agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
brought against Administrators The breach was for not repairing Houses by the Administrators according to a Covenant made by the Intestate The Administrators plead divers Judgements given against them in Bar of the Covenant and that they have not Assetts over HAre versus Savill Trin. 7. Jac. rotulo Action of Covenant brought upon an Indenture upon a special Covenant to pay Rent at certain Dayes therein specified and reserved The Defendant pleads that no Rent was behinde The Plaintiff demurrs to that Plea and it was held by the whole Court to be a bad Plea in Covenant for by that Plea the Defendant confesses the Covenant broken and that Plea tends but in mitigation of Damages MOrdant versus Wats Pasch 17. Jac. vel 7. Jac. rotulo 1532. Action of Covenant brought for a Rent-charge granted for the life of an Estranger and for half a Year after to be paid at the Feasts of the Annunciation of the Virgin Mary and Saint Michael the Archangel and alledge that the Estranger died in February and that the Rent was not paid at the Feast of the Annunciation and so the Covenant broken the Defendant demurres pretending that the Rent was not due untill half a year after the Death of the Estranger and not at the Feast but the Court held the contrary And if the Grantee had died his Heirs should have had it during the Life of the Estranger because it was payable to him his Heirs and Executors If I grant an Annuity for Life and twenty years after these are two severall Grants and the Executor shall have it after the Death of Tenant for Life And Sir Edward Cook said When an express Covenant is made to pay the Rent at divers Dayes an Action of Covenant will lie before all the Dayes of Payment be past but an Action of Debt will not lie untill all the Dayes be past and that in such case Debt doth properly lie upon a Grant of an Annuity for life or years H. 7. Eliz. rotulo 908. LAm versus Tresham Hill 7 Jac. rotulo 2145. The Indentures of Covenant were made between T. Tresham E. Lord Stourton Meriel T. and the Defendant and the Lord Stourton and Meriel never sealed the Indenture and mention thereof was made in the Count Videlicet which Lord Stourton and Meriel were parties to the said Indenture but never sealed The Case was Sir T. T. conveyed one Lease to the Lord Stourton and he to the said Meriel and by the Indenture brought into the Court it was covenanted that the said T. T. M. and L. or one of them at the time of the ensealing and Delivery of the said Indenture was lawfully possessed of and in the Mannour of c. And covenant that the Defendant his Executors and Assignes might and should quietly have and injoy the said Mannour clearly and absolutely freed and discharged or otherwise upon request saved harmless from all Incumberances and former Bargains by the said T. S. E. M. and the Defendant or any of them and the breach was that the Plaintiff was damnified for that the said M. that had the State did not seal and adjudged good PYot versus Lord Saint-John Mich. 7. Jac. rotulo 3214. The Plaintiff had the Reversion of two Houses one in Fee and the other for years and makes a Lease for years with Covenant for Reparations of both Houses and Question was whether the Plaintiff should have one Action or several Actions and adjudged that he should have a joynt Action for both FIsher versus Ameers Hill 8. Jac. rotulo 1061. Action of Covenant brought against the first Lessee after he had assigned over his terme for not repairing and the Question was if an Action of Covenant would lie against the first Lessee upon a Covenant to repair the Houses c. who had assigned his terme to another whom the Lessor had accepted for his Tenant and received the Rent and he suffered the House to be consumed by fire and if the Covenant by such Acceptance were gone as Debt for the Lessor is barred of his Action of Debt for Rent against his first Lessee after he hath assigned and the Lessor accepted the Rent of the Assignee If I covenant that I my Executors Administrators and Assignes shall pay the Rent if I assigne over my terme and the Assignee pay the Rent to the Lessor yet the Covenant lieth against the first Lessee otherwise it is where Rent is reserved and no Covenant to pay it there if the Lessor accept the Rent of the Assignee the Action will not lie against the Executor of the Lessee and Judgement after a Demurrer for the Plaintiff that the Action would well lie WAlter versus Decanum Capitulum Norwici Trin. 9. Jac. rotulo 1414. Action of Covenant brought upon an express Covenant in a voidable Lease and the Question was whether the Covenant be good the Lease being void and it was adjudged Trin. 10. Jac. that the Action would lie although the Lease were void and Mapes case was cited which was Mapes made a Lease of a Parsonage of D. for seven years and did covenant to save the Lessee harmless against B. the person c. in that case it was held if the person sue the Covenant by right or wrong an Action lies upon the Covenant and Sir E. Cook said that if the Lease were originally void yet the Action of Covenant would lie for else a great mischief might happen for a Dean might as to day make a Lease to one and keep it secret and to morrow make another and covenant to injoy it and so avoid the second Lessee If a Lease be good at the beginning and become void after their terminus is the number of years otherwise where it was void at the first if a Dean and Chapter make a Lease contrary to the Statute and reserve a Rent it shall not be void against them so long as the Dean liveth but against his Successor The Lease in question was not void but voidable A Covenant in Law shall go to lawfull eviction although the Lease be void A Covenant real to Warrant and Defend there must be a Title paramount and a lawfull eviction Covenants for Lessees shall be taken beneficially for the Lessees BRight versus Cowper Trin. 9. Jac. rotulo 638. Action of Covenant brought upon a Covenant made by the Merchant with a Master of a Ship Videlicet that if he would bring his Fraight to such a Port then he would pay him such a summ and shews that part of the Goods were taken away by Pirats and that the residue of the Goods were brought to the place appointed and there unladed and that the Merchant hath not paid and so the Covenant broken and the Question was whether the Merchant should pay the Money agreed for since all the Merchandises were not brought to the place appointed and the Court was of opinion that he ought not to pay the Money because the
arbitrated or else it is void and in every award there must be satisfaction of that which was awarded POwel versus Crowther trin 9. Jacob. rotulo 313. det port e un three executors which appeared at several terms and plead severally ne unques execut the plaintiff proceeds to triall against one of them and was non-suit And then one of the other defendants take the record down by proviso and the plaintiff was again non-suit and both the defendants desire costs before the third issue was tried but costs was onely given to the first and denied to the second for his trial was erroneous because by the first triall the originall was determined If a defendant wage his law no excuse of sickness or water can save his default but in real actions he may excuse himself by such accidents If the condition of a Bond be to discharge a messuage of all incumbrances there one may plead generally that he did discharge it of all incumbrances but if it be to discharge it of such a Lease there he must shew how NOrton versus Sims Pasch 11. Iacob rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff that the under Sheriff shall not meddle with the execution of executions and shall discharge the Sheriff from all escapes and the plaintiff shewes a breach in the under Sheriff for an escape by reason whereof the Sheriff paid the debt and damages question was whether this covenant be good or not Judgment for the plaintiff A high Sheriff may make an under Sheriff to be at will An under Sheriff hath the same authority an high Sheriff hath it is a void condition to save a man harmless from all men but good if it be special if the condition be to discharge and acquit I must shew how An under Sheriff was before the Conquest A Bond made to the Sheriff by the under Sheriff to discharge of all escapes this is good and lawful If any part of the condition of a Bond be against a Statute-law it is void in all but otherwise if part be against the common-law See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do but not judicial If the under Sheriff will covenant that he will not meddle with executions above 20. l. this covenant of his own accord is good if a Sheriff binde his under Sheriff that he shall not return Venire Facias nor intermeddle with executions untill he be acquainted it is against Law and naught by all the Court A Bond to perform divers Covenants some against Law and others lawfull it is good for lawfull things and void for the rest The Death of one of the Parties in an Original Writ doth abate the Writ it is otherwise in a Judgement If Husband and Wife sue a Scire facias and the Husband dieth the Scire facias shall abate for it is no more a judicial Writ but as it were an Original to revive a Judgement The Court were of opinion in the case of Sir H. Dowckray that where he had delivered Money to his Servant to provide Victuals and the Servant buyes the Victuals in his Masters name and payes not for them and afterwards an Action is brought against the Master for the Money and he offers to wage his Law and the Court held he could not safely wage his Law because the Victuals came to his own use and therefore he is chargeable and must have his Remedy against his Servant But if the Master did forbid the Tradesman to deliver any Wares except his Man paid for them in that case if the Tradesman deliver Wares the Master may safely wage his Law as it was adjudged in Sir H. Comptons case MAntell versus Gibbs Trin. 7. Jacobi rotulo 1254. An Action of Debt brought upon an Obligation to which the Defendant pleads that an Estranger was imprisoned by another stranger and kept in Prison untill the Defendant as Surety of the stranger made the Bond and it was held a naughty Plea and a Repleader awarded ALston versus Walker Mich. 6. Jacobi rotulo 1342. Land was Mortgaged and a Promise that if the Mortgager at such a time and place should pay the Money to the Mortgagee his Heirs or Assignes that then the Mortgage should be void the Mortgagee died and the Money was paid to his Executors and it was adjudged to be no performance of the Condition for the Executor was not named and the Money ought to be paid to the Heir who should have the Land if the Money were unpaid and not the Executor STurges versus Dean Trin. 7. Jacobi rotulo 2915. An Action of Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem he proving his being there the Defendant pleads that he did not prove-his being there to which the Plaintiff demurrs he making proof that is if it be true Sir Edward Cook and Daniel held that the proof should be made upon