Statute sayes that the lands devised shall be devised into three parts and that is to be understood of such an estate as may be divided but so cannot a Seigniory For put the case that the Lord held by a Hauke the whole Mannor shall descend and cannot be divided and so de catalla Fellonum Fenner contra For it seems to me that the seignory passeth and so it shall be if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne he shall say infra feodum suum and in reputation amongst men a seigniory is a Mannor for if a man makes a feoffment of a Mannor with livery where he hath no Mannor yet shall it passe 7 E. 3. Where a Mannor passeth by the name of Knights Fee And as to the intirenes of the seigniory it is easily answered for although the rent were entire yet it may be severed for a Rent Charge is entire yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed Walmesley For the Plaintiff the Question is if the Rent passeth by the name of a Mannor to the Devisees If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughters daughter yet this is good because in common speaking she is so called but here the words are not apt nor used in common speaking viz. That Rent should be taken for a Mannor and therefore it is voyd as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference that where the words have any affinity or likelihood to the Mannor then it will passe by the name of a Mannor As if a man deviseth his house and land by the name of a Mannor it shall passe But here being but a service it is otherwise Gawdy cont For if it the Rent passe not nothing shall passe which is a hard construction on a Will For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church And in Brett and Rigdens Casea man devised a Mannor in which he had nothing and after purchased the Mannor the devise is good And in 26 H. 6. feoffment 12. Land will not passe by deed by the name of a house but land will passe by the name of a Carue and a Carue by the name of a Mannor and I hold that the Rent in this case will passe by the name of the Mannor for a Mannor does consist of Demesnes services and rent may be called a Mannor aswell as a Carue and and the King gives it by the name of a Mannor to the Devisor and that is the reason that the Devisor calls it a Mannor And if you grant to me an Advowson by the name of the Church and Rectory and I devise the Rectory the Advowson and the Church will passe by the name of Rectory And in Plouden 194. A man did let his house and great demesnes rendring Rent and did devise to another all his Farme there the Devisee shall have all the Rent and the Reversion also Michaelm 29. 30. Bishop of Lincolnes Case Rot. 1528. 2200. IN a quare impedit brought by the King against the Bishop of Lincoln and Leigh the Incumbent The Case was The Bishop had an Advowson in gross and presented J.S. who took a second Benefice with cure whereby the first became void and continued so untill Lapse fallen to the Queen and after the title of Lapse fallen to the Queen the Bishop presented one J. who was inducted and by reason of Recusancy to pay Tythes was deprived and by the Statute 26 H. 8. the Church became void ipso facto whereupon the Bishop presented one Leigh within six months and now the Queen would present Fenner This Case is the same with Bosherulls lately adjudged But the Court said that here was a privation for Recusancy and therefore it would make a difference And afterwards Pasch 30 Eliz. Walmesley For the Queen said That if a Lapse be fallen to the Ordinary if the Patron doth present before the Bishop hath Collated he ought to receive his Clerk but where it is divolved to the King the Patron by no means can defeate the King but he may remove his Clerke at his pleasure but if such Incumbent be present after such Lapse and die then the title of the King is gone and his time passed by the act of God but in our Case the avoydance which does oust the King from his Lapse is avoidance by reason of Recusancy to pay Tithes which is the proper act of the Incumbent as is a resignation and no such avoydance being by the act of the party himself shall oust the King of his Presentation for in the 2 H. 9. In annuitie against an Abbot who resigns the Writ shall not abate for then the Plaintiff shall never have a good Writ So in our case if the King be outed of his Lapse by such devises he shall never have a Lapse for every one will usurp upon the Kings Lapse and will presently resign or misdemesn himself whereby to avoid the Lapse And in the 18 Ed. 4. the 19. By Pigot A writ brought against a Prior shall not abate although the Prior be not deposed for it is his own fault Fenner This Lapse is given the King by his prerogative but on this Condition that he take it in due time for so is the nature of things lapsed for if after a title accrued to the King he suffer usurpation and the Incumbent die his Lapse is lost for the nature of the Lapse is such that it must be taken at its time and where the title of the King is limited to a time there he shall not have his prerogative for a prerogative cannot alter estates As if the King grant a seigniory in gross rendring Rent and the Tenant to the Lord dies without heir whereby the tenant escheates the seigniory is extinct and the Rent of the King is gone aswell as it is in the case of a Common person And so if the King have a Rent feck for life out of my land if I die he cannot distreine in my land for the arrerages as he may in my life time And so where the Statute gives Annum diem vastum to the King yet he shall not have it after the death of the Tenant for life so if the King reserve a Rent upon a Lease to an Estranger and the stranger enters in respect of the land whereby his entire rent is suspended now the condition as to the King also is suspended during that time for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir and after this Rent comes to the King and the Grantee dies the Rent shall cease during the minority of his heir so that by all these cases the
hac conditione si vixerit vidua inhabitaret super prâ—m ssos the woman dyed before the Lease expired and her Executors entred and being outed they brought this Action and the question was if the Lease were determined by the death of the woman by limitation or by condition or if it yet remain Gawdy It cannot be a condition because the sentence is imperfect for if a man makes a Lease for life rendring rent sub hac conditione that if the rent be behind without any further words this cannot be a condition by reason of the imperfection of the sentence and without doubt if a Lease for years be made to a woman if she so long live and inhabit the premisses this is a limitation so that the term is ended by her death Clench It is neither condition nor limitation for a condition ought alwayes to be a full and perfect sentence and not uncertain As a Lease for years upon condition that the Lessee shall pay 181. at the house of the Lessor this is a full sentence but a Lease made rendring rent and if it be behind and no more said this is no condition And in all cases where these words quod si do make a