took other Hay of his own to wit the Plaintiff and mixed it with the Defendants Hay after which the Defendant took and carried away both the one and the other that was intermired upon which the Action was bought and by all the Court cleerly the Defendant shall not be guilty for any part of the Hay for by the intermirture which was his own act the Defendant shall not be prejudiced as the case is in taking the Hay And now the Plaintiff cannot say which part of the Hay is his because the one cannot be known from the other and therfore the whole shall go to him who hath the property in it with which it is intermired as if a man take my Garment and Embroider it with Silk or Gold or the like I may take back my Garment But if I take the Silk from you and with this face or embroider my Garment you shall not take my Garment for your Silk which is in it but are put to she Action for taking of the Silk from you So here if the Plaintiff had taken the Defendants Hay and carried it to his house or otherwise and there intermired it with the Plaintiffs Hay there the Desendant cannot take back his Hay but is put to his Action against the Plaintiff for taking his Hay The difference appeareth and at the same day at Serjeants Inne in Fleetstreet the difference was agreed by Anderson Peâ—iam and other Iustices there and this case was put by Anderson It a Goldsmith be melting of Gold in a Pot and as he is melting it I will cast Gold of mine into the Pot which is melted together with the other Gold I have no remedy for my Gold but have lost it Bullock versus Dibler 3. IN an Ejectione firmae between Edward Bullock Plaintiff and John Dibler Deâ—endant the case appeared to be this A man was seised of a Copyhold Tenâ—â—ent pâ—rcell of the Mannor of Stratfield Mortimer the County of Berks in right of his wife in his Demesne as of Fee and surrendred this Copy bold Tenement by himself without his wife to the use of a stranger in Fee who was 〈◊〉 by the Loâ—â— accordingly the Husband dies the wife dies the Heir of the wife without any admittance enters upon the stranger and makes a Lease for a year to the Plaintiff upon whom the Defendant in right of him to whom the Surrender was made re-enters and adiudged that the Plaintiff ought to recover and that the surrender of the Husband was not as a discontinuance against the wise to put the Heir to his Plaint in nature of a Sur Cui in vita for a Discontinuance shall not be by a Deed of Feement only but by it with the Livery ensuing wherby the entire Fee-simple is given what Estate so ever the Feoffor had by reason of the Livery where by Deed of Grant nothing passed but that which the party might lawfully grant And here it shall be taken as if the Grant had been made by the Husband which passed but his Estate to wit that which he might lawfully grant without prejudice to his wife But yet there is this diversity between a surrender of an Estate for life and a surrender of an Estate in Fee to the use of a scranger to wit that by the one the Estate drowned in the Lord by the surrender and by the other it is not drowned in the Lord but is transferred to him to whom it was made upon which he is admitted to it otherwise in the last case it returns to him who surrendred and then upon the admittance he is in the Per by him who surrendred and not by the Lord or by the Surrender made by Tenant for life he to whose use it is made ought to take it of the Lord and he is there in by him and not by him who surrendred And this is the common difference betwixt Customary Estates for lives and Customary Estates of Inheritance And the Plaint of Cui in vita is given where recovery by default is against the husband and wife and not upon the surrender of the husband for suppose the husband had surrendred meerly to the Lord himself yet the wife might have entred after the death of the husband because the surrender goes but to the Estate which the husband might lawfully part with and therfore rather to be resembled to a Grant then to a Feoffment And notwithstanding that he was not admitted yet he might enter and take the profits and make a Lease according to the custom or bring an Action of Trespasse against him who disturbes him But if the Lord require his Fine or his Services and the Heir refuse to do them this may be a forfeiture of his Copyhold But untill lawfull Seisin made by the Lord because it belongeth to him the Heir may intermeddle with the Possession albeit he be not admitted by the Lord where it is an Estate of Iuheritance by the Custom And in this Term also in another case in the same Court it was adjudged that an Infant who surrenders his Copyhold Land within age may enter at his full age without being put any Suit for it And the first case was very well argued by one Brock a Puny utter Barister of the Inner-Temple this Term for the Plaintiff And it was the first Demur that he argued in Court Forth versus Holborough 4. IN an Action of Debt upon an Obligation of 200. marks brought by Robert Forth Doctor of Law and Mary his Wife as Executrix to Doctor Drewry against Richard Holborough the Case upon Demurrer appeared to be this to wit That the said Dr. Drewry was seised in his Demesne as of Fee of the Suit of the Mannor of Goldingham Hall in the County of Essex and so seised the last day of Novemb. 27 Eliz. demised it to the said Richard Holborough for 17. years from the said last day of Novemb. wherby the Defendâ—nt antred into it the next day and was therof possessed accordingly and so possessed the last day of Novemb. 28 Eliz. entred into an Obligation to the said Dr. Drewry with condition that if he his Heirs Executors Administrators and Assignes or any of them should well and truly pay or cause to be paid to Dorothy Goldingham widow or her Assigns at the Mannor-house of Goldingham Hall in the County of Essex for the Term of 17. years from the Feast of S. Michael the Arch-angel then last past or an Annuity or annuall Rent of 20. marks of lawfull English money at the Feast of the Annunciation of our Lady and S. Michael the Arch-angel by equall portions if the said Dororhy shall so long live and the said Richard Holborough or his Assigns or any other claiming by or under the said Richard or his Assigns shal or may so long occupy or enjoy the said Scite of the Mannor of Goldingham Hall that then the Obligation shall be void after which untill the 9th day of May 29 Eliz. the Defendant enjoyed the said Scite
the now Tenant Henry Gee as is before alledged and that the said Henry was then seised of the said Tenements in Fee in right of the said Eliz. then his wife and although that he alledge the said severall Feoffments to be made by Deeds indented with the reservation as aforesaid yet it is not mentioned in the Replication that he shews forth the Deeds wherby the reservation was made To which the Tenant by way of Rejoynder shew the Feoffment made by the said Eliz. Shalcroft to the said William Greenditch wherby he was seised at the time of the payment of the said Rent at the said Feast of the Annunciation of our Lady and traverse Absque hoc that the said Henry Gee was therof then seised in right of his wife in manner and form wherupon it was demurred in Law and adjudged by the Justices of Assise at Lancaster that the Plaintiff should be barred wherupon the Tenants have now brought their Writ of Error And by Popham and Clench the Iudgment is to be affirmed First because that the acceptance of the said Rent had been by the hands of one who was to pay it to wit the Tenant himself yet this shall not bar the right of Intail in the said Robert Holme as a release of his right should do but this acceptance shall only foreclose him of his Action to demand the Land during his life and therfore the right which the said Robert had being barred by the Fine the Son is without remedy for the Son shall never have remedy upon the Fine levied in time of his Father the five years after the Proclamations being passed But in case where the right begin first to be a right in the Son and not where there was right in the Father And further it seemed to them that the payment of him who had not any thing in the Land at the time of the payment as here shall make no conclusion to him who accept it because this payment is as none in Law And by them the Rejoynder of the Traverse Absque hoc that Henry Gee was seised at the time of the payment in Fee in right of his said Wife in manner and form as in the Replication is ailedged is good enough for he traverseth that which the Demandant hath specially alledged to destroy the Bar and contrary to that which is alledged it shall not be intended that they had other particular Estate at the time of the payment which may make the payment to be good And albeit the Traverse had been Absque hoc that the said Henry was seised in right of his said Wife Modo forma prout the Demandant hath alledged without saying in Fee as it is pleaded here yet the Iury shall be put to find it if he were seised in Fee In jure Uxoris and not of any other particular Estate as in 12 E. 4. 4. A Feoffment is pleaded by Deed the other makes Title and traverseth Absque hoc that he enfeoffed Modo forma not shewing forth the Deed yet he who pleads the Feofment by Littleton shall give no other Feoffment in evidence then that which is pleaded by the Deed. And by 18 E. 4. 3. In Trespasse the Defendant justifies the entry and sowing of Corn because that M. was seised in Fee and sowed the Land and the Defendant as his Servant entred and cut it the Plaintiff saith that it was his Free-hold at the time of the sowing Absque hoc that it was the Free-hold of the said M. and per Curiam it is not good for such matter was not alledged by the Defendant but he ought to traverse the Seisin in Fee which was alledged and good and so it is good here But it seems to Clench that the Replication is not good because he doth not say by the Writing upon which the Reservation was made which concludes Robert by his acceptance Hic in Curia prolat as by Hill 15. E. 4. 15. If a man will bar a woman of her Action for her Land after the death of her Husband by Feoffment made by the Baron and Feme during the Coverture by Deed rendring Rent by reason of acceptance of the said Rent after the death of the husband he ought to shew the Deed and say Hic in Curia prolat or otherwise the Plea is not good because that in such a case albeit it were a Gift in Tail the wife shall not be concluded by her acceptance unlesse that the Gift were by Deed. Popham True it is in case the party will demur upon it but suppose in this case the Tenants had expresly acknowledged the said Feoffments and then concluded afterwards as they have done here shall they afterwards take advantage of not shewing the Deed I think that not no more here where they admit it and plead the other matter to avoid the conclusion for if a double Plea be pleaâ—ed if the other party demur upon it he shall take the advantage of the doublenesse But if he passe it over and they proceed in pleading upon another point the doublenesse is gone And Fennor said that the right which is intended to be saved within the first branch of the Statute of 4 H. 7. is that upon which the party may pursue his Action or enter for his remedy the which the said Robert could not do in when the Fine was levied because he had accepted the Rent but the first right which was in such a case was that in the Demandant Stroud versus Willis 9. IN Debt upon an Obligation of 40 l. by William Stroud Plaintiff against John Willis Defendant the Condition wherof was If the said Willis his Heirs Executors or Assigns should pay or cause to be paid yearly to the said William Stroud the Rent or summ of 37 l. 10 s. of lawfull money at the Feasts of S. Michael and the Annuntiation by equall portions according to the Tenor true intent and meaning of certain Articles of agreement indented made between the said parties of the same date that the Obligation was that then the Obligation shall be void and the Defendant shews the Articles which were thus to wit that the said William Stroud had demised to the Defendants all such Tenements in Yeatminster of or in which the said William then had an Estate for life by Copy Anglice Copie des except according to the custom of the Mannor of Yeatminster from the Annunciation of our Lady then last past for forty years if the said William should so long live rendring yearly to the said William 37 l. 10 s. of lawfull money at the Feasts of S. Michael and our Lady by equal portions under the East-gate of the Castle of Taunton in the County of Somerset c. with divers things comprised in the said Articles To which points the Defendant pleaded that at the time of the making of the said Articles the Plaintiff had not any Estate in the Tenements in Yeatminster aforesaid for tearm of his life by Copy
precedent to it which not being done the Estate of Edmund never hapned to be and therfore he who cometh in under a Discontinuance made by the said William Cocksey after the death of Martin and Giles without Issue notwithstanding the Remitter of the said Alice in the case is to have the Land against those who come in by the said Edmund and upon this point only Iudgment was given accordingly in the Kings Bench. Grenningham versus the Executors of Heydon 4. IN Debt upon an Obligation of 200. marks by Richard Grenningham Plaintiff against the Executors of one Ralph Heydon Defendants the case appeared to be this upon Demurrer The said Heydon was bound to the Plaintiff in 200. marks the Condition wherof recites that wheras the said Heydon had received of the said Grenningham 76 l. 6 s 8 d. before the date of the said Obligation of 200. marks in payment and satisfaction of certain Obligations and Bills of debt remaining in the hands of the said Heydon and specified in the Condition what they were in certain and the which said Bills Obligations the said Heydon is to deliver or cause to be delivered to the said Grenningham his heirs or assigns before the Feast of S. Michael next ensuing the date of the said Obligation or otherwise the said Heydon his Executors Administrators or Assigns or some of them before the same Feast shall make or cause to be made and delivered to the said Plaintiff his Heirs and Assigns such good and sufficient Acquittances for the payment of the said summs of money formerly mentioned as the said Plaintiff his Heirs Executors or Assigns shall devise or cause to be devised by the Counsel of the said Plaintiff his Heirs or Assigns before the Feast without fraud or deceit that then the said Obligation shall be void c. And before the Feast the said Plaintiff did not devise any acquittance Whether now the Obligation be saved by the Disjunctive without delivering the Obligations and Bills before named before the Feast of S. Michael Rot. 36 37. Eton and Monney versus Laughter 5. IN Debt upon an Obligation of 400 l. by Thomas Eton and Roger See this Case Coke lib. 5. 21. by the name of Laughters case Monney Plaintiff against Thomas Laughter Defendant who was bound together with one Richard Rainford to the said Plaintiffs the Condition of which Odligation was That if the said Richard Rainford after marriage had between him and Jane Gilman Widow together with the said Jane alienate in Fee or Fee-tail all that great Messuage of the said Jane in London in the Tenure of William Fitz Williams Esquire if then the said Richard Rainford in his life time purchase to the said Iane her Heirs and Assigns Lands and Tenements of good Right and Title and of as good value as the money raised upon the alienanation of the said Messuage amounts unto or leave to the said Iane after his decease as Executrix or by Legacy or other good assurance so much money as he shall receive or have upon the said Sale that then the Obligation shall be void after which the said Richard Rainford married with the said Jane and the said Richard and Jane sold the said Messuage in Fee by Fine for 320 l. received by the said Richard Rainford after which the said Iane died no Lands being purchased to the said Iane by the said Richard and the said Richard yet living Michaelmas Term 37 38. Eliz. Sawyer versus Hardy 1. IN an Ejectione firmae by Christopher Sawyer Plaintiff against Edmund Hardy Defendant for a Messuage in S. Martins upon a Demurrer the case was this A Lease was made of the said Messuage to one Margaret Sawyer for 40. years upon Condition that if the said Margaret should so long continue a Widow she should dwell and stay in the same Messuage the said Margaret continued a Widow and dwelt in the same house all her life and died during the said Term of 40. years making the Plaintiff her Executor and by award the Plaintiff had Judgment to recover For by Popham Gawdy and Clench this now was no Condition nor Limitation for it hath no certain conclusion upon the that if to wit that then the Term shall continue or that she shall pay so much or otherwise what the conclusion shall be none can imagine As if such a Lease be made upon condition that if the Lessee does such a thing without other conclusion it is a good Lease for 40. years for none can imagine what the conclusion shall be in such a case or that then the Lease shal be void or that he shall re-enter or that the Lessee shall forfeit so much or what shall happen upon it for which incertainty it shall be taken as a void Clause But by Popham if it had been Sub conditione si tamdiu vixerit it had been good to determine the Lease but it is otherwise of the word quod si for the incertainty as before And they all agreed that if the Lease had been for 40. years Si tamdiu sols viveret inhabitaret in eodem Messuagio that the Lease had been determined by her marriage or death In the same manner as if it had been Si tam diu vixerit And so in truth had been the case if it had been well pleaded but by pleading the advantage therof was lost and the truth not disclosed But by Popham If a Lease be made for 40. years if he shall dwell in the same for his life there it is good for 40. years upon performance of the Condition the diversity appeareth to wit where it is if he shall dwell there during the Term and where it is if he shall inhabit there during his life Goodale versus Wyat. 2. IN an Ejectione firmae by Cuthbert Goodale Plaintif against John Wyat See this Case Coke lib. 5. fol. 95 96. by the name of Goodales case Defendant for a Meadow in Aylesbury in the County of Buck. called Diggelmore upon a speciall Verdict the case was this Sir Iohn Packington Knight enfeoffed therof one Ralph Woodliff to have and to hold to him and his Heirs upon condition that if the said Sir Iohn within a year after the death of the said Ralph pay to the Heirs Executors or Administrators of the said Ralph the summ of a 100. marks of lawfull money that then the said Feoffment and Seisin made therupon shall be void Ralph Woodliff made a Feoment over to others therof and died intestate and Administration was committed to Anne his Wife and Drew Woodliff his Son and Heir who gave a Warrant of Attorney to Thomas Goodale then seised of the said Meadow by mean conveyances for the receit of the said 100. marks with Covenant that none of them shall do any act or thing that shall be preâ—udiciall or hurtfull to the said Thomas Goodale for the receiving and enjoying of the said summ after which it was certified to the said Sir Iohn Packington by
there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
years are past but in this case it ought to be shewn a Term within the two years which is as much as to say that if the Terms be all past so as it cannot be done after it within the two years the Assurance eo instanti upon the finishing of the last Term is become void as if an Assurance be upon condition that if in the Term time within two years he do not levy a Fine to I. S. and his Heirs c. now if the last Term passe without the Fine the Vse change albeit the two years be not expired si Parolls fort Plea And there is great diversity where an Estate is to be defeated or an Vse is to be raised upon an Act to be done or not done within a time certain within two years and where within two years generally for in the first case the Vse change upon the Act done or not done immediatly and in the other not untill the two years are finished because that by presumption alwaies within two years the Act may be done for any thing of which the Law takes conusance But if the Act to be done or not done refer to any time certain within the two years as if he do not pay 10 l. to one before the Feast of S. Michael the Arch-angel within the two years that then the Vse shall change or the Estate shall be void in these cases immediatly upon the last Feast of S. Michael the Arch-angel within the two years the Vse change or the Estate shall be void as the case is and shall not tarry untill the full end of the two years to do it for in the words themselves the diversity appeareth 8. AT the same time there was another Indenture shewn to the said Iudges bearing date the 4. day of May 1 Eliz. made between the said Sir Francis Englefiâ—ld of the one part And Sir Edward Fitton and Sir Ralph Egerton Knights of the other part and inrolled in the Exchequer according to the Statute of the 30. day of October 30 Eliz by which the said Francis for him and his Heirs covenanted with them that as well in consideration of a Marriage had and solemnised between John Englefield brother of the said Sir Francis and Margaret Fitton Sister to the said Sir Edward and for the augmentation and interest of the Ioynture of the said Margaret as for other good causes and reasonable considerations the said Sir Francis especially moving the said Sir Francis before the Feast of S. John Baptist then next ensuing would assure Lands within the County of Warwick of the value of 60 l. a year to the said Sir Edward and Sir Ralph and their Heirs to the use of the said Margaret for her life and for her Ioynture for part of it and for the remainder that it shall also be to the use of the said Margaret for her life in case that the Lady Anne then the wife of the said Sir Francis should recover her Dower of the said 60 l. a year And the said Sir Francis for him and his Heirs did further covenant with the said Sir Edward and Sir Ralph that if it should happen that the said Sir Francis shall die without Issue Male of his body the said Iohn or any Issue of his body upon the body of the said Margaret begotten then living that then after the death of the said Sir Francis as well the Mannor of Englefield as all his other Lands making especiall mention of them should be and might descend remain revert continue or be in possession or rebersion to the said Iohn Englefield and to the Heirs Males of his body upon the body of the said Margaret lawfully begotten if the sayd Iohn were then living or to the Heirs Males of the body of the sayd Iohn upon the body of the sayd Margaret lawfully begotten without any Act or Acts Thing or Things made or to be made by the sayd Sir Francis to the contrary therof And upon this it was moved that there was a variance between this Deed now shewn and this Inrolement and that therfore it doth not appeare whether this Deed was shewn in the Court or delivered there according to the Statute therof made 28 Eliz. for in the Deed it is for other good causes and this word good is not comprised within the Inrolement But as to it all the Iudges and Barons agreed that albeit these defeats hapned by the negligence of the Clerk in writing and examining this Inrollement remaines good in as much as the omissions are in matters and words which are of abundance and not in that which is any substance of the Deed. But the Lords of Parliament which were Committees of this case in the Parliament sent for the Record of the sayd Inrolement and would have had this to have been amended in the Chamber next to the Parliament but as the Officer was in doing of it the Iudges advised that it should not be done as well because this was not the place where it ought to be amended but the Court of Exchequer if it were or needed to be amended And also because that the two years after the Session of Parliament of 28 Eliz. was then past Then it was moved whether by the Covenant and considerations aforesaid the use shall passe or were raised to John Englefield or now to his Son Francis Nephew to the said Sir Francis and begotten upon the body of the sayd Margaret And all agreed that it is not for divers reasons 1. Because it is that if it happen that Sir Francis die without Issue Male that then it shall be to John as before if he be then living or to the Heirs Males of his body as before which is in the disjunctive to wit that it shall remain to John or to his Heirs Male of his body which cannot raise any use but found only in Covenant for the incertainty and also it is upon a future contingent to wit if the said John be then living 2. Because the Covenant is that it shall come or descend c. in the disjunctive and if he had covenanted that it shall descend to Iohn after his death without Issue Male it had been cleer that no use had been raised by it for it shall be but a meer Covenant to wit that he shall leave it to descend to him and here it being in the disjunctive it cannot be any other then a bare Covenant to wit that he shall suffer it to descend or otherwise by conveyance to come to John after his death without Issue Male the one or the other at his pleasure And yet further that it shall descend come or remain to John in possession or reversion so that he may make the one or the other void at his pleasure which cannot be if an Vse shall be raised by it and therfore also it enures but as a bare Covenant which he may perform either the one or the other way at his pleasure Also it is that it
l. at such a day without saying how or in what manner these Debts accrued or when because the Action is nor meerly founded upon the Debt but upon the promise and the Debts are but inducements to it But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof to wit when and how it comes And further here in as much as the Assumpsit is found for the Plaintiff it shall be implyed that the consideration was duly performed for without due proof of the consideration the Plaintiff hath failed of his assumption and therfore also it shall be now taken that the Testator hath such a term of years in reversion to which the term for years in possession may be surrendred for he said that he who hath ten years in possession may well surrender to him who hath more years as twenty in reversion for the lesser may surrender to the greater term To all which Popham and Fennor agreed And Popham said further although it shall be taken most strongly against Hughes to wit that Robotham had a lesser term in the reversion then Hughes had in the possession yet the surrender shall be good for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession then to have it to be in reversion â—â—nd by him if a Lessee for twenty years make a Lease for ten years then he wâ—ich makes the Lease for ten years hath a reversion upon these ten years so that if Rent be reserved upon it he may distrain for it and have Fealty of the Termor And if he grant the Reversion over for ten years with attornment of the Termor in possession the Grantee hath the Reversion and shall have the Rent for the time and yet the Remainder for years remains alwaies to the Grantor and therfore before the Reversion granted ever the Termor for ten years in possession might have surrendred to his Lessor and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years And after the Reversion granted he which hath the ten years may surrender to the Grantee of ten years in Reversion and there he shall have so many years in possession which were to come of his Reversion Quod nota bene And if he had had a lesser term in the Reversiâ—n then the Lessâ—r himself had in the Possession it shall go to the benefit of the first Termor for twenty years who was his Grantor for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the Râ—version therupon having regard to their Estate in the Reversion and not otherwise to all which Fennor agreed wherupon Gawdy gave the rule that Iudgment shall be entred for the Plaintiff But Popham said that if the consideration for the surrender had not been sufficiently alledged that the Plaintiff shâ—uld not be helped by the other consideration of 100. marks given by Thornel for if such an Assumption as this is be founded upon two more considerations and such which by possibility may be performed then the party hath failed of his Suit As if a man in consideration of 5 s. paid and of other 5 s. to be paid at a day to come assume to do a thing or to pay money if the one 5 s. be not paid or if it be not averred that the other 5 s. was paid at the day limited for the payment of it the party hath failed in his assumption in the one case and the declaration is insufficient in the other case for he hath made a departure from his consideration But if one of the considerations be impossible or against Law there the other considerations which are possible or stand with the Law suffice if they he well alledged And he said that the Executor shall be charged with the contract of the Testator by common course of the Court which stands upon reason for if an Action of Debt upon a bare contract be brought against an Executor if he do not demur upon it but plead to the Paâ—s that he owes him nothing and it is found against him he shall be theâ— by charged of the Goods of the dead and the cause why he may be helped by demurring upon the declaration in that case is becâ—use the Testator might have waged his Law in that case of debt which the Executor could not do of other contracts and therfore shall not be charged with it by such an act if he will help himself by demurrer but in â—he assumption of his Testator he could not have waged his Law and it is founded upon the death of the Testator to wit his debt with which the Executor by a mean may be charged as before and therfore the assumption in such a câ—se maintâ—inable against the Executor But if the Testator upon good consideration assume to make assurance of Land or to do any other such collaterall thing which doth not sound in a duty of a thing payable there the Executor shâ—ll never be charged with such an assumption to render recompence for it And to this agreed all the Iustices â—â— the common Bench and Barons of the Exchequer And such an assuâ—â—â—ion hath not been allowed in the Kings Bench but of late time and thâ—â— but 〈…〉 or two cases But in the other case it hath been common and of 〈…〉 and therfore now too late to be drawn in question and if it should â—â— it may be maintained with good reason in this case of a duty of â—â—ing payable in as much as the Testator cannot wage his Law in the Action but in the other case there is no reason nor course of the Court to maintaiâ— it But the Iudges in the Exchequer Chamber reversed all these Iudments in both cases 2. Nota that this Term was adjourned to Octob. Trin. and because the Writ was that Adjournment shall be made in Octob. Trin. of all cases untill Tres Trinitat the Adjournment was made in every of the Courts of Kings Bench Common Bench and the Exchequer the very first day of Octob. Trin. then it was holden by the Iustices that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis And because that the Writs were that at the said Tres Tr. the Term shall be holden therafter as if no Adjournment had been the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term and for all causes as if no adjournment had been and so they did accordingly saving by assent some of the Iustices did not come thither by reason of their far distance from London at the end of the Term upon the last Adjournment But they held that if it had not been for the especiall words in the Writ which were
and paid duly the said Annuity and then he surrendred his Estate in the said Scite to the said Dr. Drewry and after this did not pay the Annuity over and yet continued the possession of the said Scite And by all the Iustices the Defendant notwithstanding the Surrender made to the Obligee himself ought to have continued the payment of the Annuity to the said Dorothy for albeit the Term be drowned and merged in the Reversion and so hath no continuance as to him in the Reversion yet as to any thing heretofore done by the Defendant who was the Termor in Iudgment of Law it is to be said to have continuance As if he had granted a Rent-charge out of it to have continuance during the said Term although he surrender his Term to him in the Reversion yet the charge continues and as to it the Reversion shall be said to be in the Termor and albeit the Obligee himself shall not take advantage of his own or to have the advantage of the forfeiture of an Obligation there where his own act is the cause of his breach And if it had been that the said Dorothy during the said Term shall have the use of a Chamber within the Scite without the interruption of him or his Assigns there if after the Surrender the said Dorothy Drewry had interrupted him of the use of the said Chamber the forfeiture of the Obligation shall not be taken against the Defendant for it But here the Condition is of a collaterall thing to be done to wit the payment of the Annuity to a stranger with which the Land is not bound and therfore the breach comes meerly in default of the Obligor and of the Obligee in no part to wit and therfore the Obligation here is forfeited And by Popham the case here is more cleer upon consideration of the words of the Condition for the words are I the Defendant shall or may enjoy c. and this word may enjoy shall be alwaies intended reasonably to wit if it may without any thing to be done by him to the contrary and here if he had not made the Surrender he might have enjoyed the Scite untill the end of his Term and therfore because it cometh of his own act wherby he or his Assigns shall not enjoy it for the Term if it shall be said that he in the Reversion shall not be said in by the Termor of which he himself shall not take any advantage in as much as if this had not been he might have enjoyed for the whole Term. To which all the other Iustices also agreed and upon this Iudgment was given for the Plaintiff But if any had defeated the said Term by a lawfull entry by a Title Paramount the Obligation had not been forfeited for any default of payment after this Entry but if Rent had been reserved upon the Lease and for default of payment a Re-entry had been made yet by Popham the payment ought to be continued upon the perill of the forfeiture of the Obligation for the words may enjoy in as much as there it is the meer default of the Defendant himself there the Lease does not continue of which he shall not take advantage to save his Obligation But note the form of the Demurrer and that it might have been been better ioyned which is to be seen in the Record where it is entred Easter Term 36 Eliz. Geilles versus Rigeway IN debt for 306. l 6. s. 8 d. by William Geillies against Thomas Rigeway Esq late Sheriff of Devon For that wheras John Chaunder alias Chaundeler was in execution with the said Sheriff for the said summ the said Sheriff afterwards to wit the tenth day of December 34 Eliz. at London in such a Parish and Ward suffered him to escape the said Rigeway then being Sheriff of Devon and having him then in execution c. To which the Defendant pleaded how that he took him in Execution by the Proces at Stockram in the County of Devon as the Plaintiff hath alledged and there detained him in safe custody untill the 8th day of December 34 Eliz. at which day the said Chaundeler broke the Prison and escaped out of it contrary to the will of the said Defendant and that the Defendant did freshly pursue him and in this fresh pursuit did re-take him the 11th day of December then next ensuing at Stockram aforesaid and detained him in execution for the said 306 l. 6 s. 8 d. during the time of his Office and delivered him ever to the new Sheriff c. To which the Plaintiff replyed by protestation that he did not make fresh pursuit And for plea saith That after the going away of the said Chaundeler and before his re-taking by the said Defendant as aforesaid the said Chaundeler for a whole day and night to wit at London in the Parish and Ward aforesaid was out of the view of the said Defendant c. Vpon which it was demurred in Law And it was moved by Cook Attorney-generall that Iudgment ought to be given for the Plaintiff for in as much as it was alledged that he was out of the view of the Sheriff for a day and a night together there it shall be intended to be a default in the Defendant in the making of his pursuit and therfore chargable to the Plaintiff and yet he agreed that if the Sheriff had made his pursuit freshly although that at the turning of a Lane end of a house or the like the Prisoner had been out of the view of the Sheriff for a small time as untill the Sheriff commeth to this turning end of the house or the like yet the Sheriff may re-take the Prisoner and he shall be yet said to be in execution to the party against his will yet when he is for so long a time out of his view it shall be otherwise for the default which the Law presumes to be in him and therfore in this case the action lies To which it was answered by Popham Gawdy and Clench That if he makes fresh pursuit so that it doth not appear fully that there was a default in the Sheriff in his pursuit although he were so long out of his view yet he shall be said to be in execution for the party against his will upon the retaking of him As if be be pursued to a house where he is kept for a long time and the Sheriff set a guard upon the house and after this re-take him the next or any other day without departing from thence the Sheriff in such a case may re-take him upon his coming out of the house and he shall be in execution to the party against his own will And so in all like Cases As if he pursues him in the night so as he cannot see him and yet by the tract of the horse or enquiry he makes diligent pursuit to re-take him so that it cannot appear that there was any negligence or default in him
in themselves do purport And if it had been good for the matter yet it is not good for the form for want of a Traverse for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant But Popham and Clench held strongly to the contrary and that this Bar is good in matter and as the case is cannot be otherwise and that the form also is good enough and yet the two Affirmatives cannot make a good Issue but in case of two Affirmatives a Traverse shall not be but where the Affiâ—matives do not agree in one As if the Defendant in Trespasse Intitles himself by the Feoffment of a stranger and the Plaintiff reply and maintain that the same stranger did enfeoff him this cannot make a good Issue without a Traverse of the Feoffment alledged to be made to the Defendant But in the same case if the Plaintiff saith that true it is that the stranger enfeoffed the Defend an t but this was to the use of the Plaintiff and his Heirs there no Traverse shall be on the Plaintiffs part because as to the matter of the Feoffment it agrees with the Defendant in which case it shall not take any Traverse but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use Absque hoc that the Feoffment was to the use of the Plaintiff for now that which the Defendant saith albeit it be in the Affirmative yet it is a Traverse to that which the Plaintiff hath alledged and therfore he needs not traverse the plea And so a diversity where the Affirmative is to traverse that which is alledged by the other party and where not for in one case the conclusion shall be with a Traverse and in the other not Then in this case when the Plaintiff alledged that the Defendant spake these words which prima facie shall be intended to be spoken in this sence as the Plaintiff hath alledged although no Innuendo had been in the case for if it shall not be so intended without the Innuendo the Innuendo will not help it yet when the Defendant hath declared the circumstance wherupon these words were spoken and then the speaking of them therupon now he hath confessed the very words themselves to be spoken but upon the circumstance discovered to be in another sence then prima facie they are to be taken and therfore he shall not take a Traverse for he acknowledgeth the very words but not the intendment which the very Law prima facie presumes upon the words and therfore shall not take a Traverse for this intendment of Law being answered by matter expresly in the plea shall never be traversed as in the case put of a Feoffment prima facie it shal be intended to be to the use of the Feoffee yet when the other party maintains that this Feoffment was to his use he shall not take a Traverse to that which the Law intends and presumes And if a man upon speech had with a Hunter saith That he hath murthered all the Hares within 7. miles of his house and another answer and say he is a Murtherer indeed wherupon the Hunter brings an Action upon the Case against him for saying that the Plaintiff was a murtherer the Action will well lye Yet when the other shall discover the communication wherupon the words were spoken this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar the Plaintiff then hath good cause of Action and therfâ—re he may well say De injuria sua propria absque tali causa and this being sound it shall be against the Defendant So upon speech of a Butcher who had killed a 1000. Oxen in a year and one hearing it will say that he is a notable Murtherer this upon the matter disclosed is not actionable And it shall be mischievous by a Traverse or by pleading generally not guilty to put such speciall matter in the mouth of Lay-people to give their Verdict upon being ignorant and therfore easie to be miscarried in theâ—r judgment and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges then into the mouths of lay Gents And here when Fletcher speaking of the order to be taken by the Councell upon the Petition said that the Earl would obey their order to which the Defendant answered that he knew not what the Earl would do the said Fletcher said therupon that he was a Subject and what was the intent of Fletcher in saying so no other but that because he was a Subject therfore he ought to obey and if it be so to be understood as of necessity it ought or else they were not spoken by Fletcher to any purpose which cannot be intended then shall the words following being spoken therupon by the Defendant be taken to be spoken in answer to the matter of the Speeches spoken by the said Fletcher and this is that he was sorry and it was his grief that he must be so subject as to be bound therby to obey their Order as if a man saith to another that he was sorry that he was so subject that he must obey a Iudgment against him in the Queens Court this is no cause of Action for this tends but to his subjection to the Law or good order or the like which do not give cause of Action As if one saith of another that he is of the Temple who alwaies rebell against the Governours of the said house then saith another to him Will you then say and maintain that he is a Rebell yes sayes one of the other I will do so If an Action be brought for the last words the Action will lye but if the other discover the circumstances of the Speech in the Bar wherupon it was spoken the Action will not lye And this the Defendant may well do without traversing that which is alledged because he acknowledgeth it although in another sense then the Law Prima Facie imports upon the Declaration And if in Speech between two one of them saith of a stranger that he hath treacherously betrayed his Friend in revealing all his secrets and councell wherupon the other then saith that he hath done as a Traytor therin and the other saith to him again he is a Traytor and he answering to it saith true he is a Traytor Now if the stranger brings an Action of the Case against him for saying of these last words Prima Facie it imports good cause of Action without any Innuendo as that he intended therby that he was a Traytor to the Queen because the words in common intendment have such a sence yet upon the matter disclosed by way of Bar with the circumstances how they were spoken the Plaintiff shall be barred if he cannot maintain that they were spoken without such a cause which
it was not an immediate descent in Deed but upon the operation of Law which gave Wardship and the like but not to prejudice any third person And he said that although the Queen or other Lord upon eviction of the Land descended or the determination of the Estate therof may resort to Lands devised or assured and take a third part therof yet therby the Devise or Assurance remains effectuall against the Heir but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them but no such remedy is given to the Devisee to help him if his part be abridged or evicted And the words are precise to wit If the part left or assigned to the King or to any Lord at any time during their Interest therin be evicted c. that they shall have so much oâ— the two parts residue as shall make a full third part of the remainder not evicted c. Wherby it appeareth that this is given only for the benefit of the Lords and not of the Heir nor of the Devisee fâ—r if after the Interest of the Queen or other Lord be determined this which was left he evicted from the Heir it shall not be helped against the devise but the Devise remains good to the Devisee against the Heir for the whole Land devised wherby it appeareth that it was the very purport and intent of the Statute that the Devise remain as it was at the time of the death of the Devisor without having regard to that which hapneth Ex post facto unlesse for this point helped by this speciall clause of the Statute and this is for the Lord and his Interest only and for no other And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation as here the Statute wills that the Estate of Inheritance comprised in the former Statute shall be explained to be Fee-simple it cannot now by any equity be as to the power to make a Devise which is meerly given by the authority of the Statute said to be of any other Estate then Fee-simple of which a Devise may be made And therfore if Land be given to another and his Heirs for the term of another mans life a Devise cannot be made of this because it is not an Inheritance in Fee-simple but only the limitation of a Free-hold And where the Statute saith having a sole Estate we cannot by any equity that it shall be taken of any joynt Estate as to make any disposition of that which she had in Ioynture and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants Southwell versus Ward 4. IN a second deliverance between Richard Southwell Esquire Plaintiff and Miles Ward Avowant by Demurrer upon the Avowry the Case appeared to be this That Iohn Prior of the Church of Saint Faiths in Horsham in the County of Norfolk was seised in his Demesne as of fee in the right of his said Priory of 8. Messuages 300. acres of Land 30. acres of Meadow 60. acres of Pasture and 200. acres of Wood with their Appurtenances in Horsham aforesaid And so seised the said Prior with the assent of his Covent by their Deed indented shewn forth bearing date the first day of Ianuary 13 E. 4. and by licence of the King aforesaid granted to William then the Master of the Hospitall of St. Giles in Norwich and to the Brothers of the same Hospitall and to their Successors 200. Fagots and 200. Focalls called Astle-wood yearly to be taken of all the Lands and Tenements of the said Prior and Covent in Horsham aforesaid by the Servants of the said Prior and Covent and their Successors yearly to be carried to the said Hospitall at the costs and expences of the said Prior and Covent and their Successors at the Feast of St. Michael or 20 s. of lawfull money for them at the election of the said Master and Brethren and their Successors to take yearly in the same Lands and Tenements in Horsham to the use of the poor and infirm persons there being or coming So that if it happen the said Fagots and Focalls or the said 20 â— for them to the said Master and Freres in form aforesaid to be arrear in alâ—o part c. then they may distrain in the said Lands and Tenements and the Distresse detain until they be fully satisfied of the said Fagots and Focals or of the said 20 s. for them as is aforesaid with this Proviso further That if at any one or more times the said Master and Brethren have chosen to have the Fagots and Focals yet at any other time they make the 20 s. for them and although they have taken the 20 s. for them once or oftner yet at any other time they may take the Fagots and Focals themselves and that they may so vary tâ—ties quâ—ties and dâ—strain for them accordingly reasonable notice being given of their Election in form aforesaid And the said Master and Brethren granted by the same Deed to the said Prior and Covent and their Successors that they or others sufficiently warranted by them would give sufficient notice of their election yearly the first Sunday of April in the Church of the said Hospital to some Officer of the said Prior and Covent and their Successors if they send any thither for this cause By force of which Grant the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots and 200. Facals called Astlewood accordingly and so being seised they by their sufficient Writing enrolled of Record in the Chancery in the first year of the late King Ed. 6. gave and granted to the same King the said Hospitall all the Lands Tenements and Hereditaments of the said Hospitall To have and to hold to him and his Heirs and Successors for ever wherby the said King was therof and of the said annuall Rent seised accordingly and so seised the 7. day of May in the same year the said King Edw. by his Letters Patents bearing date the same day and year granted the said Hospitall and the rent of the said Fagots and Focals and other the Premisses to the Major Sheriff Citizens and Commons of the City of Norwich and to their Successors for ever and for 1600. Fagots and 1600. Focals of the said annuall rent of 200. Fagots and 200. Focals being arrear at the Feast of S. Michael the Arch-angel 23 Eliz. the said Ward took the Distresse and made Conusance as Bailiff to the said Major Sheriff c. And it was moved that the Avowry was not good first because it being matter of Election which was granted to the Master and Brethren and their Successors to wit the Fuell or the 20 s. it doth not appear that they ever made any election of the one or the other and untill it appeareth that they have
Co. lib. 8. Baspoles case and 7 H. 6. 40. accordingly The same Term in the same Court Vaughans Case THomas Dedham had to Apprentice one Holland who got his Main with Child and afterwards departed from his Masters Service and staid a whole night with Vaughan his Kinsman and Dedham procured a Warrant from S. Stephen Soame a Iustice of Peace that the Constable should bring the said Apprentice to order according to Law and because that Vaughan perswaded him to withdraw himself so that he should not be taken by virtue of the Warrant he was indited And it was agreed that it was lawfull for Vaughan to lodge and relieve him albeit he knew his misdeeds they being no Treason or Felony But Haughton Iustice took exception to the Inditement because no place appeared where he perswaded him to withdraw himself from the Warrant or in truth that he did hide himself from the Warrant for if he did not so the perswasion was nothing And Doderidge took another exception to the Warrant because the Statute saith that two Iustices of which one of them shall be of the Quorum shall proceed in such cases against the Malefactor and that they shall compell the party to allow means for the education of the Infant or otherwise the Offendor shall suffer corporall punishment and so this Warrant not being speciall according Pasch 16. Jac. In the Star Chamber Wrennums Case SIr Henry Yelverton Attorney-generall exhibited an Information in the Star Chamber against one Wrennum Ore tenus because he had divers times petitioned the King against Sir Francis Bacon Lord Chancellor pretending that the said Lord Bacon had done great Injustice to him in granting an Injunction and awarding Possession of Land against him for which he had two decrees in the time of the former Chancellor And also he made a Book of all the proceedings in the said cause between him and one Fisher and dedicated and delivered it to the King in which he notoriously traduced and scandalised the said Chancellor saying that for this unjust decree he his Wife and Children were murthered and by the worst kind of death by starving And that now he having done unjustly he must maintain it by speaking untruths and that he must use his authority Wit Art and Eloquence for the better maintenance therof with other such like scandalous words And the Attorney cited a president 2 Jac. Where one Ford for an offence in the like manner against the late Chancellor was censured in this Court that he should be perpetnally imprisoned and pay the fine of 1000 l. and that he should ride upon a Horse with his face to the tail from the Fleet to Westminster with his fault written upon his head and that he should acknowledge his offence in all the Courts at Westminster and that he should stand there a reasonable time upon the Pillory and that one of his ears shall be cut off and from thence shall be carried to Prison again and in the like manner should go to Cheapside and should have his other ear cut off c. And because they conceived that the said Wrennum had wronged the said Lord Chancellor in the said suggestion they all agreed in his censure according to the said President See for such matter 19. Ass 5. 9 H. 8. Sir Rowland Heywards case and 21 H. 8. Cardinall Wolseys case The same Term in the Kings Bench. Mingies Case AWrit of Annuity was brought by Mingy which was granted Pro Consilio impenso impendendo the Defendant pleaded in Bar that he carried a Bill to the Plaintiff to have him set his hand to it and because he refused Annuity pro Consil impenso c. he detained the said Annuity And per Curiam this is no plea for he is bound to give advice but not to set his hand to every Bill for this may be inconventent to him The same Term in the same Court THe Case was this A Lessee for years was bound in a Bond to give up the possession of the Land demised to the Lessor or his Assigns at the end of the Term the Lessor assigns over his Interest and the Assignee requires the Lessee to perform the Condition who answers that he knew not Notice where requisite whether he were the Assignee and therupon refuseth And the question was whether he had broken the Condition and it was adjudged that he had for he hath taken upon him so to do and it is not like a Condition annexed to an Estate as Co. lib. 5. Mallories case or Co. lib. 6. Greens case where the Patron presented his Clark to a deprivation yet the Ordinary ought to give the Patron notice of the deprivation for it is a thing Spirituall of which a Lay-man shall not be bound to take notice It was moved that a man riding upon a Horse through the water was Dead and. drowned and by the Coroners Inquest it was found that his death was caused Per cursum aquae and the Horse was not found a Deodand and per Curiam they did well for the water and not the Horse was the cause of his death The same Terme in the same Court. Wooton versus Bye THe case was this A man made a Lease for years rendring Rent and upon payment of the Rent the Lessor made an Acquittance by a release of all Actions Duties and Demands from the beginning of the World to Release of all Demands bars a future Rent the day of the date And whether the Rent to come were released by it was the question And it was moved by Crook at the Bar that it was not for a Covenant in future shall not be released by such words yet a release of all Covenants will be good in such a case as the Book is in Dyer 57. so Hoes case Co. lib. 5. 70. b. such a release will not discharge a Bail before Iudgment But it was answered and resolved by the Court that such a Release will discharge the Rent to come for this word Demand is the most large and ample word in a Release that may be as Littleton saith and in Co. lib. 8. Althams case and in Hoes case Co. lib. 5. one was Bail for the Defendant the words wherof are conditionable Scil. Si contigerit predict defendent debit damna illa prefat Quer. minime solvere c. So that before Iudment it is altogether incertain and therfore cannot be released but in the case at the Bar he hath Jus ad rem though not in re as Crook Iustice said The same Term in the same Court. Bret versus Cumberland IN a Writ of Covenant the case was thus Queen Elizabeth by her Letters Patents made a Lease of certain Mills rendring Rent in which Lease were these words to wit That the said Lessee his Executors Administrators and Assigns should from time to time repair the Mills and so leave them at the end of the Term the Lessee assigns over his Term the Queen also
own land as in another mans so the Warren hath existence notwithstanding the unity Dyer 326. Where the Queen was seised of Whaddon Chase and the Lord Gray was Lievtenant there in Fee and he and his Ancestors and their Keepers had by prescription used to hunt wandring Deer in the Demesns of the Mannor of S. adjoyning as in Purlieues the Mannor of S. comes into the Queens hands who grants this to Fortescue in Fee with free Warren within the Demesns c. it was holden that the unity doth not extinguish the Purlieu Dyer 295. Two Closes adjoyn the one by prescription is bound to a Fence the Owner of one purchase the other and suffer the Hedges to decay and dies leaving two Daughters his Heirs who make partition Quaere whether the prescription for the Inclosure be revived true it is that it is made a quaere but he saith see the like case 11 H. 7. 27. of a Gutter which proves our case as I will shew afterwards For the Minor proposition that the watering hath being notwithstanding the said unity I will prove it by 12 H. 7. 4. A Precipe quod reddat of Land Aqua Co-opert Mich. 6. Jac. Challenor and Moores case An Ejectione firmae was brought of a Watering-course and there resolved that it does not lye of it because it is not firma sed currit but of Terra aqua co-operta it doth lye Also I will take some exceptions to the Bar there is no Title in the Bar for the Defendant Pigot and so we being in possession albeit in truth we have no Title yet he who hath no Title cannot oust us neither can stop the said Water-course and it is only shewn in the Bar that Searles entred and enfeoffed Pigot but for any thing as yet appears the true Owner continued in possession 21 Jac. C. B. Cook against Cook in a Writ of Dower the Defendant pleads an Entry after the Darrein continuance and doth not plead that he ousted him and upon this the Plaintiff Demurs and there adjudged that it is no plea in Bar because he doth not say that the Defendant entred and ousted the Tenant 2. Exception the action is brought against four Scil. Pigot Cole Branch and Elyman and Pigot hath conveyed a Title from Searles the three other Defendants justifie but Pigot doth not say any thing but that Searles enfeoffed him 7 H. 6. an action of Wast is brought against many one answers and the other not this is a discontinuance And for the principall matter I will conclude with 11 H. 7. 25. Broo. Extinguishment 60. Two have Tenements adjoyning and the one hath a Gutter in the others Land and afterwards one purchase both and then he alien one to one and another to another the Gutter is revived notwithstanding the unity because it is very necessary and so he prayed Iudgment for the Plaintiff Bear for the Defendant I in a manner agree all the cases which have been put on the other side and I conceive that the Water-course is not Stagnum but Servitium which is due from the one land to the other It is but a liberty and therfore I agree Challenors case which is but a liberty that an Ejectione firmae doth not lye of it but Ejectione firmae lies De stagno For the first exception I answer and confesse that to alledge an Entry after the Darrain continuance without alledging an Ouster of the Tenant cannot abate the Writ for the Defendant may enter to another intent as appeareth in the Commentaries and with the assent of the Tenant But here it was alledged that a Feoffment was made and a Livery which implies another For the matter in Law I conceive that the Water-course is extinguished and it may be compared to 21 E. 3. 2. The case of a way which is extinguished by unity of possession Hill 36. Eliz. Rot. 1332. Hemdon and Crouches case Two were seised of two severall acres of Land of which the one ought to inclose against the other one purchase them both and lets them to severall men and there the opinion was and adjudged accordingly that the Inclosure is not revived but remains extinguished 39 Eliz. Harringtons case the same thing resolved and albeit in Dyer 295. is a quaere yet the better opinion hath been taken according to these resolutions H. 4. Jac. Jordan and Ayliffes Case when one had a way from one acre to another and afterwards he purchased the acre upon which he had the way and afterwards sold it and in that Case the opinion of 3. Iustices was that the way was extinguished also 11 H. 4. 50. and 11 H. 7. 25. prove this case for the said case is compared to the custome of Gavelkind and Burrough English and there the quaere is made whether by the custome it be revived and if it be a custome which runs with the Land the unity of possession doth not extinguish it Co. lib. 4. Terringhams case and 24 E. 3. 2. common appendant is destroyed by unity of possession and yet it is a thing of common right but a Water-course being a thing against common right a fortiori it shall be extinguished Now I will take some exceptions to the Declaration 1. Because he hath laid a prescription for a Water-course as to say that it was belonging to a Rectory to which c. and this is a good exception as appears by 6 E 6 Dyer 70. Ishoms case where exception was taken that before his prescription he doth not say that it was Antiquum parcum which exception as it is there said was the principall cause that Iudgment was given against him and also as the case is here it ought to be a Rectory impropriate and this cannot be before the time of H. 8. which is within time of memory for before the said time no lay person could have a Rectory impropriate and therfore I pray Iudgment for the Defendant Barksedale said that the prescription is well laid and that he would prove by 39 H 6. 32. and 33 H. 6. 26. and per curiam the prescription is good enough and albeit it is not said that it is Antiquae Rectoria yet it is well enough Mich. 1 Car. at Reading Term in Broek and Harris case he doth not say that it was Antiquum Messuage and yet resolved good Doderidge the case of 6 E. 6. differs in this point from this case for a Rectory shall alwaies be intended ancient and so is not a Park for this may be newly created and he put this case suppose I have a Mill and I have a Water-course to this in my own land and I sell the Land I cannot stop the Water-course Crew chief Iustice seemed of opinion that the prescription is gone and that the better opinion in Dyer 13 Eliz. hath alwaies been that the Inclosure is gone by unity of possession but yet the Water-course is matter of necessity Doderidge and Whitlock the way is matter of election but the course of water is