the Land was entailed by the second Fine But that Exception was disallowed by the whole Court and a difference put by Anderson Where a man pleads the grant of an Advowson in gross by Tenant in tail in such case the life of the Tenant in tail ought to be averred for by his death the grant ceaseth But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant in such case such averment is not necessary So accordingly Smith Stapletons Case 15 Eliz. 431. And here it was moved if in as much as by the first Fine an estate for life was rendred to the Wife and by the second Fine in which she did not joyn an estate tail was limited unto her and now when the Husband dieth if he shall be remitted to her estate for life Co. 1 Inst 357. 2 Cro. 489. which Windham granted for that was her lawful estate and the second estate tortious But by Rhodes Periam and Anderson the Wife is at liberty to make her election which of the two estates she will have And as to the Writ to the Bishop for the Queen the Court was clear of opinion that it ought not to be granted upon this matter But all the question was if Regina inconsulta the Court would or ought to proceed And it was holden clearly by the whole Court that the tenure alledged modo forma could not be a tenure in chief for it is said that the Land was holden of the King as of the Castle of Dover in Capite LXXXVI Mich. 29 30 Eliz. In Communi Banco Intr. Pasc 28 Eliz. Rot. 602. Wast â— Cro. 40. 4â— WAst was brought by F. and his Wife agaist Pepy and counted that the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded that the said Feoffment was unto the use of himself and his Heirs in Fee c. without that that it was to the uses in the Count Vpon which they were at issue And it was found by verdict that the said Feoffment was unto the uses contained in the Count But the Iury further found that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast that is to say without impeachment of Wast And it was moved if upon this verdict the Plaintiff shall have Iudgment And Anderson and Rhodes Iustices he shall for the matter in issue is found for the Plaintiff and that is the Feoffment to the uses contained in the Count and this impunity of Wast is a forrein matter not within the charge of the Iury and therefore the traverse of it but matter of surplusage As if I plead the Feoffment of I. S. To which the other pleads that he did not enfeoff and the Iury find a conditional Feoffment the Court shall not respect the finding of the condition for it was not in issue and no advantage shall ever be had of such a liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unques seisi que Dower the Tenant pleaded that before the coverture of the Demandant one A. was seised of the Lands of which Dower is demanded in tail who made a Feoffment to a stranger and took the Demandant to Wife and took back an estate in Fee and died seised having issue inheritable Now although upon the truth of the matter she is not dowable de jure yet when the parties are at issue upon a point certain Hob. 53. Owen 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment But if the Defendant had pleaded it in bar he might have foreclosed the Demandant of her Dower Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how the Tenant who made default was but Tenant for life of the Lands in demand the reversion in Fee to himself and prayed to be received The Demandant did counter-plead the receit saying the Defendant had fee upon which issue was joyned And it was found that neither the tenant nor he which prayed to be received had any thing in the Land In that case the Court did not regard the matter which was superfluous in the verdict for they were at issue upon a point certain that is whether the Tenant was seised in Fee for it was confessed of both sides that he had an estate for life and with that matter the Iury was not charged and they are not to enquire of it and so it was found against the Demandant for which cause the Receit was granted 7 H 6. 20. The parties were at issue upon a dying seised which is found by verdict but the Iury further find that the other party made continual claim this continual claim shall not be regarded in the point of Iudgment because it was pleaded in avoidance of the descent Windh Iustice contrary Forasmuch as it appeareth unto us upon the verdict that the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue No advantage of impunity for Wast shall be taken where the same is not pleaded though found by verdict Judgment Hob. 53. Owen 91. The Plaintiff counteth of a bailment by his own hand the Defendant pleadeth that he doth not detain c. the Iury find the Detinue but upon a bailment by another hand In this case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Rhodes Periam and Anderson in the principal case were of opinion Iudgment should be given for the Plaintiff for in no case the party shall have advantage of such a Liberty of impunity of Wast if he do not plead it And the Iurors are not to meddle with any matter which is not in issue And if it be but matter of surplusage it is to no purpose And afterwards Iudgment was given for the Plaintiff LXXXVII Bracebridge and Baskerviles Case Mich. 29 30 Eliz. In Communi Banco AN Action of Debt is brought against three Executors Debt against Executors one of them pleads in Bar a Recovery against himself in the Kings Bench The other two plead plene administr Against the first plea the Plaintiff did aver covin and upon the second plea they are at issue The first issue is found for the Plaintiff and as to the other plea it was found that the Defendants have in their hands thirty pounds of the goods of their Testator not administred Note the debt in demand was one hundred pounds upon which the Plaintiff had Iudgment to recover the goods of the Testator and thereupon had execution Now the Plaintiff brought a Scire facias against the said Executors supposing that many other goods of the Testator have come unto their
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
Curiam the same is no offence in the Court but it was an ill act of the Master of the Rolls For we oftentimes have persons here upon Habeas Corpus who are also arrested by Process out of the Exchequer or of the Common Pleas but we will not discharge them before they have found Sureties for their appearance c. and so the said Courts use to do reciprocally and we cannot punish the Sheriff for the Hebas Corpus was first returnable before the Latitat but the party may have an action against the Sheriff but we will speak with the Master of the Rolls c. and afterwards Baill was put in But afterwards another Exception was taken to the Return scil a custodia nostra exoneratus fuit which might be intended as to the Cause in the Chancery only and not for the Cause here for he hath not alledged that he hath not alledged That he was committed to any other in custody and for that cause day was given to the Sheriff to amend his Return CCII. Upton and Wells Case Trin. 31. Eliz. In the Kings Bench. IN an Ejectione firmae by Upton against Wells Iudgment was given for the Plaintiff and upon the habere facias possessionem The Sheriff retuned that in the Execution of the said Writ he took the Plaintiff with him and came to the house recovered and removed thereout a woman and two children which were all the persons which upon diligent search he could find in the said house and delivered to the Plaintiff peaceable possession to his thinking and afterwards departed and immediately after three other persons which were secretly lodged in the said house expulsed the Plaintiff again 2 Len. 12 13. Latch 165. upon notice of which he returned again to the said house to put the Plaintiff in full possession but the other did resist him so as without peril of his life and of them that were with him in company he could not do it And upon this Return the Court awarded a new Writ of execution for that the same was no Execution of the first Writ and also awarded an Attachment against the parties CCIII Marsh and Astreys Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 175. MArsh brought an Action upon the Case against Astrey and declared That he had procured a Writ of Entry sur disseisin against one A. and thereupon had a summons for Lands in London and delivered the said Summons to Astrey being Vnder-Sheriff of the same County virtute cujus the said Astrey summoned the said A. upon the Land but notwithstanding that did not return the said Summons Astrey pleaded Not guilty And it was tryed in London where the action was brought for the Plaintiff and it was moved by Cook in arrest of Iudgment That here is a mis-trial for this issue ought to be tryed in the County where the Land is because that the cause is local but the Exception was not allowed for the action is well layed in London and so the trial there also is good Trial. Another Exception was moved because the action ought to be against the Sheriff himself and not against the Vnder-Sheriff for the Sheriff is the Officer to the Court and all Returns are in his Name and I grant that an action for any falsity or deceit lyeth against the Vnder-Sheriff as for embesseling rasing of Writs c. but upon Non feasans as the Case is here the not Retorn of the Summons it ought to be brought against the Sheriff himself See 41 E. 3. 12. And if the Vnder-Sheriff take one in Execution and suffereth him to escape debt lyeth against the Sheriff himself Another Exception was taken because the Declaration is that the said Astrey Intendens machinans ipsum querent in actione sua praedict prosequend impedire c. did not retorn the said Summons but doth not say tunc exist Vnder-Sheriff Snag contrary If a Baily Errant of the Sheriff take one in Execution and he suffer him to escape an action lieth against the Baily himself And that was agreed in the Case of a Baily of Middlesex and Sir Richard Dyer Sheriff of Huntington and his Vnder-Sheriff who suffered a Prisoner to escape the action was brought against the Vnder-Sheriff for it may be the Sheriff himself had not notice of the matter because the Writ was delivered to the Vnder-Sheriff and he took a Fee for it and therefore it is reason that he shall be punished As if a Clerk in an Office mis-enter any thing he himself shall be punished and not the Master of the Office because he takes a fee for it But if the Retorn made by the Baily be insufficient Then the Sheriff himself shall be amerced but in the principal case it is clear That the action lieth against the Vnder-Sheriff if the party will and such was the opinion of Gawdy and Clench As to the other matter because it is not alledged in the Declaration That the Defendant was Vnder-Sheriff at the time the Declaration is good enough notwithstanding that for so are all the Presidents and if the Defendant were not Vnder-Sheriff the same shall come in of the other side See 21 E. 4. 23. And afterwards in the principal Case Iudgment was given for the Plaintiff CCIV. Hedd and Chaloners Case Trin. 31 Eliz. In the Common Pleas. 1 Cro. 176. 2 Roll. 42. 176. IN an Ejectione firmae by Hedd against Chaloner upon a Demise for years of Jane Berd It was found by especial Verdict That William Berd was seised in fee made a Feoffment to the use of himself for life afterward to the use of his two Daughters Joan Alice in fee and died and Joan entred into the Land and by Indenture by the name of Jane Berd leased the same to the Plaintiff for three years And it was further found That Joan intended in the Feoffment and Jane who leased are one and the same person Wray It hath been agreed here upon good advice and Conference with Grammarians that Joan and Jane are but one Name And Women because Joan seems to them a homely name would not be called Joan but Jane But admit that they were several Names Then he and Gawdy were of opinion it should not be good But afterwards it was said by Gawdy That this action is not grounded meerly upon the Indenture but upon the Demise and that is the substance and the Indenture is but to enforce it sci the lease 44 E. 3. 42. Another matter was moved here the remainder was limited to Joan and Alice in fee by which they are Ioint Tenants and then when one of them enters the same vests the possession in them both Then by the demise of Joan a moyety passeth only to the Plaintiff Wray Here the Term is incurred and the Plaintiff is to recover damages only and no title at all is found for the Defendant and so there is no cause but that Iudgment should be given for
is not of any effect but utterly void So is the grant of the presentment to the Church where the Church is void for it is a thing in action See the Lord Dyer 28 H. 6. 26. 3 Ma. Dyer 129. 11 Eliz. Dyer 283 Walmsley Serjeant put this Case Two Ioint-tenants of a Rent the one may release to the other but if the Rent be behind now the one cannot Release his Interest in the Arrearages to the other And afterwards in the Principal case Iudgment was given that the Release was void CCXXXIII Sammes and Paynes Case Mich. 30 31 Eliz. In the Common Pleas. Intr. Trin. 29 Eliz. Rot. 721. IN an Ejectione firmae the case was That the Mother being seised of certain Lands had issue two Daughters Tenant by the curtesie 1 And. 184. Goldsb 81. 82. 8 Co. 34. and by Indenture covenanted with diverse persons to stand seised to the use of Eliz. her eldest Daughter in tail upon condition that the said Eliz. should pay to her other Daughter within a year after the death of the Mother or within a year after the said other Daughter should come to the age of eighteen years 300 l. And if the said E. should fall in the payment of the sum aforesaid or should dye without issue before such payment then to the use of the said second Daughter in tail The Mother dieth E. taketh Husband hath issue afterwards dieth without issue before the day of payment And if the Husband shall be tenant by the curtesie or not was the Question And by the Court cleerly he shall be For as to the condition of payment of the said Sum the same is not determined for she died without issue before the day of payment scil before the second Daughter came of the age of eighteen years as to that there is no condition broken as to the point of dying without issue The same is not a condition but rather a Limitation of the Estate and the same is no more than what the Law saith and the estate tail in Elizabeth is spent and determined by the dying without issue and doth not cease or is cut off by any Limitation and afterwards Iudgment was given for the Tenant by the curtesie And by Anderson If a Feoffment be made to the use of I. S. and his heirs until I. D. hath done such a thing and then unto the use of I. D. and his heirs the thing is done and I. S. dieth his wife shall be endowed CCXXXIV Bowry and Popes Case Mich. 30 31 Eliz. In the Common Pleas. 1 Roll. 676. Plow Queries vers finem BOwry brought an Action upon the Case against Pope and declared that in the time of E. 6. the Dean and Chapter of Westminster leased two houses in Saint Martins in London to Mason for sixty years The which Mason leased one of the said Houses to one A. and covenanted by the Indenture of Lease with the said A. that it should be lawful for the said A. his Executors and assigns to make a window in the shop of the house so to him assigned and afterwards in the time of Queen Mary a window was made accordingly where no window was there before And afterwards A. assigned the said house to the Plaintiff And now Pope having a house adjoining had erected a new building super solum ipsius Pope ex opposito the said new Window Nusance so as the New Window is thereby stopped The Defendant pleaded Not guilty and it was found for the Plaintiff and it was moved for the Defendant in arrest of Iudgment that here upon the Declaration appeareth no cause of action for the window in the stopping of which the wrong is assigned appears upon the Plaintiffs own shewing to be of late erected scil in the time of Queen Mary The stopping of which by any act upon my own Land was holden lawful and justifiable by the whole Court. But if it were an antient window time out of memory c. there the light or benefit of it ought not to be impaired by any Act whatsoever and such was the opinion of the whole Court. But if the case had been That the house soil upon which Pope had erected the said building had been under the estate of Mason who covenanted as abovesaid Then Pope could not have justified the nusance which was granted by the whole Court. CCXXXV Lee and Maddoxes Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Mich. 29 30 Eliz. Rot. 1737. Covenant WIlliam Lee brought a Writ of Covenant against Richard Maddox Isabel his Wife and declared That one Errington the first husband of the said Isabel was endebted to the Plaintiff in 20 l. and that one Georgy Ashley was also endebted to the said Errington in the like sum of 20 l. And also that the said Errington made and constituted the said Isabel his Executrix and died and afterwards the said Isabel by Indenture dum ipsa sola fuit reciting that whereas her said late husband was endebted to the Plaintiff in the sum aforesaid and whereas the said George Ashley was also endebted unto her said late Husband in the like sum Now for the better satisfaction of the Plaintiff for his said Debt she appointed and constituted the Plaintiff atturnatum suum irrevocabilem ad petendum levandum recuperand recipiend ad usum suum proprium in nomine dict Isabellae de dicto Georgio the said twenty pounds And the said Isabel covenanted quod ipsa ad requis dict quer de tempore in tempus adjuvaret manu teneret quamlibet omnes sectam sectas quam vel quas dictus querens commensaret prosequeretur in nomine dictae Isabellae against the said George to the use of the Plaintiff Non existendo Non-suit voluntarie or making any Discontinuance Release Revocations Anglice Countermand without the assent of the Plaintiff And declared further that the Plaintiff had brought a Suit against the said George for the said Debt and shewed all in certain And that the said Isabel depending the said Suit Countermand had taken to Husband the Defendant without the assent of the Plaintiff And if by this Marriage the said Suit be countermanded was the Question And first it seemed to the Court that the Declaration was insufficient Request because there is not any request surmised in the Declaration for the words of the Covenant are Quod ipsa ad requisitionem c. So as it seemed to the Iustices that the Plaintiff ought to have notified to Isabel that he had commenced such Suit otherwise the Action will not lye And also the Court was of opinion that here is not any Countermand for by the taking of the Husband the Writ is not abated but only abateable and therefore the Plaintiff ought to have shewed 1 Roll. 781. that by the taking of the Husband the Writ by Iudgment was abated otherwise it is not any Countermand and
and it shall be intended the Rent mentioned before See 21 H. 7. 30. b. Where Villa West shall be intended Villa praedict 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit and doth not shew in his Count that the same was the next Avoydance and yet the Count was holden to be good for so it shall be intended so here And he said It is not necessary that a Declaration be exactly certain in every point but if one part of it expound the other it is well enough And although the Identity of the Rent doth not appear by the word praedict yet it appeareth by other circumstances as by the days of payment c. and no other Rent can be intended And now this Exception is after Verdict and therefore favourably to be taken And afterwards Iudgment was given for the Plaintiff CCXLI. Musted and Hoppers Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumsit p 1 Cro. 149. That where he and one Atkinsal were joyntly and severally bounden by Obligation in fifty pounds to a stranger for the only Debt of the said Atkinsal which Atkinsal died and the Defendant married afterwards his Wife and so the Goods of Atkinsal came to his hands yet the Plaintiff the first day of May after which was the day of payment of the money paid five and twenty pounds for avoiding the Forfeiture of the penalty The Defendant as well in consideration of the Premisses as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum cum inde requisitus fuer And upon Non Assumpsit the Iury found the payment of the said sum and all the precedent matter And that the Defendant in consideration praemissiorum promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator It was moved in arrest of Iudgment that although here the Iury have found sufficient cause of Action yet if the Declaration be not accordingly the Plaintiff shall not have Iudgment Verdict And here the Plaintiff hath declared upon two Considerations and the Iury hath found but one scil if he peaceably enjoy the Goods of the Testator Also the Plaintiff declared of a simple promise and the Iury have found a Conditional Si gaudere potest c. And so the promise set forth in the Declaration is not found in the Verdict Gawdy was of opinion That the first consideration is good Consideration for the Plaintiff entred into Bond at the request of the Defendant and then the promise following is good But the second consideration is void scil That the Defendant shall enjoy the goods of the Testator c. as if it had been that he should enjoy his own goods And all the Iustices were clear of opinion That the Promise found by the Iury is not the promise alledged in the Declaration and so the issue is not found for the Plaintiff and so the judgment was stayed CCXLII. Creckmere and Pattersons Case Trin. 30 Eliz. In the Kings Bench. Rot. 568. Devise conditional 1 Cro. 146. 1 Roll. 410. 1 Inst 236. b. UPon a special Verdict the Case was this Robert Dookin was seised of certain Lands in Fee and having issue two Daughters devised the same to Alice his Eldest Daughter that she should pay forty pound to Ann her Sister at such a Day the money is not paid whereupon Ann entreth into the moiety of the Land And it was holden by the whole Court that the same is a good Condition and that the Entry of Ann was lawful It hath been adjudged That where a man devised his Land to his wife Proviso My will is That she shall keep my house in good Reparations that the same is a good Condition Wray A man deviseth his Lands to B. paying 40 l. to C. it is a good condition for C. hath no other remedy and a Will ought to be expounded according to the intent of the Devisor CCXLIII Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench. 1 Cro. 160. IN an Ejectione firmae upon a special Verdict the case was That W. was seised of the Land where c. and held the same by Copy c. and surrendred the same unto the use of E. for life the Remainder to Robert and A. in Fee Robert made a Lease to the Defendant E. Robert A. surrendred the said Land scil a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert and of another third part to the use of Robert for life the Remainder to E. the Remainder to Richard c. and of another third part to the use of A. and his Heirs After which Partition was made betwixt them and the Land where c. was allotted to Richard who afterwards surrendred to the use of the Plaintiff It was holden That Iudgment upon this verdict ought not to be given for the Plaintiff For the Lessee of Robert had the first possession and that Lease is to begin after the death of E. who was Tenant for life and when E. and he in the Reversion joyn in a surrender thereby the estate for life in that third part is extinct in Robert who hath the Inheritance and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common 1 Inst 200. betwixt whom Trespass doth not lye CCXLIV Bulleyn and Graunts Case Hill. 31 Eliz. In the Kings Bench. Copyhold UPon Evidence to a Iury the Case was That Henry Bulleyn the Father was seised of the Land being Copyhold and had Issue three Sons Gregory Henry andy Thomas and afterwards surrendred to the use of the last Will Devise 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life the remainder to the said Henry and the Heirs of his body begotten Joan died after admittance Henry died without Issue and afterwards the Lord granted it to Thomas and his Heirs who surrendred to the use of the Defendant then his Wife for life and afterwards died without Issue Gregory eldest Son of Henry Bulleyn entred c. Coke When the Father surrendreth to the use of his last Will thereby all passeth out of him so as nothing accrueth to the Heir nor can he have and demand any thing before admittance Wray The entry of Gregory is lawful and admittance for him is not necessary for if a Copyholder surrendereth to the use of one for life who is admitted and dieth he in the Reversion may enter without a new Admittance It was moved by Coke if this Estate limited to Henry be an Estate tail or a Fee conditional For if it be a Fee-simple conditional then there cannot be another Estate over but yet in case of a Devise an Estate may depend upon a Fee-simple precedent but not