the Triall and the proof should be subsequent But Warburton and Foster held that the proof shall be precedent because it was restrained to a certain time but it had been otherwise if no time had been appointed NOrton versus Goldsmith Trin. 7. Iac. rotulo 3100. An Action of Debt brought upon an Obligation with a Condition that Chamberlain his Under-sheriff should not meddle with Executions beyond such a summ and alleadges a Breach for intermeddling with Executions contrary to the Condition and the opinion of the whole Court was that the Bond was void PAin versus Nichols Trin. 8. Iac. rotulo 134. An Action of Debt brought upon the Statute of Ed. 6. for not setting forth of Tithes and the Plaiutiff declared as well for Prediall Tithes for he might well bring his Action and for other Tithes as of Lamb and Wooll for which no Action would lie and upon a Triall the Jury found for all as well for those that would as would not bear an Action and after a Verdict this Exception was taken and Judgement arrested BOoth versus Davenant Trin. 8. Iacobi rotulo 805. A Bail taken in the then Kings Bench and an Action of Debt brought upon that Recognisance which was that if it happened the Defendant in that Action to be convicted then the Manucaptors granted and every of them granted that as well the Debt as Damages and Costs which should in that Action be adjudged the Plaintiff should be levied upon their Lands and Chattels And in Easter Terme 7 Iacobi the Defendant upon a Capias ad satisfaciendum awarded against him did not render his Body but afterwards Mich. 7. Jacobi he did render his Body and the Court accepted of it and discharged the Bail and whether the Bail should be discharged or not was the Question and the Court held the Bail should be discharged and Judgement was given for the Defendant RAyson versus Winder Pasch
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
cited the book of 24 Ed. 3. Where a Tales was returned by the Sheriff of Middlesex and the party challenged the Jury because he sued the Sheriff for the death of his Servant and this was a principall challenge for in such case his life was in question the same Law in case of Maintenance and Champerty for the Law hath inflicted great punishment upon such Offences so these matters tend to utter subversion of his Estate and life but otherwise in Actions of Trespasse and so he concluded no principall challenge To the abatement of the Writ it seemes no Error First he conceived that there is no entry and for the reason that Crooke had given before that is because he entred to hunt and not to keep possession and hath not shewed any Warrant to kill the Buck and he cited the book of the 5. of Ed. 4. fol. 60. Where Babington brought an Assise of the house of the Fleete and hanging the Assise Babington came to the Jury within the house when they had the View with his Councell to shew Evidence for the view and this was not any entry to abate the Writ and so the entry to hunt is an entry for another purpose then an entry to keep possession not being by warrant as it is not found and for that no entry to abate the Writ But admitting that this had been an entry to abate the Writ yet being a thing which doth not abate the Writ without Plea and that cannot be pleaded as the case is he conceived was no Error but if it had been a thing which abated the Writ in Facto without Plea then to give Judgement upon a Writ abated is Error As if the party die hanging the Writ or if a woman sole brings an Assise and takes a Husband hanging the Assise or if the Plaintiff in a Assise be made Judge of Assise as the 15. of Assise in all these cases the Writ is abated in Facto without Plea But entry shall not abate the Writ without Plea and so it seemes to him no error But he conceived that there were two other errors for which he reversed the Judgement The first was that this Assise was de Libero Tenemento in Clepson and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom and made his Title for Herbage and Paunage of the Park of Clepsom and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom and Clepsom cannot be intended one without speciall averment and for that he conceived it to be errour And to that he cited the case of twelve Assises two Where in attaint the first originall was of the Mannor of Austy and the Attaint was of the Mannor of Auesty and yet for that that the Attaint is founded upon the Record and not upon the Originall and the Record was of the Mannor of Auesty this was very good but the Booke saith that this variance between the Originall and the Record was sufficient to reverse the Record for errour and the case in 42 of Ed. 3. Where Scire facias was brought of Tenements in Eastgrave and the Fine was of Tenements in Deepgrave and for the variance the Writ abated and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild and the Tenant pleads in barr a recovery of the Mannor of Iffeild and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment he cited also the case of 3 H. 4. 8. Scire facias upon garnishment in a Writ of Detinue of writings the Originall name John Scripstead and the Scire facias was made Iohn Shiplow and therefore agreed that he shall sue a new Scire facias so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke aad the title being at Clepsom Parke these shall not be intended to be the same Parke without averment and there in no averment in our case and for that such variance is such errour that shall reverse the Judgment The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage for it seemed to him that a Horse could not take Seisin of paunage and for that he defined paunage and he sayd that Linwood title-Tithes saith the Paunagium est pastus Porcorum as of Nuts and Akornes of trees in the wood and Crompton saith that this is Pastus Porcorum and he saith that Paunagium is either used for Paunage or the Paunage it self and the Statute of Charta de Foresta saith that every Freeman may drive his Hoggs into our royall Wood and shall have there Paunage but he doth not say Horses or other Beasts but he conceived that if the Earle of Rutland had right in the Park that this had been sufficient seisin of Herbage and Paunage also for Hoggs will feed upon grass as well as upon Akornes and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise ought not to be of a contrary nature to the thing of which seisin is intended to be given but in one case only and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth and this is in case of necessity for the Sheriff cannot take the Money out of the purse of the Tenant of the Land and deliver seisin of that and for that he cited the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common and enters into the Land and the Lord of the Waste or the Grantor of the Common outs him he cannot have an Assise of his Common upon this outing for this was not any seisin of the Common so it is in this case the Horses cannot take Seisin of the Paunage and so there is no seisin or disseisin found by the Jury and then no Assise and this being after Judgment no abridgment may be of the Plaint and so for these last reasons he reversed the Judgment And at another day the case was rehearsed again and argued by Yelverton and Fenner Justices but I did not hear their Arguments insomuch that they spake so low but their opinions were declared by the cheife Justice and Yelverton affirmed the Judgment in all First he held that this entry shall not abate the writ Secondly admit that it is abated yet being between Verdict and Judgment shall not be assigned for errour Thirdly he held that no principall challenge Fourthly he held both the grants good Fifthly that Clepsam and Clipsam are all one and not such variance that shall make Errour And lastly that a Horse may well take Seisin of Paunage and Fenner agreed in all but he held that this was a principall challenge and not being allowed this
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
folio 367. To the contrary is not Law two Tenements in Common joyne in a Lease for years to bring an Ejectment and declare that whereas they did demise the Tenements and it was held nought for it is a severall Lease of moities and if they had declared that one of them had demised one moity and the other another moity it had been good WIlson versus Rich Pasch 44. Eliz. The Husband and Wife joyn in a Lease by Indenture to A. rendring Rent and this is for years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done accordingly A. brings an Ejectmentand declares upon a Demise made by the Husband and Wife and upon Evidence to the Jury ruled by Popham Fenner and Yelverton that the Lease did not maintain the Declaration for a Woman covert could not make a Letter of Attorney to deliver a Lease upon the Land although Rent was reserved by the Lease and so the Warrant of Attorney is meerly void and the Lease is onely the Lease of the Husband which is not made good by the Declaration by the opinion of the Court. STretton versus Cush Pasch 1. Jacobi J. L. leased a House for fourscore years in which Lease there is one Condition that the Lessee his Executors and Assignes should keep and maintain the House in reparation and if upon lawfull warning given by the Lessor his Heires and Assignes c. to enter the Lessee for fourscore years leases the House to A. for thirty years and A. leases it to Wilmore for fifteen years the Assignee of the Reversion came to the House and seeing it in decay gave warning to Wilmore then possessed of that House to repair it which was not done within six Moneths by reason whereof the Assignee entred for the Condition broken and upon a Not guilty pleaded the matter before recited was found by a special Verdict and adjudged against Sir William Wade the Assignee of the Reversion for the warning given to Wilmore to repair who was but an under tenant was not good for he was not Assignee of the terme nor had but a pety interest under the grand Lease upon whom no Attorney could be made for the Rent nor any Action of Waste brought against him for there wanted the immediate privity and in this Case there is a difference to be taken between a rent and a Condition for reparations for the Condition is meerly collateral to the Land and meerly personal and therfore warning is not of necessity to be given at the House but notice of Reparations ought to be given to the person of the Lessee who had the grand interest And a Difference is to be taken between a time certain in which a thing is to be done and a time incertain for in the Case of Rent reserved at a Day certain Demand thereof must be made upon the Land onely because the Land is the Debtor for Popham said that if the Lessor should come and demand his Rent and there should meet with J. S. a stranger and should say to J. S. Pay me my Rent this is no good Demand of the Rent having mistaken the person who is chargeable with it but in this Case one general Demand of Rent without reference to any person who is not chargeable is good And he was of opinion that if a man lease Land rendring Rent for a year whensoever the Lessor should