of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
way Cum sepibus Januis and did not say praedict so that it might not be of the same Gates in the Declaration and that is there said to be a fault incurable And although we are not in the nature of a Plea in our case but of a speciall Verdict yet as I have shewed before that is all one where it wanteth matter of substance Thirdly the Confirmation is utterly defeated and avoided by the Remitter to Sir Richard Knightley and therefore the Fine cannot revive it 14. Assise 3. Tenant in Taile doth charge the Land and dies and the Issue does enfeoff a stranger he shall hold the Land discharged because the Land was once discharged by his Entry and so shall the Issue do that re-purchaseth the Land 19 Ed. 3. Resceit 112. Tenant in tail acknowledgeth a Statute and dies and the Issue enfeoffs a stranger against whom the Conusee sues out execution and adjudged there good but yet it was denyed in 11 H. 6. 26. b. by Paston and Comment 437. Smith and Stappletons case And Trin. 15 Jac. This Case was argued by Sir Tho. Coventry the Kings Solicitor for the Plaintiff by Sir Hen. Yelverton the Kings Attorney for the Defendant And Hil. 15. Jac. by Serjeant Chidborn for the Plaintiff and by Serjeant Harvy for the Defendant And Pasch 16. Jac. without any argument by the Iudges agreed for the Plaintiff and thereupon Iudgment Judgment was given that the Plaintiff should recover Mich. 14 Jac. Ashfeild against Wrendford IN a Writ of Error to reverse a Judgment given in the Common Pleas for the now Defendant against the Plaintiff in an Action of Debt upon a Bond of two hundred Marks made the first of October 9 Jac. In which the now Plaintiff then Defendant did plead that Gregory Havard was possessed of five Cowes thirteen Sheep and of certain Hay Wheat Rye Pease Barley Oates and Fetches not Threshed And some speech being had between the said Gregory and one John Ashfeild for the buying thereof whereupon the said Gregory did affirm the same to be twenty Loads of Hay thirty of Wheat a hundred of Rye c. whereupon before the making of the Bond viz. the last of September the 9 Jacob. It was agreed between the said Gregory and the said John that the said John should pay for the said goods seventy five pounds and that a Bond should be made in which should be contained that the said now Plaintiff with the said John Sturet were bound to Cuidam Edward Wrensford in two hundred Marks upon condition for the payment of the said seventy five pounds which writing was to be delivered to the said Gregory as a Schedule to be kept upon condition that the said Gregory before the said day of payment should go to the house of the said John in Pixley to account with him for the said Goods and if thereupon any of the said Goods should be wanting if the said Gregory shall be content to make the same up that then the Writing should be delivered to the said Edmund otherwise it should remain as a Schedule whereupon the said Writing mentioned in the Declaration was made and sealed and delivered to the said Gregory upon condition aforesaid And after the measuring of the Hay there wanted eight Loads c. and the said Gregory did not come to the House of the said John c. And so pleaded it was not his Deed. And found for the Defendant c. And I conceive that Judgment ought to be reversed For Cuidam Edward Wrensford cannot be intended the Plaintiff in the first Action but a stranger of that name as in Dyer 5 Ed. 6. Case of Isham and Wither And then the aforesaid Edward to whom the Obligation is made and who joyned Issue and appeared at the tryall and at the return of the Postea and for whom Judgment was given ought to be referred to Cuidam Edward Wrensford whereof mention is last made in the Plea and not to the Plaintiff in the Action and so Issue is joyned by a stranger and Judgment given for him and not for the Plaintiff Judgment confirm'd But all the Court held that the Issue shall be intended to be joyned by the Plaintiff himself and upon the Bond whereon the Declaration is made wherefore Judgment was affirmed c. Hil. 14 Jac. Newsham against Carew Knight In the Exchequer IN an Ejectment the Case was this A Bishop makes a Lease of a Rectory to I.S. for 21. years and dies the Successor before the Statute 1 Eliz makes a Lease of this to I. N. habend from the 20. Decemb. 1. Eliz. being the day of the date for 56. years from thence next ensuing the end of the Lease to I S. and dies and the 56. years are expired from the 20. of Decemb. 