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
the other side there the Descent is traversable and not the dying seised and that was the Case betwixt Vernon and Gray Vernon and Grays Case In an Avowry Vernon conveyed the Lands from the Lord Powes to him as next Heir to him because the Lord Powes died seised in his Demesn as of Fee without issue and the Plaintiff conveyed from the said Lord Powes by Devise and traversed the Descent to the Avowant for the dying seised was confessed and avoided by the Devise 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith That T. was seised and died seised and that the Lands descended to him as Son and Heir and that he entred the Plaintiff said That T. was seised and took to wife K. and they had issue the Plaintiff and died seised and the Land descended to him and teaversed the descent to the Defendant and see Sir William Merings Case 14 H. 8. 22 23. But if the parties do not claim by one and the same person or the dying seised be not confessed and avoided there the dying seised shall be traversed and not the descent Glanvil Serjeant Be the Bar insufficient or not if the Declaration be not sufficient the Plaintiff shall not have Iudgment and here is not any breach of Covenant viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant his Heirs or Assigns or any claiming by Marland and then if the Heir of Marland cannot make any lawful claim then there is not any breach of Covenant assigned and he said because it is not shewed that the Land is not holden in Socage the Devise is not good for it may be that the Land is holden in Capite but admit the Devise good that when Andrews bargains and sells unto Marland and the Tenant never attorns then nothing passeth and then the Heir of Marland cannot make any lawful claim or lawful impediment Periam Iustice Here Marland was assignee of Andrews and if he or his heirs make claim although that the assignment be not sufficient in Law yet because he hath colour by this assignment his claim is lawful and so there is a breach of the Covenant and although it is not alledged that the Land devised is holden in Socage yet the Devise is good for two parts of the Land. Anderson Iustice If it be good but for two parts then is the Reversion apportioned and the Rent destroyed and so Marland hath not any Rent by his purchase of the Reversion and so he can't lawfully disturb the Plaintiff The Law doth create his apportionment which grows by the Devise and therefore the Rent shall not be destroyed but if it had been done by the Act of the party it had been otherwise and I would willingly hear if the Heir of Marland be assignee of Andrews for otherwise he is not within the words of the Covenant for Marland hath an estate to him and his heirs for the life of another Now after the death of Marland his heir is a special occupant and vide H. 26 Eliz. Rot. 560. in the Common Pleas such an Heir shall not have his age CCCCXXX Oglethorpe and Hides Case Pasch 33 liz In the Common Pleas. IN Debt upon a Bond for the performance of Covenants Debt it was holden by the whole Court That if the Defendant pleaded generally the performance of the Covenants and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Iudgment shall be given according to the truth of the cause for that default in pleading is but matter of form and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive so as it is in the Election of the Covenantor to do the one or the other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed CCCCXXXI Tracy and Ivies Case Mich. 32 Eliz. In the Common Pleas. IN Dower by Margaret Tracy against Ivie the Case was Dower That John Finch was seised and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife and their heirs for ever with Condition That if his said wife did survive him Co. 4. Vernons Case she should pay such sums of mony not exceeding two hundred pounds to such persons which the Feoffor by his last Will should appoint and afterwards he declared his Will and thereby appointed certain sums of mony to be paid to divers persons amounting in the whole to the sum of one hundred and fifty one pounds and by his said Will devised the residue of his Lands to divers of his Kindred having no issue and died The wife married Tracy and they brought Dower against the Devisees who pleaded the Feoffment aforesaid and averred the same was made for the Ioynture of the Demandant And because that no other matter or circumstance was proved to verifie the Averment the Court incited the Iury to find for the Demandant which they did accordingly CCCCXXXII Bond and Richardsons Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Bond Debt 1 Cro. 142. the Condition was to pay a lesser sum such a day and at such a place the Defendant pleaded payment according to the Condition upon which they were at issue And it was found by Verdict That the lesser sum was paid such a day before the day contained in the Condition of the Bond and then received and upon this Verdict Iudgment was given for the Plaintiff for the day is not material nor the place but the payment is the substance CCCCXXXIII Marshes Case Trin. 32 Eliz. In the Common Pleas. Trover had Conversion GOods came to a Feme covert by Trover and she and her Husband did convert them to their own use It was holden per Curiam That the Action upon the Case shall be brought against the Husband and Wife and not against the Husband only for the Action doth sound in Trespass and it is not like unto Detinue for upon a Detainer by the Wife the Action lieth against the Husband only CCCCXXXIV Corbets Case Trin. 32 Eliz. In the Common Pleas. Debt 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant and before notice of the Suit he paid divers Debts of the Intestate due by specialty and so he had not Assets to pay the Debt in demand having Assets at the day of the Teste of the Original And now Plainment Administred 1 Cro. 793. the Defendant appearing pleaded this special matter and concluded so he had nothing remaining in his hands And it was holden per Curiam to be a good Plea. See 2 H. 4. 21 22. CCCCXXXV Gillam and Lovelaces Case Mich. 32 Eliz. In the Common Pleas. Administration KAtharine Gillam Administratrix of John Gillam brought Ejectione
Action against the Executor of I.D. And it was agreed by the Court that if a man makes his Debtor and a stranger his Executors and the Debtor dieth the surviving Executor may have an Action of debt against the Executor of the Debtor and so it was adjudged in the principal case CCCCXLIX Wollman and Fies Case Mich. 31 32 Eliz. In the Kings Bench. Assumpsit 1 Cro. 179. IN an Action upon the Case upon Assumpsit that the Plaintiff should enjoy such Lands for so many years The Defendant pleaded the Statute of 13 14 Eliz. because the Land is the Glebe Land of such a Parsonage and in truth the Defendant did mis-recite the Statute For the Statute is No Lease after the fifteenth day of May And the pleading is hereafter to be made Secondly the Statute is of any Benefice with cure the pleading is of any Benefice Thirdly The Statute is without absence above eighty and the pleading is without absence by the space of eighty days And for these Causes the Plaintiff had Iudgment CCCCL Frond and Batts Case Trin. 31 Eliz. In the Kings Bench. Debt Payment to the wife not good IN debt upon a Bond upon condition to stand to the Award of I.S. The Defendant pleaded That the said I.S. had Arbitrated that the Defendant should pay to the Plaintiff ten pounds and he said he had paid it to the Plaintiffs wife who received it upon which the Plaintiff did demur And Iudgment was given for the Plaintiff CCCCLI Trin. 31 Eliz. In the Kings Bench. Grants of the King of the Office of Marshal of the Kings Bench. THe Queen granted to George Earl of Shrewsbury An. 15. of her reign the Office of Earl Marshal of England and now came the said Earl and prayed that I. S. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be to it because the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the said Office of Marshal of the Kings Bench by the Attainder of North. be removed And a President was shewed 14 15 Eliz. Betwixt Gawdy and Verney where it was agreed That the said office was a several office from the said great office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is the said office of Marshal of the Kings Bench was granted expresly by the Duke by express words and so he had it not as incident to his office of Marshal of England On the other side there were three Presidents shewed first in the time of E. 2. That the office of the Marshal of the Kings Bench was appendant to the said office of Marshal of England Secondly 8 R. 2. When the said great office was in the King he granted the said office of Marshal of the Kings Bench But 20 R. 2. both offices were rejoyned as they were before in ancient time and there were also shewed Latters Patents of 4 E. 4. and 19 H. 8. by which it appeared That the said inferiour office had time out of mind been part of the great office And it was moved That when the said great office is in the Kings hands and the King grants the said under office if now this office be not severed from the great office for ever Wray It is no severance for the chief office is an office of Dignity which may remain in the King but this under office is an office of necessity and the King himself cannot execute it by which of necessity he ought to grant it Another matter was moved If the Grant of the King unto the Earl of Shrewsbury were good because in it the Grant to Verney of the said under office is not recited according to the Statute of 6 H. 8. 9. As 26 E. 3. 60. The King seised of the Honor of Pickring to which a Forrest was appendant the Bayliwick of which Forrest he granted in fee rendring rent and afterwards he granted the Honor with Appurtenances and afterwards the Bailiff committed a Forfeiture and that was found in Eyre the Grantee of the Honor shall seise it yet the King shall have the Rent And here the Earl of Shrewsbury shall have this office in his power to grant And so much the rather because it was granted but for life CCCCLII Michill and Hores Case Trin. 31 Eliz. In the Kings Bench. MIchil did affirm a Plaint in the Court of the City of Exeter against Hore for twenty pounds and upon Nihil returned Attachment of goods by custom of Exeter it was surmised That Trosse had certain monies in his hands due to Hore and according to the custom of Exeter the said monies were attached in the hands of Trosse who appeared upon the Attachment and pleaded That he owed nothing to Hore upon which there was a Demurrer Error and Iudgment given against Trosse because that Trosse ought to have pleaded not only that he owed him nothing but further that he had not any goods of Hores in his hands And thereupon Trosse brought a Writ of Error and assigned the Error in the principal matter upon which it was demurred and Iudgment given against the Plaintiff because that the Plea of Trosse that he owed him nothing is good enough for if there be not a Debt it is not attachable upon such Attachment And it is a good Plea to a common intent and altogether in use in London were such custom is Another Error was assingned for that Michill had recovered Costs against Trosse where it ought not to be And also Iudgment is not given that Trosse should be discharged against Hore And afterwards the Iudgment given in Exeter was reversed CCCCLIII Dennis and Saint Johns Case Mich. 30 31 Eliz. In the Common Pleas. Debt 1 Cro. 494. IN Debt upon an Obligation against Oliver Saint John and Alice his wife as heir of her Father The Defendants pleaded Non est factum of the Father And it was found by special Verdict That the Obligation was made by the Father of the Wife to the Plaintiff and another whereas in truth The Plaintiff hath declared upon an Obligation made to himself only without speaking of any other joynt Obligee Non est factum and that the Plaintiff as Survivor hath brought the Action and if upon the matter it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared the Iury refer unto the Court And the case 14 E. 4. 1. b. If three enfeoff me and I plead That two did enfeoff me and the same be traversed it shall be found against me for the Feoffment is a joynt act by them all But if a man enfeoffeth me and two others and they dye so as I have all by Survivor in pleading I may shew the Feoffment was made to me alone So 46 E. 3. 17. a. Three Joynt-tenants in Fee make a
under the Common Seal authorized one A. to enter in the said Waste and in the behalf of the said Mayor and Burgesses to make election of the said moyety Election c. who did so accordingly And upon this matter gives in evidence the parties did demur in Law and the Iury were discharged 12 Co. 86. 87. Dy. 372. b. 281. Noy 29. And it was holden and resolved by the whole Court that the grant to the Mayor c. was utterly void for the incertainty of the thing granted And if a common person do make such a grant it is good enough and there the Grantee may make his choice where c. and by such choice executed the thing shall be reduced into certainty which choice the Grantee cannot have against the Queen which difference was agreed by the whole Court And it was further holden that this grant was not only void against the Queen her self but also against Sir Walter Hungerford her Patentee It was further holden by the Court that if a common person had made such a grant which ought to be reduced to certainty by Election and the Corporation to whom the grant was made ut supra should not make their election by Attorney but after that they were resolved upon the Land they should make a special warrant of Attorney reciting the grant to them in whih part of the said Waste their grant should take effect East West c. or by buttals c. according to which direction the Attorney is to enter c. XXXVII Watts and Jordens Case Trin. 27. Eliz. In the Common Pleas. IN Debt by Watts against Jorden process continued until the Defendant was Out-lawed and upon the Capias utlagatum he appeared and pleaded to issue which was found for the Plaintiff and Iudgment given accordingly And now came Jourden and cast in a Writ of Error Error and assigned for Error that he appeared upon the Capias utlagatum and pleaded to issue the Original being determined and not revived by Scire facias upon his Charter of pardon Anderson Iustice was of opinion that it was not Error for the Statute of 18 Eliz. had dispensed with it being after verdict for the words of the Statute are For want of any Writ Original or Iudicial Windham Iustice contrary for the Statute doth not extend but where the Original is imbeselled but in this Case it is not imbeselled but in Law determined and at last the Writ of Error was allowed XXXVIII Trin. 23 Eliz. In the Common Pleas. THe Case was A. seised of Lands by his Will devised 3 Len 119. that his Excutors should sell his Lands and died the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine It be a good plea against the Fine to say Quod partes ad finem nihil habuerunt was the question Fines levyed Anderson conceived that it was But by Windham and Periam upon Not-guilty The Conusee might help himself by giving the special matter in evidence in which Case the Conusee shall be adjudged in not by the Fine but by the Devise As by Windham A. deviseth Devise Co. 1 Inst 113. a. that his Executors shall sell a Reversion of certain Lands of which he dieth seised they sell the same without deed and good for the Vendee is in by the Devise and not by the conveyance of the Executors See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3. XXXIX Albany and the Bishop of St. Asaphs Case Trin. 27 Eliz. In the Common Pleas. ALbany brought a Quare impedit against the Bishop of St. Asaph 1 Cro. 119. who justified for Lapse The Plaintiff by Replication said that before the six months expired he presented to the said Bishop one Bagshaw Quare impedit a Master of Arts and Preacher allowed c. The Defendant by way of Rejoynder said that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls and that the Parishioners there are homines Wallici Wallicam loquentes linguam non aliam And that the said Bagshaw could not speak or understand the Welch Language for which cause he refused him and gave notice to the Plaintiff of such refusal and of the cause of it c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court that in the computation of the six months in such Cases the Reckoning ought not to be according to the Kalender January February c. but Secundum numerum singulorum dierum Co. 2 Inst 361. Co. 6. 61. b. Yel 100. 2 Cro. 141. Departure allowing eight and twenty days to every month Walmesley Serjeant argued for the Plaintiff and he took exception to the Rejoynder for in that the Defendant had departed from his Bar for in the Bar the Defendant intitles himself to the presentment by reason of Lapse and in the Rejoynder he confesseth the presentment of the Plaintff and pleads his refusal of his Clark and shewes the cause of it sc the want of the Welsh Language which is a Departure And he cited divers Cases to the same purpose 27 H 8. 3. In forfeiture of Marriage the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons absque hoc that he died in the homage of the Plaintiff the Plaintiff by Replication said that the said Feoffment was made to the use of the said Ancestor and his Heirs The Defendant by Rejoynder saith that the said Ancestor did declare his Will of the said Lands the same was holden a Departure for he might have pleaded the same in Bar and 21 H. 7. 17 18. 37 H 6. 5. in Trespass the Defendant pleaded that I. S. was seised of the Land where c. being Land devisable and devised the same to him and his Heirs the Plaintiff by Replication said that I. S. at the time of the devise was within age c. The Defendant by Rejoynder said that the custom there is that every one of the age of fifteen years might devise his Lands c. the same was holden a departure But to this Exception the Court took not much regard But as to the matter in Law it was argued by Walmesley that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal for notwithstanding that it be convenient that such a Presentee have the knowledge of such Language yet by the Law of the Land ignorance of such Language where the party hath more excellent Languages is not any disability and therefore we see that many Bishops in Wales who have the principal Cure of Souls are English-men and the Welsh
Another Exception was taken to the Writ because here it appears upon the Plaintiffs shewing that Sir Roger Lewknor had three Daughters and that they have all taken Husbands and that they have issue and that one of the said Daughters is dead living her Husband who is not named in the Writ for which cause the Writ shall abate See 22 H. 6. 24 25. But that Exception was also disallowed for as this Case is there is not any reason that the Tenant by the Curtesy should joyn in this Action for no judgment shall be given here that the Plaintiffs shall recover the place wasted for the term is expired as it appeareth by the words of the Writ scil quas tenuerunt and the Tenant by the curtesy is in possession and where Tenant by the curtesie and the Heir joyn in an Action of Wast Tenant for life shall have Locum vastatum and the Heir the damages which see 27 H. 8. 13. As unto the matter of Law upon the Exceptions of Woods and Vnderwoods it was argued by Shuttleworth that the Action of Wast was not well brought against Ford c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods and therefore Shelley remained Tenant and he ought to answer for the Wood and the Vnderwood in the Action of Wast for upon every demise of Lands the Woods there growing are as well demised as the Land it self for so it appeareth by the Writ of Wast in domibus boscis dimissis ad terminum annorum c. which proves that the Trees are parcel of the demise and so may be execepted See Dyer 28 H 8. 19. by Shelley and Baldwin A man leaseth a Manor except Woods and Underwoods the Lessee cuts the Trees an Action of Wast doth not lie against him for the same for the thing in which the Wast is supposed to be committed was not demised c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer Fenner Serjeant contrary and that the Exception of the Woods and Vnderwoods is meerly void for Shelley who assigns his interest with the said Exception hath not any such interest in the Woods and Vnderwoods so as he can make such exception for he had but an ordinary interest in them as Farmer viz. House-boot Hedge-boot c. which interest cannot by any means upon an Assignment be reserved to the Assignor in gross of the estate no more than if one hath common appendant to his Land and he will make a Feoffment of the Land reserving or excepting the common And he who hath the inheritance of the Land hath an absolute property in the Trees but the Lessee hath but a qualified interest and therefore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down and 10 H. 7. 3. Lessee for years hath not any interest in the Trees but for the loppings and for the shadow for his Cattle And in the Case cited where Lessee for life and he in the Reversion make a Lease for life unto a stranger and wast is committed Co. 1 Inst 42. 2. and they bring an Action of Wast the Lessee for life shall have the place wasted and he in the Reversion the treble damages for in him was the true and very property of the Trees and therefore the treble damages do belong unto him and not to the Lessee for life who joyneth with him and the reason wherefore the Lessee for life or years shall recover treble damages against a stranger who cuts down any Trees growing upon the Land to him demised is not in respect of any property that the Lessee hath in the Trees cut down but because he is chargable over to his Lessor in an Action of Wast in which he shall render damages in such proportion So see 27 H. 6. Wast 8. A lease for life is made without impeachment of wast a stranger of his own wrong cuts down Trees against whom the Lessee brings an Action of Trespass in such Case he shall not recover treble damages not for the Trees but only for the breaking of the Close and the loppings for he is not chargeable over to his Lessor for the same because that his Lease was made without impeachment of Wast and if the Lessee hath such a slender interest in the Trees where his Lease is without impeachment of wast his interest is less where it is an ordinary lease without any such priviledge And the property which the Lessee for years hath in the Trees in such Case is so appropriated to the possession that it cannot be severed from it Windham and Anderson Iustices were of opinion that the Exception above is meerly void For Ford the Assignee of Shelly is now Termer and Farmer who alone can challenge interest in the Trees against all but the Lessor and Shelley after his Assignment is meerly a stranger The interest of the Lessee and also of his Assignee in the Trees is of necessity and follows the Farm and the Land as the shadow doth the body And by him where Lessee for years by reason of his lease is to have Wind-fals yet he cannot imploy them but to the benefit and profit of his Farm for if he sell them or spend them elsewhere he shall be punished Rhodes and Periam Iustices that the exception is good as the fruits of the Trees Shovelers c. And afterwards the Case was adjudged upon another point in the pleading so as the matter in Law did not come to Iudgment See Saunders Case 41 Eliz. Where Lessee doth assign excepting the Timber Trees it is a void Exception LXIII Gray and Jeffes Case Pasch 29 Eliz. In the Kings Bench. 1 Cro. 55. Action of assault and Batterry IN an Action upon the Case by Gray against Jeffe the Plaintiff declared that where he had placed his Son and Heir apparent with the Defendant to be his Apprentice and to learn of him the Art of a Tailor That the Defendant had so beaten his Son with a Spade that he thereupon became lame by reason of which he could not have so much with his Son in marriage of him as otherwise he might have because the same lameness is a disparagement to his said son And further shewed that he himself might spend twenty pounds per annum in Lands Haulton argued for the Plaintiff The Action Quare filium haeredem cepit abduxit is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law and here by the Battery the Son is become so same that he is not so commendable to a Marriage as before and if the Father had lost the whole marriage then the Father should have had the Action Quare filium haeredem c. but here he hath not lost the whole marriage but the marriage is lessened by it and therefore he shall have this Action