demand it in this Case the Lessor come and demand it before the end of the year his Demand upon the Land is not good except the Lessee be there also for the time being incertain when the Lessor will demand it he ought to give notice to the Lessee of it And if the Lessor come to the Lessee in person and demands the Rent yet it is not sufficient for although notice is to be given the Lessee in person yet the Land is the Debtor and therefore the Law ties the Lessee to the Land as to the place in which he shall be paid but if the Lessor stay nntill the eud of the year then the Lessee at his peril ought to attend upon the Land to pay it for the end of the year is time of payment prescribed by the Law which was granted and Judgement was given for the Plaintiff CLerk versus Sydenham Pasch 4. Jacobi An Ejectment brought by the Plaintiff of a Lease made of Land by P. and B. and Not guilty pleaded and the Evidence of the Defendants part was by reason of a Lease of the Land in Question made by the Abbot of Cleeve before the Dissolution to W. D. and Jo. his Wife and F. their Daughter for their Lives by Indenture and by the same Indenture the Abbot covenants grants and confirmes to the three Lessees that the land should remain to the Assignee of the Survivor of them for ninety years Fr. survived and took to Husband one Hill who the 20 Eliz. grant their Estate for life to J. S. and all their interest in the Remainder and all their power for all the term and this by mean Assignements came to the Defendant and whether any interest passed in Remaindor by the Lease of the Abbot was the Question and by all the five Judges it was held to be a good interest in possibility and to be reduced into a certainty in the person of the Survivor as where Land is given to three and the right Heirs of the Survivor this is a good limitation of the Inheritance presently but it is in expectancy untill the Survivor be known for then the Fee is executed in him And Popham vouched a Case in his experience 17 Eliz. in which Serjeant Baker was of Counsel and it was a Lease was made to Husband and Wife for life and for forty years to the Survivor of them the Husband and Wife joyn in Grant of this Interest and although it be certain one of them shall survive yet the Grant is void because at the time of the Grant there was not any interest but onely a possibility in either of them and although in the Case in Question the Remainder is not limited to any of the three Lessees but to the Assignee of the survivor yet the Court was of opinion that this was not a bare nomination in the survivor to appoint what person he pleased but a terme and an interest and Popham took this difference if a Lease be made to J. S. for life and after his death to the Executors and Assignes of J. S. this is an interest in J. S. to dispose of it but if it had been limited to J. S. for life and afterwards to the Executors and Assignes of J. D. here this is a bare power in J. D. and his Executors because they are not parties or privies to the first interest which was agreed and it was also agreed that whether it was an interest or a word of nomination it was all saved to the party by the Statute of
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
Writ of Error against Matthew upon a Judgement given in a Quare impedit against the King in the Common Pleas of the Church of A. and the Question was whether a double usurpation upon the King doth so put him out of Possession that he shall be forced to his Writ of Right and it was adjudged in the Common Pleas against the opinion of Anderson that he was put to his Writ of Right but a Writ of Error being brought upon that Judgement in the Common Pleas the Judgement was reversed by the opinion of Popham Yelverton Williams and Tamfeild Fennor being of a contrary opinion and they alleadged two Reasons first because the Right of Patronage and the Advowson it self being an Inheritance in the Crown upon Record the Law will so protect it that no force or wrong done by a Subject it shall be devested out of the King for there is a Record to intitle him but there is no matter of Record against him for a Presentationby a Subject is but matter in fait the which Act although it be mixed with the judicial Act of the Bishop to wit Institution yet it shall not prejudice the King being onely grounded upon the wrong of a Subject and the second Reason was because no man can shew when the Usurpation upon the King should commence and begin for it is not to be doubted but that the King after six Moneths passed if the Incumbent cy might have presented for plenarty is no plea against him and Nullnm tempus occurrit Regi and after that Usurpation upon the King the Court doubted not but that the Patronage was still in the King and Popham said that a Confirmation being made by the King to such a Presentee is good to establish his Possession against a Recovery in a Quare impedit by the King afterwards but that it should not inure to any purpose to amend the Estate of the Usurper for he gaines no Posaession by the Presentation against the King but the Release to him made by the King is void as to so much as is in posaession and during the life of the first Presentee the whole Court did not doubt but that the King might present and then the Death of the Incumbent could not make that to be an Usurpation which was not an Usurpation in his life for his Death is a Determination of the first wrong which will rather help then injure the King and Tanfeild said that so it had been resolved in the Common Pleas 23 24 Eliz. in one Yardleys Case for in that Case there was not any Induction for which reason Judgement was not entred but they were all of the same opinion as the Court then was and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it and Popham said that a Quare impedit was by the Common Law but it was onely upon a Presentment to wit Induction but if the Incumbent was to be inducted then at the Common Law a Writ of Right of Advowson onely lies DIgby versus Fitzch Trin. 14. Jacobi rotulo It was said in this Case by Justice VVarburton that the Presentment is the Posaession in a Quare impedit as in Rent the receiving and in common the taking of the profits and in a Quare impedit one ought to shew in his Title a Presentation either by himself or one of those under whom the Plaintiff claimes as in a Writ of Right of an Advowson one must shew a Presentation in himself or in his Ancestors whose Heir he is plenarty in a Quare impedit shall be tried by the Bishop for the Church is full by Institution onely in common persons Cases but in the Kings Case the Church is not full untill the Clerk be inducted but whether a Church be void or not shall be tried by the Countrey for of Voidency the Countrey may take notice Actions upon Replevins IF the Cattel be distrained the party that owes them may have a Replevin either by Plaint or Writ at his pleasure and if it be by plaint in the countrey and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance then the Sheriff ought to inquire of that by Inquest of office and if it be found that the Beast be not to be had then he ought to award a Withernam and if the Sheriff will not do it then an Attachment shall issue against the Sheriff to the Coroners and after that a Distresse and if a Withernam be granted and a nihil returned upon the Withernam he shall have an alias plures and so infinitely and a second deliverance lies after a Withernam and note that sometimes a Withernam lies after a Withernam as when the Plaintiff is non-suit and after a Return habend and that the Beasts are not to be found that the Beasts of the Plaintiff are taken in Withernam and the Plaintiff appears and alleadges that the Defendant had the cattel first taken and prayes Delivery And if the Defendant when the Sheriffe comes to make replevin of the cattel claims property then at the return of that writ another writ de proprietate probanda shall issue to the Sheriff by which writ the Sheriffe is commanded that taking with him custodibus placitorum c. he shall enquire of the property And if it be found that the property was to the Plaintiff then a redeliverance shall be made the Plaintiff and an Attachment against the Defendant to answer for the contempt in taking and unjustly deteyning the cattell of the Defendant appear upon the plures withernam he shall gage deliverance presently And if the Defendant in Court claims the property and it be found against him the Plaintiff shall recover the value of the cattell and his dammages And if the Defendant plead in abatement of the writ that the property is in the Plaintiff and one other c. and the Plaintif confesse it by which the writ shall abate by an award upon the Role and a return habend be awarded to the Defendant yet the Plaintif shall have a new replevin and the return shall not be irreplegiable for the Statute of Westm the second doth not help a false writ or abatement of a writ but the Plaintif may have a new writ from time to time but it helps non-suits in replevin for if he be non-suit he shall not have a new replevin but a writ of second deliverance And if the Defendant upon the return habend adjudged for him cannot have the return of the Beasts and the Sheriff returns upon the return habend that the cattel first taken are dead he may have a Scire facias against the pledges and upon a nihil return upon that he may have a Scire facias against the Sheriff for insufficient pledges are no pledges and the party may relinquish his withernam and fall upon the pledges or the Sheriffe And if cattell be put into a Castle or Fortress the Sheriffe
