Re/lux,) of which StroJce j. S. died at
Scarborough, whereupon L. >yas arreited and imprifoned;, and arraign-
ed.
I*
oj Coiirr of Aamiralry.
cd thereof beibre the Commiffioners, all which L. pleaded to a Sci. la.
on a Recognizance, entered into by him to appear before the Jaltices
of x^fTife at York, which he was prevented doing by his being fo taken
into Cuilody. The Attorney General demurred to the Plea, and one
Caufe alleged was, that L. did not allege that the Coroners who in-
quired Super Vifum Corporis v/ere Coroners of the Admiralty or of
the County; but this was held not Material j becaule the CommilTion-
ers may proceed without any View of the Body by any Coroner. Mo.
121. pi. 265. Pafch. 25 Eli 2:. in the Exchequer, Lacy's Cafe
tx. 170. pi. -y, L. gave P. a mortal Stroke upon the Sea^ of which P. died a;
'>'^\.^\.'^ Scarborough in the County of York, and L. ivas dijcharged of it ; Fdr
vaVhuifded thofe of the County of York could not inquire of it without inquir-
for the ing of the Stroke, and of the Stroke they could not inquire becaufe it
Death of a was not given within any County; And thofe ol the Admiralty Jurif-
j^^^r.iifon ciitlion cannot inquire of it as of a Felony without inquiring of the
S^nAs"'he- l^^ath, and of the Death they cannot inquire, becaule it was Infra.
fji-einHtgh Corpus Comitatus, cited 2 Rep. 93. a. per Cur. as adjudg'd in B.
and Low R. Trin. 25 Eliz. Lacy's Cafe.
W^ater-
Mark, which being i-emov'd into B. R. and the Defendant anaigncd, htfUaded that the Indicfment
titpfi ahich he ivas arrMgncd ivms taken by Cornmijjion I Alaii, diielled to the fudges of Jjfife, and other
j'ufticesct Peace//; «/)e /aid County, to inquire of all Murders &c. and that ajteriuards, liz on
the zd Aljy 'Jfii^d another Commijfion, direflsd to the ^4dmiral, and others, upo>i the Statute iS H 8. cap.
15. and this was «rf Inq:!irni:iu,ri tarn fitper .Jltum Mare iju.:m fuper Lntus Maris ; by force of whicll
he was indidted ot the l.^m- Murder. All the Juftices held th^Jt the firlt Commiilion was repealed by
the fecond, and fo the Indi(!;tnienr upon which he was arraigned was Coram non Judicc ; for thcie two
CnnimilTions are in reflect of tv.'o leveral Authorities, the firli merely by the Common Law, the
other by the laid Statute, and therefore the Pai ty was difcharg'd ot the Indittment at the Suit ot
the Q^iecn.
Jtlo. lit, I. When the Sea flows and is ad Plenitiidinem, the Admiral Ihall
p^rV^'',^'"'' have Jurifdiction of every -Thing done upon the Water befween the High
EHk in die ^^'^ter-Mark and the Low Water-Mark, by the ordinary and natural Coitrfe
lExchequci-. oftheSeai and fo it was adjudg'd in jLaCP'0 CofC, that the Felony
S C- • done upon the ad Plenitudinem Maris between the fligh Water-Mark
.^nd S6.pl. and the Low Water-Mark by the ordinary and natural Courle of the
Sea, the Admiral Ihall have Jurifdiclion ^ and fo hetiveen the High
Water-Mark and the Low Water-Mark the Common Law and the Admi-
raltv have Divifum Iinperium interchangeibly. 5 Pvcp. 107. a. Pafch.
43 Eliz. B. R. in Sir Hen. Conltable's Cafe.
9. Cook faid, that the Admiral iliould have no Jurifdiilion where a
Man may fee. from one Side to the other i hut the Coroner of the County
jhall enquire of Felonies committed there ; which was held to b$ good by
ail other Juftices; And he gave this Difference, that where the Place
was covered over with Salt Water out of any County or ^own^ there efl Altiitii
Afare i but where it is within any County, there it is not Altum Mare,
but the Trial fliall be per Vicinetum of the Town, Owen. 122, 123.
Mich. 7. Jac. Leigh v. Burley.
10. Great Quellion was, if a Man ccmmitteth Piracy upon the Sea,
and Oiie knowing thereof .^ receiveth and cornforteth the L)efendant within
the Body of the County ; if the Admiral and other the Commiffioners, by
Force of 28 H. 8. cap. 16. may proceed by Indiftment and Convi£lion
againli the Receiver and Abettor, inafmuch as the Offence of the Ac-
ceiiary hath the beginning within the Body of the County. And ic
was refolvcd by them, that fuch a Receiver and Abettor bv the Com-
mon Law could not be Indifted or Conviiled, becaufe the Common
Law cannot take Conuzance of the original Offence, becaufe that is
done out of the Jurifdiftion of the Common Law i and by Confe-
quence, where the Common Law cannot punilh che Principal, the fame
Ihall
I 50 6. C-
Court of Admiralty. 509
fhall noc punilh any one as accellary to fuch a J'riiicipal. 13 Rep. 53.
jjl. 21. Trin. 7 Jac. The Cale of the Admiraicy.
£ I. Where a -Man m'xy fee that which is d&ne oj one Part and the other
vf the IVater Qc. in thac Place the Count)- may have Cognizance, and
tt may U tri-ed by a Jury j vvliich proves alfo, that that which may be
tried by the Common Law, doth not belong to the Admiral's Jurif-
diction. 12 Rep. 80 Hiil. 8 Jac. cites 8 E 2. Corone 399, and
fays, that Scamtord's Pleas ot the Crown, lib. i. lol. 51. cicino- this
Eco]<, lajs thusj viz. So this proves that by the Common Law before
the Statute 6cc. the Admiral Ihall not have Jurildiftion upon the high
Sea, which proves that the Admiral by the Common Law hath JurjA
dittion upot) the High Sea, and conlcquently that his Jurifditlion was
by the Common Law, and then it is fo ancient, that the Commence-
ment ciinnot be known ; fo thac Ld. Coke fliys, he concludes that,
thac his Authority did not begin in the Reign of Ed. 3. as Lambertj
upon uncertain Conjetlures fuppolethj for if the Jurifdiclion had then
began and been inlticuted, it would have appeared upon Record. 12
Rep. 80. Hiil. 8 Jac. Anon.
12. The Admiralty of England can hold /lo Pica of any Contract^ bat
filth as arifah upon the Sea ; Aw, tho" it rifes upon any Continent, Port or
Haven in the World oat of 'the King's Dominions; lor their Jurifdiftion
is limited by the Statutes to the Seas only ; for the x^dmiral is lor the
Sea, and the Court for Maritime Cauies, and therefore if any Stran-
ger or other will feek Jultice at the Hands of the King of England,
lor Wrongs done him ou: of his Dominions, he mull feek it in chofe
Courts that have Jurifdiilion over the Caule. Now, if the Caufe rile
at Land or in a Port (for no Pore is Pare of the Sea, but of the Conti-
nent) then he cannot fue in the Admiralty, but in the Courts of
Common Law, which have unlimited Power in Caufes Tranlitory,
and then it mull be (o laid, that it may give Jurifdifilion. Refoiv'd
clearly by the whole Court. Hob. 79. pi. 103. D'acuna v. JollifF
and Bingiey.
13. ASuic was in the Admiralty for taking Goods circa Cape de
l^ert Super jiltiim Mare. A Prohibition was moved Jtor, becaufe it was
in the Port of Guinea when they were at Anchor, and every Port is with-
in the Body of the Land, and noc upon the High Sea. Coke Ch. J.
;(.aid, that peradvencure the Ports there are not as the Havens are here,
Doderidge laid, that there is not any Port there, but there are Roads,
bur they are noc within the Body of the Land but in the Sea, and they
may be at Anchor in the Sea, and therefore a Prohibition was denied i
But Coke laid, that if it had been within the Body of the Land the
Admiral ought not noc to hold Plea of it. Roll. Rep. 250. Mich.
n'i jac. B. R. WlUec v. Newport.
14. A Libel was againft B. for a Ship lying at Anchor at Lime- J^fo. Spr.
hoiife. The Libel was in Nature of a Detinue at Common Law, and ?'• '-'?•
becaufe this was infra Corpus Com' and not within the Admiral's J'J-s "c^and"^
rifdiction, a Piohibition was granted. Cro. J. 514. pi. 27. Mich.Prohibition
16 Jac. B. R. Violet \'. Blague. granted- — .
2 Roll. Rep.
4.9. Violett V. Blake. S C and Prohibition <;ranted ; For by Doderidge t^yme Houie, Hull &c.
arc within the Points of the Land, and out of the Jurifdiction of the Admiralty, and cited a Cafe ia
the TTme ot £ '1. Avowry 192. and 46 E. 5. where Trefpafs was brought for the taking a Ship
at Hull, and the Mayor of Ku'l demanded Conufance of the Plea and had it, ard that the Book of
ii E 5. Corone 599 was denied by liic Judges to be Law.
15. PlaintilFmay fue in the Admiral Court on a Contraif [[ he will
fuppofe it to be laade in Virginia, but il hefiippofes it to be made in Eng-
land, he may fue here ; But li Part of the Cuntraff be made here and
Part over the Sea in \u^\n\-a., or upon the Sea, the Common Law only
ft.ill have jurildiction i Per Jones J. who laid that thefe are the true
Differences. 2 Roll Rep 492, 4^2 Hill. 22 Jac. in Capp's Cafe."
6 O ■ 16. 'Tis
c i o Court of Adniiraky.
16, 'Tis ufual in the Libel, to alledge fome Contracl to be made
fuper altum Mare j But if the fuimile be not true a Prohibiciou ihall be
granted. And Dodefidge faid, it a Ship lies at Anchor^ and -wants Vic-
tuals, and fends to Land to J. S. to bring VUlaatsy and then the Contrail
is made in the Ship, this is a Contraft upon the Sea and therelore it Ihail
be tried in the Admiralty, but contrary, it' the Contraft is made whol-
ly at Land, and the Viftuals afterwards lent to the Ship. Latch. 11.
Hill. I Car. Godtrey's Cafe.
17. KContraii was made ^? Land^ with feveral Seainen^ to bring a
Ship jrom a Fort in England to London, for a certain Sum oj Money to be
paid to them. Upon a Libel in the Admiralty for this Money, it was
fuggelted for a Prohibition, that the Concracl was made at Land, with
with diverfe Jointly for a Sum in Grofs, and fo could not be within
the ordinary Rule of Mariners Wages to be fued for in that Court, be-
Gaufe there they may all join, and not be put to the inconvenience of
of fuing feverally as at Law, but as this Concra6~t is, they are to Sue
jointly at Common Law i But the Prohibition was denied for this muit
be talven as Mariners Wages, and therefore the Admiralty have Jurif-
diclion, though the Contra£t was at Land ; Befides this Prohibition be-
ino- pray'u alter Sentence, 'tis Difcretionary in the Court, to grant ic
ornot, 1 Vent. 343. Mich. 31 Car. 2. B. R. Anon.
And North i8. In a Prohibition to ftay a Suit in the Admiralty for Mariners
Ch. J (aid }y,-ia-es ; the Suggeltion was, that this fuit was founded on a Charter Par-
'''a^t'i'i'e'' 0' "^''^^ ^^ Land, and not fuper Altum Mare ; but the Prohiiitwn ■was de-
Opinionof nied^ becaufe Wages are not due to Maiiners for Labour done at Sea,
Hale Cli. J and the Charter and Contraft made on the Land, is only to afcertaia
in his Time ^hem. 3 Lev. 60. Trin. 34 Car. 2. C. B. Coke v. Cretehet. .
rence had between them at the D.-fire of the Court ot C. B. after the time that North was Ch. }n?-^
tice of this Court; And the next Day was a like Cafe, and like Rule made betv.xen Jiliddletou and
ScoUy.
Ihid. adds 1 9. Libel by two of the Mariners, viz. Purfer and Boatfivain againji fxo
:i Not.i that of the Owners of the Ship, for their Wages. It was luggeited for a Prohi-
it wasfsid bition, that the Contract was made at Land j And laid, that though Suits
by one of the j^.^^^ ^^^^ permitted fbrMarinersW^ages, yet that was when they alljoined
th3t"^tho''^ in the Suit to avoid the putting them to fue feverally, as they mult
tlie Suit be do at Law ; But here the Suit was by 2 only, and agaiuji 2, and there-
-Rgainit fome fore they Ought not to have the Privilege of Comm-on Seamen, efpeci-
otthe Ow- .^jjy jj,^(,g jj^g Contraft with the Owners is joint, and two only are fued
Coudl^ wiiereby they will be charged with the whole. But a Prohibition was
there is not not granted, for though the Plaintifis were Purfer and Boatfwain, &c.
to char--, yet they are Mariners llill, and may fue in the Admiralty tor VVages,
them with ,^^^ j.j^g proper Remedy is there ; but if they do not proceed according
but only"' to their Law, the Remedy lies here. 2 Vent. 181. TrLn. 2 VV. & M.
according in C. B. AUefon V. March.
to their
propoi-t'.onable Sh.ares.
rz Mod. 20. A Prohibition fliall not go to the Admiralty for Mariners Wages ^
5» <^py V- thouiih the Contraa was made at Land i and the Court held that for
S C oT a ^h'^ Convenience ot Seamen the Admiralty has always been allow'd to
Modcn to hold Plea thereof but with this Limitation that if there is any fpecial
diicharp;e a Agreement, by which the Mariners are to receive their Wages, in any
^^'^.l""'.* other manner than Ulual j Or if the Agreement be under .Seal, fo as to
^.^"•"^'l^^"""' be more than a parol Agreement, in fuch a Cafe a Prohibition ihall he
kule via.s granted, and fo it was granted in this Cale. i Salk. 31. pi. i. Patch,
difchirfred. ^ VV. & M. in B. R. Opie v. Child, & aP.
is there added, that this was faid to be ottierwife by the Court upon a Motion in B. R. Mich. .\
i^nnEbaCaVcbctween3S,U•ranD3Sarr, which wa-; moved by Mountague.
21, If
Court of Admiralty. 5 j [
tzi. II £5" 12. ?F. 3. cap. 7. Ji/ Piracy's, Felonies and RobbeHes, com-
r.'itCted upon the Sea^ or iu any Haven., River, Creek or Place, where the
jidimrals have Po'-jcer or JnrifdiffioiJ, may be inquired of\ heard and de-
termined, in any place at Sea, or upon Land, in any of his Majejtys Do-
minions, Torts or Faifories^ to be appointed by the Kings CommiJ^on under
the Great Seal, or the Seal of the Admiralty, direffed to any of the Admi-
ral s, Vke- Admirals, R.ear-Admirals, judges end Vice- Admiralty's or
Commanders of any of his Majejlyi's Ships cf War, and alfo to any fuch
Perfons as his Maje/ly (fjall appoint j which CominiJ/ioners jhall have Pow-
er, by Warrant under the Hand and Seal of them, or any of them, to com-
mit to Cuftody any Perfon againji 'juhom infoTination of Piracy, Robbery or
Felony upon the Sea, (hall be given upon Oath, and to call a Court of Ad-
miralty OH Shipboard, or upon Land^ as Occ a/ton Jhall require ; zvhich Court
ihall cnnjijl of 7 Perfons at leaji. 2. If fo many of the Perfoss cannot
convcnuutly be Affembkd, any of 3 of them (whereof the Prejldent or Chief
vf fome Englifo Fa-ifory, or tlx Governor^ Lieutenant Governor, or Member
of his Majcjifs Councils in any cf the Plantations, or Commander of one
cf his Majejifs Ships, is to be one) fhall have Power to call any other
jperfons on Shipboard, or upon the Land, to make up the Nutnber of 7. — -
3. Provided that no Pcrfens but known Merchants, Favors or Planters,
or Captains, Lieutenants, or Warrant -Officers, in any of his Majejiys Ships
of War, or Captains, Mafiers or Mates tf fame Englip Ship, fhall be able
cf Sitting and Voting m the faii Court.
22. It the Subjetfs in enmity with the Crown of England, be Sailors
m Board an Englip Pyrate with other Englip, and then a Robbery is
committed hy them, and afterwards are taken, it is Felony without con-
rroverfy in the Englilh, but not in the Strangers j For they cannot be
tried by Virtue ofthe CommiHion upon the Statute, tor it was no Pi-
racy in them, but the Depridation of an Enemy, for which they fliall
receive a Trial by Martial Law, and Judgment accordingly. Molloy
60. cap. 4. S. 10.
23. Ifonefteals Goods in one County, and brings them into another,
rhe Party may be indicled in either County; But if one commits Piracy
at Sea, and brings the Goods into a County in England, yet he cannot be
indiSted upon the Statute, for that the Original taking was not Felony,
whereot the Common Law took Cognisance. Molloy 70. cap. 4.
S. 30.
(B. ) Of what Thh/^s they may hold Plea,
K. Tif a span matie^ nn Agreement tnitlj anOtljet fuper ahum mare Hob Rep.
X to carry Goods to Parts beyond the Sea, atttl aftCt tW SgCCC- 79 p'- 104.
llt^nt 10 put in Writing, and fealed in a Place beyond the Seas upon and 212 pL
the Land, iijC COlUt Of aOUUCaltp 0)311 tWt |)0lll I3\m tlpOIt tm^2°c%^-
astcemeiit, for bj? tlje puttino; of tftisi into a Decrr, t&e agceement
IS tafeeii aiuni^ ann tljc liucissritctton cfjangco tljcrcbp, ^obattg Ee=
J)Ott0 287. C, 268. bCtUlCCn Palmer and Cope.
2. Clout it {janbccn otherwife, if tl)c annrenitcftt Ijau Wn put Hob 212:
in Writing without Sealing tljetCOf. C)Obair0 IRCpOttg* 287. ?V"'^^"s P
3 3ifaU Agreement beUiaOC upon Land to carry fom.e Goods be-^^^^^
yond Sea, ailB ftftCC the Goods by Negligence are'dumaged with Salcpi^jQ^'gc
Water upon the High Seas, pct t\)t COUtt Of ^timiraltp CanttOt IjOlO zi2. pi.
JSita of tm ; ifcc tijoug!) tl)c TSreaclj m^ upon tbc ®ea, vtt tWz ^I'l s. c.
dugbt to be aitotbcc m aifo to concur to imUz a ^uit, mum tlje ^^ ^•
Contract, ioijidj %nix 10 intire, mm tbereforc tije Common lato
iljuU prc'cail OOlJCn:'^ EcyortS2y7-.C. 268, hCfU^Cm Palmer and
4- J;f
^ 1 2 Court of Admiraity.
j/phu>;fo t!je ambatraUoc of tije liitng of gspain ij. Gr^wo ^ nnntlje
like betujcen -Oou Pedro am aiiot|)cc» ipii!> 9 Iiuc.
S.C cited j_ if iin Agreement £)g niiltIC in MaLiga, or otilier Place hevond the
Hob. zx-,. in Sea!., the Court cf acmiralti) fljatl not iym 55iea ti)Citof ' Doluirts
hibi'tion wat EepOuf^ 287. i\Zmm Auddy and Jennings <^i,S:i, 26y.
granted, be-
caufe ic appeared that the Agreement was made in the liland of iMalaga. ^S. C. cited Hob. 79, So
in pi. 104. Mich. 9 Jac. C. B. in Cafe Palraer v. Pope.
4inft. 194. 5. Cfjcp Cannot Odlti pea of * Wreck, for t!)(s 10 exprenp pra=
s'p"oas ^-5J'--tf^^ *^?? ^^J^ + S)tatiitc, 09icf). 15 Car, 15. E» tetuieen tl)c
it is net Loi'ti SDnnral aim i^udfon^ pec Curiam itfoliiei!, anQ a |3co!)ib!tt'
Material Oil ijrautco Uiijece it laasi ftippofcu to lie Fiotiam ; %m t!jc |ti5iaintiff
vhether the p^^j, 2:)efenOant ttjcrc fiirmifeD it \m i©rcch, ann tljercupoii a pi:a=
SfrTpL- {Jibitiongraitteri.
um & RcfluxGiTi Aqux, but whether it be upon any Water within any County.
* Nothing; fhall be fnid Wreck, but fuch Goods only as are calt or left upon the Land by the
Sea ; Qiise NauFragio ad terram apoelkiiitur. 5 Rep, io<5, a. It fhali not be tried in the Ad-
miral t'ori-t but before the King's Jurtices at the Common Law ; becaufe tlie Wieck is ever caft
upon the Land. 2 Lift, ibS.
t Viz. by ! 5 R. 5. cap. 5. See (E. a) pi. 6. S. P.
* Hob. 212. 6. 3;f a SubjeQ: of t!j0 JSl'nff Of Spain commits certain Crimes againft
P'-. ?^^9- i^Jg King, for V. hich ali his Goods are conHfcactd, and aftCt i;C comes
Tac'^S^C into England with his Goods, and fells them here tO 3 ^UUjClt Cf OllC
~-z Browni. "Mw^ ; tljg ^.tntafiatiar cf tlje ISino; of Spain cannot ftic in tfae
29 Sir John rjunuraStp Couit foe t!)E ©ooUg agamft a ^ubiect of ouu tUnn; i
S^c"tl\^''' for tijOUlSa tljC vi^OGOS U3CrE COnflfCateQ, })et nOOl tlje property Ihall
the Goods not be queltioned ;'Uc_at Common Law. 0Ol)art'0_£\CpOrt0 2S6 * Don
■Here for-
feited on
the High
Sea and tho' Sir lohn Watts, who was the Vendee was not made a Party to tlie Suit, yet in as much as
he bou2;htihem in Market Overt, and that by this Suit the Property will be drawn in Queftion in the
Adminiltv, where it was profecutcd in the Kameof tlie Spaniih Ambaiiador, a Prohibition wa.s grant-
gj ^S. C cited Hob. 79. pi. 104. that a Prohibition v. a> granted ; Fur the Property of Goods
here at Land muft be tried by Common Law, however the Property is guided. Sec C£ a) pi. 9.
S.C.
Lat. iSS. 7. Creamer %\ZXZmi).'foakleyJ:)t^:\\\imU -C^C Ci'tfe tliS*) CntCrCH,
pal brought ' S. Special Aftions bCOULXW upon tijC StatUtesS Of tlje 13 R. 2. cap.
tor breaking 15. &. 2 H. 4. c.ip. 4. for prolecuting of a Suit in the CClUt Of Admi-
a Ship and ' ralcv, where tliey had no jurifdiclion tO IjOlB PlCa i ant! If OnCU)!)0
carrying a- pjoiecutes there as Attorney for ailOt'OCr, (aS t!je Cafe U3il0) fljal! be
Sails, the an 2)iTen5er agiiinff tije faiQ @)tatutc0 -, ann where the Statutes give
Defendant an Action by way of Writ, anO an Aftion is brought IjerC (\X% X\)Z
jnftified by ^af£ ijjjjg) by way of Bill, if tl)i0 ^t goon or not, [t3a0 tljcCluciTionJ
out'o?"he 9- iJpon ti)i0 miction broug|}t, aim fpcctal mimx founo, t'tuo
Admiralty POIHtS 'mit HiaCE.
toarreifthe 10 .jfirft pouit upou t!j£ lurtftiction of tijc ^itnniraltp tfjouot)
Ship, and {Jjj Contr,.ct bC bcvcnd Sea, becaUfe \K 10 to be performed in London,
Jr'ifrfr" tfje ifrdgbt bcmo; "to be paiumLonoon, if tlj€ admiral Ijcre ongljt
Force ' to \)m jiurifoiaion f
whereof he 1 1. ^CCOllO, 3lf ^^^ that profecutcs only as an Attorney there, RjaU
.ntred into ^g puiufljco iDitijin tljc 0tatutc0 for t!)£0 ©ifcncc ^
the ilup
3nd carried away the Sails, Qua; eft eadcm TranfgrelTio. It was objcftcd that the brehking the Ship
is not anfwere'i, and that the Warrant docs not give him anyAuthority to carry anyThi'ig away. But
the Court held the Plea gotd erough, Ixcaulc the cntilngimo the Mii;) is a breaking of it in Law,
as aClaurutn Fregit &c. and lik«wi'e lie may carry away the Sails, that beitig the Manner of their Pro-
ceeding.^ and jyrounded upon Keaibn, becaufe he cannot in (alvo ciiltodire un'efs the S.iils are carried
away. Godb 3SS. to 590. pi 474 S C argued fed Adjornatur, and by the Poi'its there argued
it (ecms that the following Pleas of S, 9, 10. and 11. bclo^ig to this Cale of pi. 7 and that thcj-
fliould have lieen all join'd. ; Lev 552. Pafch 5 W & M. in C. B. Sands, qui tarn &c v.
Child, Franklin and Leach, who liad fued in tlie Adtniralty as Age^irs in the E.ift India CoRip;inv to
( ' \\ if
Court of Admiralty. 513
ttjy the Plaintiff'. Sliip from seeing to the Eail Indies, and paid aU the Fees of the Profecution, and
thereupon the Ship was llaid. After Judgment toi- the Plaiotitf in C. B. Ertot- «as bruuc^ln in B. R.
where all th.e Wattevs argued in C. B weir argued again I'^veral Times in ii. K. And lit, That all
this being done on the Behalf of the Company, the Action oui^ln to have been brought arainlt the
Company, and not awainft the Defendants their Servants. But this was overruled by both Courts}
For id, this is not like the Cafe in ooiib. 5S5. where one lued in the Admiralty for another by War-
rant of Attorney of his Agent ; For here it is not found that they have any Warrant of At-
torney, and they may do it cf their own Heads. But 2dly, if it Was by Warrant of Attor-
ney of the Company, yet this will not excufe the Matter^ bccMuie a VS'arrant nt Attorney, thougit
cf the King himiilf will not excufe the doing an illegal Act ; For though the Commanders are Tref^
pailor.s. To are the PerfansaJfo, who do the Ati. 4 Mod. 176. to 1S2. S. C.
12. 3if il Manof Friteland fues an Engliihman in Frizeland bCfOCC tfjCO-^^-'^
©O^JCniOC tijCre, and there recovers againit him a certain Sum ; UpOH, ^^^^Jlf' j
XUijidj tiJC Englilliman not having lufficieiit to facisfy It, comes into vTccited
England, Upoil iMljICtJ the Governor fends his Letters millive into Eng-Lev. 207
land, omnes Magiltratus infra Regnum Angliffi rogans, to make £xe- Ti-in 2 1 Car
cution Of tljt fniO JUtlffmcnt. '^YjZ judge of the Admiralty may^^J^-^*,- "J
execute this fudgment by Imprifonment of the Party, ailB l)C fljflU nOt,-^do° G^'--
Ijc DcliDcr^^D "ti}? tljc Cammon lata i iottW i^ byti^eLawof Na-gory;'v,hicr»
lions, ti/ilt the JulUce ot one Nation Ihall be aiding to the Juilice ofwas aG«-
another jQatioii, iiiitJ fot oiiE to txtmt tDc JiUUgment of tl)C OtOCf i'""" ""''
anntljelauiofCiuTiaiiti tahEjs notice of tljts laui, anotgejIirusC/TJinSpab
flftljcarmiiraltp 10 "tIjc proper: Q^agiftratc foe tijifi purpafe, foi ye w-rfe j/..- '
cinlp Ijatlj tlje €recution of tl}e Ci^il law U3iti)in tOc Eeahii. l3afct)»^/""'^«" '"^
5 aaCB.E* Wur'sCafi^ rcfoliJsD upon an ipabeasi Coi-pujs, ano"^'^ "';'''
ther Place ;
On a Libel in the A<3niiralty there it was fuggeflcd for a Prohibition, that the Contraft was made
upon the L^md, to which it was anfwered, that though it was fo made, yet Kpcn the Suit in the Jdmi-
Viilty of Spahi Senter.ce luai ghen, aTiJ the Suit here is only to haze Execution of the Sentence here,
and in (uch Cafe no Prohibition Irs; and to this the Court inclined; Bui then it was faid, that
the Sentence in the principal Cafe here in Roll was not peremptory and final to pay any Thing for Non-
performance, but ivaj Inierhcuiory only, that he ihM receive and bring the Goods according to the
Agreement, but here the Suit is for Damages for not receiving and carrying, for which Action on
the Cafe lies ; Whereupon it was ruled, that the Plaintift declare upon the Suggeftion, fo that upon
the Pleading the Matter may come judicially in Queftion Sid. 41S pi. 1. S. C. that this was
en a Sentence in the Jlcade, which is the Admiralty at Malaga, and a Prohibition was granted for the
fame Reafon, and alfo, for that the Alcade is not as Admiralty here ; And on another Motion after-
■wards for a Confultation, the fame was not granted for the fame Reafons. Vent. ;i. S. C. and
becaufe the Sentence was not complcat, but only an Award that the Merchandiies ihould be re-
ceived ; A Prohibition was granted.
Ufm a 'JiiAement given in tlx Court of Admiralty they way ftte out an Execttthn thtretf in foreign Partly
3'. in France &c. Per Dr. Steward, who at the Defire of tlie Court of C. B. delivered his Opinion
tiierc. Godb. 260. j)l. 5 59. Mich. 10 Jac. in the Cafe of Greenway v. Barker.
13. If a Merchant of Holland brings Trefpafs apiltft 3i. %■. for a
Ship laden tt)itlj^Cl"Cl)aUl!i?ClEi, & quia non liquet quje bona fuerunt in
Navi prjedi£ta, quando de partibus Hollandias verfus Regnum iftud
iter fuum cepit, Mandatum elt Comici Hoilandife, quod per probos &
Legales Homines & Mercatores Terrs fuse, ubi prsedi^us querens fe
in Mari pofuit inquirat diligenter quaeMercimonia carrucata fuerunt $£♦
& Inquifitionem aperte & fideliter ta£iam remandec Domino Regi. §£»
22 CD* I. liber padiamentorum 65. !]♦
14. Libel before the Mayor of Hull as Admiral there againji an Ad-
mintjirator for 5 1, jor Smith'' s Work dove for the Intefiate^ tn incndini a.
Ship for him, and faid, that he arrefted the Ship within tlie Admiral of
England's Jurifdiftion. The Defendant pleaded fully admifiij^red. A Prohi-
biuon was pray'd, lit. Becaufe it is not lliewn that the Ship was arrelted
within the Jurifdiftion of theMayorof Hull, adly, Becaufe Adlion on the
Cafe lies atCo?nmon Laiv for this Debt, sdly, Becaufe the Plea of ftilly
adminifired ts triable only at Covimon Law ; and for theie Reafons a Pro-
hibition was granted. .Lstt. Rep. 166, Mich. 4 Car. C. B, AlLton's
Cafe.
6 P ij-. On.
5 1 4 Court of Admiralty.
Keb. 6S4. 15. Oa a Mocion for a Prohibition to a Suit in the Admiralty for
p'- S7 A'lariners iVages, ic was agreed, tiiac ii a iShiv dues not return bnt pcrilhcs
ri'^T" by Tenipeftj Enemies, Fire &c. the Mariners lofe their Wages, lor
feems'to'^be ocherwile they would not endeavour nor hazard their Lives to prefcrve
S. C. and the Ship. Sid. 179. pi. 14. Hill. 15 & 16 Car. 2. B. R, Anon.
becaul'e it
•was founded on a Specialty made on Land, and the Cuftom of Mcicliants is, that unleH. the Ship corns?
home no VN'.igcs is payable to them, and confequcmly not to theii- Executors or Adm'.niltracor':, ami
this Plea v\as difallow'd in the Admitalty, and fo it is lug'.'clkd, the Court granted a Prohibition not-
withftanding Sentence and Appeal, ic being contrary toa Verdidt at Lav/ and not had on due l-'roofs,
but contrary to the Plea pleaded.
A Prohibition fliallnot goto the Admiralty to ftay a Suit there for .U.miiei's U'apjs, though the
Cotitraft were upon the Land. Firft, it is more Convenient for them to lue there, becaufe tlicy may
all join. Again according to their Law, if the Ship perifh by the Mariner's Default, they are to
lofe their Vv'^ages; therefore in this fpecial Cafe the Suit fhall be fuffcrcd to proceed there. Vent.
146. Trin. 23. Car. 2. B. R. Anon.
16. A part Owner of a Ship fiied the other Owners for his Share of the
Freight of the Ship which had finillied a Voyage j but ^^^^r other Owners
did Jet her out, and the Plantiff would not joi?i with the reft on letting her
out, or in the Charge thereof ^ whereupon the other Owners complained
thereupon in the Admiralty, and by Order there the other Owners gave
Security that if the Ship perilhed in the Voyage, to make good to the
Plaintilf his Share ; and if Ihe returned to reltore his Share or to that
EHecl i And in fiich Cafe by the Law-Marine and Courfe of the Admi-
ralty, the Ptainttjf was to have no Share of the Freight. It was reterred
to Sir Lionel Jenkins to certify the Courfe of the Admiralty who certi-
fied accordingly ; And that it was {o in all Places, and otherwife there
could be no Navigation j whereupon now the i 3 th of July the Plaintilf
was difmill. 2 Chan. Cafes. 36 Trin. 32 Car. z. Anon.
Show. i;. 17. The major Part of the part Owners of a Ship agreed to fend her a
S. C. but Voyage but the otheris difagreeing, the major Part according to the com-
^ot a ear "^°" Ufage fuggcft this in the Admiralty Court ^ and then (as ufual) they
Comb, order eertaiu Perfonsto appratfe the Shipy and then the major Part enter into
io9 Knight^ Recognizance jointly and j ever ally to the others in a Sum proportionable to
V. Perry their Shares againfl all Adventures, alterwards B. one of the difagreeing
•^ d^ Pi P^r'^n^rs took out a Sci. la. againlt K. upon the Recognizance, and Sen-
hibition tence was had againlt him in the Admiralty' Court. K. mov'd for a
granted. Prohibition, for that the Admiralty had no Jurifdiftion in this Cafe,
and lo all was done Coram non Judice i And the whole Court held that
the Admiralty had no Coniifance of this Adatter, and thereupon a Pro-
hibition was granted. Carth. 26. Pafch. i \V. & M. in B. R. Knight
V. Berry.
CAnh.iC>6. 18. In Cafe oi Mariners ^^'^^^5 the yfi^/^/z/ra/Zj has Jurifdiction. They
S. C and 3 ^jj^y |j// j^g ^fyjp ^fj^ (fyg j^;/j ^„^ Tackle are part of it, and remain pare
granted on" when they are on Shore, and they may proceed againrt thcmi But if
•amending Property I^e pleaded they mufi and will allow it, if it be pleaded otherwife a
the Sug- Prohibition will be granted j Per Holt Ch. J. v/hereupon the Suggeltion
%^-"^ ''y was altered, and an offer alleged oi a Plea claiming Property, and that
Refuilfof ^^^ ^^^^ w^^ refufed, and then a Prohibition was granted. Show. 177,
the Plea. — 179. Mich. 2 W. & M. Edmondfon v. Walker.
Show. I'jy.
adds a Note, ttiat their Courfe is not to receive a Plea without bringing the Sails into Court, viz.
into the Cultody of the Officer ; and then they will admit a Claim and Contell of Pro-
perty.
12 Mod. 19. The Mate fued the Mafler for his Wages in the Admiralty, and
44.0 Grant j\,/[j., Raymond moved for a Prohibition, becauje the Mailer himfelf
S r^'pcr could not fue there, and the Mate was not in Nature of a Mariner, but
Cur' it might was to fucceed the Matter ii he died in the Voyage. Denied per Hole
to eointhc Ch. J. for the Mailer contract? with the Owners, but the .M.i-ts contraft.s
V.ilc of a w'llti
Court of Admiralty. ^15
with the Maltcr ibr his Wages as the reft ot the Mariners do. i Salic Matter, but
rj3. pi. 5. Trin, iz W. 3. B. R. Baiiy v. Grant. otherwiCc in
-^ -^ ^ ■' Cafe ot Ma-
riners, and the Mate being a Mean between both it was doubted, but the Coui-t inclined to confider
him as a M^riii-er, becaufe he is hired by the Maftei' as other Mariners are ; but the Mafter is put in
the Owners. And after upon Conference with C. B. where a like Cafe was under Coniideration, it was
i-uled thit no Proliibition fhould go. Lord Rayra. Rep. 631. S. C. ruled accord-
ingly.
20. By the Courfe of the Admiralty they decree, that where there
are feveral Owners of a Ship, and fo?/2e are for freighting and fame agatnji'
is, that the Majority paJl prevail^ gi'^'i'-g tte others Cattrion for their re-
fpe^ive Parts againll aJi Rifques, which was done in the prcient Cafe,
and the Ship being ioll, they iibeJl'd for the Caution and had a Sen-
tence 3 And upon a Motion for a Prohibition, fuggefting, that this Cau-
tion was given at Land, and that ail Matters of Property are to be or-
der'd by the Common Law j The Court leem'd ftrong that they had
iuch a Power, and confequently have Jurifdifilion over the Caution as
Incident, yet it being a Matter -of Confcquence and never yet de-
cermin'd they granted a Prohibition, and diret'ted them to declare upon
iheir Suggeltion. 6 Mod 162. Pafch. 3 Ann. B. R, More v. Row-
both am.
(B„ 2) Court of Admiralty. Of what they may
hold Plea in refped of the Things. Incidents and
Con(equents.
E. /^NE Butler, and others, upon the Sea near the Coajf of Suffolk
\^ robb'd the Queen's Sul/Jeils, and brought the Goods into Norfolk
where they were apprehended. At the Norfolk Alfizes NVray Ch. J.
and Periam J. were ot Opinion, that becaufe the Common Law did not
take Notice of the original Offence, (viz..) of the Piracy, therefore the
bringing thofe Goods to the Land which they had taken by Piracy on
the Sea, did not make the fame punilhable at the Common Law, and
thereupon they were committed to the Vice-Adrairal of thofe Counties,
;3 Rep. 53. cites 28 Eiiz. Butler's Cafe.
2. One who had Letters of Marque Szc. in the Dutch War, took an^^'^- 3^7-
Oft'jnder at Sea injiead of a Dutch Ship^ and brought her into Port, andP'- 5- T"""-
iibell'd againfl her to have her condemned as a Priz.e j but fi»tenied^^^^^^' ^ ^
there that jhe was not a Prizes whereupon the Oftendtr libeWd againflhm no't ex-
tbe Captor for Damages for the Hart the Ship received tn the Port. AaS^'y S. P.
Prohibition was moved lor, becaufe the Suit was for Damages done in;; — ^ ^'^^^■
the Port, lor which A6lion lies at Common Law ; but it was denied, ^"^^^2^^
becaufe the original Canfe being a taking at Sea, and the carrying into they. Meats,
Port in order to have her condemn'd as Prize but a Conlequent there- S.C and
of, 'not only the Original, hut the Confequents alfo fhall be trifd there, i ^^"^' 5*5^^
Lev. 243. Trin. 20 Car. 2. B. R. Turner v. Neale. " ■ & s P aS
per Cur.
the Rule for Piiehibition was difchnrged.
3. Goods w-ere taken by Pirates as the LiM fuppofed, and condemu'd in'^e^^- 17?.
Scotland i but it appeared that they were Contraband Goods, going to the p^f 7 "f.
Dutch in the War between the Dutch and Englilh, and taken by a|"c wl
Scotch Man of War. The Goods were afterwards brought into England m Aftion
and fold, and a Suit was for them tn the Adtmrahy Here after the Sale, upon the
$•16
Court ot Admiralty
i. cap. 5. 1'he Court agreed that this is not within the Statute [13 R. 2. or H. 4.]
and 2 H 4. ^^^ cheoriginiil Caufe being ot" Piracy belonged to the Admir3lt\ ^
fuing the"*^ and the Condemnation in the Admiralty of Scotland alters not the Calc
Plaintiff in as to the Jurifditiion of the Court, but was pleadable in the Admiralcv
the Admi- in England. But neither this nor the Sale at Land will alter the Ju*
'h'^Sh^'^M ^"''<i'^*^'°"> the original Matter being Piracy, which all comes in Que-
pretendFns ' ^^^°^ iig^in, and the Sals at Land is a Alatter confeqiienttal on the Piracy^
fhe was and defending on it. 2 Lev. 2$. Trin. 23 Car. 2. B. R. Ridley v.
taken Piia- Eggles field,
tice, where-
as the Plaintiff bought her Infra Corpus Comitatus. The Defendants pleaded Not Guiky to the Ac-
tion, and upon the Trial would not examine any Witncffes, but praved the Opinion of the Court,
Vfho faid there was good Caufe upon the Libel, (which now they mult tnke to be true) in the firil
Inftance tor the Admiralty to proceed.- a Saund. 259,260. S C?. held, that the Defendants
were not within the Penalty or Meaning of tlie faid Statutes; and denied. Hob. OS. and 113. Bingley's
Cafe. 2 Keb. S28. pi. 48. Radley V. Whitwell, S. C. 8c S. P. agreed.
4. Libel was for a Ship taken hy Pirates and carried to Tunis, and there
[bid. A Prohibition was prayed, for that the Ship was fold at Land., and lo
that Court liad no Jurifdiftion. Per Cur. in regard it was taken by
Pirates it is originally within the Admiral's Jurildiftion, and fo con-
tinues, notwithilanamg the Sale afterwards at Land ; otherwife where
a Ship is taken by Enemies., for that alters the Property. But becaule
no Mention was made in the Libel that the Ship was taken faper aituui
Mare^ and though there was very much contained therein to imply it,
yet the Court held that to be abfolutely necelfary to fupport their fu-
rifdiftion. i Vent. 308. Pafch. 29 Car. 2, B. R. Ridley v. Eggies-
field.
^^ s"c & ^' ^^'^^^^'^^^ ^^^y ^^ve not original JurifdiBion of the Caufe, though
5 P^ per' there arifes a ^ufiion in it that ts proper J or their Conufance, yet that al-
HoItCh. J. ters not, nor takes away the Power ot the Common Law j But if they
have Jurifdiftion of the Original, though a Queltion arifes proper for
the Common Law, yet they Ihall try that j and after Sentence, it it ap-
pear that the Matter contained in the Libel is triable at Law, we will
grants a Prohibition i Per Holt Ch. J. Comb. 462, 463. Mich. 9 W,
3. B. R. in Cafe of Tremoulin V. Sands.
6 Mod. 253. 6. VV. built a Ship and launch'd her, and after upon a Treaty with B.
S. C. men- j-^y. the Ship, but before any Bill of Sale executed, B. hires O. and other Sea-
a Contract 'i>ien to launch and ng the Ship, and to go a Voyage propofcd with him, and
by the fends them aboard, aind W. permitted them to come aboard, and there they
Builder continued i^ Months Jilting the Ship oat to Sea, but fome Ditterence ari-
with the fing between W. and B. the Treaty broke off , and the Seamen were dif-
a ProWbi-" ""i^<^^j ^'^^ libell'd againtl the Ship ibr their V\'ages. The Detendant
:ion v/as de- fuggelted for a Prohibition, thrt the Work was done Infra Corpus
nied. The Com' &c. and that the Ship did not proceed in her Voyage, but the
Court faid Prohibition was denied i for W". the Builder, by permitting the Sea-
woiild have ''"^" ^'^ '^^ P""^ '^'^ board, confents to the Charge upon the Ship, and by
been othtt- liis own A61; makes it liable to the Wages j and thcfe is no Reafon to
■wife if the conlider the Builder ; lor when he trults the Contraftor fo far as to let
Remner of j.|^g Seamen go aboard, there is no Reafon to help him. 2 Ld. Raym.
\ld been" ^'^P- ^°44- Mich. 3 Ann. Wells v. Ofman.
only to do
ths fVirk in the H.irbeur.
(C)
Court of Admiralty. 5 1 7
(C ) Admiral Law.
, T fr tfeOwner of a Ship viaualsit, and furnjftes it to Sea ^i J betters; The ^fe
lofimfa anB tlje Malkr and Mariners, ^IjCn » atCatow'nerof
X ot i^^epriui, H'iy ly^ P . , ^- ^ ]^jj^„ without the NoncCaShipin
e€a,com.mt Piracy upon a ^^ '^"^ °^ "^ qJ^^ ^,,,,11 lofe his Ship Dgthe Time
or A Tent ot the Owner, PCt UJ? •^'J^'* .V^^f^ YJIl r;>nf-frp f-hi^i-rrif ^rill of Queen
tlnSiaS^-M^^^^^ +^^^"' ^^aaC, 05. E. 21 rosea, with
JS 'ijSp cSiii m mzt m^t of parliament Le.e.ct
,,,, a,e Goods of the Spaniards the Qpeen'. Enen.«^ ^^I^^J^^^ill^t^lS ^SX^SIT
rcihons, took a FjenchShip and }''''^°°%'"^';^'^JZZ^ Goods? It was faid by Popham
The Point was, if the Owner cf the Ship ^^^f^^^ unlawful Ad, there the Matter (hall a^fwer
Ch 1 tlu.t where the M.fter lends his Servant lo do an "7^;^;"' ^^;' '^f j,^^ ^^^jn^ of me Goods
?orthi Servant, not where hefends his evvanttodoa^^^^
of the Q_uecn's Enen^ies ; there, ahhough hej^^" ^ ^J^ f/^^, l,, ;,, ,hat d.e Mafter fltall an-
Matter iliall nor anfwer fov the Good.. Q-^-^^^^J '°' '"'ji" ^ Mu!-ar.
fwer in all publick Cafes. Mo. r/' P^' '°7^> ' J^- W^Uham v. i>iui^
. ^ftte Mafter of the Ship pawns the Ship fuper akum ^are fob.,/;',.
2 S\\. m ^^^^^^^J ?'. r Tacklincr and Viauals, without the Affent j" ^.
(fcilicec Hipothecando) to 1 acklin < , ^ ^ ^ jLalD i Cafefs. C.
of the Owner, |)£t tljlS fijaU Wnll tDE -^^ nnrVaV OUrtllt tO tSUC — ^Mo.
^^^^'^^^^f.'^^vf^nnmk^n^^^^ Cafe i biit it UJa^tljece ,v:UdS-
SS: tTm^VS^&^^^^^^ ^m^^^ ^3aD patnneo it for eordin,. ^^
IjljaOUJUDCbt^* ^ Hypotheca-
the Ship, as Ropes, Sails &c^ yet u fhould ""^^"f, '\ .^ -..^Ity they may attach not only the Ship,
1 adi? Newdigate J. faid, that by the ^^" ^/"^j^^^'^^A ,TdoTo in^the principal C.fe would be pe-
L: rh? I'erlon alfo, as^it had ^e- 'ate y agve d ^u J^-^^^^^ ^J „,.k^ the Owner liable to
or demur —-See Tit. Hypothecatioii. \
'llf.nTnf-nt Umti Mailer of a Ship at St. Chriftopher's be- MoHoy lib.
3. 31f an Infant, OTS a ' undertakes to carry certain Goods^- P^-^^^
y end Sea, by Contraa with f "J"-' " , to deliver them, butdoess-d
Ln. Sc Chrillopher's ^° E"§^^^"^J,£V to the Agreement, but waftes''
not alter wards deliver thm f^^° J^^ ^^ j^ ^o|,^ i„ tl)e COUtt Of
and confumes them, Ij/. "^^? '"^^S %\. S ©Uit tS bUt Ut BatUCe
araiiraltp, tljousye «c a^i |ii|im jLato.
iilc?n"&.%T%«H^^^^^ .1., pet curiam, a
4. If.a qSan commus P^^- >^i'^P";\jf ^oods into England, titi^So.E.
UjB 10 m League ^^!f^,"^;/^"^,,f ticmglj Ul' tlje ^mtXdi LatB ti}I06S5. Pl. -.
5 1 8 Court of Admiralty.
mii'alty weli lies; for n I en the Goods are tornoL-fly taken on tlic Sea by Piracy^ it gains not any
Property in them agaii:rt tlx Owner; and being fold on the L.ind, unlcis in .< Market over-, does no:
alter the Property agiinll the (Jwner ; and the Owner finding them in his Poileffion is fufficient ; For
th, ugh the Jilmiralt) h.xs >':< .Authority to medJle li-ith Ihings upon the LnrJ, yet zuhen the original Caufe ari-
fes on the Sea, anH other Matters happen on the Land defemiing on the oris,inal Caufe, thofe Matters, though
done upon the Land, pall he tried in the Admiral' s Court ; and this .Sale, though made in a Market overt,
being void becaufe it was made to the (Jwner of the Ship, and Party to the Charge thereoK, and fo ro
be intended Party ro the Tort, a Consultation was awarded. z Saund. ;6o. Mieh. zt Car 2 , in
CJafe of Kadlty v Fgglesfield, the Court denied the Cafe of Bingley in Hob. 78. and laid, that where
a Spoliation upon the Sea is the original Foundation of the Suit in the Admiralty, the Admiralty fhal!
pro.'ced to try and determine it notwithftanding any other claims Property by Sale made u [ion the
Land after hich Spoliation fuppofed to be made. Vent. 508. Pafch. 29 Car. 2. B R. Anon. S. P.
of a Ship taken by Pirates and fold at Tunis held accordingly, hut that otherwile it is where a
Ship is taken * by Enemies, for that alters the Property, and that fo was the Opinion of Ld H.^le in
Epglefield's Cafe, contrary to Ld. Hobart in the Spanilh Amball;;dor's Cafe, '/S and cited Cro. £ 6X5.
But afterwards it was obferved upon the Libel, that no Mention was made that the Ship was taken Su-
per ahum Mare, and though very much was contained therein to imply it, yet the Court held it to be
abfolutely ncL'efl.iry to fupport their Turifdiftion.
♦ 2 Brov.nl 1 1 Mich 8 Jac. B. R Wefton's Cafe, S. P. and a Prohibition granted, and cites - F.
4. 14.' Fit7.h. Bane, pi. 90. cites S. C. that in Ibch Cafe the Captor fliall have the Ship, ar;d
not the King, nor the Admiral, nor the Party whofe Property it was before, becaufe he came rot
frefhly the fame Day that it was taken from him, before Sun let, and claimed it.
$, The Civil Law is, that if two Ships meet at Sea together, although
thty do not go forth as Co/forts, and the one Ship in the Prefence of the other
takes a Ship with Goods in it, the other Ship jhall have the Moiety^ or
one half ot' the Ship and Goods taken ; for although it did not t;ike the
Ship, yet the Prefence thereof there at the Time of the taking was a
Terror to the other Ship which was taken, fine quo, the other Ship
could not be fo ealily taken. 2 Le. 1S2. pi. 224. 32 £liz. C. B. So-
mers v. Buckley.
6. The King (f England being in Amity with the King of Spain ^ and
the Hollanders &c. and there being an Enmity between thofe cf Hol-
land the Spaniards^ one of Holland, upon the High Stas, in Aperto Prelio
took the Goods of a Siibjeff of Spain, and brought them into England infra Corpus
Couiitatus, and for that the Goods were in Solo Amici, the Spaniard li-
beird for them in the Admiral Court ; But it was rcfolved per tot. Cur. B.
R. upon Conlerence that theSpaniard had loft the Property of the Goods
ioY ever, and had no Remedy for them in England ; for he that will fuc
for Goods robbed at Sea, ought by Law to prove two Things, ift.
That the Sovereign of the Plaintiff was, at the Time of the Taking,
in Amity with the King of England. 2dly, That he that took the
Goods was, at the Time of the Taking, in Amity with the Sovereign
of him whofe Goods were taken i for every Enemy may lawfully take
of another, and therefore the Spaniard could not be guilty of any De-
privation or Robbery, but of a lawful Takings and it was. relblved
further, that the Goods fo taken being within this Realm infra Corpus
Comicatus in folo Amici, if the Spaniard fue for them Civilitcr in the
Court of Admiralty, that a Prohibition Ihould be granted, and that it
iliould be determined by the Laws and Statutes of England, and not by
the Civil Law. 4 Inft. 154. cap. 26. cites Trin. 2 Jac.
7. An Englilh Ship is taken by an Enemy, and is afterwards retaken a-
gain by an Englt^.man ; the Owner of the Ship cannot fue for it in theAd-
miralty, becaule the Ship was gained by Battle of an Enemy, and nei-
rher the King, nor the Admiral, nor the Parties to whom the Property
was before Ihall have that. 2 Brownl. 11. Mich, 8 Jac. W'ellon's
Cafe.
8. \i any Injury, Robbery, Felony^ or ether Offence be done upon the
High Seas, Lex Terrje extends not to it, therefore the Admiral has Co-
nufance thereof, and may proceed, according to the Marine Law, by
Imprifonment of the Body, and other Proceedings, as have been aJlow'd
by the Laws of the Realm. 2 Inft. 51.
9- li'
Court of Admiralty. 5 1 9
9. I fa Ship be iak.cn by Letters of Mart, ami be mt brought Infra Pra;-
fidia of that King by whofe Sabjeffs it was taken., it is no lawful Prize.,
and the Property not altered, and theretbre a Sale made thereof is
void; Agreed per Cur. abfente Reeve J. Mar. no, in. pi. i88.
Trin. 17 Car.
I o. 'Though a Ship coming from a foreign Kingdom be in a Cafe of in-
evitable Danger^ and the Tackle damaged and broken, and no Probabi-
lity of faviug any Part of it, partly in relpcfl of the Tempell, and part-
ly in refpeft of the Barbarity of the Inhabitants, who carry away every
thing cait upon the Shore, yet in fuch Cafe the Mafier without the Own-
ers cannot fell the Ship ; Per Ld. Ch. B. Hale, after feveral Arguments
before him. Sid. 453, pi, 20. Pafch. 22 Car. 2. Tremenhere v. Tre-
lilian.
11. If a Mariner or Ship-Carpenter runs away he lofes his JVages due;
Per Tvvifden, which Hale granted. Mod. 93. pi. 2. Pafch. 24 Car.
2. B. R. Anon.
12. Sentences in Courts of Admiralty ought to bind Generally accord- Ravm. 473.
ing to Jus Gentium; per Cur. Skin. _J9. Mich. 34 Car. 2. B. R. ^' ^•J'.^''^,
in C&k of Hughes and Cornelius. ^'^^"Vshou-.
2^2. pi. ZiS.
' S. C. and per Cur. Ir is but agreeable with the Law of N.uions, that we fhould take Notice and
approve of the Laws of the Countrie> in fuch Particulars; and if you are ag(;rieved you muft apply to
the King and Council as being a Matter of Government, and he will recommend it to his Litge
AmbalTador if he fees Caufe ; and if not remedied, he may grant Lcttcr.s of Mart and Reprisal; and
this Cafe was refolv'd by all the Court upon folemn Debate. This being of an Englifh Ship tai<en
by the F"rench, and as a Dutch Ship in Time of War between the Dutch and French; and Judg-
ment for the Defendants, who had had a Sentence for the Ship and Goods in the Admiralty Court in
France. S. C. cited Show. 143.
13. Piracy committed by the Subje^s of the French King., or of any other
Prince or Republick, in amity with the Crown of England upon the
Eritifh Seas., are Punifliable properly by the Crown of England only,
for the Kings of the lame have iltud Regimen & Dominium exclufiVe
of the King's of France, and all other Princes and States whatfoever.
Aloiloy 60, 61. cap 4. S, 11.
14. Prize or No Prize, is a Matter not triable at Common Law, but
altogether appropriated to the Jurifdiftion of the Admiralty. Comb.
474. Hill. 10 \V^ 3. In the Exchequer. Brown v. Franklyn.
15. The Defendant was in Execution in the Prifon of the Admiral-
ty, upon a Sentence given againfl him in that Court, and an Hab.
Corp. ilTued to remove him from thence, to anfwer an Aftion in B.
R. and upon the Return it was mov'd, that he might be committed
to the Marfhal. For he was not chargeable in the Admiralty Prifon,
and there ought not to be a Failure of Jultice. But Hole Ch. J. faid,
that this was newi that tho' the Admiralty Proceedings were by the
Civil Law, yet they were fupported by the Cuffom of the Realm,
and this Court muft not elude their Procefs; belides, there was no
Aftion depending in B. R. And the Defendant was remanded, i Salk,
351. Trin. i Ann. B. R, Keache's Cafe.
(D) How they may proceed there.
I. T JF a Libel bcui tftC Court of 35miraItP touching Goods fup- Codb. 193.
X pofed to come to the Defendant by Depredation, attU tt)2 De- pi. 275- -"i
fendant obliges himfelf, his Goods and his Heirs, to anfwer the A6li- i^''^- ^^°- P'-
on, anti after tljC Defendant does not obey the Court, tljCCE they may |^ j^g c'
take
520 Court of Admiralty.
B.Grcenuay rake his Body; fOt £l}Cr)) COtllt l)M) !)!S kUxal COttrfS Cf \^tO
S C'ariel ^^^^^^^^^ *^^^^ ^^-^^^ ^^ f'-)^ *^^^5^ ^^i^^^' ^'"-'^J* ^^ ^IHC* 03. CU-
and Civilians i'StiltUr*
ar the Rc-
queft oFtlie Court delivered their Opinions, and Coke C!i. T. ap;rced that the Admira'tv mif^ht take
the Body in Execution, vi-hich are for the moft part tlie Martcrs of tlie Ships and jMerchiints, who
are tranfeuntes, and therefore if they fliould not airelt their Bodies, they might perhaps mnnv
Timcs lo'e the Benefit of their Suits; but he (aid, that they could noi in aiy Cafe take forth Exccurt-
on upon Lands; But the principal Cafe was adjourn'd. Br. Admiral &c. pi. i cites 19 H. 6.
*;._- See S. C. fup. at (A. 2)
The Court 2. So lit t!)e fai'tl C^fC, if tlje Defendant found Fide-juffbres, auH
°^^o^eed!' aftCC Sentence pafs'd for the Plaintitf, tljE Bodies of the Fide-jufTores,
j^„l,y,j,g" by the Law of the Admiralty, mav betaken in Execution; jr Ot tljlS
Civil Law tS t!)C II Cage tijere* Mil lo 3iaC. fcettUSCn Legiere and Greenzvay
is no Court piamttffS", and Baker Defendant, anui^coijibitiait uenieti.
ofKecorri, » -> 3 ^
and therefore cannot take any fach Recognizance as a Court of Record may do; and for taking Re-
cognizance!: ag.iinft the Laws of the Realm, we find that Prohibitions have been granted, as by
Law they ought, 4 Ir.ft. 1^5. cap. 22. F5ut perHoltCh. |. the Court of Admiralty may taki;
%Stipul;uions for Bail, and proceed on them ; and it was conftantly allowM, tho' 4 Inft. 135 is of
another Opinion. 2 Ld, Raym". 1286. Pafch. 6 Ann.
3. 15 R. 2. cap. 3. S. I. Itcm^ at the great and grisvn/is Complahit
of all the Commons made to our Lord the King tn this prtfcnt Parliament,
for that the Admirals and their Deputies do incroach To them divers Jiirif-
di^ions, Franchifes,, and many other Prufits pertaining to our Lord the
King, and to other Lords, Cities and Boroughs, hef.des thofe they ivere
wont or ought to have ol Right, to the great Oppreffton ' and Iiupoverif/Mient
of all the Commons of the Lord, and htnderance and lofs of the King's Pro-
jits, and of many other Lords, Cities and Eorough.\ through the Realm.
TrefpaG of ^ .y^ «. It is declared, ordained, and eftahhfhed., that of all manner of
Cows^anT CoHtraffs, Pleas and .Quarrels, and of all ether 'Things done rijing -jsith-
twenty i» the bodies of Counties as well by Land as by Water, and alfo * IVreck of
Sheep. YeU the Sea, the Admiral's Court fhall have no manner of Cognizance, Power
vertofi faid, jjor Jurifdiifion ■, but all fuch manner of Contra[fs, Pleas., and .Quarrels,
"^d Yar^ ^'^^ ^^^ Other Things rifing "within the bodies of Counties, as well by Land
the Dffen- as by Water, as afore, and alfo Wreck of the Sea fhall be tried, determined,
dant affirm- difcnfjcd, and remedied by the Lazvs of the Land, and not before, nor by the
ed Plant of j-{iifntraL nor his Lieutenant in any wife.
Treipatsm . ' -^ ^ .
the Court of Admiralty before W. T. Steward ofR. Earl of H ajainft the Plaintiff, of Trefpafs
dona upon the Se,r, and had Cit.itlon to cite the PlaintifTto appear before tlie Steward fuch a Day, di-
vefted to the Defendant to ferve the Citation ; and at the Day the now tie now PlMnt:ff nt.ide Defiult,
and ihzx by the Uf.ine of the Court he pall be amercied for fuch Default by Difcretion of the Steward
to the r/e of.the Plaintiff, by which he was amerced at 20 Marks, wherefore this Defendant was
commanded to levy it of his Goods for the faid Sum ; by w!iich he, th',- Day Year and Pl.ice in the
Declaration, took the Goods in Execution for the laid Sura ; Judgment fi Adtio ; per Fortefcue, he fhall
not meddle upon the Lind, but upon the Sea. Per Newton ; 'TU St.Ttute refVraiiis him that he fhall
not hold Pica ot a Thini; arifing within the Body ol the County ; but it does not rcfirain him to make
Execution upon the Land, cind they may take his Body in Execution upon tie Land, y^nd the Jaroe Law of
his Goods, and lb was the Opinion of all the Court. ./^«W at this Day they Jerve their Citations upon the
L.tnd. Br. Admirals &c. pi. i. cites J 9 H. 6. 7. S. C. cited 15 Rep. 5'- p'- 2i Trin,
- fac. in the Cil'e of the Admiralty, and refolved there that the Statutes of R. 2 and H. 4. are to
be intended of_ a Power to hold Plea, and not of a Power to award Execution, viz. de Jurifdidione
venendi Pla:ita ; Not de Jurifd'iilTone excquendi; For notwithftanding the faid Statutes, the Judge
of the Admiralty may do Execution within the Body of the County.. S C. cited Cro. E. 6S5.
per Cur. in pi. io. S. C, cited 2 Brownl. 26. Trin. 9 Jac. in Cafe of the Admiral Court.
S, C cited : Inft 5t.
* Where it provided by this Statute that the Admiral's Court fliallnot have Jurifliiftion orCoiufince
of Vv'icckof the Sea, yet he fhall have Conufance of Flotzam Jetlam & Lagan; For Wre.k of
Sea is v.'heri the Goods are call by Sea upon the Land, and fo Intra Corpus Comit.itus, whereof the
Common Law takes Cognizance; but the other three are all upon the S;a, and therefore of them
t!ic Admiral Iik jurifdiftion ; Per Cur. 5 Rep. 106'. b in Sir Hen Conlldble's Cafe ci;es Rr.iit.
Lis. %. fol. i.'.t). — S. P. admitted as to Flotflim, Jetflim and Lagan. Raym 96. Hill. 17
Lc. BR.
<■ Never-
Court of Admiralty. {521
5. 1?. 3. Neverthekfs^ of the death of a Alan, and of a Adairn done in great
ShipSj being and hovering in the main Stream of great Rivers, only beneath
the * Bridge of the fame Rivers nigh to the Sea, and in no other Places of the * Ow. 122.
fame Rivers, the Admiral /hall have Cognizance, and alfo to arrefi Ships Mich. 7 Jac.
in the great Flotes for the great Voyages of the King and of the Realm ; 'J' ^^/^ °^
faving always to the King all manner of Forjeittires and Profits thereof q^^^^-^J^
coming. per Cur. the
Tranflator
ofthis Statute miftook Bridges for Points, that is to fay, the Land's End. Cay's Abridgment,
Tit. Admiralty calls it Ports.
6. S. 4. And he fljall have alfo Jtirifdiciion upon the faid Flotes, diirin<r
the f aid Voyages only, faving always to the Lords, Cities, and Boroughs,
their Liberties and Franchtfes.
7. 13 i?. 2. cap. 5. S. I. Item, forafmnch as a great and common
Clamour and Complaint hath been oftentimes made before this I'lme, and yet
is, for that the Admirals and their Deputies hold their Sefftons within di-
vers Places of this Realm, as well within Franc hife as without, accroach-
ing to them greater Authority than belongeth to their Office, in prejudice of
cur Lord the King, and the Common Law of the Realm, and in ditniniping
cf divers Franc hi fes, a fid tn dejiraifion and impoverijhing of the common
People;
8. S. 2. It is accorded and affented, that the Admirals and their Depu-h was agvetd
ties pall not meddle from hence/ orth oj any 'thing done within the Realm, th^t by this
but only of a Thing done upon the Sea, as it hath been uftd in the Time of^ff^':'^ ^^.^
the Noble Prince King Edward, Grand] at her of oilr Lord the King that tvi^^^'^^^l
»0^ Is. intcrm.-d-
dling with
any Thing within the Body of the County as all Havens are, and rherefore Havens are not ivithin
the Jdmiralty, but all the Land upon which the Sea-Water flows and reflows is within the Junl-
diftion of the Admiral. Mo. 122. in pi. 265. Pafch. 25 Ellz.. All Rivers and Havens are
within the County. 4 Inft 1-57. &c. cap. 22. Ail the Ports and Havens within England are
Infra Corpus Comitatus ; Per Coke Ch. J. and vouch'd 25 H. 6. and 50 H. 6. Holland's Cafe,
who was Earl ot Exeter and Admiral of England, and becaufe he held Plea in the Court of Admi-
ralty of a Thing done Infra Portura de Hull, Damajjes were recovered againft him of 2000 1.
Godb. 261.
It is no Part of the Sea where one may fee v/hat is done of the one Part ot the Water and of the
other; As to fee from one Land to the other, 4 Inft. 140. cap. 22 cites 8 E. 2. Tit. Corone. 599.
9. S Eli z. cap. 5. Every Judgment and Sentence difnitive given, in afiy if m erro-
Civil and Adarine Caiife, upon Appeal to the ^ueen in the Court of Chancery, °^°"^ Sen-
by CohimiJJioners or Delegates nominated by her Majejly, fhall he final. ^^."ce be
Admiralty
no Writ of Error lies, but an Appeal before the Delegates, as appears by the Statute S Eliz. cap ? '
4 Inft. 135. cap. 22.
10. The Proceedings in the Court of the Admiralty are according
to the Courfe of the Civil Law, and therefore the Court is not of Record,
and by Confequence cannot affefs any Fine in fuch Cafe, ?.s Judges of a
Court of Record may do. 12 Rep. 104. Hill. 2 Jac. Tomlinfon
V. Philips.
11. E. was committed OH an Indi^ment of Piracy, and S. affifled him^oy \iu
with Ropes, and other Engines, to make his Efcape, whereupon the^ ^- — '
Judge of the Admiralty committed S. to the Marlhalfea. Upon a Ha- & 12 vv'^.
beas Corpus out of B. R. and the Caufe returned as before, the whole cap. 7 s. 9!
Court held, that though all the Fa6l done by S. was upon the Land, and 8 Geo.
and within the Body of the County, yet becaufe it depends on the Piracy '• "?■ ^^;
committed by E. with which the temporal Judges have nothing to do, Piracy and
he was remanded ; For he is Quali an Accellory to the firft Piracy, and Piracy ^ £j
determinable by the Admiral ; As '\i Sstitencs is given m the Admiralty
for a Marine Caufe, the Extcution of this Sentence, either by the Bodj, or
6 R by
c;2 2 Court of Admiralty,
iyi the Goods oi the Party condemn'd, extends throughout the Realm of
\ England for the Court of the Admiralty , becaufe it depends on the principal
and jirfi Sentence. Yelv. 134, 135. Mich. 6 Jac. B. R. S^-adding's
Cafe.
12. Though the Court of Admiralty is not a Court of Record, be-
caufe they proceed according to the Civil Law, according to Br. Error,
pi. 77. [i77-] yet by Cuftom of the Court they may amerce the Defen-
dant for his Default ^t their Difcretion. 13 Rep. 53. Trin. 7 Jac. in
the Cafeof the Admiralty.
13. The Admiralty cannot puniOi by Imprifonment^ Pecuniary Piinifh'
nient, nor otherwife. 2 Brownl. 13. Hill. 3 Jac. per Cur. in Cafe of
the Mafter &c. of Trinity Houfe v. Boreman.
S C. cited 14. A Recognizance taken in the Court of Admiralty tofiand to the Order
Kaym 78. of the Court fs mid i Per Serjeant Harris, Arg. faid it had been fo ad-
O**^'^" B F ji^flg^'^ ; ^"*^ P^"^ NVarburton it is not a Court of Record, Noy 24.
in'cafe of '"Record v, Jobfon.
Evans where a Prohibition was prayed to the Court of Admiralty, for that the Plaintiff here did fue
upon^ Recootiiz^nce thete taken Ly way of SlipuUtkii by one that was but Surety in the Nature of
Bail and that Court not being a Court of Record, they cannot take any Recognizance; but after
lone' Debate refolved, in Favour of Trade, fuch a Stipulation is good, and (hall bind the Sureties.
Ibid, cixs Godb. :6d. pi ^^'iQ- Greenway v. Baker.
* Keb. 551. pl- 62. Pane v Evans, S. C. and the Court faid, that as this Cafe is, fhouid we grant a
Prohibition, we fhouid overthrow the whole Court.
Sty. 340. 15. A Man was taken by a Warrant iffued out of the Admiralty, and
Mich, ^'^'i'-refcued out of the Meffengefs Hands, for which the Perlbn, who made the
^ H Mf^rn" Refcous, was arrefted lor a Contempt to the Court, in a Suit depending
tlie Court 'there between him and another. Roll Ch, J. f^id, that if the Caufe
held, that vvas Maritime the Admiralty might examine a Contempt in that Caufe,
the Admi- ^^ j^ey cannot proceed criminally againll the Refcuer of him that did
'^''^-ercr?^ the Contempt, and ordered Caufe to be ihewn why a Prohibition Ihould
Sly a-'" not go. Sty. 171. Mich. 1649. Anon.
that is in Contempt to the Court, but faid, they would hear Civilians if they would fpeak to it the Sa-
turday following.
f5utthePar- 16. The Court of Admiralty may punifh fuch as refill the Procefs of
ties after- ^.j^^t Court, and may fine and imprifon for a Contempt to it afted in the
kito''the^r Face of it, though they are no Court of Record ; But if they lliould
SugKeftion, proceed to ^iw the Party Damages, a Prohibition would be granted
that the ori Quoad that i Per Cur. Vent. i. Mich. 20 Car. 2. B. R. Sparks v.
ginal Caufe, Martin.
on which
the Procefs was grounded, was a Matter wherein the Court of Admiralty had no Cognizance ; and
tbertitore a Prohibition was granted ; for then the Refcous could be no Contempt. Ibid.
17. When a Provijlonatc Decree, as they call it, or Primum Decretum,
is niade^ (which is a Decree of the Pofftfjion of the Ship') and the Ship is
fo feifed, it is the Courfe of the Admiralty, upon Security given, to fujfei'
her to be hired out i Sic diStum full. Vent. 174. Mich. 23 Car. 2, B.
R. in Cafe of Radly v. Egglesfield.
Mo. 815. 18. But upon fuch Decree an Appeal being to the Delegates, and Ld.
pl. I loi. in Keeper being informed that no Appeal lay to them upon it, becaufe it ivas
^t^^^^-^^^^_only an interlocutory Decree^ upon hearing CoQuidhe. fuperfeded the Com-
kiilador V. mifjion. Vent, 174. in Cafi; of Radley v. Egglesfield. j
Plage, Sen-
tence was given for the King of Spain to have tlic Goods, but the Court did not determina the Inte-
rell and Right of them, upoh which Sentence the Defendant fued to the Ld. Chancellor for an Ap-
peal ; but it was alleged, that it did not lie, the Sentence being only ot the PolTeffion, and not of the
Right or Intercll, and thereupon Ld, Chancellor doubting heiird Counfel, and at length he ivent into
his
Court of Admiralty. c; 2 q
hisClofct, and brought thence u Book ofihc Civil Law, \vheiei;i he found a Text pi-ecifc, that Ap-
peal lies as well v.heie the Sentence is ot the Policflion, as where it is ot the Intcreft ai.d Right ; and
thereupon granted an Appeal.
19. Per Holt Ch. J. an Obligation taken in the Admiralty to appear
and [tie there^ is fqable in that Court, lor it is a. Stipulation in Nature of
Bail at Common Law ; But where there were 1 3 Part-owners of a Sbip^
and one of them re fu fed to let her go to Sea^ whereupon a Stipulation was ta-
ken for the Share oj the Party refa/ing, and atterwards the Ship went her
Voyage, and this Stipulation being put in Suit in the Court, a Prohibi-
tion was granted, becaule the Building the Ship and the Charter-party
were at Land. 3 Salk. 23. Pafch. i W. 3. King v. Perry.
20. The Defendant gave Bail upon the Stipulation in the Nature of a
Recognizance, by which he bound himfelf and his Heirs to abide the Judg-
tnent of the Court oi hAm\ii\tY^ h\xz died before the Sentence^ unA. yet the
Court proceeded againjl the Bail. It was inlilted among other Things for
a Prohibition, that if the Defendant had been in Gaol, and died with-
in the Walls of the Prifon, the Suit mull have abated, and there was
no Reafon why, by the Defendant's being in Cultody of his Bail, the
Suit iliould be in a better Condition; and that whereas the Security given
was only, that the Defendant Ihould abide their Judgment, and the
Admiralty now have extended it to the Defendant's Executor. On the
other Side it was faid, that Bail in the Admiralty are lued as Principals,
and that this is the Courfe of the Court, becaufe the PlaintiiFand Defen-
dant being Seafaring-Men, are fubjeft to more Cafualcies than others
The Cafe was adjourned and compounded, i Salk. 33. Pafch. 13 W. 3.
B. R. Betts V. Hancock.
21. You cannot appeal in the Court of Admiralty before definitive Sen-
fence for a Gravamen, as you may in the Ecclelialtical Court. 2 Ld.
Raym. Rep. 1248. Pafch. 5 Ann. Brown v. Benn «Sc al'.
22. The Court of Admiralty granted Procefs agamfi the Freight of a
Ship, in Nature of a foreign Attachment, for Non-appearance ; this is
v/rong, and a Prohibition was granted, though there was no Libel ;
but the Goutt of Admiralty may proceed againji the Ship for Non-appear-
ance, though not againft the Freight. Mich. 8 Ann. B. R. Bricket &
al' V. Pearfe.
(E) [Court of Admiralty.]
Of what Thhgs, in refpe^i of the Place (where it arifesy
they may hold Plea.
B
R©€)K IiUOgmcnt, 123. ^ Judgment in tljC COUtt of ai!nit= S, p. re-
taltP De re faaa fuper Terram 10 UOtH, $ CCiram IlOlt :jU= ^f"^^ ^"i
^itE* Ch, Jufti-
ces and Ch.
Baroo, 13 Rep. ji. Trin. 7 Jac. Cafe of the Admiralty.
2. CfjCP cannot IjOlQ pea upon aBill, or Otljer Thing done be-*Oiv.iiz,
yond Sea upon the Land, becaUft t\)Z ©tEtUte \% t^Ht \)Z fijall IjOi*? !l ^'1^1'
Peaof WiiSS tJoneonlj? npantljc^Sea* S^icl). 14. 'B.E.tettueena^dCra-
Coulfion and Bapttft Metaxa VCfOltieD, VA)ZIZ tljC 15111 lUa^ UiaQe apuddock; The
2;ante, tUljlClj 10 Itt Jitfll))* ^ICft» ^ 'S^, 15.* Leigh's Cafe, pa' Cttn=t:^'e was.
524 Court of Admiralty.
tliat B. was ant, jf3in, 7 3!a» 15. bCttOCCn Hkhnan and Skinner aD)lll!gCO» WA
Mafter of j^^; Qg^ pj.,. Cutiam, Ijetiuccn i>^'^/>» «;;^ hmmhy. iDobait's
gate'^r^ ^fP^rt^» ^^i'^ ^^^' ^^9. ' " '' ^
to C to buy
Sailor's Cloaths for him, and C. bought fuch Cloaths for B of L in St. Catherine's Parifh, near th«
Tower in London whereby L. delivered the Cloaths to B. in his Ship then in the Thames, aoioining
to St. Catherines, and the Money not being paid, L lued B. in the Admirahy Court, and a Prohibition
was awarded, becaufe the Contraft was made upon the Land, & Infra Corpus Comitaiu^', and therefore
the Admiral can have no Jurifdidtion ; for the Statute of 1 5 Sc i 5 R. 2. and i H. 4. cip. 1 1. are that
ibe Admiral fiiall not have Conufance but only of Things done Super Altum Mare, and cites 5' Rep
107. and fo it was refolved by the Jullices. 2 Brownl. 37. Cradock's Caie, S. C. and a Prohi-
bition granted accordingly, and for the fame Reafon.
2 Buift. 322. 3. [^nu tijercforc] t!)ep cannot Ijolti piea of a Suic by the King of
D'Acuna V. Spain, for cutting down of Bralil Wood in Bralilia, bCCaUfC It tfi ttUOlt
^""TX^w tf3^ ^'ll^O' ^^i^^* ^^ 3!a, TB* E* bettoecntfie Kmg of Spam and P owner
bSc^, Irani: tcfoiucti, auo fl lEH'oljibitton ccantcn, nnii it tuag aftec ttieHat
ed by the Commou laui in a %imx ms Conuccfion.
Opinion of . n ^
the whole Court. Roll Rep 13;. pi. 10. the Spanilh Ambaffjdor v. Pountes, S. C. and per Coke
Ch ]. and Doderidge, the Arabafljdor may have Aftion for it iii B. R. and afterwards the AmbafTa-
dor's Counfel came into B. R. and (aid lie would furceafe his Suit in the Admiralty, and bring an Ac-
tion here ; and the Court, by Confent of the Parties, ordered the fame accordingly, and fo no Prohi-
bition was granted ; and afterwards the King of Spain brought an Aftion againft him in B. R.
Owr. 122. 4. '2DIjep cannot IjOlD IpJlea of a Thing done upon the Land in Eng-
Leigh V. land, s^icij* 7 lac* 05* Leigh's cafc, pec Cud'am*
Burley S C.
and a Prohibition was granted 2 Brownl. 37. Cradock's Cafc S. C, accoidingly.
* Ow. 122. 5. <^l)C)) cannot ijOlD pica of a '^Oinn; done upon the Thames, \iZ'.
Y't \ r tmf^ tW i!S toitljin tl)c l^onp of tlje Countp. $picf). 7 3ac« 05.
ac'^ordincw * ^"^'''^ ^^Tafc, pct Cutiam, anH a proijifaitiou gcantfO accotDino;^
z \)h {^icl). 5 3a. 05. mmzn'tomkws and Good-j.'i», pa* Curiam, ann
Brownl. 37. a pvoljibition ctantcB tDCcetlje @utt toa^foc ancijocage. M\U 8
cradock^s j^^ 05^ ^ Bemnans cafc, tcfoIi}CtJ anB a ptotjibitiou gcantcti*
Cafe S. C "^^ .
accordingly, and fays that the Mayor of London has Jurifdiction upon the Thames as far as Wapping,
and if a Murder be committed on the Thames, it fhall not be tried by the Admiral. Le. io6. pi,
J44. Pafch. 30 Eliz.. B. R.Sir Julias C^far'sCale S. P. 2 Roll Rtp. 41; Mich. 2t Jac. B. R.
Anon. S. P. •M0.S92.pl. I25i. Mich. 16 Jac. B. R. Anon, all the Court agreed that Lime-
Houfeis within the Body of the County, and not within the Jurifdicifion of the Admiral. The
Admiral his no JurildiCtion of Things done at Ratcliffe nor upon the Thames ; Ibid. Doderidge J,
cited 8 E. 2 Fitih. Corone. 399 He faed in the Admiralty, becaufe the Ship called the S. ly-
jnj? upon the Thame*: at Rcdrifi at Anchor, was there broke by the Ship call'd the .(Eneas by the
>;egiigence of the Officers thereof ; and a Prohibition was awarded, becaufe the Thames is infra Cor-
pus Comitatus, and not within the Jurifdiftion of the Admiralty. JNlo. 916. pi. 1302. 1 Jac. Dpr-
j-ington's Cafe.
+ 2 Brownl. 13. for flaying the Ship for Ballaft, Trinity-Houfe v. Bowman. S. C.
6. '2Df)CP cannot IjOlU IPICa for the taking of certain Goods floating
fuper Mare, & e)ea' fuper littora Maris ; jfOt tijOUSl) tljCJ) Uiap ijOlD
pua tie f lotfam, pet tbep cannot IjolD Plea of w reck -, ann tljis is:
mitt^ iuljen it i0 tljcoiun upon tijc ILano. %i> s 3ia. 3* a pcol)i=
bition ijrantcn accocninglp, ano a conftUtation oenieQ.
A fuit was 7, "^tjcy cannot ijOltl ^^lEa of a Contraa made in Porta Middleburgh,
in the Ad- iiecjinfj tjjig ijg xidt Upon tije @)ea, $;ill. s 3!a. 13. Vanhegs caic, pet
nkinVot Curiam prater t^arbutton, Cohe fait), tjjat t\)txz is a prcceaent
Goods cir- m 25 ij. 6. ann 36 o. 6. ruijcre tljere U)a0 a ^ijip rttiiug m a f^oit,
ca Cape- de anti a contrart luajj tljcre mane, aiiO a luit for it in tijc Court of
vcvtiuper cjtinm-ait)) i anti tljercfore an Action luasJ brouiji^t at Common^
kw^'smov' td^'oik, ann 130001. Damages! rcco\jcreQ 5 rfjc iOuHcof CtctcctDcn
edfor. being Sluunrai.
Prohibition
bfcaufs it vv:is in the Port of Gcnney when they were at Anchor there, and everv Port \\ within the
Bod/
Court of Admiralty, 525
s
Body of tiie Land and not upon the Salt Sea ; Coke Cli. J. laid tint pefadventurc tlie I'orta tliere are
not as r!ie Havens are with us; and Doderidi;c laid that tlicre is not any Port but tliere arc Roads, but
they are not within the Body of the Lind but are in the Sea, and th-.-y might be at Anchor in the Sea,
and tlierefore a Prohibition was denied ; But Coke faid that it this liad sieen within tlic Body of tlie
Land, the Admiral ought not to hold Plea of it. Roll Rep. 250 pi. ib". Mich. 13 Jac. B. R. Wii-
lets V. Newport.
8. Jf Pirates take Goods upon the Sea from a Subjeft ot^ Spain, and
and bring them within a Port of Ireland, and there fell them to J . 8. * ^"'
no @)Uif foe tljefe mam can lie asamrt % S). in tijc Court of iilD=s^. )
lUtrattPi foe tljat ). S. came to them by purchife within the Body ol pi. 4. s. G.
the County. ^tClj* 13 (*) 3]aC. Qd* bCtlMCCU Don Diego tlje 3111= ^-nd the
balTatJor, nmsirRu-bardBifj^iy, tefoliieo, aiiO nl^roljibitiotiwaiit^^"'"'-'^''"'
£5 ; Jf oc tijc Omtt of tl)c (^oonis map ijauc an action of '€xo'oa
m tlje ©0050 nt Common tm,
9. Jf a Subjeft ot fljC IaUIB of Spain committs CCrtaUl Offences in See (B.)
Spain, foe lUptCl) his Goods are confilcaccd, and afCEC comes into Eng- pl ^^^^'^
land, and brings with him fome of the Goods, and fells them to J. S. ^j''^ ^°'^'
u Subject of this Realm, aUB aftCC t!jC Amballador of Spain fues in
the Admiralty-Court Upon tljlSJ mattCC, and there attaches the Goods
in the Hands of }. S. a !3l*0Dlblti0n ItCgi ; fOC tljC pUOpCrtl? Of tljC
<SootiS' fljnll not lie qucftloncti ni anp Court, luit at Common
latu. ipobart'js Eeportjs, Cafe 267. Don iaipljonfo ann Cor--
ncro.
10- Jf a ContraO: or Obligation be made upon the Sea, ))Ct it itht^°^ •2-
not for a Marine Caufe, tljC €iUlt ttpOU tljIS COUttaft Ot ©ijllljatton f '^■, ^- ^■
fljaU be at Common laiu, anti not ni tije aomiraltp Court -, Jfor ch ) in
tf a ^an maUeiS an ©bligation for tOc fccuritp of a Debt gcouung Bridgman*,
before upon tlje lanti, or(f Ije niafee a pronitfe to pap it, tljiss cafe —_
cannot be fucn in tlje Court of i:itmnralt)), but at Common lau). , "" r?-
|3obart'0 reports, 17. 'BriDfi-man'.o Cafe» s.' p. ^d 'e°d
to have
been ruled accordingly, in C. B. Pafch. 13 Jac. and the Court was of the fame Opinion.
11. 3!f a Contract be matie upon the Sea for the bringing over cer- Hob. 79.
tain Sugars, aUD after this Agreement is put in Writing upon the p'-.' 04 and
Land, aUD atter the Sugars in bringing over are fpoiled upon the ''j"^;,^^'^-
Sea, pet t!)e @uit for tijis 0oe0 not lie in tlje iinmiraltp Court,s.c '&s p.
becaufe, tlje puttinn; tlje agreement in J©riting upon tlje lann, see
cljangesji tlje aurisimction ajjtotljfei ano tljen uiljcn tbe Contractc-^^) pi.
10 upon tlje Lann, tljouQ;lj tljeosreaclj be upon tlje ©ea, pet tl}e;,;^^j^^^;"'*
Common laU) fljall ijaije tlje 3]un0Dtftton, ano not tlje aamiraltp there .
Court* |)obart'!3 Reports, betiuecn Palmer and Pope, Cafe 268. (b ) pi. i.
s.c&s. p.
. If part of the Matter be done upon the Sea and Part in a County, the Common Law fliall have
all the Jurifdiftion. 12 Rep. 79. Hill. 8 Jac. by the Reporter.
12. 3jf a Contraa be mane upon the Sea, anD the Caufe of the fuit Hob. 213.
Maritime, anU a Suit is had upon this in the Admiralty Court, It ^jj^j^""
Ceem0 it is lufficient to alledge it to be made within the Jurildiftion of j^^ Hobart
the Court, without faying \t tUild maUe fuper Altum Mare ; fOC tlji0 Ch ]. fays,
tnap be aileDscD of tlje otijer #art to Ija^e a ll5roljtbition, if it ^°'= t^at
magi not maoe fupcr altum ^>ue. Contra Oabarr0 lAeport?, f;^;;^ ';^X'
Cafe 269. miraltydjth
and muft
lay the caufe of Suit fuper altum Mare, which argues that this is a neceiTary Point ; For the Jurif-
diftion there groweth not from the caufe of Tithes and Teftaments in the Spiritual Court, but f rorn
the Place. And therefore he was of Opinion, that if a Contract were made in Truth at Sea, and a fuit
•upon that in the Admiral's Court, and there the Contraift is laid generally, without laying fuper al-
6 S turn
t26 Court of Admiralty.
turn M,uc the Piohihitun will lie ; For the Libt;l mull warrant the Suit in it Ic.f thoU3;h you may
on the coiitrarv i*ai-t furniife, that the Contradt wa<. midc at L.iiid, a>;a'niV th» Libel that lay; it oti
the Sea. And he held it alio not fufficient tor the Libel not to 'av it. infra Jur. Mar. generally, but i:
mud be lb laid as it may appear to the Kings Court, to be fo indeed.
* It niul
be tried in
London
See tit^
Trial CBJ
pi ..
ii. C.
4: Fitzh. Trial pi. 29. cites S. C.
Koll Rep. t4. Jf t|30 Owner of the Ship fends It to the Indifes tO mCrCfiantltjej
f C 1' Pro '''''^ "P'^" ^'J^ ^^51) ^CaS t\)Z Mariners and the reft in tlje g)ijip coni-
hibitionuas '"'t Piriicy, ii)!)cntlje ^t)tp aftet murujs Ijtte upon tlje '2^t)ame0,
{printed; tl)Z Admiral feiz.cs the Ship and all in her as fona Pir.itarum, claiming
Forthou^^h chcm hy grant of the King, fOC b? tfjClaiB Of tljC ^23 {1)0 ©UJneC
ral ltd a' ''^ ^^5^'J '^"'"^ '^-^^^ lOfe tlje ^i)ip ; antl atter the ieizure the Owner Of
GrantDe ti)C ^ijiP takes the Sails and Tackling out of the Ship, for which the
Bonis Pira Admiral fues in the Admiralty COlltt, a ]3!:0!)(tjltl0nl!jall be gUantCU,
tarum, yet \)um(c if It ^jc io"f£ttcrj Ijc Hia? t)aD£ an Action at tlje Common
be Landed ^'"^^'^ ''^"^ ^'''^ ^'^"'"S ^^"^ ^^"^^ ^^^^^^' ^^^^^ ^''^"ff tal^ctt lukx Corpitss
of the Pro- Conilt.itU0. p. 13 3ia. C!5, ^, Hi/athraml's et al\ CafC rt'lOHlCD,
per Goods aiiB 3 j^t j'jibition granten,
of the Pi-
rates, and not tho!e which the Pirates ftole from other Men ; For thofe are not to be granted, becaufe
the Owners ought to hav.; them jgain ; But if the Admrd wa.; intitled to Cuch Goods, y.:t in this
Caie he ought not to fue in the Aaminlty j becaufe the Sails and Tackling were taken Infra Corpus
Comitatus ; v\l. upon the Tliames and here the Ship is not forfeited for the Piracy of thofe that were
in it ; Per Dideridge [. quod Coke Ch. J conceflit. 5 Bullh )47,i.|S, Mich 15 |sc Prin-
rton V. The .Admiralty Court, S. P. and (eems to be S. C. and ruled iC':ordin;^ly, and Coks Ch. J. fjid
that fo was the Opinion of the Court when he was Attorney General. Jeuk. 325. pi. 40. Prtmif-
laus's Cafe.
15- JfaContraft 60 t1]p.tiC in London for Things lye upon the
Sea Coafts, auD tljcre tgi a fult for tljls m tfje Court of ^Dmlraltp,
a proljibiticn liess* ^* 7 Iia* 'B* aUjungcu bettucen ©aralj %z\U\\
aut) otl)ei;0.
16. 31f a Charter-party bE made in England, to do certain Things
in feveral Places upon the Sea, tl)0' UO 3ft Id tO bC tJOnC in Cn^lanD,
foiT R^(*) bittait upon t\^z @ca, pet no nut cat^ be m tlje SiBmiralti?
^$6. siany Couit, tot tI)C jl^oi^performancc of t!je agreement ; jFor t'oe Con=
V Aiaidona- trsct 10 tlje ©tisjnal, uiitbout ttiliicl) no Caufe of fuit can be, ann
— 4ln(t t'3i?> ^05ttraCt 10 out Oftijeir 3iUrifOtCtian, ann where part is triable
135 Cap ^y ^^^ Common Law, and part by the Admiral Law, tljC Common
az.S.piin fli-ill be preferred. ^\t% 22 j^a* 05* K» bCttDCen Maldotiado and
the Anfwer siany, tefolbeD, attti liPtoljibttion gtantcn upon Debate*
to the 4th
Objeftion. And. Ibid. i;8, i:;q. S. P. cites Mich. ;i H. 6 Rot. 215. Hore v Unton. And Ibid. 14T.
141 cites Pafch :S EHt.. B. R. Co-.ftantine v. Gynne, S. P Mo. 4^0 pi. 6iz. P.%fch 38 Eliz C. B.
Turner v Oldfic-ld, a Prohibi'inn to the Admiralty, becaufe libelled they in the Admir.il Court upon a
Charter Party to hive the ;d Parts of Goods taken upon the Sea by Letters of Mart, whereas the Mat-
ter was triable upon the Land, and not in the Admiralty by reafon of the Indenture of Charter Party ;
Et adjornatur. (.^isre.
If FlotfHm 17- 3f aSpan takes a Mart floating upon the Sea, and draws it up-
comes to on the Shore, UlbCte J. S takes it, claiming there Admiralty Jurifdic-
Land and cio„, flu 3ctlon t3oe0 uot Iic agaiutt \m for tbi0 in tbe Court of
thei-e by Sttiuuralti', but at Common loui, becaufe tlje Cort U)a0 bone up^
him who on tbe lanb* C?9!c!). lo %\, id.^^m al Harwich's Cafe, per
has no Ti- ClU'iaUU
tie, the
Artioii flial] be brought at the Common Law and no Proceeding' fhjll be thereon in the Court of
Admiralty ;
2
Court of Admiralty. 527
Admir.iUy ; For there is no nsed of ConJemnation thereof as there is of Prires ; Per tot. Cur i Mod.
£94. Hill 19 & ;t Car 2. C. B, The Lady Windham's Caie.~ — [Th; Original is, lliall Cnot) be
brought which fcems mifprinted.J
18. But (f it S13fln takes a Thing upon the Sea, and brings it to * fnft. Ho-
Land, and carries it away, ti)e ^Ult fOC tljlS ftiall bC tlUOe aHllU' p"*-'^"^"'^'
raltj) Coiut, for tijis is a continued Aa. s^iclj. 10 :jac» 03. $^a?oc 7; % T*'
of Harwich's CafC, pCC CUriaUt* S. p. and
fays, that
when a taking is partly on the Sea and partly in a River, the Common Law fliall have Jurifdiftion.
19. 31f a Shipwright fues in the Admiralty COllCt for the making a So if for
Ship for Navioacion upon the Sea, a PrOfjlbltlOn DOCg UOt \\U p, f ''= '"^end-
9 CaC, 15. E. OetlDCCU I'askerand Gale, pcC CUCtaiU ilffCCeD* or^nect-fory
vi£lualing
of a Ship, if againft the Ship itfelf, and not againft the Party by Name, but only againft fuch as fu- his
Intercft makes himfcif a Party. Z Danv. 270 cites Cvo. C. 296. [.md the Table of Cro. Car. Tit. Ad-
miralty, refers to Fol. 296, 297 but I cannot find any thint; relating to the Admiralty there, or there-
abouts, :ind the only Place it refers to bellies, is Fol. O05. bat the t>. P. is not there neither. So Qux ■
ic where the Point is to bi found.]
20. But if a ^Uit be in tIjC 3;t5miP-a!tp Court for making a Lighter
for the Carriage ot Mud, Or tijt llhC, within the Body of the County
upon the Thames, and not for Navigii.cijn, a PrOljtbitiOll iiC0* J!?*
9 Car. 1^. E. bctiBceii I'asker andGak^ }3Er CuriaiTi agreed.
21. 3;f tlje Suit be in tlje aBmiraltp Court upon a charter-party for ♦'4 Inft. 141.
Demurrage, or for * Mariner's Wages, but not tor any Penalty within "P- -|
the Charter, but only for the Wages concra61;cd for, or for Demurrage, ^''"^'^gj '
according to the Contraft, nO I2Jra|)lbltiOn IiC0. P. 9 Car* 05. E.iVa'Mari-
iaio per Curiam to be fo lately reioiueb bp ali tDe 3iu5p!a of Cng= ^■'^^ "^^^es
SailD. ^ Covenant
to lerve in
a Ship upon the Sea, yet if the Wages be not paid, it fliall be fued for in this Court by the Common
Law, and not by the Law of Mariners. Raym. 5. Hill. izCar.z.B.R. in the C.f^ofWood-
ward V. Boniihan, Arg. infilled, that of Mariners Wages the Admiralty fhall have the Conufance of
it ; and fo it was agreed by all the JulHces, Hill 8 Car. i. i Cro. and of this Opinion was Mallet J.
But Fortter Ch J. and Twifden J. held a Prohibition would well lie, for the Statute of 15 R. 2.
cap. ;. was made at the great Complaint of the Commons, and fliould therfore be conftrued moll bene-
ficially for the good of the Subjeft ; and when the Ordinances and Orders in the Time of the late
Troubles were made, the conftant and generally received Opinitons were, that for Mariners W..ges
&c. the Parties could notfue in the Admiralty, and for that reafon pretended Orders were made on
X 2 April, 1648 cap 11. and another 25 April, 1649. cap 21. to enable the Admiralty to hold Plea of
fuch Things ; and as to that Cafe of 8 Gar I. they faid, that that had not only been denied by i'everal
other Judges as well as by themfelves at this Time, but had been renounced even by fevcral of thofc
Judges who are faid to have fubfcribed to it, for which realon a Prohibition was granted.
22. !Jf 3* a Merchant in London, writes to his Faftor in France to
buy Wines fOt IjiUl tljCrC, and to fend them to him to London, and to
charge him for the Payment thereof with Bills of Exchange to be
paid-in London, ailD tlje Faftor does accordingly, ailU alter A. hath
received the Wines in London, and accepted the Bills jn LOtllJOn, he
dies before the Day of Payment of tlje S^aUCP bp t&C "3\\\% ailO altec
the Bills for Non-payment are protelted in London, and after lent in-
to France, where the Fa£tor is compelled to pay them, in tl)i0 Cafe
m %mx can be upon tljf^ $|5atter againft tlje Cjcecutoc of SI. m tlje
Court of ^iDniiraltD, foe tljnt tljid Contrait IjatJ it0 C)rujina{ in %m^
Bon, fcilicet, tlje uirituig ttjc letter, ana tlje iilccepcance oi£ij.j
<SDootiss ant! 13ill?3 of Cicijanacm lonoon mafee^ ttje contrsirt ca,n«
pleat, nun tljerefore tlji^ Coruract \% to be tneD tit Cojumoii laia,
pU. 14 Car. 16. E; bCtUlCEU Hyam/ and J>me Davyes, ti\3vM'-
bition grantcb per Curiam, anD upon Complaint tljcreof to ttje
m\^ bp foaie of tlje SbnuraJti' Ccuit, ai^eeting dXi^ Contca'iice,
ana
528
Court of Admiralty.
Ow. 122.
I..cigh V.
Bui-ley,
S. C. and
the Libel
wus for
Goods
buut^ht of
S ."-alffrnan
iit St. Ka-
anti Debate tijcrcof inns at @ctjeant'0'Jnn tctuiecn Sn- Hewy
Mcirtyn ntiO tfjc 'S\\'^\ii^ Of tl)c l^ms'0--aDcnciJ, Uiljcic Counfcl Joasi
IjclD for anne Daljps, ana Dr> ?oiiCl) foe tlje otijcr ^icc ; anD tijc
Court mcilnco clcarlp tljat tl)c 13rol)tliition Uc0, luit otucueo, tljat
tl)c }3rol)iliition fljoulD not ifluc, if in tlje anmiraltp tljep luouin nc-
iiiicr amic Dalipcs upon loail for W appearance tije nej:t -S^ecm ^
luit if tljep UioulD not ncliuer ijer, tljeit tlje praljibstioii njouID
33, The Court of Admiralty hath no Cognizance of Things done be-
dcnc heycrid Sea, and this appears plainly by the Stature ot i^ i?. 2. cap.
5. the VVords of which Statute are, that the Admirals and their De-
puties iliall not meddle from henceforth of any thing done within the
Realm, but only of a Thing done upon the Sea, cites 19 H. 6. fol. 7.
for Things tranlicory done beyond the Seas, are either triable in the
King's Courts, or the Party grieved may have his Remedy before the
fuftices where the Fa6l was done beyond Seas. Refolved in C. B. 12
Rep. 103, 104. Hill. 2 Jac. Tomlinfon v. Philips.
24. C. bought divers Ihings it it bin the Body of the County which con-
cerned the furnifhing of a Ship^ as Cordage, Pozvder and Shot, and the
Party of whom they were bought fued C. for the Money in the Admi-
ral Court, and Prohibition was granted ; tor the Statute of R. 2. /5, than
the Admiral Ihall not meddle with Things done within the Realm,
bnt only of Things done upon the Sea, and that no Contract made upon
the Land lliall be held there. 2 Brovvnl. 37. Mich. 7 Jac. Cradock's
Cafe.
therine'.'i
rear the Tower, who delivered them on board the Defendani's Ship there, hut a Prohibition wis
fi-anred, becMurc thi.s Contraft was made on Land, & Infra Corpus Comitatus, and therefore the Ad-
miial hasno Jurifdiftion. S.C. cited 2 Show. 35S. in pi. 547.
25 Libel in the Admiralty upon a ContraS made at Adarfetlles in
France ; Fleming Ch. J. denied to grant a Prohibition ) For though the
Admiralty Court has nothing to do with this Matter, yet lince this
Court cannot hold Plea of it, (the Contract being made in France) no
Prohibition lies. But Yelverton and VV^illiams J. e contra, that the
Admiral has nojurifdiftion, and that the Contratf may be laid to be made
at Marfeilks ui Kent or Norfolk^ or any other County^ and fo triable
here. 2Brownl. 11. Mich. 8 jac. B. R. Anon.
26. Th& Plaintiff' was in Esecution r/pon a Judgment obtained in the
Jdmiralty againft him upon a Contract made on Land m New-England^ and
this appearing upon a Bill exhibited againlt the now Detendanc, upon
the Statute 2 H.4.'cap. 11. for fuing in the Admiralty upon a Contra£t
made at Land, which the Court held to be Coram non Judice, and he
was difcharged, Cro. Car. 603. pi. 8. HilL 16 Car. B. R. Ball v.
Trelawny.
27. Wild moved for a Prohibition to the Court of Admiralty to Jiay
a 'trial there in a trover and Converjion^ in which they proceeded upon a
Pretence that the Goods were taken upon the High Sea, and that by the
late Aft they have Exclufive Power in all fuch Cafes which is not io.
Glyn Ch. Jlfaid, it was refolved in CreemCt 3110 Calielpe'0 CflfC,
and fo adjudged that they have no fuch Power ; theretbre take a Pro-
hibition Nil! &c. Sty. 470. Mich. 1655. Lepool v, Tryan.
28. A Dutch Ship being wrecked by tempefi in a Creek of the Sea Infra
Corpus Comitatus ot Dorfet. The Sailors, upon Pretence that the Goods
in the Ship were Bona peri tar a, procured a Commijfion of Sale out of the Ad~
miralty
Court of Admiralty. 529
miralty Coim ; whtitn^on the true Owners, to preveiit fucb Sale, brought
a Siip'erfedeas ; and upon producing the Libel :o the Court, a Prohibition
was prayed and granted, becaufe the Caufe of Aftion did arife Intra
Corpus Coniitatus, and lb the Admiralty cannot hold Pica thereof, and
the Sale of thefe Goods is good as they are Bona peritura. 2 Sid. 8i.
Trin. 1658. B. R. Gulliver v. Brand.
30. In a Prohibition the Cafe was, the Delendant yjzs Majler of a
Ship, of which S. the Plaintiff was Owner, and the <V^/p was taken by
Pirates upon the Sea, and to redeem hivifelj and the Ship he contra ffed
•ji'ith the Pirates to pay 50 I. and pa'^jjficd bis Perfon for it. The Pirate
carried him to the Ijle of Scilly, and there he borrowed the 50 /. for which
he gave Bond, and paid the Pirate; and being difcharged, he libelled
in the Admiralty lor the 50 1. At his Return he (bed in the Adsniral-
ty tor rhe 50 1. and had a Sentence for it. The Owner moved for a
Prohibition, but it was denied, becaufe the original Caule arofe on the
Sea, and all which followed was but acceflary and confequential to
that Caufe, and therefore well determinable in the Court of Admiralty.
Hard. 183. Palch. 13 Car. 2. in Scacc. Spark v. Stafford.
31. Suit in the Admiralty for a Ship, as Flotlam, left near an Har- Keb. 6'i^.
bour in Norfolk ; It was agreed that Flotfam Ihould be tried in the Pj^^^' ^^^
Admirak}', but becaufe the Snggcjlion was, that the Derelititon was In- Yo^i^ y, '
fra Corpus Comitatns, a Prohibition was granted ; tor they may take Iffue Linftred,
upon the Sttggeliton ; and if it be found to be out of the County a Con- S. C. the
fultation Ihaii go. Sid. 17S. pi. 9- Hill, ij & 16 Car. 2. B. R. The ^^"'^//^^ ^1^^^
Ld. Admiral v. Linfted. Floatfam
properly be-
longs to the Anmiral, and that they may try it whether it be To or no ; but tliis Supgeflioa being of a
Dereliction within the Body of the County, it out;!u to be tried by Jury, and tb.c Coerce in the Ad-
miralty will be allowed a good Plea in Trover for it; And by Windham, Flo.itfnm is that which is
totally derelift, and nor that which is avoided in the Sea for Fear of Danger, to which the Owner has
ftill an Eye, and only goes out to pray for Help, which Twifden agreed, bur this is triable by the
Admiral ; and the Claim of Property by the Party mull be in the Admiralty within the Year and
Day. Keeling conceived, that Floatfam within the County is of the Admiral's Jurifdidion divided
with the Common Law, but here an Owner appears within the Record within the Year and I^ay, arid
therefore they ought here to demUr or take Iflue on the Suggeftion. No Prohibition was awarded bun
only as to the Fait in Corpore Comitatus.
32. A Z/W was againll a Ship and the Mailer, and alfo againft the
former Owner, and the now Owner, for Sails and other Nee ejfanes found
for the Ship in i68i. The P/j/«/:/ (the now Owner) /or « Prohibition
fuggefis the Statute R. 2. and that the Materials, Work done, and Con-
trail made, and every Thing contained in the Libel, were done at Land,
and not Super Altum Mare, and that after the Time fpecifiedin the Libel,
the Plaintiff bought the Ship, cum omni Apparatn, tor a conllderable Sum
of Money, at Land. It was argued, that though the Sails were for
the Ship, and done about it, yet they were not abfolutely necelFary,
nor was it in a Voyage, fo that the Libel is not for any fuppofed Hypo-
thecation by the Mailer in a Time and Cafe of urgent Nccelfityi be-
lides, the Buying was upon Land with all her Furniture, and the De-
fendant has his Aclion at Law upon his Contract, and tor his Wares
fold ; and a Prohibition was granted as to the Ship and the prcfent
Owner &c. 2 Show. 338. pi. 347. Hill. 35 &36 Car. 2. B. R. Hoare
V, Clement.
33. Ths. Mafrcr had hypothecated a Ship for Neccffaries, being upon
the Sea in Strefs of Weather. It was fuggelted for a Prohibition, that
the Agreement was made, and the Money lent, upon the Land, viz.
in the Port of London. But by Holt Ch, J. this mutt neceifarily be foj
for if a Man be in Diftrefs upon the Sea, and compelled to go into
Port, he mull: receive the Money there or not at all ; and it his Ship be
impair'd by Tcmpell, fo that he is tbrced to borrow Money to prevent
6 T her
f^Q,o Court of Admiralty.
her being loft, and pledges his Ship for St^cnvizy, ^nce the Caiife of t!:>e
Pledging cvifes upon the Sea^ the Stiit may wtll lie tn the Admiralty Court i
But becaufe there was a Precedent where a Prohibition was granted,
the Court granted one Now, and ordered the Plaintiff to declare upon
it j for the Law feemed clear to them as aiorefaid. Ld. Raym. Rep,
152. Hill. 8 & 9 W, 3. Benzen v. Jeffries.
(E. 2) Punifhment of fuing in the Admiralty in Cafes
out of their Jurifdi^iion.
An JlILn r. zH.^.cap. ir. TF any Perfon (hall be profecuted in the Admiral's
^^^^^'^t' 1 Cotm, contrary to the i^R.z. cap. 5. he pall
Stature for ^^"'^ ^'■' AtJion of the Cafe againji the Profccutor^ and recover double Da-
liiiiig in mages^ and the Prufeaitur pall forfeit 10 I. to the King.
the Admi-
ralty upon an Hypothecation, atid it was held to be out of the Statute in the Tim? of my Ld Hale,
cited by Holt (Jh. J. Ld. Raym. Rep. 152. Hill. S & 9 W. 5. in Cafe of Benzen v. Jcftries.
2. In Writ on the Cafe founded on the Statute of 2 R. 2. or i^ R. 2. or
2 H. 4. againfl fuch as hold Pleas before the Admiral of Contra fis made
upon the Land &c. the Plaintiff o//^^; to fay in bis Writ, Contra Formani
Statuti pradt^. otherwife it is not good, and it ought to ht brought in
the County where the Plea was held before the Admiral^ and not in the
County where the Contraft was fuppos'd to be made. Bendl. 57. pi.
92. Pafch. & Trin. 4 & 5 P.& M. Malhender's Cafe.
Bendl 64. ^ ^ p ^;;^ ^ bought a Ship at Land of B. and fued B. upon the Contra ff
butS P doc'!.''' ?/-'£ vfr/7«/V^/{}' Court, and tor their fuing in the Admiralty Court
tiot appeal- ^- brought an Action againft P. only, and hutd good. D. 159. b. pi. 37.
Pafch. 4 & 5. P. & M. Bylota v. Pointel.
S. C cited 4- ^. and B. filed C. and D. in the Admiralty for a Catife ariftng at
Ai-p;. 4 Mod. Land. A. died. The King and C. one of the Perfons grieved brought
■^r ^ 'f "^'^ Atfion againfi B. one oi the Profecutors, without pewmg the Death of
Sands v'^ -^- T'^'i^ ftidg?nent wasy that the Party grieved recuperet Damnum &
Child. quod J^efendens Poenam 10 1. erga Regem per Statut' praedi£t' incurrac
& capiatur & quod DominusRex recuperet verfus Defendent' lo 1. &c.
& Detend' capiatur. D, 159. b. pi. 38. cites i Eliz, Svvanton v.
Willet.
5. An A£lion on the Cafe was brought for fuing in the Admiralty
Court, in a Caufe where they had no Jurifdiftion, (viz.) for a Thin j;
done on the Land, and not on the High Sea. Brownl. 4. Mich. 1 1 Jac.
Row V. Alport.
; Bjlft. Z05. 6_ Cafe &c. on the Statute, 2 H. 4. cap. 1 1. for fuing in the Admi-
^d^'d'^B f^^^'y for a Matter done at Land, wherein the Plaintiff fet forth, that
K and lo a he was attached in that Court, pro Defalcaticne of his Oar infra Jiuxum
fudgmsnt in£i? refuxum Maris ^ when in 'Truth, if any Thing was done, it was done in
0. [i. af- fitcb a Place which was infra Corpus Comitatus, and that he was attached
Ivm d. iQ appear before one Criimpton, Deputy-prejident or Judge of the Court &c.
After a Verdift for the Plaintiff, and a VV^rit ol Error brought, it was
nffigned for Error, that the Declaration was ill, becaufe the Plaintiff
had fet forth, that if any Thing was done, it was infra Corpus Comitatus
&c which is not a direff Affirmation, that it was done infra Corpus
(Jomitatus ; But per Haughton if nothing was done at Land, yet a Suit
in the Admiralty, fuppofing a Thing to be done at Sea v\ here ir. Truth
no
Court of Admiralty. 531
no fuch Thing was done is punifhable by this Statute ; Quod fuic con-
cellum per Cur. Then ic was objcfttd that the Piaintiii let lorth that he
was attached to appear belbre one Crumpton, Lieutenant or Prefi-
dent to the Admiral Court, and did not allege that it was l^e'ore ths Ad-
viiral or bis Deputy, as the Statute diretls. But the Court held it well
enough ; For it is alleg'd that he was attach'd to appear Coram Crump-
ton Deputat' PriElidente feu ejus locum tenente, and alter Cays, that he
Comparuit coram Crumpton Deputat' Prxlidente feu Judice ot' the
Court. Roll Rep. 203.pl. $.&c 410. pi. 51. Trin. 14 Jac. B. R. Flem-
ing V. Yace.
7. An Jdion doth lie hy the Statute agaiujl the Court of Jdrniralty for
holding a Pica of a Matter which is not within their Jtirifdtiiton, (Mich,
C.2.. Car. I.) B. R. and jultly i for every Jurifdi£lion ought to be kept
within its own Bounds i And it any one be injured by tranfgreffing
therein, the Common Law will relieve the Party injured thereby, and
caule Satistaftion to be made for this Injury. L. P. R. 17.
8. Plaintirt'S. declared, fetting forth the 13 R.2. 15 R. 2. and 2 H. Skinn. 5^1.
4. c. ,11. which gives the Party grieved double Damages, and 10 1. toP'- 5- S. C.
the Kingi and that he was Owner of a Ship lying in the Thames infra i^'* ^°!'^
Corpus Com. laden with divers Goods, wherein he had a 5th Part x.o ^^\\,j^^{^„
his own Share ; th^ttht Ship wa.a ready to fail, and that the Defendant the Opinion
caufed a Proceeding to be made in the Admiralty againfl the Ship, and "^/'^e Court,
the Ship to be arnfied and Jlaid qtioafqin; he gave Security not to go to the^^ ^T^^-
Jkfe/leras, or Eafl Indies, whereby hs was itaid 3 Months, and loft: his ^^^^^^-^
Fbj)ii;?_ftf ad dampnum 3000 I. On Non CuJp. Jury found that the Eaft Difficulty
India Company by Charter had the fole Trade to the Fall Indies andi" the Cafe
Mederas, and that the Plaintiff was going thither i And Sir J. C ''^^^ "'°^''^
one of the Defendants was Governor of the Campany, and procured an^ but were
Order of Council to the King's Advocate General to proceed m this Manner A\ of Opi-
&c. and that the Detendants fued this Procefs out of the Court of Ad-"i°" that
miralty ; and if pro Quer'. Jury find 1500 1. Damage, and 51 1. Cofts,^ f^J"'J^":
which were doubled in the judgment according to the Statute. Judg-to'b- af-
nient for the Plaintiff in C. B. and now in Error brought it was agreed iiim'd, For
that though here was but one AQ:, and but one Offence, yet every fe- though the
vera! Perlon injured might have an A6lion and recover Damages, and^^"-'.'",'''''
upon every Conviftion the Defendant would forfeit 10 1. to the ^^^g- v.-^'^noi
Though there be a Procefs only and no Suit, nor no Plaintiff" and De-asainftthe
fendant, yet this is a Profecution within the Meaning of the Statute, Peifoni y^t
ior it is an ufual proceeding there, and of the fame Mifchief ; That C.^^^"S ^1^^''°
was a Profecutor within the Statute though no Suit was in his Name, Qgo^j g^-
becaufe he prom.oted and maintained it; and if he did ic of his own cording to
Head, then it is properly his own Aftion; if as Agent to the Company, tiie'^'ourfe
and by their Command then that Command being to do an unlawful"^^^'.?'^*^.^''"
A61 was void ; But they held a mere Attorney would not be a Profe- /bTs is a '
cutor within the Statute. Judgment affirmed, i Salk. 31, 32. pL 2. Suitintlie
Pafch. 5 W. & M. in B. R. Sir loliah Child & al'. v. Sands. Admiralty
within the
Statute. And thouf^h the Defendant is not Party in Court, yet if he be the Perfon that moves the
Suit and is the Caule of fuch Charf^e and Trouble, an Action lies againll him. 4 Mod. 1-9.
6. C. and Judgment affirm'd. 5 Lev. ;5i. S.C. a-d Judgment affirm'd per tot. Cur. .Cumlj,
215. S.C and' Judgment affirmed. Carth. 294. S. C. and Judgment affirmed.
(E. 3)
i^'^z Court of dmiralty.
(E. 3) Prohibition. In what Cafes. And at what
Time.
I. Q I R }. C. Judge of the Admirahy exhibited a hill in thdt Court a~
l3 gC'inJi the Detendant N. who was an Officer of the Lord Alayor,
jor meafuring Coals at a IVharfe in the Parifh of St. Dunjian's in the Eaji
tipon the River 'Thames ; Wray and Gawdy jullices i'aid, that if it be
Extortion there is no Remedy for it in the Admiralty, but in the King's
Court J And per Gawdy it fliall be redrefs'd here by a Quo Warranto.
Le, 106. pi. 144. Pafch, 30 Eliz B. R. Sir Julius C^far's Cafe,
2. In a Cafe where A. and A. "were equally intitled by the Civil Laiv to a
Prize-Ship, A. as the aftual Captor, and B. as being prefent, and B.
filed in the Admiralty /or his Moiety, A. Jcr a Prohibition furmifed that
after their arrival in England they agreed inter le that A. jhould have 4
Parts of the faid Ship and Goods, and that R, (hould have the other 5
Parts [the other sth Fart] and A. faid that he pleaded this Alatter in the
Admiralty, and they would not allow the Plea, whereupon a Prohibition
was granted ; but it afterwards was moved by B. that the Court of
Admiralty would allow the Plea and try it there, whereupon a condi-
tional Confultation was granted, Ita quod the Court allow that Plea and try
it there ; And it was faid, that if the Court Ihould not allow the Plea
it would be a Contem.pt of this Court and a Prohibition Ihould be gran-
ted. 2 Le. 182. pi. 224. 32 Eliz. C. B. Somers v. Buckley.
3. A Suit was in the Admiralty Court for fetting a Ship in a JVharf
to the Damage of the Plaintiff; fo that none could come to his Wharf which
ts faid within the Bill to le within the Ward of St. ALiry-PItll ; And a Pro-
hibition was granted ; Upon a Suggeltion, that it was good for the
ordering of Ships. A Confultation was granted, but afterwards
upon good Advice and opening the Matter, a Supcrledeas to the Con-
fultation was granted et quod Prohibitio ilet ; For the Wrong and FaQ:
is faid to be within a County and Ward i And lor that it does not be-
long to the Admiral ; And tor civil Contracts or Trelpals done upon
the River Thames or any other River, that is proper to the Common
Law, triable in that County, which is next to the Bank, and that lide
of the River where the Faft was done, but in criminal Matters upon any
River, that is given to the Admiral by the Statute 2S H. 8. cap. ij.
Noy. 148. Goodwin v. Tompkins.
4. The Majler of an Hamborough VeJJel freighted her at Brazil, and
became bound in the Cujlom Hoiife there to unload the Merchandizes accord-
ing to the Manner there tifed at St. Michael's to the Intent tofatisjy the
King's Cuftoms. T'he Ship was drove by Tempefi on the Coaji of England,
fo that fhe could not touch at St. Michael's. The Spanilh Amballador
fuppofing the Goods were forfeited to the King of Spain for not pay-
ing Culfoms fued in the Admiralty here, and the Court gave SentencCy
that the King of Spain fJjould have the Pcfjejfton of the Goods, but did not
determine the Intcrefl and Right of them. Whereupon the Owner fued
to the Lord Chancellor lor an Appeal, which was oppoied by the Judge
of the i^dmiralty, and it was argued by Civilians on both Sides, but Ld.
Chancellor fetch'd a Civil Law Book out of his Clofet in which was a
Text precife that an Appeal lies as well where the Sentence is of the Poffef-
fion as where it is upon the Interefl and Right. Mo. 814. pi. 1102. Mich.
8 Jac. Spanilh Ambaffador v. Plage
5 In all Cafes where the Defendant admits the JurifdtSiion of the Ad-
miral Court by pleading there, a Prohibition fhall not be granted, unlefs
it appears by the Libel that the Aci was done out oj their Jurifdiitiun ; And
thac
Court of Admiralty. ^33
chat though Sentence was given, yet if that appears within the Libel a
Prohibition ihall be granted i Agreed. 2 Brownl. 30. Mich. 9 Jac. C. B.
in Cafe of Jennings v. Audley.
6. A Suit was in the Admiralty on a Charter Party made beyond Sea on
the Landi a Prohibition was granted, becaufe not made on the Main
Sea. But ij the Defendant admits the Jiirtfdiffion of the Court, and
fuff'ers Sentence, then B. R. will not on a bare Surmife gra/it a Prohibition
after Jdmittance of the Party himfelf, ttnlefs tt appears tn the Libel ^ that
that the Ati was not made within the Jurifditiion of the Sea ; and the
Court agreed to this Difterence. 2 Brownl. 34. Mich. 161 1. 9 Jac. C.
B. obiter.
7. A Libel was brought by feiitral Mariners aj^aiiiji J. the Mafler of a So where a
Ship, and Judgment being given againjt J. he fiiggejied jor _^_-^-^ohtbition^^^'l'ff^'l''.l^
thiU the Contrad was made at L. m England^ but a Prohibition was <^Q- federal fea-
cied, becaufe he had not fued his Prohibition in due Time, viz.. he^ men to bring
fore a Judgment in the Admiral Court, but if they fue here they muit" •S'/'';/>'"»
bring their Actions ieveral, becaufe they cannot join herein an A6\ion,^^^yj^°j;^^
and therefore it is good Difcrecion in the Court to deny a Prohibition. 2;,j,„^„„'^,^^
Win. 8. Pafcb. 19 Jac. Jones's Cafe. certain Sum
to them to
be paid, a Prohibition was denied; For this mnfi be taken as Mariner s JVages, and therefore they
liave Jurifdiftion ; Beiides the Party comes aft»r Sentence, and therefore it is in the Court's Difcre-
tion to grant a Prohibition ornot. Vent. 1545. Mich. 31 Gar. 2. BR Anon.-- — —A Prohibition fhall
not go to the Admiralty to flay a Suit there for Mariner's Wages, though the Contraft were upon the
Land. For, ill. It is more Convenient for them to fuc here, becaufe they miy all join And accord-
ing to their Law, if the Ship perifli by the Mariner's Default, they are to lo(e their Wage?, there-
fore in this fpecial Cafe the Suit fhall be fufler'd to proceed there. Vent. 146 Trin 2;. Car. 2. B. R.
Anon> 5 Mod. 244. Arg cites Win. S. but fays the Rcafon of denying Prohibitions for Mari-
ners Wages feems to be becaufe they proceed in the Admiralty not upon any Contrad at Land, but
upon the Merits of the Service at Sea and allow or deduct the Wages according to the good or bad
Performance of the Services in the Voyage. And Ibid. 245. S. P. admitted by the Couniel of the
other Side; but fays, that the principal Reafon of fuing in the Admiralty for Mariner's Wages is,
becaufe the Ship is liable as well as the Mailer who may be poor and not able to pay the Seamen.
Mich. 4 Jac. i. B. R. Anon.
8. A Dtifikirker took a frenchman's Ship at Sea, and before it was
Inught Infra Prajidia oj the King of Spain, it was driven by contrary
Winds to Weymouth in England, and there the Ship and Goods were fvld ;
the Frenchman libell'd m the Admiralty Court pro intereffe fuo a-
gainft the Vendee, fuggelling that the Ship &c. was taken by Piracy,
and not by Letters of^Mart as was pretended, and pray'd a Prohibi-
tion. Bankes Ch. f. and Poller J. conceiv'd that a Prohibition Ihould
gOi but Crawley J. e contra. But all agreed j (Reeve J. abfente)
that if a Ship be taken bv Piracy, or if by Letters of Mart, and be not
brought Infra Prffilidia of that King by whofe Subje£t it was taken, ic
is no lawful Prize, and the Property not alter'd, and therefore the
Sale void. March, no. pi. iSS.Trin. 17 Car. Anon.
9. There was a Suit in the Admiralty for the Profits of the Beaconage
of a Rock in the Sea, near in Cornwall, and upon a motion tor a
Prohibition it was denied, for the Profits of Beaconage belong to the
Admiral, and by Confequence the Suit for thefe Profits may be within
the Court of the Admiralty, tho' the Beacon itfelf may be the Inheri-
tance of any private Perfon, and impleadable in the King's Courts,
Sid. 158. pi. lo. Pafch. 15 Car. 2. B. R, Crolie v. Diggs.
10. We being at fFar with Denmark, one M. a Scots Privateer, took ^iKcb mS.
Damp Ship as Prize, which was condemned as a Prize in ^ Scotland, <j«iVpl. 44 and
afterwards was bought by f. at Land, whereupon S. libelTd in the Ad- J,7^- P^-^^ ■
miralty here agatnji t. and M. and fijew'd ih?it M. took the Ship, ^"'^ Court held
that /he was not a Danifo Ship but a Ship of London and that pe was load- that the
ed with his Goods. T. moved tor a Prohibition becaufe he claiming Pro- Defendant
6 U Peny
Court of Admiralty.
liere h us no percy which he acquired on the Land, the Adniiriilty had no Jurifdic-
Piorei-ty, tion, efpecially as this goes in Nullity of the Proceedings in Scotland,
Sak'^^iiid^ where the Court of Admiralty there has as great Juiifdi^lion as the Ad-
the^l'v miralty here ; But per Cur. fince the queftinn is Prize or No Prize no
Qaeftion Prohibition fiiall go. Sid. 320. pi. 12. Hill. 18 & 19 Car. 2. B, R.
will be Thompfon V. Smith.
■Pri/.e or No '■ _,.,.. c ,-^ • 1 ■
Pvi7.e, an 1 rherefove they would ftay Nothing nor awards Prohibition. S. C. cited by Holt.
Ch. J. Comb. 444-
2 Kcb. 200. II. LikI was in the Admiralty again ft 2. for Marimrs Wages, and
pi :;i.S. C. jhei-e yyjjg Sentence and Execution againfi one of them, and he paid the
hdd that Money, and now they both movd for a Prohibition upon a Suggeltion
there was that the Contra6l was made at Land ; it was denied as to him who had
no Caufe of paid the Money, becaufe at that Rate one may have Prohibition feven
PKohibi'tiou Years after Sentence which is not reafonable, but granted as to the other.
after Sen- yjj , p^j-^.)^ q^^^ 2. B. R. Walker V. Adams.
tence exe- ^ D3 r T 7
Mothi'nr that can be Prohibited. Ibid. 21 5. pi. 55. S. C. the Con>-r inclined that no Prohibition
hw but'after the Parties agreed Ibid. 22;. pi. S8. S. C. The Partie.s agreed to_ ftay the Suit in
the Admiraltv, and the Defendant here to appear and take a Declaration in an Aflampit, tor the
Money receiv'd for the Seamen's Wages.
Lev, 24V 12. K Ship was frtte at Sea <7.f Prize, and being brought near the
Turner v. Shore was firanded, but the Foreigners trom whom it was taken libell'd
islealc.s. C. .^^ the Admiralty Court, n^onfiiggejl ion that it was not Prize. After
cxaftw's P leveral Debates the Court held that no Prohibition ihould go, becauie
2 Keb.' the taking was the Caufe of this Suit, the whichwas within the Juril-
;6o. pi 4- dittion of the Admiralty. Sid. 367. pi. 3. Trin. 20 Car, 2, B. R.
and 564. ^j^urner & al'. v. Smith,
pi. 10.
Turner V,
Meats S. C but not exL.£tly S. P.
13. A/. -d)a5 Captain of a private Man of War, in --duhich B. had an In-
terejf, and M. took a Merchant Ship beyond the Line, laden with divers
jlfercbandizes, B. [tied M. in the Court of Admiralty to have an Account,^
M. pleaded there the Statute oj 21 Jac. i. of Limitations, the Caufe of
A^ion bemg of more than 7 Years Handing before the Suit commenc-
ed as appeared by the Libel. And now M. fuggelled that the Court ,
of Admiralty would not receive that Plea, and therefore prayed a
Prohibition. And the Court held that the Plea ought to have been
receiv'd, for that the [aid Statute was pleadable there ; And if it were
not received, that the rejeft ing it was a good Caufe to have a Prohi-
bition, as likewile if they receive it, and do not give Sentence thereup-
on, as the Comrfion Law requires. But a Prohibition lies not before
refutal, becaufe the original Matter is examinable there. Hard. 502.
pi. 8 Mich. 20 Car. 2. in Scaccario. Berkeley v, Morrice.
14 A Prohibition is prayed to the Admiralty in Suit by the Mafter
and Mariners for Wages, which the Court denied, albeit the Mariners
were retained by the Mafter, unlefs it be by Charter Party of Jfraight,
nor has it ever been granted, and the Rule for Prohibition was difcharg-
ed. 2 Keb. 779. pi. 6. Trin. 23 Car. 2. B. R. The King v. Pike.
Skinn 59. '5' An Engli/l:i Ship was taken by French Man of War under Colour of a
Mich. 54 Dutchman, and carried into France and there Condemned h\ their Court
Car. 2 B. R. of Admiralty as a Dutch Prize -^ afterwards an Engli/b Merchant bought
Hugh.s V. ^^^^ ^i^-p gj-^j^^ Frenchmen, and brought her into England, where the right
S'C ra« OOT/V^T/'rort_^i'ran Acfion of !71owrlor the Ship againtt the Purchafor;
The Ship and all this Matter being found Ipecially, the Dtfaidant had Judgment,
•was Dutch becauie
Court of Admiralty. ^ 535
becaufe the Ship being legally condemned as Dutch Prize, this Court built, and
will give Credict to the Sentence of the Court ot Admiralty in France ; "^^^"^ '"^'^
And take it to be according to Right, and will not examine their pro- s?iip"^he
ceedings i for it would be very inconvenient if one Kingdom Ihould Maft'er was
by peculiar Laws corre6t the Judgments and Proceedings of the Dutch,
Courts of another Kingdom. This was a Cafe cited by the Court. [^eLrmen
Carth. 32. Englifli,
and two
I')ntcli. The Court would not fuffei- it to be argued, but ordered Judgment to be entered for the
Plaimitf; For they (aid that Sentences inCourts of Admiralty ought to bind generally according to
Jus Gentium. And if the Merchant in this Ca(e had received Wrong he ought to apply to the Ad-
miralty and Council, this being a Matter of Government, and that the King if he faw Caufe would
lend to his Ambaflador Leiger in France who would take Care that Right fliould be done, and
that if Right be not done, then the King would grant Letters of Marque and Reprifal. Raym.
475. S C. adjudged accordingly. S. C. cited Arg. Show. 143. S. C. cited Comb. 121.
per Holt Ch. J.
16. If a Man is taken on fnfpicion of Piracy, and a Bill is preferred a-
gainjl him, and the Jtiryjind Ignoraiinis ; Ij the Court oj Admiraity will
not difcharge him, the Court ot King's Bench will grant a Habeas Cor-
pus, and if there be good Caufe, dilcharge him or at leall take Bail for
him. But if the Court fulpe£^ls that the Party is guilty, perhaps they
may remand him; And theteibrQ in all Cafes, where the Admiralty le-
gally have an Original, or a Concurrent Jttrifdi^ion, the Courts above will
be well informed bej ore they will 7ueddle. Molloy 70. cap. 4. S. 31,
17. No Prohibition lliall be granted where a Libel is not brought into
Court; Per Cur. Comb. 136. Trin, i \V. & M. in B. R. in Cafe of
Corlet V. Hufely.
18. Libel in the Admiralty againll the Mailer and Ship which lay in
the River Thames, for heedkjly running over another Ship, the Defendant
there mov'd for a Prohibition. The Plaintiff injormed the Court that the
Defendant would not appear fo that he could have no Affion at Law ; And
thereupon the Court retufed to grant a Prohibition, unlefs the Defen-
dant would appear and give Bail. 2 Salk. 548. pi. 3. Tria 4 VV^. & M.
in B. R. Wharton v. Pitts.
19. The Ship was libelled againji in the Admiralty, for that the Maf-
tcr being taken by a French Privateer, had ranfomed the Ship for 300/. and
h'xd fued for the Payment of it, and was carried Prifoner to Dunkirk, and
the Money was not paid 6cc. and Sentence was given in the Admiralty a"
;-\:;fiJi the Ship ; And upon Motion tor a Prohibition it was denied by
l.'.ilt Ch. J. then alone in Court, becaufe the taking and pledge being
UL)on the High Sea, the Ship by the Law of the Admiralty pall anfwer for
i^e Redemption of the Majier by his own Contra^. Ex relatione M'ri
I iace. Lord Raym. Rep. 22. Mich. 6 VV". & M. Wilfon v. Bird.
20. One B. by Letters of Marque ^c. Jrom the African Company, took a Comb. 444.
French Ship near Gambay, which he carried into Africa, and the Admi- '^'^ ^'"S
ralty there condemned her as Prize, afterwards B. fold the Ship at Land, g q°°^''q
and applied the Money to his own Vfe, and then coming into England was pi-ay'd a
fued m the Admiralty here for an Accompt. After Sentence given againft Prohibition,
him, he Appealed, and mov'd for a Prohibition, but denied i For the ^g^j^'ng
Suit here is but on Execution of the firll Sentence, by which the Ship shln wts
is adjudg'd the King's Prize, and the Admiralty having J uriidi£lion, taken Super
their Sentence did bind the Property, and cannot be gainiaid till reverf- Terram in
ed by Appeal. i Salk. 32. pi. '3. Trin. 9 \V. 3- B. R. Broom's P^'"^'^^
f^ r ■> i^ J y •' tranfmari-
^^^^' nis ; but it
was denied ;
For per Holt Ch. J. the "takhig hehig at Sea, that gives the Admiralty a Jurifdidion and the SuhfecjHent
CcK'unjien IS to he cciipled with it 5 Mod. ^40 S. C. and it was further iniifled for a Prohibition,
that the Property being once vefted in the King by the Condemnation of the Ship as Prize, there
can be fuit in the Admiralty here afterwards ; For if after luch Condemnation the Goods are con-
verted, the Kuig mult bring an Action of Trover; and that this is a plain Aftion ofTi-over upon the
Face
c^Q^6 Court of Admiraity
Fn;e of the Libel. But ir was anrwci-'d t\xM thii Ship ivas tixketi '■without any Ccmrrijjlnt! or Letters of
Mart, and therefore it is a I'erquifite to the Admiralty, and B. is refponfible to the King for Ship ar,d
Goods. 12 Mod i;4. S. C and held that by Law of the Admiralty the Property of a Sh'p t.iken
ivithout Letters of A^ art -ve/ls in the King upon the taking, and this upon the High Sea, and therefore that
which was taken was but in Truft for the King and he, who took it, is but accoiinrabie to him •
Ard for the Account and Breach of this Truft the (uit in the Admiralty is very proper. Now if the
Pa-ty, that rook this Ship, brought it to Land and there fold it and converted it to \\'u own \JCe, this
makes liim aWrong-Doer ab Juitio, and Rule (or a Prohibition v.as difcharged.— Garth. 59S, 599 S C.
and Prohibition denied, becaufe the Admiralty liad Jurildic'tion of the Original Caufe which was tlie
Capture, on which the King's Title immediately accrued, and the Embe7Jlmcnr was immediately up-
on the Capture, and lb all was but One continued Aft ; And this ad Libel was but a Continuance
of tiie tirft fuit and a Charge grounded on the firft Sentence by way of Execution thereof.
Carth 42;. 21. A Z^'fo/ in the Admiralty was/or the Giption of a Ship generally
Thermolin without fliewing that it was upon the High Sea, but the iubfequenc
V. Sands Proceedings did fhew it. Alter Sentence in the Adiniruky a Prohi-
ji."„,y ^ 'bition was mov'd for, but the Court was divided. Comb. 462, Mich.
Ld.Raym. 9 W. 3- B. R. Tiemoulin v. Sands.
Rep. 271.
Shermoulin v Sands S. C. accordingly, and fo on Prohibition was granted 12 Mod. 143. TeiTc-
moulin v. Sands S. C. the Court divided and fo Rule for Prohibition was difcharged.
22. B. R. will not prohibit «//?/&<? /I^?n;/f"j or any one oi them to
fue in the Admirahy jor their Jl- ages. For per Cur. there is no Difle-
rence where one libels, and wheie many do. For the Reafon why
B. R. permits Mariners to libel there lor their Wage.«, is not only be-
caul'e they are Privileg'd to join in Suit there, whereas thev ought to
fever at Common Law, becaule they Contra6ls arc leveral ; But alfo by
by the Maritime Law, Mariners have Security in the Siiip for their
Wages, and it is a kind ot an implied Hypothecation to them j And
thereiore B. R. allows Mariners to fue in the Admiralty for their
Wages, becaufe the have they Ship there jor Security. Lord Raym. Rep.
398. Mich. 10 W. 3. in Cafe of Hook v. Morccon.
S. C. cited 23. On a Queftion whether a Mate oj a Ship might libel in the Ad-
Ld R,.vm. miralty for Aiariners Wages^ it feemed to the Court that a Mate is but
Rep. 652. a Mariner and therefore might libel there. Lord Raym. Rep. ^^^^
398. Mich. 10 W. 3, Hook v. Moreton.
24. Prohibition nili Caufa was granted to Court of Admiralty for
Libelling there for Seamens's Wages^ it appearing on the Libel that the
Service voas all in the River 7'hames. 12 Mod. 230. Mich. 10 W. 3.
Bidolph and Bruce.
12 Mod. 25. \i d. Shiphz arrefied by a Proccfs ont oi tht Court of Admiralty
^tlperCur for a Matter arillng within their Jurifdiction, tlio' Ihe be rcfciicd at
the Court ' Land, the Conufance of the Refcue belongs to the Admiralty, Other-
of Admiralty wife not; Per Holt Ch. J. Ld. Raym. Rep. 44,6. Pafch. 11 W. 3.
may vefeife Ridden V. Hedges,
her out of ^ °
their Jurifdiction, and no Prohibition lies.
* S. C cited 26. Tho' a Mafter of a Ship cannot fue in the Admiralty for his
V i^°Mod' ^^^^g^^J y*^*^ polfibly if the Majier dies in the Voyage and amther Man
4o6."by ° ^'^'^^ "/""^ ^''" ^^^^ Charge of the Ship upon the Sea., fuch Cafe might be
name of difterenc, as in the Cale of * iSrofUJlCi) tl. IdUtfjflCP, where it was
Crosby v. held lately in this Court, that it a Ship was hypothecated and Money
•'"°^"f\'.~r borrow 'd upon her at Amlterdam upon the Voyage., he that lent the
bv Holt'ch -Money may fue in the Admiralty tor it, and this Court granted a Con-
f'. Ld. fukation. But in another Cafe, where Money was borrow'd upon the
Raym. Rep. Sh\^ before the Voyage B. R. granted a Prohibition, and the Parties ac-
'A^-f'ilr quiefc'd under it. Per Holt Ch. J. Ld. Raym. Rep. 577, 578.
g, ]y{ i,, i rm. 12 VV . 3. m Cale 01 Clay v. Snelgtave.
B. R. Cof-
taid V. Lcwllie. S, C. cited i Ld. Raym. Rep. 805. Arg & ibid per Cur. S06. Mich i
Ann.
Court of Admiralty. 537
Ann. in Care of Jullin v. Ballain S. C cited Aig. and by Holt Ch. ]. z Ld. Raym. Kep.
oS;. Trin 2 Ann. hy tlie name of ColTrirt v. Ltwdflcy 6 Mod. Tp. S C cited by Holt Ch.
J, as the Cafe of Corftwi-k V Lowfelev. I VV. & M argued and i-er-)lv'l by all the Judces. And
Powell J. added, That tlio' in that Cafe the Libel laid the Conti-aft to hn.ve been Tuper Alt'um Mare,
vet the Court took Kotice of it as done at Rotterdam ; but being in the Vovafje, and occafioned by a
SxreCf at Sea, it was held well enough within their lurHdiftion, and that the Hypothecation of Ships
i- abrolutcly nccefTiry for the pvc'eri'Htion of Nivigation ; for the Maffe's have nothing elfe to get
Credit with, and they are the only Court can give them Remedy ; If a Ship in H.irbnur here in Eng-
land be Hypothecated, thev fhall not fue for it there; Msffer can't at any Time lell but he may
hypothecate in Vovage for NeceiTarics ; But the Libel being agjinft the Ship* and Party, the Court
faid, they would fend a Prohibition as to him unleft quatcnus it is necefljry to make him Party to-
wards the Condemtiation of the Ship ; and fo it was done.
Comb H5. Corfet v. Hufcky Trm 1 W. & M in B. R the S C. and a Confultation awarded
by the whole Court; and Dolben |. f-iid, he wondred that this could be mide a Queftion, fin^e it
was admitted that the Monev was for tWe VCe of the Ship, but if the Mailer had employed the Mo-
ney to his own Vfc, a Prohibition fhould have gone.
27. Executor of the Mailer of a Ship libell'd in the Admiralty L<^. Rayni.
Court for Wages owing to the Teftator by the Owner ; but a Prohibi-^ ^^P- 57<'-
was granted, i. Sulk. 33. pi. 4. Trin. 12 W. 3. B. R. CLy v. ^l"J,"tt
Sudgrave. accordingly.
... • Carth.
51S. S. C. fays, 111 this Cafe it happen d, that the Owner was beyond Sea, and the Counfel for the
Adminiftrator infiffed that no Prohibition mio;ht go, unlefs fome fufficicnt Perfon would appear and
put in Bail in an Aftion to be brought againft him ; becaufe orherwife this Debt might be loft; and
the Court thought it rcalbnable fo to do, But afterwards a Rule was made for a Prohibition 'abfo-
lutely without any Condition. Ld Raym. Rep 57S. S. P. mov'd by Nortlicy, who faid,
that this had often been do"e ; And Holi Ch. J confeU'd, that the Court had fometimes interpofed
and procured Bail to_ be given ; but then it whs by Confent, and in Cnfe of the Proprietor himfclf ;
But in regard that in thi.s Cafe the Plaintift was a Purchafor wirhout Notice, there wajnoRcafon;
and a Prohibition was granted.
28. A Ship put into Bofton in New England, and there the Maifer 6 Mod 79.
took up NiCelJ'aries and gave a Bill of Sale by H'aj of Hypothecation for the^- ^ ^'^■'^ ^•
Payment of the Moneys and now upon a Stat agamji the Ship^^J^l^^^^'^'
unci the O-juners^ a Prohibition was granted as to them, becaufe tneandthf^'
Court held, that the Concraft of the Mafter cannot make the Owners Libel being
perfonally -fubjea to a Suit 3 but as to the Smt agatnfi the Ship a Prohi- ="£3'"'^ the
bition was dented, becaule the Matter can have no Credit abroad, but ^'^'PJ'"'^
upon a Hypothecation of the Ship, and it is not reafonable to hinder [he Coun
the Admiralty Irom giving a Remedy where we can give none our- iaid, they
felves. I Salk. 35 pi. 9. Trin. ' 2 Ann. B. R. Johnlbn v «o"lcifend
Shippen. a Prohibiti-
'^^ on as to him,
. . ~. 11- n unlefs qua-
tenus It is necedary to make him a Party towards the Condemnation of the Ship; and fo it was done
. 1 1 Mod. 50. S. C. accordingly. j Ld. Raym, 9S2. S. C, accordingly.
29. The Mailer took Procefs out of the. Admiralty, againft the 2 Ld. Raym.
Owners, to arrej the Goods landed at Enfiol in caiifa Salvagn. Before ^"^P 9?i-
Appearance it was moved for a Prohibition on Affidavits of the Matter ^^"p'"' ^'
beiore Libel, whereby it appear'd that the Goods landed were arrelleds.C accord-
in Caufa Salvagii. But per Cur. Tho' the Goods are now arrefled atingiy, and a'
Land, yet the Salvage, which was the Caufe of the Arreft, mio-ht''''°^ibition
be at Sea, which will appear by the Libel, and therefore a i^ro/:7/^T?/- ^'^"'j'^'^. '
on was denied >tillJppearance or Libel exhibited, and the rather becaufes 'c°and'"
the Party may have Remedy by Trefpafs or Replevin, and this is not Rule for
like SnnB0'!3 Caft, where on Procefs to llav a Ship in the River a Pro- Prohibition
hibition was granted before Appearance ^ for that Procefs was' not ioi^'^^'=-^^'Z^^-
an Appearance as this is, but was in Nature of an Execution, i Salk.
35. pi. 8. Mich. 2 Ann. B. R. Tranfer v, Watfon.
30. It was moved for a Prohibiton to a Suit in the Admiralty for
Seantens Wages on a Sv.ggcfiion that the Contract -was made by Deed at
Land. But upon reading the Suggellion it appear'd to be General,
6 X thac
y^8 Court of Admiralty.
that the Contraft was made at Land. The Suggellion was amended
and made Per Scnptum, But the Court held u inruffiuient ^ l»r it
might be hy Writing and yet not by Deed, and if lb it is only a
Parol Contraft, and the agreement was urged to be Special, yet the
Court lield, that did not draw it from the Admiralty's J uiifdiction ;
2nd the Motion was denied. 2 Ld. Raym. Rep. i2c6. Mich,
4 Ann. Benns v. Parre.
Powel J. 3 1. A Motion was made for a Prohibition to the Court of Admiralty
^^''^'k'^'h'^" in a Suit there by Seamen for their IVa^es upon a Suggcftion that the
CaiT of the Court refused to allow the Defendants Allegation that the Place^ upon the
Hke Mature, arrival at which the Plaintiffs intitled themi'ches, was not a Port of De-
vliere a Suit Uvery; and that they refit fed to receive the. Allegation, tinlefs the Defendant
v/as com- '-joonld bring the Money demanded into Court. But the Ch. J. and Powell
the'coui" ^""^'"^J ^^^'^ thex\dmiralty Court were the Judges of that Matter^ and that
f.f Admiralty it they did not do the Delendant right, his only Remedy was by Ap-
hy Seamen peal^ but it vv.is no Ground for a Prohibition ^ The Suit here was lor
for their Wages upon the arrival of the Ship at Guinea. 2. Ld. Raym Rep
ontheV' '247. Pafch. s Ann. Brown v. Benn, & aP.
rival of the
Ship at Newfoundland ; and tlio' the Merchants all held it no Port of Delivery, yet the Court of
Admiralty held the Contrary, And fo did the Court of C. tJ upo.-i a iMotion for a Prohibition. 2
Ld. Raym. Rep. 1240. i>. G,
32. A Prohibition does not lie to the Admiraky Court before Sentence^
tho' otherwile it is as to the Spiritual Court. Holt's Rep. 49, pi. 5.
P.ifch. 5 Ann. Brown's Cafe
33. The Defendant and other ^yi^ra^a //W/^^/ in the Admiralty Court
for their Wages ^ andfet forth in their Ltbel^ that they went tofuch a Place^
or Coajt in the Eaji Indies., and that the Plaintiif had not paid them
their Wages £vc. Sir James Montague moved lor a Prohibition, for
//tu:; Co//)-/ a'///;;oZ by their Way of Proceeding, receive out Anfwer but
upon Oath ; by which Means we Jhall be forced to difcover that we traded to
the Eaji Indies^ and fo incur a Penalty inilitled by A£t of Parliament
which is general, prohibiting all the Subjects of England to trade or
tralHck there, except they have a Licence, or are of the Ealt-India
Company. Ptcjides, thefe Mariners have a Ccntracl under Hand and
Seal for their Uages, on which they may fue at Law. But the Prohibi-
tion was denied ^ tor it is reafonable and juft, whether their going thi-
ther was lawtul or not, that you Ihould pay them their Wages; there
is no unlawful Atl fuggelled, and if there be a ContraiSt under Hand
and Seal tor their Wages, yet the Admiraky may have Jurildiction
thereof as Incidental; bur it they Judge concrary to our Law, we
will prohibit them. But they on the other Side deny the Contrail to
be as you have alleged. Holt's Rep. 45. 50 pi. 6. Mich. 5 Ann.
Gawn V. Grandree.
34. A Prohibition was pray'd, becaufe there was a Suit for Wages
and for Expences in 'travelling by Seamen, quoad the 'travelling E^^pences
which were due to them in going by Land from one Ship to anuther, but
belonging to the fame Mafler, Sed non allocatur; tor Ihall the Seamen
be turn'd on Shore &c. and to Tra\el trcm one Place to another
withouc having their Charges or Wages born &c? Per Powys fenior
E)re, and Powys junior. Hill. 12. Ann. Reg. B. R. ex Motione
Mr. VVhitacre.
35. A Prohibition was pray 'd by the Owners c")f a Ship to ftay a
Sun in the Admiraky by the Majier and Seamen again fi the Freight of a
Ship, becaule the Suit oughr co have been ag^nnlt the Ship or the
Owners ot it, not againll the Freight as here. Sed non allocaiur, for
rhe Seamen may join, and by their Law they may lay hold of tie Ship, and
if by their Law they can lay hold of the Freight too, why Ihouid he
proaiuit
Court of Admiralty. 439
prohibic them^ BcJidcs was there ever a Prohibition granted at the
Suit of a 3d Perfon, as here you pray it, but a Prohibitiun only as to
the JVIalter ? Mich. 12 Ann. B. R, Keclanham v. Foliamb.
& al'.
36. A Majfer of a Ship faed in the Admiralty /or his Wages and laid
the Contra^ to be made I/ijra Fiuxiim ^ Refliixum Maris infra Jurifditfi-
cnem Caria: Aivtiralitatis ; but a Prohibition was denied to be given,
becaufe it was after Sentence. 2 Ld. Kayin. Rep. 1452. Mich, 13
Geo. Barber v. Wharton.
(E. 4) Admiralty, Pleadings.
I ^~\^ Brcttght Jcccnnt for Goods agaiiiji P. inC. B. and thereupon P.
J[_ • fuea T. in the Court ot the AdjiiiraJy^ fttppojiiig the Goods to
ha've been receivd in foreign Parts beyond the Seas .' and the faid 7". being
ccmmitted jor refiifing to anfiver upon his Oath tofome Interrogatories there
propos'd to him, brought his Habeas (Corpus, which was return d thas^
Ego William Pope Marefcalius fupremce Curiae Admiralitatis Anglise
Dom. Jultic. icrenili". Reginie noltrte in brevi huic Schedulje annex,
fpecificat. Certific. quod mfra vocar* T. ante advent, illius brevis
capt. fuit &; Cultodiai meae commili' ex eo quod diftus T. vinculo
Sacramenti coram Judice Admiralitacis Anglise alltiftus ad refpon-
dend. quibufdam Articulis contra eum in difta Cur. dat. &c. fub
Poena quinque Librarum, &c. contumaciter examen fuum fubire re-
cufavit, idcirco, &c. and it was reiblv'd by the Court of Common
Pleas ; That the Return abovemention'd was infufficient as being too
general, becaufe it is not fpecified for what Caufe or Matter T. was
examined, fo as it might appear that the Interrogatories were of fuch
Things, as were within their Jurifdiflion, and that the Party ought
by Law to Anfwer upon his Oath, for otherwife he might very well
refufe. 12. Rep. 103, 104. Hill. 2 Jac. Tonilinlbn v. Philips.
2. A Libel in the Admiralty laid a Contra^ apud Malaga mfra^'^^- 79 »«
Dijtriifas Maris vocat' the Straights of Gibralter Intra JurifdiftionemF."'""^, ,"
Maritimam, and a Prohibition was gratited, becaufe it appear'd that cording I y!^
the ContraQ: was made in the Illand ot Malaga, and then the adding
Intra Juiifdiclionem Maritiniam is void. Hob. 213. in pi. 270. cites
Mich. 9 Jac. Audley v. Jennings.
3. In an A£lion upon the Cafe for faing in the Court of Admiralty, % Bulft. 205.
for a I'hifig done in Corpore Comitattis the Count was .^lod per St a-^^""^-^^
tut' 11 R. 2. inter alia, it was enaded, that the Jurifdiifwn oj ^'^^ ^^- the Count
viiraljhall extend only to Things done^ Super ahum Mare ^ and it does not only \al-i,
recite the whole Statute; 7ior that it was in Parliament ; Yet adjudged (Quod in
good and affirmed in Error ; For it cannot be a Statute unlefs it be made^.^^''^'° '^°"-
in Parliament ; And No-body is bound to recite any more of a R-ecord 'j'|^",^^^i. ""^
than what is (uflicient to induce the A£tion ; As in Debt upon a Judg-held it to
ment it is fufficicnt to recite only the Judgment. Jenk. 323. pi. 34.be no Error,
cites Fiemming v. Yates. ^"'^ '° ''^^^^
wite as to
the Count being (Inter alia enaftirarum fuit,') and Jildgm:m aiSrmed. — Roll Rep 205 pi. J.
and 210. pi. 51. i..C. but &. I^. does not appear.
4. Trefpafs for breaking a Ship and carrying away her Sails. The De- Godb 58,-.
fendant jujlified by a Warrant from the Admiralty to arreji the Ship and ^o^"^'^,, P'/
kctp her fije, by Virtue whereof he entred and carried away the Sails, t'',jj|.'*g'' ^
which is the fame Treipafs. It was obje&ed, that the breaking theuicS. C. but
Ship ^ '^^ r"^t ob-
^ lerve S. P.
5^o Court [of Cinque Ports.]
Ship was not anfwered, neither was there any VVarranc to carry away
the Sails i but per Cur. the Piea^ is good; becaufe the Entry into the
Ship by Virtue of the Warrant is in Law a Breaking it, as CJaufum
Iregic &c. and that he might carry away the Sails ; for this is the
Manner of their Proceedings and grounded en Reafon^ becaufe he could
not keep her fafely, if the Sails are not carried away. Latch. 188.
Mich. 2 Car. Creamer v.Tookley.
5. H. brings an Albion of Falfe Imprifomnent againft G. The De-
fendant pleads a fpecial Juftification^ that he took and imprifoned the
Plaintiff by Virtue of a Commijfton granted out of the Court of the Admiral-
ty, to esamine the taking away of certain Gooils which ivere wrecked by the
Sea. The Plaintiff demurred, becaufe the Defendant has not fet forth
the Cujiom of the Admiral Court, that the firjt Procefs thereof is a Capias^
and fo it appears not whether he have proceeded right or not. adly, Ic
docs not appear that the Matter for which the Commijfion was granted is
Maritime, and other Matter they ought not to meddle withal. The
Rule of Court was to ihew Caufe why Judgment Ihould not be given
againfl the Defendant upon this Plea. Sty. 64. Mich. 23 Car. Hull v.
Gurnet.
6. A Libel for a Ship taken by Pirates, and fold at Tunis, but made no
Alention that the Ship was taken Super Alt urn Mare i and though there
was contained therein very much to imply it, yet the Court held that
to be abiblutely neceflary to iupport their jurifdiction. Vent. 308,
- Pafch. 29 Car. 2. B. K. Anon.
$httvi. 6. 7. Trefpafs for taking a Ship &CC. The Defendant pleads, that he was
vS. c and Captain of a Man of War, and that he took her on the Pligh Seas as a
H^i -^ o '" Prize, and carried her to and there profecuted her, and condemned
47. is«)py''d ^^''' ^" ^^^ Admiralty as a Prize &c. Upon Demurrer Holt Ch. [. held,
thence. that he was Captaiji was well enough ; he need not [Ihw hisCommifft-
Comb 1 20. on • but it does not appear how this Ship came to be a Prize, nor that there
^ ri" -d} ™'"^' '^"y ^''^^f^ tofeize her as fuch, nor that there was any War; The lubfe-
thePlain°- quent going to the Admiralty cannot juftify the firll illegal Caption.
tift. ^&\\Aiis,\z\s not /hewn who fe Court of Admiralty it was, nor before what
c;arth ;i. fudge, judgment proQuer' by the whole Court. N. B. This was aa
f '''h^^' interloper feized by the Eaft India Company, and carried to_ the In-
°Mod 194. ^''^•'^> '^"^ there condemned by the Company's. Admiral &c. Holt's
Heak V Rep. 47. pi. I. Pafch. I \V. & M. Beake v. Tyrrell.
TKvrwir,
X. C. adjornatur.
For more of the Court of Admiralty, See 4lnfl. 134. Cap 22.
and Prynn's Animadverfions, Amendments oi, and additional
Records to 4 Inft. 75. to 134,
Cinque Ports,
(E. 5) The Jurlfdidlon of the Cinque Forts.
He that is I. 28 £. I. ^^^T^HE Conjlahle cf Dover Caflle p.>all not hold Plea of any
the Con- , cap. 7. Jl foreign County within the Caflle-Gates^ except it con-
ftable, or f^^^j the keeping of the Cafile ; neither pall he difhain the Inhabitants of
•"^KeTTr^' ?/??£ 5 Ports to plead elfewhere, or otherwife than as they ought , according to
ot tlie Cifilethe Form of their Charter, confirmed by the Great Ch.vter.
of Dover,
is alio the Warden of the Cinque Ports; and the Kinp^sJf^rits direfted to him are direHedRex &c B.
Lhiftabulario Ctftri fui de Dcver, ^ Ctiftidi '^tiiique PorUixrf fucj;im \ \>\ii ht'xs conim:nly cnlhdLcrd
Court [of Cinque Ports.] 54.1
//'ir.icwof the Cinque Ports Tlie Ciaque Ports ar-, H.i/}i>i(;s, Dover, Htil.e, Rnmney, and Sand<wtch,
v,bereur,tn If IncJielfea a)td Rye {-i^ mud ot fioxt) and other Toiuns he adjained 2 Inll. 556.
The Conftible of Dover, and Lord Warden, bm two Yiirijdh-itms, vi?,. The Authority of an y4dmi-
r.tl, and to hold Ptr,i by Bill concerriin't the Guard of the Caj'lle &c. according to the Courfc ot the Com-
mon Law> and ot this Jurildidtion doth our Statute ("[jeiik. 2 Inft. 556, 55";.
2. A hroMghtDeht in London by\\^ric in C. B. agaiiif}- the Gaoler of the
Cinqne Ports, hccatife he had jf. Af. who was condenin'd en the Plaintiff,
i?i Execution^ and fnffered him to efcape in London. The Defendant plead-
ed Nul tiel Record. The Jafiices write to the Confiahle of Dover, and
he over to the Barons of the Ctnqnc Ports. V>v. Cinque Ports &c. pi 26.
cites 30 H. 6 6. And Brool<e fays, Ec fic vide that the Jultices ol'C B,
may write to the Conltable of Dover for a Record of the Cinque
Ports.
_ ^. Recovery in B;znk of Lands in the Cinqne Ports is good as it is in An-
cient Demel'ne, or of Lands where Conufance of Pleas is; and yet in
other jiff ion of the fame Land again at another Ttme, the 'tenant may plead
that it IS m the Cmqne Ports in the one Cafe, and the Lord may demand
Clonufitnce in the other Cafe, and Co the Nature of the Land by this
Recovery is not changed. So it feems ot Recovery in Bank ot Land
in London. Br. Cinque Pores, pi. 24. cites 36 H. 6. 33.
4. It was faid, that the Cinque Ports are not hy Grant of the King,
nor hy Prefcnpticn, hut by an Act tn an ancient Parliament. Qiisere. Br,
Cinque Ports, pi 23. cites 12 E. 4. 17, iS.
5. In Trefpais it was fiid Arguendo, that Recovery in C B. of Land
which lies m Chefler, Dtirhum and Lancajier^isvoiil ; Contra in the Cinque
Ports \ Qiia;re & Itude diveriicatem. Br. Cinque Ports, pi. 24 cites
9 H. 7. 12.
6. The Conftable of Dover, who is Warden of the Cinque Ports,
lliall not hold Plea of a Thing luhich arijes in the County out of theCtnque
Ports. Br. Jurifdiftion, pi. 99. cites F. N. B.
7. The Conltable ot Dover, who is Warden of the Cinque Ports,
cannot hold Plea of a Thing which doth belong to be determined in the Coun-
ty, if it be not of a Thing concerning the keeping of the Cajlle of Dover ; and
it" he does, the Party ihall have a Urit directed unto him to furceafe,
and upon the fame an Alias, and a Plurtes, and an Attachment. F. N.
B 240. (B)
8. If the Con liable holds Plea of any Thing of which he ought not for to
hold Plea, the Party Jhall have his Aciion upon the Statute, although he
does not fue tbrth any Writ before directed to the Conltable. F. N. B.
24° (C)
9 The Defendant was committed becaiife he would not anfwer, the Land
lying in the Cinque Ports. Toth. 21J. cites 40 Eli z,. Langham v.
Eeachampe.
10. Appeal of AJurder was brought in B. R. of a Murder done uponYelv. 12.
the Plaintiff's Brocher at S. in the County of K. It was obje£ted that it^- ^ ^"'^ '^*^
did not lie, becaufe S. was within the Cinque Ports where the King's-^^".^ fn .
Writ does not run, and that the Cinque Ports nor any Part of them are For though
within the County of Kent. All the Juftices delivered their Opinions the Cinque
feverally th;'.t the Plea was not good tor the Matter j becaufe this Ac-^.°'''^ '""^ .
tion of Appeal is higher than an Attion Real or Pcrfonal, and in LibertKT
fome Sort concerns the Queen ; And in fuch Cafes as concern the Queen yet the Rea.
it is no Plea to fay that it is within the Cinque Ports, As in a Quarei'on of the
Imped it. Cro. E. 910, 911. Mich. 44 & 45 Eliz.. B. R. Crilb v.^"."\°f
\;„" ,1 ^ :i 7 TT tJ t thole Liber-
^ "'^'^'- ties ^vas for
the Eafe and
Benefit of the Inhabitants and not to their Prejudice. A 2d Reafon was, becaufe the Defendant ha-
ving done the ]\Iiirder within the Cinque Ports and flying out of the Cinque Ports, if the Pleading
here fhould be good, there would be a Failure of fultice ; For thofe of the Cinque Ports canoot try
h'm, becaufe he is not there. Po^-.hdtn faid, if the' Defendinc had fhewn that at th= Time of the
6 Y Murder
h42 Court [of Cinque Ports.]
Murder fuppoicd, and ever after he h.'.d hc-en and was an InhabitJiir and Comrniraiit witlii;i iheCi'ique
Poits, and to by liis Plea he h:iJ given Jurifdiftion to the Court tiiere, and tliey as [udjjfs pvavM to
have View, that the Defendant, if Guilty, might hive receiv'd a Sitisfadtorv Judgmenr, v\z Deatli
for Deatli, then the Plei had been good ; bin the Defendant has not fliewn any fuch Thini^ wherehy
it appears that this Court ol the King hns lb much Jurifdiftion A 3d Rcafon was added by Gawdv,
Fenncr and Yelverton J bejaufe tiiis Court of BR. is the moll High Court of {uliice, and of
greateft Sovereignty ; And though the Kings before have granted Conufance of Appeals to the Barons
of tlie Cinque Ports, yet this does not give away the Queen's Iiuercft as touching herleU, and in this
Appeal the Queen has Intereft by a Meane ; For if the PiaintitF be nonfuited after Declaration or re-
leales (according to 29 H. 6. Corone ) yet the Defendant fhall be arraign'd at the Suit of the
Queen And further all the Court held the Plea Double and Repugnant; The one is, that Sand-
V hicli is Parcel ol the Cinque Ports, Ubi Breve Domina: Reginae non currit, which is a Matter in Law-
put in the Judpment of the Court ; The other is, that it is not in the County of Kent, which by the
firft Plea is denied, viz by laying that it is Parcel of the Cinque Ports &c and yet by the other Parr
it isutterlv denied ro be in the County of Kent and fo Repugnant ; And alfo in Truth all the Cinque
Ports are Parcel of the County, though by their Charter they are exempt from being drawn in Plea
within the County generally.
1 1. Of fuch Things whereof the Conftable of Dover and Lord Warden
hath JurildiiSlion, he is the immediate Officer to the Court, and as it has
been faid, Writs jhall be diretled to him as in all real A^tiom i^c. for Land
•within the Cinqiie Ports. 2 Inll:. 557.
12. They ot the Cinque Vorts have great Liberties and Privileges, In
refpecl of their nt-celiary Attendance in the Pores for the Delence and
Salety of the Reahii. 2 Inlt. 557.
13. If a Precipe be brought againft one for Land within the Cinque
Po/tJ and he appears and pleads to it, and Judgment \it given againji
hini in C. B. this Judgment Jhall Ltnd him for ever i li)r the Land is not
exempted out ot the County, and the Tenant may wave the Benefit of
his Fiivilege. 2 Inil. 557.
14. The Cmqtie Ports are not exempted out of the County for divers
Cau-es. ift. The Conitable of Dover has no general jurildi6lion within
the Cinque Ports, but it is limited j For Example, if a Man h^ mur-
dered in any of the Cinque Ports the Wije (hall have an Appeal againlt the
Murderer direfied to the Sheriff of the County, and he Ihall execute the
Writs within the Cinque Ports; lor the Conjiable hath no Jurifdiiiion to
hold Plea thereof as it was refolved Trin. 42 Eliz. in an Appeal
brought by IBaC0 !)♦ 'BapUCg, for the Murder of her Husband at F. in
the County ol K. 2 Inlt 557.
15. And/o it is // he be in Cuftodia Marefcalli, the Appeal may be
brought by Bill againft him for Murder in any of the Cinque Ports.
2 In!t. 557.
16. Alio if the Conftable of Dover hold Plea of a Foreign Plea, con-
trary to the Purport of this Statute, an Aftion upon, the Statute doth lie
againft him, and the Writ may be direfted to the Sheritf of the
County, and he may ferve it within the Cinque Ports. 2 Inft.
557-
17. Prohibition was mov'd for to the Court of Dover, for that they
hild Plea there by Plaint, in Nature of a Writ of Partition betucecn 'Te-
nants in Common, but they having proceeded to Judgment and Esecution,
all the Court held it too late for a Prohibition, inafmuch as there is no
Perfon to be prohibited, and Polleflions never were remov'd or difturbcd
by Prohibitions. Sid. 165. pi. 24. Mich. 15 Car. 2. B. R. Hall v.
Norwood.
For though iS. They may hold Plea of Franktenement in the Cinque Ports j for
tlicy have otherwife there will be a Failure of Juftice. Per Keeling J. Sid. 166.
a Chancery j^ ^ ^.A. Mich. I? Car. 2. B. R.
in the r -T
vet thev do no' ""»*« ""J orighul Writs there, but it fcrves only to decide Matters of Equity; Per
K.elin<» J. Sid- '66. in pi. 24. Mich 15 Car. z. B R.
J9. The
Court [of Cinque Forts.] 54- "^
19. The great Ufe of their Chancery there is to be reliev'd a^ainji Errors
in Prccceditigs at Laia, the which Errors they ufc to indorleon the Bill ;
And the Reafon of this is, becaule the VV'rit of Error of thole judg-
ments lies only at Sheppy, the which Place if it be admitted to be
known, yet the Lord Admiral has not held Court there for a long^
Time. Sid. 356. in pi. 6. Hill. 19 & 20 Car. 2. B. R. at the End of
the Cafe of Ting v. Merriwether in a Note there, fays, lie diftum fuit.
And Twifdcn J. faid, that Writ of Error or Certiorari lies to the Court
of Sheppv, though not from that Court to the Inferior Courts there,
iind that'fo the Books which fpealc of Error to the Cinque Ports are
to be underllood, Q^uod Nota.
20. A Certiorari was fent to W. for a Record that they had made,
whereby they had tased the Foreign i and they return that they had made
Sfaxesjor the Foreign for the Prejervaticn of the Corporation, and to raife
Ardmtmtion to provide againfl hivajion of Foreigners ; and Jhewed that JV.
was one of the Cinque Ports, ttbi breveDominiRegis non currit. Per Hale Ch.
|. you ought to fet forth that there -was fame Jiirifditlion to which the
'Party might Jppeal if he were injured, otherwife the Corporation will
be Party and Judges and all, and they will tax the Lands ot the Fo-
reign to what Value they pleafe. Freem. Rep. 99. pi. iii. Pafch.
1673. Anon.
21. Upon an Jppeal from a Sentence in the Admiralty of the Cinque
Ports, the Lord Warden granted a Corarniffion of Delegates, and upon a
Demurrer to a Bill for chat the Plaintiff did not fet torth that the Lord
Warden had Authority to grant fuch Commiffion, the Court made no
Order as to that iMatter, but could not relieve the Pl.iintifF, becaufethe
Appeal -was not within 15 Days after the Sentence. Fin. R. 437. Mich.
3 1 Car, 2. Denew v. Stock.
(E. 6) In what Cafes the Writ of the King runs thi-
ther. And of Returns thereto.
I. ^^Ertificate upon a Statute Merchant the Sheriff returned Quod non
\^ eji inventus &c. Thorp pray'd Writ to the Confiahle of Dover
and to the Wardens of the Cinque Ports, inafniuch as the Lands arc there,
and the Sheriff may make Execution there, and for thisCaufe the Writ
was granted him. Br. Cinque Ports, pi. 6. cites 21 E. 3. 49.
2. Debt by H. and H. againji i'. as Heir ; who pleaded nothing bj
Defcent. The Plaintiff r^pZ/f^ JJJets at fuch a Place within the Cinque
Ports. And lb it was found by a Jury of the County adjoining, and
Judgment given of the Moiety of his Lands, as well thole by Defcent
as by Purchafe ; And a Writ awarded to the Conjiable of Dover, to extend
the Lands within the Cinque Ports. But it wdisfaid, that fir fi the Plain-
tiff ought to have a Certiorari to fend the Record into the Chancery, and
from thence by Mittimus to the Confiable of Dover. 3 Le. 3. pi. 7. 3 & 4
Ph. &M. Heck V. Tirrell. .
3. A Contrail was made between A. and B. in London, afterwards J.
kjt the City and d-welt within the Cinque Ports j and being afterwards im-
pleaded upon this Contract he claimed his Privilege of the Cinque Ports,
and cited 1 2 E. 4. that thofe of thcCinque Ports Ihall not be fu'd elfewhere
than within the Cinque Ports. Suit [. faid, that this was true for
any Matter ariling within their Jurifdi£lion j But where a Man gives a
Bond of 100 1. or 1000 1. and then goes and dwells in the Cinque
Ports, perhaps the Obligee might lofe his Debt i And adjudg'd he Ihall
no£
544- Court [of Cinque Ports J
noc have his Privilege. Godb. 90. pi. 102. Mich. 29 Eliz,. B. K..
Anon.
4 If a Stranger does Trefpafs ^c. in the Cinque Ports &c. the Suit pall
he ly Writ, lelt the Trefp.iis Ihould be diipunilhable. 2 Inlt. 557,
J. The Privilege extends to certain particular 'Towns "whereof the King's
Courts cannot judicially take Notice. 2 Inll 557.
Palm. 54, 6. B. being tmprifoned by the Lord Warden of the 5 Port?, a Habeas
and 9rt >s C Q^^^^^^s was awarded to the Warden, who rejafing to obey it, then an alias
^^^^"''^'^^"^] habeas Corpus was with a Penalty, the Warden pretending that the
hJ^^ielfured King's Writ did not run there. Relcjlved by all the Judges that the
them 40 1. Kind's Writ did run there, and efpecially this \\ rit which is a Prero-
forrakirg gative VVrlt, which Concerns the King's Jultice to be adininiftred to
""a'c^'b""' *^'^ Subje6b ; tor the King ought to have an Jccount why any of his Sub'
c'ift \Mo\htjetls is imprifoned, and no Jnfwer can fatisjy it, but to return the Caiife
Sea, and pjratum habeo Corpus ; wherelbre the Court all held that another Ha-
foiv d upon j^^..^y Corpus Ihouid be avs'arded under a great Penalty returnable at an-
Ind ca'4>ng"ther Day. Cro. J. 543- pl- 3- Mich. 17 >ic. B. R. Bourn's Cale.
it -iway, and
bcinp required to reftore tl.em he refufed, and upon a H ibeas Corpus to the Lord Warden, be return-
ed the Body and the CauTe. The Court held, thit if no Caufe had b;en alleged in the Kcruni they
might then deliver the I^-ilbncr, but the Lord Warden having returned Ciufe thdt the Rirty was
cited and judgment given Secundum Leges Maritimas, which 3 R on a Habeas Corpus caniict re-
drefs' thourli u be unjuft ; for when they proceed againil him judicially rliis O'Urc cannot reform,
though oth'-Vwife if without Caulc For H.ibeas Corpus quelhonem folvit de ceo, and not ifc.ie
iiid^'nient be <'ood or not ; for if the Prifoner when ciiel and required to reltore the A' chor h.id
there intitledhimic If, in fuch Cafe, as Doddcridge f^id, it might be removed by S-at 15 R. 2. and
v-hen he confcfles the takin;; to be withm their JurilUiction, a'ld denies to reilore it, the Court here
will not intend the Judgment againll him to be unjuft ; and it appears that thev have JurifdiCtion of
It ■ and tiiere is a Ditfe'ience when they comn.it hitn Secundum Leges M-iritim is, a d he is in Execu-
tion by ludgment there, and when they commit him without Caufe. And the Court awarded, that
the I'riloner be remanded, and pay according to the Judgment beknv, and th.n then he might have
Kalfe Im':nfoiirrent, or Debt, and recover his Money and Damages if the Caufe be not true and good.
, i Roll Rep. I 5-, 1 58. Barnes's S, C. accordingly.
7. Certioraries to remove an L-idi^nicnt taken in the Cinque Ports
'ihould be numediately direifed to the fufiices before whom the Indiclment
was taken, becaufe they hold Plea of it as Juffices of Peace, by Viitue of
their Commiliions, and not by their ancient Charters or Prefcription.
Cro. C 253, 254. at the End oi pl. 3. cites iMich 8 Car. Anon.
8. ProbnbitK.n was moved lor to the Cinque Ports, for that they held
Plea there, partly by the Chanctry, and partly the Jdniiralty, in the faine
Caufe, (viz.) an Admiralty Procf's upon a Chancery Bill ; it was agreed
that they have thole dillinft Courts there, but it was denied that they
niav fo confufedly hold Ple.i. 2diy, It was objected, that the Deleiidanc
had appeared, and lb had owi.ed theJur!fdi61ion, and the Caufe was ready
lor Sentence ; but per Cur. lince a Prohibition lies to the Cinque Ports,
this Court Ihall not be culled of jurifditlion by any owning of the
Party. Sid, 355. pi. 6. Hill. 19 & 20 Car. 2. B. R.. Ting v. Merri-
wether.
9 A 0//O AJinus lies in the Cinque Ports as well as within a County
Palatine, or in VV ales, and rather in the Cinque Ports than in a County-
Palatine, becaufe a County Palatine has jura Reg.dia within iifelf, and
it is uiual to grant Prohibitions into County Palatines ^ and lb it was
done kit Term to the County Palatine ol L. upon a Suit commenced
here by Quo Minus, and afterwards a Bill prelerred there to Itay it ;
and lo it would be if a Suit were commenced in the Admiralty, there
againlt Law a Prohibition wcmld lie, and the King's Debtor has the
lame Privilege that the King has, to fue for his Debt where he will^
it v\ould elle be very inconvenient, if a private Juiikiiction might do
what they would, and there would be no Remedy elfewhere. Hard.
47^. Hill. 19 & 20 Car, 2. in Scacc. Sir John Williams v. Lifter.
lo. An
Court [of Cinque Ports]. c^/^c^
10. An Habeas Corpus ad facieiid' & recipieiid' will not lie to the Mod. lo. pi.
Cinque Ports, but an Habeas Corpus ad faciendum & fubjiciendum lies, 5,5- Anon.
and fuch was returned this Term. Sid. 431. pi. 21. Mich. 21 Car. 2. r'^' !"1
-r, ,, , 1 - I leetns to be
B. R. Anon. 5 C
11. The DejcHdant was in Execution at Dover for 100 /. recovered a-
gainfi him at the Court of D. The Flaintiff brings a .&jio Minus againji
htm in the Exchequer/^r a Debt of 100 / and fiied out a Habeas Corpus
to the Conjhible of D. to bring the Body of the Dejcndant. The Conftable
upon the Return fet forth the Privilege of D. being a Cinque Pore
Town, but that Return was difallowed of, becaufe there is no Place
privileged in this kind, but that the King may fend his Writ to have an
Account of his Subjcffs^ though it be pri'Viieged, as to jiff ions between Party
and Party. It was prayed by Sir Edward Thurland, the Duke of
York's Attorney, that the Priloner might be remanded, becaufe thofe
Debts which were recovered againll him at D. might otherwife be lolt.
But it was denied by the Court ; for when he is committed here he is
charged as well with the Judgment that he was in Execution for at D.
as for thofe that are recovered here, and if the VV^arden difcharge them
before the Satisfa£lion of thofe Debts, he is liable to an A£tion. Freem.
Rep. 12. pi. 10. Trin. 167 1. Alder v. Puifey.
12. If a Man be outlazfedy his Lands, within the Liberties of the Cinque
Ports, fnay befeifed into" the King's Hands, and may alfo be extended upon
Judgments ; per Windham. Freem. Rep. 12. pi. lo. Trin. 167 1. Alder
V. Puifey.
13. In Matters that concern the King's Revenue, or in Matters crimi-
nal^ or where the Liberty of a Subjeti is concerned, a Certiorari would
lie. hx^. Freem.Rep.99.pl. iii.Pafch. 1673. B. R. Anon.
14. Certiorari to the Mayor, Jurats and Commonalty ot' V\^inchelfea,
to remove an Order by them made, who return, that Time out of Mind
there have been in Kent 5 ancient Towns, (viz,) Haltings, Sandwich,
Dover, Rumney, and Hithe, always called the Cinpue Ports ; and in
Suifex 2 ancient Towns, called Rye and VVinchelfea, which are Mem-
bers of the faid Ginque Ports ; that the faid Town of Winchelfea hath
been Time out of Mind incorporated by the Name of Mayor^ Jurats,
and Commonalty of Winchelfea i that all the faid Cinque Ports, with
their Members, have been. Time out of Mind, Places tor ordering the
Prefervation of Shipping, and that by reafon of their Situation &c. have
always, and ought to keep Beacons and VVatch-Houfes &:c. for the
better Maintenance thereof; that the Town of W. in their com-
mon Hail, ufed to make Taxes and Rates on every Occupier &c. of
Houfe or Land within their Town or Liberty, which faid Privileges
were confirmed by Magna Charta i that 1 May 32 Car. 2. they made a
^ax of 6d per Pound for maintaining the faid Beacons and IVatch-Houfes
&c. The Objeffion was, that this Order did not fet forth that the Bea-
cons and Watch-Houfes were in Decay, or out of Repair, and fo the Rate
unneceflary j But refolved to be well enough ; For it might be dangerous to
Jiay till the Beacons were in Decay, for then there would be none till repair-
ed, which would be dangerous for the Place, and it is to be pre fumed, that
the Inhabitants would not charge theififelves unnecejfarily, and they do all
concur in the Taxation ; and lb the Order was confirmed. Raym. 448.
Pafch. 33 Car. 2. B. R. Winchelfea Town's Cafe.
6 Z (E. 7)
^^6 Court [of Cinque Ports.l
(E. 7) Pleadings. And of Errors in Judgments
there.
Br. Brief, i. A CCOUNT aga'ttiji om /jj Bailiff of his Manor, and Receiver of
pU5. cites ^^ his Money in the Vill of P. and counted ^^ Bailiff in P. and
Receiver in the Caflle of P. whereP. is one oj the CinquePorts^ and the Cajtk
is Gmldahle^ and there per Belk. clearly no Writ of the King lies in
the Cinque Pores upon this ot Franktenement, or not, but Jhall be pleaded
there by Bill. Parle faid, P. v/as lately in the Hands of the King, and
the Plaintiff his it in Farm of the King, fo by the Unity of Poffe/fion the
faid P. is not now of the Cinque Ports ; and after by Award the Defen-
dant was compelled to anfwertothis Part that was Guildable, and to
the other Parr he took nothmg by his Writ, and that the Franchife is
not extin£tby the Seilin of the King, and efpecially where it comes to
the King as Ellheator as Parcel of the Honour of England ; Qijod No-
ta ; that he who pleads to the JtirifdiBion by the <^inque Ports jhall con^
dude. Judgment if the Court will take Connfance. Br. Cinque Ports, pi.
3. cites 49 E. 3. 24.
Crompt. |u- 2. Trefpafs in D. The Defendant faid, that D. is within the Cinque
j-ifd of ' Ports where the Writot the King does not run ; Judgment of the iVrit j
Courts, iqS. ^rid fo fee that he did not fiy, judgment if the Court will take Conu-
a. cues S ^'- f^^^g^ and admitted. Br. Cinque Ports, pi. 4. cites 50 E. 3. j.
3. Detinue of Charters i Rolf defended Tort and Force and no
more, and faid, that the Land comprifed in the Charteis is within the
Cinque Ports ; Judgment if the Court will take Conufance. Alartin
faid. You ought to fay, that the Place -uchere he made the Bailment, and
where the Writ is brought, is within the Cinque Ports ^ where the Writ of
the King does not rim ; and after Rolf made lull Defence and imparl'd.
Br. Cinque Ports, pi. 7. cites 7 H. 6. 22.
' 4. Error in the Cinque Fonspall be reverfed before the Confiahh of Do-
ver, who is Warden of the Cinque Ports ; Per Pole, Br. Cinque Ports
&c. pi. 26. cites 30 H. 6. 6.
5. If Erroneous Judgment be given in the Cinque Ports, this fhall
be revers'd by Writ of Error direiled Ciiftodi qninque Portmtm. Brooke
makes a Quaere if it ihail not be to the Conllable of Dover, that he
Ihall Write to the Cinque Ports to certity the Record, and fo to reverfe
it. Br. Cinque Ports pi. z^. cites Lib. Divifionum Guriarum.
6. An Erroneous Judgment given in Cinque Pons, Jhall be examined be-
fore the Warden of the Cinque Ports at Shcpway in Kent, and if the
Mayor and Jurats there have given an Erroneous judgment, they fliall
be fined. Jenk. 71. pi. 34.
7. The Mayor and Jurats of the feveral Cinque Ports, have Power to
hold Pleas &;c. and upon their Judgment no Writ of Error out of the Chan-
cery does lie returnable in B. R. nor Writ offalfe Judgment returnable into
C. B but by the Franchife and the CuJlom of the Cinque Portr, fuch an Er-
roneous Judgment fhall be by Bill in the nature of a Writ of Error, examined
coram Domino Cujlodefeu Gardiano qttinque Portuum apud Curiam de Ship~
wey. jind if the Judgment be Erroneous it (ball be reverfed by the War-
den of the Cinque Ports, and the Mayor and Jurats ihall be fined, and
the Mayor removed from his Place, and yet the Court is a Court of
Record. But 28 E. i. extends only to Courts holden before the Con-
itable in that A6t mentioned, and not to the Court holden before the
Mayor and Jurats. 2 Inll. 557, 558.
8. There
I
Court [of the Forefl.] ^^7
8. There was great Contention whether a Writ of Error to reverfe Ibid, at the
a Judgment in any Vill ot'the Cinque Ports, would lie in B. R. or a ^^ ^^^^
Writ of Falfe Judgment in C. B. but there being no fuch Writ in the yjjg jj^g
Regifter nor any Precedent in any Court tbund, Lord C. Bromley by Book of
the Opinion of the Chief Jultices of both Benches denied to grant Diverfity
one. And it was faid that by the Cuftom and Ufage of the Cinque °^^™"?
Ports, fuch Fal/e Judgment ^Jall be examined before the Lord iVarden 0/ of Error
the Cinque Ports, at the Court at Shepway^ and it it be falfe it lliall be lies there, '
revoked ; And that the Mayor and Jurats who gave the Judgment Ihall ^^o^- 2- and
be fined, and the Mayor depofed from his Oifice. D. 376. a. pi. 23. „"'* '^^^
Pafch. 23 Eliz. Anon. cords and
vouches it
at tit- Cinque Ports. Br. Cinque Ports, p1. 25. cites the fame Book, but fays Qusere, if it fliall
not be to the Conftable of Dover that he iliall write to the Cinque Ports to certify the Record and
Jo to reverfe it.
9. Fjeifment of Lands in A. the Defendant /(/g^r-'/frf that A.pr^edW Ubi Win. 115.
'tenement a jacent^ laymthm the Cinque Ports ; the Plaintiff rt'/)/;>^ that it r"']'" J'r^
is ■within the County of Suffix^ abfque hoc that A. is -within the Cinque Yzi'oWA '
Ports i It was fuid that the Traverfe was not good, for that Part of A. that tne'
(as the Truth was) lay within the Cinque Ports. The Court held the Trarerfe
Replication and Traverfe both good, for by the Defendants Plea it ^^^ "^°^
jliall be intended that all A. is wichin the Cinque Ports, and the ubi t^g ly^f^^,
Tenementajacent are idle VVords, and it was on the Defendants partdantinhis
to have fliewed, that part of A. lay within and part without the Cinque Plea ought
Ports, which becaufe he has not fhewed it, the Plaintiff has advantage, '" '^^^'^
by Traveriing that A. is not within the Cinque Ports. Cro. J. 692. Diftinft'
pi. 5. Mich. 22 Jac. B. R. Auften v. Royden. and that
the TrS'
verfe here ought to be to the Ubi, and the Court does not imagine any Fractions of Towns.
10. Ti'efpafs ; the Defendant pleaded that it was committed within the
Liberty of the Cinque Ports, and fet forth the Privilege of the Cinque
Ports. The Plaintiff demurs, becaufe he does not fay that he was an In-
habitant there i and Judgment againfl: the Defendant, for if this Plea
iliould be admitted to be good, then Trefpafles committed within the
Cinque Ports by one that lived out, or would prefently ablent himfelf,
would be difpunilhable ; and the Reafon of the Privilege of the Cinque
Port is, that the Inhabitants there, who are to defend the Port-T'owns
(Imild not be drawn away; which does not extend to Strangers. Freem.
Rep. 12, 13. pi. II. Trin. 1671. C. B. Thomfon v. Pokes.
For more of Cinque Ports, See Crompt. JurifdiiStion of Courts,
137. to 142. 4 Init. 222. to 225. Cap. 42 — — Prynn's
Animadveriions &c. on 4 Inft. 15210155. &c.
(F. ) Courts of the Foreft.
Juftice Seat.
In ivhut Fliices it may be held.
e
ion
I. A 3iUfttCE ^Eilt may be fummoned to be held within the Foreft, * Foi. 5
X\ ano aftEt tljc Cl> % in Cprc upon m coniins tljcte nty^
t!3C time appOtntEtJ (*) map adjourn it to any Place within the J'.''*', ^ ^'
County, tljOUSl) It l3C OUt Of ti)C JfOtCli. CCUI. 'i i Cat. 15, K* bt- '
S4-
Cro C. 409.
mm\
54«
Court of Kind's Bench.
to
adjudged. tlUCCll tIjC £%imj 91111 Kilil Bnok illlU SlJaHCf George Myutie, aD)ltOtiCa
rT~r upaii Ccnuiacc, wljcix tljc Cafe iuas, tijat a @ici. tn» iua0 liroituUt
s c '-— airninll tljcnt to fljeui Caufc luljp isrcciition fijouio not be srant^
Sec Jo. 297 Eti naainft tljem, fot federal jfincs nDutrioiCti ncamft tljem at tljc
where there :jiiaic^@«cat fot tljc jfoicft of Dwii, luljtclj luass fiimmoncti uiitijiii
iourmenVro t&c jTorcff , auD ftoiu tljettcc atijoimieo to tljc cattle of (Sloucefter,
B.gdior. nnotljcre IjelD, ano tljej) tljcrc innifteo aiin fincO; ann tlje ©cfciv
Sept. 2(5. Dnnti5 plcanco tljat tl)c raio cattle of ©louccttec, tuljetc it uiae ijclQ,
1633- uinjs out of tlje iforeff ; auD upon tljis tlje attornep'(5?enetal iic=
nnirreu. "But aftec tljc Dcfenoantsj rubniittcD tljcmfeiucis to tlje
Btng, anti tljcrcfote tooulo not anp fttrtljec Dcfcuii -, Imt upon ©pec
of tljc iRccoro tljc Couit incUncQ, tljnt it tuas mcll Ijelo at <0lou=
tetter, anu tljctcforc gabe Jungment foe tljc JAnig anD attorney i
ant) tlje Court faiti:, tljere mere many l^teceocntis accorOtnglD*
2. f|3(clj. 1 1 Car* 15, K» ^ Scire tacias U)a0 brougljt againfl
Rowles upon Recognizance taken by the Ch. \. at the faiQ Jultice-
Seat ijein m tlje fato Cattle a0 aforefaio ; atio it uias pleaoeu \\\
"Bar tOercof lip nipfclf, tljat tlje fain Cattle Uiasi out of tlje jforctt;
upon uiljicO It U)a?3i ncmurren bv tljc attornepiScneral, ann nom
nnniDrtcti for tbe l^inij, for tlje Reafon aforefaiB, ano tbe Court alfa
faio, tljat tlje Cb* 3. map taue a Kccognijance in anp Place, tljouglj
It be not at anp JiUfticc^^eat.
For more as to the Juftice Seat, and the Court of the Foreft, See
Manwood's Treatifeof Forell Laws.
(G) Courts. Kings Bench,
\Jt's Power as to TiJues fent thither out of Chancery to be
tried there, and as to Records coming there^
♦ Fitih. I. T Jf a Petition bC endorfed, that the Chancery ftali fend a Verdifit
Petition pi. J[ returned there B. R. tDbetC tljC IUttlCC0 'fljall 50 Eigljt, tljC
3 cues i, c. ygj.(ji£^ j^ f^rlf ought to be fent, auU not a Tenor only. * 22 C, 3- 5-
38C. 3B.E. Eot. 16. jt tnass njetueo ta
tIjc parliament, tljat a S^anor uia^ ijclo of a "Baronp of a com^
mon perfon, tljat aftec tljc ^anor iuas forfctteti to tlje tMm, anD
be uranteo it to anotljec to bolD of bimfelf per ^cruitium militate,
ubi perleijem nebcret 5ici,'2Ecnenmtm oe capttalibusi Dominic feooi
1111110, (jc. Ct petit, tbat tbe fain Cbartcc be amentieti in tlje faiD
Claufe ; upon uibicb U)a0 a piea in Cbauccrp, anti founn bp Cf
cljcator, $ per Juratam ijcre to be true. Ct quia luotcium fupcc
a^ercbtcto prsbicto, $ Ccccutio 31uDicii pertinent aD ©fficium Can=
ceuarti facicnoa, lOeo mittituc in Cancellariam, $ liatu0 eft niejs
ufque, fc.
* Br. Re- 2. Jf a Record \}C OUCC come into B. R. tl)i!£i can never be remanded.
cord. pi. 22 c* 3.6. b. * 29afl'. 43- pecSbatDe t 40 m 29- 19 air.4-
^i\t circs
5. G & S P. by Shard ; and Brooke fays, Quod Nota, whether it be by Writ or Error or other-
Avifp as ir f;i:m.f, quod non neg.itur.
■f Br. Record pi. 46 cites S. C. Sc S. P. and therefore in C.ife of Writ of Error of Fines the Te-
nor only (liull be remov'd and not the Fine it felf ; For in Cafe of a Fine if the judomcnt (hall be
affivm'd tlierc is no Chiro^raplier in B. R. to ingrofs tlie Fine. Ibid. pi. 79 cites 5 Mar. i No-
ta, thnt in B R . are divers Precedents t!iat in Writ of Error on a Fine, the Record it (elf IKall be
Cfrtificd lo that no more Proclamations fliall be made, and if they nrc rrverfcd this makes an End of
tiic w hole, but if they are atfirm'd then the Record fhall be lent into C. B. by Mittimus to be proclaim-
ed,
'ourt of King's Bench. 54.9
cri and iniM-olTed, Qiiod Nota ; Foi'iftlic Tra'iloiipt onlv be remov'd tliuy may proceed in (;, B. not-
V(ithltandin{^5 Qjod Nota. When a Record comes into B, R. it lliall never be r.-manded bur in the
lame Teim in whicli it comes in ; Per C^oke Cli. J. Roll Rep. !>>. in pi. ;v ^It a Record be filed
in B R it can never be lent down, or remanded either in the Term it is hied in or any other, and that
is plain by the Act of 6 H, S. cip 6. which enables th's Court to do it in that Cafe of Felony, v.hicli
otherwilc they could not have done; Per Holt Ch. J. i Salk ;52. pi. i;. Trin. 5 Ann. B. R. in
Cafe of Fa7.akerly v. Baldo. 6 Mod. 177, 17S. S. C. Sc S P acco;dingly.
3. 3if tt be found bl> JllCiUlfitlOll in Chancery, that a Copyhold was r^O^,
granted to J. S. in Fee in Trult tor J. D. VDljO lUillS an Allen Amy, *^^^^^j
lor which tne Copyhold wa.s feifed into the King's Hands j ItpOU^Ml 7^8^
lOljtCl) CljiUBC Of tljC 3'nqittritiail, J. S. comes and traverfes the.s.C Te-
Trult, and pray's to be reltored to the Poileirion, ilJlQ liiue is joined Tolv'd per
in Chancery upon the Truit, nuD tl)ei"CUpOn tljC Record is delivered o-'^"^- '^^"^
Ycr Dp tlje {priiingi of tljcConinnlTiancrsj of tlje 0i'eat ecal to b. R.jIugRrt^obe
to be tried, auD tijCtC iil Verdict is tound li;r the King, nuU aftCC^iv^n a-
niovcd in Arrelt of Judgment that there is not any Caul'e tor the King?<itirt the
to feiletljC (*) COpi'IjOlD, and fo bv Confequence the Inquihtion void^'^'^S' j^=-
jfor it Mim conceiwtJ, tljat tijc Cvua of a Coppijoio of Jni)cn="hoie' rc-
tancc m an ^Itcii i,5 not giiicu to tijc twrnz. 'But it uias reioiv'dcord i^ vir-
pcr (iTiinam, that tijomMj it fljoulu tic aOiinttcD, tljat the King fi]aUr>^^^'iy i?e'-e.
JJrttie tlJlS Cmft pet ijC cannot leife the Copyhold, aUD bP ti}t|3i bfllie;'£''nVould
tijc |?OflCfl'lOn, but ought to be relieved in a Court ot' Equity, and thatj,!. bo^n^"
the King's Jjench is not only to try the Iirue,but ought to give the fameuo to the
Judgment upon the Record, which the Chancery ought to have y;ivcn Verdi.;t, fo
there ; tljougi) it iun0 objcctcD, tljat tijc lAecOiO tcmannco tu ft!acn0''''\T."'^^-.
Of tljc Cljanccrp, n0 ti)iD Eccorti trananittc'o mcntroiis , pet be^ b- given
catife tljis EecotO fljall ucbec be iciuaimcD in Cijanceri', biit jutiij= according
inent 10 to be iTiVien Dcf c, tijc Court Ijctc fljall ame JuOiiaicnt ac=^°''"^tho•
cornnig; to tljc laiu upon tljcEccorb Ijcre, accoi-Dins to tlje Cali'Jj;^^^'^'^'
upon tijc HccautJ maoe, bcttueen tijc iAinijanti tljc l^attp; auDwhoieRe.
tljci'cforc t!jc JuBi^ment ouijijt ijcrcto be iTiben aiTninft tlje lAing, anDcord that
tijat3'*^3). fljaltbe refforcD to Ijis Poircffion. p. 24 car* 05* E j''^ i'i«j;:f^'ff
bctuicen tlje iauisauu Holland, arijuoscti ^ 3!ntvatuc, Ct% 21 Car*5;'=."°J';^^
Hot* 2C« Judges de-
nied tiiat
Chancery cou ill proceed -upon the Inquifition, now that the fame was fent hither upon the Traverfe,
but that the ludgmenr in B. R would utterly (ubvert the rniuilTtioi ; and Judfjment was given quod
Manus Domini Regis amoveantur. Sty. 20 S C argued fed adjornatur. Ibid. 40. S C. argued fed
adjornatur. Ibid. 75, '6. fi. C. the Court order'd Caufe to be fhcwn the Tuefday following why the
Party ftould nor be reftor'd to his Lands. Ibid 84. S C. a Motion was for an Amoveas Manum to
the Chancery, that the Party might have his Land out of the King's hand ; But the Court laid thit
tlie Judgment is to be given here, if there be Caufe for the King, and if not then againlf him, and
ycu ought not to go to the (Chancery, and that all they Ci\-i fay is that the King fhall not have Judg-
ment. Ibid, 90 S. C. 5c S. P. and that the Chancery cannot do any thing in the Caule ; For they h ive
Nothing before them, and R elf irution ordered Nifi Caufa. Ibid. 94. 6. C. 8c S. P. accordingly by
Roll and Bacon. Sed Cur. advif vult.
4. Ot a thing which touches the King mediately or immediately, they
fhall receive Appeal in B K.. by Bill, by which Appeal of a Cnpjiok was
there Profecuted, and well, quod Nota. Er. JBille. pi. iS. cites
i7 Aff. 5.
5. Scire facias upon Recognizance in Chancery brought in Chancery, the
Defendant pleaded a Releafe^ the Plaintiff denied it and /(' to Iff lie. And the
Record and all the Ad lon^ and Procefs was fcnt into E. R. to try and there
thcPlaintiff'-was Nonfititcd and brought a nezv Scire facias there., and well ;
for there was the Record alter the lending it out of Chancery, and not
in Chancery, and econtra if the Chancery had lent only the tenor of the
Record. Note a Diverlity ; and fo Note that the Chancery fball try no-
thing by Jury, but the King's Bench, and it is faid elfewhcre that the
Chancery lliall make the Venire facias and iliall award it to the Sheriff
7 A returnable
^?o
Court of Kma's Bench
b
returnable into B. R. Scilicet coram nobis ubicu.iique tunc fuennius in
Anglia, tor all is the King's. Br. JunfdidUon, pi. 48. cites 24 E.
3- 45-
6. Note, it was agreed that in B, R. the Record is Placita Coram
Rege apiid takm locum, and therefore when a Man pleads a Record of
tins CoCirt, he Ihall ihew where the King's Bench then was, becauie
the Day is palled, fo that it is certainly known, but the Prccefs there
is Ubtciinqne tunc fiurimus in Jnglia. Br. Pleadings, pi. 10. cites 34
H. 6. 27.
II Rep (^5 ly. If an IndiBmcnt of Forcible Entry be removd'tiito B. R. the Juftices
r ^ 'ch^T ^'^ ^- R- fi'^^^'^"'^^^^^ Rejtitutwn, and yet the Statute of 8 H. 6. cap. 9.
in^Di-. Fof- fpe^ks only (f Jujticcs of' Peace, but the Reafon is becaufe they have fo-
tei-'s Caie, vereign and iupreme Authority in fuch Cafes i Per Cur. 9 Rep. 118. b.
and cites 4 ^-jt^.g ,y £_ ^_ ig, a_ and 4 H. 7. 18. and lays, that according to this
*^dH s^th-t^^'^°^"^'°" "-^^ Juftices of B. R. write, according to the faid Act, to
with7hiVa- the jullices of Cjaol Delivery in ihe City of Lcnclon, belore whom the
grees 15 H. P.'^incipil was who certify the Record &c.
1- 5- b. 5i. Murderer was cor/matted to the Fleet by tl;ie Jullices of B. R. le--
caafe the Alarpal had married the Stjler of the Ofjender, and it w as fiid,
that they might have committed him to Newgate. Per Cat. the Fleet
is not tor Felony nor Trealbn. But per Fairfax, fuch a Prelidcnt was
in the Time of J une. And the fame Law where the Marlhal is appcilM
ot Felony. And the Fleet is for the Chancery, Common Pleas, E.k-
chequcr, and to thcfe Courts the Warden is Olficcr, and to the Star
Chamber, and to the Palace ; and per Cat. he may be committed to
any Sherilfot England, becaufe all thofe are Officers immediate to this
("ourt, quiere inde of the Sheriff ot another County where the Of-
Icnce was not done. But it leems that it the Juilices by their Difcre-
' tion command it, it ought to be obey'd. But per Fairfax, the Sheriff"
of iViiiddielex is not Officer to this Court, but ot Things done within
the fame County, and the fame leems to be of other Sherifia. Br.
Imprifonment pi. 80. cites 21 £. 471.
9. If the Juilices of B. R. perceive^ that any Indi^ment is to be re-
mc-vd into that Court by Prafuce, or for Delays the Court 7nay refufe to
receive the fame before it is entred of Record, and remand tlie fame
back for J u 11 ice to be done. 4 Inft. 74. cap. 7.
10.' k Scire Facias was filed in Chancery upon a Recognizance, where
the Parties were at I/fue whcreapon all the Record was removed into B.
R. where alter Trial Judgement was arrejled for mifawarding the Veil.
Fac. and the Parties would le-plead. And by Coke Ch. J if only a
Tenor of the Record had been remov'd into B. R. the Repleader
might be in Chancery, but in this Cafe the whole Record is remov'd
hither, and when this Court is poffefs^d of a Record^ it (hall never be re-
manded into Chancery ■, For the Chancery is the younger Brother, and
the Books are, that a Writ ot Error lies here on a judgment in Chan-
cery, and therefore it fecms that the Repleader ought to be here, and
ruled accordingly. Roil. Rep. 287. pi. 5. Hill. 13 Jac. B. R.
Brillol (Pp.) V. ProSor.
\\.\N\izx^ Error \?>'bio\x<^x. upon a Judgment given in Ireland, the
Record remains in Ireland, and B. R. has only the Tranfcripti but
otherwife it is upon Error brought in B. R. of a Judgment in C. B,
For there the Record itfelf is lent into C, B. and they write Tranl-
mittitur in the Margin ; Per Doderidge J. 2 Roll. Rep. 274, Hill.
20 jac. B. R. in Leonard's Cafe.
12 hn hiddfmcnt of High 'freafun jonnd in B. R. may be fent dawn
into the Country to be tried there by Niji Priiis at the nest JJJifes ; Per
Dolben and Raymond J. (Abfente the Ch. J.) and that f > is 4 Inft.
7? zv^di\.\\(t Statute 0] 14 H 6, ca^. i. gives Power to the Judges of
Nil!
Court of Kma's Bench. ^ ^ i
Vifi Prius, to give judgment and Award Execauon in Gates ot Felo-
nv md Treafon, which cannot be but where fuch Ottences are tried
bv Nil! Prius; ForQuatenus Judges of Nili Prius, they cannot give
ludcrment in Cafes not legally coming belore cheni ; as Jcr hckny and
Mimkr Indictments remov'd into B. R. concerning thefe Oiiences
tncnbelnth'-.mtohedcunnimd by Virtue of 6H 8. cap 6. but t ha
StLre extends not to Treafon. Raym. 367- P^^^h. 32 Car. 2. B. R.
Sir Miles Stapleton's Cafe. ^. , r v ^-q. :„
r^ It was moved for a peremtory Mandamus after a Verdia in
C b' in an Aftion on the Cafe for a Falle Return to a Mandamus, to
inrol a Chapel upon the Aa for Liberty ot Confc.ence; to which ic
was returned, that this was a confecrated Chapel ot Eafe tor the Nece -
fxrv Uleof the Inhabitants ot fuch a Parilh ; but Holt Ch J la d, tha^
thev could not take Notice here of aVerdtlUn C. B. and the \ erdicc
ou-'ht to be, as he thought, here in B. R. and theretore he did grant the
Motion. Skm. 670. pi. 8. Mich. 8 W. 3- B. R. the Ring v.
Green.
(H) The Court of King s Bench. In General.
'H
■■TLl. 2 {pen. s- 'B. Ev Eot. 65. l5i.-flLiamation tOat
1 I none Ihould carry Arms wichin the Court tXii\m Dm\m
ticl^Uite recuntium eoritm utnuCquc ^jJcaBum (t ©tauim, mwa
^^?^ufu ^ fue in Perfon with the Jullices in 15mti\ KCgl'^, " at The Kings
tlje"aiTnisnmeut of IPetci; Qc B.mm. ©pcen. 5-1. -.^'-;,,
perfonally fat there. Co, Litt. 71. b.
, At another Time tljE fmiie ^m f^tC tljCtC lit Petfait St t\}Z
<\itmm\mt of Ipuuect earl of Ecnc. f j3cen 524*
1 I^^H loaPil ^ 05* E» Eat ^5- 'fij^ljC- King granted the Cuf-
tod'vltt le-Jr^^Ll VVrt de B. R. tO 93nU-|)eiD COliaCCCm lor
A -V^.r; in firisfiaionem decern mille librarum domino Regi prs
S^rAncc oTo iDl30 ticuiicrcn one i^aitta
e SIS Of laS eS 5 refcc&B tije otljcc part to Ijuiifclf.
^-^, Otto rieHoulnd was brought to the Bar COraUl HCrte amDCntt^
bus Scllario, ^IjEfaurarto, Camittbujs arimocli^e ^l)umm-
BOUi^Ta 5 f iuaiCiaril0 5C a^ailCO. H.s Oitence was That he
full" ed the Sunrde Ewe, Marlhal of Franc;e, to goarmedtoCal.ee
fg S ft tie Command of the King, the j^id Count being a Pnloner of
theKna, and committed to the Cuftodyot the laid Otto, ailU ©ttO
lion pofuit ucBicers, mea cojnnuttitur sparefdjailo.
6 28 £ I S. 3. ^«/). 5- The Jujlices of his Bench mnji folh-j) ^he
^'f *In Ed 1. time the Style of the King's Bench y,^s Coram Rege &
Col'ctUo and the ^Vrit de Ideota Examinando, commands the Ideot to
be brough"ar.;« Nobis B ConciUo mfiro apud /h/.x and ^^"^'em.ly Bi is
werefodireaed in Chancery, but fince have been altered, i'^r Hale
Ch J Vent. 158. Mich. 23 Car. 2. B. R. at the End ot the Cale ot
^'t^Mifi^'^'^ rn an Officer of an Inferior Court is a Contempt of B^
R. per Holt Ch. J. 12 Mod. 37+ I'^i^h. 12 W. 3. cited one StarKey s
Cale, Steward of Windfor Court. ^^^ ^^^
552 Court of King's Bench.
(I) The General 'JurlfdiBton of the Court
[of B. R.]
There is no I. T jF 3. IJC elected Conftable in a Leer, ailll before he is fvvorn
Piece<leiit j^ the [ultices of Peace at a Selfions dilcharge him, becaufe he is a
of R ^'itn ^''''*^'" "t'Arts, and eleft and fttear B. tO lie COIlffable t\)ZXZ ; 21 UBrit
tion fo." a " mm Cnfc map be gcanteo cut of tt)e £^iim'0 Oocnclj ra tljc Jufticc^
C(M,ibbie, to tisfcljnugc 13. ano to fiueat a. becaufe tije proper j3lace to elect a
Yr ^\''- Conftabie 10 tlje leet, ano tljig iiias no caufe ro Uifcijanje Ijis (£=
is the ifftiou. l^iH. 'o Car. 05. H* Htr/o«'j Ca/,, ujljo laajj ciccteo ni the
uh„ic Court If ct Of tije QBtajop of iBinton in HBaltljnm ilBoilicck in Comitatu
agreed g.autl)anipton pet Cunain, fuel) a iBrlt ijranteo 'Wmh 6 Car.
clearly and 'jj^^ Kccis. ^iniiuid's Cajc ut Couiitatu Dorfet', iikc UBrit alfo
^2]t crantcD,
Order wai
made by Rule of Court for the reftorinfj, placing and fettlint; of the fiift Conffable, Cchnfen accord-
ing to Cullom by the Vill, and approved and fworn by the Lord, but removed by the Jufliwes of (he
Peace) in liib Place again.
2. Jf 3. a CoiiftabJe of a Hurdied ftrves in tIjC £>^\tZ for one Year,
, anti at the End ol the Year, the Courc-Leet for tije DUilBtCQ, nCCOrO^
',-^^'"^'^^---^' ins taCU(lOni(*)prefent B. to be Conltable, aUQ tljC Sccrt-ard and
ReTveof" l"''^ relufe to Iwear B. but continue A. lor ano:her Vear ; !S t©rtt
Yeovil in "map be aiuavDeo out De %. E» tilrcctcti to tljc ^atcaiarn to fuit'ar 15.
oim-. So- anti if tijcre tie gooD Caufe to rcfufc l)im, tW map be returneD to
meriet had j-jj^ (Toiut. p. 14 Cat. 05. K. fo QoHc lu tije Cafc of one 05ralne,
Stobrtije Conftabic oftlje ipunUrcD of mculijam m Conmatu 53)omer=
elefted to fCt.
contimie in
his Oflke for a Year, and at the Year's End a new Porr-P.eeve to be elefted and fworn in the Lc?c
by the Steward of the Lord of the ^L^Ilov, bar upon fonie Diftcrence between him and the Lord was
refufed to be done, wbcrenpon Procels iflucd out of B R commanding the Oith to be tendred ro t!ie
Port Reeve ; For the Court of B. R. is the Supreme Court which ought to do J ufticc to all the King's
Sub'efts. z Roll Rep. 82. Paf;h. 17 Jac. B. R.. tlic Port-Reeve of Yeovii'^Cale.
3. Jf i Man by tlie Cuftoin of a Town is to ferve in the Office of
Tv thingham lor one Year in his turn bp t\)t CUftOUl Of tf)C COtDU,
anB he lerves in the Oifice for two Years, auD aftet tIjC Homage there
continue him lor a third Year ; ^ tlBnt nUlU be attiarDeH OUt Of tljl'Si
Court to BifcljatKe Ijim, ann to elect anotfjci*. ^tclj, 15 Car. 05^
K. Bradiuni's Gift; pet Curtaut, fucf) i©ri£ granteO to tlje Cotuii
of teuton in Comitatu Dcnoni^.
.S. p. per 4. B. R. /i t'-jre and tiiore than Eyre, for if Commiflion of Eyre lit in
Shard, and q;-,^. County, and the King's Bench comes there, the Eyre fhall ceafe.
'''^^£t ^^- Jurifdiaion, pi. 66. cites 27 Aff. i.
was
F.fcape of
Felons was prcfenred in B. R. where the Statute wills, that fuch Things lliall be prefented in Eyre,
and the Parties were compelled to anfwer. Br. Efc:ipe pi. it. cites S C. 2 Hile's Hift. P. C. 4,
cap. I. cites S. C Q Rep. 1 18. a cites S. C. that it is more th.in Ejn ; For thcv fhall examine
the Errors of the Indices in Eyre, Gonl Delivery, and Oyer and Terminer. And Juftices of B. R.
hi7fe n DiftinB avtd^iip'cme Court, and Jultices of Goal Delivery, and Oyer and Terminer have other
Dillinft and Subordinate Courts.
5. mVrit of Error htfued upon Formedou, and Judgment given in it
the Plea iLall be held on in B. K. nocwithltanding the Statute quod
Cem.
Court of King's Bench. 5^3
Conimiinia Placita non fequatitur Curiam nojlram 6cc. Br. Jurifdiftion
pi. 78 .cites 21 E. 4. 81.
6. Juftices of the King's Bench, during the Time that they fit in the Br Jurif-
Couiity, niviy Comvtand the Jiijltces of the Pence that they do tiot Arraign'^^^^^'^^- P'-
the Goal upon Pain and Fine. Br. Judges pi. 2S. cites 21 H. 7. 29. c ^nlli '
they pro-
ceed before fuch Command comes, then well.
7. Note that the Jujfices of B. R. are jiifticcs of Oyer and 'Terminer
of Felony Treafons &c. by the Common Law^ and Cultom ot" the Realm
as was agreed, Hill. 3. M. i. in the Cafe ol Ben. Smith upon the Sta-
tute ot" 2 E. 6. c. 24. of Felony in one County, and Acceiibry in ano-
ther County. Br. Oyer and Determiner pi. 8. cites 3 M. i.
8. A\bc\i "johen the Term begins^ all Coraiiuffioncrs of Oyer and Terminer
m the County^ where the King's Bench Jit^ be J'tifpended aiirmg the Term,
yet if an Indiilmenc be found before luch Commilfioners before the
Term, there m^jy be a fpecial Cornmifjion made to Cnniviiffioners in the fame
CoHnn\ fitting the King's Bench in that County^ to hear and determine the
fame during the Term ; For the King's Bench hath no Power to proceed
thereupon, till the Indictment be betore them. And it is the better, if
the fpecial Conimiliion bear Telle after the beginning of the Term. Note
a DiverlJty between general Commi(rions of Oyer and Terminer, and
fuch a ipecial Commiifun j And the Court of King's Bench may be ad-
journed^ and in the mean Tune the Cominijjioners may Jit th.re. 3 Inlt. 27.
cap. 2.
9. This Court hath not only Jtirifdi^ion to correct Errors in Judicial
Proceeding^ but other Errors and JVlifdemeanors extrajudicial tending to
the Breach of the Peace^ or O[iprejfion of the Subjeds, or raifing of FaBion,
Controverjy, Debate or any other xVlanner oi; JVIifgovernment ; lb that no
Wrong or Injury either Publick or Private, can be done, but that this
fliall be reform'd or punilh'd in one Court or other by dui Courfe of
Law. 4 Inft. 71. cap, 7.
10. As if any Perfon be committed to Prifo/i, this Court upon Motion
ought to grant an Habeas Corpus, and upon return of tha Caufe do Juftice,
and relieve the Party wronged. And this may be done though the Party
griev'd hath no Privilege in this Court. 4 lull:. 71. cap. 7.
1 1. It granteth Prohibitions to Courts Temporal and h'.cckftajlical^ to
keep them within their proper Jurifdidion. 4 Inlt. 71. cap. 7.
12. Alfo this Court may Bail any Perfon for any Offence whatfoever.
4. Inft. 71. cap. 7.
13. And if a Freeman in City, Burgh, or Town Coporate be ^//^
franchifed unjujlly, albeit he hath no Privilege in this Court, yet this
Court may relieve the Party, as it appeareth in James Baggs's Cafe, &
fie in fimilibus. 4 Inft. 71. cap. 7.
14. Negative Words in an Aif of Parliament, fhall not in many Cafes Mod/Rep.
bind the Court of B. R. becaufe the Pleas there are Coram ipfo Rege, 4.5- in pi 98
per Coke Ch. J. 11 Rep. 64 b. iMich. 12 Jac. in Dr. Poller's Cafe, andP"^f^''"g-
cites 21 E. 3. SS- b. and 21 Aff 12. the Abbot of Wellminller'sy°^Xe"jL
^•^i*^' rifdiftion of
this Court
■without parricuhr Words. And Twifden J faid, that he had known it ruled in 2; Car. I. that the
Statute of 15 Eliz, cap 9 where it is faid, that there fliill be no Superfedcas &c. hath no Reference to
ihis Court but only to the Chancery.
15. So when a Statute creates a new Law and afjigns certain Jtijiices to
execute it, though the Jujiices of B. R. are not exprefsly authoriz.'d by
theAft, yet they tiiay execute it as the Statute 8 H. 6. cap. 9. gives Power
to Jullices of Peace to make Reftitution, and therefore Juftices of Oyer
7 B and
594- Court of King's Bench.
and Terminer Goal Delivery &c. Ihull noc nuke Relticution, and lo
refolv'd as has been faid, yec il" the Indictment be remov'd into B. iL.
Coram Rege, they fhall award Reltitution i Per Coke Ch. J. ii Rep.
6^. a. cites is as relblv'd on Argument, 4 H. 7. 18. b,
16. The Court of B. R. have Power 10 fend a Prtjofitr to any Sheriff
in England. Sid. 145. pi. 2. Trin. 15 Car. 2. B. R. the King v, Men-
dall.
17. And commanded a Sheriff ^j' Parol to take a Prilbner, and then
directed him (being Sheriff of Middlefex) to go to the Recorder oi
London (who was then prefent in Court) for a Warrant. Sid. 146.
Trin. 15. Car. 2. B. R. the King v, MendaJl.
18. King's Bench may Ba^ljor High 'Jtreafin^ but it is a fpecial Favour,
and not doue without the Confent of the Attorney General. And they
may likewife Bail for Murder^ but it is feldom done, and not without
a fpecial Reafon ; and it is not a fufficienc Reafon that it was found
Manllaughter before the Coroner, lor it may be afterwards found Mur-
ther; per Cur. Cumb. m. Pafch, i VV. & M. in B. R. Anon.
(K) [Kings Bcnch?^
How, and in what Manner the Court may 'proceed.
Cvo E.fio^ I. TN an Appeal Of $?5UrtICt Ot OtfiCt ©ffCllCC, if the Plaintiff' ap-
pi. 5 W.1US J[ peal him in Cuftodia Marefch;ill, and tl)Z Defendant is arraign-
V. Rvayn':, ^^^^ y^,^ pleads the fame Term, and the fame Term alio is tried ; tljISi
vv%\ 151»iP tic UlCUDOne, without any Bill filed, UUt OillP UpOIl tljC DCCliV
the\ C .n.i ration. 43 €1. Braym's Cafe £l5)UDgCtl. JplII. 14 Ctlt. 15, J3,*
Ibid :7s. * P/^or'.5, pec Cuvtam ancLtcti,
pi Ii s. c 2. So a t\iz Defcntiant iis atraigneti, an!i {jteatis tlje Tajnc ^crni,
A^Fii,'' B ^"f ^^ "°^ "'^^ "^'^^ another Term, pet tljlS HiaP U lUell COne UpOlt a
R but in ■ Dcclarattan inttljout anp 05(11 filen. t)ilU n^Cac. '16. E. nctuicett
neither of P//0/ ^«^ Pigot, pcc Curiaui aBjuOgcli, t!)is bcitio; monco in !:icreft
the Places of Jiiuoiuient aftct tljc DcfenMttt 1000 fount! (JDuiltp at ti3e'Batof
^oot^r— P^t't Creafan fot ttiUatn; Ijet ipu^bauD, ana fije aiJjii3n;eti tijctcupuan
£ cro c. to ijc burnt. 3intratur, '''^m, 14 Cat. Hot. 6S5. aiiD (aiD to be
^^i. pi. lo. rlje practice of tlje Court.
|^?S°' "p 3- But in an aiJpeal, if tije DefCnUant be arraigned in another
Ts P Term, then the Defendant appears, tljCte ought to be a Bill filed; (n
But per ■ tijE faiD Cafe of pgot faiu to be tlje Coucfc.
Maynard
Arg. if they had not pleaded the fame Term, or iTthey had pleaded any other Plea thati Not Guilty,
fo as there had been an Adjournment to another Term, then the Declaration ought to be filed, and of
that Opinion was all the Court, and Hoddefdon the Secretary faid, that fo was the ufual Courle.
Jo. 4.25 pi. 10 S. C. and S. P. accordingly, and cited the Cafe of Watts v, Brains S. C. cited
2 Roll Rep- 47S.
See I Inft. 4. 3 E. I. Cap. i^6. Ena£ls that it is alfo provided and commanded by
'■Sh ^5^- the King^ that the Jnjtices of B. R. atlVfttmnfler, from henceforth floall
decide all Pleas determinable at one Day before any A^atter be arrained, or
Plea commenced the Day following, faving that their EJJbins jhall be entred,
judged and allowed ; yet by Reafon thereof^ Ut none prefame to abfent hnnfelf
at the Day to him limited.
Ibid pi. 65. 5- A(Jtfe vi-i& brought in B. R. in Suffolk, and pending the Afftfe the
cites 16 Ait Bank removed from Suffolk to Wefiminfler, and yet they liiall proceed in
5. Contra, the Affife, and awarded Nili Prius to the Jultices of Alfife in Suftblk to
that it is |.^„
'"■ CourTof King's Bench. ______iii-
^^e Iffue lb7 * that whtdTTI^into B. RJjjU not go out; Qpo^ ^ut t harby
Nora Br. 'lurifdiaion, pi. 62. ekes i9Afl 4. fuch Remo-
val the Affife isMfio«tir„.eJ. " S- P. Ibid. pi. 69. cites 29 Aff. 43- P^^ Shard.
6. NufamevJiSJoundbyCommiiJion, W «'as certtffdhyiminBR.
and Precept made againlt the Tenants returnable Sabbato poft 15
Trin whi?h was out It the Term. Skip, la.d ^^e cannot make Proccjs
outonhe County ^^here the BankJ.ts unkfs by Unt, and give D'JY >n^he
Term and to the County, and Thorp conceflit, and laid, that they
^ rec fvenidiaments a\c'er the Term and make Pf-eis lutmg the
Bench, (and lb fee that the King's Bench may/H out o{ f^"«);"J ^^ ' "^
was done and he put to anfwer to it which was in this County, viz.
MlddS, andaJr they pleaded to Illue and ^-^.a was taken
in St Clement's Church out ot the Place, and well, and the> n.ay take
Verdia by Candle-Light, and if they are to remove they mav carry
the Jury with them in Ca'rts it they cannot agree, and fo may the Ju-
llices ot Affife Br. Turifdiflion, pi. 105. cites 19 -'^il- 6.
7 Ac the Commencement when the King's Bench/rts m Pats they
ftali make Proclamation that no Fair nor Market be held in the Coun y
o ong as they lit, nor that any Court Baron be held durwg thetr Seisms
mlefsin Wntoflhghu n.r no C.««0- held, unUfsoj Ls^gents and ih.d
;;;X Prodamiion'of'r/.. JJ^fi of Bread, Ale, ^^-^, ^ndjdl ot^c^^^tau^s
and per Shard, lie who fells Wine contrary to t lie Affle ot Law Ihail
forteit the Tunnel. Br. Jurifdiaion, pi. 67. cites 2.7 All 22.
8. When the King's Bench comes into a County, the f^J^M^J^^Hj^:^
joirrned there, and this leems to be the Reafon, becaule no jaltices ot^^ ^,
Affile are in Ihe County where the King's Bench lus. Br. J""'^'^'°"'the^v^vere^^
pi- 68. NeUnques
War, &MUu>mu &c. Br. Jurifdiaion, pi. 6b cites 2S Aff. 5^.
Q Note, that a Precedent was lliewn and read in Court, Trim 2 H.
. 4, Rot. 2. one M. L. that tvas indtded in the County "* Siirry belore the
. Jultices of Peace, hecaufe that hefehmovjly entred the Hude oj J S and
leloniouQy>/. 18^. Upotr not Guilty pleaded, thej^rj /w/;.^ a fpecial
■ Verdia, ]hat the fatd M. L and one J. D. and 'J N. de CogmUonefua were
Common Players at Dtce, and that they ufed to play ^'^^ f ^A ^»^' ^«^
Cozen the King^s Uege People at play ; and that they entred foUocHf
of the [aid J S. and dejmdhmi to play with them at Dice, ^''^J^^'^^'H' .
hue they won of him 12 d. ok And it this be Felony, they pray d
•the Dilcretion ot the Court. And this Indiament and Verdia was re.
mov'd into the King's Bench, and ^^^.^^eupon Judgment was «ntred
that although this was not an Oftence tor which he ihould lole Lie or
Member, yet becaufe it was tound that he was a CommonCozenor ol the
King'. People, it was ordered that Ixjhould be fet upon thePilory there fe-
Iramaysli the Strand, and three fe'veral Days in ^^f ^f '>/^^ere the
Otfence vvas committed. Note, that Noy Ihew'd this P^^'^^a t to the
Court, and prefently the Roll was view'd '''"^/ff ^H fnr rhe fa
commanded a Copy to be taken thereot, as a good Prehden for the Ju-
rifdiaion of the Court, and Government ot tne Common \\ '^^l h^^/?; .
J. 497, 498. pl. 4- Mi^h- ^6 Jac. B. R. cuesTnn. 2 H. 4. Leeler s
■ ^g. Bill of Praemunire was brought againft J. N. in B. R. for the King
and he pleaded to the Bill, becaufe t^. Statute it, ^^/^.^/'''^.fjl^/^f^jt^
hy BUI before the King ami his Council by Pramumre, which Bill betore t le
King and his Counui is mt^.nded before hm and his Lords, and not before^
^S6
Court of King's Bench.
htm in his Bench, and Praemunire is intended by Writ original, and
not by Bill in B. R. by whicli the Plaintiff luade Bill of Pr^munire
againft him in Cuftody ot" the Marihull, and then he was compell'd
to anfwer. Br. Prsmunire, pi. i. cites 27 H. 6. 5. But in Anno 22
H. 8. it was common that feveral Clerks were compell'd to an-
fwer to Bills of Praemunire in B. K. who were not in Cultody of the
Marlhal, Quod Nota.
2 Hale's 10. M. and others were /W/V?^^ of Felony in the High Way in C.
Hilt. PLC. g jf^^ Robbery of one E. K. with Gaggs, and the hidtdimentand the Body
favs Xt'lf ^^'"'''' '■'■"'0'"''^ "''" -S- ^- ^"'l '^here arraigned, and f leaded Not Guilty, and
Ifluc be ^'t'isi^ i l^ut afterwards a Writ ivas fent ivith the Body into the Country with
joii.'dthe Niji Prills, to try him in the County of B. Br. Corone pi. 230 (231) cites
the Trill- ^ rt^jar. JVlannington's Cafe ; And lays, that this is the common Courfe
he'lenrdlwiJ'^ to remove the Body, and the Record out of B. R. into the Country
to be tried again.
bv Nifi
Prius, but the original Record remains in B. R. and cites S.C.
9 Hep. 118. 12. If a M'^n he indiffed of Treafon or Felony in the County where the
b Trin._ Kings Bench doth ftt^ the Venire Facias jor returning of the Jury need not
llovA^in- ^^■^-"' ^ 5 ^'^y^ between the 1'ejie and the Return ; nay, the Entry may be
char's C-tie. Ideo immediate venit inde Jurata &c. But if the Inditlrment be taken ;«
. Co. any other County^ and removed into the King's Bench, there ought to be i ;
Litt. i;4- Days between the Telle of the Venire Facias and the Return. 2 Inlt.
-1-2 Hale'. 568.
Hift PI C
5. cap. I. S. P.
Br Oyer 13, The Jiiflices of B. R. are the Sovereign Jujiices of Gaol-Delivery^
and Deter- ^^^^ of Oyer and Terminer ; Refolved. 9 Rep. 11 8. b. Trin. 10 Juc. in
miner Sec. r j J i > , > r
pi 8. cu.s J-d. banchar s Lafe.
5 Mar 1.
. 4 Inft. 75 cap. 7, cites 7 E. 4. i8. 4 H. 7. iS. 14 H. 7. zi. 2. Ha'es's Hift. PI. C. 4. cap
1. S. P.
14 One offered hitnfelfto be Bail in an A-Slion upon the Cafe before Juf-
tice vV'hitlock, and affirmed upon his Oath he was a Siibfedy Man, and aC>
felfed 4 I. in the Sublidy-Book ; But afterwards, upon lurcher Exami-
nation, he confejfed he was not a Subfidy-Man, and alio confeifed he had
been Bail in otherAftions, and had fworn he was a Sublidy-Man, where-
as now he contefled he was not. He was by the Judgment of the Coarc
committed to Prifon, and tojiand upon tht Pillory, with a Paper mention-
ing his Caufe, viz,, for Falfe Bail. Cro. C. 146.pl. 25. Mich. 4 Car.
Royfipn's Cafe.
i_j. S. having forged the Hand of the Chief Jufiice to feveral Bails^
and \i€\Vig brought into Courts and examined, confefjed the fame. A Re-
cord was in/tantly made of the Confelfion, and Judgment given to Ji and in
the Pillory feveral Times, and to appear at the Bar with a Paper in his
Hat ihewing his Olfence ; and this without any Information, but only
on the Record of his Confelfion. Lev. i;j. Hill. i6&i7Car. 2.
B. R. Sherwood's Cafe.
(L) The
Court of King's Bench. 5" 5 7
(L) The King's Bench Jurifdlciion.
Of what Aci'wis they may hold Plea orighially.
n action M)iC!) t0 a Common Plea UOE^ ttOt 1(C itl'BanCO JBX- P«^I^' Qu^«
cites S. C.
2. AsaQuare Impedit tOCSl ItOt !iC ttt tljC Mtg'^ 'BCttClj, 6ecaurC4 Inft-V'-
it is a Common pica* 1 7 ^0* 3. so. \s, ^^p, ^ 2''
may hold Plea by Writ out of tlie Chancery of all Trerpaffes done Vi & Armis, of Replevins, of
* Quare Impedit &c.
* Ibid, cites Trin. 19 £.5. Coram Rcge Rot. 56. Line,
3. So a Quare Incumbravic tlOCjS ttOt \\t \\\ tljC JKinS'0 'BCnClj, be--F't^h. Qua-
caiift tljigi is a Common pica* 17 ^» 3 .yo- hraJh?'"''
pi. I. cites S. C.
4. Enaction upon the Statute of VVincliefter of Robbery U0C!3*See(N)
not tic i3)? £Dnpuii in isanco Eegts. <^iz\), 37 CK?* 15. E. I'-e^PlMar To
tiyccu * '^^'Z/^;- ^j«rf ^i/of/^ aDrnitteD, bccaiifc it iS a Common \p\m ; ,1. pi. js. '
ibitt l^aCcl). 15 Car. Td.R. bcttaecn Sir juhn\ Cvmp;on aiiD tfjes. cbut
l:5unDrcri of Woknig, in tlje Countj) of €)Uri:i), aonutteo, ano a^^-P ^oes
Crial anti ©croict tljercupon at oear, anD juOfiment accotOmglp,'!!'.N^P"[
but no Ctccption taUcn to it* the Lord
Compton's
C.fc, feems to be S. C but S.P. does not appear.
5- 3n action of Debt lies iW "Banco ECgiS againlt a sheriff or Gaol- This Court
er in Cuifodia Marefchalli for an Elcape, upon the Statute ot ^^'ei^r"'n-,o\oid pi^ea
Her 2. and i R. 2. tl)Oun;l) tijc Statutes limit tlje action to be brougljt hy Bin for
bp Wiit of Debt, UJljicb is by €)riiimal, for tbiSiS within the Equity Debt, oe-
of the Statutes. ^iCtj. 7 CaC. 16. E> bCttOeCn Brtghtwait anfi taylcr^^^^-^o, Co-
ann otljers, ^Ijeriffs of iBriltoI, annitiixcti bp a i©rit of error in^'j^^^'^.d'""
Cam. €>cacc. mijcrc tbis error uias alfiene'D, ano tljcre faiO, tljataii other
tbcre lucre lucre manp |^reccoeats accommgl)?* Perfonai
Actions,
Ejeftione Firma;, and the like, againftany that is in Cuflodia Marefchalli, or anv Officer, Minifter,
or Clerk of the Court ; and the Reafon hereof is, for if they fliould be fued in >.ny other Court, they
ftiould have the Privilege of this Court; and left there fhould be a Failure of Jultice, (which is fo
much anhorred in Law) they fhall be impleaded here by Bill, though thefe Actions be Common
Fleas, and are not reltrained by the faid AcT: of Magna Charta, ubi fupra. Likewife the Officers, Mi-
nifters, and Clerks of this Court, privileged by Law in refpeft of their necefLry Attendance in Court,
may implead others by Bill in the AiStions aforefaid. 4 Inft. 71, 71.
6. a Bill in Nature of a Praemunire lieS in XanCO ECJjiS in CnRO-
tia S^arCfCljalli $C. upon ihe Statute of Ed. ^. cap. tljOUlXb tbC
statute be, -^Dljat be fl)aU bnbc Dap containinn; tlje @>pacc of tiuo'
?9ont!)S bp (^arntfljmcnt, luijicb miplics, tljat itfljoulD be bp£)ri=
fiutaU 2E. 3- 17. b.
7. an action upon the Statute of 2 H.4. cap. 1 1. liCS bp 15111 in Cro C.
*BanCO EeglS, for fuing in the Court of Admiralty againlt: the Sta- 60:; pi. 8.
tures of 1 3 R. 2. and the faiU 2 H. 4. tbOUgb tbC %tm\tZ Of 2 p. 4 l^lv' h
faps, ^tat Ije fljaU fue bp j©rit fupcr CaUiniv '^x, 17 Car. 15. E. wasobjeaed,
7 c betiaccn
?58
Court of King's Bi.nch.
that the IjetiUeCn Bakip and frelawny aDjUOgCD* iintratUS: 1.9. 17 Cilf* TvOt*
Suit WJi by
BUI, and ^''
not by orif^inal Writ, as the Statute appoints ; but in rej^ard it was returned that he was in Cu". ■ j
Marefciialli, and that he could not otherwifs have his Remedy, it was held to be well enougli.
Stv. 9S1. 8. $in Aftion by a common Informer upon tIjC SttltUtC Of 7 Ed. 6,
^'"%^?,- cap. 5. tor felling Wines in his Houfe agalUlt tlje ^tatUtS, b^lUljiCl)
and Roil Jje fOrfeiten lo U foe efterp time, may be brought in Banco Regis by
faid, tint i^iil oi" Debt, though by the Scacuce ot" 18 El. cap. 5. ic is enacted,
the conllant That no Perfon Ihall be permitted or received to fue againft any Perfon
Cour.eis, or Perfons, upon any penal Statute, but by way of Information, or Ori-
Pany b»in- g'^al Action, and not ocherwife ; ftJt bj) tljC g^tatUtC Of tl)C 7 6C* 6.
in cuftodia'' cap, 5- tlje penaltp map be reco^ecen bj> 'Mm. of Debt, osill,
Maiefchai- piajitt, OE Jutfovuiatioit, in anp of tljeMis's Courtis of EecocD ■■,
h may be .-jJ^^, jj- yjjjg| j^qj- fijc^ntcnt of ttjE^tatute to ouft'tljc Court of ffliuis'is
aaabftby 'Bencij oflunSDution aptnft tbe Statute of 7 C 6. but ti)i0 c,c=
Bill, and tciiB^ onl}) to jpiauitss in Snfector courtjs^ anB ueuiaii£5 aftcruiarrj^j
we will QjiJj tf}e vv'ords of the Statute of 18 El. are not by Original Writ, but
not (uffer ^y Original Aftion, aull tfjtS Bill of Debt is an Original Aftion liildjm
to be eT' tlje IBorBS. %l. 1653. bCtUJCCn HiU andPune de Chakr a5)U0!iC3
eluded by pec curiam, tfjtsi fatter being moijeQ in ^rreft of JuDgmcnt.
obfcure 2ntratuc[i). i653Kot.9o- anUU-toas faiD tljere toere many pcc^
dye''.stVu"te, ccDentsi accorOuiGlP,
and fo Judgment given for the Plaintift Nifi &c.
Ci-o.E. 715. 9- 3if a Mayor or Sheriff, after an Arreft, refufes fulTicient Bail, a-
pl. 36 Wi- gair.ft the Statute of 23 H. 6. of Sheriffs, bp iDfjICl} tljC pmaitj? Of
dow V Clerk ^^^ j^ ig guicn^one ^oietp to tlje J^ing, auQ m otijcr ^pdietp to tije
iud-M for l^'^^P tijat VDiJl fue ; an tljis Cafe no lacrion of Debt Ue0 Dp 03111
the^Deien- ui iSiinco iRca;i0, becaufe ttie statute of tlje is Eiiz. is. That no
dant, and it Perfon fhiU be permitted to fue upon any penal Statute, but by way of
"'J"°' '''^ Information or original Aftion, and not otherwife. 'ii5Ut UOtC, It \%
the Status not limiteti bp tlje @)tatute of 23 1). 6. Ijooj tlje penaUp fljail be rc=
J8EH7. for coiiereo, but gciieraUp tljatlje fljatl forfeit ^oi ofiDijiclj tije l^ins
jeofaiie ; fljail \yM ouc s^oictp, auB be tijat inili fue, tbe otljer ^aietp, Co,
forth>s IS ^ ^uftitutejj I94. ano Co, 6. 19. b. Gregori's Cafe, uiijerc it 10 citeo,
ofFormr' ^' ^9 $ 3° CI. cotam Ecije, betiocen Widipn ami ck.-k au=
but Sub-' jUDQeO*
ftance, by
mifconceivino; the A6tion. M0.a47.pl 590. I.'defon v the Mayor of Notrinj^ham, S. C. .ad-
judged accordingly. S. C. cited by the Name of Woodfon v. Clerk as adjudged. Mo. 4 12. pi.
565.
10. Bill of Co;///) /Mfjc was maintained ;« E.R. becaufe the Plaintiff
was indicted of Trefpals^ Quod Nota, as well as if it had been of Fe-
lonyi for he was tnereof acquitted. Br. Bille, pi. 17. cites 3 Aff 13.
11. Aflife of yk/or/rt'i?»t:e/?or was brought in B. R. and no Exception
was talcen but that it may well be brought, and Allife oi Novel Dijj'ajin
may well be brought there. Br. Jurifdittion, pi. 121. cites 30
AfT 25.
12. Z)fi? brought ill B. R. for 16 s. Cofls of Suit given in an inferior
Court upon a Nonjiiit upon the Statute of 23 H. 8. it was moved, that
no yld ion did lie, o-gauiji the Statute of Gloucefitr^ which is that no Atfion
jball be brought here for any Sum under 40 s. But lince the Colts are given
by a latter Statute, it was held clearly that they are recoverable by
Attion of Debt in B. R. and Judgment lor the Plaintiff. Cro. E 96.
pi, II, Palch. 30 Elii. B. K. Harward v. Furbornii.
13. The
Court of King's Bench. 559
13. The Jnftices of B. R. are the fovereign Coroners of Engl a fid, ^"^ 'rii^. Cluct
therefore where the SherilFand Coroners of the Land m.iy receive Ap- ■b^r^s"!^^
peals by Bill, a fortiori the JulticesofB. R. may doit. 4 Inlt. 73. fovereign
,,,,,, n Coroner of
*-'t^" '' all England;
Per the Reporter. 4Rep. 57' b- S. P. by Glyn Ch. J. 2 Sid. loi. Trin. 1658.
2 Hale's Hift. PI. C. 5. cap. i. S. P.
(M.) Oi njohiit Anions they may hold Plea /or a colla-
teral Re/peB.
I- TJf a ^nn recovers in a Quare Inipedit in' Banco, aUU flftCt this
I is removed in Banco Regis by Writ of Error, a Quare incum-
bravic does not lie there, tljOUljIj tlj(0 5000 llOt !tC initljOUt a JUpff;
niCnt, bSCaUfC tijt.S is a new Original, and a Common Flea in itlelt.
17 <£» ^ 5°- t3, . ^ ,
■ 2. 2lU Attion de valore Maritagii by the Lord lies agamft theCro. C. 502,
Heir in Cuftodia Marefchalli. ^tcf). 14 Cai% X\ E» bCttUmi ^rmi- so?; Pj 5-
^ciiand Saunders, mm^zVi ispou a Dcmurrec to a Declaration, po,„ the"'"
luit tljis ujas not mouen -, Uiit i^r* OoDDcroon fain to me, Cljat l)e Action
iian ciiicus ^^rccciicuts accouoimjip, tljat itlicgi m aDancaEc2ijj,b'oughrto
Bttratur, tp. 13 Cai%EolU 1266. upoTthl'
Cafe, and it was mov'd for the Defendant, that the Declaration wjs ill, it beinn; in nn Aftion on the
Cafe, whereas it ought to be in Valore Maritagii; and the Court doubted ot this Point becaufe there
is a Ipecial original Writ De Valore Maritagii.
3. Jfa Man fuesa Latitat out of B. R. to the Intent to declare In ^ach Cafe
againltthe Defendant, after Arreil; in Cuftodia Marefchalli, in an ™^^^^^
Action of Debt, and the Sherilfarrefts him and fuffers him to Efcape, ^pp.gj.^ gj,d
an action lie^ agamft tlje eijcnif, fijctDing ttjis fpecial fatter, anU puts in Ban,
i)c fljatl reco^ec i)i0 Damaged, ija^ms Ecijaco to tlje lolgi ot t)i!3he.siuppof-
Dcnt. ^r. 14- 3]a. 15. K. cuftod""
Marefchalli, and declares againlt him in Cuftodia &c. but it is not fo in any other Court. Cro. C.
330. in pi. 14. Mich. 9 Car. B. R.
4. "Tf after an Arrcft upon a Latitat tIjC Defendant tenders Amendsr\A-/0
afteCtiie$irreft, for an involuntary Xrelpals, according to the Statute /^^l^^l^
21 jac.^c. 16. tl)l0 is not IJOOO, upon an Averment that the Latitat (j^„ (j ^g^
was lued cut to the Intent to declare in Cuftodia Marefchalli lor this pi. , i. s. C.
was JUCU UUL LU lllC lULtllL LU uv.viai^ Jii ^^i-^v- ^.^ — f... , i. „. —
Trefpafs, fot otljctUJife 3 S0an njaUUe nctcateD of m Coft.s bp fuclj'-doiv-d that
•SCentJcr. Cn 8 Cat, '3. E* Uetlueen ^^■^?^^- and Baker, aOuDgen^fJ;;^"
upon DCmUttetv late, for as
well as a
Tender after an original V\'rit comes too late, fo it is after an Arreft upon a Latitat; For the Ttnder
by the Statute is intended to be immediately after the Trefpafs, and oetore any Suit commenc'd.
5. In an Aflion oi Trefpafs brousht here arainfi the Defendant in C«/- 1"^''^""!^
todia Marefchalli, in the Declaration the Trefpafs was laid to be done ^" ^JH-^J,^ '
Cornwall, the Defendant /)/f<:7rt'j in abatement of this Aftion, and fets 5,,^„^ p^,-//,
forth the Charter of E. i. granted unto the Stannery Court, thtreiy enabling m<\ ti.is wxs
the Stannery Workers to plead there, and there to he impleaded in the Stan- ^'^''j^'' ^■
nery Court, and therefore prays the Benefit, and the Priviledgc ot this,'j'y, ^^J^^^_
to have the Trial there ^ againft this it was urged, that the Court here^.^^^^.^ j.^,^^
is to hold Plea of thih; notwithftanding "their Charter; lor this„^.,;„/? ;>«
Court may hold Plea of Debt, Dttinne and Covenant, notwithftand-;^ O./?..-''.^
56o Court [of Common Pleas.]
the Charrer jng the Scatucc ot -Magna Charca, cap. ir. Cominunia placica non
v.'i'ifle.tded, f"equ;intur Curiam noltrain &c. he being there in Culludia Marefchal-
u't'tlkTbL^'^i ^^^ Plaintiif may here declare againll him in whac Manner he will,
io;-e the Con- and his coming in here is not inquirabie. But the Court agreed, that
pahUof if one be here in Cuflodia Mareichalli, he is not to be fetch'd away,
Ikyey, but ^nd if he fhould not anfwer here being in Cuflodia Marefchalli, none
alio *ed*"he could have Remedy againlt him, and therefore he was ordered to
■was found anfwer. 2 Built. 122, 123. Trin. 11 Jac. Parke v. Lock.
Guilty and
hanged. 2 Bui ft. 125. cites Mich. 40 & 41 Elii. B. R. Rot. 284. Brayne's Cafe.
Cavth. icS. 5 7]-efpafs quare vi ^ am/is claufum fregit, which the Plaintiff laid
^rivic Old ^" his Damage vf 2.0 s. the Defendant demurred for that B. R. hath not
|^,„i,, ., Cognizance t'nhtT at Common Law, or by the Statute of Gioucefter,
Salk. ;5y. to bold Plea in an A£l:ion where the Damages arelaid to be tinder 40 J. fed
pi. I. S.C. per Cur. Trefpafs quare vi & Armis will lie here, let the Damages be
— 2 Init. vs-hat they wiJlj and Judgment for the Plaintiff. 3 Mod. 275. Hill.
I \\'. &M. in B. R. Lambert v. Thurllon.
For more of the Court of King's Bench, See Crompt. Jurifdi£tion oi
Courts 67. b. to 82. 4 Init. 70 to 78. cap. 7. Prynn's Ani-
madv. on 4 Init. 47. 2 Hawk- PI. C. 6. cap. 3.
(N^l In what y^tilons they may hold Plea by Prrj'i-
kiTC, for a collateral Rerpe6i:, /;/ refp-::!; oj the De-
'.udcnt.
s. p.
>
* Ci'o. C. r, y\ 5[iJ A£lion upon the Statute of VVinchefter, of Robbery againft the
s'c tVl -^^A Inhabitants of an Hundred, UcgS lip IBlU III 13. E. tl)Olin;!) tttgl
donotob fupp; kd bv the Bill, that they are in Cultodia Mareichalli, $C» fOC
jerve s. P. tfjc 3!nl)aliitiint^ of ail ^imtirca map be iniprifoiiea, ann \x map be
there.— Jo tittcnbcD tljat tijcp an uicre imprlfoncn, p. 7 Cat. 15. E* becuisen
s'c b t'^S * ^'^^''^''ailD t!)e SnbabttaUtjS of tljC Ji:)UntirCr! of nemerlb, aims Benhurlt,
p does"not in Coiiiitatii 'BcrJ^ss Detenoant^, hmutsgGU upon a fpcctal oetDict
apuear. bj) SDuitttance, tijlsi not bcunj nioDco. Contta*
t See (L.) 37 i^l 03^ j^, bCtlUeni t Sadler and Morfe^ nt))llDn;Ctl.
pi. 4. s. c.
Gouldsb. 14S. pi. 69. Hill. 45 Eliz. itwasftiJto have been adjudj^'d in B. R. that an Ac-
tion upon this Stature a^^ainft the Inhabitants of an Hundred will never lie by [Sill, but ougiic to be
fued bv Writ, becaulc the Aftioii is hrouglit againll: Inhabitants, which arc .i MultiiuJe, and conlc-
quently cannot be in Cullodia Marercilii, as another private Pcrfon ra.iy be.
(N. 2) The Court of Common Pleas.
♦ ReFore * i. Magna Chart a. T^Nafts that x\\z Common Pleas (JjaJl \ not fnlUw
this Stature g H. -x. cap. II. Pj oiir Court., but Ihall be bolden in fome Place
C. B mi"ht . '^~~^ ' ■' ■'
u u,.^^ certain.
have been
holden in
B. R. and all orii^inal W>'its retornab'e in the fame Bench, ind becauTe the Court w,is holden Co-
ram Rcgo, and followed the King's Court, and removable at the Kin^'.s V\'ill, rhe Returns were
IJbicunque fuerimus &c whereupon many Difcontinuances enliicd, and gre it Troubles of Juror,
Cliaij^es ot Parties, and Delay of Jufticej for thcfc Caufes this Stature was m ide. 2 In ft. 21, 22.
+ Here it is to be mdcrftood, a Divifion of Pk-as for Placita are divided in Placita Coronsc, Sc
Ccmirunia Placita; Pl,uilaCorcvic are othcrwile, and aptly called Criminulia or Mortalia, & Pi,ic>t.i
Court |_of Coniinoa Fleas.] ^6i
Cjwwwn'.i are aptly called Civilla ; Placita Coro.ia: are divided into Hij;li Trcafon, Mirprlfljii of
Treafon, Petit Treafon, Felony See. and to tlieir Acccflaries fo called, becaufc they are contra Co-
i-oppm & Dii^nitatom ; andoftlicfe the Court of C. R. cannot hold Plea, i Inft 22.
Diverj fpeita! C^fes are cut of this Statute, lit. The King may fuc any A6tion for any Commotj
FIcainB. R. for this general Act doe< not extend to the Kin^. zdly. It any Man be in Culfodia
l\larelchalli of B R. any other may have an Action of Debt, Covenant, or the like perfonal Afti-
on by B. R. becaufe he that is in C'ullodia Marefchalli ought to have the Privile;;e of that Court
and this Ad takes not away the Privilege of any Court, becaufe if he fhould be iued in any other
Court, he fhould not, in refpeft of his Privilcf^e, anfwer there, and fo it is of any Officers, or Minif-
ters of that Court ; The like Law i'; of the Court of Chancery, and Exchequer, ^dly. Any Aftion
that is Quare Vi et Armis where the King is to have a Fine, iniy be purchafed out of the Chance-
ry, returnable into B. R. as Ejettiunc Firmx, Tierpaf'; Vi & Armis, Forcible Entry and the like.
4tlily And a Eei'levin may be removed into B. R. becaufe the King is to have a F'ine, and fo it is
in an Aflifc broujiht in the County where B R. is. sthly. Albeit originallv B, R. be rcfttained
by this Adt to hold Plea of any Heal Adtion &c yet by a Mean they may ; As if a Writ in a Kcil
Action be by Judgment abated in the Court of C. B. if ihis Judgment in a Writ of Error be re-
verted in B. R. and the Writ adjudged good, thev fhall prooccl upon that Writ in B. R. as the
judges cf the Court of C. B. fhould have done, which they do in default of others for Neceffity,
icaff any Party that has Right fliould he wi;hout Remedy, or that there fhould be a failure of Tuf.
ticc, and theietore Statutes are alwavs lb to be expounded, that there fhould be no Failure of fuf-
ticc, but rather than that fhould fail out, that Cafe i_by Conflruction) fliould be excepted out of
tlic Stature, whether the Statute be in the Negative or Afiirm:uive. 6thly. In a RedilTeifin or the
like. 2 Inft. 23. ,
2. In T'refpnfs of Fillilng ill his Pifchary in D. to the Damage of 40/.
the others iiiid, that he Filh'd in S. in his fevcral Soil, Ablque hoc,
ihtit he is guilty ol Filhii)g in D. and the others e contra, and found
for the riauitiff to the Damage of ^d. Forteicue laid, the Statute isj
that the King's Court lliall not hold Plea under 40 s. but of 40s. or
above. Per Fallon, this is true, as to the Surmife of the Pkintilf in
his Declaration. But if he declares 01408. or more in Debt, Tref-
pafs &c. and it is lound the Damages izd. or the Debt 12 d. or fuch
like, yet the Plaintilf Ihall recover, and lb it was adjudg'd, and that
the Plaintift'lliould be amerc'd pro fallo Clamore, and yet contra
if the Plaintilf had counted of a Sum under 40s. note the Diverlity.
Br. Jurifdiclion pi. 40. cites 19 H. 6. 8.
3. jufticesofC. B. may hold Plea by IFrit of Efcape ht London upon
Ricowiy and bxeciition tn the Cinque Ports, and may ivnte to the Conjia-
hle of h-figland, and to the Conltable of DoDer, and to the Judges of
the Jdnnralty, and to the Rifhop in cafe of Bigamy., Baffardy, Pro'effion
&c. and that they themlelves cannot hold Plea thereof. And may
write to the County Palatine upon Voucher^ and may write to the Prince.^
and to the Jufiiccs oj Wales, quod nota. Br. Judges, pi. 30. cites
30 H. 6. 6.
4. JullicesofC. B. hearing of Menace and /«//)r/yo«;«f»? aW^ to an
Attorney oj the Bank m inferwri Palalio Regis ^ may inquire thereof and fet
a Fine. Br. Judges, pi. 31. cites 32 H. 6. 34.
5. In Ti-efpafs zi-it Shenll'return'd upon Capias, that before the coming Br Refpoti-
cfttis lint the Defendant was taken and detained by Warrant of the Peace&e.v-,^\- S9.
in pais upon Riots and forcible Entries, and for furety of the Peace and by*^^'^^ ^' '^■
the Jullices ol both Benches, il the Plaintilf counts, he Jhall be by Main-
pnfe after Anf'Wer made, ai,d remitted to the Sheriff to anfjoer there of the
Riots and Peace; For C. B. cannot meddle with chofe, but of the Peace
in the fame County, and fo he was remitted before the Sheriff in Pais.
Br. Retorn de Briefs, pi. 83. cites 2 H. 7. 2.
6. Note by the *i>i?Avf^ of Ghmcejier cap. 8. A Man Ihall not ha'i)e
^rejpafs in Bank if he does not make Oath that the Goods taken ivere worth
40 J. at the leaji-, which is alfo recited in a Cale of Trefpals, which
was removed by a Recordare out of a bale Court where the Damages
were not 40 s. and therelore ill, per Fitzherbert and the bell Opinion ^
and by the Serjeants, Procedendo lliall be awarded quod non negatur,
and it feems that the Common Law is, that a Man (hall not have Dek^
7 D Detinue^
562 Court [of Common Pleas.]
Detinue^ Covenant nor fiich like in Eanco^ arilefs it be of 40 j. dr viore.
Br. Jurifdiction, pi. 45. cites 14 H. 8. 15.
7. Note chat Hill 4 Mar. i. it appears by fearching the Records of
C. B. that the Jiiftices of the Bank may take and Record a Recognizance as
•well out of ^erm as in T'erni, and as ivell tn an any County in England as
at Wejiminfter. And in the Time of H. 5, Ana. 4. a Recognizance wd.s
taken at Rippon in the County of York, 28 September, Anno 4 H. 5.
which is out of Term. And feveral fuch Records are in C.B. as well out
of Term as in Term, and out of Court in the Time of H. 4. H. 5. H 6.
and aJmoll in all other Reigns j quod Nota, and See the Entries of the
thiee lollowing, viz. M. 4. H 5. Rot. 119. and H. 13. H.6. Rot.
320. and P. '27 H. 6. Rot. 125. Br. Recogninane. pi. 20.
8. It is man i fell that this Court began not ajter the making of this Jif.,
as fonie have thought ; tor in the next Chapter, and divers others of
this very great Charter, mention is made De Julticiariis noltris de Ban-
co which all Men know to be the Juftices of the Court of Common
Pleas coinm.only called the Common Bench or the Bench, and Do6t.
& Stud, faith that is a Court created by Cuilom. 2 Inft. 22* 23.
9. It appears by our Books, that the Court of Common Pleas ivas in
the Reign cj H^ i. that there was a Court of Coyimon Pleas in Anno
I H. 3. which was before this Aft, Martinus de Pattelhuil was by
Letters Patents confticuted Chief Jultice of the Court of C.B in the
firft Year ot H. 3. 2 Inft. 23.
10. It was refolved by all the Judges in the Exchequer Chamber,
that all the Courts viz. B. R. C. B. the Exchequer and the Chanary^ are _
the King's Courts, and have been time out of Memory^ lo that a Man can-
not knoW which is the moll: Ancient. 2 Inft. 23.
11. A Dejendantha.yin^ made an Affidavit in C. B. afterwards being
fummon'd confcfs'd U to be Jalfe^ whereupon the Q:irrt recorded his Con~
ffffion and ordered him into Cultody, and to Hand in the Pillory for
P'oriury ; And notwithftanding what was urged by his Couniel, as to
the Jurildiftion of C. B. he was put in the Pillory the laft Day of the
Term. 8 Mod. 179. Trin. 9 Geo. i. The King v. Thorowgood.
... 12. 'fhis Court's Authority is founded on Original Writs ijjaing out of
Lrrintel Chancery^ which are the King's Mandates, lor them to proceed to de-
in Gilb. and termine' fuch and fuch Caufes ; For ic was a Maxim among the Normans^
fhould be [h^t there jhoiild be no Proceedings in C. B. iviihouttkc King's Writ i and
as here^. Sec therefore a Writ always iffued to warrant this Court's Proceedings, and
Fletrs^'! t^^of*^ iffued out of Chancery, becaufe when the Courts were but one.
Lib. z. the Chancellor had the Seal ; Therefore when they were divided he
cap. 54- fealed all Original Writs by this Method, and the Seal was a Check
on the other Courts to know what Caufe was there, and likewife that
the Fines for having Juftice in the King's Court ihould be anfwer'd
in Court, beibre there were any Proceedmgs and therefore Fleta fiys
Dum tamen warrantum * per Breve Regis habuerinc Cognolcendi,
nam line Warranto Jurifdiftionem non habent nequc Coertionem.
Gilb. Hift. of C. B. 2
For more of the Court of Common Pleas, See Crompt Jurifdiftion
of Courts, 91. to 102. Inft. 99. to 103. cap 10.
(N. 3) Pleadings.
Court of Exchequer. c^6^
(N. 3) Pleadings. As to Matters done in B, R. or
C. B. or other Couits.
1, T) R- and Chancery are Courts removeahk, ii»d therefore it ought to
_jj* Oe pleaded where they are held. Arg. Mo. 176. pi. 310. and
vouch'd 27 H. 6. 10. b. where in NV^ric of Maintenance in B. R. he
did not fliew where the Bench was, and theretore ill ; For the Writs out
of this Bench are&c. Ubicunque luerimus in Anglia ; And in 5 E 4. 3,
b. the lafl: Cafe ol the Year the Diverlity is taken between the C, B.
and B. R. on a Bill exibited in C. B. which did not Ihevv where the
Bench was, and yet awarded good i For the Statute of Magna Charta
is that it Ihall be held in certo loco ; And ibr this Point he vouch'd
34 H. 6. and 36 H. 6.
2. In Trover the Defendant faid that he recover' d againjt the Plaintiffs Noy. 56.
a Debt of 2.0 1, in B. R. and had a Ft. fa. to the Sheriff of T. who at U". S- C. ad-
in the County of T. feifed the Goods and delivered them to him in Satisjadion'^^^^^^'
of his Execution. But it was ruled to be ill becaufe he did not fioew
where B. R. was at the time of the Recovery, it being a Court remove-
able as 5 E. 4 8. is. Cro. E. 504. pi. 28. Mich. 38 & 39 Eliz. B. R.
Thompfon v. Clerke.
(O) Court of Exchequer.
I. T) ©C^LS) patliamcnti, * 2|)* 4. Ji^umero m. tlje Com-* Piynne
Iv con b Petition aeainft Writs, CfillCll Quia datum eft nobis in. ;^^^'' °^ „
! cord. 41 :
tW ViBxit t 4 ip» 4. iSumcro 78. Stmile, + 3 ^). s- jQumcro?9- the
teiiigi, tmiinQ; out Of tije Cccljequer, tutitout an? Jnqueft founOcord a,.
ot otijct EecotD, but no saiTent tDcicto,53i"cc fuclj 13etutan agaiuft 2h'4 no.
lame Peti-
46.
^ tion, to
■which the Anfwer was, " The accuftom'd Ufe fli all continue." But there are not fo many Num-
bers as iiz.. t Ibid. 422. No. 78. 4: Ibid. 548. No. 46.
verfions
52. 55.
2. 7'he Court of Exchequer, which as GervaJius Tilburienfis de Ne- SeePrynn's
eels. Scac. Obf (a fure Author) reports, was herefrom the very Conqtiefl, ^^l^^^'
and infvitnted according to the Pattern of that m Normandy^ and was e- ""
reiied there by Rollc, as Revife faith, Notes on Grand Cuft. lol. 8.
The Authority of this Court wasfo great, that no Man might contra-
dict a Sentence pronounced here, and not only the Law and the affairs
concerning all the great Baronies of England^ and all fitch EJlates as held
inCapite wfre tranfa&ed there, but many Laws and Rights were dif-
cufs'd, and many Doubts detemiin'd, which frequently arofe from
incident Qiiellionsj For the excellent Knowledge of the Exchequer
confjfts not in Accounts only, but in multijjlicuy of Judgments. And
Common-Pleas were ufually held in this Court mitillthe 28. of Ed. the \Ji.
it was Enacted, that no Common-Plea Ihould be henceforth held
in the Exchequer, contrary to the form of the Great Charter. In this
Court fate the Capital Jujiiciary, the Chancellor, Treafurer, and as
ihanycfthemo/ldifcreet, great eji and knowing Men, (real Barons J whe-^
tier of the Ch'rgy or Laity as the King pkas'd to direLf. The Bulinefs of
the
564 Court of Exchequer.
the Court was not only Accounrs and what biliing'd to them, but to
decree right, determine doubttul Matters, which arofe upon incident
Queftions, to hold Common Pleas as before, and to Judge what chiefly
concern'd all Capite Lands, and the great Baronies of England.
Brady's Preface to the Norman fliltory. 160,161.
3. Information upon the Statute of % E. :^. cap. 2. for givinjr Licences;
The Quellion was, iftheAftion lies in the Exchequer? The Barons
iaid this is a fuperior Court though not nam'd in the Statute, and that
the Suit may be here, for there are no reftriflive Words in the Statute,
and this Court hath Power to hold Plea of any Thing which doth con-
cern the Queen, if not reftrain'd j Adjornatur. Cro. E. 326. pi. 3.
Pafch 36. Eliz,. B. R. Agard v. Candilh.
Sid u*? 4 On a Adandamus to refiorc Dr. Patrick to the Mafterpip of ^necn's
pl. 12 Mich. Cclle<re tn Cardbridie the Court were divided, whereupon it was conlideied
19 Cir. 2. rfjl^nther tt being aCaiife of the Crown Side it vitght be adjourn'' d into the
Kin T Exchequer Chamber, and it feem'd to fome that it might, but it was not.
Pa'ndc, Lev. 65. Pafch 14 Car. 2. B. R.. Queen's College Cafe, alias Dr. Pa-
the Court trick's Cafe.
it might and that Pleas ot the Cri wn as well as other Pleas might be reinov'd thither. And the Book
of 4 Inft. 6S, 69 leems to warrant it; And that k extends to all Pleas int tlcfe in the Ecctff.^ifucal
Q„,t,^^l — Ravm. 101 to 1 1^. S C. but S. P. docs not appear, 1 Keb. 259 pl 5. S C liiy- that
upon Motion to adjourn it into the Exchequer Chamber, bctaufe the Court v.ere divided, the Court
gran ed it.
5. In the Exchequer there are thtfe 7 Courts, ift. The Court of
Pleas.
-zdiy. The Courts of Accounts.
3dly. The Court of Receipt.
* Excepting 4chly. * The Court of the Exchequer Chamber, being the yijfmbly of
in 2 Cafe>, ^j^ "fudgts of England lor Matters m Law.
Law, can be flicw'd to he adjourn'd into the Exchequer Chamber, befnre Argnm nt by the Judges,
in the fame Court, where the Caufe is hanging, and thefe 2 were The Cale oF the Poflnati, Cal-
vmsCafe, 7 Rep. tol. 1. and the Cafe of Suttons Hofpital. lo. Rep. fol. 25. and no others before
Argument here, and ditiereiice in Opinion by thejudges, or Agreement by the |udgcsupoii tiicir dift'er-
ing in Opi'iion, to adjourn the fame thither, or by Writ of Error; L'erCke Ch. ] who aid thefe Rules
arc to be obferv'd, tor the adjourment of Cafes of Difficulty into the £xi hequer Chamber, 1. This
ought to prueed ex tiiotiove curU, but not of the Party concern'd. 2 This ought to he after J.ctimer.t,
but not before and upon diference in their Opinions, or by Writ of Error. 1,. When the Cafe is
adjourn'd thither, it a Judge dies, tlie matter, for this, is not to ftay, but to proceed; And if one of
the Judges have there argued, and afterwards one of ihe other Jut-'pt-s dies, the Matter is not to ftay,
till another ludge be made, but the fame is to proceed, and a new J'idpe being made he is not then to
Argue. 2. Bulft. H^, 147. Mich 11 Jac. in Cafe of W'arrainc v. Smith.
5thly. The Court oi Exchequer Chamber for Errors in the Court of
Exchequer. 31 E. 3. cap. 8. and 31 Eliz,. cap. i.
6thly. A Court in the Exchequer Chamber Jor Errors in the King's
Bench. 27. Eliz. cap. 8. 31 Eliz,. cap i. Co. pl. Intr. fo. 2.24. 37.
And 7thly. This Court of Equity in the Exchequer Chamber. 4
Inft. 119.
6. King Charles the 2d. having taken up Sums of Money ot the
Petitioners, (Bankers) granted to them and their Heirs, Servant Jn-
7iutttes chargeable upon the Hereditary Revenue, of Exctfe given to the
King by 12 Car. 2. cap. 24. The Barons held, that the Remedy by
Petition to the Barons was a proper Remedy, and Judgment was giv-
en for the Petitioners by the Opinion of 3. but Letchmere B. held
that the King could not alien or charge this Revenue, and that tor
levcral Realons there mentioned. Freem. Rep. 331. pl. 413. Hill.
1691. in Scacc. upon the Petition of Hornbee & al'.
(P) Court
Court of Exchequer. 565
[(P) Court of Exchcrf/cr.']
U'lmt Perjous lliall have the Frhilege of Suit.
1, r~Tpj32J King's Farmer may file one that detains from him Pare dfBr. Qilo
X "the Poliellions tljilt fjC Ijiltlj frOlU tijE ElllS, out of u hich the^^'""^- P'-
Farm is to be paid, tl}) lOljIClj IjC CilMlOt piip IjlSS jf atUI tO tljC J^ing^s.' C -1—
38 safl; 20. aOUBflCtJ* Br.jur.r-
diftion, pi.
7c. cites S. C. Ibid, p!. 90 cites S.G.
2. Thomas Younge Ji'.ftice fusd Bill in the Exchequer againfl the Clerk S.C. cited
ofthe Haiiapcr npon his Account^ and the /)«/f«^(?«f call Superfedeas of ^^^''"^'''^^■.^
the Privilege of rhe Chancery, becaufe he Was Ckrk of the Chancery JofQuy v.
and by all the Juftices in the Exchequer Chamber the Superfedeas fliall Rcynell.
not be allowed ; for every one who is Jccoantaut ought to be attendant * An Jc-
andprefent, and there he ihall be fued, for it is an Advantage to the^[~^j|^_
King that he ihall attend, and Ihall Accounts and Accountant may^^g^ to^h^
have Bill againlt his Debtor^ and this is for the King's Y\d vantage, King was
Quod citius folvat Regi i and //Accountant he fried in C. B. they ihaitiued in B. R.
fend Superfedeas to lurceafci and ij he be fiud in B. R. thofe of the^"^'|j^^^^''J-_^''
Exchequer ihall ihew the * Record that he is Accountant &c. and fhali^^^^^^^^
twt have Saperfdeas to the King; for the Pleas there are Coram Reger^;„e,„/5
&c. and he Ihall be difmilfed, and iliall be fued in the Exchequer. bT.theCo»rt,
~. . ., 1 • c- . . 1"" produced
Privilege, pi. 25- t^'tes 9 E. 4. 53. ^.^ /^^^ ^^
JcccMit.wts to t!ie King, and that the Dsfend-.mt was one, and pr.tyed the Privilege ofthe Court of Ex-
chequer, and that the 6uit might be flayed The Court demanded of the Secondary, what the Courle
■Was in fuch Cafe, whether to grant it upon fuch bare Averment ofthe Baron, or that it ought to be
pleaded and prayed by the Partv ? Upon his informing the Court that it had been u'ually allowed
<t,7<;'«(«P/e^o>'P'--'>«>-, It was granted accordingly. But Williams |. was llrongly agamlf it, and faid,
that there are many Books wherein it was adjudged in Point, that it ought to be upon the Party s
Plea :;nd Prayer, and that without this the Court caniiot certainly know whether he be the fame Party
for whom the Privilege is prayed. 2 Bulft. 96. Mich. 10 Jac. Anon.
3. If an Accountant in the Exchequer be impleaded in C. B. the Exche- And if^he^ ^
quer may fend a Superfedeas to them to furceafe, Br. Superfedeas, pi. .^ ™^^" ^
38. cites 9 E. 4. 57. thofe of the
Exchequer
•will pew the Record of Jccotmt Sec. For they cannot make Superfedeas to the King ; for there thd
Pleas are held coram Rege, and not coram Jufticiariis ; and he fhall be difmiflcfl. Ibid.
One who was Receiver General of the Revemia ofthe Crown in the Counties of W. and L. &c. be-
ing fued in C. B. brought a Writ ot Privilege out ofthe Exchequer, but it was not allowed. D.
52!) pi. 9. Mich. 1 5 & 16 Elii. Hunt's Cafe.
4. By the Statute o'i Artie tiU fiiper Chartas cap. 4, it is provided, That The Privi-
tio Common Plea, fhall be held in the Exchequer, unlefs where either the^^^°^^^'^lf_
Plaintiff or the Defendant is privileged . 5 Rep. 62. a. Mich. 32 & 33««j"m'the
Eliz. in the Exchequer, in Sparrie's Cafe. Exchequer'
extends to
the Debtor of the King's Debtor. 4 Inft 1 1 2. cap. 1 1.
5.' The Plaintiff being an Accountant in the Court ofExchequerj
by Bill there prayed to be relieved againll a Bond put in Suit by De-
fendant in the Petty-Bag, by rcalon of his Privilege as Uiher oi the
Chancery. The Defeodant pleaded his Ptivilege as an Oiicer ot the
^ - E Court
•B
0(5 Court of Exchequer.
Court ol' Chancery. The Court agrted, that v\'hen both Parties are pn-
mlef^cd, his Privilege jhall take Place iv ho files Jirjt ; and that in this
Caie the Suit in Equity to be relieved againll the Penalty of the Bond
is firft attach'd here, and it is not the fame Suit with that at Common
Law, but diftinft from it. And it was further laid, that ;/ both Par-
ties are privileged Perfons, and the Attendance of the one is mnre reqtiijite
than oftheothcr^ (as in the principal Cafe ic is, the Plaintiff here being
an Accountant in this Court, and entred into his Account, as by his
Bill is alleged, which cannot be compleated by Deputy or Attorney) in
fuch Cafe his Privikgepall be allowed ivho has moft Caitfe oi' Privilege 3 &
adjornatur. But at another Day the Plea was over-ruled, and an In-
junftion granted till Anfvver, Hard. 117. pi. 2, Trin. i6j8. Baker v.
Leiithall.
6. The Plaintiff, as Debtor to the Ring, and 'Treafurer of the Navy,
exhibited his Bill in the Exchequer. The Defendant pleaded his Privi-
lege, zs one of the fix Clerks in Chancery, under the Great S^al. Hale
Cii. B. and the Court held, that a general Privilege, as Debtor, will
not hold againft a fpecial Privilege, but againlt a general Privilege it
will. But a Privilege as Accountant will hold againit a fpecial Privi-
lege in another Court, as Officer of the Court, orotherwife, though it be
not alleged that he has enter'd upon his Account i and in this Cafe the
Plaintili, being Treafurer to the Navy, is Eo ipfo an Accountant. Hard.
316. Mich. 14 Car. 2. in the Exchequer, Sir Geo. Carteret v. Sir John
Malfam.
7. There are three Sorts of Privileges in the Exchequer, ifh. As Dehtcr.
2dly, h& Accountant, sdly. As 0^/«r of the Court. Againit the firft
ot thefe, any Man who hath a fpecial Privilege in another Court, as an
Officcrof the Court, or an Attorney, ihall have his Privilege, becaule
the Privilege of a Man as Debtor is only a general Privilege ; But if an
Accountant begin his Suit here, no Privilege Ihull be allowed elfewhere,
becaufe he has a fpecial Privilege, by reafon of his Attendance, to pafs
his Account, in which the King hath a particular Concern ; the fame
holds in an Oiiicer of the Court ^ it he commences a Suit here, no Pri-
vilege in another Court lliall prevail againll him, becaufe his Attendance'
here is requilite, and his Privilege here is attach'd firlt by commencing
his Suiti But where the Accountant has finilhed his Account, and re-
duced it to a Certainty, fo that it is become a Debt, then he hath only
a Privilege as a general Debtor has ; So a Servant to an Offcer, or Mi-
mfler of the Court, has no Privilege againll a privileged Perfon elfe-
where ; Per Cur. Hard. 365. Pafch. 16 Car. 2. in the Exchequer,
Clapham v. Sir J. Lenthall.
(Q.) [C'5£/r/ of Exchequer.']
Of what Th'wgs they fhall have the Privilege of Suit.
Bv 1 unf- I . T i^ tl)C lAmB'0 if antter X\m in tlje Cjcdjcqiier againff a pcrfoii
tiiainn.pl. X for detaining of Tithes, Parcel ot the Polielfions to him lealed
•yo. Hiid in parm by the King, tljOtUjf) tljC Right of Tithes comes in Debate bc^
JSlct.tU)een tljem, I'et tIjcCoiutfljaUnot be oulffti of Jutistuctloiu ss
Z\^o ' m. 20. aD)iiDgeD. * i^p Eeport$ faio Ciuoti a3lciim.
4'citesS^C. Br. Prerogative, pi. 74. cites S.C. but fays it is faid there, [viz, in the Year-
Book,l Quo<i Mirum !
* Thi^ lecms to intend his Book of the Book of Affifcs, where are the W ords of Quod Mirum.
2- If
Court of Exchequer. 567
2. 3!f J. S. tie I'lirlon impropiiace Of D. i\n^ B. Vicar there, ailD ^^^- 'oo-
fi)^ K.ing Patron of the Vicarage, ailH tljeUC 10 H Debate between the ^""" ''"^
Parlon and Vicar for Tithes, tljC «dlUt III tOClC CltljCO Otinfljt tO bC inrndv'"'°nd'
f'le (gjccljcqucc. IpilU 8 3!a. ©caccaciP, pec i^uctam* per cun it
may be com-
menced accordingly by Englifli Bill there, or by Aftion in the OScc of Pkas ; for it is apparent tha
the King is fuprenic Ordiiwry. This was Palbh. 9 Juc.
?. io(£. I. Eotulo Claurarum ®embc::na 2 m Dorfa 'Breije
CljCfaUrariO $ li5nrOUil)llgi ^CaCCarti, quod non teneant Communia
Hacita, nili cangatit Regem, vei Miniltros Scaccarii, <g)tatUtlini 110=
Mm u @>caccana alitcc Dictum ©tatntum ce Kotclati'O' m cpng^
11a Cljaita, 2 l^illt, JFOU 66. nili fpecialiter contingat nos vel Minil-
tros noltros.
4- 13 (EH* I- Eotitlo Ctaufanun C^cmbrana ?■ nc. U£Uiti5> Kegt^
in @>caccario attcniitnantiis*
5- amonn; tljC ©rrsiHiinCefi OftfjS 5 £• 2. 22 tljeCCtJ? fuel) Ordi-
nance, that no Plea be in the Exchequer but fuch as touch the King,
and his Minifters ot" the faid Place, and their Servants, tU!)0 fOC tljC '
Kioil j^ait inijabit untij tOeui in tlje |3!ace luijcie tlje d'cOcciuec 10
ijelD, anQifanpotljecbcfiiffefQ tofuctljmi, let tljc 3!nipleaQctJ be
iiiUcQ bp I3ai'liamcnt.
6. 3it a Copy holder of the King's Manor be fued in the Ecclefiaftical Lane ;9.
Court for Tithes, UpOU a Suggellion in Scaccario, that he prefcribesA""^"- ^- '-'•
to pay a certain Modus Decimandi, ijC fijaU Ija^C a I5C0!jtliltI0tl
tfjerc' auO this Modus ihall be tried there. 'WxUU 7 3a» ^CaCCatiO,
an)titigcD.
7. SifaManbe amerced in the King's Leet, ailt! upon Procefs out Lane 5,-.
of the Exchequer the Baililf diltrains him lor the Amercement, aitOT"""- 7 i^'^-
JlC brings Trefpafs, \]Z OlllSfjt tO hUW^ t!ji£i 3ft(0ll Of CCCfpafS IH t\y&. '^^ ^''-
SDffice^of pcag oftbcCitOeniia-, fottlje XaiUff Worn it a^an'Crs'p
©fficec of tbi,$> Court* pafclj. s^ac, m Cameta ^caccatii, pctandieems
Curtanu . . tobes.c.
8. Jf an erroneous Judgment be given in a Formedon in a Copyhold Lane qS.
Court in the Country where the King is Lord, tIjC Party againfts. C accord-
whom tlje 3!Utlgmeitt 10 gtllCn may fue by Bill or Petition to the King'"S'y-
in the Exchequer Chamber, in the Nature of a WritofFalfe Judg-
ment, for the Reverfal Of tOl0 SlUtlBmCltt i ^Ot m lU tljC COUtt Ota
common l^Grrantijc propec ^uit tor Ecljctfal tljeceof 10 totijc Lara
1)P petition, fO it 10 !)ere to tlje £\ing, antl tl)e Exchequer Chamber
is the more proper tO fUe tO tiJC tUm bp ]3)£titI0n than the Chancery,
becaufe it concerns the King's Manor. fpllU 8 3|aC, ^CaCCatiO, Ed-
wards's Cafe.
9 cin Atiion Of falfc ^mpttfonnicnt oc otijec action, niav bcf^^e 4s.
btOUrtljt againft the Under-Sheriff lU tljC erCljCCllier, tt)OUg[) i\)Z<^\]Z--fp^^ 53
tiff be tijc ©meet of tlje Court, for tbe Court tal^cs jQoticc of tijej;,!^ ofe
«nncr=@)ljeriff nifo. \)WU i 31flc. €)caccarto, bctuieen /->o;^j^WiKid that the
joHiie^ aDiUDijcD per Curiam, ana faiotljatisi tlje common Coutrep:='i"ntf
bf tlje court. _ ^^^'^^^^
rnent, for that the Sheritl is no fuch Perfon as ought to be privile^'d here, and therefore the Piaiiuiff.
fliouldhave his Remedy elfewheve, and he faid, that fuch a Cafe had been revers'd in the Excliequer
Chamber; For the Under Sheriff is but an Attorney for a Party privileged, that is, for the Sheriff ;
But all the Clerks of the Court and the other Barons were agaiaft him in that, and alfo all the Pn;-(i-
dents. ^ Bui ft So. B. R S C. hut S. P does not appear Brow.nl. 226 S. C. but S. P. dues
not a'^pear.- Cro. J. 523. pi. l. Trin. 11 jac. .B. R. S. C. but S P. docs not appear.
10. Statute of Rntland loE. i. touching Recovery of the King's Whether
Debts, wills and ordains that no Plea fl-al! be hohten or -plejiivd in the^^ly'^^^^^^^_
Exch'.quer, except it does fpecially concern ris and our Minljiirs of the Ex-\C^^^^^'^^
chequer. oily an Or-
dinance bv
the Kr.'- for the better ordering this Court has been »cry much doubted. See Pi. C 20S b zo^j a
■^ 4 Inft.
c^6S Court of Exchequer.
4 Inll. ii;. cap. 1 1. where it is faid ro be an Ordinance onlv. But 2 Inft. 5 ii. upon tliat Statute of
Aniculi f'uperClvivras iS E. I. cap. 4 Lord Coke fays, tliat this was a Srarutg the Title and .Stile of
the Act is Sratum Novum de Scaccario, aliter didtum, fitatutum de Koicland. in Libro rub-.-o it is
callM Staiutum deRotelard, and there is a \\'rit in the Kcgifter under the Titleof Brevia de Statut'
KtxThefaurario, & Baronibus Salurem,cum fecunduniLegem ScCon'uerudinem Kef^ni nollri Comrr.u -ia
Placita coram vobis ad Saccarium prxdidlum platitari non debent nifi Placita ilia nos vel aliquem Ali-
riilirornm noiirorum ejufdem Scaccarii fpecialirer tan^unt &c wliii.li Writ recircth the Words of the
Sraiute of Roteland, and in the Margent of the Writ is quoted Statutum de Roteland, Co as without
(^ueliion this A6t was made by Authority of Parliament and alio whatfoever Picas were
holden in the Excheqtier, in the Reign of H. 2 when Gianvile wrote, yet now by two Afts of
Pari i..ment their jurifdiftion is limited and fettled; and therefore reject a late Opinion contrary to
fuch A utiiority, a'-d never read nor heard of before. 2 Inft. 551, But Prynn's Animadverfion.?
^5, 56, 57 gives many Reafons to prove that the Statute ilil'd the Statute of Rutland is no Sta-
TetintU-ce u. Jrticfili fiiper Chartas cap. j\. made 28 £. i. enacls that »o ^ow-
C^^r ''fE ■ ^^^°" ^^'''^ ^^ hencejorth held tn the Exchequer againji the Form of the great
cZ!ucr has' Charter.
Jiii-ifiUHion
$t' coniniori Plens between comnwn Perfojis in perfonal yiff lens only. Where an Offcer or Minider is one of
thi; Parties 111 any -per fonal JHion, becaufe that his Aftlencc in other CouTs may hinder the Affairs of
the King in his Ccurt of Exchequer, Any Min that is a Prifoner of this Court, or aii ^ccotndar.t that is
(vired into his Jccount, or any other that ought to have the like Privilege ot this Court of Exchequer,
fliall not be fued in any perfonal Aiftion but in this Court ; and the Realbn it, becaufe neither of the'e
Ac'ts of Parliament take away the Privilege of any Court ; for then, it the Party privileged were fued
in any other Court, he iliould not, in lefpect of his Privilege of the Exxhequer, anTuer there ; and
therefore leli the Party fhould be without Remedy, he may commence his Action perfond aj'ainft him
in the Exchequer; tor Statutes mult be fo expounded, as that there be no Failure of fuftice. He that
is ,j F.irnier, or huiebteii to tie King, for the Kings more fpeedy Satisfadtion of his Debt or Dufy, fhall
lue his Debtor bv a Quo Minus in the Exchequer, and this appeireth by Britton, who treating of the
JarifdiCtion ot the Exchequer faith, Et que il eyt Power a Ccmufter de dett, que I'un doit a ncUs
dcticrsperou nous puiffons pluis toft approcher a noltre. 2 Inft. 551.
1 2. Jfter the Death of any D titer of the King Prcctfs fi'aU iffiie out
againfl the Executors the Heir and Tcrtenants all together at one Time by
ttie Courfe of the Exchequer. Savil. 52, 53. per Fanlhaw Remem-
brancer in pi. III. Pafch. 25 Eliz. Anon.
13. There Ihall be no Suit or Proceedings according to the Order of
the Exchequer Chamber in Cafes of Conscience upon any Penal Statute..
3 Le. 204. pi. 2J9. Trin. 30 Eliz.. in the Exchequer. Anon.
14. J. S holds Lands of the King by Fealty and yearly Rent, and makes
a Leafc thereof to A. B. pretends that f. S leafed the fame to him by a tur-
mei Leale ; Albeit there is a Rent iflbing out ot tihele Lands to the
King, yet neither A. nor E. can fuc m this Court by any Privilege in re-
fpett of the Rent, for that the King can have no Prejudice or Benefit
thereby ; for whether A. or B. doth prevail, yet mult che Rent be paid ;
and il this were a good Caufe of Privilege, all the Lands in England
holden of the King by Rent &c, might be bnjught into this Court.
4 Inll. 118. cap. 13.
15. But if Black Acre le extended to the King for Debt of A. as the Land
of A. and the King leafeth the fame to B.Jor liars, refcrvtng a Rent ; C.
pretends that A. had nothing in the Land, but that he "Mas feis'd thereof
&c. this Cafe is within the Privilege of thi.s Court, for if C. prevail
the Kinglolech his Rent. 4 Inft. 118, 119. cap. 13.
16. The King makes a Leafe to A. of Black Acre for Yturs referving
a Rent, and A. is pof'efs'd of a 'term for Tears in White Acre, the King
may difram in JVhite Acre for his Rent, yet A. hath no Privilege jcr U hite
Acre, to bring it within the Jurildidion of this Court. 4 Inft. 119.
cap. 13.
17. Upon a crofs Bill againji a Parfon todifcoverivhat Sort of 'tythes in
particular he claims to be due to him; lor that the Parfon in his Bill
one while demanded one Manner of Tything, and another while ano-
ther, the Court held that infuch a crofs Bill the Plamtijj need not entitle
them-
Court of Exchequer. Cy6^
t(xmfelves to the Jurifditlion of the Court ^ becaufe the Crofs Bill is ground-
ed upon another Bill here in Couic. Hard. i6o. Trin. 1659. pi. 2.
in the Exchequer. Doble v. Portman.
18. \i a Man he [tied here in the Office of Pleas ^ he ntay have an Eiiglifh
Bill to be rdic'ti'd againfl the Plaintiff without fet ting forth Matter of Jn-
rifdiBioH. Hard. 160. Trin. 1659. pL 2. in Scacc. Doble v. Port-
man.
19. Whatever belongs to the JarifdiCiionof the Dutchy-Court m-xy well
be determined in the Court of Exchequer, nocwithllanding that the
Dutchy-Courc is in being J Per Cur. Hard. 171. Trin. 12 Car. 2. in
Scacc. Fleetwood v, Pool.
20. H. was oHtlaiv'd at the Suit of B. and Lands in his Pcfjlffion were
extended, C. a third Perfon^ cldivi'd a Title to thofe Lands ^ and brought an
Aiiion of Trefpafs and Ejeffment for them, and pleaded to the Inquili-
tionj It was order'd that the Plea to the Inquilition fhould be try'd
firll, and that the Ejeftment fhould be brought in this Conrty becaufe the
King's Reven/ie was concerned. Hard. 176.pl. 2. Hill. 12 & 13 Car. 2.
Hammond's Cafe.
21. Upon an F.jeffmefit brought in C. B. by the Defendant here, the
Plaintiff mo v*d that the Aftion might be laid here, becaufe his Title was
under an Extent out of this Court, for Debts in jiid. The Court order'd
the Parties to profecure their Suit here, becaufe this could not appear
but upon Examination of the whole Matter. Hard. 193. pi. 2. Trin.
13 Car. 2. in Scacc. Banks v. Bennet & al'.
22. The Commilfi oners of Excife fined the PlaiiitlfFj being a Brewer^ ac-
cording to the new AS in 20 /. fot not paying the Duty of Excife ; And
upon a Return made that he had no Gocds^ whereoj a Dtflrtfs t tild he
taken they imprifoned him ; whereupon he brought an Action ot falfc Im-
prifonment in the Court of B. R. and the Defendants prayed the Action
might be laid here, becaufe the Caufe concerns the King's Revenue.
Sed non Allocatur per Curiam, becaufe this Fine does not immediately con-
cern the Revenue of Excife^ hut is a Penalty impofed tor an Offence com-
mitted in it i And it belongs no more to this Court than other like
Cafes arifing from Fines and Imprifonments ; otherwife, it it had im-
mediately concerned the King's Revenue. Hard. 193. pi. I. Trin. 13
Car. 2. in Scacc. Bifliop v. Warner.
23. Court of Exchequer is a private Court j its proper JurifdiBion pi. c ao8.
concerns only the King's Revenue and the King's Officers. Per North. K. per Sanders
Vern. R. 221. Hill. 1683. E. of Newbufgh v. Wren. Tn'^v Mot
24. No Errors in FaB are examinable in the Exchequer Chamber, ^a^ ^
Per Holt Ch. J. Show. 171. Trin. 2 VV^ & M.
gan.
(Q. a.) Difputes between the Courts of Exchequer
and othet Courts.
I. TUrifdifton of the Exchequer rejected for that one of the Defendant^
J had no Priviledge there. Cary's Rep. 96. cites 20 Eliz. Eaft v
Eittenfon.
2. The Plaintiff fued in Chancery, to be reliev'd for a Leafe of 1000
Years of certain Lands, and depending the fuit in Chancery, the Defen-
dant, by ^uo minus oat o( the Exchequer, being Tenant of the other
Lands to the C)ueen, brought an Ejectment againlt the under Tenants of
the Plaintifi'i therefore an Injun^ion to ftay the fuit of Quo minus, if
7 F Caufe
i^jo Court of Exchequer.
Cau(e be not lliew'd. Carey's Rep. i6r. cites 21. Eliz. Jones v.
V\ hicney.
s P. Toth. 3. No Exchequer Man has Privilege againft a Sulftena. Toth. 216.
2K,. cites cites ? Car. Tuke v Clerk.
2S F.liz.. ^
Cuci.s V Peters.
All IniunaU 4. An Officer of the Cnjloni Hoiife hclng fcrve^J with a Subpana to an-
on out of fwer a Rill, he rei'ufed and procured an hjii^ion out of the hlxchcatier to
•'le lixchc- - ■ - ■ ~ ■ ■ - • -.-'„...-,„ . . .2
uer iliial-
''''^•'iiTaK ^^y ^^^ '^^'^^ ' ^^^ ''• ^^^ ordered' that the Plaintiff Hiould and might
lowed and proceed in the Suit, notwithftanding fuch Injun£lion, and the Party
the P.irtv was committed lor ferving the fame, the Court taking it to be a great
vhicli vro- ])erogation to their Authority. N. Ch. R. 19. 8 Car. inCafeofVen-
fem'forhv fiiill&al.' V.Harvey, cites it as an Order read by Order of the
a Pui-iuivant, Court as made Lord C. Ellefmere.
bec'-ulehei- ^ , _
Majeftv's Revenue was not in queftion here. Toth 217. cites Harroppv. Hanopp in 1594.
5 A Caufe had been heard in the Exchequer where 2 feveral Trials h.id
been directed, viz.. Will or no Will, and a Vcrddi was for the Plaintiff'
in both ; And yet the Chief Baron ^//;«//f<y tht: Bill there hut withntit
Prejudice in Law or h.qnity. It was argued that thofe Words (without
Prejudice in Law or Equity) mull be undcrltood not to hinder the
PLuntid' from feeking Reliet in any other Court of Law or fqiiicy.
And the Court conceived accordingly and order'd that Plaincih who
had brought an Original Bill m Chancery for the fame A/jttcrs, and to
examine \\ itnelies in order thereto in Perpctuam rei Memviriani, might
examine any J-i-it-nelJes not examined in the Exchequer^ and a.s 10 Matters
cKamined unto there, he might examine the fame llitneffes l)e bene cfje^
aud how tar thofe De bene elie Ihould be uled the Comt would con-
lider. Chan. Cafes 155. Hill. 21 & 22 Car. 2. Anon.
6. A Bill was exhibited in Chancery^ concerning lithes and Bounds of a
Parilhy which proceeded to Answer and Replication. Then he exhibited
anotfer Bill in the Exchequer^ and there U itinfjes were examined and now
proceeds again in Chancery^ and replies. The Dfendant pleaded the Pro-
ceedings and Examination in the Plxcheqiter^ and ruled good as to Exa-
mination of rhe fame Matters, which, being examined to there, were
not examined in Chancery. Chan. Cafes 233. Trin. 26 Car. 2. The
King V. Bro'.vnlo\v.
And Lord 7. Mortgagor exhibits a Bill to redeem in }he Exchequer;, the Defen-
Kceper dant theie ihal 1 be at Liberty to exhibit a Bill to Foreclofe in Chancery,
^°'\ ' ^''"-'' '^'^'^ pendency of ajormer Suit is no Plea, though it was inlilted thac
are Tcveral this was only in Nature of a Crofs Bill to that in the Exchequer,
Precedenrs which the now Plaintiff might have exhibited there, and then one ac- ■
of Injuncli- fount of the Profits would have ferved all, and it was Vexatious in the
ClunceT Plaintiif to bring the fame matter in llfue in another Court at the fame
to the Ex- time; And if the Deputy Remembrancer in the Exchequer Ihould take
chequer, the Account one wav, and a Mailer here iLould take it another, it
where it would breed Contufion, and if this Court Ihould be of an Opinion, thac
h:is not kept j|^^j.^ ou'^ht to be no Redemption, and the Exchequer Ihould Decree a
nrooer ' Redemption, the Jurifdiitions would clalli ; And thereiore, to avoid
Bounds, lb thefe Inconveniences, Priority ot Suit ought to give JurifdiiSlion to the
tiiat the Exchequer. Lord Keeper declared his Opinion to be, that in any Cafe
Junidicitinns jj.- ^.j^^ Mortgagor exhibited a Bill to redeem in the Exchequer, that the
nieansdafii- Defendant there Ihould be at Liberty to exhibit a Bill to Forecluie in
cd. Ibid in this Court ; and over-ruled the Plea, aii^d ordered the Defendant to
zii.inS. C. p;iy Colts. Vern, 220. pi. 219. Hill 1683. Earl of Newburg v.
\\'ren.
R. yllftgiiers tinder a Comriuffion oj Bankruptcy lying a Bill for an Ac-
count againfl /'owe Perfons who bad feifed the Pankrept s hjlate ly I'lrttu of
^ Extents, one/or the King, and the ether two were exituts in Jlid; Bill
dilhiilied
Court [oTthe Dutchy/J ^
huer, which is Che King's Court ol Revenue. 2 \ ern 426 pU 3»7-
Pifch I70I Brown and Sandys v. Tr^nt and Bridges &al.
Pafch. 1,70 L on Cafe of Brown and Sandys v. Traat ana mia
ges & al'.
(O. 3) Pleadings of Privilege of the Court of
Exchequer.
, A Salt in Chancery was againft feveral Defendants, ofie of the De-
AZlnsZdtheSnrvroorsplead.^ the PnvUege of the Esche-
,uf^£Z:J:t^^ Suit was Joiit at firft againrt fe DeceasM and
^ u A ,„,- Thinsr nnoearino- he had no privilege in the t-xcne-
"u'r^'fol^ he C fc cTcLScery being LwfuUy poffefs'd ot the
?LI' his Death ought not to give any more Privilege to the other De-
S::n?3%°d-',aw tffe Caufe fftiiis Court tlun^^^^
S|„teSt:elC':S:[his^du^rt.''t^^^^^^
I. Lake v. Philips.
^?-^\?T:i.i!inl^^"St::nip^":^^-
Animodverfions on 4 Inll. 52. to 59-
(R) Courts. Dutchy.
„i?. tb' Sw?f SM*».rtPn, to De tljc Common Pcac h.u s^c
tltt m tljl0 '^l\tlZ, docs nor appear.
. 15Ut otherwife it t0 for Lands held of the Dutchy iy'^S -J,;^^??'.o?^-
does not appear.
3 3f a Man enters into an Obligation concerning L^^^sJ^ing in the Hob.^n-
f> rv P.l.rine iinn he is fued upon this at Common Law, l> tan >- ,e^ ^
:^l?n,l'f,i (F mV,? m t?ie Dutchv-c^ to bc ixlic^en agami! tlji^Hmrs.c.
not fU£ m mim mU}Z ^'■l^';:'y . ' ^^ extended to this & S p. a
^nOnn, fOt tlje Junldiction bang lOCat, Jt cannot u P,ohihirioa
Collateral Matter. {?5lCl). 1 3 JaC. Xx fM i CiUC, PCC U^UCiaui. ^^^ ^^^^^^_
. ■ r T. f ,1,, Pfi-lon as be-au<e the Pevfans
cdbecaufe the Dutchy Court ha., tto Junftiiamn '" ^f ^;^^2 no- "pon the La^ d of the SuSje-'^t
.' s.C cited 2 Lev. 14- 4- In
97'^ Court [of the Dutdiy.]
4. In Regard of the Zi?W of the Dutchy of Lancditer, the Ki>i<' is
but as a Coinmon Perfon. 2 Roll. 39S. Rcge Inconlulto (C) pi 4 cites
1 1 H. 4. 85. b. ^'
Onvceyy 5. 'rhe DeleodaiKS inform, that the Bill is exhibited for certain
may^l-.old Lands, Parcel of the Dutchy oi Lancalter, and theretore ordered, that
La'^iids' with-lo'' ^^ '""<-'h itlhall be diimilled. Gary's Rep. 139. cites 22 Eliz. Price
in the V. Lloyd, Owen and Read.
Dutc'Iiy ;
Per Ld. Chancellor. Chan. Cafes 272. Hill. 27 & 2S Car. 2. Brown v. Verrhuden. . Hai-d. iti.
Trin. I 2 Car. 2, Fleetwood v. Pool, it was held by the Court in the Excheijiter, that whatever bclon'i;s
to the Jui-ifdicti m of the Dutehy may well be determined in the E.Kchc:fj'jer,
6. The t)utchy Court has no ftirifdiffion in refpe^ of the Perfofi^ as
becaufe the Perfons Suitors dwell within the County Palatine. Hob.
77. pi. loi. Owen V. Holt.
S G. &S. P. 7. So it has no Jurifdiftion upon the Lands of the Siibjeff anywhere^
cited Ven.-. but only upon the King's own Lands, and his own Revenue, and per-
'5<5- hups on Bonds and Aliurances given for his Revenue of the Dutchy.
Hob. 77, 'j'i. Owen v. Holt.
8. Suit in the Dutchy Court brought by the Mafter of the Hofpital
of VV^iglton, to avoid a Leafema.de tor 99 7ears, the Plaintiff ///f^^t/Zf^
Jor a Prohibition, that the Lands leafed iscae nit Parcel of, nor -within the
Dutchy ; But the Dutchy Court pretended a JurifdiBion, by Virtue of a
Patent confirmed by the Statute 14 Eliz. the Words ol which Patent
were, 'that the Dutchy Court might make Ordinances jor the Hofpital^
J^uo Modo fe gererent, converfabuntur S eligerentur, and the Statute re-
lates to this Patent; But the Court held, that this does not give them
Power to hold Plea of their Pofjcfftons, but only to make Ordinances for the
Government of the Hofpital, and not to determine the Right of their
PoUelfions 9 and a Prohibition was granted per tot. Cur. Roll Rep.
42. Trin. 12 Jac. B. R. Sir Thomas Beaumont v. Hoipital de Wig-
lione.
Toth. 145. 9. Tymz\\'f\->'i.t\iS.^ granted from the Cro--xn m\y be debated and held
cites Mich. Y\tx of in Chancery, and Chancery granted Injuntfion to llay Proceed-
in^e^^*^" '"g^ '" the Dutchy Court. Chan, Rep, 55. 7 Car. i. Levington v.
Words fol- W'otton.
lowing,
(vii.) Dutchy Court; where I^ands are granted of the Crown /;: Fee Fjrm, yefervifijr Rent, they are
pleadable and determiiiahls in this Court Hulfc v. Daniel. — And citea Levi'igltoti v. Wife, about
S Car. — And Hampden v, Ferrers, in 14. Car. A Decree in Chincery after' a Decree in the
Dutchy, becaufe it was ordered they had no Jurifdiftion, the f..ands being om of the Dutchy, hut held
of Eafi Greenwich. Toth. 182. cites 8 Car. Tenants of Barwick v. Casfar.
10 Court of Chancery not to be flayed by an Injunction out of the
Dutchy. Toth. 182. cites 1633. Barnard v. Langley.
Vent. 155. II. The Queflion was, whether Dutchy Court of Weflminfler Ihall
s. C. and hold Plea by f.nglijh Bill of Lands of a County Palatine? Hale and
Prohibition Twifden held it inconvenient to examine their Power after fo long
— ^^K-b Continuance and Practice, and fo, and partly by Admiifion of the Par-
Si'J.'pi." ties, a Prohibition was denied. 2 Lev. 24. Mich. 23 Car. 2. B. R.
47 S C Filher v. Patten.
and Prohi-
bition denied, per tot. Cur.
12. An Appeal hy Acl of Parliament lies to the Dutchy Court from
the Court ot Equity at Lancafler. Vern. 443. a Nota at the End of pi.
417. Hill. i686.
13. A Prohibition was prayed to the Chancellor of the Dutchy oi hzn-
calter, to flay Proceedings m a Suit before him in the Chancery there,
being a Scire Facias to repeal Letters Patents granted tinder the Dutchy
Seal
Court [of County Palatine.] 573
Seal^ and it was luggclled, that the Chancery there was only a Court
of Equity, and that they had not any Coinmon Law Proceedings in it,
as in the Cafe of the Petty Bag, and that the Sci Fa. ought to have been
returnable before the jultices of Lancaller, neither could the Chancel-
lor there fend a Record to be tried at Law ; But after feveral Argu-
ments the Court denied the Prohibition^ feveral Injiances being given of
Common Law Proceedings in that Courts and the Charter &c. creating
fuch Power to that Court, as was exercifed at Chcller, and there Pre-
cederts of Scire Facias were fliewn in Point. The Charter doth not
tie up the jurifdiftion to be either before the Juftices or the Chancel-
lor &c. Hill iiAnn. &c and Trin. 12 Ann. B. R the Queen v.
Bailiffs and Burgeffes ofLeverpool.
14. Bill was brought in the Dutchy Court fir Lands. The Defen-
dant demurred, becaufe the Plaintiff did «o/^ aver that the Lands were
within the Dutchy^ which is a circuinfcribed Jurifdiftion, and the De-
murrer held good. 9 Mod. 95. Pafch. 10 Geo. Lord Coningsby's
Cafe.
For more of the Dutchy Court of Lancafter at Weftminfter, See
Crompc. Jurifdiction of Courts, 134. to 137. and 4 Inft. 204. to
21 1, cap. 36.
rS) County Palatine,
To what Place the J/irifdlbiiou fhall exteud.
Durham.
I. npi^^ 3!iiti£>iJictioiii of tljc "Binjop of Dttiijiim ertcnnss to aiiRoii Rep.
X Places between Tyne and Tele. $@J) JKepOlt^, 14 JiK. tl)e^°° ?!• -'^•
XinjopttcU of Durljann Ihe Sol
of Durliam,
S C. & S. P. and Doderidge ]. Taid, that this appears by the Statute of Prerogative 5 Bulft.
156. Mich 15 Jac S.C. &S P. by Coke Ch. J.
2. i^lje JUneitliftiOlt CttCUtl^ as well to the Manors of other Men,RoIl Rep.
as to the Demefnes of the Bilhop. ^)) KC{3ait!5, 14 3aC. ^°°' Pj^ f-^
5 Balft. 1 56, 1 57. S C. the Court were clear of Opinion, that the Jurifdiaion of the Bilhop
extended throughout tlie whole County, and Judgment for the Bifhop.
3. In this County Palatine there is a. Court cf Chancery., which is a
7nikd Court both of Law and Equity., as the Chancery at SVeltminfter ;
herein it dilferech from the relt, that if an erroneous Judgment be given
either in the Chancery upon a Judgment there according to the Com-
mon Law, or betore the jullices ot the Bifanp, a Writ uf Error fjall be
brought before the Bifjop'hinfi if'., and if he gives an erroneous Judgment
thereupon, a ^Vrit oi Error pall be fued returnable in the King's Bench.
4 Inft. 38.
4. ^Ihe Court of the County Palatine is an original Cuurt, and reckon-
ed in the Ninnber of Superior Courts i Arg. Saund. 74. Palch. 19 Car. 2.
in Cafe of Peacock v. Bell.
5. A Superfedeas was granted to an Habeas Corpus, which iflued to
remove a Caiifc out of the City of Chcjhr, which is a particular Jurifdic-
fCi tion
(:74- Court [of County Palatine.]
tioii -witbiii the Cmifity Paldtifid oj LanCiiJitr. The Pynurs were nere ac
Iliiie, and ic appeared th;ic neither of the Parties lived within the Jurif-
dttlion of the Court ^ If in a Real Ad ion above the Lands appear to lie
within a County Palatine, that will be ill ; But if the Action be tran-
Jitory the Courts above muft be oulted by Plea. There ought to be no
Habeas Corpus but upon an Affidavit that the Parties live out of the Jiirif-
dicltou^ but in regard of former Precedents a Superjedeas was granted^ the
Suit having been well begun in the Inferior Court. Mich, ii Ann. B. R.
Page V, Leech
£.w^ue (8.2) County Palatine. Antiquity and Power.
.. .11
tJiree, i ft,
Chcjler
2dlv, £)«>•-
h^m. ei-eft
as It
Ounties Palatine were derived from the Crown by Granr,
eci v>y Wii- \^ f:eins i for in fome Cafe li'rit of the King runs there ; As where
lum the a Man vouches he-e, and prays that the Vouchee may he fummor.ed in
Conquei-oi-. ^j^^ County Palatine, Proafs (Jjall iljtie to the Lord of the Francbtfe tufuiu-
TafteW^ridi "ton htm. Br. Faux Recovery, pi.' 15. cites 36 H. 6. 32.
ed hy A6t of
Parliament in Edwird the ;d's Time. Thefe were
aniule .n Manner as a Cc
Hift.of C. B i55» '54
Pa'-liametitln Edwird the ;d's Time. Thefe were Superior Court.? wi'hin their Jui-irdiftion, in as
amule .n Manner as a Cuurt of Wellminfter, and the Kin-'s ordiniiry Writs do rot run there. Gilb.
2. Counties Palatine were certain Parcels of the Kingdom^Jpgned to fome
particular Perfons and their Succejjors^ with Royal Poxer therein to exe-
cute all Laws efiablijbed ^ in Nature oj a Province holden of the Imperial
' Crown i And therelbre the King's Writ palled not \vithin this Precincl
no more than in the Marches. Thefe were occa/ioucd jrom the Courage of
the Inhabitants, that ftoutly defended their Liberties againlt the" U-
furping Power ol thofe greater Kings, that endeavoured to have the
Dominion over the whole Heptarchy, and not bemg eaflly overcome
were admitted into Compofition ot Tributaries i And therefore are found
very Ancient^ lor Allred put one of iiis Judges to Death lor palling up-
on a Maleiactur tor an Oiience done in a Pl.ice where the King's VVrin
palled not; And the fame Author reciting another example of his Juf-
iice againlt another of his Judges for putting one to Death without
Precedent, renders the King's reafon, lor that the King and his Com-
miliioners ought to determine fuch Cales, excepting thole Lords in
whofe Precintt the King's Writ palies not. Bacon ot Government,
73. cap. i9.
* Ibid. 6%. 3- Every Earl Palatine created by the King of England, is Lord of
a faysthat an intire Countj, and has therein Jura Regalia^ which Jura Regalia
''''' ""^"h a '-'''"J'fi ^f ^ principal Points, viz. in Rojai furifdiilioh, and in Royal
fTreribrs '^^'g»iory ; liy realon of his Royal Jurisdiction, he nas all the High
as were ' Courts and Officers of Jullice which the King has ; And by reafon of
(uch at the his Royal Seigniory, he has all the Royal Services and Royal * ES-
Time when clieats which the King has ^ And therefore this County is nieiely dil^
Pa^la^i^le"'^ join'd and fever'd Irom the Crown, as is faid in the Caie of the Dutchy,
wa.s- erefted.Pf C. 215. b. So that no Writ of the King runs thither, unlels a
and not ot VV^rit of Error, which being the Dernier Relort and Appeal is alone
new Trea- excepted out of all their Charters, and cites 15 F.liz. D. 321. and 315.
b°"Att'of ^""^ 34 ^- ^- 4^- ^^'^'^- ^^^P- ^^- ^- '^'"'."- 9 J'"-'- '" ^'■'^ Exchequer, in
Parliament the County Palatine of Wexford's Gate.
{'M\cii., and
cites I a Elli D. 288. b. 2S9 a.
5. It
" CourtJ^o^OHuity Palatine.] ____i2l-
~77~~^o;^d that the Parties dwell in the Comu^ Palatine of
Litcalier and the matter ot the Bill is tor a luppoled ^rcfp^s ?n en-
^rl- cL Detendants Lan^s, and confunn.g hu Grf and Hay up-
on f he lame which this Court doth not Ufe to hold Plea ol, therefore
Orderei^t-'it be true, then the Cade is difm.fled and the P a.ntiff .
o take 'his Remedy '.n the County Palatine ot l^ncarter.Ca^^^^^
Rep. 80. cites 19 Eliz. Hamethefon v. Tounllall, Covell, Ridgma-
'^r2!.^^;^tine^ z.«.#.-^.. -^^^ ^i^ ^f'ztzs:
E \ and was granted to his Son John lor h,s Lite, and Jura Rcgalu
annexed to it Per Treby Ch. J. z Lutvv. 1235- cites 4 In't- 2"4.
' 6 Their Power was Lg-nl; becaufe they nnght Pardon ^>Mo>,s
FeLes, Murders and Outlau^aes on than, they might have m^jd- Jd"
rices in Evre of Aliife, Gaol Delivery and ot the Peace ; AH Indict-
nle t "aSi Proceiles tor Treafon and Fdony were - th-r^^--,
hnt th^\^Royalnes were Abr>dg\i by 27 H. 8. 24. Per Treby Ch, J. 2
King and mi-ht pardon all Matters, and had Jura Regalia, but that
Si^u^telkaway partof it. Arg. i BuUl 160. Tnn. 9]^^- m Cafe
''g^TTeaLt'Snies and Murders were pWo«.^ ^, ^'/i'tt^Ssof
hath his lud-es, and they have their Fees Irom h.m and in U msot
Trdpai-s theU-r'itisotTrelpafs done con^V<^c^ ^t ot H e
was fo before the 27 H. 8. 24. Arg. 1 Built. 160. m C.le ot Htrr.e
'■ 9^' A c";/.r..; to remove a Record tmm Durhaiii was denied by B. R
and faid thev had denied this betore, and though ihey had lower
to do vetley would not in fuch a Cafe ouil them ol the.r Junfdic
vXcnkJch 1 2 Built 158. Mich. II Jac. Anon.
''Z County Palatif;e^.l. tJ klere per GiJdunn protU Res Coro.^,
an J lo d^BUhop of Chelter doch his County Palatine. 2 Built. 227.
P.-r,h .9 lac Bowes V. The Bilhop ol Durham. ^n»\ai,6
1, Icounty Palatine <-« jj Rel^/,a and therefore »Mjr.^"t J,f°^«-,"<-
„ /"» to y'c«A f*«i . Per Coke Ch J^and Dodendge c
A^^l^of Rnna Felnnum de fe. per Coke. Roll Rep. 399. pi- -i"- & fc. 1 .and
Trh, % Jae B. S. The Ki„^ v. "rhe Bilhop of Durham. J-fE™"
Durham.
12
12 The County Palatine of Durham is not of late Handing like that
of Lancalter, but^is 7.;»™n./, 'and.a Cultom there '« ot great Au-
thority ; Per Curiam. Mod. 173- Mich. ^5 Cjir. 2. C. B Anon
T The Stde of the JalHces ;« Durham ^. always M^'^^^ ll^^'l"''^
and there is no Great Seffions at all in the County Palatine and there-
?ore he la of 5 £^'^. cap. 25. which gives //.. !r./..^.C™/^^^^^
rin Wales, and the Counties Palatine mull be -^erltood ot fuch
Courts in the Counties Palatine as anlwer to the Grand Seffions la
Wales. 12 Mod. 181. Hill 9 W. 3- Lamb v. jennifon.
(s. srit's
c;76 . Court [of County Palatine.]
(S. 3) It's Jurifdidlon as to FciToii and Things ■
I. TN Maintenance it agreed per Hank and Norton, that a County
I Palatine may hold Plea of Maintenance^ notwichltanding that
they had ancient Jurifdiftion, and A£lion of Maintenance is given by
Statute after time of Memory. Contra of Vill which had Conufance
of Pleas before the Aftion given by Statute, Qucere the Diveriity. Br.
Cinke Ports, pi. 5 cites 14 H. 4. 20.
2. Recovery here of Land in the County Palatine is not void but Error.
Qucere. Br. Faux. Recov. pi, 15. cites 36 H. 6. 32.
See n. 18S. 3. The Bifhop of Durham by ancient Charter before the Time of E.
K 2S9- i*. 3. has the Forjatiircs for 'Treafon^ and all Felonies of his Tenants between
pi 5v&c. ^^^ Rivers Tine and Tefe z« Norrhtimberiand. After Statute 26 H. 8.
e'ii^' ^^" '-"'P ^3' for Forfeitures for Treafons, A. makes a Gilt in Tail of Land
held there of the Billiop to B. B. commits Treafon, and is Attainted of
it; the Bifliop lliall not have it ; for fuch Forfeiture of intailed Landivjs
not in ejje, when the f aid Charter was granted, and the [aid Tenant in Tail
IS Tenant to the Donor and not to the BifLop. By all the Judges of
Eno'land. The Statute 25 E. 3. ofTrealbns, docs not take away the
fiid Grant to the Bifliop ; it only declares what Olfences are Treafon.
The Grant to the Bipop does not extend to Treafvns enaffed after the
Grants, nor to new Forf attires given to the Crown after the Grant. Jenk.
237. pi. 16.
4. 5 Eliz. cap. 27. All Fines levied before the Jiijlices of the County
Palatine of Durham, authorized for that Pitrpofe, oj Tenements within the
County which jhallhc read and proclaimed two Days in the Scffions, in pre-
fence of the J 11 (1 ices of AJfije at Dtirhaiii, or one of them at the fame Sejtons
that the fame 'jball be ingroffed, and at tzvo general Sejions next after, fhall
he of like Force as Fines levied with Proclaiuatiuns, before the Jtijlices of
C. B. at Weftminfter.
5. Where it appeared by a Book heretofore prefcnted to the ^.^een's
Highnefs, under the Hands of Dyer Ch J. W ellon J. and Harpar J.
of C. B. and Carus J. of B. R. and remaining (by Force of her Ma-
jeftv's Warrant) of Record in the Court otChancery, touching the Jtt-
rifd'iliinn of the County Palatine of C. that be! ore H. 3. all Pleas of Lands
and Tenements, and all other Caufes and Contrails, and Matters nfiding
and crowing within the faid County Palatine of C. are pleadable, and
oufht to be pleaded and heard, and Judicially determined with:n the faid
County Palatine of C. and not elfewhere out of the faid County Palatine;
and if any be heard, pleaded or Judicially determined out of the fame
County, then the fame is void, and coram non Judice, {except \t be in
Cafe of Error, Foreign Plea, or Foreign Voucher) and alio that no Inha-
bitant within the laid County Palatine by the Law, Liberties and
Ula^i.es ofthe fame, be called or compelled by any Writer Procels to
appear, or anfwer any Matter or Caule out of the faid County Palatine
for any the Caufes aforcfaid, (as by the faid Book among other
Things more at large appears) and where now of late tiie Plaintanc
hath exhibited a Bill of Complaint in this Honourable Ccuirt, for and
concerning Lands and Tenements lying within the faid County Pala-
tine, and hath taken Procefs againit the faid Detcndant in chat behalf,
who has thereupon appeared and by his Counfel m.ide Requell to this
Court, that for the Cault's albrefaid the .Matter here exhibited againtt
him might be trom hencelorth dilinils'd ; wlierelore foralmujh as VV.
S. has made Oath that the faid Lands do lie wiihin ihe faid County
Palatine,
Court [of County Palatine.] 577
Palatine, and char, the faid Dekndant is inliabicing and duelling with^
in the ikid Couniy ; therelbre the laid Caule is Irom henceibrch di(-
miliedj and remicted to the Chaaiberlain ot'C. and o:i\cr her Majes-
ty's Minilters there, according to the Tenor of the fame Book. Gary's
Rep. 85, 86. 19 Eliz-. Miles v. Brearton.
6. jiny Dwelling there muji appear upon the Procefs, and pkad their
Pri'vikii^e, by the Mailer ot the Kolls's Opinion. Toth. 218. cites He-
renden's Gale in 36 &: 37 Eliz.
7. W the Dejendaf/ts dwell out of the County Palatine, he who has
Caufe to complain in Equity may aifo complain here in the Chancery.
For in regard that Proceedings in Ghancery do bind the Perlbn onl) ,
if the Pcrfon be out of the Jurifdiclion the Ghamberlain ot Cheller
cannot relieve the Party, and therefore Ne Ciina Regis dejiceret in juf-
titia exhibenda, the Suit Ihall be in the Ghancery here, otherwile the
Subje£l may have Right and no Remedy, which would be inconve-
nient. 12 Rep. 113. Hill, iijac. Earl of Derby's Gafe.
8. Aftion ot Debt brought to be tried in Durham, and the Record fent
to the Chancellor of Durham, becaiije the Biiiop^s See was empiy^ and
before the Day given by the Judges, a Bijhop was ekcfed, and he fent the
Record and not the Chancellor. Brownl. 51. Trin. 15 jac. Perfon v.
Middleton.
9. jurifdiftion of the County Palatine is allowable between Parties N.Ch R.
dwelling in the fame County, and ior * Lauds there, and for MatceisS"- i4Car.i.'
local, but difallow'd where the BUI in Chancery was to have Ac-Jf'^'^°|'J^/-
count of Profits by a Trultee of Infant's Lands, and oi Monies received s p*! As
on Bonds, and for U'ritings &c. but without Colts. Chan. Cafes 40. tor T/j^wgi
Hill. 14 Gar. 2. Edgeworth v. Davis. trai-.pory,
^ " tho they are
within the County Palatine the Plaintiff mny allege them to he tione in any Place within England, and
Defendant rrav not (jlead to tlie jurildiftion ot the Court, that they were dijne within the County
Palatine. 12 Rep. 11;. cites D. 13. £1. 202. and fdys, it was rclolved upon the Certificate of the
Lord Dyer and other juttices in the Time ot (^ Eliz.
It is order'd rhat «/■<!?; ^:/'Jn-/diif made, that the Dejendatits dwell iritlin the County Palatine of
Chefter, and the Caule of the Bill is to be relieved of iertr.in Debts there, the Gaafe is therefore difmifTed
into the faid County. Cary'sRep ii6 Cites 21 & 22 Eliz. Heyward v. Sherington. N.Ch. R.
51. Moorv. Lady fjomerfet Fin. R. 452. Gerard v. 6tanley.
* Cary's Rep. S3, S4, 85, 86. Willoushby v. Breretoii.
Where the Defendant liv'dinthe County Palatine, and the Lands lay there alfi, and a Rill was brought
for the fame in Chancery, it was for that Kcafon difmifcd. Toth. 144. cites 13 & 14 Eliz. Botely v.
Savil.
io. Eje{fment in B. R. of Lands in the County Palatine of Lancaf-
ter i upon Trial at the AfTifes in Lancafter, the judge caus'd the Pof-
tea to be mark'd, and to be mov'd in Court, wliether it lies, the De-
fendant being in Guftody; Et adjornatur. Raym. 81. Mich. 15
Car, 2. B. R. Long v. Emott.
11. It has been the conlfant Practice Time out ot Mind, that jyitnej-
fes dwelling out of the County Palatine have been examined by CommiJ/ion^
ifluing out ot the Court of Exchequer ot Chefter under the Kmg's
Seal ot the faid County Palatine, and executed where the Parties
pleafe, either in England or in Foreign Parts, ior procuring their Exa-
minations. Fin. R. 452. Trin. 32. Car. 2. Davis v. Davis.
12. It w^s pleaded xh-jiK. Cbejierh an ancient County Palatine Time Gary's Re(J.
out of Mind, andh.id Royal Franchifts belonging to a County Pa-S? WiU
latine, which had always been allow'd in Law. And that all Suits ""^^^^ J„ '
concerning Lands, Contrails, Catifes lying arijing or growing withui the
J aid County Palatine, are determinable there, and not ellewhe:e, Trcajon,
Error, Foreign Plea, and Foreign Voucher only excepted. And that the
Court of Exchequer there hath been Time out of Mind a Chancery
Court for the County Palatine, tor the hearing and determinmg all
Matters and Caufes of Equity ariling in the faid County Palatine, fub-
iectcoan Appsal of this Court, and that the now Plaintiit and De-
' *^ ^ H iendanc
tjS ' Court [of County Palatine.
lendiint at the Time of exhibiting the faid Bill in the Courc ot" Exche-
quer in Chelter, and for feveral Years beloreand alter, were, and are
Inhabitants in the faid County Palatine, and that the Lands charged
with the faid 1500 1. and all the Matters whereon the laid Decree was
grounded, did, and do lie, and are lituate, and did arife within the
laid County Palatine.' And that Time out of Mind it hath been the
confiantPratTtce of the laid Court oi ¥.y.c\-\tqi\QV,that Wttiiejjes d'wdUng out
eft he faid County Palatine have hcai e>;amtiied by Comiuiffion iffmng out of
the faid Court of Exchequer under 'the Kings Seal of the faid County Pa-
laline^ and executed where the Parties pleafc or dejh'e, either in Engla.nd
or in Foreign Parts, lor procuring their Examinations , and therefore
demands rhe judgment of this Court, if by the jullice thereof Ihe is
co!npellable to make anfwer to the laid Bill. The Court allow'd the
Plea, and difmifs'd the Bill with Colts. Fin. R. 452. Trin. 32
Car. 2. Davis v, Davis.
S P. ruled 13. No Jppeal lies in Chancery from a Decree in the County Pala-
accordingly, tj,.,^. Ijut if any Appeal lies it muft be to the Kinghimfelf Per
b^'Ld'K'^'or'th Keeper. Vern. 184. pi. 181. Trin. 1683. jennet v. Biihop.
North, the
lame Day. Partington v. Tarback.
14. Bill oi Lands within the County Palatine was brought in Chan-
eery, and to entitle the Court to jurifdiftion, fuggelted Prim- lucum-
hranccs to Parties living oat of the Jurifdiclion, but no Proot was ot it,
but it appearing that th>i Proceedings in the Coiifity Palatine -jncre unjujh
North Iv. faid, he would retain the Caiile and confider of it. Vern.
293. pi. 292. Hill. 1684. Hall V. Dowthwaite.
15. Debt on a Bond ^gdinU the Defendant as Executor, and in the
A/argifj of the Declaration the County --juas written thus; Chejler ff. and
tile I- laiiuiiT declared upon a Bond made by the Delendant's Teftator,
fealcd and delivered apud Travin in Com. Prsedia' &c. The Deten-
dant pleaded plene Adminiftravit, and at a Trial the Plaintiff had a
Verdi ii and Judgment; and now it was moved in arreft of Judgment,
that ail the Proceedings weie Coram non Judice, bccauie it appeared
upon the Face of the Record^ that the Bond was made at a Place within
the Jarifdicfion of the County Palatine of Chelter, io that by the Plain-
tiff's own Ihewing, this Court has no Jurifdiclion of this Caufe i Ad-
judged ' by the Court, that the Defendant h-id. loft that Advantage
which he might haie if he had not pleaded in Chiet, for he ought to
have come tn 'time and pleaded to the Jurifdiilion &c. but now he is fore-
ckfed X.O i'xy anv Thing againft it, having admitted the Jurifditlion
by pleading in Chief. Carth. 11, 12. xMich. 3 Jac. 2. B. R. Jennings
V. Hankyn.
D-ivisv. 16. The Jurifdi6lion of a County Palatine mnf} be pleaded and de-
Speed. 5 murring to the Declaration is not fufficicnt, and where a Defendant
^'^■f^^f^^.^pleadstoxht Jurildiction of B. R. viz. that the Caufe of Attion did
ioftVieinam-arile within tiie County Palatine, it muft be averr'd'm fuch Pica, that
tiff , and either the Deiendant (ya^Z/j in the County Palatine, or that he hath
Holt Oh. J. Qfjods and Chatties there fufficicnt by which he inay be attached, other-
ll^'f ^)% w'f^ ^^^^ P^*-'^ cannot be allow'd leaft there be a failure of Juftice.
nil'Jsv.'''"" Carth. 355. Trin. 7 VV. 3. B. R. Davis v. Stringer^
Hawkins. 1 7. County VahdnQ is a general Court for all the Stibjefls c-f that Pa-
latinate, and nut merely for the Caitfes arifing within the Palatine ; for if
a Debtor goes from the Foreign into Palatine, his Obje£tions go along
with him as much as if he went from one Kingdom to another; and if
it were ocherwile a Palatinate jurifdiclion would be a Sneltcr and
Af.lum to Debtors; for no Procefs bat the Supreme Prerogative Procefs
■ runs there-i and therefore \i is duly dttcrmined, chj' the Caufe of Ac-
tion
Court [of County Palatine.] 579
•^ion be out of the Palatinate ; yet if the Party be a Subject of that Pa-
latine, as he is by coming into that Dominion, that the Afilion there
may be brought againlt him. Gilb. Hift. of C. B. 153.
(S. 4) Jurifdi6iion allow'd or oufted. In what
Cafes.
t. rr^HE King pall have .Of/are Lnpcdit of Advowfon i ft Durham-
I Br. Cinque Ports, pi. 21. cites 5 E. 2. Quare Impedit
165.
2. Jj^fe hi the County of Suffolk ; the T^enant pleaded Releafe^ hearing
Date at Chefier ; and it was faid, that at this Day it Ihall be tried by
the Statute of 9 £. 3. Br. Jurisdiction, pi. 104. cites 8 Aff 27.
3. yf/;^ by fome, xi a Man in Rank vouches in Chefier y Procels fhall
ilTue here to warn him. Ibid.
4. And in Dower it was pleaded, that the Feme took Dowment of Land
in Durham, and the Feme was compelled to anfwer. Ibid.
5. On a Foreign Voucher in Cont. Cbcfier ef three, whereof two were to oy .
he fummoned in Com. Chefier, and the third in ajoreign County, all pall ^^pi '41. cites'
fent into C. R. and Procefs made there as well to Chefter as to the s. C .Br.
other County, and when the Warranty is determind, all Jhall be rfw?^»</- J"""''^^"?'""*
ed ; Quod Nota. Br. Cinque Ports, and County Palatine, pi. 2. cites rj^'^"^^
49 E. 3. 9.
6. Debt, and counted upon Leafe of a Renefice in Durham made for
Tears in Middlefex i and the Defendant demanded Judgment if the
Court would take Conufance, becaufe the Benefice is in a County Pa-
latine of D. Ubi breve Regis non currit, and the Writ awarded good,
by which the Defendant pleaded levied by Diltrefs at D. Skrene faid,
ail is in Tithes, and no Land in which a Man may diftrain. Prill. And
the other averred, that he had Land in Demefue Parcel of the Benefice j
and the others e contra. And per Hill, Hank, and Thirn, it fhall be
tried by the County Palatine, and remanded here ; For per Hank, Fo-
reign Flea in Durham fliall be try'd here, and remanded, and io we
command the Record to be tried there, and after to be remanded here ;
And Thirn faid, oftentimes we have fent to Lancafter to be try'd there,
where a Thing is pleaded triable in the County Palatine. Br. Jurif-
diftion, pi. 25. cites 1 1 H. 4. 40.
7. Where inF.ffate is made, and \s general, as well within Franchife
as without, this Ihall bind Ctjunty Palatine ; Per Hody. Br. Cinque
Ports, pi. 17 cites 19 H. 6. i & 2,
8. If a Man vouches Foreign in Chefier to Warranty, or pleads Foreign
Pka, the Parol fhall be removed ; Contra ot'Sokemen, who are implead-
ed by Rill where the Franktenement is in the Lord, and this feems to be Co-
pyholders. Br. Cinque Ports, pi. i. cites 34 H. 6. 42.
9. If a Man be iS"?//';;/)' that A. fi all keep the Peace, and he breaks the
Peace, and the other has Land in Durham, the King fliall fend to the
Bifhop of Durban!, or to his Chancellor, to make Execution. Br.
Cinque Ports, pi. 14. cites i E. 4. 10. by all the juitices.
10. Outlawry in Durham or Chefier pall notfervein Rank; Contra
by Littleton J. of Outlawry in l.ancaficr, lor this is by Parliament in the
limeotE. 3. a.nd the others are by Prefcriptiofi. Br. Cinque Ports, pi,
ij;. cites 12 £. 4. 16.
II. Recovery
Lco Lcuit L^t Cciinty Palatine.]
15. Rao'very in Bank of Land in Durham, Laiicafler^ or Che ft l:-^ it
nJoid i Contra of Recovery here of Land in the Cinque Port?, nhercju
Exception is thereof, taken lor Law. Br. Cinqne Ports, pi. iS. ciics 9
H. 7. 12.
12. IJftie in E. R. triable in County Palatine of Lancajter^ jball be tried
ly them of Lane afler^ and remanded hit/, er ^ Per Brudcntl and Tremaile
1. For they faid that this was Parcel of the Crown, and exempted af-
terwards. Br. Cinque Ports &c. pi. 10. cites 21 H. 7. 33.
13. [[Error be /« Chejler^ and returned here^ ive Jbalt award Execution;
Per FineuxCh J. Quod nonnegatur. Br. Cinque PortSj pi. 11. cites
21 H. 7.35.
14. As to Execution upon a Statute Staple in the County Palatine Br-
Cir;que I'crts, pi. 2.0. cites F.N. B. 132.
15. Chancery will in no wife retain a Suit of Lands which lie in the
County Palatine ofCheJler. Toth. 181. cites 12 & 13 Eiiz. fol. 399. Da-
venport V. Dean.
16. The Plaintiffexhibited his Bill as a privileged Man to Sir Francis
Kempe, Prothonotary oj this Court, for Lands lying in the County Pala-
tine of Cheller, and for that it appeareth by Letters Patents openly
ftewed in Court, under her Majefty's Great Seal of Engla.^d, that this
Court by any Privilege Ihould not hold Plea of any Lands lying with-
in the faid County Palatine, it is therefore ordered to be dilmilied,
if the Plaincift'lliew not good Caufe. Gary's Rep. 155. cites 21 Eliz..
Loniley V. Green & al.
17. It is order'd that if the Plaintilfs do charge the Defendants by
their Bill lor the I/fiiesand Pro/its of Lands, which do lie in the County
of Luncafter inccrly by ivay of Account^ then the Defendants Ihall not be
comptlkd toanlwer i if the Delendants be charged in ;Y//;6'i;? 0/ :hc:r
Prcmifc, then they aie to anfwer. Gary's Rep. 162. cites 21 £liz.
W'inghcld V. Fleetwood &ar.
iSC The Sherilf of Durham was fncd before the Council of /ork far an
Efcapc, and becaufe this concern'd his Otiice of Sheriff, and chat he was
an Officer of the Bilhop ot Durham, andfo the Jurifdiction of the Coun-
ty Palatine impeach'd, a Prohibition was granted ^ and per W'hiclock
and Bridgmaii when Suits come into Chancery, which concern the
County Palatine of Durham and Cheller, the Lord Chancellor will
difmils them. 2 Roll. Rep. 53. Mich i6 jac. B. R. Selby's
Calb.
19. Alandamtis to the Mayor of JViggan in Lanciifliire, to rejiore an Al-
derman of W'iggan to his Place. The Mayor return d, that they vcere a
Corporation in Lancajhire, which is a County Palatine, and thereiore were
not compellable to anfwer in B. R. The Mayor tor this Return was
find 100 A/arks, and it was faid, that the Bilhop of Durham had been
fined 1000, for fuch another Return. Sid. 92, pi. 14. Mich. 14 Car. 2.
B. R. W'iggan Mayor's Cale.
20. A Suggeilion tor a Prohibition to the Chancery of Chefter was,
becaufe a Billvvas prekr'd there before the Earl ut Derby, Lord Cham-
berlain there, in which he fet tbrth, that all the Inhabitants ot Chelhire
have a Privilege not to be fued ellewhere, and that the Defendant in
the Pruhibition knowing it, had notwithltariding futd him /// B. R. in
'trover for a Cloak &c. to which he appear'd, and chat the Plaintiff in
the Action intended to proceed there againtt this Privilege i But it was
anlwered, that admitting they have luch Privilege, yet it appears by
his own Bill that he has appear'd here and pleaded, andfo it is now too late
to claim his Privilege, but chat here no Priulege is allovvable to him ;
For though in Tro\er lor Proht of Land, or other Attion in which
Re.ilty oTthe Land may come in QuelUon, yet in A£tioa merely Per-
ionai there Ihall be no fuch Privilege. A Prohibition \\:ii awarded,
and
Court [of County Palatine.] 5^81
and the Court faid, that in Matters Tranlitory it is in the Plaintiff's
Ekaion. Sid. 309. pi. 21. Mich. 18 Car. 2, B. R. Minlhall v. Star-
key.
21. If one be a Prifoner in B. R. againfl whom one has a Caufe of
A6lion arillng within the County Palatine, lb that his being a Prifoner
here, hinders that Perlbn from proceeding againlt him below ; Sure the
Caufes ariling within the County Palatine fliall not hinder us from ha-
ving Conufance ot it here, but that is where he his JirJI- in Cufiody of
Marpalfor Caufe, and another, or the fame Party, has another Caufe of
A6lion ariling within rhe County Palatine ; And if the Truth werefo,
that the Defendant was in Cuftody ot the Marlhal before, for a Caufe
ariling within our Jurifdiftion, the Defendant inltead of Demurring
ought to fliev/ it in Support of our Jurifdiftion. Per Holt Ch. J. 12
Mod. 535. Trin. 13 VV. 3. Wilbraham v. Lownds.
22. But any Pica of Privilege is good to a Declaration againfl one in
Cuftodia Marefiialli, if he was brought wrotigfullj there; Per Holt. Ch.
J. 12 Mod. 535.
23. Plairilijf had a Decree in the Equity Court of the County Palatine
of Lancafter , and Defendant being noza in the Guards and living out of
the Jarifdtffion, Plaintiff brought this Bill in Aid of a former Decree. De-
fendant by Anfwer denied his knowing any Thing of the Decree, but
admitted the Proceeding there, and Plaintilf now moved for Injunc-
tion. But per Lord Chancellor's Injunclion was deny'd, and faid, he
never knew a Bill in this Court to aid Jurifdi6lion in an Inferior Court,
and Plaintill's Equity for Injunction mult appear upon Proceedings here
and upon Records of this Court, and it being mention'd rhat Plaintiff
fliould have brought a Certiorari Bill, it was objefted that Proceedings
could not be removed out oj County Palatine 110 more by a Certiorari BUI, than
by W'rit of Error at Law, m Cafe of ABion or Judgment there. MS. Rep,
Trin. 1734. Duckingfield v, Nofworthy.
(S. 5) Proceedings and Pleadings. s^g Ad-
journment
(E) pi. 4.
X. X N AfTife in the County of Suffolk the Tenant pleaded Releafe hear-^, 6, -. and
JL if>g Date in Chefter. Herle faid, to fuch Deed a Man need nott^e Notes
anfwer where Action is ufed upon fuch Deed nor by Defence as here. Ip^.*"^' ^""^
Br. Cinque Ports, pi. 19. cites 8 Alf 27. tum.^^'^ ^°
J... , Br. Jurif-
diftion, pi. 104. cites S. C.
2. And by fome, if a Man in this Court Vouches in Chejler, ProcefsRr. Jurif-
iliall go from hence to Chefter ; For all is the Power of the King. Buf^'^^'o"}' P'-
fee now the Statute of <) E. 3. for fuch Foreign Trials. Br. Cinque Ports, g*^^ "'"
pi. 19. cites 8 Alf. 27.
3. And Exchange for Land in Durham may be pleaded in Bank. And Br. Jurif-
the fame per Shard of Land in Ireland, and the Party fhallbecompeird'li^'°"» P'-
to anfwer to it. Br. Cinque Ports, pi. 19. cites 8 Aff. 27. ^';[;'^"-^
4. Where a Thing pleaded is in Bank triable in County Palatine, the
Record ihall be lent there to betry'd, and after fliall be fent back here j
Per Hank and Culpeper. Br. Trials, pi. 27. cites 11 H. 4.
5. In fpecial Cafes they may azvard Procefs to the County Palatine.
Br. Voucher pi. 151. cites lo H. 6. 20.
6. Ti-efpafs in Lancajler^ the Defendant ■pleaded Releafe made in a Fo-
vtfn County, by which the Day prefixed to the Party's Day in Bank. 15
i " b. And this feems to be by Equity of rhe Statute of Foreign
7 J. V^oucher
•' • •
5^-_ Court [of County Palatine.]
Voucher to try i: in Bank. And per Newton it m^^^Tc^r^^^hi^^^^^i^
eery by Certorar,, and be fen t into Bank by MittLus at the Su c of
the Party quod nota. For Coun:y Palatine cannot try a Thine hors
And a Man cannot Commence the Aftion elfeu^here but in the Coun u-
Pahume, but ^vnere Conulance of Pleas is, fuch Foreign Plea goes w he
Junfd.a.on, and he AaH commence this Action at tL Common Law
6 48 '' ' " °' ^'^^''' ^'- '^"^^^' Pl- 45- citTs .: h!
Br'l^^;;X.^i.S7!H.'^^!j^ ^'^'^^' ''' ^-^^^^^^^ --'^
> T li -Brudnell if a Man rw/f>f.^j ,« Z^;;^.?/,. the ^?///?Jc
..me ro them to try s^^ and remand tt here, and if they klT el- uos
Judgmm Wnt of Error l,es here. And where J ndgn]enf7s\ZrZ
in \^ ales and Calice it cannot be reformed here i For thofe never v ere
Parcel of cne Crown, but the County Palatine wL Parcel of theCro^n
and auer v. .js exempted, and by the Statute it ought to be trvM whe^e
the Writ ,s brought, and Tremaiie conceflit. Br Tri ds nP fs
cites
nd this
ynrato, and
afrer ciiv/ers
JMotions
the Couit held the Return ^ood. Kcb. )(?c pi ,.„ apH ,<!^ p1 ,<q c r-
hddgood; fortheCou'twUlnotprelSany^ther. '"^^^^^ Ch.ef Jaftice, and the Return
Sheriff oj Lmjfer, wao returned Fieri Feci and thir rhe(^£!A ■
ed in his Hands for want of Buyers • thereunnn .V I e"^' '""'''""
«t.^r^..//«/.;;;^, of which h 2dl no RetT ''''^' ^•^^""''^^ '^'^-^
the PLdnciff, whothereupo'n moved f^ an AttTcLf'' ^T'^'^°'' ^°
vedintheSherhf's Behalf, that^ Fien f^it^Si^ r ^e^ouHf l^S^
urid 'thafT 'r''^"^' ' Judgment in Durham in Ejeament, it was
urgea, that Per Car. was otmtted in the ^tidrmeut Rnr ;- '
l.veied and refolved, that Ideo Con/ili^'tZ'^^^. l.:^ v'
Cav. was good enough tn the County Palatine Curts, w h i h Slti'\
upon m that refpeft as the Courrs of VVelfminlle? .nH fn % '^
w.s affirmed. \z Mod. 181. Hill o W TiZ' ^"'t^''^''^^'''^'''
Hill. 9 VV. 3. Lanib ■.. Jeaifon.
(S. 6)
Court [of County Palatine.] 583
(S. 6) Error. Of Writs of Error to the County
Palatine.
1. "|7"i?i?0R in the County Palatine fhall be rcdrefs'il here in England ; S""- Cinque
Pi and per Ncwcon, Error in Wales fliall be redrefs'd belbre the ^""'^ PJ.' ^'
Juilices Errants there ; But if there be no fuch Juftices there, it Ihall be
redrefs'd here in Curia Regis ; Quaere inde ; For per Fortefcue and
others, it ihall be redrefs'd in Parliament, viz. Error in Wales. Br.
Error, pi. 74. cites 19 H. 6. 12.
2. Upon Error in Chefter, Writ of Error of Common Form^ as other
Writ ol Error h, Jball be Hire^ed to the Jufiice of Chefler^ returnable in
B. R. and they ihall have Day in which three Counties may he held to re-
verfe or affirm it^ and if they will reverfe it the Record pall not be fent into
B. R. and if they will not reverfe it the Record pall come into B. R. and if
it be reverfed there he pall lofe 100 /, Br. Error, pi. 19. cites 34 H.-
6. 42.
3. Error in County Palatine fliall be reformed here. Contra of Er-
ror in Calais or Wales ; For thofe never were Parcel of the Crown.
Contra of County Palatine ; For it was Parcel^ and after was exempt ;
and per Fineux Ch. J. Error in County Puluine: /ball be redreped there by
Commifpon^ and not here. Br. Error, pi. loi. cites 21 H. 7. 33.
4. If Error be in Ciielter, and it is reformed here in B. R. we will
grant Execution here; Per Fineux Ch. J. Quod non negatur. Br. Er-
ror, pi. 103. cites 21 H. 7. 35.
5. An e.roneous Judgment is given at Cheiter ; a Writ of Error is Jenk. 240.
brought out of the Chancery at Wejiminper to reverfe this Judgment, and P'- ^2- S- ^•
iliali be dire&ed Camerario Ceftrne five ejus Locum tenenti^ returnable in
B. R. 3 Months after the Delivery of it ; the Tenants there, called Ju-
dicatores 'ferrarum^ have a Month after the Delivery of the Writ of
Error there, to conlider of the Judgment, and to reform it if they fee
Caufe ; if they do not reverfe it, and the Judgment is found erroneous
upon this Writ of Error in B. R. as aforefaid, they forfeit 100 1. to the
King by the Cuftom, there to be levied upon them ; this Affirmance or
Reverl'ai of the faid Judgment extends only to Errors upon the Record^
and not to Ernr in Facto. If they difaffirm or affirm the Judgment,
anoxhtx Special Writ oi Error may be brought upon this in the King's
Bench, if the Party will. Often adjudged, Jenk. 71. pi. 34. cites Dy.
345-
6. Error on a Judgment in the County Palatine of Durham, wherein ^ j
the '?\'imx\^ declared, that the Defendant was indebted to him apud Ci-vi- i^.'^'c.'.lnd
tat' Durham in 39 /. for d/iiers Wares ^c. to him fold and delivered. Ex- Judgment
rifdiftionof the faid Court. But it was anfwered, that though this isBell, S. C.
a good Exception to a Declaration in inferior Courts, yet the County adjorraiur.
Palatine Court is an Original, and reckoned among the Number of Su- ^^^ ^j-"^^
pcrior Courts, As in the Statute 3 Jap. cap. 8. Executions in Counties "^.^and '
Palatines, in certain Cafes there fpeciiied, Ihali not be Hayed by Writ judgment
of Error without Security &c. and they never certify their Jxirildic- affirmed per
tion upon a Writ of Error, no more than the Court of Common Pleas, Ciir-^,F^'=^
becaafe the Court here Judicially takes Notice of their Jurifditlion, and § "^c, cued
the Entry ot their Judgments there, is like the Entry of the Judgments Lev. zoS.
in
584 Court [of Ely.]
that Judg- in thofe Superior Courcs, lor ic is Ideo Conlideratum ell generally,
nicnt was (vvithouc faying per Curiam) therelbre this being a Superior Court, and
ai'lunied,^ the Rule is, that nothing lliall be intended to be out of the Jurifdiftion
iOTri"asa of Superior Courts, except what particularly appears to be fo, where-
afeintiie upon the Judgment was afErmed. The Court at firft were divided,
noyal Fran- Windham and Morton held the Declaration good, but Kelinge Ch.
chile of Ely. j_ ai-jd Twifden e contra; But afterwards Twifden faid he had advi-
led with the other Judges, who were all of Opinion, that the County
Palatine was an Original Superior Court, and therefore the Declaration
good ; whereiore the Judgment was affirmed by Twifden, Windham,
and Morton, Kelinge remaining in his lormer Opinion. Saund. 73.
Pafch. 19 Car. 2. Peacock v. Bell.
7. It was moved to rtay the Return of a Writ of Error out of the Chan-
cery, to reverfe an Out/awry in the County Palatine of Chejter, according
to the Opinion ot the Lord Coke, 4 Inlt. 214. Sed non allocatur ; be-
caufe this old Ufage is gone by the Statutes 32 H. 8. cap. 13. and 33
H. 8. cap 13. before which lalt Statute there was no Outlawries in
Chelter, for Coroners are introduced there by that Statute, and they
had no Chief Juftice there till Queen Elizabeth's Time, for rill then,
there being but one, there could be no Chief. 2 Salk. 500. Trin. 12 W.
3 B. R. Wilbraham v. Poley.
For more of County Palatines, See Crompt. Jurifdiiftion, 131. to
142 4 Inft. 211. to 216. cap. 37. of the County Palatine ol Chel-
ter. And Ibid. 216. to 220. cap. 38. of the County Palatine of
Durham. — Prynn'a Animadversions &c. on 4 Inft, 151, ij;2.
(S.7) Ely.
Royal Franchife of Ely.
I. TN Error of a Judgment in Ely Court, and affigned, that in the
f_ Stile of the Court it \s not fet forth, whether it be held ty Char-
ter or Prefcriptton. 2dly, That tlie Judgment is Conf/derattim ejf, with-
out faying Per Curiam. 3dly, The Wnt of Inquiry is Per Sacramentum
duodccem, without faying Proborum & legal; urn Hominnni ; But all thefe
Exceptions were over-ruled, becaufe it being a Royal Franchife, it is
not as in Cafe of other Inferior Courts Lev. 208. Pafch. 19 Car. 2.
B. R. Pigge V. Gardiner.
2. Error of a Judgment in Ely Court in AlTumpfit was afligned, that
thMitxs not faid, that the Goods jor which the Alison was brought were
fold and delivered within the Jurifiiiiion of the Court ; But Judgnient was
affirmed ; becaufe it is not as in the Cafe of other Inferior Courts. Lev.
208 in Cafe of Pigg v. Gardiner, cites it as Pafch. 19 Car. 2. B. R. Pea-
cock V. Bell.
3. FJy IS not a County Palatine^ but only a Royal Franchife, and there-
fore the Defendant cannot plead to thejurifdillion of this Court ^ viz. that
the Lands &c. or the Caufe of Aftion are, or did arife in El}-, for that
is only particular to a County Palatine, which Ely is not ; lor the Bi-
pjopofEJy can only demand Cognizance of Pleas, which is all the Fran-
chife he hath as to this Purpole ^ and iuch are the Franchifcs of the
Cinque Ports, which are the fame with this of Ely ; and it is ufiial for Ap-
peals of Murder to be brought in this Court, when the Fact was coni-
' mitted
"CourF [of Council of York and Marches.] ^b^
micted in either of thele Franchifes, and the Trials here concerning
rind in Ely are good ; buc it is not lo where Lands lie in a County
kkt ne Carth.So9. H.ll. . W. & M. i" B. R. Cotton v. Johnlon.
(T) The Court of the Cofmil ofTork, ami the ^^^j;,^-.
* Marches. £^-^
exercifed in
__ . J the fame, is
T r-f^Il^cl^ m\\ not \)m pea upon a penal Statute. Sj^lCl). t2 ,^
T Bc7 ^ pet Coue faiQ to be tcfolijcii. J^'f^,^-
^/. Sm. I. r<rf 27.^. z. See Tit Marches of Wales ^A)
-, '^liPtt mall not nom pea upon a Replevin, llCCaitfC nOllC fljall ^ulft. mo
Sout Vrit before tijc g^tatiitc of a^dtlebritise, cap, ai. i^iclj, 7 !)««
!j,ac» 'B* pec Coke* p-„iiibition
wasgran:ed__i5 Rep. ..pL x.. Hill 6 Jac. by Coke Ch. J. in the Cafe of Prohibitions. S. T.
'®; Hf T Man having Bona Notabilia in feveral Diocefes, maltes an In-
fant iLtSor! m.l wes, aus ^<^^^ fr^^^oS^
^.Wje Obligee cannot (u.j^ an Obl,ga<,on m L„g^^_^ y,^ ^S
iea, who peradventure ought to have Erro or Attaint. V
« •If flic dTOUtlCil Df £0i:li0t1©a!C6 begin with a Seqneftration,
'^f f„'°ni?Bation cannot be p«ftrte!. U. tiK ^©MCp^ "f >®f Sj
c;S6 Court [Leet.l
and this is over-ruled, and tfjCrCUpOU the 50 J. is decreed againft the
Deler.danc, withouc awarding anv Conimillion in Nature of a W^ric of
Inquiry of Damages, fl l^tOl^bftiOn \lZ^, fOr t{ji0 10 tiUt atl S^ftiOn
Upon tDc Cafe tip CnguH) 05111. £j?idj, 14 €ar» Id, iR* lietuicen
hdfjcock and Mervin^ per Citctam, H il^rotjibition granteU, Jutratur,
Cum 14 Car. Eot, 392.
As to the Court of the Prefident and Council in the Dominion and
Principality of IVaks, and the Aiarches of the fame. See 4 Inil.
242. &c cap. 48.
As to the Prefident and Council of Tvrk. See 4 Inft. 245. cap. 49. and
i3 Rep 30. &c.
*^>/^:;^(U.) Court Lcet. J-Vhat \jt is^ and other Matters
L^'v^j concerning it.]
» Br. Leet, i A CO^trt ILCCt 10 tfjC molt ancient Court of the Land. * 7 £p, 6.
P^'t r /\ 12.13, 9 ip* 6. 44.0.
cues!i C. •*■ -J
&. S P. by Cottermere.
¥hzU Leet. 2. €1)2 SheriiT'sTurn is not Stt? COUtt ICet. * 18 il5» 6. 13. Ij. Ctt^
s'c&rp. i'^^"^* Contra, 25 £». 8. 69.
v^ r tot. Cur. for in a Leet they have Conufance of Dread &c. which they have not in the Tourn of
the S lerifF.
Fitzh. Leet. 3. JF 3 Man hath a great Leet within his Seigniory, another cannot
pl- I cites h^^-g ^ {j^^^n Leet within the Purfuit, [Precinft] of a Manor iDljJCfj 10
beSuS a 'within the fame Seigniory. 18 p, 6. 13. b, Cil-.u!*
Maufhall
rot be obliged to come to 2 Leets by Rcafon of his Refiance. The Earl of N h.-jd a Leet in T.
of all tlie Refiants in T. D &c. and the Earl of D. had a Leet i;. every of thefe Vilis &c and at the
holdinffof the Grand Leer, every one or the Inferior Leets/ewi/ a Lj>:J}nhk ami four MeniahD prefent in
the Grand Leet all Mailers prcfevtahle \r: Lcet.'i of Thinf;s done witlnn their rcfteftivc Leet.s, and this
had been the Cuftoni Time out of Mind. If the Conlhible and four Men of any of the Vills do not
attend, the Vlll jh.tll bs amerced, hut no more of the Inhnbit.tnts are obliged to attend. And in Jvo-xty
there ou£;ht to be made a //)?f W Prf/rW^if/c??, and not a general one as appears S[(8]H. 6. 15. 1 ^ E.
; Leet -j, 1 1 H 3. Title llTue. 40. Per tot. Cur. Cro. J. 583, 584. pl. 4. Mich. iS Jac. B. R. Cook v.
btubbs.
(5 Rep. 12. 4. Clie Steward is Judge fil tl)i0, ailtl UOt t|)e ^lUtOi;0» €Q*6.
.1. that the 3',cimemau 12. Contra iil),(>. 13-
Steward l."!
Judge in the Leet, and the Shentf in the Tourn, cites I o H. 6, 7. 7 H. 6. 12. rzH 7.15 Br.
Leet pl. 14. cites 7 H. 6. 12. that th^- Steward is Judge in the Leet and may atlels a Fine, per Cot-
tefmcre ; And by Pafton, (b far as his Power extends he has equal I'ower with the lufticfs, to which
Newton agreed [Roll fcems to be mifprinrcd both as to the (Contra) and the Yedr; por in Year
Book i<i no (U'.-h Year, as (17) and Mich. 7 H. 6. 12. b. 1; a pl. 17 has the S. P. as above,]
8 Rep 38. b, frin. 50 Eliz.. C. B. in Griefley's Cafe, rcfolved, per tot. Cur. that the Steward is
5. 2fag3nn be elected in a Court Leet to be a CoiHabie within
the juiikliction ot the Leet, BUD before ' lie is fworn, the Jultices of
Peace at their Selfions difcnarge hiin, becaufe he is a Aiaiter of Arts, O;
tot UtijCtCaUft, and elect and fwear another tO lit COUitaWe tl)sJCe j
lipon
CoTtt of lying's Bench may grant l^^^^^\;,-,^^^^ Of tfte
t^ f^carhim that ^^seleaedac the Lett, |J>^'^»y \j.^^i,jnamC CvlUfe
to tl3E conti-arp. ^?i^>l°nSn> Linton, m mm^mcVM^m
\^T\' P^-^t.t!^^.'/^^-^-....^^^^^ ^0 an Hundred, Ic A Leet.^
8. A Leecnuy ^\^'^'''''J ", Cirr. 177. cites 8 H. 7. i. 12 H.^^^„,„drcd
may be Pared oj an Hundred. Art,, v^art. / / ^^^ j^ ^^^
7 15. 2 H. 4. 24- beapjien-
, Of ancient Tin.e the Sheriff had two great Co-^s jk the
Tourne, and the County Court; f ™t/^^,t:t.em ,n ght the £et'-
andefpecaily tor the Husbandman ^1 t -^h o^ ^^^ .^^J'Con.. here
ter follow their Buhnefs in their ^'■'•^'f\^^X^h, the Kin" divided^
!nddenv^dirom t^' ^'"'"r'''^ ^'"iJfJ^^ So as the 'Tenants,
the Tenants and Rcjia.ts mhtn ^/;'^;,f/^f ',,^^V^.. had before in the
andRep.nts, P^.uld ^^^^^^^^^''^j.f^f'^.^iouVany Charge or lofs of
Tourn done un^othe,y.tthetr own D^. vu^^^^ J ^^\,^, i^^i De
Time aud for thjt Can fe came ^%.^J^^"'^^l Grant of the faid Leet.
^0, likewife, and tor the lamc R^^/.""\/2o'.^f; ,„d this the King
Curts divided and derrSdjrom ^'ff £"^'{^,^ Jf ^i' 's Courts of Re-
light do, lor the Tourn and Leet bo^^ -e the K^g^^^ ^^^^^^
cord ; And as the King may gJA"^^^;'^",,,,,;^ judges, and in a Man-
ta within a certain Pf ^f ^^'-,^.<^„}^i'^^^^^ of Juftice, lo
„er exempt it irom the Jur.ldi..ionoihis^t ^ ^^ ^^^
might he do in cafe ot the Tou.n ana ri _^^^^ Cuftoms,
Courts and Judges may be changed b^^^^ ^^^ ^^ ^^^^ ^^^^^^
whereby the Courts proceed, ""^•'-^,^^5^ "^'-^^ r, j/,, ^To/'.-;; ««rf Leet
into A. B andC. by a grant o totmr. M.^^^^^^^^
there being a Court Leet in D the Gran.c^ey F^.^^ ^_ g_ j^ ^afe
B Sic Diaum tuit. Cro. b. 39- P^- ^•*'* '
of Morris - Sjruth and ^|C^ ^^^^ ^^^, ^^^^^^ ,,, .^e Pro^ or A Lee: »
II. Every Leet ^^ the a^'^ ^ jyi^.h. 29 EIiz. B. R. ,,^ ^-,„^, ,
Commodity ot it. Ar^. 4 i^e. 10^. v j^^ ^^^
Anon A Lef« wjj
inCafeofBullcn V. Go.trcy.
„ Two Le«s can't be ,» « f'-'" f/"'' ^c 4=7- P^ J9J.
Hill " ^8 Eliz. Lord Norris v. Barret. ^^ ^^^^^^ ^.^^ E_ ^^g.
, Agreed, that the Lord ot the ^anor and Le^^^^^^?,^^ j,, his pL "• /te-
as w'dl as Tu'mbrel, and it he does ^t be to^ -,^^Cafe of Strogs v.-J^s.
>^egligence. Mo. 5^4- pL 7«9- -^ "n. 40 Stevenion. ^''
5^8"
Court Leet
C. held that Scevenfoii — But See Cart. 29. that the Stocks are to be at the Charge
Tumb'reT'^ of the Town, and it is a forfeiture of 5 1. if a Town has none.
OUf;ht to be provided by the Lord of the Liberty and not by the Vill, unlefs there be a Prefcription
to the Contrary, which ought to be fpecially alledg'd; Foi' they being for Execution of Juftice with-
in the Liberty, he ought to fee it to be done.
14. The King has Power to make and create a Leet anew, where
none was before. A Dijirefs is incident of Right, but in a Court
Baron a Prefcription muft be laid to diltrein. Brownl. 36. Anon.
S. P. Contra, i^. Private Leets as to this Purpofe are within the Leet of the Hun-
c"r'"w'^' ^^^*^> to inquire of Things omitted by them to be inquired being
tnaybedirec-P"^^"^'^ ■^"'^^''^^•^- ^^'^' J- 551- pl- 13- -Mich. 17 Jac B. R, Loader
tfd to the V. Samuell.
Sheriff to in-
quire thereof, and by the Book of 29 E, 5. this Writ is not taken away by the Statute 2S E. ;. 9.
made the Year befoie, which was then frefli in the Judges Memory. 4 Inft. 261.
16. The Grand Levi is called 7«r», and is in Nature of the She-
riffs Turn which has Junfdiclion of all inferiour Leets within ic.
Cro. J. 584. pi. 4. Mich. 18 Jac. B. R. Cook v. Scubbs.
* Jo- !§;• 17. E-very Man ought to be wit hi it a Leet, * and none can be of t^ao
\^- ^ Leets; Per Cur. Cro. J. 584. pi. 4. Mich 18 Jac. B. R. in Cafe
Man cannot 1- /^ 1 c ll j ■» t r t j
be attendant Oi Cook V. Stubbs.
at two Leets,
i* tliey be held at feveral Days; Per Cur. Het 21. Trin. 5 Car. C, B. in Cafe ot Eve v.
Wright.
18. When a Hundred Leet is granted to a Stihje^ it is a Franchife;
Per Hale Ch. J. Freem. Rep. 349. in pi. 433. Mich. 1673.
1 9. In tlie Hundred of Norton Ferris there is an ancient Borough
call'd Wincaunton, which has a Leet, and there was alfo a Leet in
the Hundred. Here tho'' there be a Leet in the Hundred, which can-
not be but by Prefcription, yet there may be a fnhordinate Leet -within
it, and the Rc/tants of this Leet may be exempt from their Attendance at
the Leet oj the Hundred, unlefs the Hundred by Prefcription claim it. But
Hale Ch. J. faid, there is a difference between a Leet in an ancient Borough,
(who in Eyre appear'd by four, and was always look'd upon diftin6l
trom the Hundred,) and between Leets in Upland Towns, where he
that owes Suit to the Leet may owe none to the Hundred, but by Cujiom he
may do fo. But the chuiing of Conllables and other OiEcers lor the
Hundred out of the Leet of Wincaunton, may be out of the Lest. 3
Keb. 197. pi. 44. and 230, 231. pi. 47. Mich. z$ Car. 2. B. R.
The King v. King.
In all Leets 20. In a Prefentment in a Leet it is not neceflary to fhew Coment
r^^Ad'Lr"°'" -^^^ •^"'"^» ^^^ ^^'^^ ^^ ^^'^^- ^ ^^^^ ^°°- The King v.
&c tent- Gilbert.
fuch a Day
without fhcwing their Authority. But it had been a good Objedion not to fhew Authority if conftant
Praftice had not been other wife, iz Mod. 4. S. C. Pafch. 3 W, & M.
(U. 2.) Who
Court' [Leet.] 589
(U. 2) Who muft appear at it.
I THEMES and tenants in ancient !)««/«« are exempt from Leets
Y andTourns. Br. Exemption pi. 13. cites the RegUleriSi
2 In Debt for an Amerciament in a Leet, the Cafe was, that the
Abbot of A. was fafed of the Hundred of H. in Berks, andoj a Leetap-^
wl thereto h Prejirtptm, to be held once a Tear, wtthtn f Month ^
&T The Diirolutio/ was tound and that the Towns ot C. an d N
tSh oA Others were within the Hundred and Leet, and that King
S 6 LfedoZ L%ral Lands >n N. Parcel of the Poffefons of the
%ya^d granted. KoLnes Curias, Letas 6,c. ^ Jnurc^amenta pr^-
IniL n N perttncn' provenien', &c. and that the faid L. and his
nSs knidlave tot^ taha S confimlia Cunas Letas ^c. ^'--«-
tf^lnLattamcnta as the Abbot had infra the faid Lands &c. and «/-
'rSlr^rSr^ 6 granted the Hundred and the L.t to one O .vhich by
t^rllm^ Conv Jces came to the Lcrd Norr^s, the now Plainttjf and
iZtBh Defendant clat.ued under L. and that he was an Inhab,-
XammN anhevng fummoned to be at the Lea, he madeD.JaaH and was
amerced to 405. for which the Ali ton was brought- adjudged that L
had no Leet noi Amercment by this Grant, neither was he dilcharg
ed from the general Leet of the Hundred, becaule the Leet mentioned
t his erant is reftrained to the Land granted^ tor it is Pr^miffis m
S llStilZ^^^--\ and there wis no luch Leet there before
th"e GrantlFor the Leet which the Abbot had, and which came to
he Kn" upon the Diiiblution was appendant to the Hundred and
could not have the like 1. ^^ ^^^^^ ^^^^^ ^^^^
proper y be faid Proven. en a ^^,^^^ .^^ ^^^^^^^ ^^^^^^
out ot Land but by ^1^'° j ^^ in ^he Grant to U are re-
the Leet is held, *"^ .^f .^'^'J^'^'^^j^d the Abbot had no Leet intra
? . .hev have a Writ upon the Statute by way of Pnvi ege Arg. 8
Leet, they have a >vru up Rxcheauer in Morgan's Cafe.
Exchequer in Morgan's Cafe.
5 9^ Court [Leet.]
(X) The JimJMmi [of the Leet.]
Fit7.h. Leet pi. 10. cites S. C. & S. P. of Pettv Trpaffm ,„^ P t l
of a Man. ^ ^ '"'°" ^""^ ^<^^°"y> ^"t not of Rape, or the Death
t Br. Leet pi. 2. cites S. C. & S P. Br Leet pi. 26. cites 22 P a ,, <: P u • .
al! Felo-^iesat Cotrimon Law, becaufe they are the Kin^ Coum ^' rI '' '° '^' '"^'^'^g "*
jr- the Leet, for -ho' it w,. Felony at the Common Law vet 17^ "^'".""u "."^^ '^^irable
rh.rred to be no Felonv by W. i.c.p.B. whenTnother A6t m H > ^- V' J^e Offence bein^,
the Leet inquire thereof a., a Felony ^ 2 Jj"^"^ ™°'her Adt made it i-elony again, yet could not
per Babington, Ch. J. \
ni^"" ^•'" Titntr.if ^ ^-F "^^'^ ^•'^^^^^'^^ Of High-Treafon Hone ffl f'^C fftma
no mendonorth^e\vo.7(HSi!5l°LrBrIXlT^ ^?^" ^'-d'^. cites S. C. of Treafon [but
but not of HighTre-ifon ^ ^^ ^nd Brooke f.js it feems. that of Petty Treafon he may inquire
Stcfel" ^" "^'^''^ '•''^^'^'^ ^^'^'^ t0CnqUilXOf Felony. lo JJ), 6. 7.
S. C Br. Ley-gager pi. 99. cites S. G.
; ,^'- !i^ ' ^°L''"' P°"" '« ^o'" ^oy^l Juttices, and not tor privateTliaers
Kumber of People, as flopping of a VVayoTn'ot rcpairh^gf Bridge Wc "'""^ '"=' " ^ ^"^^
^•■'n^^'^- ,„Lf-?^^^P'^-^»^"^"^''^^ Of Common Nufances Ur\t tO tOe Coni^
and the like,
Leet caimottake an ladiitmcnt of a Robbcrv ,ic>e out ,f l.i.o ^}i ^ 7~7~ r!"" ^'«"*'<^ '^' '''^
thiirefore
Court [Lect.] 591
therefore the Jullices of B. K. would not arraign the Party on this Indirtment, and the Lord was
fined 40 s. , ^ ^ r^
♦ Poph. 20S. Hill. 2 Car. B. R. Wheelhorfc s Cafe. S, P.
8. Cfjcp Ijaiie ipoiuc'c to entiuite of all Spannet of Affrajes anHpitih. Ley.
Aflaulcs. 10 Ji> 6. 7. s'c &'rP
by Newton. Br. Ley gagcr pi. 99. cites S. C. & S. P. accordingly, Qiiod fuit conceiTum.
An Indidtment of Aflault and Battery found in a Lect without any Blood fpilt is no: good. D. 295,
b. 254. a. pi. 14 Mich. 6 Sc 7 Elii. 5. cites 13 E. 4. 10.
9. CljCP IjalJC ComiuUlCe of Bread and Beer. 18 il). 6. 13. b. Fitzh Leet
S. C. & S. p. per tot. Cur.
10 3!f a ®a!l, by EcafOU of a CenUlt, OUlXllt to deanfe a Ditch ♦ Thi. Point
nm m im street, aim ooc^ [not] clcanic it, b? mm tpc-t ^a'ch.
^ttcct 10 mrcounoca, To tljat tljc people cjmuot pafgii Ijc vaaj? be J , 'h^
anierccQ m tlje teet ftr it, ann niaj? be aiurttoeii to be * dutram-firftPiea
ed to cicauft it. t -9 ^- 3 -9- Ciu'la. Fo1n"t°at'"''2t
and !o fecms to be mifpri-cd. t A Diftrefs in is incident to a Court Leet of Com-
mon Ri>^ht Brownl. ',6. Anon Amercement in a Court Lcet for mt Securing a btich w "J^'P.b-
r-.v nnd -ooH, and refolved the Party may be punifTied in ths Leet, and alio by the Statute 18 Elii.
r. for diverfe Cuufcs. R-iy.n. 250- Hill. 3° & 51 Cur. 2. C. B. Stephens v. Haynes.
11 If OU^ receives a poor Man to be his Tenant iU a '^ClUit, ^ho r\A>'0
is chargable to the Town, ailtl tl)I0 againlt a By-Law made by^ "^^e Fofu^^
Town tljCTown having Power to make luch By-Laws, ti)tp lJi;:^e 55.
pimtfljable in tlje lect* p. s 31a. ia Camcca ©caccatu.s pet ^r,. Trin.
CUtiam. JnKeef'
to l^e S C by Cuftom fuel, a By-Law h good ; But by Snig and Altham clearly the Steward cannot
Imerce one for iuch a Caufe without an Order [or By-Law] with a Pain made before.
12 an Order with a Pain map be iiuitie bp tlje stctuatti of a ILutfJy^;''
in a Lcet, that none ih.il recen . luch Tenant. a0 fljall be ctjatgeable;,'^?^^^''^
to tije partO). p. 8 3ia* 5 j. per
vv- «.y »r Montn on
..erv cfe ivithir, a Leet thai fiall take or pbce avy Tvm^te -a-hhin any Houfe there r^vithout ejvm Secriiy
to theOv feers of the Parift, to d,Jch.rge tie Pari^, ; Pr^ hale i.s a good By L^w and frequent in
I eS Ha(-d 4- .. Trin ,9 Car. 2. ia S..KC. Anon. This By Law was made at a Court Leer,
beldoro ReK- within his H'.nour of Gva'ton, and this b'.ne was retre^ed imo the E.^cchequer, and
Proceis iflued to levy it. Hale Ch B. laid it was hard to eftreat the fine hither without talang the
ufuaTRemedy for it by D.ftrefs; and to e:ctend the Party's Lands upon ir, when perhaps he may have
Wthin- to^ plead to ir ; as that he is .ot wiuuu the Leet, or that he received no Inmate .But the
fXers of the Court faid, it was ufual to cfrreat fuch Fines in the Exchequer when they belonged
to the King i Otherwile when thty belong to Subjects. And thereupon the Party was put to pl«i.
Hard. 471- pl'5-
1, A Prefe'itment was in a Leet, that J. N. had inchfcd fuch cer-
tain Lands, -which omht to Ik " Common for the Inhabitants ot the
Vil' is a void Prelentav^nc, th^^ ■•,;i it is laid to be ad Nocumentum In-
habi'antum ; For tbts ts a Tort, tut no Nafancc ; Quod Nota per Judi-
cium ; For the feveral Partic.s inay in this Cafe have their Aftion. Br.
T fpf dI ^o. cites 27 Ail. 6. , ,/- c- ,
14! A Leet has Power to a..rce a Man for a Nafance, a,,d alfo to ^-F-- A-
-^ard that ths Orjendcr be difr-z^nd to amend it ; Per Cur. Br. Leet, pi. ^_^ ^ j^^^^ ^^^
2 ? cites 29 E. 3. 28. and Fitzh. Avowry, 265. Hundred,
Oi' ' a Man TOrf^
diMnthe Beafiscf the 0£^r,d,r,n^r,yPUu ■within -the PrccwB of the Lut 0, Mundud. Quod Noru
lip 2 Court [Leet.]
Br. Leet, pi 28. ci'cs z H. 4, 24 A Leet by Prefcriotion may dilhain tor .111 Aine^ccmeiu, and
X\\t Lord may fell the Diftrefs ; becaufethe King may do lb, ;imi the Leet is the Kin.T's, rhouoh the
Lord has the Profits ; For all Jurtice is in the Kinj;, and therefore the Court'; and Giols in Towns
Corporate are written by the Kin}; Curia Noftra & Gaola Nollra in Culloriij vcltra exiftent'. Br.Lecr,
ph ;4 cites 21 H. 7. 40- Br. Prefer! pti'>n, pi. 40. cites S. C. — Nota pro le<;e, if a Penalty
if /ft on a Man in a Leet to redrrfs a Kufance by fuch a Day Tub Pcena 1 o 1 . and after it is pefenieA that
he had not done it ^ and that he fhall forfeit the Penalty, this is a good Prefentmcnt, and /fes Pf«,i//y
.^mll not he otheriiife afeer'd, and the Loyd jhall have Jciion of Debt clearly, but he cannot dijlram x>id
make Avowry^ unkft by Prefcription of Ul'age to diftrain and make Avowry. Br. Leet, pi. 57. cites
23 H. 8.
It belongs to 1$- Lord of a Hundred cannot by reafon of the Hundred have IVaif; For
the King he cannot try it by Jury ; For be cannot compel the Suitors to be fiiom;
by Reafon Contra IN a Leet^ therelore Waif belongs to it, and the Day of the Leet
per Thor"' f^ the King's, and the Lord is only his Minifler for the Time. Br, Court
and Belknap. Baron, pL 2, cites 44 E. 3. 19.
Br. Leer,
pi. 5. cites S C. Br Eftray, pi. 2. cites S.C.
Fitzh. 16. The Bailiffs of St. Albans by Certiorari in V,mco removed three
Fifaunchife, py,f^„ers into B. R. whereof the one was tndtBed in another County^ and
pl.^2. cites jjjg^gfoj-e was/i;;? to the Marfmlfea^ and the others were feiit back^ becanfe
Nothing was' againji them m Banco, nor were they indifted, and Leet
may inquire of Felony, but \i fufpethd Perfons are taken and not mdiclcd,
the}- cannot deliver them, but they Jhall he delivered before Jiijfices of Deli-
verance by Proclamation, and though the Leet may inquire ot Felons, yet
thsy cannot arraign them. Br. Corone, pi. 23. cites 8. H. 4. 18.
17. Leet m-dy inquire of corrupt Fi^uals. Br. Leet, pi. i. cites 9 H.
<5. 53-
Br. Leet, jg. Indiftment taken in a Leet is as well as in B. R. of Things
s'r^ &Tp touching tlie Jurifdiaion of the Leet, and it may commit a Man to
'Prifon, and affefs a Fine, quod ConcelTum fuit, quod nota.Br. Ley Ga-
ger, pi. 99 cites 10. H. 6. 7.
Br. Leet, 19. No:a thit '/hings given by Statute as Rape, Putting out Eyes, Cut-
pi. i6 cites fifjg Qiif oj' tongues and the like, which are made Felony by Stature, thofe
^■^ P^tzl'/"^^''^^ not be inquir'd in the Leet, nor any others but thofe whkh are
Tourn'of* Felony at the Common Law, and the others are void PrcfentmentSi For
Sheriff, pi. Coram Hot Judice. Br. Prefentments in Courts, pi. 21. cites 22 £.
5 cites S. C. . 22
6 S. P
clearly bv the Opinion of the whole Court. Jenk. iii. pi. 4;. and I59.p'- ^S- S. P. unlefs the
Statute which ere tes the Offence, gives them Power Br. Indiam-'U, pi. 28. cites 6 H. 7. 4.
S P. Br. Leet, pi. 22 cites S.C. & S. P. and thai the Law is the fame of Labourers and Ar-
tificers.
Br. Pic- 20. A Leet may make By-Laws to bind themfelves. Br. Leet, pi. 34.
fcription pl.^itesziH. 7. 40;
40. citesS.C, , ' ~j.
21. It was adjudged, that Po«W-£re'i^f;& is not inquirable in a Leet,
becaufeitis not a common Nufance. But Rhodes fa id, that exceffive
Toll is inquirable theie. 4 Le. 12. pi. 46. Pafch. 27 Eliz. C. B. Sander-
fon's Cafe.
22. Court Leet cannot amerce for leaving his Gates open, ad Nocu-
mentum Inhabitantium. Mo. 356. pi. 484. Trin. 36 Eliz. Evington v.
Brimrton.
23. In Replevin the Defendant made Conufance as BailiiT to G. for
that he had a Leet within his Manor ot D. and that the Plaintiff was
amerced at i'uch a Court, for putting his Geefe upon the Common there,
and for that Amerciament he dillrained -, But the Court held, that this
was not an Article inquirable in a Leet, or punilhable there, and there-
fore the Plaintiff had Judgment. Cro. Eliz. 448. pi. 14 Mich. 37 &
38 Eliz. C B. Wormleighton v- Burtoa.
24, If
Court [Leet] 593
~Zr^Man be hindred to go in a common Higbr^ay or if ^f'^^^^^ '.f.'^. I'thc
Jde'atlrj^art that Way fo as he cannot go, it is prefentable in this Court, g, ^^ ^,^
Co. Litt. 56. a ^^^ efpecially the Leets,had '
Poller trinqrelw^ ^^ ^^^ ^^^"^^ °^
'^l6"rurors%n"LeefLy inquire of /«..... by ^^ Eliz. cap. 7-
"^".^Leefan'd Tourn cannot inquire of pirate frefpaJJ-- J-^. 138. A-J;^-'^
1 r. which is no
P" Terror to the People, i Hawk. PLC cap. 6 J. S. i.
in a Leet. Hob. 246, 247. pL S^S- Mich. 16 Jac. Smith, v. PanneL ^^
S. C. and the Notes there.
ag tebt was brought for 40s. impofed on the I^efendant at a Court
T !?'.f the Plaintitiffor ^ Contempt committed AevQ i which was, that
adjudg'd tor the Piaintift. Raym. 68. HiU. 14 c^ 15 ^-^r.
^1" The BaUiff of Weftminlier had levied Money upon feveral Per-R^y- '54-
r ^ Inn P efentments in the Leec there for ujng Trades >wt having f^^ ^,^, B.
fons upon ^^^^^"J'"f , !, '"r^^olaint piade of this againft B. it was a- ,^, befen-
heen Apprentices ; And upon ^on^Pj^'"'"'"'! ^o, i^ve the Leet any dam Bailiff
^reed, per Cur. that the Statute 5 Eli^. does "Ot gi e y ^^^.^ ^ ._
Power to oroceed thereupon^ and directed that thole ^^i'^"^^^"''';|;"'berty would
net. """^ upon
- • j»u,f^rl if rhe Leet had ConuIaiKe of Cuch
tW.r removing the Prefentments W Ce-orar, u w^s dcbared >f^ th^^^^^^^ ^^^ ^^^^^^^ ^^^^^.^ ^^„^
Si-ra^^cL'irn^^n^eexp^un^:^^
, The Defendant was prefented at a Leet, for digging C^^^'^;'-^";'- J^I^^.^;;",.
becaufe it is not Ad Co"^'^';"^^ °*;f d<3,^^^ ,L Damage of the Lord /f.„c. ,.t for
a Leet cannot amerce for any Thing ^0"^^°; ^-^^^ \^ &^ 19 Car. 2.- P"/-'-':'.
and the Prefentment was quadi d. Kaym. lOo. nm y or for para-
T> A ' r"" fp cular Ua-
^.BycwoJufticesCourtLeetmaybyX^;^.^^^
ingC«« though not ^^S^^^^^ ' 5,"^P" make a JBy-Law as to Com-S2giy.
only with the Peace, and ^\.^^^;^fj'^,r,fd the Court Baron ano-
moJs, then the Leet may make one By-Law an^^ ^^^^^^^
ther,'and it -"^J. ^.^f^T thef mul b u.^rto^
Cafes put on the other Side, ^ney mu ^^^ ^^^.^j^^^.
Leet and Court Baron are held together. ^^^^^Pf' Taw was good.
Smith,
'7 M
33- I"
^94- Court [Leet]
33. In Trelpafs lor breaking his Houfe and caking away a Siher Cud
the DsiQndmtjnftifiedjvr a Fine of 5 1. wipofed by the Steward of the Lee\
for contemptioiis I'f' ordi fpoke/i to the Steward in the Court Lcet Ipfo tunc
judicialuerfedente, (viz. ) that theHoufe in which the Court was held
was the Houfe ot the Mayor of Sudbury, and that John Skinner who'
then and there being Prefent, has more Right to be there than the
Steward, and if he was Mayor ot Sudbury he could not fuffer the Cocrr
¥ H II rT ^^^ ^l^'^^'f I'^l',^.^ ^^^^ the faid Houfe was the
Town-Hall of that Borough, and that Skinner was then Mavor of the
faid Borough, and the PlaintiiF a Free Eurgefs thereof, and that he
quiete & pacifice fpoke the Words. Upon a Demurrer the PlainciiTh id
Judgment per tot Cur. For no fuch Fine ought to be impofed for the
Brookl "^ '^°* "^' ^'''^' ^^ ^'''- ^- ^- ^- ^^'""g'O" V.
34. Leet cannot amerce for a private Nufance, but may for a ouh
lick Per Cur. iz Mod. 598. Mich. 13 W. I Gwin vVThornbo"
rough.
(Y) Collateral Juthoritj of the Leet.
1. T jf JJ Man be riding tfjei'e, where a Leet is, t\)t Steward, for want
!_ ot others^ may compel him to be fworn, 7 %), 6. it,.
fey Newton J. IHid. pi. 24. cites 2 H -j. i ? . S. P bv Fineuv Ha o,,„ r c
there. Br. Leer. pi. ^o. citL 5 H. 7- 4- Faiix ^ For i.Ts fo'he £;;^A Wge " ' '"""^"^
Br. Leet,
pi 14. cites
s. C & S P
pr^ckes p 2' If «J'^'BnaiffOft6eC0Utt, or OtljeC officer, win not make a
6C.I . ^^"5^ to enquire $C. upon the Command of the Steward, or will not
Br. Debt, pertorm his Duty, Ijemay be fined. 7 % 6. 12. ft,
pl. 85 cites
S. C. and that the Lord brought Aftion of Debt, atid the Defetidant demurred Qu^re . .
rcLftheLteXrf ""^ and affirmed.— See tu. A.ercen,ent (U) pl. t. S. ^and'cY) pl. 2.
t?e Nottr'^ ^"^^^ ^^^ ""^y ^^ commanded to do it upon a Pain, anti If llC HM&
the Notes. j^Qj J, f^ jjg j^^^jj (gj.^ ^jj^ ^^^^^ ^ ^ ^v^^ ^ , anu u UE qoes
pMcSr'u tl^^^^^^^^r'"' ^^"^^keaJ^lfePrefentment, and tDtg 10 found falfe
S. c. and ^y "-^^ S''^"^ ^"q^eft, pet t!)e Petit 12 Ihall not be amerced, o ft 6
torn to a-
merce them being al egd, the whole Court held it no Cuftom but Extortion; For the Verdift of
one 12 IS interided m Law to be as good as the Verdift of another ,2 but had the Cuflom been oi
Concealments it had been good. --_ Fttzh. Cuftom, pl ,. S. C. and fuch Cuftom is agair^ftCommon
Sfm^ytinCutom."^'^"" '''"' '' '''' conceal any Th:ng which they ou.ht fo preSrTTd
^'"'^'^ '4 ™,S,'^^ '°^* ,^^ ^:. ^^-^^^^^^ <^<^««'» ^»i»» ^"^^ ouBDt not to be
eered and
mitigated
kich.H ^^'" ^um, ,10 log. 20 0. ot otljec ccrtam ^um,
jac. s a- anUTCeO m general, and after arteered to a certain SumrTot'thrA
-AnAmerce-mercement ought to be certain, and It OU0ljt after to be atfeered and
Court [Leet.] 59?"
midgaied by ocheTs. DObattlS KepOCtSi 1 7 3 • betlUCCtl » //^o« and Har. „ent in a
, 7 ' ' Court Leet
dtnghaw. ,„^ 3„ Of.
fence prefcnred need not be affeev'd, and Hob, 129. was denied by HoIt^Ch. J. Show. 62. M,ch. i W.
& M. in Gale of Matthews v. Gary. See tit. Amercement. CE)andCG)
6. A Steward in a Leet may afjefs a Fine en a I'lthingman who will not Br- Ley-
Prefcnt, and it the Lord brings Debt thereot the Detendant cannot ^^%^^v^ '
wage his Law ; becaufe the Leet is a Court of Record. Br. Leet pi. s. C.accord-
S^.^cices 10 H. 6. 7. s.^c cited
and agreed per tot. Cur. 8 Rep. 3S. b.
7 A Common Perfon who has a Leefc may fell the Bijfrefs as the
King may ; For the Court is the King's though a Common Ferlon
has it. Br. Leet pi. 20. cites 3 H. 7. 4. by Fairiax J.
8 If any Comempt or Dillurbance to the Court be committed in any
Court of Record, the Judges may impofe a realonable Fme on theUt-
fenders, and ^' Leet i a Curt of Record, '^"^ ^^^ ^f\'';^,'' ^/^^l-'^''!^
and therefore may mpofe a reafonabk f"^^/^fJ|' Z^^^^.^/^f f ,*°\f
Offence done to the Court before him. As it the Baihft ot a Leet re-
fufoto execute his Office the Steward Ihall mpofe a reafonable Fme
upon him. Refolv'd per tot; Gur. 8 Rep. 38- b. Trm. 30 El.z. C. B.
"^fli'a^tisbehaveshunfelfin the Uet ^' VrV^TTx 7^Sch
the Steward may commit him, per Popham Ch J. Ow. 117. P<ilch.
57 Eliz,. in Cafe of the Earle ot Lmcoln v, i'Uiier. .
^\o The Defendant ga.e the Y\-^n.r:irs Steward the L.e ,^,«^ ,« ^, Cro^E^ 58..
Leet for which the Steward fet a Fine ot 20 s. upon him. The Hain- ^^^ .j, ^^e
x^r^ lor wiuL-u Tuftices agreed upon Debate Court held,
tiff brought Debt tor die line A itne J b .^ey are words that for
between them, the A^'o" ^^^"'^•""'"f^^' , f^, ^^ the Tudge fuch Fines
of Contempt in a Court of Jult.ce to a Judge, tor which ^^e Judge ^^^^^.^ ^^
might Fine him. Mo. 470. pi. 47°. Mich. 39 &• 4° ^^iz. l.m ^^e steward
coin (Earl of ) V. Fifher. Deb^^l-
Pre^riptio„a,|cd,-d -^^^^^c^ ?nes. or to^^e^b an^ Aa^ ^^Z^^^^^
^ft«w:rd?'chfn?ri;rs%n^ and the PlaLtiff had Judgment to recover.
„ The Steward in the Leet may take Recognizances for keeping the Br. Lc^^^^
Peace. 4 Inll. 263, 264. cap. 54- , n^ bv which ^- ^' ^- "''
»-, uZ. ^aror Cworn to inquire tor the King Ve arrejua, ^7 w"'^'
for Su MurLaL 10 the Le«, Uc. .98- Trm. 3 Car. Anon.
(V. 2) Where
rg6 Court [Leet.]
(Y. a) Where the Court is not held;, what Is to
be dona,
I. rnp HE Portreeve of Yeovil in the County of Somerfet leas ttfiially
X ekifed to continue in his Office for a rear, and at ^ the End of^ the
Tear a new one to be chofen and [worn in the Leet by the Steward of Sir
Edward Phillips, Lord of the Manor, which on fome Difcord with
Sir Edward w^i rejtifed to be done, and thcrcnpoa Procei's was awarded
out of B. R. commanding the Oath to be tendered to the Portreeve ; For
B. R. is the Supreme Court which ought to do Juftice to all the King's
Subjeas. 2 Roll Rep. 82. Fafch. 17 Jac. B. R. the Portreeve of
Yeovill's Cafe.
(Y. 3) Prefentments.
How they muft be.
J. T^Refentments in Leets ought to be certain, andj})ew at what Place
\^ the Nufance was -made, and to fay Infra furifdiifionein hujus Cu-
ricf ; for it is the Declaration of the King, which ought to be good
to every common Intent, as it is faid elfevvhere ; And it it be a Nu-
fance to other Land they ought to fay certainly where the Nufance is
&c. and where the Land lies, to which the Nufance is done. Br. Leet,
pi. 33. cites 5 H. 7. 3.
2. In every Prefentment of a Nufance in a Court Leet it mull be
mentioned to be Jd Nocimcntum ligeorum Dcmint Regis; and the aver-
ring in Aftion of Debt brought for the Pain alfeiredjthat it was^i/
Commune Nocumentum is not fufficient ; For it muft be in the Preient-
ment which is the Charge, and the omitting it is a Fault incurable.
Cro. J. 382. pi. 10. Mich. 13 Jac. B. R in Cafe of Prat v. Stearn.
3. Jurato'res pro Domino Rege & Domino Manerii & Tenentibus
prelenced the Defendant ior eretimg a Glafs-Houfe &c. ad magnum No-
cumentum; it was qualhed; For though it is good for the King and
the Lord of the Manor Leets being granted to the Lords as de-
rived out oi the Torn, and as for Tenentibus, it is only Surplufage,
yet this Prefentment is ill, becaufe it is not faid Ad Commune Nocumen-
tum. I Vent. 26. Pafch. 21 Car. 2. B. R. Anon.
2 Saund. 7. The Defendant was prefented and fined in a Leet for refufing the
29;. Da- Office oi a Conltable ; It was moved to qua(h it, becaufe it exprefs'd the
s'"c thl^' ^"'""^ ^° ^^ ^"'''^ '"^''^ """'" Menfem Santtt Michaelis, viz. 12 November,
Prefentment which is above a Month after Michaelmas, and it is necelFary to fet
was qu<ffhed down the precife Day, for it may elfe be on a Sunday, and yet within
per tot. Cur. ^ Month alter Michaelmas, and for this Caufe it was qualhed. Vent,
— - P« 107. Hill. 22 & 23 Car. 2. B. R. Dacon's Caie.
751 pi. 18. *^ ' ^
D.ikin S. C. and for that Reafon the Pi-erenttncnt was quafh'd ; And the Prefentment was alfo Tent'
iS Mov. per Adprnamentum prEdidtum, whereas no Adjornment was mentiou'd before to be entred,
a;.d tills was alio held ill.
{Y.4)
Court Leet. ^^97
(Y. 4) Prcfeiitmeats in Leets, and Things
done there.
Pleadings in General.
r. T^'^'OTA, that Prefentments in Leets, -xlsicb touch Franks
J_^ tencnunt^ or bind the h'ranckife^ (hall be t raver fable ^ but con-
trary of other Prefentmentmencs in Leets. Er. Leet pi. 27. cites
45 E- 3. 5-
2. Trefpafs upon the CafCj the Plaintiff prefcribed to have Leet in D.
ivith all ihs Profits thereof'^ and that the Defendant bad d:Jiurb\i the
Steward of the Plaintiff to hold Leet there &c. and the Defendant /^/iy,
that the Plaintiff had Leet there femcl in Jnno, ScU. fnch a Day ajter
Eafler^ and that the Defendant has Leet there femel in Anno, that is to
iliy^fuch a Day ajter Mtcbaclmas^ and that the Plaintiff gave Warning
to the Defendant 1$ Days before the Leet, and that his Mailtff fljoiild be
ivith him if he would, and that be Jhoitld have the Alotety of the Profits
of the Leet of the Plaintiff , and if he held his Leet in other Manner, that
the Defendant had tifed to difiiirb &c. and that the Plaintiff did not give
Warning by ij Days, by which he diflurb'd him to hold the Leet, Frout ei
bene licuit. Per Prifot the Defendant ought to Traverfe Ablque hoc,
chat he and his Predecelibrs ought to have the entire Profits Prouc,
and by him the PlaintiiTmay maintain, that he and his Predecelibrs
have had Leet by reafbnable Warning of three or four Days, Abfque
hoc, that it has been ufual to Warn by 15 JDays prout &c. by which
Laicon faid as above, Abfque hoc, that the PJaintiff has had the en-
lire Profits of the Leet, and Abfque hoc, that he has ufed co hold
the Leet without fpecial Warning in the Manner as we aUcge. Choke
faid, the Warning is not alleg'd by us. Moyle faid, therefore it
feems that the lecond Traverfe is void, et adjoraatur. Br. Tra-
verfe per &c. pi. 158. cites 38 H. 6. 16.
3. If Plea be removed into B. R. of which they cannot hold Plea as
Tormedon &c. yet there theyfhall bold Plea therein, as the Court where
it ought to be hroughe flmild do, and Ihall malce Procefs per Grand Cape
«8c petit Cape, and otherwife, as the firfl Court ought to do. And fo
if a Thing before Juffices of Peace be removed before them. Per
Fineux Ch. J. Er. J urifdiftion, pi. 46. cites 14 H. 7. 14.
4. A Prefentment in the Leet or Tourn, after the Day of the Br, Tiavers
Prefentnient, binds the Party for ever, and is not traverfealk but inv^^^cyl.
Cafes that touch ones Freehold, as that one ought to cleanfc the Highway^^'^: '^'^^^
Sc. ratione 'feniira fice ; therefore the Courl'e is to remove fuch Pre-Br. Prefenr-
fentments into the King's Bench by -s? Certiorari, where he may Tra- meat pi. ij,
verfe them. Finch's Law 386. 8vo. cites 5 H. 7. 3. cite!, s. C—
D. 13. b. p!.
64. Trin. 18 H. 8. S. P. by Shelly, Quod Baldwin concefTit. But Fitzherbert faid, that Biitton,
who is good Authority, fays, that every Prefentment is travcrfable which is prefented in a Leer,
and alio in the Tourn of the Sheril}', out of which Leets were origirially deriv'd &c. S. C. as
to Fitzheibcrt's Opinion cited Arg. 3 Mod. 198. All Prefentments may be travers'd either by
removing them into B. R or in an Action. In Trefpafs again(f the Bailiff you can't traverfe a
Prefentment, but in a Replevin it may be done, and it will no: be fufEcicnt to fiy, Quod prefcnt.it*
fuit, but the Faft muil be fct forth, and this A(5iion is to try the Right, but the orher only to re-
cover Damages. Trin. 5 Ann. in Cafe of Brook v. Hufller. 1 6alk 56, ii. C. but S. P. docs
not appear.- -n Mod. 76. S. C. but S. P. does not appear.
5. A Rekafe of all Demands doth not difcharge a Man of his Suit to a
j^eet by nafon of his Rtftdency, becaufe a Leec is the King's Court to
7 N v.hich
^98
Court Leet.
which every li-ge Suh]ect is to come and perform his Ailegience to
him. And alfo becaufeSuit of Court is infeperably incident to a Court
Leet, which cannot be lelealed, Brownl. i86. Trin. 4 Jac. in Cafe
of Tott V. Ingram.
6. In Pleading the holding a Cotirti^ it mufl: fay the Place ivbere was
Part of the Manor, or holden of it ax. leaft. Hob. 56. Tiin. 13 Jac.
in Cafe of Fofter v. Jackfon.
t2 Mod. 4. 7. Upon a Certiorari to remove a Prefenrment at a Leet for a Nu-
Pafoh 5 W. f^Pi^g . Exception was taken, that the Leet not being of Common
s'c ithad Right, but taken out of the Tourn, and the Toarn is of Common
been a good Right, therefore becaufe it is not Ihewn how, nor by what Right this
Objcftion Court Was held, whether by Patent or PrefcriptioUj it is not good ; but
the not jj^g Court faid, the Precedents were all fo, and over ruled the Excep-
SuSy, tion. I Salk. 200. pi. 2, The King againil Gilbert.
i.fconftanc
Pradtice had not been cthervvife.
8. In Debt for an Amercement in a Court for not doing Suit, an
Exception was taken that the Court being uncertain when ic will be
held, (that is where the Lord may hold ic when he pleafes,) a partictl'
lar and convenient Notice ought to be given, when and where the
Court is to be held, and cited 32. or 22 E. 4. 27. b. 28. a. 3 Cro.
353. 555, 2S(>- and that a general 't^ouce in the Church is not Notice
to incur a Forfeiture, unlels a particular Cuftom tor ir. It was an-
fwered that, it is found that due Notice was given, and this the Judge
of Affife is fuppofed upon the Evidence to dire£l the Jury. But Holt
Ch. J. laid, we can't Judge of the Notice, becaufe you ought to have
^ew'd particularly, that he was fummon'd to the Court at fuch Day and
Place to be held. Per Powell, J. To take Advantage of a Forfeiture
Notice Ihould be Perfonal, unlefs a particular Cujiom to the contrary. In
ancient Leets, perfonal Notice perhaps is not Necellary; but Notice in
Church and Market may be well. IJut otherwife where it is 7J0t an an-
cient Leet. Adjurnatur. 11 Mod. 76. Biook v. Huftler.
See more as to the Jurifdiftion &c. of Court Leecs Kitch 16.
&c. — 4 Inft. 261. cap. 54. — Prynn's Animadv. on 4 Inlt. 189,
180. — See Tit. Amercements.
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