their no cause of Action CCXXXVI Salway and Lusons Case Mich. 30 31 Eliz. In the Common Pleas. MAtthew Salway brought a Writ of Right against Luson Writ of Right 2 Len. 36. and the Writ was Messuag 200. acr jampnor bruerae And exception was taken to the Writ because jampnor bruerae are counted together where they ought to be distinguished severally As so many acr jampnor and so many acr bruer although it were objected on the part of the demandant in the maintenance of the Writ that in the Register the Writ of Right is reditu unius librae of Cloves and Mace together Abatement of a Writ without distinction or severance And it was said that in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because this word Pomarium was put in the Writ for in the Register there is no such Writ because the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353 In a Writ of Entre sur disseisin mille acr jampnor bruer But this exception was not allowed for it may be that jampnor bruer are so promiscuous that they cannot be distinguished Vide 16 H. 7. 8. 9. The respect the Iustices had to the Register was such as they changed their opinions and conformed the same to the Register Another exception was taken to the Writ because thereby the Demandant doth demand Duas partes Custodiae del Hay in the Forrest of C. And the Court was of opinion that the Writ ought to be Officium Custodiae duarum partium de Hay c. and not Duas partes Custodiae As Advocationem duarum partium Ecclesiae And not Duas partes Ecclesiae Another Exception because the Writ was duas partes c. in tribus dividend where it should be Divis for Dividend is not in any Writ but only in a Writ of Partition And by Windham the parts of this Office are divided in Right which the Court granted Another Exception was taken because that in the Writ it is not set down in what Town the Forrest of C. is so as the Court doth not know from whence the Visne should come For no Venire shall be de vicineto Forestae as de vicineto Hundredi 1 Cro. 200. Manerii And the same was holden to be a material Exception Another Exception was taken Visne because a Writ of Right doth not lye of an Office for at the Common Law an Assise did not lye of it but now it doth by the Statute of West 2. Cap. 25. for it was not Liberum ten but the party grieved was put to his Quod permittat And of this opinion was the whole Court. CCXXXVII Smith and Lanes Case Mich. 30 31 Eliz. In the Common Pleas. THe Queen was seised of a Manor whereof Bl. acr was holden by Copy in Fee the Queen leased Bl. acr to B. for one and twenty years who assigned the same to the Copyholder who accepted of it The Queen granted Bl. acr to C. in Fee Copyholder determined by acceptance of a Lease 2 Co. 16 17. the term expired C. entred and his entry was holden to be congeable for by acceptance of the sam Term the Customary Estate was determined as if the Copy-holder had accepted it immediatly from the Queen It was also holden by the Court that a Lease for years under the Seal of the Exchequer may be pleaded and that without making mention of the Commission by which the Court of Exchequer is authorized to make such Leases And so are all the Presidents as well in this Court as in the Court of Exchequer And whereas the Court was upon the point of giving their Iudgment It was objected by Shuttleworth Serjeant That here is pleaded a Bargain and Sale of Land without saying pro quadam pecuniae summa And he stood much upon the Exception and the Court also doubted of it and demanded of the Prothonotaries what is their form of pleading Bargain and Sale and consideration of it And by Nelson cheif Prothonotary these words Pro quadam pecuniae summa ought to be in the pleading Scot Prothonotary contrary Anderson conceived it was either way good but Pro quadam pecuniae summa is the best And so Leonard Custos Brevium conceived And the opinion of the Iustices was that a Bargain and Sale for dives Causes and Considerations is not good without a sum of money 1 Co. Mildmays Case And by Windham Bargain and Sale Pro quadam pecuniae summa although no money be paid is good enough for the payment or not payment is not traversable And by Periam If Pro quadam pecuniae summa be not in the Indenture of Bargain and Sale yet the payment thereof is averrable And for this Exception the Iudgment was stayed CCXXXVIII Bedel and Moores Case Mich. 30 31 Eliz. In the Exchequer Chamber Action upon the Case for not performing an Award BEdel brought an Action upon the Case against Moore in the Kings-Bench and declared That the Defendant did assume to perform the Award of J.S. and assumed also that he would not sue Execution upon a Iudgment which he had obtained against the Plaintiff in an Action of Account c. And shewed further that the Award was made c. which Award in Law was utterly void and that the Defendant had not performed the said Award and also that he had sued Execution against the Plaintiff 10 Co. 131. 5 Co. 108. The Defendant pleaded Non-assumpsit and it was found for the Plaintiff and Iudgment given accordingly Vpon which Moore brought a Writ of Error in the Exchequer-chamber upon the Statute of 27 Eliz. And assigned Error Error because the Plaintiff had declared upon two Breaches whereas for one of them there was not any cause of Action for the Award is void in Law then no breach could be assigned in that and then when the Iury hath assessed Damages intirement for both breaches whereas for one there was not any cause of Action by the Law the Verdict was void then the Iudgment given upon it reversable for it is not reason that the Plaintiff have Damages for such matter for which the Law doth not give an Action And if the Iury had assessed damages severally viz. For the not performance of the Award so much Damages and for the suing forth Execution so much then the Iudgment had been good and the damages assessed for the not performance c. void Manwood Chief Baron The verdict is well enough for here the whole Assumpsit is put in issue and there is but one issue upon the whole Assumpsit but if several issues had been joined upon these several points of the Assumpsit and both had been found for the Plaintiff and damages assessed entirely for both breaches then was the Iudgment reversable for being several
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
Disseisor as well to Robert as to the Infant Then if the Defendant be Disseisor and hath no title by the Infant Robert who hath Right in a moyety may well enter into the whole for he hath the possession per my per tout by his Entry and then when the Defendant doth eject him he hath good cause of Action And after at another day the Case was moved and it was agreed That for one moyety the Infant is bound for Sir Thomas had an estate tail in a moyety for he was Issue of the body of the Comisor But for the other moyety the Fine levyed by Tenant for life William the Father being then Tenant beyond the Sea It was holden by Anderson Windham and Walmesly that the Infant was not barred notwithstanding the objection abovesaid That William the Father never returned into England and notwithstanding the words of the Statute of 4 H. 7. And by Walmesley If an infant make his claim within age it is sufficient to avoid the Fine and yet the said Statute seems to appoint to him time within five years after his full age so that according to the very words a claim made before or after should be vain yet in Equity although he be not compelsable to make his claim until the time allowed by the Statute yet if he make it before it is good enough And by Anderson Although that VVilliam the Father did not return yet if he makes not his claim within five years after the death of his Father being of full age and without any impediment c. he shall be barred If in such case a man hath many impediments he is not compellable to make his claim when one of the impediments is removed but when they are all removed So if the Ancestor hath one of the said impediments and dieth before it be removed and his Heir is within age or hath other impediment he is not bound to make is claim till five years after his impediment is removed And Somes case cited before was holden and agreed to be good Law for the Forfeiture may not be known unto him And as to the objection against the Lease at Will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor To that it was answered Be the Defendant a Disseisor or not it is not material here for if the Plaintiff had not title according to his Declaration he cannot recover 1 Cro. 220. 1 Cro. 438. whether the Defendant hath title or not for it is not like unto Trespass where the very possession without other title is good contrary in Actions against all who gave not title but in Ejectione firmae if the title of the Plaintiff be not good and sufficient be the title of the Defendant good or not he shall not recover And afterwards Iudgment was given for the Defendant Hill. 33. Eliz. CCXCVIII Cheny and Smiths Case Mich. 32 33 Eliz. In Communi Banco IN an Ejectione firmae by Cheny and his Wife against Smith The Plaintiffs declared upon a Lease made by the Master of the House or Colledge of S. Thomas of Acons in London to I.S. who assigned it over to Knevit who by his Will devised the same to his Wife whom he made also his Executrix and dyed and afterwards she took to Husband one VVaters and died VVaters took Letters of Administration of the Goods and Chattells of his Wife and afterwards leased to the Plaintiffs And upon not guilty they were at Issue And it was given in Evidence That the Lease given in Evidence was not the Lease whereof the Plaintiffs have declared for the oriâ—inal Lease shewed in Court is Master of the House or Hospital where the Lease specified in the Declaration is Master of the House or Colledge 38 E. 3. 28. And some of the Iustices conceived that there is not any material Variance but if the parties would it might be found by special Verdict For by them Colledge and Hospital are all one And afterwards the Court moved the Plaintiffs to prove if the wife were in as Executrix or as Legatee for by Anderson and Periam until election be made he shall not be said to have it as Legatee especially if it be not alledged in fact that all the debts of the Testator are paid And Anderson doubted although that it be alledged that the debts be paid If the Executor shall be said to have the said Lease as a Legacy before she hath made Election vid. Weldens Case and Paramours Case in Plowd And afterwards it was given in Evidence That the wife after the death of the Husband had repaired the Banks of the Land and produced Witnesses to prove it as if the same should amount to claim it as a Legacy and the Court said that that matter should de referred to the Iury 1 Roll. 620. And it was further shewed in Evidence that the said Wife Executrix and her said Husband Waters formerly made a Lease by Deed reciting thereby that where the Husband was possessed in the right of his said Wife as Executrix of her first Husband c. And by the opinion of the whole Court the same was an express claim as Executrix and then when the Wife died if the Husband would have advantage of it he ought to take Letters of Administration of the Goods of her first Husband and not of the Wife but if she had claimed the Land and the Term in it as Legatee and had not been in possession Administration taken of the Rights and Debts of the Wife had been good as to that intent that his Wife was not actually possessed of it but only had a Right unto it and of such things in Action the Husband might be Executor or Administrator to his Wife but here they have failed of their title The Administration being taken of the goods of the Wife where it should be of the Goods of the Testator the first Husband And for this cause the Plaintiffs were non-suit and the Iury discharged And it was agreed by all the Iustices that if the Wife before Election had taken Husband that the Husband might have made the Election in the Case aforesaid CCXCIX The Lord Cobham and Browns Case Mich. 32 33 Eliz. In the Common Bench. THe Case between the Lord Cobham and Brown was that the Abbot of Grace was seised of the Mannor of Gravesend in the County of Kent which Mannor doth extend to the Parishes of Gravesend and Milton and that the said Abbot and all his Predecessors c. time out of mind c. have had a Water-Court within the said Mannor which Court had been holden at Gravesend Bridge in the end of it and that all the Inhabitants within the said Parishes which have Boats either entirely or joyntly with others and have used to transport or carry passengers from Gravesend to London e contra and have used to fasten
to the Plaintiff and yet is and upon these Pleas the Plaintiff did demur in Law. Owen Serjeant for the Plaintiff That both Pleas are insufficient the first Plea is not an answer but by argument for the Plaintiff declares of a commission of his own goods and the Defendant answers to a commission of his own goods 33 H. 8. Br. Action sur le case 109. In an action upon the case the Plaintiff declares that the Defendant found the goods of the Plaintiff and delivered them to persons unknown Non deliberavit modo forma is no Plea but he ought to plead not guilty and in an action upon the case the Plaintiff declared that he was possessed of certain goods ut de bonis suis proprijs and the Defendant found them and converted them to his own use It is no Plea for the Defendant to say that the Plaintiff was not possessed of the said goods as of his proper goods but he ought to plead not guilty to the mis-demeanor and give in Evidence that they were not the goods of the Plaintiff and 4 E. 6. Br. action upon the case 113. The Plaintiff declared that he was possessed of certain goods as of his proper goods and lost them and the Defendant found them and converted them to his own use the Defendant pleaded that the Plaintiff pawned the said goods to the Defendant for ten pounds for which he detained them according to the said pawn and traversed the conversion and by some it was holden that he ought to plead not guilty give the especial matter aforesaid in Evidence and 2 3. Phil. and Ma. Dyer 121. The case of the Lord Mountegle in an action upon the Case the Plaintiff declared upon a Trover of a Chain of Gold and that the Defendant had sold it to persons unknown the Defendant pleaded That ipse non vendidit modo forma upon that the Plaintiff did demur in Law. And see 27 H. 8. 13. Where goods come to one by Trover he shall not be charged in an action but for the time he hath the possession But that is to be intended in an Action of Detinue and not in an action upon the Case for such action upon the Case is not grounded upon the Trover but upon the mis-demeanor that is the Conversion And as to the other Plea it is utterly insufficient for the Plaintiff declares of a Conversion and he pleads a possession that he is always ready and so doth not answer to the point of the action Yelverton Serjeant to the contrary and he conceived for the first Plea that it is a direct answer for he hath justified his sale to persons unknown for that he hath bought the goods of one Copland whose goods they were and because the Plaintiff hath demurred upon the Plea he hath confessed the truth of the matter contained in it scil that the property of the goods was to Copland and so in Defendant by the said sale and then he hath good cause to convert them to his own use by sale or otherwise And he conceived that there is a difference 27 H. 8. 13. betwixt Baylment and Trover for in case of Trover the parry is not chargeable but in respect of the possession which being removed the action is gone against the Finder for he who findeth goods is not bound to keep them nor to give an account for them And he put the case reported by Dyer 13 14 Eliz. 306 307. R. Fines brought an action upon the case and declared he was possessed of a Hawk as of his proper goods at W. and casually lost it at B. and that it afterwards casually came to the hands of the Defendant by Trover and that he knowing it to be the Plaintiffs Hawk sold the same for mony to persons unknown The Defendant pleaded that the Hawk first after the losing of it came to the hands of one Jeoffryes who sold it to one Rowly who gave it to the Defendant at A. who sold it to Poulton and the same was found a sufficient Bar and it is hard where goods as Oxen or Horses come to another by Trover that he should be charged to keep them and pasture them until the Owner claimeth them and therefore it is not reason but that he discharge himself by the quitting of the possession of them And as to the other Plea the matter of the Plea is good enough and the defect is but in the form which because the Plaintiff upon his Demurrer hath not shewed to the Court according to the Statute he shall not take advantage of it but the matter of the Plea is sufficient scil the finding and the offer to deliver it to the Plaintiff Anderson Iustice For the examination of the insufficiency of this Plea the nature of the action and the cause of it is to be considered the nature of the action it is an action upon the case the cause the Trover and conversion Then for the latter Plea his readiness to deliver it It cannot be any answer to the Declaration of the Plaintiff For this action is not Debt or Detinue where the thing it self is to be delivered for in such case the Plea had been good but the Conversion is the special cause of this Action which by this is not answered and for the other Plea the Declaration is not answered by it But here is some matter of justification for when a man comes to goods by Trover there is not any doubt but by the Law he hath liberty to take the possession of them but he cannot abuse them kill them or convert them to his own use or make any profit of them and if he do it is great reason that he be answerable for the same but if he lose such goods afterwards or they be taken from him then he shall not be charged for he is not bound to keep them and so he conceived Iudgment ought to be for the Plaintiff Windham Iustice neither Plea is good as to the first Plea he confesseth the conversion but hath not conveyed unto himself a sufficient title to the goods by which he might justifie the Conversion for the Plaintiff declares of a conversion of his own goods and the Defendant justifies because the property of the goods was in a stranger who sold them to him which cannot be any good title for him without a Traverse unless he had shewed that he bought them in an open Market and then upon such matter he might well have justified the Conversion And as to the other Plea the same is naught also for the goods are not in demand and their the said Plea is not proper to say that he is ready to deliver them for damages only for the conversion are in demand and not the goods themselves and therefore the same is a Plea but by Argument scil He is ready to deliver Ergo he hath not converted and yet the same is not a good argument for if a man find my Horse
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