Winch held that the Plaintiffe should not be barred for the Misnomer and for the second he held that his house was within the Statute of Chaunterys and so the interest in the King H. 6. And so the Lease made by the Master of the Hospitall void Dyer 246. 287. And Warburton held the Plaintiffe should be barred upon both points SWynerton versus Mills Hill 14 Jacobi rotulo 2049. In a Replevin the Defendant a vows for a rent charge reserved by a Copiholder who is seised in Fee and made a Lease by the license of the Lord reserving Rent at foure Feasts or within one and twenty days being lawfully demanded and afterwards the Copiholder surrendred one moity in Fee to a stranger and afterwards surrendred the reversion of the other moity to another to which the Termer atturned and so avowed for Rent The Plaintiffe pleaded in Barâ— that he was seised of a Close adjoyning to the place in which c. and put therein his Cattell and that they escaped by fault of inclosure and issue taken upon that And after a Verdict by default those exceptions were taken to the Avowry in Arrest of Judgement First because it appeared by the Advowry that the Copiholder had surrendred a Reversion which could not be because a Copiholder is a Tenant at will and so could not have a reversion for he cannot make a Lease for yeers without the license of the Lord but this exception was over-ruled by the Couâ—t Secondly because there was no Atturnment alledged in the first surrender And it was held no exception because the Rent for which he avowed was reserved by the Copiholder by the second surrender to which the Termer had atturned And also the Court said that an Atturnment is not necessary for a Copiholder because there is no time when the Terme should atturn For before the surrender he cannot atturn and after the surrender and admittance it is too late And the Copihold estate is like an estate raised by uses or devise in which an Atturnment is not necessary As also in an estate raised by Fine and the like an Atturnment is not necessarie for if the Termer will not atturn he is compellable by Law as by a Quid juris clamat but a Copiholder hath no means to make the Termer atturn if he refuse And thirdly in the conclusion of the Advowry he doth not say that the Rent was behind such a day and one and twenty dayes after at least and this exception was disallowed because the distresse is a sufficient demand of the Rent and it appears that the day of the taking of the distresse was one and twentie dayes after the Feast at which the Rent was due and Judgment was given for the Advowant and note that a Covenant to distrain is idle for a man may distrain of common right HOwell versus Sambay Mich. 13 Jacobi rotulo 2009. In Replevin the Defendant a vows for a Rent charge and a Nomine pene granted by Tenant in tail generall and one Fine levied afterwards and the use expressed the Plaintiffe replies and saies that the Grantor had only an interest for life and so makes inducement and traverses the use of the Fine The Defendant demurrs And held by the Court that the Grantee was not seised in tail nor to the use of the Fine And it was said that in this case that it was necessary for the Advowant to plead the Fine with the estate tail for if the Tenant in tail grant a Rent charge and dye no Fine being levied and the estate tail discends the issue in tail is not chargable with the Rent And note the Advowry was as well for the Rent as for the Nomine pene and no speciall demand was alledged in pleading the Rent and it was adjudged by the Court a naughty advowry as to the Nomine pene but good for the Rent as it hath been adjudged in one Mildmaies Case COtterell versus Harrington Pasch 6. Jacobi rotulo 545. In a Replevin the Defendant avows for an Annuity for 20 d. granted for yeers payable upon demand and alledges a demand the Plaintiffe demands either of the Deed and by the Deed it appeared that for a hundred and ten pound one Rent of twenty pound was granted for eight yeers and another for 20 l. for two yeers if E. R. and T. should so long live the Plaintiffe pleads the Statute of Usury and sets forth the Statute and a speciall usurious Contract If it had been layed to be upon a loan of Money then it was Usury but if it be a bargain an Annuity it is no usury But this was alledged to be upon a lending VVOod versus Moreton Hill 6 Jacobi rotulo 1802. In Replevin the Defendant advows to have Common Appendant out to his house and Land the Plaintiffe saith that he had Common Appendant to his House and Land And the Defendant to avoid the Common saith that the Commoner sold to the Plaintiffe five Acres of the Land to which the Common is appendant pretending that he should not have Common for that Land being but parcell of the Land to which the Common was appendant Common Appurtenant cannot be to a House alone purchasing of part of Common Appendant doth not extinguish the Common otherwise it is of Common Appurtenant And it was pretended to be Common Appurtenant because it is to a House and Land whether by severance his Common is gone and held to be common Appendant and Judgment given for the Plaintiffe MOrse versus Well Replevin for Common of Pasture the casewas that the Father was seised of two yard Land with Appurtenances and had Common of Pasture for four rother Beasts three Horses and sixty Sheep and he demised part of the said two yard Lands in being And whether the Common should be apportioned and if it should be apportioned whether the Prescription failed because the issue was taken that he and all those c. had Common in the said two yard Land A Release of Common in one Acre is a Release of all If I have Common Appurtenant and purchase part the Common is gone but otherwise it is of Common Appendant And note this Common was Common Appendant and the purchasing of Common Appendant doth not extinguish the Common and Judgment was given for the Commoner by the whole Court HVghes versus Crowther Trin. 6 Jacobi rotulo 2220. In a Replevin a Lease for years made to Charles H. and the said A. T. to have and to hold from c. for sixty years if they live so long Charles dyed in this case Judgment was given that the Lease was ended by the death of Charles but otherwise it had been if it had been for life BIcknall versus Tucker Trin. 9 Jacobi rotulo 3648. in a Replevin the case was whether a Fine with five years will bind the Copy-holder in remainder there was a Copy-hold granted to three for lives to have and to hold successively the
first had the Free hold granted to him by the Lord of the Mannor And then he leavied a Fine and five years passe whether he in the Remainder be Barred or no those whose estates are turned to rights either present or future are meant by the Statute to be barred of a Copy-hold for years be put out of possession and a Fine Leavied and no entry by him he is barred by the Statute by the Bargain and Sale he in the Remainder is not put out of possession if a man make a Lease to begin at Easter next and before Easter a Fine is leavied and five years passe this Fine will not barr because at the Leavying of the Fine he could not enter for then his right was future if the Lease had been in possession and the Lessee had never entered he had been barred A Lease for years Remainder for years if the first man taketh for life the first estate is not so determined but that the Remainder standeth if a Copy-hold surrender for life there passeth no more from him then so much as maketh the estate and no more and the rest remaineth in him CRantley versus Kingswel Pacsb 15 Jacobi rotulo 710. The Defendant makes cognisance as Bailiff of Kingswell his Father for Rent service due to his Father at such a Feast And shews that Cramley holds of him by fealty and rent paiable at such a Feast and for Rent due at such a Feast made Cognisance the Plaintiffe in Barr saies that he at the said Feast offered the Rent upon the Land and that no body was there to receive it And the Plaintiffe saith that afterwards he demanded the Rent upon the Land and the Plaintffe made a Replevin pretending the Lord should make a personall demand but the whole Court was against him And Warburton took acception against the pleading the Tender because he saith that he offered the Rent to pay when as he was not present And the question was whether the Lord for a Rent service did not demand it at that day whether he can distrain without a demand of the person and held he might for the Tenant is yet bound to tender and the Land is debter and the Lord may resort thither when he pleases to demand the Rent upon the Land but if he tender his Homage and the Lord refuses it he cannot distrain without a demand of the Person and Judgment for the Defendant STokes versus Winter Trin. 15. Jacobi rotulo 2242. In Replevin the Defendant makes cognisance as Bayliff to Tenant for life to whom the Annuity was granted for life to begin by will after the death of the devisor And alledges the death of the devisor but not the day of the death after whose death the said H. was seised of the yeerly rent aforesaid in his demesn as of his Free-hold for terme of his life by vertue of the devise aforesaid And because seven pounds of the Rent aforesaid for one yeer ended at the Feast c. and by the space of 14. dayes then next following were behinde to the said T. the said time with c. the said T. as Bayliffe of the said H. doth make cognisance of the taking of the cattell aforesaid in the said place in which c. for the said 7 li. for the yeerly Rent aforesaid being so behind c. and issue was taken whether the said I. at the time of his death was seised of the said six Acres of Land in his demesne as of Fee as c. And after tryall exception was taken to the Advowry because it was not alledged that the annuity at such a Feast after the death of the devisor was behinde but it was over-ruled because there is so much expressed and Judgment given for the Defendant HVmfrey versus Powell Trin. 12. Jacobi rotulo 2791. Replevin wherein the Defendant avows for one Annuity granted to the Defendant to whom the office of Catorship of the Church of Roffen in Kent was granted by the Dâ—an and Chapter of that Church for life with an Annuity of 6. pounds for the exercising of that Office with a clause of distresse by vertue of which grant he was possessed and avowes for the Annuity and avers that it was an ancient Office pertaining to the Dean and Chapter of Roffen and doth not aver that the Annuity was an ancient Annuity The Defendant pleads the Statute of the 13 Eliz that all Devises Donations Grants c. made by any Master and Fellows of any Colledge Dean and Chapter c. other then for the terme of twenty and one yeers or three lives from the time of this Devise c. should be totally void And shews that the old Dean died and another was elected And a Demurrer thereupon And Judgement that the Grant was void HYen versus Gerrard Mich. 13. Jacobi rotulo 752. The Defendant in Replevin avows that one being seised in Fee made a Lease to him and avows for Damage feasant The Plaintiffe in Barr pleads and maintains his Declaration and traverses the Lease upon the Avowant demurrs and adjudged a goodtraverse IEnyx versus Applefourth Trin. 17. Eliz rotulo 543. The Defendant avows for a Rent charge the Plaintiffe in Barr pleads that the Defendant had presented a Writ of Annuity And that he had an Imparlance thereunto And demands Judgement if the Defendant did well make cognisance to the taking of the cattell in the said place in which c. in name of a distresse for the rent aforesaid by vertue of the said writing as Bayliffe of the said R. the said Writ of Annuity being prosecuted c. upon the said writing in form aforesaid c. And a Demurrer thereupon and Judgement by the whole Court for the Plaintiffe it is not needfull to lay a prescription to distrain for an Amerciament in a Court Leet but it is otherwise for an Amerciament in a Court Baron by the whole Court DArcy versus Langton The Defendant avows for a Rent charge and for a Nomine penae and no mention made in the Avowry of the Rent charge and the Plaintiffe was non-suit and afterwards in Arrest of Judgement this matter was alledged and at first held to be a good exception but afterwards Judgement was entred an Advowry is in the nature of a Declaration if that be vitious no Judgement can be given for the Advowant TRin. 9. Jacobi Regis rotulo 2033. Replevin for the taking of Cattell at Andover in a certain place there called R The Defendant makes cognisance for damage feasant the Plaintiffe saies that he was seised of the Messuage c. in C. in the Parish of A to which he claimed Common of Pasture And issue taken upon the prescription and a Venire Facias of A. and exception taken because it was not tryed of C. and A. or of the Parish of A. but it was adjudged to be good TRinbone versus Smith Trin. 12. Jacobi rotulo 626. In Replevin foure and twenty were returned upon the