1 Eliz. And if this second Lease be ended or not is the Question And I conceive that the Lease shall begin from the 20 of December and so it is ended before the Lease made to I. S. For the argument of which case the true sence and meaning of this ill pen'd Habendum is to be considered for thereupon all the difficulty of this case doth depend and as to that I conceive there are but four ways to expound this Habendum and if it be taken in any of these constructions this Lease shall begin by computation from the 20 of December 1 Elizab. and so shall end the 20 of December 12 Jacob. which is before the Lease made to the Lessor of the Plaintiff And the first way is to observe the first part of the Habendum scil from the 20 day of December then next following to be onely material and good and the last part being repugnant thereto is voyd The second way is to take the first words of the limitation of the begining of the Estate to be voyd and the last words scil next following the determination and end of the term of I. S. c. to be good The third way is to construe as well the first as the last words of the Commencement to be voyd by reason of the direct repugnancy in them And the fourth and last construction is to make such construction as all these words by a reasonable exposition may agree together And according to any three of these constructions viz. the first the third or the fourth it is apparent that the Lease to I. N. under whom the Defendant claims did end the 20 of December 12 Jacob. which was before the entry of Anthony Rudd the last Bishop and the Lease made to the Lessor of the Plaintiff and then this Lease is good and therefore my endeavor is to prove that this Habendum ought to be taken in any of these three ways viz. the first third or fourth and to disprove that it cannot be taken in the second way For the argument whereof I shall speak to the first and second together for that that I will speak of the first will be a manifest
the day is excluded by this word Quousque Crook contra Who said that the Declaration was insufficient for it ought to have been Tam pro Domino Rege quam pro seipso because here is a contempt to the King But upon full debate of the Case and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas between King and Monlenax where the Declaration was for the party onely and all the Prothonotaries did certifie the Court that the greater part of Presidents of such Actions brought in the Common Pleas were for the party only and not Tam pro Domino Rege quam seipso whereupon it was adjudged that it was good either way Judicium and Iudgment was given for the Plaintiff And note that in this case the Iudgment was Quod Defendans sit in misericordia and not Quod capiatur vide 27. Assise 11. 42. Assise 17. Dyer 238. 40 41. Eliz. New Book of Entries 44 45. Bassett against Jefiock and Johnson IN an Ejectione the Iury gave a speciall Verdict to this effect That Queen Elizabeth was seised in fee in Jure coronae of the Mannor of Watton in the County of York and that King James the 15. Martii 2. Jac. did grant the same to William Brown and Robert Knight and their Heirs who the twenty seventh of April 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs who entred and died seised and after whose death the same descended to Basill Feilding as his Brother who made a Lease to the Plaintiff Bridgman It seemeth to me that the Plaintiff hath made a good Title But it was objected that there was no good Title for that it is not found that the Queen died seised or that the Lands descended to the King But it was answered that when the Queen was seised in Fee in Jure Coronae that shall be intended to continue untill the contrary be shewed for when an Estate of Inheritance is once alledged it shall be intended still to continue till the contrary be shewn Plow Com. 193. 43 1. and 202. Judicium And afterwards viz. 19. Jacobi Iudgment was given for the Plaintiff without any argument at the Bench. Trin. 19. Jac. Samborne against Harilo IN an Action of Trespasse for that the Defendant 10. Octob. 44. Eliz the Plaintiffs free Warren at Mouldford in certain places there called Harecombe Harcombe Coppice and the Down did break and enter and did therein hunt without the license of the Plaintiff and three Hares and three hundred Conies did take and carry away Continuando as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October to the first of November And further declared that the tenth of April 1. Jac. the Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and twenty Hares did take and carry away continuing the said hunting untill the first of March next after c. And further declared that the tenth of April 2. Jac. the said Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and forty Hares and four hundred Conies did take and carry away continuing the said hunting untill the first of March following contra pacem c. ad damnum c. The Defendant as to the Vi armis and to the first Trespasse except the entring and hunting in the said place called the Down and the taking and carrying away the three hundred Conies pleaded not guilty And as to the entry hunting and carrying away the said Conies he saith that the said place called the Down is and hath been time out of mind Communis fundus containing by estimation two hundred acres of Land and Pasture and that before the said tenth day of September and before the said Trespasse and at the said time the Defendant was seised of a Messuage and six Yard Land containing a hundred and sixty acres called the Mannor of Southbery in Mulford aforesaid and that the Defendant and all those whose estate he hath in the premisses time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep Levant and Couchant upon the said Messuage and six Yard Land and that the Defendant and all those whose Estate c. have used for preservation of the said Common as often as the said Common hath been oppressed and troubled with Conies have used of custome to have liberty to hunt and to take the Conies wherefore the Defendant the aforesaid time of the aforesaid first Trespasse and for preservation of the said Common from such oppression and diminution aforesaid into the said Down did enter and there hunted and the said Conies did take and carry away according to the said custome and continuing the said hunting all the said time And as to the second Trespasse besides the entry and hunting in the said places called Harecombe Harecombe Coppice and the Down and the taking and carrying away two hundred Conies he pleaded not guilty And as to the entry and hunting in the said places c. he saith that the said places called Harecombe and Harecombe Coppice are Woodland containing by estimation ten acres and that he was seised in Fee of the said Messuage and six Yard Land and made the same prescription as aforesaid for all his Horses Cowes Heifers Bullocks and two hundred and forty Sheep levant and couchant upon the said Tenements viz. for the Horses Cowes c. at the Feast of S. George and from that time untill the Corne growing in the Feilds of Moulford were carried away and after the Corne carried away for the Sheep untill the fourth of March next after and made the former prescription for the Sheep in the Down And the same prescription also for hunting and taking away the Conies as abovesaid and so did justifie the taking of the said two hundred Conies And as to the third Trespasse besides the entry and hunting in the said places and the taking and carrying away of the said four hundred Conies he pleaded not guilty and as to this plea he made the same prescription as before upon which plea the Plaintiff demurred in Law And if this matter pleaded in Bar was sufficient to bar the plaintiff of his Action was the question And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from having Iudgment And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile and what things he may do upon the Soile for preservation of the said Common 2. Whether this be a good usage and custome to enable the Defendant to hunt and kill Conies in the Plaintiffs free Warren And as to the first I conceive that he that hath Common in
Also the Bar is not good because the Defendant says he was possessed of five Steers and doth not say of the aforesaid 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it and the Defendant pleaded that there was a Chantery in the said Chappel and made title to it and traversed the title of the King and adjudged to be no plea because he did not answer to the Chantry whereof the King had declared And Pasch 14 Elizab. Downing against Hayward In a false imprisonment in Suffolk the Defendant did justifie as servant to A. to whom a Commission of Rebellion of Chancery was directed and the Plaintiff pleaded De son tort Demesne and found for the Plaintiff and reversed again by Error in the Star Chamber because that when the matter of justification is upon matter of Record and matter in fact or of matters done in two Counties that cannot joyn the Issue ought to be upon one only And Pasch 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague Crook and Doderidge because that all that was done after Sir Thomas Buriets Warrant was illegall but they agreed that the Plaintiff might have an Action for the charging of Felony and for all that was done before the said Warrant But Haughton disagreed who conceived that Iudgment should be given for the Plaintiff because the Plea of the Defendant was no justification for what was done before the warrant but at last Iudgment was given for the Defendant Judgment Mills against Marshall IN a Writ of Error to reverse a Iudgment given for the now Defendâ—nt against the Plaintiff in the Common Pleas upon an Action of Debt on a Bond of twenty pounds Hil. 11 Jac. Ror 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James and it was on Condition to stand to the Award of George Cockrell Edward Sureton and William Wasse to arbitrate of and concerning all matters then depending between â—hem so that the said Award be made and delivered to the parties under the hands and Seals of the said Arbitrators before the twenty ninth of January next The Defendant pleaded that the Arbitrators the twenty fourth of January in the sixth year of King James did make their Award of the Premisses by Indenture under their hands and Seals 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease and that the Plaintiff should have liberty to drive his Cattell to the River Eâ—ke c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward a sufficient Hedge by the top of the Scar Sicut terrae praedicti Querentis Defendentis extendunt Anglice as their own Ground goes for security of the Cattell and Sheep which said Hill doth extend to the Land of Henry Facherly unto the Pale which then was between the Land of the Defendant and if any Trees or Woods growing in or neer the Woods of either party shall fall in controversie at any time that it shall be arbitrated by the said Arbitrators three or two of them which Arbitrement was delivered to the parties the same day and the Defendant pleaded that he had performed c. The Plaintiff replyed that the Defendant did not make a sufficient Hedge upon the top of the Scarr Prout terra sua extendit the Defendant said that before the Writ purchased viz. the fourth of April 12 Jacob. at Eshdayle in the County aforesaid he did make a sufficient Hedge upon the top of the Hill aforesaid prout terra sua extendit and so they were at Issue and found for the Plaintiff and Iudgment given and the Defendant brought this Writ of Error And I conceive Iudgment ought to be affirmed Coke 5 Rep. Slingsbles Case If one let white Acro to I.S. and B. Acre to I. D. and covenant with them Et quemlibet eorum that he is Owner each of them may have an Action and Coke 5. Rep. Hurgots Case Submission to an Award so as it be delivered to either of the parties ought to be delivered to each of them 39 H. 6. 7. And all the Court did agree that each of them ought to inclose against his own Land only and so the breach was well assigned wherefore the Iudgment was well assigned wherefore Iudgment was affirmed Hilar. 13 Jac. Crawley against Marrow IN an Ejectment upon a Lease by Robert Faldoc dated the one and thirtieth day of August the thirteenth year of King James of two Houses two Orchards forty acres of Land ten of Meadow and fifty of Pasture in Bridgenorth Habendum from the tenth day of the said month for three years whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him ad damnum c. Vpon not guilty pleaded The Iury found the Defendant not guilty for all except one House and five acres of Land and found further that before the said time the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight was seised in Fee of the said one house and five acres of Land and ten of Meadow and being so seised thereof did enfeoff John Day and Robert Marshall in Fee to the use of John Whitbrooke and Margaret his Wife in Taile the remainder to the right Heirs of John Whitbrooke and that the last of January 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe which money was not paid to Richard in his life time That John Whitbrooke and Margaret had issue John Whitbrooke Knight and after and before the fourteenth of January 8. Jacob. died and before the said day Richard Faldoe made his Will and did make Amphillis his Wife his Executor and died and Amphillis did make Robert Faldoe Esquire and Thomas Shepheard Knight her Executors and died who undertook the Executorship 14. Jan. 8. Jac. Robert Shepeard and Faldoe had a Scire facias to the Sheriff of Middlesex to have execution of the Recognizance whereupon John Whitbrook was returned dead whereupon they had a Scire facias against the Heir and the Ter-tenant whereupon John Whitbrook was returned Heir and Ter-tenant who pleaded that he had no Land that was the Conusors at the time of the Recognizance or ever since by hereditary descent from the Conuzor in Fee and said that he ought not to be charged as Ter-tenant because he hath no Freehold that was the Conusors The Plaintiff replyed that the said John Whitbrook had divers lands by descent from the said Conuzor viz. A house called the Hospitall thirty seven Tenements or Messuages five Cottages one Tost one Dove-house thirty nine Gardens six Barns fifty four acres of Land thirty nine of Meadow and thirty six of Pasture in Bridgnorth and that the said John Whitbrook was Tenant of the Premisses
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
acts of his Servant but those which he does by his commandment as 9 H. 6. 53. by Rolphe If I have a Servant who is my Merchant and he goes to the Fair with an unsound Horse or other Merchandize and sells them the Vendee can have no Action against me Martin You say true for you do not command him to sell the Horse to him nor to no other person in certain Vide Doctor and Student 138. It does not appear that the Plaintiff was lawfully indemnified for it is onely alledged and found that he was imprisoned by the King until c. but it is not alledged or found that this was done by a legal course or according to the Law of that Country but onely by the absolute power of that King and therefore the Plaintiff can have no remedy although there had been a Warranty as Cook 5 Rep. Noke and Anders Case If Lessee for years be outed by a stranger without title he shall not have an Action of Covenant And this Case was argued by Crook for the Plaintiff and by me for the Defendant 29 Janua 15 Jacob. at which time the Court seemed to incline against the Plaintiff And Trinit 16 Jacob. The case was argued by Davenport for the Plaintiff and by Coventry the Kings Solicitor for the Defendant at which time Montague Doderidge and Haughton agreed that the Action would not lie and Crook was absent Judgment And afterwards Michaelm 16 Jac. Iudgment was given by all the Court Quod querens nihil capiat per Billam Trinit 15 Jacob. Lingen against Payn. IN an Action of Debt upon a Bond of 400 l. made the third of October 12 Jacob. and the Defendant demanded Oyer of the Obligation and of the Condition which was That whereas the Plaintiff had devised to Robert Hawkins the Farm of Williamsthorp in the County of Glocester until the Feast of St. Michael the Archangel next if the said Robert upon the said Feast day or any time after upon request made by the Plaintiff his Heirs or Assigns should deliver the possession of the said Farm to the said Plaintiff his Heirs or Assigns and permit the said Plaintiff his Heirs or Assigns to have and enjoy the same after such request and also if the said Robert in the mean time shall not give nor sell any Wood nor commit any waste in the said Farm that then the Obligation should be voyd The Defendant said that the Plaintiff or his Assigns Bar. upon the said Feast or at any time after and before the Bill did not require the said Robert to deliver to the Plaintiff the possession of the said Farm and that the said Robert from the time of the making of the said Bond unto the said Feast did not give or sell any Wood nor make any waste upon the premisses That the 13 of June Replication 12 Jacob. the said Robert being possest of the said Farm and the Plaintiff being seised in Fee of the Reversion of the said Farm the Plaintiff together with John Welford by Indenture made at W. between the Plaintiff and the said John Welford of the one part and Richard Powle and Henry Powle of the other part and inrolled in this Court within six weeks for 1700 l. payd to the Plaintiff did bargain and sell to the said Richard and Henry Powle the Reversion of the said Farm habendum to them and their Heirs And the 30 of Septemb. 13 Jacob. being the next day after the said Feast the said Richard and Henry Powle as the Assigns of the said Plaintiff at the said Farm in W. aforesaid did request the said Robert to deliver the possession of the said Farm to the said Richard and Henry which he did refuse That the said Richard and Henry Powle did not require the said Robert to deliver to them the possession of the said Farm the said 30 of September the 13 Jac. upon which they were at issue Rejoynder The Iury found the possession of the said Robert Hawkins and the seisin of the Plaintiff and the bargain and sale and that Henry Powle 31 Septemb. 13 Jac. did alone come to the capital Messuage of the said Farm without any notice given before of his coming to the said House and there then as Assignee of the Plaintiff did require the said Robert Hawkins to deliver the possession of the said Farm according to the effect of the condition aforesaid and that the possession of the said Farm was not delivered according to the tenor of the said writing but the possession of the said Farm was kept from the said Richard and Henry Powle And if it seems to the Court upon this matter that the said Richard and Henry did require the said Robert to deliver to them the possession of the said Farm then they found it so and did assess costs and damages and if not they found for the Defendant And I conceive that Iudgment ought to be given for the Plaintiff For in Tookers Case 2 Report by Popham Every act made by one Ioynt-tenant for the benefit of him and his companion shall binde the other as payment by one discharges the other and one may prejudice the other in the profits as where a Ward does happen to two Ioyn-tenants and one distrains for the services which is a waver of the Wardship by 1 Ed. 3. this shall binde the other And if two Ioynt-tenants be disseised and one enters this is in Law the entry of both and so it shall be pleaded for when an act is made by one the Law shall adjudg this to be made by him in whose right it is made as in 32 Ed. 3. Bar 264. If one be bound to infeoff another such a day if he be ready by his Attorny to do it it is sufficient for the Law takes the act of the Attorny to be the act of the party and so in the 19 H. 6. 78. to continue an Action and so in 10 Edw. 2. Dower 130. and 9 Ed. 3. 38. If there be two Ioynt-tenants in Fee and one seised in right of his Wife of Land to which the Wife hath title of Dower the one Ioynt-tenant or the Husband may assign the Dower and the reason is given because that when the Husband or one Ioynt-tenant does any thing out of Court that they are compellable to make it shall be intended to be the Deed of the one and the other And so if a Lord by Fealty onely does distrain for Rent and the Tenant brings a Trespass and the Lord justifies because he holds of him by Fealty and Rent and so justifies the Writ and the Tenant says that he does not hold of him moda forma c. and it is found that he holds by fealty onely yet shall the Plaintiff be barred for the matter of the issue is whether the Tenant held of him or not for then the Action lies And so here the matter of the issue is whether a legal request of the
tenth of August next following at the said City did use the art and trade of Starch-making and that he the 21 of September 15 Jacobi did get into his hands by buying and not by Devise Grant or Lease twenty Quarters of Wheat residue of the said 400 Quarters to the intent to convert the same into Starch and the 20 October in the same year did convert the same into Starch and the 26 of October did sell the same to several persons and that every one of the said Quarters at the 21 of September was of price 36 s. But whether the Defendant were guilty of the Ingrossing aforesaid according to the form of the Statute the Iury knew not and therefore desired the Opinion of the Court but if otherwise c. And this Record was removed into the Kings-Bench by a Certiorare Judicium And Iudgment was given against the King and the Informer Moor against Sir George Reynel Marshal of the Marshalsee IN an Action of the Case wherein the Plaintiff declares That he the 15 Jacobi did recover in the Common-Pleas 240 l. Debt against one Gilbert Alsop and 20 l. damages and that the Plaintiff in execution of the said Debt did prosecute the said Gilbert by several Iudicial Writs issuing out of the said Court. And that he by a Writ of Exigi Facias issuing out of the said Court the next Term after the said Iudgment directed to the Sheriff of the City of Exceter and Returnable before the said Iustices Quindena Martini that the said Gilbert the 28 Octob. 15 Jacobi was Out-lawed in the said City at the Suit of the Plaintiff in the Plea of Debt aforesaid unde tunc convictus fuit c. That Michaelmas 15 Jacobi the Plaintiff took out of the said Court a Capias ut lagatum against the Defendant then to the said Sheriff directed returnable Octabis Purificationis That the 8 Octob. 15 Jacobi the said Writ was delivered to the said Sheriff That the 20 January 15 Jacobi the Sheriff took the said Gilbert and held him in his Custody That the 23 Januarii 15 Jacobi a Habeas Corpus was awarded to have the Dâ—â—â—ndâ—nt cum causa c. Lunae proxim post crastinam purificationis At which day he came to the said Court in the Custody of the said Sheriff who returned the said Writ That the twelfth of February the Defendant was committed by the said Court to the Marshalsey the Defendant then and yet being Marshall nevertheless the Defendant the thirteenth of April 18. Jacobi at Westminster did suffer the said Gilbert to escape against the will of the Plaintiff he being unsatisfied his said Debt and damages whereupon the said Plaintiff hath lost his said Debt and damages ad damnum 300 l. The Defendant pleaded that the said Gilbert was committed to him by vertue of the said Writ but said further that he remained in his Custody from the aforesaid twelfth of Febr. untill the twenty seventh of Febr. the 16. Jac. during all which time the Plaintiff never prayed to have the said Gilbert in execution neither was the said Gilbert ever committed at the request of the Plaintiff to the Marshalsey in execution for the said debt and damages And pleaded further that the twenty seventh of Febr. 16. Jac. the said Gilbert did escape against the will of the Defendant which is the same escape whereon the Plaintiff doth declare Upon which Plea the Plaintiff did demur Bridgman for the Plaintiff I conceive Iudgment ought to be given for the Plaintiff for when the Defendant Alsop in the first Action was taken by the Capias utlagatum after Iudgment he was in execution for the Plaintiff Vide Cokes Rep. Vernons Case for in asmuch as the King by the originall Suit of the party is entitled to have all the Goods and Chattels and the Profits of the Land with his body also by reason of the Outlawry it is good reason that if the Defendant be taken at the Suit of the King that as the King shal have benefit by the suit of the party so the party should have some benefit by the suit of the King Resolved by the Court that when he was taken by the Capias utlagatum issuing out of the Kings Bench he shall be in execution for the Plaintiff presently after the Arrest if the Plaintiff will although his body was never brought into the Court and although the Court did not commit him in execution for the party Note that in all Cases when the Defendant may have a Capias ad satisfaciendum and the party Defendant is taken by a Capias pro fine there the Defendant is in execution presently if the Plaintiff wil without any Prayer of the party but when the Plaintiff hath Iudgment and le ts pass his time so that he cannot presently neither by Capias nor by Fieri facias but is driven to his Scire facias there if the Defendant be taken by a Capias pro fine the Plaintiff must pray that he may remain in execution for him but this cannot be done without such Prayer Vide 5. Rep. Frosts Case 22. Assise 74. If one condemned for a Disseisin with force or fees be taken for the Fine yet he shall not go at large if the party prayes that he may remain for his execution and in 11. H. 7. 15 when the party may have execution without a Scire facias the execution for the King shall be prayed for the party and it is not materiall whether there were a Capias in the Originall but otherwise if it be after a year 2. Rich. 3. If one be taken for a fine to the King within the year and the King pardons him yet he may remain for the party And so in this Case I conceive that Gilbert was in execution for the party and if he was not yet the Plaintiff hath proved him in execution from whence he escaped by the default of the Defendant so this Action doth well lye Also the Plaintiff doth charge the Defendant with an escape 13. April 18. Jacobi and the Defendant pleads an escape the 27. Febr. 16. Jacobi which was a year and two daies before the escape alledged by the Plaintiff to which the Defendant hath made no answer and although he concludes that it was the same escape which makes the plea good where the time is not materiall yet it is not in this case for here it is admitted by the Defendant that the Plaintiff might have prayed him in execution so long as he remained in prison but it may be he made his prayer afterwards viz. between the 27. Febr. 16. Jac. and the 13. April 18. Jac. as it may very well be in this case and then the averment of the Defendant is nothing to the purpose Also the Defendant saith that he remained in Prison from the twelfth of February 15. untill the seven and twentieth of February 16. Jacobi during which time the Plaintiff did not pray him in execution in which case
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
Leases of the Recusant but the woman here being married hath no Lands or Goods and therefore the King cannot have any thing and the Goods or Lands of her Husband cannot be taken for his wifes offence she being convicted by Indictment only to which the husband is no party Object But it may be objected that the wife may perhaps survive the husband and then she may have Goods and Lands and the King may seise them I answer that first it may be also that the husband may survive and then the King shall never have any thing Answer as it is resolved in Dr. Fosters Case 2. This Objection is upon two possibilities 1. That the husband may first dye 2. That the wife then shall have Lands and Goods And I have alwaies taken it for a Rule that a possibility shall never take away a present Action or Suit as is proved by divers Cases as in 5. Rep. Harisons Case and 9. Rep. fol. 108. 109. And as it is said in Elmers Case 5. Rep. that two possibilities cannot maintain hospitality or repair a Churche so I say in this case that one such possibility to recover this penalty for the King cannot hinder the Informer of his Suit nor oppose the good reformation of Recusants intended by the Statute for then all marryed women addicted to Popery will be Recusants upon confidence that if they be once convicted by Indictment the which they themselves may procure to be done then they shall not be subject to any penalty during the lives of their husbands who peradventure may survive them and as it was well observed in Dr. Fosters Case that married women are the most dangerous Recusants because that they have the education of their Children and the government of their Servants But it may be objected Object that if the Informer may sue and recover against the husband and wife then if the wife does survive the King shall have these Lands and goods according to the 28 Eliz. or may sue the husband and wife according to the 35 Eliz. for these penalties and so shall be two waies punished for the same offence No such inconvenience can happen Answer for as it is resolved in Dr. Fosters Case the recovery of the Informer being legall shall bar the King as in the 19 Ed. 2. where the Testator was bound in a Recognizance for performing of Covenants this was no bar in debt upon an Obligation but that the Plaintiff may recover and if after such recovery the Statute be forfeited and execution thereupon the Executor shall have an Audita Querela for that he had lawfully administred the goods before for payment of the Bonds And after viz. Mich. 17 Jac. I moved the Court that the Plea of the Defendants was insufficient for that the Statute did ordain that upon every Indictment of Recusancy proclamation should be made and that the body of the Offender should be rendred to the Sheriff of the County before the next Assises or Gaol-delivery and if such Offender so proclaimed does not appear but makes default that he shall be convicted c. And the Defendants have pleaded that Proclamation was made that the body of the said Katherine should be rendred at the next Assises or Gaol-delivery c. and therefore she is not convict at all because she was not proclaimed according to the Statute for this Proclamation differs in two materiall circumstances from the form prescribed by the Statute first in omission of the Sheriff to whom the body is to be rendred 2. In the time for the Statute limits it to be done before the next Assises c. but this Proclamation gives a larger time scil at the Assises Whereupon all the Court agreed that the Plea was insufficient for the causes aforesaid and that now the wife was not convicted by proclamation Wherefore Iudgment Judgment was given for the King and the Informer John Mitton Administrator of George Mitton of Goods not Administred by Alice Mitton against John By. IN an Action of Debt for twenty five pounds for that William Marquess of Winchester the twentieth of October 30 Eliz by Indenture did devise to John By the Father of the Defendant three parts of the Mannor of Newnham in the County of Southampton excepting all Fines Reliefs Amerciaments Courts Woods Copies Fishings and Royalties Habendum from Michaelmas next for one and twenty years rendring six shillings ten pence Rent at the Annunciation and Michaelmas The twentieth of January 1. Jac. John By the Father made his Will and made the Defendant his Executor and died possessed The fourteenth of Novemb. 2 Jacob. the Defendant granted the Term to the Intestate The sixteenth of Novemb. 2 Jac. The Intestate did grant all the Term by Indenture to the Defendant rendring fifty nine pounds Rent at the Annunciation and Michaelmas whereby be entred and had possession of the Land and twenty five pounds of the said Rent for half a year ending at Michaelmas 15 Jacob. was behinde to the Plaintiff after the death of the Intestate which yet the Defendant doth not pay ad damnum c. The Defendant says that the Intestate the twenty sixth of June 5 Jac. did release by Deed to the Defendant all Actions Suits Debts Duties from the begining of the world until the day of the date of the said writing Whereupon the Plaintiff demurred in Law And I conceive that Judgment ought to be given against the Plaintiff For that in Littleton 118. If one doth release to another all Demands this is the best Release that may be and shall enure to the most advantage of him to whom it is made For by such Release all Actions Reals and Personals and Appeals and Executions are gone and extinct and if a man hath title to enter into any Land by such Release his title is gone and 20 Assis 5. where in an Assise for Rent a Release of all Demands was pleaded and the common Opinion was that it was good wherefore the Plaintiff was non-suited and 5 Edw. 4.42 by Danby A Release of all Demands by a Lord to his Tenant is a good bar and extinguishment of his Seigniory for although no Rent was behinde at the making of the Release yet is the Rent always in Demand and 6 H. 7. 15. If the King releaseth all Demands yet as to him the Inheritance shall not be included But in case of Rent or right of Entry by a common person and every thing therein implyed is gone by such Release And 14 H. 8. 9. by Pollard By Release of all Demands the Rent is extinct for Rent is to be had by Demand and if one doth determine the means he hath to come by a thing he doth determine the thing it self And Litt. 118. If a man hath a Rent-service or Rent-charge or Common of Pasture by such Release of all Demands all is gone from the Land from whence the Service or Rent is issuing or the Common of Pasture But if one lets Land to another
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4