shewed our matter scil That we have Letters Patents of the Queen and that we were sworn in the said Office and so we are King of Heralds by matter of Record against which is pleaded only matter in defect of ceremony and circumstance which is not material An Earl is created with the ceremonies of putting a Sword broad-wise about his Body and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies And may also create an Earl by word if the same be after Recorded when a Knight is made Spurs ought to be put upon his Heels yet without such ceremony such degree may be conferred to and upon another for such ceremonies are or may be used or not used at the Kings pleasure Afterwards it was objected that the same is but a name of Office but not a name of Dignity To which it was answered that this word Coronamus always imports Dignity and this is a Dignity and Office as Earl Marquess c. Fenner Iustice The Patent is Nomen tibi imponimus and therefore Garter is parcel of his Name And therefore he ought to be Indicted by such Name And it should be hard to tye Estate and Degrees to ceremonies Gawdy was of opinion That this is but a name of Office and therefore the Indictment good as 1 Mar. Writ of Summons of Parliament issueth without these words Supream Head and the Writ was holden good for it is not parcel of the Name but addition only So here Fenner and Wray contrary for the words are Creamus Coronamus Nomen imponimus Ergo part of his Name which Clench also granted and afterwards Dethick was discharged CCCXXXVIII Strait and Braggs Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass 2 Len. 1â—9 for breaking his Close in H. the Defendant pleaded that long before the Trespass the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee in the Right of their Church and so seised King Edward the Fourth by his Letters Patents Dat. An. 1. of his Reign granted to them all Fines pro licentia Concordandi of all their Homagers and Tenants Resiants and Non-resiants within their Fee and shewed that 29 Eliz. A Fine was levied in the Common Pleas betwixt the Plaintiff and one A. of eleven Acres of Lands whereof the place where is parcel and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee And afterwards in behalf of the said Dean and Chapter he demanded of the Plaintiff the said fifteen shillings who refused to pay it wherefore he in the Right of the said Dean c. And by their commandment took the Distress as Baily c. for the said 15 s. and afterwards sold it upon which the Plaintiff did demur in Law. It was moved that it is not averred that the Land whereof the Fine was levied was within their Fee but they say that Scambler allowed it to be within their Fee and the same is not a sufficient Averment which the Court granted And it was the opinion of the Court that the Dean and Chapter cannot distrain for this matter but they ought to sue for it in the Exchequer as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case Gawdy This Grant doth not extend to the Post Fine for Fine pro licentia Concordandi is the Queens Silver and not the Post Fine Wray All shall pass by it for it is about one and the same matter and they were of opinion to give Iudgment for the Plaintiff CCCXXXIX Sherewood and Nonnes Case Trin. 32 Eliz. Rot. 451. In the Kings Bench. Covenant IN an Action of Covenant the Plaintiff declared that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons with divers Lands to the same appertaining and of another parcel of Land called Dole containing eight Acres to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten and so seised 15 Eliz. leased the same to the Defendant by Indenture for years by which Indenture the Lessor covenanted that the Lessee should have sufficient House-boot Fencing-wood and Hoop-wood upon the Lands during the Term and that further the Lessee covenanted for him his Executors and Assigns with the Lessor c. That it should be lawful for them to enter upon the Lands during the said Term and to have egress and regress there and to cut down and dispose of all the Wood and Timber there growing leaving sufficient House-boot Fencing-wood and Hoop-wood to the Lessee upon the Lands called the Dole for his expences at Withons and further that he would not take any Wood or Timber upon the Premisses without the assent or assigment of the Lessor or his Assigns otherwise than according to the Indenture and true meaning thereof And further declared That the said Charles and his Wife so seised levied a Fine of part of the Land to R. S. and his heirs to whom the Defendant attorned and that the said R.S. afterwards devised the same to I. his Wife the now Plaintiff for years the Remainder over to another and died and that the Defendant had felled and carried out of the Lands called Withons twenty loads of Wood without the assent and assignment of the Lessor or his Assigns for which the Plaintiff as Assignee brought the Action The Defendant pleaded That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole and so they had not left sufficient Woods for his expences at Withons according to the Indenture for which cause he took the said twenty loads of Wood upon Withons for his expences upon which the Plaintiff did demur in Law. Godfrey The Plea is not good This Plea is no more but that sufficient Wood was not left upon the Dole for his expences and although there be not yet the Defendant cannot cut Wood elsewhere for he hath restrained himself by the Covenant Also the Covenant of the Lessor is That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons but in his satisfaction he doth not alledge that he had need of Wood for to spend at Withons nor doth aver that he hath spent it there for otherwise he hath not cause to take c. And the meaning was that the Lessee should have sufficient Wood when he had need of it Hobart for the Defendant He would not speak to the Plea in Bar but he conceived that the Declaration was not good for here no breach of Covenant is assigned for the Covenant is in the Disjunctive scil That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns And the Plaintiff
hoc that he was indebted to the Plaintiff antea vel post the said day aliquo modo upon which the Plaintiff did demur It was argued that the Traverse was not good for the consideration in Assumpsit is not traversable because it is but conveyance and amounts to the general Issue as in debt upon the sale of a Horse it is no Plea for the Defendant to say that no such Horse was sold to him Patridge If the conveyance be the ground of the Suit it is traversable an Action upon the Case against an Hostler it is a good Plea that he is not an Hostler 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case the Plaintiff declared that whereas the Defendant habuit ex deliberatione of the Plaintiff certain goods the said Defendant in consideration of ten shillings Assumpsit eidem querenti promisit salvo Custodire c. Non habuit ex deliberatione is a good Plea. Godfrey The Defendant doth not answer the point of our Action which is the Assumpsit but only by way of Argument 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff and his Confreers by their Deed under their Common Seal the Plaintiff Replicando saith That at the time of the making of the Lease there was no such Colledge and it was holden no Plea for it is no answer but by Argument Gawdy Iustice In all cases where the Defendant may wage his Law there the conveyance is traversable Wray The cause of the Action is the Assumpsit therefore the consideration is not traversable for it is not the point with which the Plaintiff is charged And it is common here that the Declaration in such Action upon the Case Traverse in consideration of divers sums of money without any more certainty is good which should not be good if the consideration were traversable but the consideration is to be given in Evidence and it is also common that in an Action upon the Case in Trover and Conversion the Trover is not traversable for the Conversion is the point of the Action Fenner Iustice The debt here is no cause of the Action but only the Assumpsit In debt upon Arbitrament the Arbitrament is traversable So in debt for Rent upon a Demise the Demise is traversable Antea 189. for the Arbitrament and Demise is the cause and ground of the Action At another day it was moved again and Gawdy mutata opinione said that consideration Executory is traversable As where one in consideration that he may marry my Daughter or of service promiseth to pay the same consideration is traversable contrary of a Consideration executed And afterwards Iudgment was given for the Plaintiff CCCXLI Estons Case Trin. 33 Eliz. In the Court of Wards ESton was seised of Lands in Fee holden of the King in chief 1 Cro. 243. and took a Wife seised of other Lands holden in Socage they have Inne and the Husband dieth and afterwards the Wife dieth Owen Serjeant conceived That the Queen should not have the Wardship of the Land of the Wife or the primer seisin of it And if the Husband had survived his Wife being Tenant by the Curtesie the Queen should not have Primer seisin of it after his decease Wray If the Father be seised of Lands holden in Soccage and the Mother of Lands holded in Knights service and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all Anderson denied that and he conceived That the opinion of Stamford is not Law and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief and the Mother of other and the Father dieth and afterwards the Mother dieth both shall be in ward And it was said That if there be Grandfather Father and Son and the Father dieth seised of Lands holden in Socage and afterwards the Grandfather dieth seised of Lands in Knights service the Lands in Socage shall not be in ward Anderson held strongly That the Queen should have Primer seisin of the Lands of the Mother Wray contrary Quaere CCCXLII Ellis Hartops Case Trin. 33 Eliz. In the Court of Wards ELlis Hartop was seised of divers Lands whereof part was holden of the King in Knights service and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother and his wife and afterwards to the use of the said T. and his Heirs males T. died in the life of the Devisor and afterwards a Son is born First it was agreed that a Devise might be to the use of another Then when Cesty que use dyeth in the life of the Devisor the Devisee shall take it and when a Son is born it shall go to him But if the use be void then the Devisee shall have it to his own use for every devise doth imply a consideration Coke was of opinion That the Son takes by descent when Cestuy que use to whom Land is devised doth refuse the use the Devisee cannot take it for he shall not have it to his own use for if the use be void the devise is also void And the use is void for Cestuy que use died in the life of the Devisor which see Bret and Rygdens case A man seised of three Acres bargains and sells one of them without shewing which and that before the Statute of 27 H. 8. The Bargainee dyeth before Election no Election descends to the Heir for then he should be a Purchasor And by Wray and Anderson The devise is void and it is all one with Brett and Rigdens case And by Anderson a man deviseth Lands to the use of one which use by possibility is good and by possibility not good If afterwards Cestuy que use cannot take the Devise shall be to the use of the Devisor and his Heirs CCCLXIII Weston and Garmons Case Trin. 33. Eliz. In the Kings Bench. Assize 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W And shewed that John Vaughan and Amy his Wife who before was the wife of one Weston and Mother of Sir Henry Weston the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan and Miles Whitney Complainants and the said John Vaughan and Amy his Wife and Francis their Son Deforceants of the said two Manors inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages three hundred Acres of Lands two hundred Acres of Meadow cum pertinentiis in the said Towns by which Fine the said Deforceants did acknowledge the right of the said Manors and Tenements to be
Language may easily be learned in a short time by converse with Welsh-men And the Statute of 1 Eliz. which establisheth the Book of Common Prayer ordaineth that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language But afterwards by a private Act it was done by which it is enacted That the Bishop of Wales should procure the Epistles and Gospels to be translated and read in the Welsh Language which matter our Presentee might do by a Curate well enough And he conceived that by divers Statutes Aliens by the Common Law were capable of Benefices See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices Gawdy Serjeant contrary and he confessed that at the Common Law the defects aforesaid were not any causes of refusal but now by reason of a private Act made 5 Eliz. Entituled An Act made for the translating of the Bible and of the Divine Service into the Welsh tongue the same defect is become a good cause of refusal in which Act the mischief is recited viz. That the Inhabitants of Wales did not understand the Language of England therefore it was Enacted That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language as there are Parishes and Cathedral Churches in Wales and so upon this Statute this imperfection is become a good cause of refusal And he likened it to the Case of Coparceners and Ioynt-tenants Ante 28. who now because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age But as to that point it was said by the Lord Anderson that it is very true that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal but because the said Act being a private Act hath not been pleaded by the Defendant we ought not to give our Iudgment according to that Act but according to the Common Law. Another matter was moved because here appeareth no sufficient notice given to the Patron after the said Refusal for the Plaintiff did present the thirtenth of August the Church voyding the fourteenth of March before the nine and twentieth of August the six months expired the fourth of September the Defendant gave notice to the Patron of the refusal and the fourteenth of September was the Collation and it was said by the Lord Anderson that it appeareth here that there are two and twenty days between the Presentment and the Notice which is too large a delay And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it and therefore upon his own shewing we adjudge him to be a disturber See 14 H. 7. 22. 15 H. 7. 6. and note by Periam it was adjudged in the Case of Mollineux if the Patron present and the Ordinary doth refuse he ought to give notice to the person of the Patron thereof if he be resident within the County and if not at the Church it self which is void XL. Mich. 27 28 Eliz. At Serjeants Inn. THis Case was referred by the Lords of Council to the Iustices for their opinions I.S. by Indenture between the Queen of the one part and himself of the other part reciting that where he is indebted to the Queen in eight hundred pounds to be paid in form following twenty pounds at every Feast of St. Michael until the whole sum aforesaid be paid covenanted and granted with the said Queen to convey unto the Lord Treasurer and Barons of the Exchequer and to their Heirs certain Lands to the uses following viz. to the use of the said I.S. and his Heirs until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums and after such default to the use of the said Queen her Heirs and Successors until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid and after the said debt so paid and received then to the use of the said I.S. and his Heirs for ever I.S. levyeth a Fine of the said Land to the said Lord Treasurer and the Barons to the uses aforesaid and afterwards being seised accordingly by deed indented and enrolled bargains and sels the said Land to a stranger default of payment is made the Queen seizeth and granteth it over to one and his Heirs quousque the money be paid and after the money is paid And upon conference of the Iudges amongst themselves at Serjeants Inn they were of opinion that now I.S. against his Indenture of bargain and sale should have his Lands again for at the time of the bargain and sale he had an estate in Fee determinable upon a default of payment ut supra Post 93. 3 Len. 43. Owen Rep. 6. 1 Inst 49. 2 which accrued to him by the first Indenture and the Fine which estate only passed by the said Indenture of bargain and sale and not the new estate which is accrued to him by the latter limitation after the debt paid for that was not in esse at the time of the bargain and sale but if the conveyance by bargain and sale had been by Feoffment or Fine then it had been otherwise for by such conveyance all uses and possibilities had been carried by reason of the forcible operation of it XLI Taylor and Moores Case Hill. 28 Eliz. In the Kings Bench. TAylor brought Debt upon an Obligation against Moore Debt Error who pleaded in Bar upon which the Plaintiff did demurre and the Court awarded the Plea in Bar good upon which Iudgment the Plaintiff brought a Writ of Error and assigned Error in this that the Bar upon which he had demurred as insufficient was adjudged good Vpon which now in this Writ of Error the Bar was awarded insufficient and therefore the Iudgment reversed But the Court was in a doubt what Iudgment shall be given in the Case viz. whether the Plaintiff shall recover his debt and damages as if he had recovered in the first Action or that he shall be restored to his Action only c. And Wray cited the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded that the Plaintiff should recover his debt and damages See to that purpose 33 H 6. 31. H 7. 12 20. 7. Eliz. Dyer 235. XLII Higham and Harewoods Case Hill. 28. Eliz. In the Kings Bench. More Rep. 221. 3 Len. 132. IN an Ejectione firmae the Case was
the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. â— Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
in some cases the Plaintiff himself who libelleth may have a Prohibition and that was the case betwixt Wignal and Brook. And afterwards a Consultation was granted by the Court for Stransham had begun the suit in the Spiritual Court in the principal matter and therefore he cannot have a Prohibition for the costs But afterwards Iudgment was stayed for the said Statute speaks specially in case of Tithes where the Court hath Iurisdiction and here it hath not of the matter But it was said that if a Consultation be once granted 1 Cro 277. the party shall never have another Prohibition in the same cause as it was holden in the case betwixt Hoskins and Jones CLXXVIII Chamberlain and Thorps Case Pasch 31 Eliz. Rot. 186. In the Kings Bench. Recognizances in London by custom 1 Cro. 186. IN Debt upon a Recognizance acknowledged in London the Plaintiff declared that London is antiqua Civitas and that they have used time out of mind c. That the Mayor take Recognizances of any person being of full age and not a Feme Covert every day in the year except Sundays Holy-days Counsel days and days of Quarter Sessions and Gaol-delivery And declared further now that the Defendant such a day did acknowledge a Recognizance to him c. Tanfield the Declaration is not good but the custom as it is laid is unreasonable for thereby the Mayor may take Recognizances of Idiots men of Non sanae Memoriae c. nor is it restrained to any persons or to any matters but is too general and therefore cannot be a good custom Gawdy The Declaration is good notwithstanding the Exception for want of averment for that ought to come in on the other side And as to the custom I conceive it is not good for it is hard That they should take Recognizances of all Persons and for all Causes which rise out of the City and through the whole Realm as well as within the City also none shall take a Recognizance but a Iudge of Record and a Recognizance cannot be taken by prescription As to the first Exception Wray agreed with Gawdy and as to the Custom he held the same to be good For it hath been always allowed and their customs are confirmed by Act of Parliament which makes them good But if the custom be not confirmed by Parliament it is not good also it is not an unreasonable Custom for it is for the benefit of the Subjects to have security for their Debts Coke The Recognizance makes the Debt local and therefore 13 Rich. 2. bar 649. Debt was brought in London upon a Recognizance acknowledged in the Chancery at Westminster and the Writ was abated for the Recognizance makes it local there and by him the custom stands with reason The Mayor is such a person who may take a Recognizance for he is a Iudge of Record See 1 H. 7. 20. and Br. Recognizance 8. and the Recognisee cannot have an Action of Debt upon this Recognizance elsewhere than in London For it is not a Debt out of the Iurisdiction of the Court for the Recognizance hath made it local Wray If the Recognisor be within age the same shall come in of the other side and the Plaintiff needs not shew the same in his Declaration Cooke It was agreed betwixt Mabbe and Frend That such a Recognizance was good Tanfield The said Recognizance was taken for Orphans goods which is a thing within their Iurisdiction Clench They of London cannot take Recognizance of more than they can hold plea of it Wray They have used of long time to take Recognizances and their customs are confirmed by Parliament and a more strange custom than this hath been allowed of here before scil That a feme Covert shall sue an Action alone without her Husband for she is a sole Merchant Also they do certifie Recognizances ore tenus Gawdy A feme Covert may have an Action within the City but not here CLXXIX Pierce against Howe Hill. 32 Eliz. Rot. 434. In the Kings Bench. AN Action upon the Case for these words Action upon the case for words 1 Cro. 185. Pierce hath taken a false Oath in the Consistory Court of the Bishop of Exeter and upon the Declaration the Defendant did demur in Law. And by Prideaux these words are Actionable although the perjury be supposed to be committed in the spiritual Court For he shall be excommunicated if he will not appear and he shall do pennance in a White sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an action upon the case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an action lyeth and yet Bastardy is a spiritual matter and there determinable So for these words Thou art a Pirate an action lyeth and yet Piracy is not punishable by the common Law but in the Court of Admiralty And these words He hath taken a false oath do amount to these words He is forsworn Wray conceived that the words are not actionable for there is a proviso in the Statute of Eliz. cap. 9. That the said Act shall not extend to any Ecclesiastical Court but that every such offendor shall be and may be punished by such usual and ordinary Laws as heretofore have been and is yet used and frequent in the said Ecclesiastical Court. Gawdy upon these words an action doth not lye for they are not pregnant of any perjury in the Pl. for he may be meer passive in it for if one of the Masters of the Chancery minister an Oath unto any person or any Commissioners c. and the Plaintiff sweareth falsly a man may say That the Master of the Chancery or the Commissioner hath taken a false oath and yet he is not guilty of falsity And afterwards Wray mutata opinione That the Proviso in the said Statute is to this intent That notwithstanding the said Statute such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as it was before but the same doth not take away or restrain the authority of the Common Law but that such an offence may be here examined And it hath been lately adjudged in the Star-Chamber That such perjury was examinable there for it is not restrained and as to the latter exception upon these words he hath taken a false oath it shall be intended actively and not passively and if so the Defendant ought to have so pleaded it and afterwards Iudgment was given for the Plaintiff CLXXX Palmer and Smalbrooks Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. Owen 97. 3 Len. 227. IN an action upon the Case by Palmer against Smalbrook The Plaintiff declared That the Defendant had recovered a certain Debt against A. and thereupon purchased a Writ of Capias against A. to take his body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the said Capias
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