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
time out of mind to repair the Fence and Hedges betweene Catley Close Fursey Close which Fursey Close doth next adjoyn to the Close called M. where the Cattel were chased and shews that the Plaintiff put his Cattell in Catley Close to feed the Grass there which by default of inclosure escaped into Fursey Close as above but he said that between Catley Close and Fursey Close there is a little Brook which Brook at the side of Catley close had a banck next adjoyning to it which banck the Lessor of the Plaintiff and those whose Estate they have c. have used time out of mind c. to repair And that the Brook at the side of Fursey Close had another Brook next adjoyning which the Defendant used to repair and shews because the Plaintiff had not repaired the banck on the side of Catley Close the Cattell did escape into Fursey Close and stayed in the Close called M. By reason whereof the Defendant chased them as it was lawfull for him to doe whereupon the Plaintiff demurres and adjudged for the Plaintif for the Defendant had pleaded a good Barre and the Plaintif had replyed a good replication and had removed the fault from himselfe and laid it upon the Defendant by his negligent inclosure between Catley and Fursey and the rejoynder doth not confess and avoid the replication but perplexes the matter by adding one point of prescription on the Plaintiffs part that he ought to repair one banck between Catley and Fursey upon which an issue could not be taken for then two prescriptions should be an issue together which cannot be no more then two affirmatives as the 5. H. 7. 12. And also the matter contained in the Records doth not answer the matter contained in the Replication but by way of Argument only And whether that be true is no matter in evidence against the Plaintiff who is bound to prove his Replication true For the Plaintiff saith that Catley and Fursey doe lye together that is without any space between them And the Defendant in his Rejoynder saith there is a banck between Catley and Fursey which if it be so they do not lye together but the Defendant ought to have traversed the prescription alledged by the Plaintiff which had made an end of all the matter which observe was by the opinion of the whole Court SVtcliffe against Constable Trin. 10. Jac. Ch. Constable 32. Eliz. was seised in fee of the Mannor of East-hatfield in the County of Yorke and by his Indenture infeoffes H. Remingham paying for certain Lands parcell of the Mannor 60 l. at two Feasts with a clause of Distresse if it be behind by the space of 14. days Ch. 43. Elizab. by Indenture bargains and sells the 60 l. Rent to the Plaintiff which was inrolled by reason whereof he was seised of the Rent for the life of Ch. and being so seised loses that part of the Identure sealed by Remingham which the said day to wit the 24. Novemb 44. Eliz. came to the hands of the Defendant who by Force and Armes teared the seale of the Indenture against the Peace c. to his damage of 400 l. The Defendant pleads that Ch. hath not granted the Mannor of E. to Remingham paying the rent c. in manner and form and the Plaintiff demurres upon this Plea And it was argued that the Bar was good which is a direct traverse to the title of the Plaintiff to destroy the ground of the Plaintiffs action for if no rent were granted then the Indenture concerning which the Plaintif complains did not belong to the Plaintiff for it passes not to the Plaintiff but as an incident to the second Grant of necessity to make good his title As the Lord Buckhursts Case Co. 1. 7. E. 4. 30. in assize of rent the Plaintiff made his title by deed of a rent charge it was a good plea to say that nothing passed by the grant because the issue is taken upon the speciall matter and not the generall but in an Assize brought of an Office it is no plea to say there is no such Office for that amounts to no more but that he hath not disseised him 45. E. 3. In trespass for taking away of writing it is no plea to say that he never had such a writing but must plead not guilty So in an Action of Trespass for Goods it is no Plea to say that the property of them was to an Estranger and not to the Plaintif because by that plea hee denies not but that the Plaintif was in posaession which is sufficient to maintain the Action 20. H. 8. 28. which books prove that the Plea in Bar is not good for the Defendant destroys the Plaintifs Action but by way of Argument And the rent by such Action is not demanded but damages for tearing the Indenture and so the Title of Rent is not in question and exceptions were taken to the Declaration First the Action was brought for tearing the Counter-part by which the Rent was not created And the Indenture is not expresly granted to the Plaintif but the rent of 60 l. only is bargained and sold and by that the counter-part that pertains to Remingham doth not pass to the Plaintif as an incident for it is not the Originall Deed by which at first the rent was reserved which was granted by all but the Cheife Justice for he said that the counter-part waited upon the interest and was good evidence for that Secondly the Plaintif had not averred that Ch. for whose life the Rent was granted was alive at the time of tearing the Indenture and if C. was dead the Indenture pertained to the Defendant of right as Heir of Ch. for so much appeared by the Plaintifs own shewing which was granted And thirdly the Plaintiff shewed not that ever hee was posaessed of the Deed but by way of Argument to wit that he casually lost it which is not sufficient for none shall have trespass but he who is in actuall posaession which was also granted by the Court. Fourhly the counter-part whereof the Plaintif complains by the Plaintifs own shewing contained as well a warranty as the rent reserved And therefore without a special gift made of that Deed by Ch. to the Plaintiff that Deed doth not pass by Law to the Plaintiff as it is adjudged in Lord Buckhursts Case Fifthly if Ch. the Father be dead then the writing hath lost his force as to the rent for by his death the rent is determined and therefore of necessity the Plaintiff ought to averre the life of Ch. For no Action lies for a Deed that is determined and for these reasons the Plaintiff did discontinue his Action An Action of Trespass was brought for entring into a mans House and continuing there divers dayes c. And after a Tryall and verdict for the Plaintiff Yelverton moved in Arrest of Judgment and shewed for cause that the Plaintiff had declared with a continuando for breaking
is no parcell of the Bill and for that it need not to be contained in the Count 9 H. 6. 15 16. A thing which doth not intitle the Plaintiff to action need not to be contained in the Count 36 H. 6. 6. If the condition be indorced or subscribed it need not to be contained in the Count but if it be contained before the in witnesse then it ought to be contained in the Count 21 Ed. 4. 36. If a man be bound to pay ten pounds when the Obligee carries two hundred load of Hay to his House there the condition is precedent and it ought to be contained in the Count 22 Ed. 4. 42. accordingly so here the matter is subsequent to the in witnesse and there is not any other matter upon which the action is founded nor contained in the body of the Bill nor to be performed by the Obligee and for that he prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the sealing is immediately after the Proviso and is adjoyning to the Bill in writing and for that be it to be performed of the part of the Plaintiff or Defendant it ought to be mentioned in the Count for this intitles the Plaintiff to his Action of the case in 36 H. 6. 6. It is a condition subsequent and there need not to be shewed but if the condition be precedent and contained in the writing before the insealing there it ought to be mentioned in the Count and in this principall case this is either a condition Precedent or nothing for it is that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound and if he never recover he never shall pay the ten pound and it is a condition of the part of the Defendant and it is adjudged in Vssards case that where a condition is precedent there it ought to be contained in the Count but where it is subsequent otherwise it is So 15 H. 7. 1. Grant that when the Grantor is promoted to a Benefice that he ought to give to the Grantee ten pound this is precedent but in the principall case it is a Condition or Covenant and though that it be subsequent yet it may stay the Suit as well as an acquittance which is to be an acquittance if he be vexed otherwise not but a condition that he shall not sue the Bill is void for it is contrary to that and barrs him of all the fruit of that and precedent condition may be placed after the in Witnesse as well as before so he prayed Judgment for the Defendant Coke cheife Justice said that this which is after in witnesse is not part of the Deed but may be a Condition or Defeasance but if it be not in witnesse in the Deed then it shall be parcell of the Bill but though that this be put after the in witnesse yet it shall have his force as Defeasance but it need not to be contained in the Count for in Bonds and personall things there need not such strict words as in other Deeds and for that this shall be a good Condition or Defeasance but then the Defendant ought to have that so pleaded and not demurr for this makes the Bill conditionall VVarberton and Foster agreed VValmesley did not gainsay it and for that it was adjudged for the Plaintiff if the Defendant did not shew cause to the contrary by such a day which was not done Note It was adjudged by all the Justices that fealty gives seisin of all annuall services sufficient to make seisin in avowry but not in Assise but of accidentall services this gives seisin in Assise and a man cannot take excessiive distresse for that for this is more sacred service as Littleton saith of Homage the most honourable See 42 Ed. 3. 26. 11 H. 4. 2. Note Two retaine an Attorney both dye the Executor or Administrator of the survivor shall be onely charged and not the Executors of them both for a personall contract survives of both parties otherwise of reall contracts as warranty See 16 H. 7. 13. a. 3 Coke Sir William Harberts Case 30 Ed. 3. 40. 17 Ed. 3. 8. The Attorney brought an Action of Debt against both and the Executors of both the parties which retained him for his Fees and both pleaded joyntly that they detained nothing and it was found for the Plaintiff and upon motion in arrest of Judgement the Judgement was stayed insomuch that the Executor of the survivor was onely chargeable notwithstanding the pleading and admission of the Parties Note That it was agreed by all the Justices that by the Law of Merchants if two Merchants joyne in Trade that of the increase of that if one dye the other shall not have the benefit by survivor See Fitzherberts Natura brevium Accompt 38 Ed. 3. And so of two Joynt Shop-keepers for they are Merchants for as Coke saith there are foure sorts of Merchants that is Merchant Adventurers Merchants dormants Merchants travelling and Merchants residents and amongst them all there shall be no benefit by survivor Jus accrescendi inter Mercatores locam non habet Note That Arbitrators awarded that every of the parties should pay onely five shillings for writing the award to the Clark and agreed that the award was voyd to that part and good for the residue for they cannot award a thing to be made to a stranger Action upon the Case was brought for these words He is a Cozening Rogue and hath cozened Richard Wood of thirty pound and goeth about to doe the like by me and agreed that the action doth not lye So for Rogue or Cozener for it is without aspersion and gentle and words shall be taken in the gentlest sense Devise that Executors shall sell Land with the assent of J. S. if J. S. dyes before that he assents the Executors shall not sell notwithstanding the death of J. S. was the act of God and in the life time of J. S. they could not sell without his consent and so it was agreed in the Case concerning Salisbury Schoole where the under Schoole-Master was to be placed by the head Schoole-Master with the assent of two cheife Bailiffs and it seems the head Schoole-Master cannot place without their consents Note it was said to be adjudged that the Inhabitants of a Town cannot be incorporated without the consent of the major part of them and incorporation without their consent is void In action upon the case the case was this The Brother of the Defendant spoke these words to the Plaintiff that is Thou Theif thou Goale whelpe thou hast stolne a peice of Silver from my Master Hocken and the Defendant sayd as insued that is That which my Brother spake is true I will justifie it and spend a hundred pounds in proofe thereof and it seems to the Court that the Action doth not lye against the Defendant insomuch that it doth not appeare by the Court that
against the surviving Donee of houses and Lands to him demised and agreed that the Writ was good but it was a question if the Count shall be generall or of a halfe only notwithstanding that both the parties were Tenants in Common of the reversion Michaelmas 1611. 9. Jacobi in the Common Bench. Ralph Bagnall against John Tucker after 83. TRINITY 9. or Micaelmasse 8. Jacobi Rot 3648. The Case was Copy-holder for life remainder for life purchaseth the Frehold and levies a Fine with Proclamations made five yeares-passe and then he died if the remainder were bound by the Fine or not was the question and it seemes that it shall not be Barr for he is not turned out of possession in right So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold and levie a Fine with Proclamations and five yeares passe this shall not barr the remainder for yeares insomuch that this was Interest of a Tearme and remaines an Interest as it was without any alteration and it was not turned to a Right And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds See Lessures Case 5. Coke 125. See Pasche 1612. for the Judgement Note if an Attorney of this Court be sued here by Bill of Priviledge he ought not to find Bayle But if he be sued by Originall and comes in by Capias then he ought to find Bayle In covenant upon a Lease made by the Dean of Norwich Predecessor to the Dean that now is and the then Chapter of the Foundation of Ed. 6. King for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances and also to accept surrender of the same Lease and to make a new and for breaking of covenant the same Dean and Chapter in such a yeare of the Raine of H. 8 had made a lease for years not determined by which the lands devised were incumbred upon which the Defendant demurred And Hutton Serjeant for the Defendant argued that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it for that it was a Lease for years in being at the time of the making of that as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years and after makes a Lease for life the Lease for life is void to the Successor and so it is in the case of Dean and Chapter and though that the words of the Statute are generally that such a Lease shall be void to all intents purposes and Constructions yet he intended that it shall not be voyd against the Bishop himselfe as it was resolved in the case of the next Advowson by the Bishop in Singletons Case cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Successors that then the covenants also are void as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench that if a Parson make Lease and avoid by non-Residence the Covenants also are void as well as the Lease and also he intended that the Lease for life was void insomuch that it was to be executed by a Letter of Attorney and the Attorney had not made livery till after two Rent dayes were past and for that the Livery was not good for when a man makes a Lease for life rendring Rent with Letter of Attorney to make livery here is an implyed condition that Livery shall be made before any day of payment be incurred and it is as much as if a man had made a Lease for life without any Letter of Attorney to make Livery before such a day there if the Attorney do not make Livery before the day but after the Livery is void insomuch as it is contrary to the Condition so in the case here for if Livery made be after a Rent day it may be made after twenty and so immediately before the end of the Tearme and if the Rent be void for this cause the Covenants also are void and if a man bargain and sell his Mannor and the Trees growing upon it the Trees do not passe without Inrollment insomuch that it was the intent of the parties that it should so passe and for that they do not passe without the Mannor also he intended that the Count is repugnant insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foundation as in case of prescription as in Tringhams case 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case and he intended that a declaration ought to have precise certainty as in 8. and 9. Eliz. 254. Dyer for a thing which cannot be presumed shall not be intended as it is agreed in Pigotts Case 5 Coke 29. a. otherwise of Plea in Barr for that is sufficient if it be good to common intent also he intended that there is variance between the Count and the Covenant for the declaration is that the Dean and Chapter covenanted with the Plaintiffs the Covenant is generall that is that the Dean and Chapter covenant and doth not say with who and for that the Count also shall not be good and so he concluded and prayed Judgment for the Defendant Haughton Serjeant for the Plaintiff intended that the Covenants shall not be voyd notwithstanding that the Lease it self be voyd he intended that a lease made by a Parson shal be good against himself but it shall be voyd by his death to the Successor but a Lease made by a Dean and Chapter shall be void to the Dean himself and the Covenant shall be in force notwithstanding that the Lease be void insomuch that the Covenants are collaterall and have not any dependance upon the Lease but to the inherent Covenants which depend upon the Lease and the Estate as for Reparations and such like shall be voyd by the avoidance of the Lease but he intended that Covenant to discharge the Land from incumbrances doth not depend upon the Interest but it is meerly collaterall and for that it shall not be void and with this difference he agreed all the Cases put of the other part as in 45 Ed. 3. 3. Lease was made to the Husband and Wife the Husband dies the wife accepts the Land and shall not be charged with collaterall Covenants notwithstanding that shee agrees to the Estate insomuch that they do not depend
agreed that the Prior was not Predecessor to the Abbot as it appeares by 10. and 11. Eliz. Dyer 280. 11 12 13. That the Deane and Chapter of Norwich made a surrender in the time of Ed. 6. and then newly incorporate So that he which made to Twaits in the 37. H. 8. could not be Predecessor to the Deane and Chapter which made to Thimblethorp in 18. of Eliz. for he could not then be any Predecessor and for that the Lease to Thimblethorp void and then there is no Eviction but wrong to the Plaintiff for which he may have an Action of Trespasse and then he cannot have an Action of covenant as it appeares by 22. H. 6. against the Lessor But admitting that the Lease to Thimblethorp were good then this hath his beginning in the 38. of Eliz. and makes the Lease for three lives to the Plaintiff void by the Statute of 13. Eliz. insomuch that the aforesaid Lease for yeares was then in beginning and the Statute is expresly that it shall be void as the grant of next avoidance of a Church in the case of the Bishop of Lichfeild and Coventry against Sale cited in Lincolne Colledge Case 3. Coke as if a Parson makes a Lease for yeares and is Non-resident the Lease is void by the Statute against the Parson himselfe and then if the Estate be void all covenants which depend upon that are also void Also he supposed that there is not any good conveyance of the estate of Thimblethorp to Doyley which is intended to be the disturber to make the Covenant to be broken and then when Doyley entered without title the Covenant cannot be broken and so he concluded and prayed Judgement for the Defendants Nichols Serjeant for the Plaintiff agreed that if there be an alteration of Corporation and title is to be made by prescription it ought to be so specially shewed as it hath been said of the other part by Dodridg But here it is not so for the same Dean and Chapter which made the Lease to the Plaintiff made the Lease to Thimblethorp and this appears by the pleading and the Lease made to Twaits is not mentioned but only to shew the beginning of the Lease to Thimblethorp And then the Deane and Chapter which made the Lease in 18 of Eliz. to Thimblethorp were the same Deane and Chapter which made the Lease in 42. Eliz. to VValters And hee supposed the Covenant being expressed this remains otherwise if it had been a Covenant created only by the Law as it appears by the Books of 9. Eliz. Dyer 257. 13. and 32 H. 6. 32. And also when a Covenant is created by Law the Covenantee cannot have Covenant if he be not outed by one which hath title 26 H. 8. 36. otherwise of expresse Covenant as it is agreed in the 12 H. 4. 