condition it is requisite that these words quod tunc do ensue Neither can it be a limitation because the words quod si spoyl the sentence And Popham was also of opinion that it was neither condition nor limitation but if the words had been sub conditione quod tamdiu vixerit inhabitaret c. this is a perfect sentence and by her death or not inhabiting the estate might be determined and he put this difference that if a Lease had been for 20 years si tamdiu vixerit super praemissos the Lease had been determined by her death but if a Lease had been for 20 years si tamdiu inhabitaret quamdiu vixerit vel durante vita super praemissos there if she dyes within the term yet the term continues for in the first case the limitation goes to the interest and in the other to the time and Iudgement was given that the Plaintiff should recover for that the term continued Michaelm 37 38 Eliz. Mark Ives Case in B. R. IN a Debt upon a Bond the Condition was that if the Obligee should go to Rome and return from thence again before the 5. of July after the date of the Bond that the Obligor should pay to him 20 l. upon the 20. day of July at Pauls And it was moved by Williams Serjeant that if the Obligee returned within the time whether he ought to give notice of his return to the Obligor for otherwise by his secret return he may make a forfeiture of the Obligation for if the Obligor of necessity be to tender this money without notice of his return inconvenience would ensue for perhaps the Obligee is not returned at the time the money is due and then the tender is in vain and the Law will not compell a man to make a tender unless it be to some purpose and therefore the Obligee ought to give notice to the intent that the Obligor may know whether the money he due to him or not And it is like a Mortgage upon condition that if the Mortgager does pay 20 l. before Michaelmas at Pauls that theâ— c. here the Mortgager ought to give notice at what day before Michaelmas he will tender the money or otherwise he cannot enter for the time that the Law prescribes to make the tender is the last instant before Michaelmas and if the Mortgager will make his election to tender it before the day he ought to give the Mortgagee notice thereof And the Case of one Gurney was cited by Cook Adjudge 27 Eliz. where a Lease was made for years and the Lessor made another Lease for years to commence after the surrender determination c. of the first Lease and then a private surrender is made to the Lessor of the first Lease the second Lease shall not begin untill the Lessee hath notice of the surrender of the first Lease But Tanfield said that the Case was ruled contrary and that the Lease did begin presently without notice ideo quaere and as to the principal point the Court was divided But Fenner said that if the Obliges should give notice perhaps the Obligor will not be found and therefore good reason that the Obligor should make tender to the Obligee at his peril Trinit 36 Eliz. Escot against Lanreny in B. R. IN an action on the Case the Plaintiff declared that the Lord Barkley by his Indenture dimisit ad firmam tradidit totam firmam suam tolnetum proficuum nundinarum dierum Faerialium infra manerium Bergum de Thetbury for 21. years and that the Defendant had disturbed and hindred him from taking of divers pieces of Wool infra manerium Burgum praedict c. and after Issue joyned exception was taken to the Declaration because he declared of a demise made by the Lord Barkley and did not set forth that the Lord Barkley was seised at the time of the Demise 7 H. 7.3.34 H. 6.48 But the exception disallowed by all the Court because the Plaintiff in this action is to recover damages only and the right or title of Land does not come in debate but contra if it were in such action where the right of the Toll did come in debate and to prove this Glanvill cited 20 A sis 3.47 Eâ— 3. and 33 H. 6. and upon this reason he said that the Plaintiff of necessity is not bound to set forth the Market day nor the quantity of the Toll 34 H. 6.48 Where it was pleaded that J.S. made a Lease to him and did not shew that he was seised and yet held good Clench took another exception because he did not set forth that Toll was to be payd by common usage for no Toll is due for Hens or Geese or for many other things of such nature and so it might be that Toll was not due for wooll Fenner was of the same opinion but Popham Contra who said that the Plaintiff had declared that the Defendant had disturbed him from the Toll of divers pieces of Wooll and by that is implyed that Toll ought to be payd for Wooll And at another day Iudgment was given for the Plaintiff Pasch 36 Eliz. Sackford against Philipps in Camera Scaccarii Rot. 484. IN a debt this Case was moved by Williams Serjeant A. is indebted to B. in 10 l. upon a Bond and R. did promise to B. that if he would forbear A that if A. did not pay him he would B. for non-payment by A. does recover so much in damages upon the assumpsit against R. If in Debt upon this obligation against A A. may plead this recovery in Bar. Walmsley he cannot for he is a stranger to the recovery ideo Quaere And it was assign'd for errour that it was alledged in the
Administration it is at the election of the Plaintiff to sue him as Executor or Administrator 9 Ed. 4.33 21 H. 6.8 2 Rich. 2.20 18 Ed. 4. Walmesley agreed for the Statute of the 27 Eliz. hath made voyd the Testators gift and subâ—ata causa toll â—ur effectus and the gift being taken away the property is also taken away from the Donee and setled in the Donor as to any Creditor To which the other Iustices agreed and Iudgement was given for the Plaintiff Trinit 43 Eliz. George Brooks Case in C. B. Rot. 1822. GIbson recovered in a Debt against Broâ—k as Executor to J.S. 60 l. and 6 l. damages and upon a scire facias to the Sheriff he returns no Assets and then upon the estate which was in Lâ—ndon which the Defendant had wasted and soâ—d a fieri facâ—as was awarded to the Sheriff of Lâ—…don with a Commission to the Sheriff of London to enquire if he had Assets at the day of the Writ c and by the inquest it was found that he had Assets at the day of the Writ purchased c. and that he had wasted the estate which was thus return'd by the Sheriff against which the Defendant took issue that he had not Assets and upon this was a a Demurr Walmesley A man may avert against the return of a Sheriff if the return be a matter collateral as if upon a Caâ—ias the Sheriff returns a Rescous there may be an averment against this 4 Eliz. 212. a. But if it be in pursuance of the Writ as non est inventus there no averment shall be taken against this but here the return is the saying of the Inquest and not his own saying Warburton I conceive he shall have an averment and traverse or else he shall be without remedy for he cannot have an Action on the Case against the Sheriff because he returns that which was found by the Inquest and so not like where the Sheriff returns falsly without such Inquest and no attachment lyes because it is but an Inquest of office and after it was moved at another day and a president shewn 33 Eliz. in B. R. between Westner and Whitenore and there it was adjudged that such return of the Sheriff was traversable and Anderson and Kingsmill agreed to it wherefore Iudgement was given for the Defendant and that the issue was well taken Day against Fynn IN an Ejectment the Plaintiff declared of a Lease for years of a house and 30 acres of land in D. and that J. S. did let to him the said Messuage and 30 acres by the name of his house in B. and ten acres of land there sive plus sive minus it was moved in arrest of Iudgement because that 30 acres cannot pass by the name of 10 acres sive plus sive minus and so the Plaintiff hath not conveyed to him 30 acres for when 10 acres are leased to him sive plus sive minus these words ought to have a reasonable construction to pass a reasonable quantity either more or less and not twenty or thirty acres more Yelverton agreed for the word 10 acres sive plus sive minus ought to be intended of a reasonable quantity more or less by a quarter of an acre or two or three at the most but if it be 3 acres less than 10. the Lessee must be content with it Quod Fenner Crook concesserunt and Iudgement was staid Smith against Jones IN an Action of the Case upon an Assumpsit the Case was that the wise of Jones was Executrix to J.S. and had Assets to satisfie all Debts and Legacies The woman dyes and the goods remained in the hand of her husband who was the Defendant and Smith the Plaintiff being a Legatee demanded his debt of the husband who said to him Forbear tâ—ll Michaelmas and I will pay you and if this was sufficient cause of Action was the question on a Demurrer Davies The promise is voyd because it is after the death of the wife Yelverton The Action will lye because he hath the â—oods in his possession and therefore is chargeable and must answer for them and therefore there is a good consideration And he cited Godfreys Case who laid claim to a Copyhold and the Copyholder in possession said to him If the opinion of the Lord Cook be that Godfrey hath a good title to it I will surrender it to him and because he did not surrender to him Godfrey brought an Action on the Case and it was adjudged that the staying of the suit was a sufficient consideration to have an Action on the Case Yelverton If the promise had been to pay this Legacy in consideration he would not sue him then it had been good Williams If there be no cause of suit there is no assumpsit and here is no just cause for he cannot be sued for Legacies Flemming of the same opinion for the husband cannot be sued by the Plaintiff and although perhaps the Legatee may sue him in the spirituall Court yet that is only for the temporall administration And afterwards Iudgment was given for the Defendant Michaelm 9. Jacob. Kempe and James against Laurence in C. B. Rot. 3648. IN a scire facias the case was thus Gant having two daughters made his wife Executrix untill his daughters came to the age of 21. years or should be married and then the Executorship should cease and that then his daughters should be his Executors and the woman did recover a debt upon a bond made to the Testator after which the daughters marryed the Plaintiffs and they brought the scire facias upon the said Judgment against the Defendants as terre-tenants and the Sheriff return'd the Defendants terre-tenants and no others and upon Oyer of the scire facias the Defendants pleaded that H. was seâ—sed of those lands die Judicii reddit and made a Lease for years to them Iudgment c. Nichols The daughters shall have this judgment as Executors for they are in privity and in by the Testator and are not like an Administrator who comes in by the Ordinary after the death of the Executor 6 H. 8.7 Cook 5. Rep. Brudnells Case and the daughters are Executors and subject to debts of the Testator And as to the plea he said that forasmuch as the Defendants are returned terre-tenants they cannot plead that they are but tenants for years and that their Lessor is not warned for the scire facias is a personall action to have execution but of the goods but in a reall action it is a good plea because the lessor himself cannot plead in discharge of such action 8 H. 6.32 And note that Michaelm 43 44. Eliz. Rot. 834. Iudgment in the very same point was given accordingly Trinit 9 Jacob. Information against West in C. B. Rot. 1246. IN an Information upon the Statute of the 5 of Ed. 6. cap. 14. for buying of wheate-meale and converting it into starch It was resolved by three of the
Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before Mâ—châ—e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. Fâ—steâ— did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall
against Munday fol. 153 Leyes case fol. 20 Lambert against Austin fol. 117 Lord Rich his case fol. 34 Lane against Coups fol. 64 Leek against the Bishop of Coventry fol. 131 Lassels case fol. 90 M. MIchels case fol. 8 Mosse against Read fol. 47 Mercer against Sperks fol. 51 Moyle against Moyle fol. 66 Mark Ives case fol. 108 Malloy against Jennings fol. 69 Mores against Conham fol. 123 Morris against Padget fol. 138 Mathewson against Trot fol. 141 Marsh his case fol. 147 N. NEwman against Berwood fol. 50 Norton against Jennet fol. 72 O. OWens case fol. 24 Ow seleys case fol. 23 Oldfeild against Wilmor fol. 153 P. PAlmers Case fol. 17 Palmers case fol. 18 Penn against Merivall fol. 63 Powtrels case fol. 83 Perrin against Allen fol. 97 Pelling against Langden fol. 114 Pendigate against Audley fol. 118 Pecks case fol. 129 Q. THe Queen against Allen fol. 2 R. RIchmonds case fol. 9 Rouses case fol. 27 Rawley Sir Robert fol. 44 Rainer against Grimston fol. 62 Rotheram against Crawley fol. 71 Rudd against Topsey fol. 142 S. SPittles case fol. 8 Smiths case fol. 29 Slander fol. 30 Stinkley against Chamberlain fol. 33 On the Statute of Recusancy fol. 37 Stiles case fol. 39 Stephens against Leighton fol. 40 Sticklehornes case fol. 43 Saveries case fol. 51 Souths case fol. 145 Stephens case fol. 152 Smiths case fol. 87 Stones case fol. 94 Stantons case fol. 95 Suttons case fol. 96 Soles case fol. 99 Scarret against Tanner fol. 105 Sawyer against Hardy fol. 107 Sackford against Philips fol. 109 Stroud against Willis fol. 110 Shopland against Radlen fol. 115 Sperk against Sperk fol. 125 Shaw against Sherwood fol. 127 Swan against Gateland fol. 127 Streetman against Eversley fol. 114 Smith against Jones fol. 133 T. TAuntons case fol. 14 Thurstons case fol. 16 Totten against Bedingfeild fol. 35 Trussels case fol. 69 Tanfeild against Rogers fol. 119 Townsend against Waley fol. 155 W. WAkefeilds case fol. 4 Wardfords case fol. 11 Wisdomes case fol. 18 VValters case fol. 19 Wrights case fol. 21 Webbs case fol. 26 Watkins case fol. 137 Wood against Ash fol. 139 Winter agrinst Barnham fol. 33 Winter against Loveday fol. 34 Wentworth ag st Wright fol. 144 Willis against Whitwood fol. 45 Willoughby against Gray fol. 59 Wentworth against Russell fol. 60 Woodward against Nelson fol. 103 Worsley against Charnock fol. â—6 Wiseman agaidst Balwin fol. 112 VVhite against Gerish fol. 126 VValgrave against Skinner fol. 120 VValler against the Dean of Norwich fol. 136 Y. YArdley against Pescan fol. 43 G. GOodway against Michel fol. 71 Gibson against Mutes fol. 76 Gresham against Ragg fol. 114 Goodrick against Cooper fol. 143 Goodrigde against Warberton fol. 154 H. HUnt against King fol. 75 Hall against Wood fol. 131 Howards case fol. 138 Forrest against Ballard fol. 142 Halling against Command fol. 157 Errata FOl. 8. for there was a remainder read there was a demurr fol. 10. for will determine r. will not determine f. 12. for assessionem r. assentionem f. 19. for in the Judgment r. in the Indictment f. 21. for the writ of Dower r. of the writ of Error f. 23. for Littleburies case r. Littletons case f. 25. for issued r. issue f. 29. for when r. wheras f. 40. for Washley r. Walmesley f. 41. for grant adjudged r. grant adjudged good f. 47. for buying tythes r. buying of tythes f. 43. for non dierunt r. non dixerunt f. 45. for the house r. a horse f. 47. for is r. are f. 59. for here r. where f. 63. for after a copyholder r. after a copyholder f. 64. for per servantes r. per presentes f. 68. for action of error r. writ of error f. 70. for before r. because f. 70. for intent r. extent f. 76. for and the same r. and he f. 83. for inheritance r. disinheritance f. 85. for least r. best f 86. for baned r. barred f. 89. for it the rent r. for if the rent f. 90. for tenant r. tenancy f. 92. for her r. per f. 93. for promiseth that r. and it is covenanted that f. 96 for donas r. donees f. 96. for per r. sur f. 99. for may the damage r. may not the damages fo 111. for his band r. bound f. 112. for Pewis r. Newis f. 19. for also of the Mannor r. and also of the Mannor f. 123. for Court r. Count f. 123. for nor damages r. but damages f. 150. for hadhad issue r. had issue f. 158. for those inform r. those who inform THE REPORTS OF JUDGE OWEN Termino Pasch anno 26 Eliz. Leonard against Stephens Rotulo 1702. LEONARD chief Prothonotary brought an Action of Trespasse against Stephens who justified c. for that Sir Christopher Heyden Knight was seised in Fee and enfeoffed the Defendant and gave colour to the Plaintiff The Plaintiff replied that true it was that Sir Christopher Heydon was so seised but he being so seised died seised of the Premisses and that after his death they did discend to his Son and Heire who entred and was seised and being so seised did enfeoff the Plaintiff Without that that the said Sir Christopher Heyden did enfeoff the Defendant whereupon Issue was joyned and the Iury gave an especiall Verdict to this effect That the said Christopher Heyden was seised as aforesaid and made a Lease for years to the Defendant by Deed containing these words Dedi concessi confirmavi to the Defendant and his Heires with a Letter of Attorney to make Livery The Question was whether this was a Feoffment or but a Confirmation Walmsley Serjeant It is but Confirmation being by Deed and hath the word Confirmation Anderson By that reason he in the Reversion cannot enfeoff his Lessee for years by Deed as he may without Deed but I conceive that it is at the liberty and choice of the Lessee either to take it as a Feoffment or a Confirmation Walmsley As soon as the Lessee hath accepted the Deed by that he hath declared his meaning to have it as a Confirmation Anderson And when the Lessee doth accept the Livery doth not that shew his expresse meaning to take it by the Livery and shall the Livery signifie nothing And in Bracebridges Case where the Tenant in tail made a Bargain and Sale and made Livery and the Deed was inrolled within the six months this was adjudged to be a Discontinuance and yet the Bargain and Sale makes no discontinuance which little differs from the case in question Walmsley If Tenant in tail be disseised and it is agreed between the Disseisor and the Disseisee that the Disseisee shall make a Deed to the Disseisor who makes a Deed accordingly it is not in the election of the Disseisor to take this as a Feoffment Anderson The Cases differed for the Disseisee hath no power to make a Feoffment And adjudged by the Court that it was a good Feoffment vide 17 Ass 20.22 H. 6.43 Scire
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
Chaplaines they cannot take many Benefices during the lives of the others which are beneficed and discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplaines In an Action of false Imprisonment brought against the Maior Citizens Sheriffs and Commonalty of Norwich it was moved where the Issue should be tried And by the Court the Issue shall not be tryed there and in the same case it was moved whether the Sheriff could summon himself and it was answered by the Court that he could not and Periam said that so it had been after adjudged Mich. 29. and 30 Eliz. IN an Avowry adjudged by the Court Anderson being absent that in an Avowry it is sufficient for the Avowant to say Son Franktenement but if the Plaintiff traverse it it is no plea without he makes to him a Title that is the difference of pleading Son Franktenement on the part of the Avowant and on the part of the Plaintiff And Welson said that so were all the Presidents that it is no plea to traverse the Bar in the Avowry without making Title And Periam said that it is no Title to plead De son seisin demesne but he must make out his Title Paramount his Seisin Demesue Mich. 29 and 30 Eliz. Bloss against Holman JOhn Bloss brought an Action of Trespasse Quare vi armis for taking of his Goods against Holman and the Defendant pleaded not guilty and the Iury gave a speciall Verdict viz. That the Plaintiff at the time of the Trespasse was of the Mystery of the Mercers and that at that time the Defendant was his Servant and put in trust to sell his Goods and Merchandizes in Shopa sua ibidem de tempore in tempus and that he took the Goods of the Plaintiff named in the Declaration and carried them away and prayed the advice of the Court if the Defendant were culpable or not and upon the Postea returned Shuttleworth prayed Iudgment for the Plaintiff And the doubt was because the Declaration was Quare vi armis because it appeared that the Defendant had custody of the Goods but Shuttleworth doubted whether he had Custody and cited the case of Littleton viz. If I give my Sheep to Compasture c. and he kills them an Action of trespasse lies and the Iustices held that in this case the Action did well lye and Periam said that the Defendant had onely an authority and not custody or possession and Iudgment was given for the Plaintiff 3 H. 7.12.21 H. 7.14 And Windham said that if he had imbezelld his Masters Goods without question it was felony Quod fuit concessum Anderson absente and the Law will not presume that the goods were out of the possession of the Plaintiff and the next day came the Lord Anderson and rehearsed the case and said that the Defendant had neither generall nor speciall property in the Goods for it is plaine he could have no generall property and speciall he had not for he could not have an action of Trespasse if they were taken away then if he had no property a trespasse lies against him if he take them so if a Shepheard steal Sheep it is felony for he hath no property in them wherefore he gave Iudgment accordingly Mich. 29 and 30 Eliz. Rot. 1410. Cooke against Baldwin A Lease was mate for one and twenty years to one Truepenny and Elizabeth if she and he or any Child or Children between them lawfully begotten should so long live and then they were married and the Wise died without Issue If the Lease be determined or not was the question And it was moved that it was determined because it is conjunctive if he and she c. and now one of them is dead without issue and it is not like the case of Chapman where a man covenants to enfeoff one and his Heires for it is impossible to enfeoff his Heires he living and therefore in that case it shall be taken for a disjunctive and if I make a Lease for years to two if one of them dye the other shall have all because they take by way of interest but it a Lease be made to two during the life of one of them if one dye the Lease is gone Quod fuit concessum And here the meaning is that the Lease shall be determined if one of them dye Rhodes Iustice The meaning is against you for by the word or which comes after it appears that they are to have their lives in it Anderson By the words it is plain that after the death of one the Lease is determined and that which moves me to think it was so intended is because it was intended as it seems to me to be a Ioynture for the wife which was made by them before marriage and then if by the death of one it should be gone and she have nothing could not be the meaning To which the other Iustices assented And all the Iudges agreed that the Lease was not determined by the death of one and Iudgment given accordingly Mich. 29 and 30 Eliz. IN a Quare Impedit by Sir Thomas Gorge Knight against the Bishop of Lincolne and Dalton Incumbent the Case was That a Mannor with the Advowson appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question And all the Iustices held clearly that the avoidance would not passe because it was a Chatiell vested And Periam said that in case of a common person without question an Advowson appendant would not passe by such Grant for if the Father dye it shall go to his Executor but if it be an Advowson in grosse in case of a common person there is some doubt But in the principall case all the Iudges held ut supra and said that so it was in 9 Ed. 3.26 Quare Impedit 31. And in Dyer in the case of the Church of Westminster but F.N.B. is contrary 33 N. Mich. 29 and 30 Eliz. Rot. 728. HOuse and Elkin brought an Action of Debt upon an Obligation made to them against Roger Grindon as Sheriffs of London upon condition of appearance at a certain day in the Kings Bench The Defendant pleaded that he being arrested by a Precept out of the Kings Bench appeared at the day And upon this they were at issue to be tried by the Country And a Repleader was awarded because it was triable by Record for although the Sheriff do not return the Processe yet the Defendant ought to come into the Court at the day and there speciall entry shall be made of his appearance And so was it adjudged this terme in the Case between Bret and Shepheard But Bradford Prothonotary said it was well enough for it may be that he appeared there and there was no Record of it To which it was answered that it
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
not a good Feoffment for White-acre Michaelm 29. 30. Eliz. Knowles against Powell in Scaccario THe Queen seized in Fee made a Lease for years to one who was out-lawed at the time of the Lease rendring rent and after he was out-lawed again and before seizure comes out the general pardon of all Goods and Chattels forfeited and in this Case it was agreed that a man out-lawed was capable of a Lease from the Queen as Farmer to the Queen And Manwood said that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry and it was also agreed that a man out-lawed and pardoned had property in his goods Egerton Sollicitor said that in the 4 Eliz. it was adjudged in the Common Pleas that if the Queen made a Lease under the Exchequer-seal to begin immediatly after forfeiture surrender or expiration of a former term and the Lessee is out-lawed shat the second Lease shall not commence for it is a Royal forfeiture Trinit 41 Elizab. Ferrers against Borough in B. R. Rot. 185. UPon a special Verdict the Case was thus A man makes a Lease for years upon condition that if he paid 10 l. before Michaelmas that it should be lawfull for him to re-enter and before Michaelmas he lets the land to another by Indenture for years and then performed the Condition and entred the first Lessee brought a Trespass and it was adjudged that it does not lye Trinit 35 Elizab. Lambert against Austen in B. R. Rot. 185. IN a Replevin the Case was thus A man seized of land in Fee grants a Rent-charge out of it to A. for life with a Clause of Distress and then makes a Lease to B. for years and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. untill the 18 of Eliz. and the Grantee makes the Defendant his Executor and dyes the term of B. ends in the 33 Eliz. and then J.S. enters and makes a Lease to the Plaintiff the Executor of A. distreyns for the arrearages and the Plaintiff brings a Replevin Gawdy and Fenner This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years but out of the Free-hold and upon grant thereof as Littleton saith the Tenant of the Free-hold ought to attorn and not the Termor and so is it 9 H. 6. and if an Assize be brought for this Rent it ought to be brought against the Tenant of the Free-hold and all the Tenants of the Free-hold ought to be named in a Rent-charge by Cook 6 Rep. 58. but otherwise for a Rent-service for that is against the Termor onely and a Termor cannot give seizin of the Rent to maintain an Assize by Cook 6 Rep. 57. and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages because the estate is determined Cook 4 Rep. 49. but an Avowry is given by this Statute Onely so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relyed on this word demesn which ought to be intended of a Free-hold and of a Reversion upon a Lease for years it is pleaded quod seisitus in dominico suo c. and so cannot a Tenant for years say for which reasons it seemed to them that the Distress was well taken Clench contr For the Termor ought to pay it for he takes the profits of the land as if a Lease be made to a woman rendring Rent who takes husband and dyes the husband shall pay the Rent by the 10 H. 6. for he hath taken the profits and by the words of the Statute they are in the possession or seisin and seisin refers to the Tenant of the Free-hold and possession to the Tenant for years and the words are which ought immediatly to pay the Rent and so ought the Termor in our Case who is chargeable to the Distress of the Testator Popham chief Iustice of the same opinion The Distress is not well taken for he who hath the profits of the land ought to answer for the Rent Gawdy Although the Cattel of the Lessee be distreynable by the Testator that is onely because they are upon his land as a strangers Cattel may be so distreyned and therefore this proves not that the Lessee should pay the Rent And if a man grants a Rent-charge and lets the land at will afterwards the Rent is behind and the Grantee dyes and the Lease at will determines without question in that Case the Lessor is subject to the Distress of the Executor And in our Case if the Grantee had released to the Tenant for life this had extinguisht the Rent otherwise of a Release to Tenant for years Fenner If Tenant in Tail granta a Rent-charge and after makes a Lease for 21 years according to the Statute and dyes the Rent by the death of the Tenant in Tail is determined To which Gawdy agreed which proves that the Rent issues out of the Freehold Vid. Cook 5 Rep. 118. Hillar 37 Eliz. Butler against Ruddisley IN a Trespass the Defendant pleaded the Free-hold of Edward Devereux and so justified as his Bailiff without saying at his commandment the Plaintiff replyed that the said Edward was seized in Fee and made a Lease to him by vertue whereof he was possest absque hoc that the Lessor made the Defendant his Bailiff post dimissionem and hereupon the Defendant demurred Crook By this Lease a Free-hold passeth to the Plaintiff and then the Plaintiffs traverse is naught for he hath now traverst that the Defendant is Bailiff whereas he ought to traverse the Free-hold in the Lessor for that would have destroyed the justification of the Defendant And to prove that the Free-hold doth pass he cited the Case of Littleton where if a Lease be made to the husband and wife during Coverture they are Ioynt-tenants for life So in the 30 H. 6. a Lease to a woman dum sola vixerâ—t And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice or dummodo se bene gesserit all these are Free-holds And it is clear that a Tenant at will cannot assign over And also an estate at will is an estate at the will of both parties but here it is at the will of the Lessor onely when he will make a Bailiff Haughton contr An estate at will doth pass and not a Free-hold for here he hath not pleaded that Livery was made and Livery shall not be intended in this case unless it be specially alledged but if Livery had been made then he agreed that a Free-hold conditional had past and for the pleading of a Livery he took a difference that where an express estate either in fee or for life be pleaded there Livery shall be intended but where a Free-hold passeth by implication or operation of Law and not
for the goods themselves are not to be recovered in this action nor damages for them and so they are but collaterall to the action as in 10 Edw. 3.30 In a Rescous the Court was for taking of Cattle without shewing what Cattle and the Iury found them to be two horses and the Plaintiff had judgment where note that a verdict did help an insufficient Court and 22 Aâ—si 21 Ed. 3. a trespass was brought for taking away of Writings concerning land without shewing what they were or the quality of the land But otherwise in a detinue for Charters for there the Writings themselves are to be recovered The second and great doubt was when a man doth promise to another that if he will deliver the pawn he will pay the debt if this be a sufficient consideration to maintain an Assumpsit Foster Justice It is not for he that hath the pawne hath not such an interest in it as he may deliver it over to another or make a legall contract for it and that his delivery being illegall he cannot by his own wrong raise an action to himself and a man shall never maintain any action where the consideration is illegall and not valuable 9 Ed. 4. In an action on the Case the Defendant pleaded an accord and that he delivered the writing to the Plaintiff which concern'd the land and it was held no plea because the Plaintiff having land the writtings belonged to it And cited Reynolds Case where a man promised another 100 l. to solicite his business and it was holden that no action would lie for the money because the soliciting his business was illegall he being no man of Law Dier 355 356. Cook Warburton and Daniell cont Who said that the consideration was good legall and profitable and sufficient to maintain an assumpsit for he who hath goods at pawn hath a speciall property in them so that he may work such pawn if it be a Horse or Oxe or may take the Cowes milk and may use it in such manner as the owner would but if he misuseth the pawn an action lyes also he hath such interest in the pawn as he may assign over and the assignee shall be subiect to a detinue if he detaines it upon payment of the money by the owner as in the 2. assise Land was leased untill he had raised 100 l. he hath such interest as is grantable over And Foster agreed to this because he had power to satisfie himself out of the profits And it was agreed by the Court that if a man takes a distress he cannot work the distress for it is only the act of the Law that gives power to the distress for he hath no propertie in the distress nor possession in jure as in the 21 H. 7. Replevin A man hath returne Irreplevisable he cannot worke them for the Iudgment is to remit them to the pound ibid. remansurum vid. 13 R. 2 Brook 20 H. 7 1 a. 34 H. 8. Bâ— pledges 28.22 Edw. 4 11. goods pawned shall not be put into execution untill the debt be satisfied And it was agreed by Cook and Warburton that when a man hath a speciall interest in a thing by act in Law that he cannot work it or otherwise use it but contrary upon a speciall interest by the act of the partie as in case of a pawn Daniell There is difference between pawns which are chargeable to the parties as Cowes and Horses and things that are not chargeable and also there is a difference between pawnes that will be the worse by usage as Clothes c. For if the pawn be the worse by usage an action of the Case will lie against him that hath them pawned to him But contra of goods that are not the worse for usage Cook If I deliver goods to you untill you are promoted to a benefice you may use them which Foster denied And Iudgment was given for the Plaintiff and that they may be granted over and so a good assumpsit will lie 26 Eliz. Earl of Northumberlands Case THis case was privately argued before the Lord Treasurer because the parties agreed to refer themselves to the opinion of Wray and Anderson And the case was this the Earl of Northumberland devised by his will his Iewells to his wife And dyed possessed of a Collar of Esses and of a Garter of gold and of a Buckle annexed to his bonnet and also of many other buttons of gold and pretious stones annexed to his robes and of many other chains bracelets and rings of gold and pretious stones The question was if all these should passe by the devise under the name of Iewells And both Iustices did Resolve that the Garter and Collar of Esses did not pass because they were not properly Iewells but ensignes of Honour and State and that the Buckle in his bonnet and the buttons did not pass because they were annexed to his Robes and were therfore no Iewells But for all the other chaines rings braceletts and Iewells they passed by vertue of the said Will. Michaelm 40 41 Eliz. Sperke against Sperke in C. R. Rot. 2215. IN an ejectment the Case was this M. Sperke made a Lease of the land in question to William Sperke for 89. years if William should so long live the remainder after his death to the Executors or Assignes of the said William for 40. years afterwards William dyes Intestate and administration is committed to Grace Sperke his wife who entred clayming the 40. years and the Defendant clayming by another Lease entred upon him and he brought this action Aâ—dâ—…on Executor is as good a name of purchase as Heire is And I conceive the points in this case are two First if the Administrator be an assignee Secondly If the lease for 40. years be a Chattell vested in the Intestate in his life for if it be then his Administrator shall have it And as to the first I conceive that she is not assignee to take these 40 years For in the 19 Ed. 3. It is there said that Administrators are not assignees for administration is appointed by the ordinary and assignees must be in by the party himself and not by a stranger and therefore an Administrator cannot be an assignee as an Executor that comes in by the partie or as a husband for his wife Walmesley and Glanyâ—… accorded But Kingsmill cont for he said that although one could not be assignee in Deed without the act of the partie yet one may be assignee in Law by the act of the law And so the opinion of the â— Iustices to the first point was that the Administrator could not have it as assignee and as to the second point Anderson said that it could not vest for if a man have a Lease for life the remainder for 40. years the remainder is voyd because there is no person named to whom it is limited but if a man make a Lease for life and after his death to his lessee for
21. years that is good and the Executor shall have it as in right of his Testator But where a man makes a Lease for years or life the remainder after his death for 40. years to his Executors the Executors shall have it as purchasors for this word remainder divides it from the Testator and makes the Executors purchasors Walmesley Glanvill and Kingsmill cont And their chief reason was from the intent of the parties and their intent was that the Lessee should have an estate during life for it is to him for 89. years if he so long live and because by common intendment he cannot survive those years their intent was that his Executors should have it after his death and that the certainty of the time might be known it was limited for 40. years And W lmsley said that the Administrator could not have this by purchase for when a man takes by purchase he must be named by an apt name of purchase by which he may be known as if there be tenant for life the remainder to the right heirs males of J.S. and J.S. hath issue two sons and the eldest hath issue a daughter and J.S. dies this daughter shall never take any estate because she is not heir male she hath no name of purchase and therefore here the Administrator cannot take by purchase for the Administrator comes in by the ordinary and therefore cannot be an assignee And at last Iudgment was given That the Administrator should hold it as a thing vested in the Intestate Michaelm 41 42 Eliza. VVhite against Gerish in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent The case was this Two persons did joyne in leavying a fine to J. S in Fee â—ur coâ—…ns de droit come ceo c. J.S. by the same Fine renders the Lands to one of the Conusors in taile reserving Rent and further would quod tenementa preâ—…cta remanerent to the other who is the avovee Walmesley The Rent shall passe as if a man grants land for life and also grants quod tenementa predicta remaneâ—unt to another these words Quod tenementa predicta do make a grant of the reversion and also these renders are as severall Fines and so it shall be taken as a grant in Taile rendring Rent and after a grant of the reversion Glanvill accorded Warburton If a man makes a gift in Taile rendring rent the remainder over in Fee the Donor shall have the Rent and not he in the remainder Walmesley That is true in a grant but not in a Fine Anderson If a man makes a gift in Taile rendring rent and at the same instant grants the Reversion and the Deeds are delivered accordingly this shall passe as a reversion And after it was adjudged to be a grant of the reversion and that the rent passeth Crawleys Case IN Replevin the case was thus A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth and if the Rent were determined was the Question Walmsley The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoynd with the possession whereby the Rent it self is carryed to J.S. whereby J.S. hath an absolute estate for his life and the life of the grantees is not materiall as if Rent be granted to two for the life of J.S. if he does not grant over the rent their lives are not materiall And if they grant over and dse the Rent shall not cease but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie otherwise if it were before the Statute of use quod fuit concessum per curiam Pasch 41 Eliz. Shaw against Sherwood Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill and the Bill was thus I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Elizâ—beth Shaw equally to be divided which said sum I acknowledge my self to have received to the use aforesaid and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and Eâ—…zabeth Walmesley Two points are here First if this be a Debt to cestuy que use or to him who gave it Secondly if it be divided so that each of them shall have an Action for 20 l. And as to the first he held that it was a debt to him for whose use the money was delivered and as to the second that they shall have a debt as of several debts by reason of these words equally to be divided Kâ—…gâ—…m Here is no Obligation for the words are not obligatory but onely an acknowledgement of the receipt Glanyâ—ll accorded Walmesley When he acknowledged the receipt to both their uses without question such Receiver is a Debtor And agreed by the Court that admitting it was a Debt that then it shall be a divided Debt and not joynt Quod nota Lane against Cotton IN Debt upon a Bond on condition to pay 20 l. within a month after the Obligee had a son that did or could speak the Lords Pâ—…er in English that he could be understood the Plaintiff pleaded that he had a son qui loqui potuiâ— praecationem Domini uâ—intelligâ— potuerit and the Defendant demurr'd because it was pleaded that he had a son qui loqui potui for that is a secret ability that cannot be known Kingsmill The plea is good and shall be tryed as in case of a Writ of non comâ—…s mentis Glanvill accorded for it may be proved by the testimony of those who have heard him speak and if he ever spoke it it is good evidence that he had ability to speak Walmesley contr Because it is a secret thing it cannot be tryed Kingsmill A man is bound in a Bond to give me 20 l. when the River of Varâ— is novigable it is a good plea to say that the River is navigable without saying that some have navigated upon it Herâ— Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop who had pleaded that the Parishioners were Welshmen and that they could not understand English and that the Clerk he presented could not understand Welsh and the Patron pleaded that the Clerk could speak Welsh and upon Demurr it was adjudged a good issue and that such matter might be tryed Anderson The issue is good and it is at the election of the party to plead quod loqui potuit vel loquutus est And if I am obliged to you to give you a 100 l. when I am able to go to Pauls this may â—e tryed although in facto I never went to Pauls and if I am able I shall pay the money And he cited Broughtons Case where in Maintenance the Defendant pleaded that he
that the wife is not in her former or antient estate but takes hereby a new estate for if Tenant for life grants his estate to J.S. and his heirs and J.S. grants a Rent and then re-grants an estate to the Tenant for life the Tenant for life shall be liable for the Rent Dyer 252. Harris contr For by the rendring of the estate by the Fine she shall be in her antient state and he cited the Case of Peter Cary here adjudged who being Tenant in T. the remainder to the Earl of Devonshire was attainted and then the King pardon'd him and gave him his land again and then he suffered a common recovery and thereby barred the remainder in the Earl of Devonshire But Anderson was against this Case and said that by the render the woman was in her antient estate and so the remainder discontinued and the entry of him in the remainder taken away Warburton The Fine does make no discontinuance for they give away but that which they may lawfully do and so is Bredons Case Cook 1 Rep. 67. and as to the common recovery it is out of the Statute of the 32 H. 8. because she remains party to the Fine and by the render upon the Fine they shall be as in by a new estate and then the recompence shall not be to the antient estate and therefore he in the remainder is not barred nor impeached by this Fine but he may enter within five years Kingsmill accorded for it is plain that by the render to the husband and wife they are in a new estate and the recompence shall go as to that and not to the antient estate but contr if it had been by way of voucher Walmesley accorded but notwithstanding the Fine and recovery the entry of him in the remainder is good and as to the woman it is clear that there is no discontinuance to him in the remainder in Fee for he in the remainder in Tail cannot discontinue because he is seized by force of the estate Tail as the 4 H. 7.17 Tenant in Dower and he in the reversion in Tail joyn in a Fine this is no discontinuance of the estate Tail because he was never seized and therefore it is a forfeiture in the Tenant for life although he in the remainder joyn'd with him by the 41 Ed. 3. but otherwise if Tenant for life and he in remainder in Fee joyn in a Fine Vid. Bredons Case 1 Rep. 76. Anderson I conceive he in the remainder may enter for all passeth from the Tenant for life and it is her Feoffment and the confirmation of the other and so the estate Tail being spent he in the remainder shall enter for forfeiture and the recovery shall be no bar because it was of another estate and also this title of entry for forfeiture shall not be barr'd by the common recovery no more than if a Feoffee upon condition does suffer a common recovery yet may the Feoffor enter for the condition broken and Iudgement was given for the Plaintiff so that his remainder was neither discontinued by the Fine nor his entry taken away by the Recovery 43 Eliz. Hall against VVood in C. B. IN an Action on the Case for a Trover and conversion of 40 l. on not guilty pleaded it was found for the Plaintiff Walmesley How can an Action lye for a Trover of money if it be not within a bag for this Writ supposeth a loss and when the money was lost how doth it appear that the money found is the same money that was lost Davies There are many presidents in the Kings Bench to prove that this Action will well lye for corn and money and I have been of Counsel in many of those Cases Warburton If the money were lost in view of a third person upon such Trover the Action will lye for there it may be proved that it was the money of the Plaintiff And Walmesley agreed And note that a president was shewn tempore 40 41 Eliz. inter Holloway and Higgs which was thus a master delivered to his servant 30 quarters of corn to be sold and the servant sold them and converted the money and the master brought his Action on the Case for the Trover and conversion against the servant who pleaded not guilty and it was sound against him and two things were moved in arrest of Iudgement first that the master was never possessed of the money and therefore could not lose it secondly because the money cannot be known and so non constat whether it was the money of the masters or no. But notwithstanding this Case Iudgement was given for the Plaintiff because the possession of the servant was the possession of the master and when the servant converts this to his own use by this the master loseth the property and is also a conversion in the servant Mich. 42 43 Eliz. Leeke against the Bishop of Coventry in C. B. Rot. 3579. IN a Quare impedit the Case was thus Langford and Bussy were Patrons of an Advowson to which they and their Ministers use to present by turn Langford presented according to his turn and his Clerk dyed and then Bussy presented in his turn also and his Clerk was deprived after which Langford grants his Advowson in Fee to Leeke the Plaintiff and then the Bishop without any notice does collate Dr. Babington who dyes after whose death the question was if Leeke should present or Bussy and Iudgement was given for the Plaintiff because that notwithstanding the Church was voyd by deprivation yet the Patron may transpose his Advowson over Bethell against Sir Edward Stanhop IN Debt against Sir Edward Stanhop as Executor to Francis Vaughan he pleaded that he is not Administrator and the said Vaughan gave 40 l. to his daughter within age with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors and then he dyed possest of the goods and the Defendant sold these goods which made him Executor in his own wrong and afterwards takes Letters of Administration Walburton I conceive the Plaintiff ought to have Iudgement for the Statute of 21 Eliz. of fraudulent conveyances annuls this gift of the Intestate because he did it to defraud his Creditors and then when he dyed it was assets in the hands of the Administrator And if a Testator have goods wrongfully taken from him out of his possession these are not Assets to the Executors or Administrators but if they be taken out of the possession of the Administrators or Executors they shall be Assets for they may take them again but for goods taken from the Testator they have but an Action But here the Administrator may take the goods which were given by the Intestate to defraud Creditors for the gift was voyd and therefore they shall be accounted Assets And as to the Action it is well brought for when a man does administer as Executor and then takes Letters of