demanded by the name of a house And afterwards the Writ was awarded good but a special Iudgment was given ita quod querens recuperet Messuagium praedict viz. so many feet in length and so many in breadth according to that which was found by the Verdict CCXI. Degory and Roes Case Trin. 31 Eliz. In the Common Pleas. Debt DEgory brought Debt upon an Obligation against Roe as heir to his Ancestor The defendant pleaded That his Ancestor by his deed did covenant with Sir W. Winter and A. Marsh to stand seised to the use of himself for life and afterwards to the use of the Defendant and his heirs and so he had nothing by descent The Plaintiff replicando said non convenit and it was found by special verdict That such a deed of Covenant was made by the Ancestor of the Defendant but the first use was limited to the Covenantor and his wife for their Lives c. And that he delivered the same to I. S. as his deed to the use of the said Sir W. VVinter and the said Marsh if the said Sir W. VVinter would agree to the same and take the charge of it upon him and if he will not agree That then it should not be his deed and further found That Sir W. Winter died before any agreement and it was moved by Periam If the same be presently the Deed of the Ancestor or if it do not take effect till the condition be performed sci until Sir W. Winter hath agreed to it See 14. H. 8. 17 18 19 20 23. And by Walmesly Deeds when to take effect The same is not the Deed of the Ancestor until Sir William hath agreed But by Anderson and Periam although Sir William Winter doth not agree to it yet it is the deed of Roe for although a deed be upon condition ut supra yet because he delivered it as his deed and the Condition is subsequent to it It shall be taken for his deed and the condition after shall be void because repugnant For although that in Estates limited to men the estate may be precedent and the condition subsequent the not performance of the condition may destroy the estate for the estate is always subject to the condition yet it is not so in Deeds for being once the deed of the party it can never cease to be his deed after it is once delivered as his deed Owen Although the same be the deed of the party yet it is not well pleaded he conceived the issue is found against him for the Covenant is pleaded to stand seised unto the use of himself for life the Remainder over To which the Plaintiff Replicando saith non convenit so as the Issue is if any such Deed of Covenant was and the Iury find That the Covenant was to stand seised to the use of himself and his wife c. so as it is not such a Deed as the Defendant hath pleaded for other estates are limitted by it and therefore it shall not be intended the same Deed. Periam The same is not material for the substance of the Plea is Nothing by descent c. and it was adjourned CCXII. The Scholars of All-souls in Oxford and Tamworths Case Trin. 31 Eliz. In the Common Pleas. IN a Writ of Night by the Colledge of All-souls in Oxford against Tamworth Writ of Right 1 Cro. 232. the Writ was Quod clamat tenere de nobis in liberam puram et perpetuam Elemosinam And exeception was taken to it because it ought to be in liberam Eleemosinam sans pura perpetua also it ought to be Eleemosina with a Double e and not Elemosina with a single e but the exception was not allowed For as to the first Exception it is but surplusage and as to the other It is the common course Another exception was taken to the Writ because the words are quod clamat esse jus haereditatem suam without saying in jure Collegii Anderson The Writ is good enough If a Parson plead that he is seised he shall say in jure Ecclesiae for he hath two capacities and without such words here shall be intended seised in his own Right But if an Abbot plead that he was seised there needs not such words for he hath no other capacity so of Dean and Chapter Mayor and Comminalty And afterwards the Writ was awarded good and that the Tenant should answer over c. See Book Entries 236 237. It was also moved If the Colledge shall count of its seisin within 30 years because that the Corporation never dies and then if he count of its own possession the same is without limitation And it was holden that if the Guardian of the Colledge which now is was ever seised he ought to count upon a seisin within thirty years But upon the seisin of his Predecessor he ought to count of a seisin within 60 years as another common person for the change of the Teste of such a seisin is as the dying seised and descent of a common person CCXIII. The Lord Buckhurst and the Bishop of Winchesters Case Trin. 31 Eliz. In Communi Banco Quare Impedit THe Lord Buckhurst brought a Quare Impedit against the Bishop of Winc. and counted that he was seised of the Manor of D. to which the Advowson was appendant and that the said Church became void and that he presented Maurice Sackvil his Clark. The Defendant pleaded that he was seised of the said Advowson as in gross and presented one Maurice Sackvil absque hoc that the Advowson was appendant It was moved that the Defendant ought to traverse the Presentment and not the Appendancy especially as the cause is here where they both present one and the same person To which it was said that that doth not appear for the Defendant hath pleaded that he presented Maurice Sackvil but doth not say praedict Maurice Sackvil so as it may be he is not the same person but another See 10 H. 7. 27. The Traverse is well taken contrary where the Plaintiff declares of an Advowson in gross and that he to the same presented and the Defendant pleadeth that he is seised of such a Manor to which the Advowson is appendant c. without that that the Advowson is in gross there he shall traverse the presentment for the presentment shall make it in gross See 13 H. 8. 12. CCXIV. Jennings and Winches Case Trin. 32 Eliz. In the Common Pleas. Assumpsit IN an Action upon the Case by Jennings against Winch. The Plaintiff declared upon an Assumpsit by the Defendant 1 Maii. 32. Eliz. and counted upon a Mutuatus for twenty shillings and an Indebitatus for four pounds The Defendant pleaded that he being endebted to the Plaintiff in five pounds and W. S. in another five pounds they became bounden to the Plaintiff in twenty pounds for the payment of ten pounds in satisfaction of the said sum of five pounds and
five pounds and that the Obligation was sealed before the day of the Assumpsit supposed and added that the same is the same debt and that the Obligation was made for the same debt And by the opinion of the whole Court the same cannot be a good plea for an Obligation cannot deraign a Contract or an Assumpsit afterwards made And the truth of the matter was that the Obligation was made after the Assumpsit although that the Plaintiff declared of an Assumpsit made after And in that case it was holden that the Defendant might plead the special matter that the Obligation was made after the said Assumpsit absque hoc that he Assumpsit c. CCXV Hawkins and Lawse Case Trin. 32 Eliz. In the Common Pleas. Debt HAwkins brought an Action of Debt against Lawse Executor of one A. for Rent reserved upon a Lease for years made to the Testator 3 Cro. 62 63. The Defendant pleaded fully administred and upon the Evidence it appeared that the said A. made the Defendant his Executor and that he did meddle with the possession of divers goods of the Testaor and so administred and afterwards â—â—â—used in Court and that the Administration was afterwards committed to one B. and that the Inventory of the goods of the Testator came to one thousand pounds And it was given in Evidence for the Defendant that he himself had paid certain debts and that divers persons have recovered against the Administrator divers sums of money amounting to one thousand pounds ultra And it was moved if that evidence did maintain the Issue for the Defendant because that the Defendant had pleaded plene adminstravit which implies an Administration by himself And now upon the Evidence it appeareth that the greatest part of the goods of the Testator were administred by the Administrator Periam If that Administrator who in truth is but a stranger pay any debts with the goods of the Testator without commandment of the Executor the same is not an Administration Administration and the Executor cannot give such matter in Evidence to prove his plea of fully administred Drew Serjeant If an Executor of his own wrong 3 Cro. 62 63. meddle with the goods of the Testator and afterwards the Administrator meddle with the residue and administer them In Debt against the Executor who pleads fully administred if he can prove that he himself hath administred part and the Administrator the Residue the same is good Evidence to maintain his Issue Periam It may be so there but here in our case the Defendant is the very Executor and he hath administred in which case afterwards he cannot refuse and so the Administration is not well committed and is granted without cause and he to whom the Administration is committed is a meer stranger and what he did was without warrant and therefore it is no Administration to prove the Issue And then the whole matter by direction of the Court was found by special verdict And by Periam in this case an Action may be brought either against the Executor of his own wrong or the Administrator but not against both of them joyntly See 21 H. 6. 8. by Yelverton and Portington Periam If the Testator mortgages a Lease for years and dyes and the Executors redeem it with their own monyes the said Lease shall be Assets in their hands for so much as the same is worth above the sum which they have paid for the redemption of it CCXVI Ivory and Fryes Case Trin. 32 Eliz. In the Common Pleas. IT was ruled by the whole Court in this case That if A. make B. his Executor and B. makes C. his Executor and dieth and a Debt is due to A. the first Testator If C. bring an Action of Debt for the said Debt as Executor to B. the Writ shall abate It was moved if an Infant within the age of one and twenty years be made Executor and administration is committed durante minore aetate in whose name the Action shall be brought in the name of the Infant or the Administrator Periam If the Will be proved before the Administration be committed the Action shall be brought in the name of the Infant Executor CCXVII Read and Johnsons Case Trin. 32 Eliz. In the Common Pleas. IN an Action upon the Case betwixt Read and Johnson Assumpsit the Plaintiff declared that where the Defendant was endebted to him 1 Cro. 242. he assumed to pay it And upon Non Assumpsit pleaded this special matter was found that the Plaintiff â—ased unto the Defendant certain Lands for years rendring rent eight pounds per annum and that the said Rent was behind for three years and that the Defendant was not otherwise endebted to the Plaintiff nor made any other promise but the contract upon the Reservation of the Rent And by the clear opinion of the whole Court the Action doth not lye because he hath a proper Action scil an Action of Debt in which no wager of Law lyeth CCXVIII Wright and the Bishop of Norwiches Case Trin. 32 Eliz. In the Common Pleas Quare Impedit Dy. 348. 360. IN a Quare Impedit betwixt Wright and the Bishop of Norwich it was moved if the King hath title to present for Lapse and presents and his Clerk is admitted and instituted but not inducted and dyeth before Induction If now the King shall present for the said Lapse because the Church was not full against the King. And the Iustices were all clear of opinion that the King might repeal such presentment before induction And as to the principal matter the Court seemed to incline that the King might present again CCXIX. Whiskon and Cleytons Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Trin. 30 Eliz. Rot. 1160. Devises IN an Ejectione firmae upon a special verdict found the case was this That C. was seised in Fee and devised the same to Solomon Whiskon his God-son after the death of his Wife and if he fail then he willed all his part to the discretion of his Father and died Solomon survived Post 283. the Father being dead before without any disposition of the Land. Gawdy was of opinion that upon those words that the Father had a Fee-simple as I will that my Lands shall be at the disposition of I. S. by these words I. S. hath a Fee-simple quod Periam concessit and they amount to as much as I will my Land to I. S. to give and sell at his pleasure And by Windham and Periam there is no difference where the Devise is that I. S. shall do with the Land at his discretion and the devise thereof to I. S. to do with it at his discretion CCXX Mich. 31 Eliz. In the Common Pleas. A leased to B. for years and before the expiration of the said Term leased the same by Indenture to a stranger to begin presently and the first Lessee committed Wast A. brought an Action of Wast against the
issues the Iury might have assessed the damages severally scil for each issue several damages but here is but one issue and it was the folly of the Defendant that he would not demur in Law upon the Declaration for one part scil the not performance of the Award and traverse the other part scil The suing of the Execution or the Assumpsit of it And in our case it may be that the Iury did assess the damages for the suing of the Execution without any regard had to the performance of the Award And note that the verdict for assessing of the Damages was in these Terms scil Et assidunt damna occasione non performationis Assumpsionis praedict c. And Cook who was of Councel in this Case put this Case The late Earl of Lincoln Admiral of England brought his Action of Scandalis Magnatum and declared That the Defendant exhibited in the Star-chamber against him a Bill of Complaint containing diverse great and infamous slanders viz. That the said Earl was a great and outragious oppressour and used outragious oppression and violence against the Defendant and all the Country also The Defendant pleaded Not guilty and found for the Plaintiff and assessed damages and it was moved in stay of Iudgment first That the Plaintiff had declared upon matter of slander for part for which an Action lyeth and for part not For the oppression supposed to be made to himself no Action lieth because every subject may complain for wrong done unto him and although he cannot prove the wrong an Action will not lye But as for the oppression done to others by the supposal of the Bill an Action lieth for what is that to him he hath not to do with it for he is not pars gravata But because the Iury assessed Damages entirement the Iudgment was arrested for the cause aforesaid And afterwards in the principal case the last day of this term Iudgment was staied CCXXXIX Palmer and Thorps Case Hill. 31. Eliz. In the Kings Bench. BEtwixt Palmer and Thorpe the Case was this 1 Cro. 152 A man demised his Manour of M. for thirty two years and the day after let the same Manour for forty years to begin from Michaelmas after the date of the first Lease and the Tenant attorned And by Cook the same is a good grant although to begin at a day to come for it is but a Chattel and so was the opinion of Wray Chief Iustice for a Lease for years may expect its commencement as a man seised of a Rent in Fee grants the same for twenty years from Mich. following and good for no estate passeth presently but only an Interest See 28 H. 8. 26. Dyer CCXL Sir Anthony Shirley and Albanyes Case Hill. 31 Eliz. In the Kings Bench. Rot. 668. IN an Action upon the Case upon Assumpsit by Sir Anthony Shirley against Albany Assumpsit 1 Cro. 150. The Plaintiff declared That he was seised of the Manor of Whittington for the term of his life the Reversion to the Earl of Arrundel in Fee and so seised surrendered all his Estate to the said Earl who afterwards by his Deed granted a Rent-charge of 40 l. per annum out of the said Mannor to him and afterwards conveyed the Manor to the Defendant in Fee. And afterwards 27 Maii 22. Eliz. upon a Communication betwixt the Plaintiff and the Defendant concerning the said Rent the Defendant did promise to the Plaintiff that if the Plaintiff would shew unto the Defendant any Deed by which it might appear that he ought to pay to the Plaintiff such a Rent he would pay that which is due and that which should be due from time to time And further declared that 27 April 27 Eliz. he shewed unto the Defendant a Deed by which it appeared that such a Rent was granted and due And for eighty pounds due for the two last years he brought the Action The Defendant pleaded that after the said promise and before the shewing of the said Deed scil 14 Jan. 22 Eliz. the Plaintiff entred into the said Land and leased the same for three years The Plaintiff Replicando said that 1 Decem. 27 Eliz. the Defendant did re-enter upon which they were at Issue and it was found for the Plaintiff It was moved by Glanvil Serjeant that by the entry the Promise was suspended and being a personal thing once suspended it is always extinct Wray The Action is brought for the Arrerages due the two last years and so at the time of his re-entry the Plaintiff had not cause of Action and therefore it could not be suspended Suspension of Rent Ante. 110. Gawdy When the Plaintiff sheweth the Deed the Defendant is chargable to arrerages due before and after the promise wherefore if the entry maketh a suspending of the Rent the suspension doth continue but I conceive here is not any suspension for this promise is a meer collateral thing and so not discharged by the entry into the Land for it is not issuing out of the Land. But if the Plaintiff before the Deed shewed had released all Actions the same had been a good Bar and I conceive that the Deed was not shewed in time for it ought to be shewn before any arrerages due after the promise but here it is shewn five years after But that was not denied by all ther other Iustices Another exception was taken that where the promise was that if the Plaintiff shewed any Deed by which it might appear that the Defendant should be charged with the said Rent and the Declaration is by which it might appear that the Plaintiff ought to have the Rent c. so as the Declaration doth not agree in the whole See 1 Ma. 143. in Browning and Bestons Case the Condition of the Lease was if the Rent should be arrear not paid by two Months after the Feast c. and the Rejoynder was by the space of two months c. And the pleading holden insufficient for per duos menses doth not affirm directly post duos menses but by Implication and Argument And here it was holden that the Condition was a good consideration Another exception was taken because the promise is layed All the Rent ad tunc debitum aut deinceps debend It was holden that this word ad tunc doth refer to the time of the shewing of the Deed and not to the promise And as to the last exception but one it was resolved that the Declaration notwithstanding the same was good enough scil ostendit factum per quod apparet quod redditus praedict solvi deberet in forma praedict Another exception was taken because here no breach of the promise is alledged for it is pleaded thath eight pounds de annuali redditu arrer fuer but it is not said de redditu praedict 8 l. ergo it may be another Rent and then the promise as to this Rent is not broken Wray Although the word praedict be wanting yet the Declaration is well enough
in such manner and form as I my self did hold the same and no otherwise Tenant for life died within the Term and he in the Reversion entred and the Lessee brought an action of Covenant Godfrey The action doth not ly for here is not any warranty for the Plaintiff is not Lessee but Assignee to whom this Warranty in Law cannot extend but admit that the Warranty doth extend to the Plaintiff yet it is now determined with the estate of the Tenant for life and so the Covenant ended with the estate See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant And if Tenant in tail make a Lease for years ut supra and afterwards dieth without issue the Covenant is gone and after Iudgment was given against the Plaintiff CCLV. Fish Brown and Sadlers Case Intrat Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench. AN action upon the Case was brought by Fish and Brown against Sadler Hill. 29 Eliz. rot 606. and they declared Action upon the Case That they were proprietaries of certain goods which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison to the intent to get the said goods into his possession of which the Plaintiffs having notice and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods and shewed further That by the said suit the Defend did obtain the said goods by sufferance of the Plaintiff Tanfeild It is a good consideration the Plaintiffs were not parties or Privies at the beginning of the suit it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared Assumpsit and consideration That the Defendant Countess c. being a Widow had divers suits and businesses and that the Plaintiff at her request had bestowed great labour and travail and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences and such a sum above for that matter which is the ground of the action is maintenance and malum prohibitum but such matter is not here for it is lawful for a man to use means to get his goods Gawdy All covins are abhorred in Law and here the Plaintiffs are privies to the wrong and therefore it cannot be any consideration Wray Although that the suit at the beginning was wrongful and covenous yet when the Plaintiffs who were owners of the said goods do assent to such proceedings now the suit is become just and lawful ab initio Corin. and so no wrong in the consideration but all the wrong is purged by the agreement If any covin be the same is between Sadler and him who is sued to whom the Plaintiffs are not privies Clench If this privity betwixt the Plaintiffs and Sadler had been before the said suit then the consideration is without any fraud Cooper Serjeant conceived here is not any good consideration upon which the Promise of the Defendant may be grounded for the Defendant hath not any benefit by it and he cited the case between Smith and Smith 25 Eliz. Egerton Here the consideration is good enough for the Plaintiffs forbear their own suit which was a hinderance unto them Clench was of opinion that the Plaintiff should not have Iudgment for that suit was begun by Sadler in the Name of Collison without his privity and therefor it was unlawful and the same was for the goods of another man which is unlawful also and then when the unlawful act is begun the illegal agreement afterwards that they shall proceed is unlawful also and therefore there cannot be any consideration and as to the covin it is not material for without that the matter is illegal enough Also the Declaration is not good in this because it is not shewed in what Court the suit did depend so as it might appear unto us that they had power to hold plea of it Gawdy agreed with Clench in the first point and also in the last and by him in the assumpsit the Plaintiff declares that a suit was depending betwixt the Defendant and another and where the Plaintiffs if they were produced might have given strong witness against the Defendant the said Defendant in consideration that the Plaintiffs would not give Testimony against him promised to give to the Plaintiff 20 l. the same consideration will not maintain this action because it is unlawful for any man to suppress testimony in any cause 1 Cro. 337. Wray Here is a consideration good enough For where Sadler should lose costs upon the first suit now upon this promise upon his account he shall be allowed the same the which is a benefit unto him and as to the shewing in what Court the suit doth depend that needs not by way of Declaration but the same shall be shewed by way of Evidence and it is not traversable and it is but inducement to the action And as to the covin that is not here for covin is always to the prejudice of a third person but so it is not here But in truth this suit was unlawful for Sadler so to sue in the Name of another and therefore it cannot be a good consideration And for that cause it was awarded Quod querens nihil capiat per billam CCLIV How and Conneys Case Trin. 31 Eliz. In the Kings Bench. Trespass 1 Cro. 159. IN an action of Trespass by How against Conney the case was That one Smith was seised of two houses and leased one of them to his Brother for life and afterwards by his Will devised viz. I give to my Executors All my Lands and Tenements free and copy to hold to them and they to take the profits of them for ten years and afterwards to sell the said Lands and Tenements and afterwards died his Brother died before the quarter of a year after and it was found That the Executors entred into the house undemised and took the profits but not into the other and that at the end of the said ten years they sold the whole Godfrey The house only which was in possession shall pass by the Will. To hold unto them doth imply matter of possession so as nothing passeth but that whereof they may take the profits the which cannot be of a bare Reversion also by this devise the Executors have not interest in the thing devised but for ten years Plow 66. Shop 437. whereas the Brother of the Testator had an estate for life which by possibility might continue above twenty years and to prove that the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the
case And at another day it was objected That the Deed could not be acknowledged without a Letter of Attorney being a Corporation which consisted upon divers persons as Prioress and Covent and they are alwaies to be intended to be in their Chapter-house and cannot come into Court to acknowledge a Deed To which it was answered by Cook That this acknowledgment being generally pleaded it shall be intended that it was done by a Lawful means and there is no doubt but that such a Corporation may levy a Fine and make a Letter of Attorney to acknowledge it and see 2 Ma. Fulmerstones case 105. It was further objcted 2 Inst 674. That this Deed was enrolled the same day that it beareth date for the pleading is per factum suum gerens Datum 2 Novemb. 29 Hen. 8. et iisdem die anno irrotulat And by the Statute such a Deed ought to be enrolled within six Months next after the date so as the day of the date is excluded and so it is not enrolled within six Months As to that it was answered by Cook That the time of computation doth begin presently after the delivery of the Deed as in the common Cases of Leases If a man makes a Lease for years to begin from the day of the date the same is exclusive but if it be To have and to hold from the date of the Deed it shall begin presently And an Ejectment supposed the same day is good and then here this Enrolment is within the six Months Dyer 220. b. 1 Cro. 717. and yet see 5 Eliz. 128. Dyer Pophams case It was also objected That it is alledged in the conusans That the Manor was sold to the Lord Audley and that the Deed of Bargain and Sale was acknowledged and enrolled in the Chancery the said Lord being then Lord Chancelor and he cannot take an acknowledgment of a Deed or enrolment of it to himself for he is the Sole Iudge in the said Court so as the Deed is acknowledged before himself and enrolled before himself and that is good enough for here we are not upon the common Law but upon the Statute and here the words of the Statute are performed And the enrolment of the Deed is not the substance of the Deed but the Deed it self Also the acknowledgment of the Deed after it is enrolled is not material for he is estopped to say that it is not acknowledged And as to the matter it self a man shall not have averment against the purport of a Record but against the operation of a Record as not put in view not comprised partes ad finem nihil haberunt c. And against Letters Pattens of the King Non concessit is a good plea which see 18 Eliz. for by such plea it is agreed that it is a Record but that nihil operatur CCLVIII. Osborn and Kirtons Case Hill. 31 Eliz. In the Kings Bench. Rot. 258. IN Debt upon an Obligation The Defendant cast a Protection Debt upon which the Plaintiff did demur Tanfield The Protection is not good for the Defendant is let to Bail and so is intended always in prison for so the Record makes mention and then the Protection quia moratur in portubus Zeland is against the Record Protection and the Court ought to give credit to Records especially Secondly The words of the Protection are That Kirton is imployed in Obsequio nostro which is no cause of protection for the usual form and so is the Law that such a person be imployed in negotio Regni for the defence of England c. For if the King will give aid unto another Princes Subjects employed in such service he shall not have Protection And afterwards variance was objected betwixt the Bill and Declaration and the Protection for the Bill is against John Kirton of A. Gentleman the Protection is John Kirton only But the same was holden no such variance being only in the Addition for before the Statute 1 H 5. additions were not necessary in any actions CCLIX Boyton and Andrews Case Mich. 30 Eliz. Rot. 156. In the Kings Bench. IN Debt upon an Obligation the Condition was Debt 1 Cro. 135. to make sufficient assurance of certain Lands to the Obligee before the tenth day of March 17 Eliz. And if it fortune the said Obligee be unwilling to receive or mislike such assurance but shall make Request to have one hundred pounds for satisfaction thereof Then if upon such Request the Obligor pay one hundred pounds within five months That then the Obligation shall be void And at the day the Obligee doth refuse the assurance and afterwards 27 Eliz. request is made to have the hundred pounds It was the clear opinion of the whole Court That the said Request was well enough for the time and he might make it at any time during his life he is not restrained to make it before the day in which the Assurance is to be made and afterwards judgment was given for the Plaintiff CCLX Knight and Savages Case Mich. 29 30 Eliz. Rot. 546. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned Error Error 2 Cro. 206. 2 Cro. 109. 654. Sty 91. Yel 164. 165. Post 302. because in that Suit there was not any plaint and in all inferior Courts the plaint is as the original at the common Law and without that no process can issue forth And here upon the Record nothing is entred but that the Defendant summonitus fuit c. and therefore the first entry ought to be A. B. queritur adversus C c. Clench A Plaint ought to be entred before process issueth the summons which is entred here is not any plaint and for that cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred but it was said by the Court That that shall not mend the matter for there ought to be a plaint out of which the process shall issue as in the Courts above out of the original Writs CCLXI Kirby and Eccles Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 137. IN an Action upon the Case the Plaintiff declared Quod cum quaedam communicatio fuisset betwixt the Plaintiff and one Cowper That Cowper should mast certain Hogs for the Plaintiff the Defendant did promise That in consideration that the Plaintiff promised give unto the Defendant three shillings and four pence for the fatting of every Hog That the said Hogs should be redelivered to him well fatted to which promise and warranty the Plaintiff giving faith delivered to the said Cowper one hundred and fifty Hogs to be masted and that one hundred of them were delivered back but the residue were not It was moved That here is not any consideration for which the Defendant should be charged with any promise but it was argued on the other side That the Promise was the cause
and for his Board-wages twenty six pounds CCCII Chamberlayns Case Mich. 32 33 Eliz. In the Common Bench. IN this Case it was moved whether Beasts taken in Withernam might be used and worked by the party as his proper Beasts Owen Rep. 124. 2 Cro. 148. And it was said by the Court that Beasts distrained as Cows could not be milked nor Horses wrought but they ought to be put in the Pound open and there the Owner might milk them and fodder them But if Cows be taken in Withernam because they are delivered to the party in lieu of his own Cattel Cattel taken in Withernam worked 3 Leu. 235. 236. he may milk them or if they be Oxen or Horses reasonably work them otherwise he should be at great charges of keeping and pasturing of them and no profit or consideration for it Anderson It should be a great inconvenience to the Common-wealth For if the Cows are not milked the milk is lost and also the Cows impaired thereby CCCIII. Byne and Playnes Case Mich. 32 33 Eliz. In the Common Bench. Assumpsit 1 Cro. 218. IN an action upon the case by Byne against Playne the Plaintiff declared that whereas he himself had recovered against Thomas Ward in the Court of the Queen in Southwark holden before Omesley Steward there for the Mayor of London the sum of twenty pounds and had obtained out of the said Court a Levari facias directed to the Bayliff to do execution upon the Goods of the said Thomas Ward which then were in the possession of the said Plaintiff and where the said Bayliff by vertue of the said Writ was ready to have done execution of the said Goods the Defendant came to the now Plaintiff and assumed to him that in consideration that the said Plaintiff would deliver to the Defendant the said Goods that he would in fourteen days after Michaelmas next pay to the Plaintiff twenty pounds or otherwise deliver to him the said Goods again if in the mean time no other makes Title unto them and prove them to be his own Goods And further that the Plaintiff shall have free ingress and regress to a Chamber in the house of the Defendant in the mean time And upon Non-assumpsit pleaded it was found by the Iury that such a Recovery was in the said Court and that the Defendant did assume c. But they further say that before the said Recovery the said Thomas Ward was possessed of the said Goods as of his own proper goods And by Deed indented sold them to his Brother R. W. in consideration of a certain sum of mony with a Proviso that the said Tho. Ward notwithstanding the said sale should have the possession of them for four years which are not yet expired paying to the said R. VVard twenty shillings by the year and if at the end of the said four years the said Thomas did repay the said sum of mony to the said R. VVard that then the said sale should be void And they further say that the said Robert VVard made Title to the said goods by vertue of the said sale Exception was taken to the Declaration because it was not shewed by what Authority or Title the Court was holden Also it sheweth that the Bayliff was ready to do Execution upon the said Goods but doth not shew where the said goods then were but the exceptions were not allowed for these matters are but inducement and conveyance to the action and not the matter or substance of it Another exception was taken because the request is not sufficiently alleadged Licet saepius requisitus but that exception was not allowed for here the Assumpsit is to pay at a certain day and then the request is not material but where a Request is parcel of the Assumpsit Request there an express Request ought to be taxed as if the payment should be upon Request As to the matter in Law here is not any consideration for the goods were not subject to execution for Thomas Ward had but a special property in them but the general property was in R. VVard and so no cause to deliver them back to the Plaintiff and here by the Verdict the forain title is proved for proof ought to be by Verdict which see Perk. 154. a. 7. R. 2. Tit. Bar. 241. For it appeareth before the said Recovery Thomas sold the goods with promise ut supra Owen Although it be found that R. VVard had the general property yet Thomas had the special and present property and that against R. VVard himself so that during the said four years R. VVard could not entermeddle with the goods and though that no execution can be had against him who hath such a special property yet that is not the case here for here one who hath the possession of certain goods delivers them to another and in consideration thereof he to whom the delivery is made promiseth to re-deliver them unto the Bailee or to pay so much mony this is a good consideration when a lawful property or title he hath who makes the Delivery And of that opinion were all the Iustices for it appeareth that the Plaintiff had a possession of the said goods and that the said Thomas Ward had a special property and because of such possession was chargeable to an action of the said Thomas Ward be it that the Plaintiff comes to the said goods by baylment or Trover for by Periam if goods come to another by Trover and he delivereth them over he is answerable to him who hath right unto them The Delivery of these goods to the Defendant is a good consideration and the Defendant hath benefit by the use of them and the property of the goods is not to be argued in this case but the Delivery to the Defendant is the only matter And because the Delivery of the goods to the Defendant and the Assumpsit upon it it was holden although the goods were not liable to execution yet the Assumpsit was good and afterwards Iudgment was given for the Plaintiff CCCIV. Vandrink and Archers Case Mich. 32 33 Eliz. In Communi Banco VAndrink brought an action upon the case against Archer and declared Trover and conversion that whereas he himself was possessed of twenty Ells of Linnen cloath as of his own goods the same came to the hands of the Defendant by Trover and he knowing the said goods to be the goods of the Plaintiff sold them unto persons unknown and the mony thereof proceeding did convert to his own use The Defendant pleaded that as to twenty four Ells of the said Linnen cloath long time before the losing one Copland was possessed thereof ut de bonis suis proprijs Ante. 189. and sold them to the Defendant who before any notice that they were the goods of the Plaintiff before any request sold them to persons unknown And as to the other three Ells he was always ready to deliver them
Steward as if the Lord of a Manor be beyond the Sea * More 1 Rep. the Writ of Right shall be directed to the Bayliff of the Manor and see 21 H. 7. 36 37. Where the Sheriff or Steward of a Manor may be without Deed and here in the principal case the Retainer is not to keep one Court but to keep the Courts of the Lady of the Manor scil all her Courts until he be discharged It was adjourned CCCX Ascew and Fuliambs Case Pasch 33 Eliz. In the Common Pleas. Andita Querela 1 Cro. 233. AScew was bounden by Statute to Fuliamb and there was not two Seals put to the Statute and Execution was sued upon the said Statute the Conusor brought an Audita Querela and they were at Issue if two Seals were to the said Statute and tried for the Plaintiff in an Audita Querela by the Sheriff of the City of Lincoln And it was moved by Glanvil Serjant That the Issue ought to have been tryed by the Certificate of the Mayor of Lincoln before whom the acknowledgment was and not by Iury which was denyed for the Issue is not whether any such Statute was acknowledged or not but whether the Statute in question hath two Seals or not and that is not recorded by the Mayor as the Statute it self is Another Exception was taken It appeareth by the Margent of the Record that the Issue was tryed by the County of Lincoln where it ought to be tryed by the County of the City of Linc. for Linc. only is in the Margent But to that it was said that such is the usual form to which the Preignothories agreed and the Book of 18 E. 3. 25. was urged where execution of Lands of the Conusor was awarded upon a Statute Merchant and the Statute was to pay c. 16 E. 3. But the Original Writ which issued to take the body of the Conusor was 14 E. 3. And upon that Error brought And the Court agreed that case but these two cases do differ for there the Process was misawarded not so here And although a Writ of Error may lye yet the same doth not prove but that an Audita Querela may lye also And afterwards Iudgment was given for the Plaintiff CCCXI. Jennings and Gowers Case Pasch 31. Eliz. In the Common Pleas. IN the Case betwixt Jennings and Gower the words were 1 Cro. 219. That if the wife of the Devisor would permit one Wats to enjoy such a Term for the Term of three years next following that then she should have all the residue of his Goods and Chattels as his sole Executrix c. Anderson chief Iustice conceived That she should not be Executrix For she is to be Executrix upon a condition precedent to be performed before that she be Executrix And the condition is impossible to be performed and then she shall never be Executrix for where an estate is to be created upon a condition impossible to be performed there the estate shall never come in esse and here the condition is impossible for how can she suffer Wats to enjoy the Term for 3. years next following the 3. years ought to be past before she hath any power either to permit or resist for until the three years be encurred she cannot be Executrix nor before the three years expired can she bring any action as Executrix for her authority doth not begin before the three years be expired Walm Peri. Wind. contrary Although a grant upon a condition precedent doth not take effect until the condition be performed yet such a construction ought not to be used in this case so the intent of the Devisor in this case shall stand If the condition had been that if the wife will find meat and drink to such a person until his death That then she shall be Executrix shall not the Wife be Executrix till after the death of such party truly yes for otherwise she should never be Executrix which is utterly against the meaning of the Testator for it was not his intent that the Ordinary should commit Administration of his goods in the mean time And afterwards Anderson changed his opinion and agreed with the other Iustices Periam The subsequent words prove directly that the meaning of the Testator was to make his Wife Executrix immediately until she were disturbed by the said Wats for the words are that if she refuse to suffer the said Wats to enjoy c. Then his Son shall be his Executor which words imply that by a disturbance made by the Wife her Executor-ship should cease and that the Son should have it which cannot properly be if she was not Executrix from the beginning And it is the usual course in the construction of Wills to consider all the clauses of the Will and to judge upon all the words of the Will and not upon one part only and such construction the Iudges used in the cases of Param and Yardley and Welden and Elhing And afterwards at another day Iudgment was given for the Wife That she was Executrix presently and her authority should not expect until the three years were expired if not that any actual disturbance can be proved to be or have been made by the Wife against the Will of the Devisor and the words of the Will will receive such construction that she shall be Executrix until an actual disturbance of Wats CCCXII Palmes and the Bishop of Peterboroughs Case Pasch 33. Eliz. in the Common Pleas. Quare Impedit 1 Cor. 241. IN a Quare Impedit by Margaret Palmes against the Bishop of Peterborough who pleaded That the Plaintiff did present unto him one I. S. of whom the Bishop asked if he were within Orders and if he had his Letters of orders and because the Presentee could not shew the Bishop his Orders he refused him And commanded him to come another time and shew to him his Orders and that the Presentee did never do it nor offered to the said Bishop his said Orders without that he did disturb him in other manner And by Periam and Anderson it is no Plea for upon his own shewing the Defendant is a disturber Refusal of the Bishop Degg 75. For although that the Statute of 13 Eliz. requires that no man shall be admitted to a Benefice with cure of souls if he be not a Deacon yet the Statute doth not extend to compel the Clark to shew his Orders and therefore when he for such a frivilous cause doth refuse to admit him the same is a disturbance And afterwards exception was taken to the Count because that the Plaintiff being Tenant for life of the Advowson of the gift of her Husband Co. 5 Rep. 57. had not alleadged any Presentment in her Husband or any of his Ancestors but only in her self But that was not allowed for that point hath been lately over-ruled in this Court in the case betwixt Specot and the Bishop of Exeter 8 H. 5. 4. adjudged