5. So in 47. Edw. 3. Covenant lies against Executors and 38 Edw. 3. Covenant lyes against Heir being made by Tenant in tayl if the Lessee be outed after his death and so hee concluded and prayed Judgement for the Plaintiffe Wynch Justice supposed that Judgement should be given for the Plaintiff and that he had good cause of action and he intended that the Livery and Seisin by the Attorney after Rent incurred was good Secondly That the Covenant shall extend to the Lease made to Thimblethorp for it doth not appeare but that it is the same Deane and Chapter which was in time of H. 8. For it is not pleaded that it was founded by Ed. 6. but had his name by him And also it is confessed by the Demurrer that it is the same Deane and Chapter but admitting that it is not yet it may be answered as it hath been by Nichols before that is that the Deane and Chapter which made the Lease in 8 of Eliz. to Thimblethorp is the Deane and Chapter which made the Lease to the Plaintiff in the 42 of Eliz. are all one and the Lease to Twaits is shewed only to shew the beginning of the Lease made to Thimblethorp Also he supposed the conveyance of Thimblethorps Estate to Doyley to be good and it doth not appear but that the Deane and Chapter were in possession at the time of the making of the Lease for 3 lives So that this hath a good beginning and continued till it was avoyded by the Entry of the succeeding Dean for this remains good against the Deane that made it But Thimblethorp also may avoid it during his Tearm and now here is eviction by the Assignee of Thimblethorpe before that the Lâ—ase be avoyded by the succeeding Deane and Chapter where the Deane himselfe could not avoid it for he is the party which made it Also here is expresse warranty against the Lease made to Thimblethorp and for that also action of Covenant lyes otherwise if it had been only warranty in Law as if Lessee for life had made a lease for years and dyed Upon the covenant in Law action doth not lye for the Law doth not constrain to Impossibilities as in the 40. Ed. 3. Covenant that the wind shall not peirce nor break the Trees and 2 Ed. 4. 12 Ed. 4. Action of Covenant lies upon express Covenant though that a stranger enters without title and he cyted one Dormans case to be adjudged that where a man borrows money upon a usurious contract and the principall gives security to the Surety that was bound with him by collaterall Obligation and the Surety being arrested takes advantage of the Counterbond notwithstanding that the principall Obligation was void by the Statute of Usury So here notwithstanding that the estate was void and that is the principall Yet the Covenant being expressed and collaterall shall bind the Lessor and so he concluded that Judgement shall be given for the Plaintiff Warburton Justice to the contrary and yet he agreed that the livery was good notwithstanding that it was made by the Attorney after three Rent dayes incurred and he seemed that it might be made at any time during the tearm and the lives of the parties And also he agreed that the Corporation shall be intended the same Corporation and yet Corporation had no Predecessor nor Successor but the Statutes say Predecessors Antecessors and Progenitors of the King as 39 H. 6. 7 Ed. 4. 2 H. 6. But he did not insist upon that but agreed that But the matter upon which he insisted was that the Lease to the Plaintiff was void against the succeeding Deane and Chapter insomuch that the lease to Thimblethorp was in Esse at the time of the making of that and this by the Statute of 13 Eliz. And it appears that the Deane which made the Lease to the Plaintiff is dead for he is named in the Count the late Deane and then when the Covenants depend upon the estate be they expressed or in Law these determin and end with the estate as in Lemons case 28 H. 8. Dyer 28. 189. resolved that where the statute of 21
Thirdly The third point was that after the disseisin of the Tenant for life he that had future Interest of a Tearme to begin after the death of the Lessee for life during the disseisin assignes over all his Interest if this assignement be good or not and he argued that not for by him the disseisin of the Tenant for life the future Interest to commence after the death of the Tenant for life is converted into a Right and Right of a Tearme cannot be transferred over for though that Lessee for years to begin presently may grant over his Interest before his Entry and it is well for that that it is an Interest forth with yet if before his Entry the Lessor be disseised by a stranger yet by him now he cannot grant his Interest over for that it is converted into a Right of a Tearme but he ought to re-enter before that the Lessee may grant over his Tearme so in our case though that before the disseisin of the Lessee for life the future Interest was transferrable over for that that it was Interest though that it was not a Lease in posaession yet when the Tenant for life was disseised then his Interest of a Tearme was turned into a Right of a Tearme and then it is not transferable over till the re-entry by the Lessee for life and he said that it was resolved by the 2. cheif Justices in the Star-chamber as he hath heard that if Lessee for years be and before his entry a stranger enters and disseises the Lessor that now the Lessee cannot grant his Tearme before that the Lessor hath entred or he himselfe hath gained the Tearme in posaession And so it seemes to him that the future Tearme doth not passe by this assignement and then it is extinguished by the purchase which commeth after and then the Justification of the Defendant as Servant to the Assignees not good And so upon all the matter he praied Judgement for the Plaintiff Williams Justice said that it was cleer if a man have a Lease for years to begin after the death of a Lessee for life as is the case at the Barr that though that the Lessee for life be disseised yet the Interest remaines good Interest to the Lessee and is not turned into a Right of a Tearme and for that he may grant it over notwithstanding the disseisin and so is Sapphins case 5. Coke 104. Otherwise if the Lessee for years had been any time in posaession by force of his Lease and it is Adjourned At another day the same Tearme the case was argued againe by Yelverton of Grayes Inne of the other part that is for the Defendant and first he said that the Plaintiff which claimes under the Wife of Hlobeame hath not any right to one Moytie cleerely for the Husband and the Wife were Joynt-Tenants before the coverture So that they take by Moyties and not by Intirities and when the Husband bargaines and sells all that is a seperation of the Joyntenancy and his Moytie is gone for ever as it appeares by 3. M. Dyer 149. 82. So that for one moytie it is cleer that the Plaintiff hath not any right any way how ever the case prove for the other Moytie and this Moytie which was conveied by the Husband is discended to the Defendant which hath no speciall outer found by the Verdict But only that he entered which he well might having the other halfe and then no Trespasse found by the Jury and also the Damages found by the Jury are Intire and then being no cause of Damages for part there shall be no Judgement for the residue And the first point that he moved was if after this disseisin and feoffment over the Feoffor might tender the money to cease the first Estate and it seemes that not for the Free-hold cannot accrue as it seemes to him by any tender after his disseisin and so it hath been agreed to him as he said by the Councell of the other part and then by him this condition consisting of two parts this is Disseisin of one Estate and Accruing of the other Estate if by this desseisin the condition be distroied for the accruing of the Estate it seemes also that it shall be distroied as to the ceasing of the first Estate for if a condition be distroied in part it shall be distroied in all for it is Intire and cannot be apportioned and by consequence if one Estate cannot accrue the other shall not cease And he resembled it to the cafe in the 14. H. 8. 17. And Perkins condition being in the Coppulative one part being dispenced with the other was a discharge so when a man hath election to do one of two things if one be discharged though that it be by the Act of God as by death c. Yet the other shall be discharged by the Law as it was in Langtons Case 5. Coke 22. a Fortiore when one is discharged by the Act of the party also by him if he had made any Feoffment after this desseisin yet the very disseisin would destroy the accruing of the Estate for though that he do not gaine Fee by the disseisin but only Estate for life and retaines his old reversion in him according to 9. H. 7. 25. Yet the Fee and the Free-hold are so conjoyned by discent of that Estate alters an entry as it appeares by 3. Ed. 3. Entry Congeable 58. And if he in reversion disseise Tenant for life the Contingent uses shall never rise by Chidleys Case first of Coke 158. Condition that he retaine his old remainder no more of the accruing of the Fee in our Case for by him it appeares by 10. Assis and Nicholls Case Com. That Estate ought to accrue upon posaession or at least upon an Estate in being and not upon a right of an Estate only And for that he cited 6. R. 2. Pleasingtons Case Lease for years upon condition that if the Lessee be outed he shall have Fee though that he be outed yet he shall not have Fee for that that at the time of the condition performed he had but a right of Tearme and no Tearme in posaession so is our case after the disseisin he having but right the Estate cannot accrue Secondly if the Grantee or he to whose use may performe the Condition either by the Common Law or by Statute Law And he conceived that none of these might performe that for first at the common Law though that Grantees of reversions may take advantage of a Condition by way of cesser of Estates upon the condition performed yet this is only when the condition was to be performed of the part of the Lessee and so was the case cited by Serjeant Nicholls of 11 H. 7. but if the condition were of the part of the Lessor otherwise it was as the Book is in 26 H. 6. Entries And then a Fortiori here the Assignee of a Disseisor cannot performe the condition which may be performed of the part
of the Lessor But he agreed the case of Littleton that an Assignee of an Estate may perform a condition in preservation of an Estate otherwise of an Assignee of a Reversion in destruction of an Estate so at the Common Law it is clear that the Feoffee cannot perform the condition and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition as it appears by Spencers case 5. Coke and so hath been many times after this adjudged and this is a collaterall condition Ergo c. And so concluded and prayed Judgment for the Defendant Nicholls Serjeant to the contrary and that this Disseisin hath not suspended the condition but that he may pay the Money and make the Estate to cease notwithstanding the Disseisin for-that that the condition is collaterall like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an Estate for years yet this shall not suspend the condition but it may be performed or broken notwithstanding the Lease for that that it is collaterall so in our case for suppose that the condition had been if he marry Mistris Holbeam that then his Estate shall cease and as well it shall be upon the Tender of the Money here and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life Remainder to another for life the Remainder to the third in tayl the Remainder to the right Heirs of the Feoffor in fee with power of Revocation and after the Feoffor lets for years and during the Tearm he revokes the mesne Remainders and it seems to the Justices that well he may for that that the Lease for years goes only out of the Estate for life as he sayd and for that the power of Revocation as to the Mesne Remainders was not suspended Quere of the truth of this case in the common Bench for perchance it is not truly collected but so entred and so he prayed Judgment for the Plaintiff Flemming cheife Justice sayd that the point of the principall case would be if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue then he might perform the condition to determine the ancient Estate that is the Lease for years and it is adjourned Pasch 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland IN a Writ of Errour the Earle of Rutland brought an Assise of Novel Disseisin against the Earle of Shrewsbury and four others and the Plaint was of the office of the keeping of the Park of Clepson and of the vailes and fees of the sayd Parke and of the Herbage and Paunage of the same and the Demandant made his title and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown and that she being so seised by her Letters Patents under the great Seal granted unto one Markham the keeping of the Park of Clepson with the vailes and fees and the Herbage and Paunage of the same Park for his life after the Queen Eliz. reciting the Grant made to Markham and that Markham was alive gave and granted by her Letters Patents to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke with the Fees and Wages to that appertaining to have and to hold to him for his life after the death of Markham or after the surrender or forfeiture of his Letters Patents and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life and doth not say when this shall begin after which the Queen Eliz. died and the Eee-simple discended to our Lord the King which-now is as lawfull Heir to the Crown of England which granted that to the Earle of Shrewsbury after which Markham dyed and the Earle of Rutland entered and was seised till the Earle of Shewsbury with four others entered upon him and dissersed him and to that the Tenants alledged no wrong no disseisin and when the Assise was to be taken in the Country the Array was challenged by the Tenants for that that one of the Tenants in the Assise had an Action of Trespasse hanging against the Sheriff and this challenge was not allowed and the Assise being perused at large for the Herbage and Paunage they found that the said Queen Eliz. was seised of Clepson Park as aforesaid and by her Letters Patents as afore is rehearsed granted the Keeping of this to Markham for his life and further by the same Letters Patents granted to him the Fees and Wages to that belonging and further granted by Letters Patents and doth not say Easdem to him the Herbage and Paunage of the sayd Park and that the Queen after the reciting the Grant made to Markham and that Markham was alive granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees to have and to hold after the death surrender or forfeiture of the Letters Patents of Markham for his life And further by the sayd Letters Patents shee granted the Herbage and Paunage of the same Park to him for his life as more fully appears by the Letters Patents and it was not expressed as to the Herbage and Paunage when that began and they found the death of Markham and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple and of that prayed the advise of the Court and to the keeping of the Park they found the seisin and disseisin of that and of the fees and wages to the Dammages c. And this being adjourned into the Common Bench was remanded into the Country and there Judgment was given for all for the Demandant and after this it came into the Kings Bench by Writ of errour and the Errours assigned by the councell of the Tenants and argued at the Barr were foure The first was that the Earle of Rutland himself between the verdict and the Judgment hunted in the Park and kild a Buck and took a shoulder of that for his fee and so he hath abated his Assise and so the Judgment was given upon a Writ abated and therefore they cannot plead that in abatement insomuch that it was mesne betwixt the Judgment and the verdict they assigned that for errour The second was because the principall challenge was not allowed where that ought to have beene allowed and the challenge was that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise The third was Because the Jury have found the Letters Patents made to Markham and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson And further by the same Letters Patents granted the vailes
Actions of Trespasse Pedibus Ambulando and vexation plainly appeares when Actions are begun upon such slight occasions and in Actions of Trespasse there issueth a Capias for a Fine and so the Defendant shall be Fined and Imprisoned and sure to be deprived of his liberty is a thing distastefull And it cannot be but that displeasure shall be between them which endeavour to restraine one the other of their liberty and so he concluded that this was a principall challenge and not being allowed this is error and so for this cause he reversed the Judgement Also it seemed to him as this case is there is no seisin found of the Paunage for the Jury have found that the Earle of Rutland hath put in two Horses and it seemes to him that Horses cannot take seisin of Paunage which is properly meate for Hoggs and so for this reason also insomuch that there is no seisin found of the Paunage and the Jury ought to find of necessity a Seisin and Desseisin it seemes to him that this is error and so the Judgement ought to be reversed and at the same day Williams Justice rehearsed the case as before and in his argument he spake First to Grants Secondly to the challenge Thirdly to the abatement of the Writ And it seemes to him that none of these matters were sufficient to reverse the Judgement but yet he conceived for two other causes that the Judgement shall be reversed And first concerning Markhams Patent that the Jury have found very good though that they have not said by the same Letters Patents but he said that it had been more proper if they had found that the King had granted that by the same Letters Patents and for that he cited the case of Information of Mines in the Com. And the pleadings before the case there the Letters Patents of the King are pleaded and where the King grants divers things it is there said that the King by the same Letters Patents granted and so the case of Grendon against the Bishop of Lincolne where the King by his Letters Patents granted to a Deane and Chapter that they should hold an Advowson to their proper use and further granted by the same Letters Patents c. And so he said in this case that this had been more properly found if it had been found that the King Per Easdem Litteras Patentes granted yet this is very good as it is and this as he said by the Intendment for it cannot be otherwise intended and for that he cited the book of Entries in Title Covenant That where a man brings a Writ of covenant and counts upon an Indenture that is that the Defendant covenanted to do such a thing and further covenanted and doth not say by the same Indenture yet this is very good because it cannot be otherwise intended but when that is by the same Indenture and where things shall be taken by Intendment he cited the case of 5. Assis 2. Where in Assise of Common the Plaintiff made him Title that is that he was seised after the Coronation of King H. this shall be intended H. 3. See Brooke Limitation 4. and the Case of 17. Eliz Dyer 342 Where these Letters H. R. A. F. shall be intended Henricus Rex Angliae Franciae c. And he cited the case of 21. H. 7. 32. Where a man pleads a release made in Villa de West the County of Middlesex and doth not say secondarily In Predicta Villa And there these Justices held that good and it shall be intended the same Town so he said in this case this shall be intended that Grant by the same Letters Patents though that Easdem be left out And to the Grant to the Earle of Rutland he held that good also though that it is not expressed as concerning the Herbage and Paunage when that should begin and he said that this is also for the intent and also he said that this is not in prejudice of the King nor in deceit of the King nor to the double Intendment and for that good And he put the case where the King made a Lease for one and twenty years rendring Rent and doth not shew when that shall begin That shall begin from the Date of the Letters Patents because it cannot be otherwise intended so in the principall case the grant of the Herbage and Paunage depends upon another Grant That is the custody of the Parke which was to begin after death surrender or c. of Markham and having relation to that by this word Vlterius that shall be necessarily intended to begin at the same time and he well agreed the bookes of 3. H. 7. fol. the last and 6. H. 7. 14. 8. H. 7. 1. 9. Eliz. 259. 7. Ed. 6. Dyer 80. That there is no reversion of an office But yet the King may grant an office after the first Grant determined and this shall be good And so shall be in our case of the Herbage and Paunage and he cited the case of 8 H. 7. 12. 13. where the King was Founder of an Abbey and he had granted a Corody to another for life and after he released that and granted it to the Abbot this shal not be a good release presently because another hath the possession for present of it but this shall be good after the death of him which hath this granted for his life And he cited the case of the Lord Chaundois 6. Coke where the King grants the Mannor of Dale in tayl and after grants the Mannor to another this shall passe the reversion for this is all that the King can passe So he said in this case this shall passe in such manner as it may passe by which he concluded the Grant to the Earle of Rutland good Also to the challenge it seemed to him it is no principall challenge and for authority he cited the case in 11. H. 4. That hath been cited of the other part which was for him as he said for this takes the difference between Debt and Battery and 38. H. 6. a. Juror was challenged because one of the parties had an Action of Trespasse hanging against him and this was not any principall challenge unlesse it be Trespasse of Battery and to the booke of 20. Assis 11. Where a Juror was challenged because he had Trespasse against him before the Assis he said it did not appeare by the book what Trespasse that was So it shall be intended Battery and he concluded with this difference that if such an Action be hanging which tends to the utter undoing of him against whom it is brought then if the Defendant in such Action make the array this shall be a principal challenge but if it be but such an Action in which a man shal recover but his Debt or Damages or such lawfull duties there to say that such Action is hanging between them at the time of the array made shall be no principall challenge And for that he
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill