A TABLE OF THE Principal Matters Contained in this BOOK Abatement of a Writ IN Account the Writ abated for part and for part the Plaintiff had Judgment 39 In Action upon the Case and why 55 Account Of the King against a Stranger 32 Actio personalis moritur cum persona Trover is an Action personal for it is grounded upon a personal wrong and ariseth upon a disceit and wrong and if there was no Conversion then an Action of Detinue should lye 44 Where one takes my Horse and dyes I shall not charge his Executor 46 If a Smith pricks my Horse my Executors shall not have an Action for it ibid. Action upon the Case Assumpsit Where it is requisite for the party in an Action upon the Case to express the Assumpsit with the Request and where not 2 If one promise in consideration c. to assign to J. S. the Lease of a Stranger for this an Action will lye Adjudged 2 If A. Prisoner at the Suit of B. escapes and being at liberty promiseth to B. that if he will permit him to be at large c. that he will pay to him 10 l. for this no Action will lye Adj. 3 A Promise against a Promise will maintain an Action upon the Case ibid. By an Executor to a Creditor upon forbearance to pay his Debt makes him lyable to pay it of his own Goods Adj. 1. ibid. Will lye against the Executors of A. upon his Promise at full Age to save one harmless who was bound with him for his Debt when he was an Infant 5 Will not lye against an Executor if he promises to pay a Debt and hath not Assets ibid. Nor is an Heir subject to an Action upon such a promise if he hath nothing by Descent 6 An intire Assumpsit cannot be severed by Action ibid. To avoid Controversies and Suits is a good and sufficient Consideration to ground an Assumpsit upon 31 The Defendant exhibited a Bill to the Justices of Peace complaining that the Plaintiff is a disquieter of his Neighbours c. and served a Process upon J. S. on a Sunday and the Justices to whom it was exhibited awarded Process against the Plaintiff to find Suerties for his good Behaviour by virtue of which he was taken and imprisoned For this an Action of the Case will not lye 35 Action upon the Case for Words What words are actionable and what not 24 54 121 181 Action upon the Statute Upon 5 Eliz. of Apprentices holden clearly That if one hath been an Apprentice for seven years at any Trade mentioned within that Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it 9 Action upon the Statute of Hue and Cry. 18 Upon the Statute of 5 Eliz. of Perjury 25 Upon the Statute of 5 Eliz. of Usury 43 Upon the Statute of Hue and Cry 51 Upon the Statute of 23 Eliz. of Recusancy 54 Upon the Statute 4 Eliz. of Perjury 105 Upon the Statute of 1 Eliz. of Leases made by Bishops 61 Upon the Statute of Hue and Cry 85 Upon the Statute 5 E. 6. for buying of Woolls 103 Upon the Statute of 31 H. 8. of Partition 106 Upon the Statute of Hue and Cry 191 Alien Purchaser 82. suffers a Common Recovery 84 Amendment If a Writ of Error be brought and delivered to the Chief Justice of the Common Pleas and allowed by him under his hand the Record cannot afterwards be amended 50 Day given by the Court to amend the Count in Disceit 123 Of a Writ of Quare Impedit openly in Court by a Clerk of the Chancery 12 Amercement Of the Sheriff for making a Retorn contrary and repugnant in it self 57 Appeal If Robbery may be brought 20 years after the Robbery committed and the party robbed shall not be bound to bring it within a year and a day 16 If the Defendant be attainted by Verdict in an Appeal of Robbery the fresh Suit shall be inquired of but otherwise if he be attainted by Outlary 48 Assignment Of Debts to the King. 80 No Bonds shall be assigned to the Queen but such as are made for payment of Mony. 9 Attaint Where the King is sole party against the Subject and the Jury find for the King no Attaint lyeth 46 But where the Suit is tam pro Domino Rege quam pro seipso contrary ibid. Attornment What shall be a good Attornment what not 23 Surrender of a Copyhold Reversion with the Rent to the use of a Stranger and his admittance thereupon are in the nature and so amount to an Attornment 25 If A. seized of a Manor Lease the same for years rendring Rent with Clause of Re-entry and afterwards levy a Fine sur Cognizance de droit c. to the use of himself and his Heirs and the Rent being demanded is behind he cannot re-enter nor avow for the Rent but is without remedy for the same without Attornment 34 If A. seized of a Rent in fee grants the same by Fine to B. to the use of C. there needs no Attornment to the Conusee because all the right of the Rent is out of the Conusor and transferred to Cestuy que use instantly 50 Attornment doth not give a right but is only a consent 129 Bargain and Sale. IF the Bargainee levies a Fine and within six months the Deed be inrolled the Land shall pass by the Fine 4 Bayl. If a Scire Facias issue against them before a Capias issue against the Principal and they be taken they shall be put to their Writ of Error 36 Bills The King may exhibit one Bill in the Exchequer for several causes arising within several Counties and it shall be good 26 Carrier SEnt with a Letter by one to a Merchant for Merchandizes to send them to him receiving a sum of Mony the Merchant sent them by the Carrier without mony the Buyer shall not be charged for the mony the Bargain being conditional and it was the Merchants folly to trust the Carrier with those Wares 7 Chancery May compell a Tenant to Attorn 8. 184. Common and Commoner A Commoner cannot kill Conies which destroy his Common 7 In what Case Common appurtenant by Prescription sans number is improveable by the Lord of the Waste 41 Condition Broken by Lessee for years 5 Destroyed in part good in part 27 Divided ibid. Grantee of parcel of the Reversion is an Assignee within 32 H. 8. of Conditions 28 Apportioned ibid. Suspended ibid. Conditions by Act in Law divided not by Act of the Party ibid. Statute of 32 H. 8. of Conditions taken by Equity 29 Condition suspended in part is suspended in all ibid. Shall be taken favourable for him who is to perform it 70 Consultation Was granted because the Prohibition was general where it ought to have been special 16 Conversion In Trover is Traversable and therefore ought to be certainly alledged 45 Conveyance By the Heir upon Intrusion 60 Copyholder Baron Surrenders Femes
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon
the whole matter is not any sufficient demand and so Wray Chief Iustice said CCLXXVIII Trin. 29 Eliz. In the Common Pleas. ACtion upon the Case was brought for these words Thou wouldst have stoln my Cloak if J.S. had not come in the way and thou art a Thief and I will prove it After Verdict it was found for the Plaintiff It was objected in Arrest of Iudgment That these words were not actionable For the first words Thou wouldst have stoln my Cloak c. do not by Law give any cause of Action and when the words subsequent Thou art a Thief are depending apon the said former words and to be construed as spoken in respect of them and upon that intent But the Opinion of the whole Court was to the contrary And that the said latter words should be taken and construed in abstracto by themselves as in gross and not as dependant upon the former words and afterwards Iudgment was given that the Plaintiff should recover Mich. 26 Eliz. In the Common Pleas. CCLXXIX Hungerford and Watts Case HUngerford brought an Action upon the Case againts Watts Words for that the Defendant had said That the Plaintiff had caused the Defendant to be arrested with forged Writs It was objected That the words were not actionable for it might be that the Writs were forged by strangers without the privity of the Plaintiff and that the Plaintiff not knowing them to be forged procured the Arrest But the Opinion of the Court was That the words were actionable for the word Caused extends as well to the Forgery as to the Arrest and so amounts to the slander of Forgery CCLXXX Mich. 19 Eliz. In the Common Pleas. Costs IN an Action upon an Escape the Plaintiff is Nonsuited It was holden that the Defendant should not have Costs Note The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff Notwithstanding this Action is quodam modo an Action upon the Statute 1. by Equity of the Statute of West 2. cap. 11. which giveth it expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries 169 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of Westm 2. an Action upon the Case lay for an Escape and so by Dyer Manwood and Mounson Costs are not given in this Case And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs for it is not a personal wrong for the Writ is quod disseisivit which is a real wrong Mich. 29 Eliz. In the Common Pleas. CCLXXXI Hollingshed and Kings Case HOllingshed brought Debt against King and declared That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London Vpon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he had brought this Action and upon the Declaration the Defendant did demur in Law because that the Plaintiff in the setting forth of the Recognizance had not alledged That the Mayor of London had authority by Prescription or Grant to take Recognizances and if he had not then is the Recognizance taken coram non Judice and so void and as to the Statute of Westm 2. cap. 45. the same cannot extend to Recognizances taken in London which see by the words De his quae recordata sunt coram Cancellario Domini Regis ejus Justiciariis qui recordum habent in rotulis eorum irrotulantur c. and also at the time of the making of that Statute the City of London had not any Sheriffs but only Bayliffs And the Statute ordains That upon Recognizance Process shall go to the Sheriffs c. therefore not to them But the whole Court was clear to the contrary for we well know that they of London have a Court of Record and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the Iurisdiction of that Court and which arise by reason of the matters there depending Another matter was Objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera therefore it was not well taken But as to that Anderson Chief Iustice said Admit that the Recognizance was not well taken yet because that in a Scire Facias sued upon it the Defendant shall not take any advantage he shall be now bound by that admittance As if one sues a Scire Facias as upon a Recognizance whereas in truth there is not any such Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him the same is not void but voidable And Fleetwood Recorder of London alledged many Cases to prove the Courts of the King ought to take notice that those of London have a Court of Record for if a Quo Warranto issueth to the Iustices in Eyre it doth not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And at the last after many Motions the better Opinion of the Court was That the Plaintiff should recover Periam aliquantum haesitavit And it was said by Anderson and in a manner agreed by them all That if dependant this Demurrer here the Iudgment in London upon the Scire Facias is reversed yet the Court here shall proceed and take no notice of the reversal CCLXXXII Mich. 20 Eliz. In the Common Pleas. A Man seized of a Barn in which the Tythes of certain Lands have used to be inned let the same by these words Demises .. Demise and to Farm-let the Barn with all Tythes belonging to the same It was holden That by that Demise the Tythes did not pass but Tythes which had usually been demised with the Barn passed by such words as by the Demise of an House Cum omnibus terris eidem pertinent ' all the Lands pass which have used to be demised with the said House for the demising usually of the Tythes with the Barn makes the Tythes belonging to the Barn but not the Inning Mich. 30 Eliz. In the Common Pleas. CCLXXXII Haltons Case Recognisance Inrollment A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery and before the same was Inrolled the Conusee dyed the point was whether at the request of the Executors
that that he was dispunishable at the common Law that was the folly of the Lessor and although it was so at the common Law yet it is otherwise at this day for when the Statute says That the Lessor shall recover damages for the Waste that the property of the Trees is in him As the Statute of Merton cap. 4. enacts That if the Lessor do approve part of the Waste having sufficient for the Commoners and they notwithstanding that bring an Assize they shall be barred in that Case and the Lord may have an Action of Trespass against them if they break the Hedges by force of that Statute as it hath been adjudged for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners and so in this case But note That by the Statute of Marlbridge the Lessor shall recover damages for the Houses c. which are wasted c. and yet a man cannot infer thereupon that therefore the Lessee hath no interest nor property in them and such interest hath he in the Trees notwithstanding the words of the Statute which is contrary to the meaning as it seems and therefore Quaere if there be any difference betwixt them and what shall be meant by this word Property But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined Anderson Chief Iustice The Lessor hath no greater property in the Trees than the Commoner hath in the Soil Walmsley 2 H. 7. 14. 10 H. 7. 2. The Lessor may give leave to the Lessee to cut the Trees and the same shall be a good Plea in an Action of Waste and the reason of both the Books is because the property of them is in the Lessor And to this purpose the difference is taken in 2 H. 7. betwixt Gravel and Trees 42 E. 3. If a Prior licence the Lessee to cut Trees the same shall discharge him in a Writ of Waste brought by the Successor but if the Lessee cutteth down the Trees and then the Prior doth release unto him the same shall not bar the Successor and so is 21 H. 6. And he cited Culpeppers Case 2 Eliz. and 44 E. 3. Statham and 40 Ass 22. to prove that the Lessor shall have the Windfalls If a Stranger cutteth down Trees and the Lessee bringeth an Action of Trespass he shall recover but only to his loss viz. for lopping and topping As to that which was said That if the Lessee cut down Trees that the Lessor cannot take them away that is true for that there is a contract of the Law that if the Leslee doth cut them down that he shall have the Trees and the Lessor have treble damages for them Also he said That the Trees are no part of the thing demised but are as Servants and shall be for Reparations As if one hath a Piscary in the Land of another man the Land adjoyning is as it were a Servant viz. to dry the Nets So if one hath Conduit Pipes lying in the Land of another he may dig the Land to mend the Pipes and yet he hath no Interest nor Freehold To that which was said That by the excepting of the Trees upon the Land the Land upon which they stood is excepted It is true as a Servant to the Trees for their nourishment but not otherwise For if the Lessor selleth the Trees he afterwards shall not meddle with the Land but it will be wholly in the Lessor quia â—uâ—â—ata causa tollitur effectus and if the Lessee tyeth a Horse upon the Land where the Trees stood the Lessor may distrain the same for his Rent and avow as upon Land within his distress and fee and holden of him And he said that the Lessor might grant the Trees but so cannot the Lessee and therefore he said that the property is in the Lessor and not in the Lessee and if the Lessor granteth them they pass without Attornment but contrary if the Lessor had but a Reversion in them and if the Lessor cutteth them down the Rent shall not be appâ—â—â—ioned and therefore they are no part of the thing demised For â— E. 7. Temps E. 1. Fitz. Waste in two or three places it is holden That if the Waste be done Sparsim in a Close or Ground the Lessor shall recover the whole then admit that the Trees are cut down If the Exception shall be good how shall the thing wasted be recovered and against whom quod nota Anderson Chief Iustice did conceive that the Exception was void and that the Action was well brought and he said It was a knavish and a foolish demise and if it should be good many mischiefs would follow which he would not remember Windham was of the same Opinion and he said That the Lessor might have accepted them and so take from the Lessee his Fire-boot Plough-boot c. which shall go with the Land. Periam Iustice agreed That as to such a special property none can have it but such a one who hath the Land and therefore the Exception of the Wood by the Lessee was void But as to the other things perhaps if they were Apple-trees or other Fruit-trees the Exception had been good Also although the Trees were not let directly yet they are after a sort by a mean annexed to the Land. And if the Action were brought against him who made the Exception he cannot plead that they were let unto him and therefore he doubted of the Exception Rhodes Iustice also said That he doubted of the Exception and he said That the Book of 44 E. 3. is that the Lessee should have the Windfalls and did not much regard the Opinion of Statham But Anderson was of Opinion that the Lessor should have the Windfalls Note The Case was not at this time adjudged but adjourned CCCLXIII Hil. 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years and afterwards he surrendred the Reversion with the Rent to the use of a Stranger who was admitted accordingly It was moved If here there needed any Attornment either to settle the Reversion or to create a Privity It was the Opinion of Rhodes and Windham Iustices That the Surrender and Admittance ut supra are in the nature of an Attornment or at the least do supply the want of it Mich. 29 Eliz. In the Common Pleas. CCCLXIV Bell and Langleys Case IN Trespass the Case was thus That A. was Lord of a Manor of which B. held Black Acre by Copy of Court-Roll in Fee according to the Custom A. made a Feoffment of the said Black Acre to a Stranger B. dyed The point was If now the customary interest be determined against the Heir of B. For it was moved because that the Feoffee had not any Court the Heir of B. could not be admitted nor the death of his Ancestor presented because but one Copyholder