The last words of the Limitation do not distinguish or disjoyn it but respect the estate precedent And by Clench Iustice If the use limited to Ambrose shall depend only upon the Limitation of his death the same should be void for then he should not he in esse to take But the other Iustices were of a contrary opinion and that the use is good 7 H. 4. Gawdy Although that here be three things yet but two times for the words are not or at such of the said days or times as shall first happen for that would alter the case But here these words ought to be intended as if they were spoken before in the Limitation of the estate to the Daughters and cannot divide the former Limitation and he said that if by reason that the Limitation upon the death which is certain it shall vest in Ambrose presently then if after the other Limitation shall fall then his Remainder which vested in him upon the said certain Limitation should be devested and should now accrue to him upon the other Limitation which should be absurd and inconvenient c. It was adjorned CCCXXXI Thomas and Wards Case Trin. 32. Eliz. In the Kings Bench. IN Ejectione firmae by Thomas against Ward Ejectione firme 1 Cro. 102. upon a Lease made to him of the Manor of Middleton Cheney by one Chambers the Defendant pleaded that long time before the Lessor of the Plaintiff had any thing the Bishop of Rochester was seised and leased the same to the Defendant the Plaintiff by Replication said that the said Lease was upon condition viz. The Lessee by the Indenture of the said Lease did covenant that he would not put out or disturb any of the Tenants inhabiting within the said Manor out of their Tenancies doing their duties according to the custom of the said Manor and shewed that the Defendant had put out one Ann Green a Tenant dwelling there upon a Tenement parcel of the said Manor late in the possession and occupation of the said Ann and that the Bishop had re-entred for the condition so broken and made a lease to the Lessor of the Plaintiff upon which Replication the Defendant hath demurred in Law Tanfeild argued for the Defendant that the Bishop had no cause to re-enter for there is not any condition in the Case but only a Covenant for it comes in only on the part of the Lessee and they are words of Covenant only whereas every condition ought to be the words of the Lessor and the Bishop hath sufficient remedy by Action of Covenant But if the words had been indifferent and absolute without depending on the Lessor or Lessee then it had been otherwise as 3 E. 6. Dyer 65. Non licebit to the Lessee dare concedere vel vendere statum vel terminum without the Licence of the Lessor under pain of forfeiture the same is a good condition but here it is meerly a Covenant and it cannot be both Haughton Although the words sound in Covenant and be the words of the Lessee yet the Lease being made by Indenture the same is the Deed of both and every word in it is spoken by both parties and although that he may have an Action of Covenant yet he cannot thereby overthrow the Lease as by Entry by condition broken and yet by the words it seems the meaning of the Indenture was that by the breach of this Covenant the estate should be defeated for so are the words sub poena forisfactur And here by way of Action he cannot have the benefit of the whole Covenant and therefore he shall have it by way of condition And see the case betwixt Browning and Beston Plow 132. If it happen the Rent to be behind that then the Lessee Covenants that although the Rent be not demanded that the said Lease should be utterly extinct void and of no effect and 24 Eliz. there was a case betwixt Hill and Lockham where by the Indenture of Lease the Lessee Covenanted to grind all his Corn at the Mill of the Lessor and afterward in the end of the said Indenture the Lessee covenanted to perform all the Covenants sub poeâ—a sorisfactur and by the opinion of the whole Court the same was a condition And see 21 H. 6. 51. where in an Obligation where A was bound to B. the condition is written in this manner Praedict B. vult concedit That if the said A. doth stand to the Arbitrament of such a one that then c. the same is a good condition although they are the words of the Obligee and the Deed of the Obligor and so here is a good condition And such was the opinion of Wray and Gawdy and Fenner did not contradict it Wherefore Tanfeild said Admit here it is a condition yet here is not any breach of it sufficiently set forth for the breach is assigned because he had put out a woman unam tenentem inhabitantem out of certain Lands parcel of the said Manor late in the possession and occupation of the said woman and that might be that she was but Tenant at Will and the Covenant doth refer only to Copy-holders And it may be also that she had disseised one of the Tenants of the Manor in which case the putting out of such a Tenant being in by wrong is no breach of condition Also it is not averred in facto that Ann was Tenant of any part of the Mannor Also the Replication is That the said Defendant had ousted the said Ann where she had done her duty fecit debitum suum before the Ouster and that might be that she had done her duty once but not after and therefore he ought to have said that she had done her duty always before her putting out and this word duly being single is too general for it may be understood of curtesie where the words in the Indenture are Doing their duty according to the custom of the Manor And also it might be that Ann Green was Tenant and Inhabitant but was not put out of the Land which was parcel of the Manor And Wray said that these Exceptions were incurable And therefore Iudgment was given against the Plaintiff CCCXXXII Harvy and Thomas Case Mich. 31 32 Eliz. Rot. 414. In the Kings Bench. THe Case was Leases 1 Cro. 216. Husband and Wife seised of Lands in the Right of the Wife the Husband alone makes a Lease by word for years Afterwards the Husband and Wife levy a Fine and after the Wife and Husband both dye It was holden clearly by the whole Court that the Conusee should avoid the Lease CCCXXXIII Sly and Mordants Case Trin. 32. Eliz. Rot. 314 In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 191. 2 Len. 103. 3 Len. 174. Dy. 250. 1 Cro. 198 199. that whereas he was seised of certain Lands the Defendant had stopped a Water-course by which his Land was drowned and found for the Plaintiff It
out of the pardon shall be intended and construed the bare Act of Conversion but the whole offence i. the continuance and practise of it is understood As if by general pardon all intrusions are excepted now by that the instant Act of Intrusion i. the bare Entry is not only excepted but also the continuance of the Intrusion and the perception of the profits And note The words of the Statute are conversion permitted and Conversion continued is Conversion permitted And the said Statute doth not punish the Conversion but also the continuance of the Conversion for the penalty is appointed for each year in which the Conversion continues And Egerton Solicitor put this Case 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt if the Defendant in delay of Execution sues a Writ of Error and the Iudgment be affirmed he shall pay damages now the case was That one in Execution brought such a Writ of Error and the first Iudgment is affirmed he shall pay damages and yet here is not any delay of the Execution for the Defendant was in Execution before but here is an Interruption of the Execution and the Statute did intend the Execution it self i. the continuance in Execution ibidem moraturus quousque It was said on the other side That the conversion and continuance thereof are two several things each by it self and so the conversion only being excepted in the pardon the continuance thereof remains in the grace of the pardon And it appeareth by the Statute of 2 and 3. Ph. Ma. That conversion and continuance are not the same but alia atque diversa and distinct things in the consideration of the Law for there it is enacted That if any person shall have any Lands to be holden in Tillage according to the said Statute but converted to Pasture by any other person the Commissioners c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again c. And in all cases in the Law there is a great difference betwixt the beginning of a wrong and the continuance of it As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth an Assize of Nusance doth not lye against the Heir for the continuance of that wrong but a Quod permittat See F.N.B. 124. It was adjorned CCCLXX Powley and Siers Case Mich. 26 Eliz. In the Kings Bench. POwley brought Debt against Sier Executor of the Will of A Debt The Defendant demanded Iudgment of the Writ for he said That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor so the Writ ought to be brought against the Defendant as Executor of the Executor and not as immediate Executor to the said A. The Plaintiff by Reply said That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ Wray Iustice was against the Writ for although here be not any probate of the Will of A. or any other Administration yet when B. made his Will and the Defendant his Executor the same is a good acceptance in Law of the Administration and Execution of the first Will for the Defendant might have an Action of Debt due to the first Testator Gawdy and Ayliff Iustices The Writ is good See Dyer 1 Cro. 211. 212. 23 Eliz. 372. against Wray CCCLXXI Pasch 26 Eliz. In the Kings Bench. THe Case was A seised of certain Lands Bargain and sale of Trees bargained and sold by Indenture all the Trees there growing Habendum succidendum exportandum within twenty years after the date of the said Indenture the twenty years expire The Bargainee cuts down the Trees A. brought an Action of Trespass for cutting down the Trees And by Wray Iustice The meer property of the Trees vests in the Bargainee Post 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time within which if the Vendee doth not cut them he should be punished as a Trespassor as to the Land but not as to the Trees Gawdy contrary And that upon this Contract a conditional property vests in the Vendee which ought to be pursued according to the direction of the condition and because the condition is broken the property of the Trees is vested in A. CCCLXXII Curriton and Gadbarys Case Pasch 26 Eliz. In the Kings Bench. IN in Action upon the Case the Plaintiff declared Leases That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands Habendum after the death of A. before the tenth of August next following promised to pay the Plaintiff ten pounds the first day of May next after the promise which was before the tenth of August And the truth was That the said ten pounds was not paid at the day ut supra nor the said Lease made And now both sides being in default the Plaintiff brought an Action It was said by Wray Iustice If the Plaintiff had made the Lease according to the consideration and in performance thereof the action would have lyen but now his own default had barred him of the Action But for another cause the Declaration was holden insufficient for here is not any Consideration for the promise is in consideration that the Plaintiff shall lease to the Defendant for life Habendum after the death of A. which cannot be good by way of lease but ought to enure by way of grant of the Reversion so as here is no lease therefore no consideration and notwithstanding that if a Lease be made for life Habendum after the death of A. the Habendum is void and the Lease shall be in possession according to the Premises yet the Law will not give such construction to the words of a Promise Contract or Assumpsit but all the words ought to be wholly respected according to the Letter so as because that no Lease can be made according to the words of the Consideration no supply thereof shall be by any favorable construction And so it was adjudged But before the same imperfection was espied Iudgment was entred and therefore the Court awarded that there should be a cesset executio entred upon the Roll for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament because Parliaments are not now so frequently holden as they have used to be holden and the Execution was staid accordingly CCCLXXIII Willis and Crosbys Case Pasch 26 Eliz. In the Kings Bench. Error IN a Writ of Error It was assigned for Error That whereas in the first Action the parties were at issue and upon the Venire facias one Gâ—â—gory Tompson was returned But upon the Habeas Corpora George Tâ—â—â—â—son was returned and the Iury was taken and found for the
Recovery against Massey Error And in the said Recovery four Husbands and their VVives were vouched and now the Plaintiff brought this Writ of Error as heir to one of the Husbands and Exception was taken to his Writ because the Plaintiff doth not make himself heir to the Survivor of the four Husbands Egerton The Writ is good enough for there is a difference betwixt a Covenant personal and a Covenant real for if two be bound to warranty and the one dyeth the Survivor and the heir of the other shall be vouched and he said each of the four and their heirs are charged and then the heir of each of them being chargeable the heir of any of them may have a Writ of Error And afterwards the Writ of Error was adjudged good Ante 86. And Error was assigned because the Vouchees appeared the same day that they were vouched by Attorney which they ought not to do by Law but they might appear gratis the first day without Proces in their proper persons and so at the sequatur sub suo periculo See 13 E. 3. Attorn 74. and 8 E. 2. ib. 101. Another Error was assigned Because the Entry of the warrant of Attorney for one of the Vouchees is po lo. suo I.D. against the Tenant where it should be against the Demandant for presently when the Vouchee entreth into the warranty he is Tenant in Law to the Demandant Coke As to the first Error Although he cannot appear by Attorney yet when the Court hath admitted his appearance by Attorney the same is well enough and is not Error As to the other Error I confess it to be Error but we hope that the Court will have great consideration of this case as to that Error for there are one hundred Recoveries erronious in this point if it may be called an Error And then we hope to avoid such a general mischief that the Court will consider and dispense with the rigor of the Law As their Predecessors did 39 H. 6. 30. In the Writ of Mesne But I conceive That the Writ of Error is not well brought for the Voucher in the said Recovery is of four Husbands and their Wives and when Voucher shall be intended to be in the right of their Wives which see 20 H. 7. 1. b. 46 E. 3. 28. 29 E. 3. 49. And so by common intendment the Voucher shall be construed in respect of the Wife So also the Plaintiff here ought to entitle himself to this Writ of Error as heir to the Wife And for this cause The Plaintiff relinquished his VVrit of Error And afterwards he brought a new VVrit and entituled himself as heir to the wife CCCXCIX The Queen and the Dean of Christchurch Case Mich. 26 27 Eliz. In the Kings Bench. Praemunire 3 Len. 139. THe Queens Attorney General brought and prosecuted a Praemunire for the Queen and Parret against Doctor Matthew Dean of Christ-church in Oxford and others because they did procure the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law in which suit Parret pleaded Son Franktenement and so to the Iurisdiction of the Court and yet they did proceed and Parret was condemned and imprisoned And after that suit depended The Queens Attorney withdrew the suit for the Queen And it was moved If notwithstanding that the party grieved might proceed See 7 E. 4. 2. b. The King shall have Praemuire and the party grieved his Action See Br. Praemunire 13. And by Brook none can have Praemunire but the King Coke There is a President in the Book of Entries 427. In a Praemunire the words are ad respondendum tam Domino Regi quam R.F. and that upon the Statute of 16 R. 2. and ib. 428 429. Ad respondendum tam Domino Regi de contemptu quam dict A. B. de damnis But it was holden by the whole Court That if the Kings Attorney will not further prosecute the party grieved cannot maintain this suit for the principal matter in the Praemunire is The conviction and the putting of the party out of the protection of the King and the damages are but accessary and then the principal being released the damages are gone And also it was holden by the Court That the Presidents in the Book of Entries are not to be regarded and there is not any Iudgment upon any of the pleadings there but are good directions for pleadings and not otherwise CCCC Mich. 26 27. Eliz. In the Kings Bench. Fines levied 1 Cro. 35. THe Case was A. gave Lands in tail to B. upon condition That if the Donee or any of his heirs alien or discontinue c. the Land or any part of it that then the Donor do re-enter The Donee hath issue two Daughters and dieth One of the two Daughters levieth a Fine Sur Conusans de droit come ceo Forfeiture to her Sister Heale Serjeant the Donor may enter for although the Sisters to many intents are but one Heir yet in truth they are several Heirs and each of them shall sue Livery 17 E. 3. If one of the Sisters be discharged by the Lord the Lord shall lose the Wardship of her and yet the Heir is not discharged And if every Sister be heir to diverse respects then the Fine by the one Sister is a cause of Forfeiture Harris contrary For conditions which go in defeating of estates shall be taken shortly Conditions and here both the Sisters are one Heir and therefore the discontinuance by the one is not the Act of the other Clench Iustice The words are Or any of his heirs therefore it is a forfeiture quod fuit concessum per totam Curiam And Iudgment was given accordingly CCCCI Mich. 26 27 Eliz. In the Kings Bench. THe Case was Assumpsit Hutt Rep. 34. Hob. 284. A Woman seised of a Rent-charge for life took Husband the Rent was arrear the wife died the Tenant of the Land charged promised to pay the Rent in consideration that the Rent was behind c and some were of opinion Because that this Rent is due and payable by a Deed that this Action of the Case upon Assumpsit will not lye no more than if the Obligor will promise to the Obligee to pay the mony due by the Obligation 3 Cro. 5. an Action doth not lye upon the Promise but upon the Obligation But it was holden by the whole Court That the Action did well lye for here the Husband had remedy by the Statute of 32 H. 8. And then the consideration is sufficient and so Iudgment was given for the Plaintiff CCCCII. Williams and Blowers Case Hill. 27 Eliz. In the Kings Bench. REignold Williams and John Powell brought a Writ of Error against the Bishop of Hereford and Blower Error upon a Recovery had in a Writ of Disceit by the said Bishop and Blower against the said
the Seisin or possession of the Tenant in Demesn who ought immediately to have paid the said Rent so behind to the Testator in his life or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by Purchase Gift or Discent in like manner as the Testator might or ought to have done in his life time And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind B. dyeth A. infeoffeth C. of the Lands in Fee who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey Periam and Windham Iustice against Anderson Lord chief Iustice that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed That the Lord by Escheat Tenant in Dower or by the curtesie should not be charged for they do not claim in by the party only but also by the Law. CCCCXIX Wigot and Clarks Case Hill. 32 Eliz. In the Common Pleas. IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester the four Knights gladiis cincti did appear Writ of Right and took their corporal Oath that they would choose 12 c. ad faciendum magnam Assisam and by direction of the court they withdrew themselves into the Exchequer chamber and there did return in Parchment the names of the Recognitors and also their own names and at the day of the return of the Pannel by them made the 4 Knights and 12 others were sworn to try the issue and it was ordered by the Court That both the parties scil the Demandant and the Tenant or their Attornies attend the said 4 Knights in the Exchequer chamber and to be present at the making of the Pannel so as each of them might have their challenges for after the return of the Pannel no challenge lieth and thereupon the said 4 Knights went from the Bar and within a short time after sitting the Court they returned the Pannel written in Parchment in this form Nomina Recognitorum c. inter A. petentem B. tenentem and so set down their names six other Knights ten Esquires and four Gentlemen and the Iustices did commend them for their good and sufficient Pannel and thereupon a Venire facias was awarded against the said parties CCCCXX Pory and Allens Case Trin. 30 Eliz. Rot. 611. In the Common Pleas. THe case was That Lessee for 30 years leased for 19 years 1 Cro. 173. Owen 97. Post 322 323. Surrender 1 Cro. 302. and then the first Lessee and one B. by Articles in writing made betwixt them did conclude and agree That the Lessee for 19 years should have a Lease for three years in the said Lands and others and that the same should not be any surrender of his first Term to which Articles the said Lessee for 19 years did after agree and assent unto and it was the opinion of all the Iustices of the Court that the same was not any surrender and they also were of opinion That one Termor could not surrender to another Termor CCCCXXI Glanvil ane Mallarys Case Trin. 31 Eliz. Rot. 321. In the Common Pleas. GLanvil was Plaintiff in Audita Querela Audita Querâ—la 1 Cro. 2â—8 against Mallary upon a Statute Staple for that the conusor was within age at the time of the acknowledging of it it was moved for the Defendant that the Court ought not to hold Plea of this matter because there was no Record of the Statute remaining here and therefore by Law he was not compellable to answer it c. and a President was disallowed 5 H. 8. where such a pleading was allowed and judgment given that the Defendant eat sine die Loves Case Dudley and Skinners Case vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed that divers such Writs had been shewed in the Common Pleas as 30 Eliz. Loves case and the Lord Dudley and Skinners case and thereupon it was adjudged that the Action did well lye in this Court. CCCCXXII Pet and Callys Case Mich. 32 Eliz. In the Common Pleas. Debt IN Debt upon a Bond for performance of covenants the case was I. S. by Indenture covenanted with I.D. that such a woman viz. R.S. at all times at the request and charges of I.D. should make execute and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require I.D. devised a Fine to be levied by the said Woman and required her to come before the Iustices of Assise to acknowledge it and the woman came before the said Iustices to that intent and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants where the breach was assigned in not acknowledging of the said Fine and upon the special matter the party did demur in Law and the opinion of the whole Court was that the condition was not broken for the words are general to make such reasonable assurances which c. but if the words had been special to acknowledge a Fine there if the Iustice doth refuse to take such acknowledgment the Bond is forfeited for the party hath taken upon him that it should be done Wangford and Sextons Case Mich. 22 Eliz. In the Common Pleas. 1 Cro. 174. Kel 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution The Defendant after the day of the Teste of the Fierifacias and before the Sheriff had medled with the execution of the Writ bona fide for money sold certain goods and chattels and delivered them to the buyers it was holden by the Court that notwithstanding the said Sale that the Sheriff might do execution of those goods in the hands of the buyers Executions for that they are liable to the execution and execution once granted or made shall have relation to the Test of the Writ CCCCXXIV Wilmer and Oldfields Case Trin. 29 Eliz. Rot. 2715. In the Common Pleas. Award IN Debt upon a Bond the Condition was to perform the Award of I. S Antea 140. c. the Arbitrators make Award That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life the Defendant pleaded the performance of the Award generally the Plaintiff assigned the breach of the Award in this That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum upon which the
