Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before Mâ—châ—e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. Fâ—steâ— did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall
607. Replevin WAkefeild brought a Replevin against Cassand who avowed for Damage-feasant And the Plaintiff prescribed that D. is an ancient Town c. and that all the Inhabitants within the said Town except the Parâ—ion Infants and some particular houses have used to have Common to their houses c. The Avowant shewed that the house to which Common was claimed was built within thirty years last past And whether he shall have Common to this new erected house was the question on a Demurrer Shuttleworth he shall have this Common by prescription but not of common right Gawdy the Prescription is against common reason that he should have Common time cut of mind c. to that which hath not been thirty years and he hath excepted the Parson Infants and such particular houses and by the same reason may exceptall and therefore it is not good But it was adjudged no good Prescription for if this be a good Prescription then any body may create a new house so that in long space of time there will be no Common for the ancient Inhabitants Periam By such Prescription the Lord shall be barred to improve the Common which is against reason Anderson The Common is intire for if H. hath Common appendant to three Messuages and enfeoff one of one Messuage another of the second and another of the third the Common in this case is gone But all agreed that it is impossible to have a Common time out of mind c. for a house that is builded within the thirty years Mich. 29 and 30 Eliz. Rot. 2299. Bishop of Lincolns Case Quare Impedit THe Queen brought a Quare Impedit against the Bishop of Lincoln and Thomas Leigh to present to the Church of Chalsenut Saint Giles in the County of Bucks The case was thus H. being qualified took two Benefices which were above the value of eight pounds and after took a third Benefice above the said value whereby the first Benefice became void and so remained for two years whereby Title of Lapse accrued to the Queen and before presentment made by the Queen the Patron did present one A. who being admitted instituted and inducted did refuse to pay 38 l. 2 s. ob due to the Queen for the Tenths which matter was certified by the Bishop into the Exchequer whereupon and by force of the Statute of the 26 H. 8. the Church is ipso facto void wherefore the Bishop the now Defendant being Patron in right of his Bishoprick did present Thomas Leigh the other Defendant against whom the Queen brought her Quare Impedit And it was adjudged by the Court that the Quare Impedit very well lies for the Recusancy to pay the Tenths was his own act and is a Resignation and by that reason she Church is void and this shall not hinder the Queen of the Lapse But if A. the Incumbent who was presented dies being presented by usurpation upon the Lapse to the Queen yet afterwards the right Patron shall present again But when A. the Incumbent doth resigne and make the Church void by his own Act viz. by Recusancy as in this case is done this may be done by Collusion and by such means the Queen may be deprived of her Litle by Lapse for if this Collusion between the Bishop and the Incumbent be suffered then may a stranger present upon the Title of the Queen and presently such Recusancy and Certificate may be made by which the Church shall become void and so the Queen deprived of the Lapse Fenner this Lapse is given to the Queen by her Prerogative but on condition that she take it in due time for such is the nature of the thing Lapsed as is in this case adjudged viz. That when the Queen hath Title to present by Lapse and doth not present but the Patron presents and after the Church becomes void by the death of the Incumbent In this case adjudged by the Court also the Queen cannot present but in this case the avoidance being by privation and not by death Iudgment was entred for the Queen Trin. 19 Eliz. in Com. B. Hales Case Debt on â— Bond. SAmuel Hales brought an Action of Debt on a Bond against Edward Bell and the Condition of the Bond was that if the said Bell should pay to the said Hales forty pounds within forty daies next after the return of one Russell into England from the City of Venice beyond the Seas that then the Obligation to be void and the Defendant pleaded in Bar that the said Russell was not in Venice upon which the Plaintiff demurred And adjudged by all the Iustices that it was no good plea for in such cases where parcell is to be done within the Realm and parcell out of the Realm the tryall shall be within the Realm 7 H 7.9 Trin. 28 Eliz. in Com. Ban. Haveringtons Case 1974. Debt by an Administrator HAverington and his wife as Administratrix of one Isabell Oram brought an Action of Debt against Rudyand and his wife Executrix to one Laurence Kidnelly the Case appeared to be thus Farmer for thirty years did devise to his wife so long as she shall be sole and a Widow the occupation and profits of his terme And after her Widowhood the Residue of the terme in the Lease and his interest in it to Reynald his Son the Devisor dies and the wife enters according to the Devise And afterwards he in the Reversion by Indenture Dedit concessit vendidit Barganizavit totum illud tenementum suum to the wife and her Heires and did also covenant to make further assurance and to discharge the said Tenement of all former Bargains Sales Rights Joyntures Dowers Mortgages Statute-merchants and of the Staple Intrusions Forfeitures Condemnations Executions Arrearages of Rents and of all other charges except Rents Services which shall be hereafter due to the Lords Paramount And then the Reversioner and his wife levied a Fine to the uses aforesaid and after the Devisee takes husband and thereupon the Son enters in the terme And the Administrator of the wife brought an action of debt upon an Obligation for the performance of the Covenants of the Indenture against the Administrator of the Reversioner And Judgment for the Plaintist And it appeared by the Record that these points following were adjudged to be Law although that the latter matter was onely argued 1. That the wife of the Reversioner who had Title of Dower in the Land is concluded of her right of Dower by the Declaration of the uses of the Fine by the husband onely which Fine is after levied by them joyntly because no contradiction of the woman appears that she doth not agree to the Vses which the husband selely by his Deed of Indenture had declared 2. To Devise that the wife shall have the occupation and profits during her Widowhood is a good Devise of the Land it self during such time See Plow 524. And that no Act which she can do
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his â—isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further infâ—rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessioneÌ„ Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchangâ— and iâ— the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander bâ—ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents
Replevin against Edmund Brach and others the Defendant made Conulance as Baily to John Levison and said that long time before the taking c. one William Coup was seised of a house and eight acres of Meadow c. whereof the place is parcell in his Demesne as of Fee and did demise the same to Richard Coup for one and twenty years reserving Rent and the Lessee died and the Land came to his Wife as his Executrix who married Roger Owseley and that William Coup did levy a Fine of the Premisses to Stephen Noke and others to the use of Stephen and his Heires and after Stephen entred and outed the Termor and infeoffed John Leveson and his Heires and then the Termor re-enters claiming his Terme and for Rent arreare the Defendant made Counsans as aforesaid and it was adjudged against the Defendant because this entry and Feoffment by Noke to Leveson and the re-entry of the Termor is no Attornment and this varies from Littleberries case where the Lessor entred and made a Feoffment and the Lessee re-entred for Noke the Lessor had not any Attornment and can have no Distresse and his Feoffee cannot be in better case then he himself And if the first Feoffee makes Feoffment to B. who enfeoffs C. and the Lessee re-enters that is Attornment but to the first Feoffee and not the other for he may be misconusant of it because he was outed by the Lessor but note Iudgment was not given till Trin. 36 Eliz. Pasch 36 Eliz. in C. B. Owens Case EDward Owen brought an Action of Waste against Peerce for land in ancient Demesne the Defendant made defence and pleaded to the Iurisdiction of the Court because the land was ancient Demesne and the Defendant was ruled to plead over for it is but a personall Action and the Statute is a beneficiall Statute for the Common-wealth and by the opinion of all the Court except Walmsley does extent to ancient Demesne 40 Ed. 3.4 Ancient Demesne is a good plea in Replevin 2 H. 7.17.21 Ed. 4.3 it is no good plea in an action upon the Statute or Glocester Mich. 33 and 34 Eliz. in C. B. Rot. 2122. Sir Edward Cleeres Case SIr Edward Cleere brought a Quare Impedit against the Bishop of Norwich Edward Peacock and Robert Hinston Clerk to present to an Addowson holden in Capite Anderson A Devise of an Addowson in grosse is void because it is of annuall value whereof the King shall have the third part But Owen Beaumont and Walmsley held the contrary and so it it was adjudged See the Case of the Earle of Huntington against the Lord of Montjoy of a Devise of Liberties of Cramford which were not of any annuall value and yet the opinion of Wray and Anderson Iustices was certified to some of the Councell being Arbitrators that the Devise was not good Trin. 36 Eliz. in C. B. Rot. 2145. Brownes Case ANthony Brown brought an Action of Trespasse against Richard Pease the Case was this John Warren was seised in fee of the Mannor of Warners and of the Mannor of Cherchall and demised his Mannor of Warners to the youngest Son of Richard Foster his Cosin in fee. at which time Richard the Father had issue George Foster and John Foster And he demised his Mannor of Cherchall in haec verba I will my Mannor of Cherchall to Margery Water for her life and if she die and then any of my Cosin Fosters Sons then living then I will my foresaid Mannor of Cherchall unto him that shall have my Manner of Warners and after the Devisor died without issue and the Reversion of the Mannor of Cherchall discended to Henry Warner as Brother and Heire of the Devisor And after the said Henry Warner by Deed Inrolled did bargain and sell the Mannor of Cherchall to Anthony Browne who devised it to the Plaintiff And then George Foster dies without issue and the Mannor of Warners does discend to Iohn Foster his Brother and Heire who enters and enfeoffs the Lord Rich and after marriage the Tenant for life of the Mannor of Cherchall dies and the Plaintiff enters and the Defendant enters upon him as Servant to Iohn Foster whereupon the Plaintiff brought this Action And Iudgment was given for the Plaintiff because that the words and the intent of the Devise was that the Mannors of Warners and Cherchall should go together and therefore the Mannor of Warners was sold before the death of Margery by John Foster and after the death of Margery John can take nothing by the Devise Mich. 29 and 30 Eliz. Rot. 2325. or 2929. Hambletons Case JOhn Hambleton had issued foure Sons John the eldest Robert the second Richard the third and Thomas the fourth and devised to each of them a parcell of land to them and the Heirs Males of their body begotten and if it happen that any of their Heirs dye without issue Male of his body lawfully begotten then the Survivor to be each others Heire If these words make a Remainder or are void was the question And it was adjudged against the Plaintiff for the Court held that all those that survived were Ioynt-tenants and one Ioynt-Tenant cannot have a Trespasse against the other for by the intent of the Will it appears that the Survivors should have that part and the survivority of each other Heire each Survivor that is all that survive shall be each others Heire and so the remainder should be to every one of them 29 Eliz. Fenners Case argued before the Lord Mayor of London at Guildhall IN this Case it was adjudged that if a man Covenants that his Son then within age and infra annos nubiles before such a day shall marry the Daughter of I.S. and he does marry her accordingly and after at the age of consent he disagrees to the marriage yet is the Covenant performed for it is a marriage and such a one as the Covenantee would have untill the disagreement vide 7 H. 6.12 Dyer 143.313 369. 25 Eliz. Webbe against Potter IN an Ejectione firmae by Webbe against Potter the Case was Harris gave Land in Frank-marriage to one White and the Deed was Dedi concessi Iohan. White in liberum maritagium Iohannae filiae meae habend dictae Ioannae heredibus in perpetuum tenend de capitalibus Dominis feodi illius with Warranty to Iohn White and his Heires Periam The usuall words in Frank-marriage shall not be destroyed for the words of Frank-marriage are Liberum maritagium cum Ioanna filia mea in the Ablative case and although here it be in the Dative case it is good And of the same opinion were all the Iudges Also a Gift in Frank-marriage made after the Espousals was held good by all the Iustices 2 H. 3. Donor 199.4 Ed 3.8 Dyer 262 B. And a Gift in Frank-marriage before the Statute was a Fee-simple but now speciall taile and if it be not a Frank-marriage he shall have an Estate for life and to prove this his
Oathes and they who had eaten were fined five pounds and committed to the Fleet. And some of the Iustices did doubt if the Verdict were good and upon many Presidents had it was adjudged good and they relyed much on the President of the 12 H. 8. Rot. 102. where one of the Iury did eat before they were agreed and yet the Verdict was good And after a Writ of Error was brought and the Iudgment affirmed 20 H. 7.3 13 H 4.13 Pasch 27 Eliz. A Man gives land to I.S. in the Premisses Habendum to him and three others for their lives Et eorum diutius viventium successive The question was what Estate I.S. had and whether there be any occupancy in the case Coke hâ—ld that I.S. had but an Estate for his own life because he cannot have an Estate for his own and anothers life where the interest of both begin at one instant and the Habendum by no means can make a Remainder as if a Lease be made to one for life habendum to him and his first begotten Son this makes no remainder to the Son although some have held to the contrary so of a Lease to one for years habendum to him and another does not make any remainder to the other also the word Successive will not make a remainder as in the 30 H 8. Br. Joynt-tenant 53. Also one cannot have an Estate for life and for anothers life also in present interest for the greater doth drowne the lesse but if the greater be present and the other future as a Lease to him for life the remainder to him for anothers life or a Lease for life and three years over this is good but if a Lease be made for life and for years the Lease for years is drowned 19 Ed. 3. Surrender 8. where Tenant for life of a Mannor did surrender to him in the Reversion c. Gawdy If a Lease be made to one for life and so long as another shall live quaere what Estate he hath And as to the second point certainly there cannot be an Occupancy for if the Estate be void the Limitation is void also the Occupancy is pleaded Que un tiel and does not say Claymant comme occupant c. for if a man comes a hawking on Land he is not an Occupant and the Book of Entries is that he ought to plead it Clinch Iustice every Occupant ought to be in possession at the time of the death of the Tenant for otherwise the Law casts the Interest upon him in the Reversion But Gawdy and Chute denied this and after viz. 29 Eliz. the Case was moved again by Popham and he made three points 1. If the other three had a joynt Estate 2. If they had a Remainder 3. If there be an Occupancy And he was of opinion that they had nothing by the habendum for they were not named in the Premisses they cannot have a Remainder for the incertainty but if those three had been named in the Premisses habendum to them Successive as they had been named there they had a Remainder for there the certainty appeared 30 H. 8.8 Dyer 361. Also there can be no Occupancy during the lives of the other three but he agreed to the Book of the 18 Ed. 3.34 that a Lease for life the Remainder to him for anothers life was good And that if a Lease be made to I.S. and a Monk it is void to the Monk and the other hath all and that during the life of the Monk there can be no Occupancy And if I make a Lease to I. S. for the life of a Monk it is a good Lease And till the same terme Iudgment was given that they could take nothing in possession joyntly nor by way of Remainder and that no Occupancy could be in the Case and that I.S. had Estate for terme of his owne life onely Stile against Miles STile Parson did suggest that the Land was parcell of the Glebe of the Parsonage and that the said Stile did let the said Glebe being foure and twenty acres to Miles for years rendring thirteen shillings foure pence Rent and in a Prohibition the case was if Tythes were to be paid And Wray said that although it was parcell of the Glebe yet when it was leased out Tythes ought to be paid and if no Rent be reserved Tythes ought to be paid without question but there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tythes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Iustices took no regard of those words But Godfrey said that those words would discharge him but Wray on the contrary for that this Tythe is not issuing out of the Land but is a thing collaterall and if a Parson do release to his Parishioners all demands in the Land yet Tythes are not thereby released for such generall words will not extend to such a speciall matter And in the 15 of R. 2. Avowry 99. one held of another by ten shillings for all Services Suits and Demands yet the Tenant shall pay Relief because it is incident to the Rent and 8 Ed. 3.26 Mich. 29 Eliz. Rot. 2574. or 2375. Stephens against Layton IN an Ejectione firmae upon issue joyned the case in a speciall Verdict was that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife primogenito habend to them diutius eorum viventi successive for terme of their lives and then the Husband and Wife had issue a Daughter The question was if the Daughter had any Estate And three Iustices held that she had no Estate because she was not in being at the time of the Lease made and a person that is not in esse cannot take any thing by Livery for Livery ought to carry a present Estate where the Estate is not limited by way of Remainder 18 Ed. 3.3 17 Ed. 3.29 30. adjudged but it was said at the Bar that if the Estate had been conveyed by way of use it is otherwise And the said Iustices held clearly that the word Successive would not alter the case And the case was further found that William Beale and Sampson Beale did covenant with one Lendall that if Tho. Beale Son of Sampson Beale should marry Margaret the Daughter of the said Lendall if she would assent and also that the said Lendall did covenant that the said Margaret should marry the said Thomas if he would assent Pro quo quidem Maritagio sic tum postea habendo the said William Beale covenanted that he would make or cause to be made an Estate to the said Thomas and Margaret and to the Heirs of their bodies for the Ioynture of the said Margaret and it was further found that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Sampson Beale and William Beale
Chaplaines they cannot take many Benefices during the lives of the others which are beneficed and discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplaines In an Action of false Imprisonment brought against the Maior Citizens Sheriffs and Commonalty of Norwich it was moved where the Issue should be tried And by the Court the Issue shall not be tryed there and in the same case it was moved whether the Sheriff could summon himself and it was answered by the Court that he could not and Periam said that so it had been after adjudged Mich. 29. and 30 Eliz. IN an Avowry adjudged by the Court Anderson being absent that in an Avowry it is sufficient for the Avowant to say Son Franktenement but if the Plaintiff traverse it it is no plea without he makes to him a Title that is the difference of pleading Son Franktenement on the part of the Avowant and on the part of the Plaintiff And Welson said that so were all the Presidents that it is no plea to traverse the Bar in the Avowry without making Title And Periam said that it is no Title to plead De son seisin demesne but he must make out his Title Paramount his Seisin Demesue Mich. 29 and 30 Eliz. Bloss against Holman JOhn Bloss brought an Action of Trespasse Quare vi armis for taking of his Goods against Holman and the Defendant pleaded not guilty and the Iury gave a speciall Verdict viz. That the Plaintiff at the time of the Trespasse was of the Mystery of the Mercers and that at that time the Defendant was his Servant and put in trust to sell his Goods and Merchandizes in Shopa sua ibidem de tempore in tempus and that he took the Goods of the Plaintiff named in the Declaration and carried them away and prayed the advice of the Court if the Defendant were culpable or not and upon the Postea returned Shuttleworth prayed Iudgment for the Plaintiff And the doubt was because the Declaration was Quare vi armis because it appeared that the Defendant had custody of the Goods but Shuttleworth doubted whether he had Custody and cited the case of Littleton viz. If I give my Sheep to Compasture c. and he kills them an Action of trespasse lies and the Iustices held that in this case the Action did well lye and Periam said that the Defendant had onely an authority and not custody or possession and Iudgment was given for the Plaintiff 3 H. 7.12.21 H. 7.14 And Windham said that if he had imbezelld his Masters Goods without question it was felony Quod fuit concessum Anderson absente and the Law will not presume that the goods were out of the possession of the Plaintiff and the next day came the Lord Anderson and rehearsed the case and said that the Defendant had neither generall nor speciall property in the Goods for it is plaine he could have no generall property and speciall he had not for he could not have an action of Trespasse if they were taken away then if he had no property a trespasse lies against him if he take them so if a Shepheard steal Sheep it is felony for he hath no property in them wherefore he gave Iudgment accordingly Mich. 29 and 30 Eliz. Rot. 1410. Cooke against Baldwin A Lease was mate for one and twenty years to one Truepenny and Elizabeth if she and he or any Child or Children between them lawfully begotten should so long live and then they were married and the Wise died without Issue If the Lease be determined or not was the question And it was moved that it was determined because it is conjunctive if he and she c. and now one of them is dead without issue and it is not like the case of Chapman where a man covenants to enfeoff one and his Heires for it is impossible to enfeoff his Heires he living and therefore in that case it shall be taken for a disjunctive and if I make a Lease for years to two if one of them dye the other shall have all because they take by way of interest but it a Lease be made to two during the life of one of them if one dye the Lease is gone Quod fuit concessum And here the meaning is that the Lease shall be determined if one of them dye Rhodes Iustice The meaning is against you for by the word or which comes after it appears that they are to have their lives in it Anderson By the words it is plain that after the death of one the Lease is determined and that which moves me to think it was so intended is because it was intended as it seems to me to be a Ioynture for the wife which was made by them before marriage and then if by the death of one it should be gone and she have nothing could not be the meaning To which the other Iustices assented And all the Iudges agreed that the Lease was not determined by the death of one and Iudgment given accordingly Mich. 29 and 30 Eliz. IN a Quare Impedit by Sir Thomas Gorge Knight against the Bishop of Lincolne and Dalton Incumbent the Case was That a Mannor with the Advowson appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question And all the Iustices held clearly that the avoidance would not passe because it was a Chatiell vested And Periam said that in case of a common person without question an Advowson appendant would not passe by such Grant for if the Father dye it shall go to his Executor but if it be an Advowson in grosse in case of a common person there is some doubt But in the principall case all the Iudges held ut supra and said that so it was in 9 Ed. 3.26 Quare Impedit 31. And in Dyer in the case of the Church of Westminster but F.N.B. is contrary 33 N. Mich. 29 and 30 Eliz. Rot. 728. HOuse and Elkin brought an Action of Debt upon an Obligation made to them against Roger Grindon as Sheriffs of London upon condition of appearance at a certain day in the Kings Bench The Defendant pleaded that he being arrested by a Precept out of the Kings Bench appeared at the day And upon this they were at issue to be tried by the Country And a Repleader was awarded because it was triable by Record for although the Sheriff do not return the Processe yet the Defendant ought to come into the Court at the day and there speciall entry shall be made of his appearance And so was it adjudged this terme in the Case between Bret and Shepheard But Bradford Prothonotary said it was well enough for it may be that he appeared there and there was no Record of it To which it was answered that it
expounded as they are commonly taken and not to go to any strict construction of the words as Heirs in the Latine is used also for goods by the Civill Law but we use it only for lands and so Libra in Latine signifies a Weight and yet if I am bound in Vigint Libris if I forfeit my Bond I must pay money and not Lead or the like And so the word Puer is somtimes taken for a servant Claudite jam rivos pueri c. and the same reason that it may be intended for a Daughter may be for a Servant also Gawdy I suppose the Son shall have it and not the Daughter for although Pueri was taken for Male and Female yet now it is taken for Male in any Modern Author but to omit curiosity of words we ought to consider rather the intent of the parties and there are many circumstances to prove that he intended this to his Son and not to his Daughter for he made it for setling his Inheritance and it shall not be supposed that he intended his Daughter should have it Also where the case may be taken two waies the most usuall shall be intended as in case of a reservation of a Rent at Michaelmas that shall be intended at the chiefest Feast also in this case it shall be intended that he would advance the most worthy of his blood and therefore to that purpose the conveyance shall be expounded for if there be two I. S. and I give land to I.S. it shall be intended to my next Neighbour but if one be my Cosin although he dwells forty miles from me yet he shal have the land And to this Southcote accorded 31 Eliz. in B. R. Hone against Clerk A Woman Lessee for life takes Husband who by Indenture makes a Feoffment of the land to I.S. for these words Sciant per Servantes Richardum How Katherin uxor ejus dedisse I.S. unum messuagium habendum praedict I.S. heredibus suis ad solum opus usum of the said I.S. and his Heirs during the life of Katherine The question was if this was a forfeiture because the wife was Tenant for life and the Attorney argued that it was for the words Pro termino vitae Katherin are referred to the use only and not to the estate for by these words habendum to him and his Heirs the estate is limited and therefore it is a forfeiture but after comes the limitation of the use ad usum I.S. and his Heirs during the life of the woman and after the death of the woman the use remaines in the Feoffor and he cited the Lord Sturtons case in the beginning of the Queens Raign The Lord Sturton gave land to Clerk and his Heirs to the use of Clerk and the Heirs of his body and adjudged that it was not an estate in taile for the limitation of the estate was before in the Premises Coke on the contrary and said that those words For life of the wife are to be referred to the limitation of the Estate for if a double sense be in words such sense shall be taken as shall avoid all wrong and therefore it shall not be so expounded as that the Grant shall not take effect and that a forfeiture shall ensue 4 Ed. 2. and see a notable case for exposition of words and for relation of words and sentences 34 Ed. 3. Avowry 58.28 H. 8. Dyer Gawdy It is a forfeiture Clench said he would advise but afterwards it was adjudged a forfeiture for as Wray said the estate given was forfeit Mich. 36 37 Eliz. Bagnall against Porter in B. R. Rot. 353. A Man by Indenture bargains and sells his land and if the Bargainor pay 100 l. at such a day that then he shall be seised to the use of the Bargainor and his heirs and did assume to make such assurance for the security of the land as should be advised by the Councell of the Bargainor and the Bargainee bound himself in a Recognizance to performe the said Covenants And in debt upon the Recognizance it was shewn that the Bargainor paid the money at the day and had tendred to the Bargainee a Deed in which was comprised an acquittance of payment of the money and also a release of all his right and the Bargainee refused to seale it Coke was of clear opinion that he ought to have sealed it for it is necessary to have the Deed to mention payment of the money for otherwise the Bargainee and his heirs may claim the land for default of payment Gawdy of the same opinion and cited 19 Ed. 4. Popham The case is not so clear for if he had tendered an acquittance only there is no doubt but the Bargainee might refuse to seale it and by the same reason he may refuse when it is joyned to a thing that he is bound not to do viz. to seal the release but at last the matter was referred to Arbitration Hillar 37 Eliz. COke demanded this question A man having two Daughters his Heires does demise his Land to them in Fee What estate had they by this Demise For if a man deviseth Land to his eldest Son it is voyd and he is in by descent That it was holden by the Court that they shall hold by the Devise because that he gives another estate to them then descended for by the descent each of them had a distinct moyety but by the Devise they are Joyn-renants and the survivor shall have all And Fenner sayd If a man had Land in Burrow-English and Guildable Lands and devised all his Land to his two Sons and dyes both of them shall take joyntly and the younger shall not have a distinct moiety in the Burrow-English nor the elder in the Guildable Land but they are both Joyn-tenants Pasch 37 Eliz. Carrell against Read in B. R. Rot. 270. A Lease for years was made of divers Fenny grounds in Cambridge ss and the Lessee covenanted to defend the ground for being surrounded with water and to drain the water out of other lands that were demised to him in the said County And upon an Action of Covenant for not performing the Defendant pleaded that the Plaintiff had entred in the land demised And adjudged no plea by the Court because the Covenant was not in respect that the Lessee should enjoy the land nor was it a Covenant abhering to the land but to a collaterall thing but if it had been in respect of enjoying the land there it is a good plea to say that the Plaintiff had entred but where the thing to be done is collaterall it is otherwise and also if he did plead such plea yet it is not a bar unlesse he holds him out of possession Coke lib. 3.221 4 Ed. 3.29 the Lord shall not have a Cessavit after entry in parcel 10 Ed. 4.11.35 H. 6. Bar 162.19 Ed. 4.2 Trin. 37 Eliz. in B. R. Rot. 1076. Dogrell against Perks IN an Action of Covenant The Defendant pleaded
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
If a Quare Impedit does lye of an Archdeaconary for it is but a function or dignity and therefore a Quare Impedit will not lie of an office of a Commissary but the 24 Ed. 3.42 is express in the point And 30 Edw. 3.21 a Qure Impedit did lye of a Priory And therefore notwithstanding this exception Iudgement was given for the the Plaintiff But there were two other doubts in the Case First If a Quare Impedit will lie for an Executor for disturbance done in vita Testatoris and that by the Statute of 4 Ed. 3.7 Snigge The action will lye by the Executors for in all Cases where damages are to be recovered they shall have an action by that Statute 11 H. 7.2 An action of trespass was brought for taking of goods in the life of the Testator but no action will lie for entrie into land in the life of the Testator for it ought to be such an action as will survive in damages and may be a damage to the Executor 7 H. 42. An ejectement lies for Executors upon an ejectment in the life of the Testator And if an ejectment be maintenable in which a Terme shall be recover'd it shall be also maintenable in a Quare Impedit in which a presentment may be recovered Drew cont At the Common Law Executors have no remedy for a personall wrong quia moritur cum persona for upon the death of the Testator Executors have no remedy for arrears of Rent at the Common Law but only the Statute of 32 H. 8. And it cannot be that the Executors in this case are within the Statute of 4 Ed. 3. For that Statute intends onely to remedy such things as are avaylable to the Testator and are assets to pay debts and although Executors may have a Quare Impedit that is intended of a disturbance fait al eux but contra if it be done in vita Testatoris Walmesley I conceive no actions will lie For the Statute gives an action for the taking of goods and such like things but here is no taking but only a disturbance which may be done by Parol Perryam Justice cont For the Statute says that they shall have an action of trespass for a trespass done to their Testator and not for taking goods so that the taking of goods is but by way of resemblance and not that they shall have an action of trespass for taking of goods onely Windham and Anderson agreed with Perryam and whereas it hath been said that this cannot be Assetts Put the case that the Testator had judgment to recover damages shall not that be Assetts and why may the damages here recovered be Assetts and why shall not the grant of the Advowson be Assetts in the hands of the Executor aswell as in the hands of the issue And so was the opinion of the Court. 32 Eliz. Foster and Wilson against Mapps in B. R. Rot. 71. THe Case on a speciall verdict was thus Mapps the Defendant made a Lease of the Parsonage of Broncaster by Indenture and Covenanted by the same Deed to save the Plaintiff harmless and indemnified and also all the proffits thereof and premisses against Philip Blount the Parson of Broncaster and hereupon a writ of Covenant was brought against Mapps and the breach assigned was that Blount had entred and ejected the Plaintiff And one point was if this shall be accounted the Deed of the Defendant because the Defedant delivered his part of the Indenture to the Plaintiff as his Deed but the Plaintiff did not deliver the counterpart to him But the opinion of the Court was that this was a good Deed of the Defendants and Gawdy said that the safest way had been to deliver his part as an Escroll to be his Deed when the Plaintiff delivered the Counterpaine But a great doubt was made in this case because it was not shewed that Blount entred by a Title and then he shall be taken to have entred by wrong and so the Covenant not broken for to save harmeless is only from legall harmes as it is in Swettenhams Case Dyer 306. Where the Warden of the Fleet suffered a prisoner to escape and took a bond of him to save him harmeless and then the Warden was sued upon an escape and thereupon he sued the Obligation and adiudged that the bond was not forfeit because the partie was not legally in execution and therefore the Warden could not be damnified for the escape Padsy cont The Diversitie is where the Covenant is generall and where it is speciall for in this case it being speciall to save harmeless from Blount he ought to defend against him his entry be it by good title or by wrong and so is Catesbies Ease Dyer 3.28 Where the Lessor covenanted that the Lessee should injoy his terme sine ejectione vel interruptione alicujus the Lessee brought an action of Covenant because a stranger entred and did not say he had any title and Iudgment was given for the Plaintiff Gawdy The Covenant is broke For if Blount disturbe him so that he cannot take the proffits this is a breach of the Covenant for hereby the Plaintiff is damnified 2 Ed. 4.15 where the Condition of a Bond was that the Obliger should warrant and defend the Obliged for ever and against all and the Defendant pleaded that he had such a Warrant and there it was held by Danby to be no plea because he cannot warrant unless the other be impleaded And there it was said by Danby and Needham that if the obligee be outed by a stranger who hath no title the Obligation is forfeit by reason of this word defend Wray agreed and said that this case was not like to the Ease of 26 H. 8.3 where the Lessor Covenanted to warrant the land to the Lessee for there he shall not have a Covenant if he be wrongfully outed but our case is to save harmeless which is of greater force than to warrant for to warrant Land is only upon the title but here be the Lessee outed by wrong or by title yet is the Covenant broken to which the other Iustices agreed Fenner Vouchf 18 Ed. 4.27 where a man is obliged to save J.S. harmless against me if I doe arrest J.S. although wrongfully the obligation is forfeit which the other Iustice denied And at last Iudgment was given for the Plaintiff Pasch 33 Eliz. Elmer and his wife against Thatcher in C. B. Rot. 1125. And Cooks 1. Inst 355. IN a Quod ei deforceat of a third part of an acre of Land whereof the wife was tenant in Dower The defendant confesed she was tenant in Dower but shewed how she committed waste Statut Westm 2. cap. 4. wherefore he brought his action of waste to which she appeared and pleaded nothing for which he had Iudgment to recover The Plaintiff said that no waste was committed and the Defendant Demurred Owen for the Defendant a Quod ei deforceat lies not in this case for such
are in my possession and they are evicted by the right Owner a Covenant will lye contra if I have not possession at the time of the letting them and if I let land and J.S. enter before the Lessee the Lessee cannot have a Covenant Quod nota Et ad journeâ—ur 35 Eliz. Scarret against Tanner in C. B. Rot 1458. IN a false Imprisonment the Defendant justified that he was High Constable of the Hundred of E. in the County of â—…p and that the Plaintiff made an affray within the said Hundred upon one Walm who came presently to the Defendant and told him of it and took his oath that he was in fear of his life whereupon the Defendant came to the Plaintiff and arrested him and carried him to Prison untill he could finde sufficient Sureties of peace Glanvill A Constable cannot arrest one to finde surety of the peace upon a complaint made to him unless he himself sees the peace broken 7 Ed. 4. Kingsmill contr For he is at Common Law Conservator pacis 12 H. 7.18 And how can he keep the peace if he may not compell them to finde surety 44 Ed. 3. Barr. 2â—2 If a man that is threatned complain to the Constable he may compell the party to finde surety for his good behaviour and may justifie the imprisoning him or putting him in the Stocks 22 Ed. 4.35 10 Ed. 4.18 where a Constable in such case may take a Bond. Anderson I grant that Constables are keepers of the peace at the Common Law and are to keep the peace as much as in them lyes and that is to take men that they finde breaking the peace and to carry them to a Iustice of peace to finde surety but the Constable cannot take security nor recognizance nor bail for he is not an Officer upon Record and if he do take a Bond how shall he certifie it and unto what Court Walmesley contr Who said that the Constable might take security by bond although not by recognizance or bail Beaumond A Constable may put him that breaks the peace within the Stocks but it must be where the breach of peace is committed in his view for he hath no authority to take an oath that a man is in fear of his life and then the foundation of his justification doth fail Owen The oath is not material for although he cannot take such oath yet his taking of surety is good and before Iustices of peace were made the peace was preserved by Constables and the Statute that creates Iustices does not take away the power of Constables and therefore he may justifie Sed adjournatur Pasch 38 Eliz. Worsley against Charnock in C. B. IN an audita quaerela the Case was thus The father and son were bound in a Statute-Merchant to Charnock who sued out an Execution against them and their lands were severally extended and they supposing that the Statute was not good because it was not sealed with both their seals according to the Statute they both brought a joynt audita querela and whether they could joyn in this Action or not was the question Warburton They shall not joyn for in all cases a man must make his complaint according to his grief and here their grief is several as it two men be imprisoned they shall not joyn in a false imprisonment The same Law in a Battery 8 Ed. 4. 18 H. 6. 10 Ed. 4. It J.S. hath goods of divers men they shall not joyn in a Replevin and 33 H. 6. two men shall not joyn in an audita quaerela unless the land in execution is in them joyntly and 29 Ed. 3. two Ioynt-tenants Infants alien they shall have several Writs of Cum fuit infra aeâ—atem But he confessed the Case in 30 Ed. 3. Fitzherbert audita quaerela where two men were in Execution and the Conusor did release to one and then to another by another Release yet both shall joyn in an audita quaerela but this is not Law and besides they cannot recover damages joyntly by reason of their several vexations and this Action being personal damages cannot be severed Vid. 2 Ed. 3. Execution 45. 9 Ed. 4.31 12 Ed. 4.6 Harris contra And as to the last reason the Book in the 20 of Elizabeth is that no damages shall be recovered in an audita quaerela which if it be Law then is the doubt at an end And whereas it hath been said that they shall not joyn because their griefs are several methinks there is no reason but that if he that survives shall be charged with the whole that they shall joyn also in their discharge for if their charge be joynt their discharge shall be joynt also And in the 34 H. 6. and 30 Ed. 3. where an audita quaerela may be brought joyntly and he resembled this to the Case of a Monstraverunt where if a Tenant in antient demesn be distreyned all the Tenants shall joyn because the grievance to one may be a grievance to all the rest Yelverton of the same opinion Tho suing of the Execution was the cause of the audita quaerela but not the ground for the ground was the Statute-merchant and therefore it is here brought according to the Statute Anderson If two men do me several Trespasses yet I may have a joynt Action against them and the death of one of them shall not abate the Writ but if two are Plaintiffs in a personal Action the non-suit of one shall be the non-suit of the other and in our case the Statute was joynt and also the Execution then if all the Writs are so the audita quaerela which is to discharge them shall be joynt also especially in this Writ where they are as it were Defendants and therefore he resembled this Case to a Writ of Errour or an Attaint brought by two joyntly and one is non-sued yet this shall not abate the Writ because they are in a manner Defendants Walmesley contr The Action ought to be brought according to the cause of the wrong and the wrong begun in suing the Execution and that was several and therefore the audita quaerela ought to be several also but if this Statute had been good and had been discharged by release or defeasance then the audita quaerela might be brought joyntly for then the ground of the execution was joynt but here is but a colourable Statute and the cause of the Action is not begun before the Execution sued Owen and Beaumond agreed and after by assent of Anderson Iudgement was given that they ought to have several Writs Note Pasch 36 Eliz. in B. R. Rot. 323. or 521. between Curteise and Overscot If A. did recover against B. by two several Iudgements whereby B. is in Execution it was adjudged that he shall not have one audita quaerela but two several Writs Pasch 37 Eliz. Sawer against Hardy in B. R. Rot. 254. IN an Ejectment the Case was this A woman was Lessee for forty years sub
hac conditione si vixerit vidua inhabitaret super prâ—m ssos the woman dyed before the Lease expired and her Executors entred and being outed they brought this Action and the question was if the Lease were determined by the death of the woman by limitation or by condition or if it yet remain Gawdy It cannot be a condition because the sentence is imperfect for if a man makes a Lease for life rendring rent sub hac conditione that if the rent be behind without any further words this cannot be a condition by reason of the imperfection of the sentence and without doubt if a Lease for years be made to a woman if she so long live and inhabit the premisses this is a limitation so that the term is ended by her death Clench It is neither condition nor limitation for a condition ought alwayes to be a full and perfect sentence and not uncertain As a Lease for years upon condition that the Lessee shall pay 181. at the house of the Lessor this is a full sentence but a Lease made rendring rent and if it be behind and no more said this is no condition And in all cases where these words quod si do make a condition it is requisite that these words quod tunc do ensue Neither can it be a limitation because the words quod si spoyl the sentence And Popham was also of opinion that it was neither condition nor limitation but if the words had been sub conditione quod tamdiu vixerit inhabitaret c. this is a perfect sentence and by her death or not inhabiting the estate might be determined and he put this difference that if a Lease had been for 20 years si tamdiu vixerit super praemissos the Lease had been determined by her death but if a Lease had been for 20 years si tamdiu inhabitaret quamdiu vixerit vel durante vita super praemissos there if she dyes within the term yet the term continues for in the first case the limitation goes to the interest and in the other to the time and Iudgement was given that the Plaintiff should recover for that the term continued Michaelm 37 38 Eliz. Mark Ives Case in B. R. IN a Debt upon a Bond the Condition was that if the Obligee should go to Rome and return from thence again before the 5. of July after the date of the Bond that the Obligor should pay to him 20 l. upon the 20. day of July at Pauls And it was moved by Williams Serjeant that if the Obligee returned within the time whether he ought to give notice of his return to the Obligor for otherwise by his secret return he may make a forfeiture of the Obligation for if the Obligor of necessity be to tender this money without notice of his return inconvenience would ensue for perhaps the Obligee is not returned at the time the money is due and then the tender is in vain and the Law will not compell a man to make a tender unless it be to some purpose and therefore the Obligee ought to give notice to the intent that the Obligor may know whether the money he due to him or not And it is like a Mortgage upon condition that if the Mortgager does pay 20 l. before Michaelmas at Pauls that theâ— c. here the Mortgager ought to give notice at what day before Michaelmas he will tender the money or otherwise he cannot enter for the time that the Law prescribes to make the tender is the last instant before Michaelmas and if the Mortgager will make his election to tender it before the day he ought to give the Mortgagee notice thereof And the Case of one Gurney was cited by Cook Adjudge 27 Eliz. where a Lease was made for years and the Lessor made another Lease for years to commence after the surrender determination c. of the first Lease and then a private surrender is made to the Lessor of the first Lease the second Lease shall not begin untill the Lessee hath notice of the surrender of the first Lease But Tanfield said that the Case was ruled contrary and that the Lease did begin presently without notice ideo quaere and as to the principal point the Court was divided But Fenner said that if the Obliges should give notice perhaps the Obligor will not be found and therefore good reason that the Obligor should make tender to the Obligee at his peril Trinit 36 Eliz. Escot against Lanreny in B. R. IN an action on the Case the Plaintiff declared that the Lord Barkley by his Indenture dimisit ad firmam tradidit totam firmam suam tolnetum proficuum nundinarum dierum Faerialium infra manerium Bergum de Thetbury for 21. years and that the Defendant had disturbed and hindred him from taking of divers pieces of Wool infra manerium Burgum praedict c. and after Issue joyned exception was taken to the Declaration because he declared of a demise made by the Lord Barkley and did not set forth that the Lord Barkley was seised at the time of the Demise 7 H. 7.3.34 H. 6.48 But the exception disallowed by all the Court because the Plaintiff in this action is to recover damages only and the right or title of Land does not come in debate but contra if it were in such action where the right of the Toll did come in debate and to prove this Glanvill cited 20 A sis 3.47 Eâ— 3. and 33 H. 6. and upon this reason he said that the Plaintiff of necessity is not bound to set forth the Market day nor the quantity of the Toll 34 H. 6.48 Where it was pleaded that J.S. made a Lease to him and did not shew that he was seised and yet held good Clench took another exception because he did not set forth that Toll was to be payd by common usage for no Toll is due for Hens or Geese or for many other things of such nature and so it might be that Toll was not due for wooll Fenner was of the same opinion but Popham Contra who said that the Plaintiff had declared that the Defendant had disturbed him from the Toll of divers pieces of Wooll and by that is implyed that Toll ought to be payd for Wooll And at another day Iudgment was given for the Plaintiff Pasch 36 Eliz. Sackford against Philipps in Camera Scaccarii Rot. 484. IN a debt this Case was moved by Williams Serjeant A. is indebted to B. in 10 l. upon a Bond and R. did promise to B. that if he would forbear A that if A. did not pay him he would B. for non-payment by A. does recover so much in damages upon the assumpsit against R. If in Debt upon this obligation against A A. may plead this recovery in Bar. Walmsley he cannot for he is a stranger to the recovery ideo Quaere And it was assign'd for errour that it was alledged in the
Administration it is at the election of the Plaintiff to sue him as Executor or Administrator 9 Ed. 4.33 21 H. 6.8 2 Rich. 2.20 18 Ed. 4. Walmesley agreed for the Statute of the 27 Eliz. hath made voyd the Testators gift and subâ—ata causa toll â—ur effectus and the gift being taken away the property is also taken away from the Donee and setled in the Donor as to any Creditor To which the other Iustices agreed and Iudgement was given for the Plaintiff Trinit 43 Eliz. George Brooks Case in C. B. Rot. 1822. GIbson recovered in a Debt against Broâ—k as Executor to J.S. 60 l. and 6 l. damages and upon a scire facias to the Sheriff he returns no Assets and then upon the estate which was in Lâ—ndon which the Defendant had wasted and soâ—d a fieri facâ—as was awarded to the Sheriff of Lâ—…don with a Commission to the Sheriff of London to enquire if he had Assets at the day of the Writ c and by the inquest it was found that he had Assets at the day of the Writ purchased c. and that he had wasted the estate which was thus return'd by the Sheriff against which the Defendant took issue that he had not Assets and upon this was a a Demurr Walmesley A man may avert against the return of a Sheriff if the return be a matter collateral as if upon a Caâ—ias the Sheriff returns a Rescous there may be an averment against this 4 Eliz. 212. a. But if it be in pursuance of the Writ as non est inventus there no averment shall be taken against this but here the return is the saying of the Inquest and not his own saying Warburton I conceive he shall have an averment and traverse or else he shall be without remedy for he cannot have an Action on the Case against the Sheriff because he returns that which was found by the Inquest and so not like where the Sheriff returns falsly without such Inquest and no attachment lyes because it is but an Inquest of office and after it was moved at another day and a president shewn 33 Eliz. in B. R. between Westner and Whitenore and there it was adjudged that such return of the Sheriff was traversable and Anderson and Kingsmill agreed to it wherefore Iudgement was given for the Defendant and that the issue was well taken Day against Fynn IN an Ejectment the Plaintiff declared of a Lease for years of a house and 30 acres of land in D. and that J. S. did let to him the said Messuage and 30 acres by the name of his house in B. and ten acres of land there sive plus sive minus it was moved in arrest of Iudgement because that 30 acres cannot pass by the name of 10 acres sive plus sive minus and so the Plaintiff hath not conveyed to him 30 acres for when 10 acres are leased to him sive plus sive minus these words ought to have a reasonable construction to pass a reasonable quantity either more or less and not twenty or thirty acres more Yelverton agreed for the word 10 acres sive plus sive minus ought to be intended of a reasonable quantity more or less by a quarter of an acre or two or three at the most but if it be 3 acres less than 10. the Lessee must be content with it Quod Fenner Crook concesserunt and Iudgement was staid Smith against Jones IN an Action of the Case upon an Assumpsit the Case was that the wise of Jones was Executrix to J.S. and had Assets to satisfie all Debts and Legacies The woman dyes and the goods remained in the hand of her husband who was the Defendant and Smith the Plaintiff being a Legatee demanded his debt of the husband who said to him Forbear tâ—ll Michaelmas and I will pay you and if this was sufficient cause of Action was the question on a Demurrer Davies The promise is voyd because it is after the death of the wife Yelverton The Action will lye because he hath the â—oods in his possession and therefore is chargeable and must answer for them and therefore there is a good consideration And he cited Godfreys Case who laid claim to a Copyhold and the Copyholder in possession said to him If the opinion of the Lord Cook be that Godfrey hath a good title to it I will surrender it to him and because he did not surrender to him Godfrey brought an Action on the Case and it was adjudged that the staying of the suit was a sufficient consideration to have an Action on the Case Yelverton If the promise had been to pay this Legacy in consideration he would not sue him then it had been good Williams If there be no cause of suit there is no assumpsit and here is no just cause for he cannot be sued for Legacies Flemming of the same opinion for the husband cannot be sued by the Plaintiff and although perhaps the Legatee may sue him in the spirituall Court yet that is only for the temporall administration And afterwards Iudgment was given for the Defendant Michaelm 9. Jacob. Kempe and James against Laurence in C. B. Rot. 3648. IN a scire facias the case was thus Gant having two daughters made his wife Executrix untill his daughters came to the age of 21. years or should be married and then the Executorship should cease and that then his daughters should be his Executors and the woman did recover a debt upon a bond made to the Testator after which the daughters marryed the Plaintiffs and they brought the scire facias upon the said Judgment against the Defendants as terre-tenants and the Sheriff return'd the Defendants terre-tenants and no others and upon Oyer of the scire facias the Defendants pleaded that H. was seâ—sed of those lands die Judicii reddit and made a Lease for years to them Iudgment c. Nichols The daughters shall have this judgment as Executors for they are in privity and in by the Testator and are not like an Administrator who comes in by the Ordinary after the death of the Executor 6 H. 8.7 Cook 5. Rep. Brudnells Case and the daughters are Executors and subject to debts of the Testator And as to the plea he said that forasmuch as the Defendants are returned terre-tenants they cannot plead that they are but tenants for years and that their Lessor is not warned for the scire facias is a personall action to have execution but of the goods but in a reall action it is a good plea because the lessor himself cannot plead in discharge of such action 8 H. 6.32 And note that Michaelm 43 44. Eliz. Rot. 834. Iudgment in the very same point was given accordingly Trinit 9 Jacob. Information against West in C. B. Rot. 1246. IN an Information upon the Statute of the 5 of Ed. 6. cap. 14. for buying of wheate-meale and converting it into starch It was resolved by three of the