firmae against Leonard Lovelace and upon not guilty pleaded it was found for the Plaintiff It was moved for the Defendant in arrest of Iudgment That the Declaration was not good because the granting of Letters of Administration is set forth in this manner viz. Administratio commissa fuit Querenti per Willielmum Lewen Vicarium generalem in spiritualibus Epi. Roff. without averring that at the time of the granting of the Letters of Administration the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium But as to that it was said by the whole Court That the Vicar general in Spiritualibus amounts to a Chancellor for in truth the Chancellor is Vicar general to the Bishop Another Exception was because the Declaration is not Epi. Roff. loci illius Ordinarii but that was not allowed for all the presidents and course of the Court is That by way of Declaration such allegation needs not but by way of Bar it is necessary Another Exception was taken because the Plaintiff hath declared of an Ejectment and also quod bona catalla ibidem invent cepit c. And here in the Verdict the damages as well for the Ejectment as for the Goods and Chattels are entirely taxed It was adjorned CCCCXXXVI Greeves Case Mich. 32 Eliz. In the Common Pleas. IN a Replevin Replevin the Defendant made Conusans as Bayliff to one Greeves and Rockwood c. and said That A. was seised of the Lands and 6 Eliz. enfeoffed certain persons in fee to the use of his last Will by which he willed that his Feoffees should stand seised of the said Lands Devises Poph. 188. until the said Greeves had levied of the profits of the said Lands the sum of one hundred pounds It was objected against this Conusans that here is no devise for A. at the time of the devise had not any Feoffees but the Exception was disallowed by the Court And they cited the case of 15 Eliz. Dyer 323. Lingens case A. made a Feoffment in fee to his use and afterwards devised that his Feoffees should be seised to the use of his Daughter that the same was a good devise of the Land. See 29 H. 8. Br. Devises 48. CCCCXXXVII Kempton and Coopers Case Mich. 31 32 Eliz. In the Common Pleas. IN Trespass for breaking of his Close the Defendant pleaded Bar. 3 Len. 194. that before this he had brought an Ejectione firmae against the now Plaintiff and recovered and had Execution c. Iudgment if Action c. And by Periam Windham and Anderson Iustices the same is a good Bar and the conclusion of the Plea is also good Iudgment if Action without relying upon the Estoppel CCCCXXXVIII Leigh and Okeley and Christmass Case Mich. 32 Eliz. In the Kings Bench. OLiphe Leigh Fermor of the Queen of a Wood called Meerherst Wood in Warplesden in the County of Surrey brought an Action of Trespass against Henry Okeley and Robert Christmass for breaking of the said Wood and therein entring and cutting down of two hundred loads of Wood and carrying away the same c. The Defendants pleaded That before the time in which the Trespass was supposed c. That King H. 8. was seised of the Manor of Warplesden Custom whereof the said Wood was parcel of which Manor a Close called Withybod containing eleven Acres eidem bosco adjacent was parcel and that the said Wood is and time out of mind c. was closed and separated with Hedges and Ditches from the said eleven Acres which said Hedges and Ditches per totum tempus praedict fuerunt adhuc sunt praedict bosco spectant pertinent And that the said eleven Acres are and time out of mind weâ—â— customary Lands parcel of the Manor aforesaid and demised and demisable in Fee-simple And that the said King H. 8. at a Court holden 38 H. 8. by his Steward demised the said eleven Acres by copy to John Goring and his Heirs and that within the said Manor there is this Custom That every Copyholder Tenant of the said eleven Acres c. hath used and accustomed per se vel servientes suos per eorum praecept succidere capere asportare subboscum in praedict bosco in quo c. pro reparatione praedictarum sepium defensionum inter praedict boscum in quo c. and the said eleven Acres c. quandocunque eaedem sepes defensiones in decasu extiterint and shewed further That at the time of the Trespass c. the said Hedges and Fences were in decay and so justified Vpon which the Plaintiff did demur in Law. It was argued by Godfrey That the Prescription is not good for it appeareth that this customary Land is contigue adjacens to the said Wood i. where the Trespass was done And of common Right the making of the Hedge doth appertain to the Owner of the Wood And the Prescription is no more but to take Wood in the Lands of another adjoyning to my Land to make the Hedges of the same Land in which the Wood groweth which cannot be a good Prescription for it sounds in charge and not to the profit of him who Prescribes Which see 22 E. 3. Prescription 40. Trespass against an Abbot because where the Plaintiff was Farmor of the King of his Hundred of D. and by reason thereof he might make Attachment and distrain for the Debts of the King within the said Hundred and where for a certain debt of the King he distrained the Beasts of one A. and the Abbot made Rescous to which the Abbot said That he was Lord of the Manor of D. within which Manor there was this custom c. That if any Distress be taken within the said Manor that the same should be put into the Pound of the said Abbot of the same Manor and not driven out of the Manor and there ought the Distress to remain three days so that if the party would agree within the three days that then he should have his Beasts and he said That the Plaintiff would have driven the said Beasts out of the said Manor and that he would not suffer him upon which there was a demurrer because it is not any profit to the Abbot but a charge to keep the Beasts of another Also he said That the King shall not be bound by such a custom as another person shall whereupon Iudgment was given for the Plaintiff So here in the principal case There shall be no damage to the Defendant if the Wood be not fenced for if his Cattel escape into the Wood he may justifie it because it is in default of the Plaintiffs inclosure And if the Beasts of the Plaintiff escape into the Lands of the Defendant he may take them Damage Feasant for the cause aforesaid 21 H. 7. 20. A Custom is pleaded That if any Tenants of the Manor shall take the Cattel of any one Damage Feasant and shall therefore distrain them that
be taken or comprehended under the name of a Benefice having Cure of Souls in any Article above specified CCCCXLIII Pasch 30 Eliz. In the Kings Bench. Aâ—iâ—d ONe was bounden to stand to the award of two Arbitrators who award that the party shall pay unto a stranger or his assigns 200 l. before such a day the stranger before the day dieth and B. takes Letters of Administration and if the Obligor shall pay the mony to the Administrator or that the Obligor should be discharged was the Question and it was the opinion of the whole Court that the mony should be paid to the Administrator for he is Assignee and by Gawdy Iustice If the word Assignee had been left out yet the payment ought to be made to the Administrator quod Coke affirmavit CCCCXLIV Pasch 30 Eliz. In the Kings Bench. ONe sued in the Kings Bench for Costs given upon a Suit depending in the Hundred Court and the sum of the Costs was under 40 s. and the Plaintiff declared Steward That at the Court holden before the Steward secundum consuetudinem Manerii praedict It was objected that the Steward is not Iudge in such Court but the Suitors to which it was answered by the Iustices That by a Custom in a Hundred Court a Steward may be Iudge and so it hath been holden and here the Plaintiff hath declared upon the Custom for the Declaration is secund consuetudinem Manerii also the Subject may sue here in the Kings Bench for a lesser sum than 40 s. as if 10 s. Costs be given in any Suit here Suit to such costs lieth here in this Court. CCCCXLV Pigot and Harringtons Case Mich. 30 31. Eliz. In the Kings Bench. PIgot brought a Writ of Error upon a Fine levied by him within age Error 1 Cro. 11. the Case was That the Husband and Wife were Tenants for life the Remainder to the Infant in Fee and they three levied a Fine and the Infant only brought the Writ of Error It was objected by Tanfield that they all three ought to joyn in this Writ and the Husband and Wife ought to be summoned and severed Atkinson contrary for here the Husband and Wife have not any cause of action but the Infant only is grieved by the Fine 35 H. 6. 19 20 21 c. In conspiracy against many it was found for the Plaintiff and one of the Defendants brought Attaint and assigned the false oath in omnibus quae dixerunt but afterwards abridged the assignment of the false oath as to the damages and so the attaint well lies Two women are Ioynt-tenants they take Husbands the Husbands and their Wives make a Feoffment in Fee Attaint the Husbands dye the Wives shall have several Cui in vita's for the coverture of the one was not the coverture of the other 7 H. 4. 112. In Appeal against four they were outlawed and two of them brought Error upon it and good 29 E. 3. 14. In Assize against three Coparceners they plead by Bailiff nul tenent de Franktenement c. and found that two of them were disseisors and Tenants and that the third had nothing and afterwards the three Coparceners brought attaint and after appearance the third Sister who was acquit was nonsuit and afterwards by Award the Writ did abate Tanfield Although that the cause be several yet the erronious act was joynt and the receiving of the Fine and that Record being entire ought to be pursued accordingly and then the Husband and Wife shall be summoned and severed and it is not like to the case of 29 E. 3. cited before for there the third coparcener had not any cause of attaint for no verdict passed against her Wray As the Error is here assigned the Writ is well brought for the Error is not assigned in the Record but without it in the person of the Infant Fine upon an Infant reversed and that is the cause of the Action by him and for no other Two Infants levy a Fine although they joyn in Error yet they ought to assign Errors severally and they may sue several Writs of Error and afterwards it was holden by the Court that the Writ was good and the Fine reversed as to the Infant only CCCCXLVI Scovell and Cavels Case Mich. 30 31. Eliz. In the Kings Bench. IN Ejectione firmae by Scovell against Cavel Leases 1 Cro. 89 the Declaration was general upon a Lease made by William Pain and it was found by special verdict That William Leversedge was seised of the Lands c. and leased the same to Stephen Cavel John Cavel and William Pain habend to them for their lives and for the life of the survivor of them Provided always and it was covenanted granted and agreed betwixt the parties that the said John Cavel and William Pain should not take any benefit profit or commodity of the Land during the life of Stephen Cavel and further that the said William Pain should not take any benefit c. during the life of John Cavel c. Stephen Cavel died John Cavel entred and afterwards William Pain entred and made the Lease to the Plaintiff upon whom the Defendant entred and if the Entry of William Pain were lawful was the Question Gawdy Serjant his Entry is not lawful It will be agreed That if a man lease to three for their lives they are Ioynt-tenants but if by the habendum the estate be limited to them by way of Remainder the joynt estate in the Premises is gone and the Land demised shall go in Remainder and I agree that in deeds Poll the words shall be taken strong against the grantor contrary in the Case of Indentures the words there shall be taken according to the intent of the parties for there the words are the words of both See Browning and Beestons Case 2. and 3. Ma. Plowd 132. where by Indenture the Lessee covenanted to render and pay for the Land Leased such a Rent the same is a good reservation although it be not by apt words and here in our Case this Proviso and Covenant Grant and Agreement doth amount to such a limitation by way of Remainder especially when such a clause followeth immediately after the Habendum Coke contrary The Office of the Habendum is to limit and explain the estate contained in the premises and here the Habendum hath done its Office and made it a joynt estate and therefore the Clause afterward comes too late and in truth is repugnant and utterly void as to such purpose but perhaps an action of Covenant lies upon it Wray It hath been by me adjudged if a Lease be made to three Habendum successive the same is a void word and the Lessees are joynt-tenants contrary of Copyhold by reason of Custom and here the proviso and the clause following is contrary to the Habendum and repugnant and so void as to the dividing of the estate by way of Remainder which Gawdy Iustice granted Heale
he is a Trespassor to the Lessee And in another Case A man shall take advantage of his own wrong Fitz. N.B. 35. N. An Infant hath an Advowson by descent the Church becomes void he who hath Right paramount usurps and presents to the Church and the 6 months pass now by this tortious usurpation he is remitted and the Infant out of possession and without remedy And he cited the Case 16 H. 7. 10. A Scire facias out of a Fine was brought against an Abbot by which Fine the Predecessor of the Abbot granted to find a Priest to sing Mass in such a Chappel c. and the Abbot pleaded That the said Chappel was become ruinous and decayed so as no Priest could sing Mass there and it was prayed on the part of the Plaintiff that forasmuch as the Covenant is confessed that Iudgment be given but that Execution should cease until the Chappel be rebuilt but it was not allowed for this is a good Bar for the time and no Iudgment shall be given for it shall be in vain for it cannot be executed because there is no Chappel and it may be the Chappel shall never be built again And so in the principal Case c. It was adjorned CCCCLXVII Knightley and Spencers Case Trin. 33 Eliz. In the Kings Bench. IN a Prohibition betwixt Knightley and Spencer The Case was Prohibition More Rep. 528. 2 Co. 47 48. 2 Cro. 452. That Ph. Abbot of Evesham and all his Predecessors time out of mind c. were seised as well of the Rectory impropriate of B. in the County of N. and also of the Manor of B. in the same Parish c. until the dissolution of his House and that by reason thereof the said Abbot and all the Predecessors had holden the said Manor discharged of payment of Tithes until the dissolution c. and shewed the branch of the Statute of 31 H. 8. And that the said Abbot did surrender the Possessions of the said House to the King and that the King held the same discharged of the payment of Tithes and that afterwards the King granted unto the Ancestor of Knightley the said Manor and to the Ancestor of Spencer the said Rectory and although the Plaintiff ought de jure to hold the said Manor discharged of Tithes yet the Defendant sued him in the Spiritual Court c. To which the Defendant confessing the Impropriation pleaded That the said Abbot was seised ut supra but that before the making of the said Statute of 31 H. 8. the said Abbot demised Decimas Rectoriae praedict to one Spencer for 70 years who made the Defendant his Executor and died and that at the time of the said Demise and dissolution of the said Abby one Goodman and others were possessed of the said Manor until the year 1585. which was the year before the Suit began in the Spiritual Court and that at the time of the dissolution he paid Tithes for it and now the Plaintiff refuseth to pay c. absque hoc That the Abbot and his Predecessors held the said Manor quit of the payment of Tithes time out of mind c. upon which the Plaintiff did demur in Law. Coke for the Plaintiff That this Vnity of possession is a discharge within the Statute of 31 H 8. the words of which are Unity of possession a discharge of Tithes That the King and his assigns shall have and enjoy the Lands discharged and acquitted of Tithes as freely as the said Abbot held the same at the day of the dissolution And see before whereas divers Abbots were acquitted and discharged of and for the payment of Tithes for the Statute doth not intend a real discharge as by composition or such manner which is not here but only a suspension which is not any discharge in Law and yet in speaking of discharge ordinarily an actual discharge is understood As if I be bound by Obligation to discharge one of such a Bond it is not enough to pay the mony but I ought to procure an actual Discharge where it is put generally but where it is put secundum quid as it is here referred to the Dissolution a suspension is a Discharge intended in the said Statute but where the Statute is indefinite there an actual Discharge is understood but restrained to a time a suspension sufficeth and truly it is a discharge within the intent of the Statute for if the Statute shall be intended of an absolute discharge and a Discharge in Law only the Statute had been superfluous for the Law said so much before for without such provision the King and his Assigns held discharged from payment of Tithes But the makers of the Statute knew well enough that the Abbot might have such discharge by divers means and it should be infinite for the party interessed to enquire of them all and therefore they did enact briefly That if at the time of the dissolution they were in any manner freed of payment of Tithes the same should be sufficient and so here is not any wrong unto any for the Parson had all as he had before and the same is like to the case betwixt Wharton and Morley 7 Eliz. in the Exchequer the Report of which Mr. Plowden communicated unto me and it was upon the Statute of 1 E. 6. cap. 14. of Monasteries That all Grants made to the King by any Provost Wharton and Marleys Case Governour c. of any Manor c. shall be good c. and the Case was That a Prebend of the Church of York surrendred to the King but the Surrender was never enrolled and yet adjudged good upon the Statute for if it was a lawful Surrender the same had been good of it self without any aid of the Statute which was made to supply insufficient assurances and so in our Case for the cause aforesaid and it should be injurious to drive the Iury to enquire of the manner of the Discharge if it were by composition upon the foundation or by dispensation of the Pope as Cistere Templarii And here the Plaintiff hath declared of an Impropriation before time of memory and so before the Council of Lateran which was within those 400 years and 25 Eliz. there was a Sussex Case where the Plaintiff declared as here but they would not proceed and see Dyer 10 Eliz. 277 278. The Prior of St. John hath priviledge from Rome that he shall not pay Tithes for any Land quas propriis manibus aut sumptibu◠excolant but their Farmers have paid Tithes and it was holden that in the hands of the Farmers Tithes should be paid but after the Term ended the Patentee should hold discharged so as the Statute hath a favourable construction upon this point Now it is 〈◊〉 if the Lease of the Rectory by which the Defendants claim be good or not and then admitting that Tithes are due in this Case yet if his Lease be void he shall not have a Consultation especially if it
appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22
made upon condition to pay certain mony at such a day and at the day the Feoffees make an Obligation to the Feoffor for the payment of it the same is no performance of the condition And by Periam If the Executor be taken in Execution for the debt of the Testator he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution and it shall be accounted Assets in his hands Anderson If he to whom the Testator was endebted in 20 l. be endebted to the Executors in so much and the Executor in satisfaction of the debt of the Testator releaseth his debt the property shall be altered presently of the whole goods in the hands of the Executors so where the Debtor makes the Creditor his Executor And Iudgment was given for the Executors CLIV. Bears Case Pasch 30 Eliz. In the Common Pleas. Formedon A Formedon in the Discender was brought by Samuel Bear James Bear and John Bear of Lands in Gavel-kind and the Warranty of their Ancestor was pleaded against them in Bar upon which they were at Issue If Assets by discent And it was found by special verdict that Thomas Father of the Demandants was seised in Fee of the Lands supposed to be descended to the Demandants being of the nature of Gavel-kind and devised the same to the Demandants being his Heirs by the custom and to their Heirs equally to be divided amongst them Devise of Lands in Gavel-kind Owen 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent or devise was the question for if by devise then they shall not be Assets Anderson Let us consider the devise by it self without the words equally to be divided amongst them And I conceive that they shall be in by the devise for they are now Ioynt-tenants and the survivor shall have the whole whereas if the Lands shall be holden in Law to have descended they should be Parceners and so as it were Tenants in common And although the words subsequent equally amongst them to be divided makes them Tenants in common yet that doth not amend the matter and so also was the opinion of Windham and Rhodes Iustices CLV Nash and Edwards Case Pasch 30 Eliz. In the Kings Bench. IN an Ejectione firmae by Nash against Edwards 1 Cro. 100. it was found by special verdict that one Dover Ancestor of the Plaintiff whose Heir he is being seised of certain Lands holden in Socage devised the same by word to his three Sisters And a stranger being present recited to the Devisor the said words of his Will and he did affirm them 3 Len. 79. And afterwards the said stranger put the said words in writing for his own remembrance but did not read them to the Devisor who afterwards died And it was moved If this devise being reduced in writing modo forma be good or not Spurling conceived that not for the Statute intends a Will in writing Devises but not such writing as is here without privity or direction of the Devisor and it is not like to the case of Brown and Sackvil 6 E. 6. Dyer 72. For the Notes were written by the commandment of the Devisor but here it doth not appear that the meaning of the Devisor was that the devise should be put in writing And devises in Law are favoured as the case in the Chancery was that Sir Richard Pexhal devised certain Lands to his Wife and the Scrivener inserted of his own head a condition scil that she should be chast which was disallowed by the Devisor himself for which after his death the condition although it was put in writing was void And by the whole Court the devise is void And by Wray 2 Len. 35. if he appoint A. to write his Will and it is written by B. it is void but if after he had written the Will if he had read it to the Devisor and he had confirmed it it had been a good Will which Gawdy granted And afterwards Iudgment was given that the Plaintiff should recover Stone and Withypolls Case Trin. 30 Eliz. Rot. 771. In the Kings Bench. STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband 1 Cro. 126. Owen 94. 9 Co. 94. declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds pro diversis alijs mercimonijs was endebted to the Plaintiff in the sum of ninety two pounds and made the Defendant his Executrix died that after his death he came to the Defendant and demanded of her the said debt who gave to him such answer Forbear me until Michaelmas and then I will pay it you or put you in sufficient security for the true payment thereof And declared further that at Michaelmas aforesaid the Defendant did not pay nor hath found any security and shewed a request to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares was within age Assumpsit And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor for the Plaintiff As I conceive these Contracts made by the Plaintiff are not meerly void so that if an Action of Debt or upon the Case had been brought against the Testator himself he could not have pleaded upon the matter Nihil debet or Non Assumpsit or Non est factum but he ought to avoid the matter by special pleading and therefore here it is a good consideration and I conceive that if the Testator at his full age had assumed to pay the debt that that promise would have bound him 9 Eliz. it was the Case of the Lord Grey his Father was endebted to diverse Merchants upon simple Contracts and died seised of diverse Lands which descended to his Son and Heir in Fee the Creditors demanded their debts of the Heir who answered unto them if my Father were endebted unto you I will pay it and upon that promise an Action was adjudged maintainable although the Heir by the Law was not chargeable and also here the Defendant is to have ease and shall avoid trouble of Suits for perhaps if she had not made such promise the Plaintiff would have sued her presently which should be a great trouble unto her and therefore it is a good consideration Cooke contrary No consideration can be good if not that it touch either the charge of the Plaintiff or the benefit of the Defendant and none of them is in our case for the Plaintiff is not at any charge for which the Defendant can have any benefit for it is but the forbearance of the payment of the debt which she was not compellable to pay and as to the suit of the Chancery the same cannot make any good consideration for there is not any matter
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited