Land Rents and Reversion until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons and dyed And Exception was taken to the pleading because it is not specially shewn that the Land devised was holden in Socage And that was holden a sufficient Exception And the Court was of Opinion That the Opinion of Dyer Devises Whiddon and Bendloes in 16 Eliz. was not Law for by the common Law no Land was devisable but by Custom which ought to be pleaded where Title is made by Devise Tenances And now by the Statute all Lands holden in Socage are devisable and but two parts of the Land holden by Knight Service and therefore he who would make Title to himself by a Devise ought to shew the Tenure of it and so it was lately adjudged in the Kings Bench in Thompsons Case And by Anderson and Periam This Feoffment was well executed for the manner of it Attorneys make Livery for the Letter of Attorney is Conjunctim divisim ad intrandum in omnia singula praemissa and upon these words one Attorney may make Livery in one parcel of the Land and the other Attorney in the other parcel and in this case if one of the said Attorneys make Livery in one part only without medling with the residue by himself or by any other the same shall pass for it is not necessary that all pass or nothing at all 7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife brought a Quare Impedit against the Bishop of Exeter and others The Bishop pleaded and demanded Iudgment of the Writ because he said It appeareth by the Writ Quod praedicta Francisca uxor praefati Adriani nominatur in dicto Brevi Domina Francisca Ducissa Suffolk ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian and her the said Frances had lost her name of Dignity and ought to be named Francisca uxor praefati Adriani Wherefore and because the said Frances is named Lady Dutchess of Suffolk in the said Writ therefore he demanded Iudgment of the Writ And afterwards the Plaintiffs did discontinue their Suit and durst not proceed Vide the Case 7 E. 6. Dyer 79. Mich. 4 5 Phil. Mary CCCXII The Queen Due and Kirbys Case THe King and Queen brought a Writ of Disceit against Due and Kirby and declared That Colley was seized of certain Lands in Fee and holden of the King and Queen as of their Manor of Westbury which Manor is ancient Demesne and so seized levied a Fine to the said Due for Conusans de droit c. Due rendred unto Colley for life the Remainder over to Kirby in Fee Colley dyed Kirby entred as in his Remainder Kirby pleaded That the Land is Frank-fee c. upon which they are at Issue which Issue depending not tryed Due dyed It was moved that the Writ should abate But it was allowed for this Action is but Trespass in its Nature for to punish the said Disceit And Due had nothing in the Land but is named only because he was party to the Disceit And no Land is to be recovered but only the Fine reversed Pasc 26 Eliz. In the Kings Bench. CCCXIII. Russels Case RUssel was condemned in an Action of Debt Execution and after the year and day the Plaintiff sued a Capias ad satisfaciend ' against him and he was taken by force of it and committed to the Marshal as in Execution It was holden by the Court That the same was a void Execution and not only avoidable by Error and therefore the Defendant was discharged for it is not at any Execution and the Plaintiff may have a Scire Facias when he will. Pasc 26 Eliz. In the Kings Bench. CCCXIV Wroth and Capells Case BEtween Wroth and Capell the Case was 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment because there were no words of Freehold in it or to prove that the party grieved had any Freehold whereof he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold therefore the Exception was not allowed c. Another Exception was taken to the Indictment for that the words were in unum Tenementum intravit and this word Tenementum is too general and an incertain word and therefore for that cause the party was discharged But the Indictment was further in unum Tenementum 10 Acras terrae eidem pertinent and as to those Acres he was put to answer CCCXV. Pasc 26 Eliz. In the Common Pleas. Execution NOte It was agreed by the Court and affirmed by the Clarks That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe and the Plaintiff hath Iudgment to recover that one Ioynt Execution ought to be sued against them both but if the Suit were by Original and several Praecipe's Execution might be sued forth against any of them Mich. 8 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case IN Dower by Sibill Belfield who was the Wife of Anthony Rous against Thomas Rous they were at Issue upon Detinue of Charters and it was found for the Demandant and it was further found That the Husband of the Demandant of whose Seisin she demanded Dower dyed having Issue Charles Rous Quodque idem Carolus dict' Sibill perceperunt receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands whereof the Demandant now demands Dower and that the said Charles afterwards dyed without Issue after whose death the said Thomas Rous entred c. And Iudgment was given for the Demandant and to recover damages after the death of her Husband CCCXVII Pasc 7 Eliz. In the Common Pleas. Uses BEfore the Statute of Vses a Feoffment is made to the use of a Man sole and a Woman sole and their Heirs and afterwards they inter-marry and afterwards the Statute of Vses came It was the Opinion of the Iustices That they should hold the Land in such sort as they held the Vse scil by several and divided Moieties for by the said Statute the possession shall be executed to the Vse in such Nature Condition and Quality as it was before Mich. 28 29 Eliz. In the Kings Bench. CCCXVIII Sir Gervaise Clyftons Case A Quo Warranto was brought against Sir Gervaise Clyfton 3 Leon. 184. Quo Warranto and shewed That the said Sir Gervaise was seized of a Manor and a Messuage within which he claimed to have a Court with view of Frank-pledge and other Liberties and that without any Grant or Authority usurpavit Libertates praedictas That the Defendant pleaded Quod non usurpavit Libertates praedictas
20 Of omnia bona by an Executor what passeth 22 Of a Reversion by a Bishop 23 Of the Office of a Sheriff 33 Habeas Corpus WHere the cause of Commitment must be retorned upon it Where not 21 Heirs The second Son shall inherit the Land purchased by his eldest Brother notwithstanding the Attainder of the Father 5 Jeofails WHere upon a Jeofail the Court awarded a Repleader 19 Indictment Quare Clausum A. B. fregit held good notwithstanding A. had but a Lease at will of the Land. 6 De uno Equo for a Gelding not good But where Trespass is brought de Equo ellato and the Jury find a Gelding c. it is otherwise ibid. Upon Stat. 13 Eliz. c. 8. for being a Broker in an usurious Contract for which he incurred a Premunire 32 Upon Stat. 5 E. 6. against P. for drawing his Dagger in the Church against J. S. holden void for that it is not said he drew it with intent to strike the party 49 Upon Stat. 8 H. 6. two Exceptions taken to it but disallowed ibid. For stopping quandam viam valde necessariam quashed for want of the word Regiam and for that the party indicted had not any addition therein 121 Infant Makes a Lease for years and at his full age says to the Lessee God give you joy of it the Lease is thereby affirmed 4 If an Infant being in Execution sues a Writ of Error and is bailed the Recognisance shall be by his Bail only that he shall appear and if Judgment be affirmed that they pay the mony and not render his Body to Prison 6 Inmates Who shall be accounted Inmates upon the Stat. of 31 Eliz. 10 Interest Difference between an Interest and a Limitation 33 Judgment Shall not be stayed upon Allegation that one of the Defendants was dead after Verdict for the Court cannot take notice of it judicially nor any of the parties have day in Court to plead it besides the party is not without remedy for he may have a Writ of Error 15 If the Court may reverse their own Judgment Quaere 60 Reversed for Error in omitting the Costs the Jury gave 61 Jurors Where bound by confession of the parties where not 56 A Juror before the Retorn of the Pannel became a Minister of the Church and therefore prayed to be discharged according to the priviledge of those of the Ministry but it was not granted because he was a Lay man at the time of the Pannel made 190 Justice of Peace One cannot be Justice of Peace by Prescription 149 Lease OF a Manor c. with all the profits of a Wood except 40 Trees to the Lessor to take at his pleasure the Wood is not comprised within the Lease but the Lessee shall only have the profits as Pawnage Herbage c. 9 If a man makes a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit the Lessee cannot thereby cut the Trees nor do waste 9 Made by a Corporation void for Misnosmer 11 Good to maintain an Ejectione firmae 14 Leases by a Baron contrary to Act of Parliament void 17 By Tenant at will if a disseisin 35 Leases made by Prebendaries within the Equity of the Statute of 32 H. 8. c. 28. 51 Leet Pound breach is not inquirable there 12 But excessive Toll is ibid. Nobleman SHall be bound with Bayl in a Recognizance to render his Body 6 By 13 E. 1. if he hath not Goods or Lands his Body shall be taken in Execution ibid. Obligation Forfeited 18 Outlary How avoided by Plea in person 22 186 Payment OF Rent before the day by the Obligee doth not discharge him 4 Of a Debt generally by a Surety Executor to the Principal if it shall be as Executor or as Obligor Quaere ibid. Pleadings In a special Justification in Trover the place of Conversion may be traversed but where a Justification is general the County is not traversable at this day 4 It is no good Plea for the Tenant in a Writ of Entry sur disseisin to say that the House in demand is within the City of London whereof he is a Citizen and that King H. 3. concessit civibus c. quod non implacitentur c. extra muros Civitatis praed sed illis rectum teneatur infra Civitatem praed secundum cons Civit. praed For he ought to have shewed That the Citizens for their Lands there ought to be impleaded in the Hustings 13 In Trespass for pulling Hurdles c. the Defendant justified by Prescription to have a free course for Sheep in the place where c. and because the Plaintiff erected Hurdles without leave of the Lord of the Manor the Defendant cast them down prout c. the Plaintiff replyed of his own wrong without cause and held naught for he should have traversed the Prescription 17 Traverse of the place in Trover where good 22 Special Plea to an Assumpsit not good and why 31 Posse Comitatus It differs from Posse Manerij 87 Possessio Fratris Where it shall not be of Copyhold Lands 38 Previledge Denied to the Treasurer of the Records of the Kings Bench and why 81 Prohibition If the Parson Libels in the Spiritual Court against the owner of Lands for Tythes which he severed but a Stranger took and carried away no Prohibition shall issue for that he might plead the same matter in bar in the Spiritual Court. 7 To the Spiritual Court to stay a Suit commenced there for Tythes upon a Prescription shewed in the Kings Bench. 25 Granted to stay a Suit in the Court Christian commenced against an Executor by one for a Legacy bequeathed to him by his Father who willed his Goods should be parted amongst his Children according to the Custom of London 12 Upon claim of Property 150 Quare Impedit May be brought by Executors to remove a Clerk collated wrongfully in the life time of the Testator 15 Recognizance IF a Recognizor of a Recognizance acknowledged before a Master in Chancery dye before it be inrolled it may be inrolled at the Petition of his Executors 8 Common Recovery Feme not party to the Writ of Covenant not bound by Recovery 26 Remainder Where void 21 Resceit One prayed to be received in a Formedon and was ousted of it by the Court. 51 Reservation Of Rents upon a joint Lease 27 Difference between a Reservation and a Contract 29 Retorn Of the Sheriff where void 21 Sale. OF a Bayliwick of an Hundred is not within the Statute of 5 E. 6. c. 16. 33 Of Goods by the Sheriff upon Execution where good where not 20 21 Surrender If Lessee for years take a second Lease from Guardian in Soccage made in his name it is a surrender of the first Lease 7 What shall be said to be a surrender of a Term what not 30 Treason UPon Attainder of Treason who shall seize the Goods for the Queen 34 Tythes Unity no discharge of Tythes 47 Venire Facias GRanted de novo after Verdict for that the first Venire Facias was of K. only for that it ought to have been de Vicento de K. W. 85 Vesturam terrae He who hath Vesturam terrae cannot dig the Land. 43 Those who have Lot-Meadow viz. to change every year according to Lots have not any Freehold therein but only Vesturam terrae 43 Writ DE fama gestu what it is 40 FINIS
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
Marchioness had devised all her Lands and had not left any thing to her Heir for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford of which the Lease upon which the Ejectione firmae was brought was made by the Lord Mountjoy to Insley and into the third part of the residue of the whole land now his meaning was That if the rent was not well passed by the name of the Manor then the same descended to the Heir which was sufficient for him For the Special Verdict found also That the rent was the third part of the value of the whole Land of the Marquess So that thereupon it may be collected That if a man hath three Manors some of them holden in Capite and of equal value and he deviseth two of them and suffereth the third to descend that the Devise is good for every part of the two Manors and the Heir shall not have the third part of each Manor Pasc 28 Eliz. In the Common Pleas. CLXIII Spring and Lawsons Case ONe recovered in an Ejectione firmae and afterwards the Defendant made a new Lease for years and he who recovered ousted him and he brought an Ejectione firmae and the other pleaded the former Recovery It was holden a good bar by all the Iustices but Windham and Periam and by them the same is no Estoppel for the Conclusion shall be Iudgment if Action and not Iudgment if he shall be answered And although that it be an Action personal and in the nature of a Trespass yet the Iudgment is quod habeat possessionem termini sui during which Term the Iudgment is in force it is not reason that he should be ousted by him against whom he recovered for so Suits should be infinite and by Rhodes an Entry pendent the Writ shall abate it CLXIV Hil. 29 Eliz. In the Kings Bench. AN Action of Covenant was brought against one who had been his Apprentice The Defendant pleaded that he was within age The Plaintiff maintained his Action by the Custom of London where one by Covenant may bind himself within age Exception was taken to it that that was a Departure For 18 R. 2. an Infant brought an Action against his Guardian in Socage who pleaded that the Plaintiff was within age The Plaintiff did maintain his Declaration That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage and it was there holden to be no departure Wray Chief Iustice was of Opinion that it was no departure for he said It should be frivolous to shew the whole matter in his Declaration viz. That he was an Infant and that by the Custom he might make a Covenant which should bind him But Quaere of the Matter and of his Opinion for that many learned Lawyers doubted much of it And vide the Case in 19 R. 2. of the Guardian in Soccage Mich. 29 30 Eliz. In the Kings Bench. CLXV Savage and Knights Case ERror was brought upon a Iudgment given in Leicester in Debt Tanfeild assigned Error because in that Suit there was not any Plaint for in all Inferior Courts the Plaint is as the Original at the Common Law and without it no Process can Issue forth and here upon this Record nothing is entred but only that the Defendant Summonitus fuit c. and because the first entry ought to be A. B. Queritur versus C. Clench a Plaint ought to be before any Process issueth and the Summons which is entred here is not a Plaint and for that Cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred But it was answered That that did not help the matter for there ought to be a Plaint out of which Process shall issue as in the Soveraign Courts out of the Original Writs 28 Eliz. In the Common Pleas. CLXVI Grindal Bishop of Yorks Case GRindal Archbishop of York made a Lease for one and twenty years another Lease for years of the same Land being in being not expired by four years and dyed and in time of vacation the Dean and Chapter confirmed it Clench It is a good confirmation A Bishop makes a Lease for years reserving the ancient rent but where it was payable at four Feasts of the year it is now reserved payable once in the year the same is within the Letter of the Statute but not within the intent the same Law if the Rent before was usually reserved to be paid upon the Land now it is reserved to be paid at any far remote place And he said that although his lease was in possession yet not to take effect before the four years of the former Lease are expired cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it for he to whom it was made had but a right to have the Land and he could not surrender And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel Periam At the Common Law a Bishop with the Confirmation of the Dean and Chapter might have made a Feoffment Gift in Tail and a Lease for any Term of years and he spake much What shall be said the Possessions of a Bishop And therefore if a Bishop disseiseth another of certain Lands and makes a Lease thereof under the Seal of his Bishoprick it shall be now his Seal and it shall be his election in what capacity he will take and then this Land is to be reputed parcel of the Possession of his Bishoprick Mich. 29 Eliz. In the Common Pleas. CLXVII Hoo and Hoes Case JOhn Hoo brought a Writ of Intrusion against Richard Hoo depending which Writ the Demandant prayed Estrepement and had it and declared upon it scil That the Tenant after the Prohibition fecit Vastum Estrepementum in prosternendo c. To which the Tenant pleaded Not Guilty But the Plea was not allowed by the Court for there is no Issue in this Case but he might to plead Quod non fecit vastum c. after the Prohibition 29 Eliz. In the Common Pleas. CLXVIII Clinton and Bridges Case DEbt The Condition was for performance of an Award which was to pay 10 l. to the Plaintiff and to do divers other things The Defendant pleaded Quod perimplevit Arbitrium and shewed how the Plaintiff assigned for a Breach that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff and he refused it It was the Opinion of Dyer that the same is a Departure for in the Bar the Defendant pleads that he hath performed the Award and shews how and now in the Rejoynder a Tender and Refusal which is not a performance of the Award although it is not any Breach of it 29 Eliz. In the Exchequer CLXIX The Bishop of L's Case Tenures THe Case of the Bishop of
as the Statute of 11 H. 8. hath ordained in case of a Lease for years where the Lessor his Heirs or Assigns have suffered the recovery and not otherwise And afterwards he argued very much upon the reputation and dignity of common Recoveries that they are the strongest and most effectual Assurances in the Law and therefore they ought to be countenanced rather by the Iudges than in any part diminished or disabled and we ought to consider of them Non ex rigore juris rigida disquisitione but according to the common use and practice what is the ground and foundation of these Recoveries And so Iudges have used heretofore to examine Matters which peradventure according to the strict Rules of the Common Law drew them away But they perceiving that a dangerous Consequence thereby would follow to an infinite number of the Kings Subjects the Law having been otherwise practised before have framed their Iudgments not according to the exact Rules of Law but to avoid the Inconvenience aforesaid according to the common and received practice c. Nam communis Error facit jus and to that purpose he cited a Case very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a Iudgment given in Wales and the Error was in this That the Writ was returnable coâ—am Justiciariis Domini Regis Comitatus c. where it should have been coram Justiciariis Magnae Sessionis Dominae Reginae c and such are the words of the Statute of 34 H. 8. cap 26. the which Sessions shall be called the Kings great Sessions in Wales and notwithstanding that the Iustices in strict consideration of the Law thought the same to be Error for the said Statute had given to the said Court such name yet because it was well known to the Iustices That that was the common course in the said Court ever after the erection thereof And also if the said Iudgment should be reversed for that cause many Iudgments should be also reversed which should be a great disquietness and vexation to the whole Country there they in their discretion thought it convenient to qualifie the Law in that point and so to avoid the said Inconvenience affirmed the said Iudgment So in the case at Bar If this Rent-charge should stand against the said recovery no inconvenience should be so firm but it should be impeached no Title so clear but should be incumbred therefore for the common repulse of many the strict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience it hath been holden for Law when Tenant in tail maketh a feoffment in fee the Feoffee is impleaded voucheth the Tenant in tail now forasmuch as he cometh in as Vouchee it is now said that he cometh in of all his estates I do not see any reason for that but common allowance practice and experience c. It was adjourned c. Mich. 27 Eliz. In the Kings Bench. CCLXIV Baxter and Bartlets Case IN Assise of Freshforce by Baxter against Bartlet upon Null tort Null Disseisin pleaded it was found for the Plaintiff who had Iudgment upon which the Tenant brought Error for that the Assize have generally found the Disseisin but have not enquired of the force And after many motions the Iudgment was affirmed CCLXV. Sir Henry Gilfords Case IT was found upon a Special Verdict That Henry Gilford Citizen and Freeman of London 7 Feb. 6 E. 2. seized of a Capital Messuage Devised the same by these words Lego volo Quod omnes Domus reddit ' quae habeo in Villa de London ordinentur assignentur per Executores meos ad sustentationem trium Capellanorum qui pro vita celebrabunt in Ecclesia Sancti Pauli London Et ad hoc faciend ' Do eis plenam potestatem and made his Executors William Staunton and others and dyed the Will was Proved and Inrolled according to the Custom Afterwards the Executors by their Deed bearing date 7 E. 2 granted and assigned the said Capital Messuage and his other Tenements in London to the Dean and Chapter of Pauls in London and their Successors Habend ' tenend ' in forma sequenti Haec est finalis Concordia c. That the Dean and Chapter shall have the said Lands for ever to find yearly a competent Sustenance of 10 Marks to a Priest to celebrate Mass for the said Henry Gilford and all Souls and that the said Priest at all hours of Divine obsequies should give his attendance in the said Church and faithfully do his Office to say Mass and Prayers according to the Degrees and Customs of the said Church and that the Dean and Chapter should find Bread and Wine and Massing-cloaths and Torch-light and granted the residue of the profits of the Lands to celebrate an yearly Obit and for the perpetual security of the said Chauntry the said Executors granted to the Mayor and Commonalty of London 20 s yearly rent for ever Ita quod the Mayor and Chamberlain for the time being presented a meet and convenient Chaplain to the said Chauntry to the said Dean and Chapter within 15 days after the Avoidance the which Chaplain the Dean and Chapâ—er are bound to admit And the form of the said Conveyance was such We the Executors H. G. do grant and assign to the Dean and Chapter of Pauls all the Lands Tenements and Rents aforesaid to have and to hold to them and their Successors for the sustentation of a Chaplain perpetual and his Clark for the said H. G. and all Souls receiving from the said Dean and Chapter 10 Marks for the celebrating of the said Obit of the said H. G. And that the Grant and Assignment of the said 20 s. to the Commonalty in the relief of the said Chauntry is such scil To have and receive of one Shop in Cheap maintenance of the said Chauntry aforesaid And that the said Dean and Chapter oblige themselves and their Successors and the Church to pay the same to the said Priest and Clark and that it shall be lawful for the Mayor and Commonalty aforesaid to distrain for the said Rents By virtue of which Will and Indenture the Dean and Chapter enter and were thereof seized in their demesne c. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premises had yearly paid 10 Marks for the stipend of the said Priest And further the 27 July 16 H. 8. the Dean and Chapter demised the same to F. Cole for 40 years and that afterwards 15 Maij 36 H. 8. the said Dean and Chapter leased the same to Nicholas Wilford for 50 years rendring 9 l. Rent with Clause of Distress if the Rent was behind by half a year being demanded the Lease should be void which N. W. 1 E. 6. devised the same to his Wife who devised the same to Tho. Wilford the
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
is not punishable by the Law of the Land no more than if many conspire to indict one but do not put it in Execution it is not punishable but if A. saith that B. lyeth in wait to kill him or rob him there an Action lyeth for insidiatores viarum are punishable But the Opinion of the whole Court was that because these words sound in great discredit of the Plaintiff it is reason he have his Action and so Iudgment was given for the Plaintiff Mich. 27 Eliz. In the Kings Bench. CXL The Lord Stafford and Sir Rowland Heywoods Case THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ Exception was taken to the original Writ viz. ad respondend c. Quare colloquium quoddam habebatur inter Dominum Stafford Row. Heywood de assurando Castrum to the said Lord Stafford by the said Sir Rowland c. Dictus Rowlandus Castrum illud non assuravit c. where the said Writ said cum colloquium quoddam habebatur for the cause of the Action is not colloquium habitum but the not assurance of the Castle according to the promise made super colloquium praedictum and for that cause the Writ was abated CXLI Mich. 27 Eliz. In the Kings Bench. NOte by the Court If one who is not a common Informer be barred in any Information or Action upon a penal Statute he shall pay costs notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be for the redressing of divers Disorders in common Informers but if pars gravata be barred in such case he shall not pay costs Trin. 32 Eliz. In the Exchequer CXLII Robinsons Case GEorge Robinson Lessee for years of the Manor of Drayton Basset the Reversion to the King devised his term to his wife as long as she should keep her self a Widow with the Remainder over if she married or died and made his Wife and his Son William his Executors the said William being within age and therefore the administration was committed to the Wife alone and she only proved the Will and afterwards the Wife granted all her Interest to the said William and dyed And by Cook nothing passed by this Grant for William had the same before for every Executor hath the whole Interest Popham contrary for at the time of the Grant the Son was within age and had not administred nor proved the Will therefore in effect the wife was sole Executrix and by Egerton Solicitor if during the said Executorship by the wife one doth trespass upon the Lands the wife only shall have the Action of Trespass without naming her Co-Executor which Cook denied and he cited the Case 10 H. 7. 4 where two Executors are and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession to whom the other Executor releaseth and after the Executor out of whose possession the goods were taken brings an Action of Trespass against the Trespasser who pleads the Release of the other Executor and it was holden a good Plea for the possession of the Plaintiff was also the possession of his Companion The Case was further that Thomas Robinson in pleading shewing that G. Robinson was possessed and the same devised to his wife who granted to William Robinson who devised it to the Defendant And the other side shewed that the said Thomas granted the said term to Paramour and upon that grant they were at Issue if now against his own pleading Thomas might give in evidence that Thomas could not grant for that he had not any thing to grant for if the gift made by the wife to William was void and he had the term as Executor then he could not devise it but his devise to Thomas was void and then Thomas could not grant it and so Ne grant pas It was also shewed that the said Thomas granted the same to Paramour by Indenture if now against that Indenture he might give in evidence such special matter ut supra and if the Party shall be concluded if the Iury shall be concluded to give the Verdict Secundum veritatem facti for they are sworn to say the truth and by Popham and Egerton as well the Iurors as the Parties are bound and concluded by the confession of the Parties on the Record and here all confess that William devised to him virtute cujus he was possessed The Queens Attorney to that said That true it is that Thomas Robinson was possessed but further said that the said Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides Therefore the Iury shall not be received to say the contrary And by Manwood Chief Baron if the Parties admit a thing by not gainsaying it Jurors where bound by confession of the parties where not the Iury is not bound by it but where upon the pleading a special matter is confessed the Iury shall be bound thereby And afterwards the Issue was found against Robinson the Defendant 33 Eliz. In the Kings Bench. CXLIII Applethwait and Nertleys Case IN an Action upon the Case the Plaintiff declared that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter to give to the Plaintiff 40 l. and said he had married his Daughter and yet the Defendant Licet saepius requisitus would not pay it It was moved by Cook in stay of Iudgment that the Declaration is vitious because there is not set forth the place and time when the request was made for the Assumpsit being general it is by Law to be paid upon request Fenner If the promise was expresly to be paid upon request the Declaration was not good And afterwards Iudgment was given for the Plaintiff Hil. 30 Eliz. In the Common Pleas. CXLIV Wats and Kings Case SAmuel Wats Plaintiff in Ejectione firmae against W. King upon a Special Verdict it was found that W. Wallshot was seized in Fee and he with one Oliver Shuttleworth Octab. Mich. 3 4 Phil. Mary levied a Fine Sur Conusans de droit c. to John Hooper who granted and rendred by the same Fine to Oliver for a month the remainder to the said W. Wallshot and to one Anne Cook and the heirs of their bodies c. the remainder to the right heirs of the said W. Wallshot in Fee and that with Proclamation William and Anne intermarry have issue John now alive W. Wallshot 4 5 Phil. Mary levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs W. Wallshot 18 Eliz. died Anne took to husband Richard Stephens and they in the right of the said Anne entred and by Indenture demised the said Land to Richard Hoose the Father Richard the Son and Mary his wife for the term of their lives rendring to the said Richard Stephens and Anne his wife and to the heirs of the body
of the said Anne and of the right heirs of the same W. Wallshot Anne died and if this Lease should bind the Conusee was the question for it was agreed by all that the Issue in Tail was bound by the Fine Quaere the Case was only put but not resolved CXLV Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands an Habere facias seisinam was awarded the Sheriff as to one Acre returned Habere feci and as to the other tarde And that return was shewed to the Court Amercement of the Sheriff and all the Iustices but Periam held that the Sheriff should be amerced for that return being contrary repugnant in it self but Periam said it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had that the Sheriff in time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the case was such Then might the Sheriff make Execution in one Acre in the name of both Acres And if upon a Capias ad satisfaciend against two the Sheriff retorn as to one a Cepi and as to the other Tarde he shall be amerced for his several retorns cannot stand together Mich. 29 Eliz. In the Common Pleas. CXLVI Lees and Lord Staffords Case COmpton made Conusans as Bayliff to Edward Lord Stafford and shewed that Henry Lord Stafford Father of the said Edward and Ursula his Wife were seized of the place where and let the same for years to Edward Lees the Plaintiff Robert Lees and Elizabeth Atwood upon Condition they nor any of them should alien the said Term nor any part of the same without the leave of the Lord or his Heirs Henry Lord Stafford and Ursula died and that the Reversion thereof descended to Edward Lord Stafford and shewed further that the said Edward Lees the Plaintiff had aliened To which the Plaintiff in bar of the Conusans said that the said Edward now Lord Stafford gave License that the said Edward Lees Robert or Elizabeth might alien and that was without Deed. It was conceived by some that this Licence was not of any force to dispense with the Condition because it is uncertain and doubtful in the disjunctive and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty But all the Court was to the contrary For here the thing which is given is but a Liberty and is not to be resembled to a Gift or Interest and the intent of the Lord Stafford was that one of them might alien but not all of them and afterward Iudgment was given for the Plaintiff Trin. 31 Eliz. In the Kings Bench. CXLVII Limver and Evories Case LImver as Administrator of one A. brought Debt against Evory and the case was F. made G. his Executor and G. made H. an Infant his Executor and died and during the minority Administration was granted to the Plaintiff who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator and that was assigned for Error for the Plaintiff ought to bring his Action as Administrator of the first Testator vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed Mich. 33 Eliz. In the Kings Bench. CXLVIII Knevit and Copes Case KKnevit brought Ejectione firmae against Cope and declared 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May 32 Eliz. had let to him a House and two yard Lands containing forty Acres of Land Meadow and Pasture at Tithingham de forecomb in the Parish of Steep c. and upon Not Guilty the Visne was of Tithingham de Forecomb Exception was taken by Cook that the Declaration had not certainty for it is not shewed certain how much Meadow Land and how much Pasture is contained in the said two yard Lands and the Iury may find the Defendant Guilty as to so much Land but not to the residue also he hath not shewed in the Declaration when the Lease was made but only saith that by Indenture bearing date 20 May c. but doth not shew any day of delivery of the Indenture for then is the demise To which Exception it was said by the Iustices That the Declaration as to that was good enough for it shall be intended to be delivered at the day of the date Another Exception was taken to the Visne because that the Visne ought to have been from the Parish and not from Tithingham 11 H. 7. 23 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is well of Tithingham for it may be that it is a Town Cook It is but a Vill conus from which a Visne cannot come CXLIX Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis inter horam secundam matutinam tempore nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear that the Plaintiff should be barred for the said Statute provided for ordinary Travel as in the Case of Archpool who came to his Inn post Sunset ante noctem in tempore diurno which is an usual time for travelling to come to his Inn but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours for it is the folly of the Traveller to take his journy so out of season and the Inhabitants are not bound to leave their Houses and to attend the ways tempore nocturno and another reason was alledged by the Iustices because the said Statute appoints watch to be kept in the time of night à Festo Ascensionis usque ad Festum Sancti Michaelis and this Robbery was done the 23 of April so as it was out of that time and afterwards Iudgment was given against the Plaintiff Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case Estrepement in Partition A Writ of Partition by Barker heir of Gertrude Marquess of Exceter who devised all her Lands to Blunt by which the third part was descended to the Plaintiff and he prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ ought not to be granted for that the Plaintiff might have a more proper remedy upon the Statute cum duo tres c. and in a Writ of Partition no Land is demanded Trin. 29 Eliz. In the Kings Bench. CLI Megot and Davies Case
the Husband dyed the Wife recovered and entred and surrendred to the Lord and by Wray the Stranger to whom the Lord granted it after the Surrender by the Husband should have the Land and not the Lord himself against his own Grant. Pasc 28 Eliz. In the Common Pleas. CLXXXVII Chomley and Conges Case CHomley brought Trespass of Assault and Battery made to his Wife against Cony and upon the general Issue it was found for the Plaintiff It was moved in Arrest of Iudgment that the Action was not well brought for the same being an Action of Trespass done to the person of the wife the Writ ought to be brought and prosecuted in both their Names for now if Iudgment be given for the Husband and he dye before Execution the Wife to whom the wrong was done should not have Execution but the Executors of the Husband and afterwards upon advice the Plaintiff had Iudgment to recover Vide Cont. 9 E. 4. 51. 38 H. 6. 25. Pasc 28 Eliz. In the Common Pleas. CLXXXVIII Blithe and Colegates Case Vide this Case Reported by Cook 2 Part of his Reports REplevin by Blithe and Colegate who made Conusans as Bayliff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage feasant and upon a Special Verdict the Case was That the said Eliz. was seized and took to Husband Christopher Kenne and by an Indenture made by the said Eliz. without the assent of her said Husband by the name of Elizabeth Beckwith bearing date 14 March 14 Eliz. declareth the uses of a Fine to be levied c. 1. To the use of the said Elizabeth for life without impeachment of Waste and after to the use of the Conusees for their lives and after to the use of the said Elizabeth and her Heirs And that afterwards the said Christopher Kenne before any Fine levied in Feb. 20 Eliz. by Indenture between himself and the said Elizabeth his Wife of the one part and R. W. of the other part without the consent of the said Elizabeth declared that the uses of the said Fine so to be levied should be to the use of the said Christopher and Elizabeth for life c. And afterwards the said Fine was levied by the Husband and Wife and the only Question upon the matter was if the uses declared by the Wife or the uses declared by the Husband should stand It was argued by Shuttleworth Serjeant that the uses declared by the Husband should stand and that the Declaration by the Wife should be rejected for a Feme Covert is not sui juris but is sub potestate vâ—ri And therefore â—7 Ass 17. a Feme Covert without her Husband acknowledgeth a Fine the Husband shall avoid it and as to the Declaration of the uses it is no other thing but the shewing of the meaning of the Parties to the Fine how and in what manner the Land of which the Fine is levied shall be disposed of by the Fine but such a power cannot be in a Feme Covert For if an Infant levy a Fine and declare the uses by Indenture the Declaration is void and the Fine shall be to his own use and that was adjudged in the Court of Wards The same Law in case of a man of Non sanae memoriae and if an Ideot levy a Fine and declare uses upon it the Declaration is void and the Fine shall be to his own use and that Case also hath been adjudged in the Court of Wards And by intendment of the Law every Wife is at the disposition of her Husband as in a Praecipe quod reddat against the Husband and Wife the Wife makes default it shall be accounted the default of the Husband for the Law intends that the Wife is ameanable by the Husband 21 Ass The Husband seized in the right of the Wife made a Feoffment in Fee and in making of Livery his Wife interrupts him it was not any interruption or impediment quo minus the Livery operetur for cui ipsa in vita contradicere non potuit c. So in a Praecipe quod reddat against the Husband and Wife the Husband pleads one plea and the Wife another the Plea of the Husband shall be admitted 33 H 6. 43. 89 Ass 1 And the Husband may in some case prejudice his Wife in point of Inheritance as by Cession Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground where it shall be said the folly of the Wife to take such a Husband If the Husband be seized in the right of his Wife they sell the said Land and for Assurance levy a Fine to the Vendee now the Husband alone shall have an Action of Debt for the mony upon the Sale which proves that it is the Sale of the Husband alone which see 48 E. 3. 18. Fenner Serjeant contrary And first he confessed that the Declaration by the Wife is utterly void and also the Declaration by the Husband and therefore when the Husband and Wife levy a Fine the Conusee in judgment of Law is in by the Wife and not by the Husband so as the Husband as to the right is a Stranger to the Land and to the Estate which passeth by the Fine although he be Party to the Fine for that is not for any Interest which he hath in the Land but for the conformity of Law which disables a Wife to levy a Fine without her Husband and therefore it is not any reason that the husband alone shall be received to declare the uses for he is no Proprietor of the Land in right especially forasmuch as in account of the Law the whole passeth from the Wife And the Law in divers Cases frames its Iudgment according to the possession of the Wife and that in acts done by the Husband 14 H. 8. 6 where A seized of a Rent-charge in Fee issuing out of the Land of the Wife A releases the Rent to the Husband and his Heirs the same shall enure to the Wife Vide 38 E. 3. 10. From such Cases the Law respects the nature of the Seisin and the manner of the possession And as to the Case vouched out of Dyer 12 Eliz. where the Husband and Wife were seized of a Messuage to them and to the Heirs of the Husband they suffer a common Recovery and the Husband alone declareth the uses the same is good for in that Case the Fee was in the Husband and always he who hath the Fee ought and may declare the use if all who have interest will not joyn and therefore if Lands be given to two and to the Heirs of one of them if they both joyn in a Fine he which hath the Fee may by himself declare the uses But if there be two Ioyntenants in Fee they both ought to joyn in the Declaration of the uses or otherwise make several Declarations of their several Moieties So if Cestuy que use and his Feoffees joyn in a Fine and make
several Declarations the Declaration of the Feoffees shall stand for that the Land passeth from them So if Cestuy que use and his Feoffees make a Feoffment in Fee 21 H. 7. And to that purpose he put the Case reported by Plowden 15 Eliz. 464. Husband and Wife seized in right of the Wife they levy a Fine sur Conusans de droit come ceo c and the Conusee renders the Land to the Husband and Wife and to the Heirs of the Husband the Husband dieth the Wife discontinues the Land the same is not within the penalty of the Statute of 11 H. 7. For notwithstanding the Wife be now in by the purchase of her Husband yet that purchase is not within the meaning of that Statute because the Law respects the original Seisin which was in the Wife and so it was adjudged Vide Term. Mich. 30 Eliz. Pasc 25 Eliz. In the Kings Bench. CLXXXVIII The Earl of Northumberlands Case THe Earl of Northumberland brought Debt for Arrearages upon Account The Defendant shewed that before the said Account the Plaintiff of his own wrong imprisoned the Defendant and he so imprisoned assigned Auditors and so the Account was made by Duress It was holden a good Plea by the Iustices of both Benches Pasc 25 Eliz. In the Common Pleas. CLXXXIX Clark and Kemptons Case IN Ejectione firmae the Case was 1 Leon. 141. Smith and Burds Case Co. 10 Rep. 129. b. Payment of Rents The Defendant leased for years to the Plaintiff rendring rent payable at Michaelmas and the Annunciation or fourteen days after Et si contingat the said rent to be behind post aliquod terminorum vel festorum praedictorum in quo solvi debet by the space of 14 days post aliquod festum praedict that then c. It was adjudged in this Case that the Lessee had fourteen days after the said fourteen days mentioned in the Reservation without danger of the penalty of the condition and the last words post aliquod Festorum praedict for the contrariety shall be rejected Pasc 31 Eliz. In the Kings Bench. CXC Harris and Whitings Case DEbt upon an Obligation by Harris and his Wife as Executors of Giles Capel against Whiting the Condition was that if the Obligor before the Feast of Pentecost pay such a sum so as the Obligee be ready at the payment thereof to enter into a Bond of 200 l. with Sureties to purchase such Land c. that then c. The Defendant pleaded that he was ready to pay c. and that the Obligee was not ready to enter into such Bond ut supra The Plaintiff Replicando said that he was ready absque hoc that the Defendant was ready to pay It was moved that the Traverse was not good for the first Act here was to be done by the Obligee viz. to enter into the Bond ut supra for otherwise the Obligor had not any means to compel the Obligee to enter into it But by Wray Chief Iustice the first Act is to be done by the Obligor and at the Payment the other party is to do that which to him belongs to do Trin. 29 Eliz. In the Kings Bench. CXC Ralph Morris Case RAlph Morris and his wife libelled against one in the Ecclesiastical Court for that the Defendant called the Wife of the Plaintiff Veneficam Sortilegam Incantatricem Daemoniorum And now came the Defendant into the Kings Bench surmising that the matter of the Libel is determinable by the Law of the Land and thereupon prayed a Prohibition and it was holden that although the Offence of Witchcraft be in some cases punishable in our Law yet the same doth not take away the Iurisdiction of the Ecclesiastical Law and to call one Witch generally an Action doth not lye in our Law as it hath been adjudged But to say He hath bewitched such a one an Action doth lye And by Wray Witchcraft which is made Felony by any Statute is not punishable by the Ecclesiastical Law but in case of Slander upon such a Witchcraft such slanderous words are of Ecclesiastical Iurisdiction and for Witchcraft which is not Felony the Ecclesiastical Court shall punish the party and afterwards in the principal Case a Consultation was awarded Trin. 29 Eliz. In the Common Pleas. CXCI. Tyrrels Case TYrrel Warden of the Fleet of an Estate of Inheritance let the said Office for years and afterwards is condemned in London in many Actions of Debt and is there detained in Execution for the sum of fourteen hundred pounds and now one Iden sued the said Tyrrel in the Common Pleas in an Action of debt for 50 l. and had Iudgment to recover and thereupon the said Tyrrel is brought to the Bar and Iden prays he be committed to the Fleet in Execution for his Debt It was first moved by the Court if there was not a practize between Iden and Tyrrel for to deliver him out of the Compter in London to a more easie Prison c. But it was moved by Fenner who was of counsel with the Creditors in London that it should be very dangerous to commit Tyrrel Prisoner to the Fleet because he had the Inheritance of Custody of the said Prison and if the Lessee under whose guard he shall be surrenders his Interest or if he doth not pay his Rent so as in default thereof Tyrrel re-enter or if that the Term expire before that the Creditors of Tyrrel be satisfied then here is an Escape and discharge of Execution and we are without remedy But as to that it was said by Rhodes Windham and Anderson That if the Lessee surrender it shall be an Escape in him and he shall answer for the same Afterwards by Order of the Court Tyrrel was committed to the Fleet in Execution and the Sheriffs of London discharged Mich. 29 Eliz. In the Common Pleas. CXCII Owen and Morgans Case THe Case between Owen and Morgan which was agreed Trin. 29 Eliz. was this Richard Owen was seized of Ante 26. Post 222. c. and levied a Fine to Owen and Morgan and to the Heirs of Owen and they granted and rendred the said Land to the said Richard and Lettice his Wife not Party to the said Writ of Covenant nor to the Conusans and to the Heirs of the body of the said Richard the Remainder over to the said Owen now Demandant in Fee The Husband alone without the Wife suffered a Common Recovery the Wife died the Husband died without Issue If this Recovery by the Husband only should bind the Remainder was the Question And now the Lord Anderson declared openly in Court for himself and in the name of his Companions the other Iustices that the Demandant ought to have Iudgment that the said Recovery should not bind the Remainder But first he spake to the Fine it self for the Wife is not named in the Writ of Covenant nor the Conusans but in the Render the Land is rendred to the Husband and Wife and the Heirs
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy to his own use the Defendant promised to pay to the Plaintiff 60 l. and upon this matter Iudgment was given and now a Writ of Error was brought and assigned for Error because it is not shewed in the Declaration that the Bills were sealed or that they were made to the Plaintiff and here is not any consideration for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse Godfrey If the mony be not paid at Roan to the Defendant he shall have an Action upon the Case for this is an Assumpsit in Law which Wray concessit for it is a mutual promise and agreement And it was argued to the contrary that here is not any sufficient consideration for it doth not appear that the Defendant hath any remedy for to recover the mony And 13 Eliz. it was holden that where the Plaintiff declared in an Action upon the Case that in consideration that he had delivered a Bill of Debt to the Defendant and hath made a Letter of Attorney upon it c. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff notwithstanding that might release the debt or revoke the Letter of Attorney and so defeat the Defendant of the whole profit c. that the Action upon the matter did not lye Also for another cause the consideration is not sufficient for it is illegal because maintenance but if it was upon the consideration precedent it had been good enough As if J be indebted to A. and B. is indebted to me J. may assign to A. the debt which B. oweth me Golding Although the consideration be but of small value yet it is good enough And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it yet it is good and also though the consideration be Executory yet it is valuable for if the mony be not paid at Roan the Defendant shall have an Action upon the Case against the Plaintiff It was also objected that upon the Declaration it doth not appear that the Defend if the two Bills be not paid may have an Action upon the Case against the Plaintiff for there is not any express Assumpsit on the Plaintiffs part that the monies due by the Bills to the Plaintiff shall be paid to the Defendant for if it had been so then it had been good for then there had been a reciprocal promise which is not here nor can be collected by any words in the Declaration Cook It doth not appear upon the Declaration by whom nor to whom the mony due by the two Bills shall be paid for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration Quod Clench Gawdy concesserunt The Case was adjourned CCIV. Temps Roign Eliz. THe Case was A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee his Executors and Assigns within three years next ensuing that then c. The Feoffee hath Issue three Sons whom he makes his Executors and dyeth before the day of payment The Ordinary commits Letters of Administration to J. S. during the minority of the Executors It was the Opinion of Dyer that it was the surest way for A. to pay the monies to the Executors no withstanding the administration committed to another for the Administrator in such Case is but a Bailiff or Receiver to the Executors and shall be accountable to them which Harper concessit And Manwood said That if in that Case the monies be paid to one of the Executors it is sufficient and the monies to be paid upon that conditional Feoffment are as a sum in gross and not in the nature of a Debt quod caeteri Justiciarii concesserunt CCV Temps Roign Eliz. A Lease is made of certain Lands for years Proviso that the Lessee shall not put his Cattel upon the Land from Michaelmass to St. Andrews Tide the Question was If this Proviso and Restraint shall reach for the whole Term or but to the first year Dyer Conditions are stricti juris and ought not to have liberal constructions therefore he conceived that the condition should be restrained to the first year and should not further extend Manwood If I be bound that I will not go to London between Easter and Michaelmas it shall not extend only to the first year after the date of the Obligation but for my whole life Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Case ACtion upon the Case by Doughty against Prideaux upon these words Thou art a wicked and perjured Fellow 3 Leon. 269. and art forsworn in the Court of Star-Chamber as it appeareth by an Exemplification here under the Seal of that Court The Defendant justified by reason of a Bill exhibited in the said Court by one Brooks against the now Plaintiff for conspiring with another to endite the said Brook of certain Felonies and the Defendant now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy and Sentence was given in the said Court against the now Plaintiff ubi revera such Conspiracy was The Plaintiff by Replication said That the said Brook was arraigned and endicted upon the said Indictment and prayed his Clergy whereupon it appeared that the said Brook was not legitimo modo acquiet ' and the same can be no Conspiracy in the now Plaintiff to prove the said Brook to be indicted And by Walmesley and Periam the Replication is not good for it may be that Brook was acquitted and yet that the Plaintiff conspired upon which a Writ of Conspiracy perhaps will not lye but an Action upon the Case without doubt for the Replication doth not prove that the Plaintiff did not conspire but that the Plaintiff was not punishable for such Conspiracy CCVII. Pasc 33 Eliz. In the Common Pleas. AN Abbot made a Lease to three men for eighty years and in the end of the said Lease there was a clause Proviso That if they dyed within the said Term that then the Lessor might enter The Possessions of the Abby came to the King who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years to begin after the Expiration Determination or Surrender of the former Lease The three Lessees dyed within the term If J. D. might enter before J. S. had entred was the Question It was the Opinion of the Iustices that he could not for it is in the Election of J. S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction Trin. 31 Eliz. In
that the same is not any Claim to avoid the said Fine upon the Statute of 4 H. 7. Pasc 29 Eliz. CCXIII. The Queen and Sir John Savells Case A Bill of Intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence and upon Issue joyned the matter was tryed by the Records and thereupon Iudgment was given for the Queen and an Injunction for the Possession awarded accordingly Sir Robert dyed and now Sir John Savell Son and Heir of the said Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The perclose of which Writ was ad grave damnum ipsius Johannis Savell filii haeredis dicti Roberti It was objected against the Writ That no Writ of Error upon the said Statute of 31 E 3. lay upon such proceedings which at the time of the making of the said Statute was not in force For tryal of an Issue in the Exchequer by Record was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon such Iudgments which were given by Verdict Confession or Demurrer and not upon tryal by Records which was given but of late times But to this objection it was answered by the Lord Chancellor and the other Iudges That long time before the said Stat. of 33 H. 8. Issues joyned in the Exchequer have been tryed by the Records and he when he was the Queens Solicitor had seen divers Presidents to that intent in the time of Hen. 6. Mich. 29 Eliz. In the Kings Bench. CCXIV. Houtiers Case DEbt was brought upon a Concessit Solvere according to the Law of Merchants and Custom of the City of Bristol Exception was taken because he did not mention the Custom in his Declaration And because in the end of his Plea he saith Protestando se sequi querelam secundum Consuetudinem Civitatis Bristol the Plea was awarded good and the Exception disallowed CCXV Mich. 29 Eliz. In the Kings Bench. A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet And the Indictment was That he at the Leet of the Earl of Bath super Sacramentum suum coram Senescallo c. Exception was taken to it because it saith at the Leet of the Earl of Bath whereas every Leet is the Kings Court although that another hath the profit or commodity of it And it was said that the Steward of a Leet is not an Officer of Record and also his Oath was If he had done a Rescous or not with which he was charged And by Drew It is not within the Statute for it ought to be either before a Iury in giving Evidence or upon some Article But the Iustices in that were of opinion against him Mich. 25 Eliz. In the Common Pleas. CCXVI Howen and Gerrards Case IT was adjudged in this Case That Partition of Lands made by the Bayliff of a Franchize was not good within the Statute of 31 H. 8. of Partition but it ought to be done by the Sheriff himself Mich. 28 Eliz. In the Kings Bench. CCXVII Strangder and Burnells Case AN Action upon the Case of Trover of Goods and converting them to his own use in Ipswich The Defendant pleaded That the Goods came to his hands in Dunwich in the same County and that the Plaintiff gave to him all Goods which came to his hands in Dunwich absque hoc that he is guilty of any Trover or Conversion in Ipswich It was holden to be a good manner of pleading by reason of the special Iustification Vide 27 H. 6. But where a Iustification is general the County is not traversable at this day Vide 19 H. 6 7. 62 Eliz. In the Common Pleas. CCXVIII Hodges Case IF one enfeoffeth his Son and Heir apparent and no use is expressed nor Consideration it was said It should be to the use of the Son and so hath the Law been taken and so it is in Case of a Covenant to stand seized to the use of the Son. The Court said that there was a difference betwixt the Cases or in the Case of Feoffment they seemed to be of Opinion that the Deed should have no operation but in the other Case it may be otherwise upon construction of the Result of the Vse to the Father 28 Eliz. In the Kings Bench. CCXIX. Mark Stewards Case AN Assumpsit before Action brought may be discharged by word otherwise after Action brought Mich. 30 Eliz. In the Common Pleas. CCXX Verney and Verneys Case IN Dower by Verney against Verney The Case was That Lessee for years by Fine to whom the Land was rendred by Fine for years upon the Default of the Tenant prayed to be received and it was Counter-pleaded because the Statute of Gloucester gave no Receit but where the Termor might have Recovery by Writ of Covenant but where the Lease as in our Case doth commence by render by Fine there cannot be any recovery by Covenant But it was the Opinion of the Lord Anderson That such a Termor shall be received CCXXI Mich. 32 Eliz. In the Exchequer Chamber IN the Exchequer Chamber before the Chancellor Treasurer c. A Writ of Error was cast upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen for the Defendant That the Writ of Error ought to abate for false Latine for the Writ is Pertenet where it ought to be Pertinet But by Manwood Anderson and Wray The same is no Exception but notwithstanding that the Court may proceed to the Examination of the Errors For the same is not properly a Writ but rather a Commission to the Chancellor Treasurer c. and therefore it was ordered that the Party should proceed to the assignment of the Errors Mich. 31 Eliz. In the Exchequer CCXXII The Queens Fanes and the Archbishop of Canterburies Case THe Queen brought a Quare Impedit against Fane 1 Leon. 201. the Archbishop of Canterbury the Bishop of Chichester and Hudson Incumbent and counted that John Ashburnham was seized of the Advowson of Burwash and was Outlawed in an Action of Debt during which Outlawry in force the Church voided by which it did appertain to the Queen to present The Archbishop and Bishop pleaded that they claimed nothing but as Metropolitan and Ordinary Fane pleaded That King E. 4. ex gratia sua speciali c. and in consideration fidelis servic c. granted to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia Bona Catal. Tenentium residentium non residentium aliorum resident quorumcunque hominum de in Castro Baronia c. seu infra eadem pro numero debit c. tam ad sectam Regis c. quam c. utlagatorum Et quod ipsi liceret per se vel ministros suos c. and from him derived to
was That Francis Bunny was seized and 1 May 20 Eliz. by Deed indented enfeoffed N. H. to the use of the said Fr. Bunny for term of his life the Remainder to D. in tail the Remainder to E. in tail the Remainder over to F. in Fee In which Deed of Feoffment a Proviso was That if it should happen one P. P. to dye without Issue Male of his Body that then it should be lawful for the said Fr. Bunny at any time during his life by his Deed Indented to be Sealed and Delivered in the presence of three credible Witnesses to alter change diminish or amplifie any use or uses limited by the said Deed aliquem usum vel usus inde alicui personae c. Limitare post mortem ipsius Fr. to begin After which the said Fr. Bunny 1 Aprilis 23 Eliz by his Deed Indented did renounce relinquish and surrender to the said N. H. D. E. F. all such Liberty Power and Authority which he had after the death of the said P.P. without Issue ut supra And further remised released and quit-claimed to them the said Condition Promise Covenant and Agreement and all his said Power Liberty and Authority and further granted to them and their Heirs that at all times then after as well the said Condition Promise Covenant and Agreement as the said Power Liberty and Authority should cease and to all purposes should be void after which P. P. dyed without Issue 1 Maij 23 Eliz. after which 20 March 24 Eliz. the said Fr. Bunny by Indenture between him and the said D. Sealed and Delivered ut supra altered the former uses and covenanted and agreed with the said D. that from thenceforth the said N. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs c. And note that in this Case Fr. Bunny being but Tenant for life enfeoffed one Tomson upon whom the said D. entred for a Forfeiture And it was argued by Altham That by the Feoffment by Fr. Bunny to Tomson the Liberty and Power aforesaid was not extinct or lost for this Liberty and Power was not then a thing in esse for then was P. P. alive and also the Liberty is meerly collateral to the Land whereof the Feoffment was made 39 E. 3. 43. Fitz The Son and Heir apparent disseised his Father and thereof made a Feoffment to a stranger the Father dyed now against his own Livery the Son shall not enter but if the Son dyeth then his Son shall enter which proves that the Livery is not so violent to determine a future right but that afterwards it may be revived à fortiori in our Case where the thing pretended to be extinct is meerly collateral 36 E. 3. Fitz. garr 69. In an Assise of Common the Release of the Father with Warranty is not a bar because it is of another thing 15 H. 7. 11. Cestuy que use wills by his Will that his Feoffees shall sell his Lands and dyes the Feoffees make a Feoffment to the same use yet they may well Sell so as against their Livery the authority to sell remains to them And he put Brents Case Dyer 340. A future use limited to a Wife which shall be shall not be prevented by a Fine or Feoffment and so by the Statute of fraudulent Conveyances 27 Eliz. cap. 4. where a Conveyance is made with clause of Revocation if afterwards the party who made such a Conveyance shall Bargain Sell or Grant the said Land to another for Money or other good Consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the latter Purchasor shall be void c. The other matter was admitting that the said Power and Liberty be not extinct by the said Feoffment if by the Indenture of Renunciation Relinquishment Release c. it be destroyed and he said that a thing which is not in esse cannot be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before it comes in esse 11 H. 6. 29. Br. Damages 138. In Detinue the Defendant would confess the Action if the Plaintiff would release the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not Interest in the Damages but he is intituled to them by the Iudgment So Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Tenant releases to him who recovers and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding his release may enter for his Title which accrued to him by the reversal was not in esse at the time of the release Vide 98. contr And it was adjudged 23 Eliz. in the Case of one Falsor That where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the term that then the residue of his term should go unto his Daughter which should be then unpreferred and dyed his Daughter unpreferred released to her mother all her right in the said Land the mother dyed within the said term the release shall not bind the daughter for that at the time of that release she had no title Cook to the contrary And he said That by the Feoffment the said Power and Liberty is extinct And he agreed the Case cited before 15 H. 7 for in such Case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7. 1. The Husband makes Discontinuance of the Lands of his Wife and takes back an Estate to him and his Wife by which the Wife is remitted they have Issue the Wife dyeth the Husband shall not be Tenant by the Curtesie for he hath extinguished his future right by his Livery 12 Ass P. ultimo A Praecipe against A who loseth the Land by an erronious Iudgment and after Execution had enters upon the Demandant and makes a Feoffment his Writ of Error is gone 38 E. 3. 16. In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant by Scire Facias by Writ of Disceit reverseth the Iudgment now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6. 44. A. recovers against B. by false Oath and after Execution had B. enters and makes a Feoffment to a stranger who Enfeoffs him who recovers it is a good Bar in an Attaint 27 H. 8. 29. The Feoffees to an use are disseised the Disseisor Enfeoffs Cestuy que use who Enfeoffs a stranger now by that Feoffment his right to the use is gone And as to the release the same is not properly a release but rather a defeasance to determine the Power and Authority aforesaid as if A enfeoffed B. with Warranty and afterwards B. covenants with A. that the said Warranty shall be void
he could not put in a true Inventory and upon that the Plaintiff prayed a Prohibition surmising that he himself claimed Property in the said Goods and the Ecclesiastical Court would not allow of it and the Trial of the said Goods did belong to the Common Law And a Prohibition was granted Trin. 33 Eliz. In the Kings Bench. CCLXII Mountjoyes and Andrews Case IN Scire Facias upon a Iudgment in Debt The Defendant pleaded that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leiceâ—â—er by force of which the said Sheriff took divers Sheep of the Defendant Execution adhuc doth detain them Retorn of Writ It was holden by the Court a good Plea although he doth not say that the Writ was returned for the Execution is lawful notwithstanding that and the Plaintiff hath remedy against the Sheriff CCLXIII Vide this Case reported by Cook 1 Part by the name of Capells Case THe Case between Hunt and Gately in the Exchequer Chamber was now argued by Fenne That the Rent granted by him in the Remainder upon an Estate tail is good and shall bind the Land after the Estate tail determined notwithstanding the common Recovery suffered by the Tenant in tail in possession Before the Statute of Westm 2. of Donis Condic c. no Remainder could be limited upon an Estate tail for that which remained in the Donor was but a possibility and therefore then a Formedon in Remainder did not lye But the said Statute which provided a Formedon in the Descender provided also by Equity a Formedon in the Remainder for a Formedon in the Reverter as appeareth by the said Statute was in use in Cancellaria And now here in our case is a Remainder lawfully vested in the Grantor which he may dispose of as he sees good and therefore when he grants a Rent-charge out of it the same is a thing vested in the Grantee and by no subsequent act can be divested and although the Estate which was charged be now charged by the Recovery yet it is the same Land which was charged and therefore the charge shall continue as if a gift in tail be rendring Rent and the Donee levieth a Fine yet the Rent remaineth and the Donor shall distrain 48 E. 3. 3 9. So here If after the grant of this Rent Tenant in tail in possession levies a Fine by which the Remainder which was charged is discontinued and afterwards the Conusor dyes without Issue the Grantee shall distrain upon such possession which passed by the Fine As if A. lease to B. for life and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes although that A. cannot re-enter but suffers the said torcious Estate gained de novo by wrong to continue yet B upon such possession shall distrain for the Rent for it is the same Land which was charged and by Law a thing in abeyance may be charged As if a Parson grant a Rent-charge to begin after his death and the Patron and Ordinary confirm it it shall bind although the Grant doth not take effect in the life of the Grantor but when the Freehold is in abeyance So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage the same is good and shall bind the Successor and yet at the time of the Grant the Freehold of the thing granted is in abeyance Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton Jus concerning a real thing is threefold 1. Jus terrae scil the Ownership of the Land. 2. Jus in terra as a Rent Common c. 3. Jus ad terram scil Right permanent And by this Common Recovery in our case Jus terrae shall be bound but not Jus in terra And he said That if Land be given to A. in tail the Remainder to the Kings Villain in Fee and before any claim by the King A. suffers a common Recovery and dyes without Issue this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery where a Parson made a Lease for years and afterwards in a Quare Impedit brought against him and the Patron they pleaded faintly to the intent to make the Lessee lose his Term now such a Lessee cannot falsifie in such case the Parson by another way might have defeated the Lease as by Resignation but in our case the Grantor of this Rent by no way might defeat his Grant And he said a common recovery did not bind Dower therefore nor this rent And if Tenant in tail in possession grants such a rent and after suffers a common recovery the rent shall stand why not also in the case of a remainder for upon them both as well the remainder as the possession the recovery operatur And recoveries shall always bind the possession and no farther and shall not disprove the right but the possession And the recovery by it self doth not bind the possession but in respect of the Voucher without which no recovery shall bar and that in respect of the recompence which the Law presumes c. which recompence cannot extend to this Rent-charge and then there is no reason that he to whom it was granted should be prejudiced by this recovery and always in case of recompence the Law is very precise As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice a litigious Benefice is not a recompence intended nor shall determine the Annuity nor a Benefice of 15 l. If two make an exchange for their Lives and one of them dyeth the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live Ad quod Manwod Chief Baron subsidebat And there is a great difference between a Lease for years and a Rent-charge for at the Common Law upon such Recovery the Lessee for years was bound contrary of a Rent-charge for it was unreasonable that a thing not demanded by the recovery should be bound by it especially because that the Land rendred in value shall not be charged with the rent Walmesley Serjeant contrary A remainder upon an Estate tail is debile fundamentum and cannot uphold with assurance a Rent-charge against a common recovery and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged for an Estate-tail is in Law presumed to be perpetual and therefore what Lands are entailed by Fee the words of the Fine are Sibi haeredibus de Corpore suo exeuntibus imperpetuum And it is the common learning in our Books that every Estate of Inheritance be it Fee-simple or Fee-tail shall be
ordinary Condition But if the Condition was to be performed by Sir Francis in his proper person or by subscribing his name with his hand or such like act then it had been otherwise The case of Littleton 76. A Feoffment in Fee is made upon Condition that if the Feoffee pay to the Feoffor such a day 10 l. then the Feoffee shall have the Land to him and his Heirs for ever and before the day the Feoffee makes a Feoffment over upon a Condition the second Feoffee tenders the Mony it is a good tender and yet the words of the Condition do not extend so far but only to the first Feoffee who was privy to the Condition so where the payment is to be made on the part of the Feoffor and he dyes before the day tender by the Heir is good and here this is a general Condition and therefore may be performed generally without being restrained to any person for the performance of it And here we are in an Act of Parliament Quod omnia potest 32 H. 8. gave to Assigns of the Reversion which always before were fixed in privity Monks dead persons in Law by Act of Parliament made capable of Purchase and Inheritance Gavelkind and Borough-English made discendable at the common Law which the King could not do An Alien born is made Denizen by the King by which he may Purchase but yet not inherit But an Act of Parliament may make him heritable Corruption of Blood the King cannot take off but it ought to be purged by Act of Parliament As to the Statute of 29 Eliz. it hath made the Conveyance void as hath been objected for the Terms within the two years limited by the Statute are past and then the Condition is gone as against Intail upon Condition if the Intail be spent the Condition is gone But I conceive that until the two years be fully expired the Estates limited by the Conveyance continue and the Condition also The words of the said Statute are Shall within two years after the last day of this Session c. openly shew and bring forth into the Queens Court of Exchequer his Conveyance and there in the Term time in open Court shall offer and exhibit the same These words shew that the parties ought to shew the Conveyance within two years but doth not speak of any term and in the other Clause it speaks of term but not of two years so the time in which it ought to be shewed is two years but the time of the Inrollment might be in the term after the two years well enough for there are two two times in the Statute the one to shew the Conveyance the other for the Inrollment of it and two things are to be done Shewing and Inrollment and two times answerable to them two years and Term-time And he took it for a general Rule that time once expressed shall not be afterwards by implication abridged And if by your construction you make the time to end with the Term you abridge the time by a Month at least which was expressed before two years And for the reasonable construction of times Vide 28 H. 8. Dyer 44 Boulds Case If it fortune Joan Moll ' to decease before the Feast of c. without Issue Male of her Body then living c. this word then shall be referred to the Feast and not to the time of the death of the party for as the reason of the Case is where the intent of the parties is to have continuance in the thing the thing which they would have continue to the most extream time as may be And if Lands be given to one and the Heirs Males of his Body begotten and if he dye without Heirs of his Body then it shall remain over by this Implication if he dyes without Heirs of his Body the Donee shall not have general Tail but it shall be intended such Heirs to whom it was limited before And in our Case here there are some weeks between the ends of the Terms and the end of the two years and those weeks shall not be utterly void for in these weeks after the end of the Terms those of the Chancery shall take Conusance of Deeds And here in our Case the party was only to shew the Deed which might have been done at any time after the Terms so as it be within the two years if one be bound with Condition That if within two years he pay the Queens Silver upon a Fine to be levied and then and there in Term time ingross the same if he pay the Queens Silver within the two years he hath saved his Bond although that the Fine be not ingrossed until a Term after the two years So if one be bound to acknowledge a Deed in the Chancery within two years and there in the Term-time to Inroll the same if he do acknowledge it within two years it is sufficient and he may inroll it afterwards So in our Case the Estates continuing and the Condition also till the two years are fully expired therefore the Condition is well performed for the Estate continues defeazable by the Condition because within the two years and to abridge time is a violent thing And now Sir Francis is alive so as the power of the tender of the power of the King continueth And I conceive That the Certificate is sufficent without any Office and the party grieved may have traverse to it And I hold clearly that as this Case is Office cannot be found Office properly is to be found of things in paâ—s which happen before the Office as the Nonage of an Heir or of an Alien born or of a Villain here to entitle the King an Office is necessary to find things which have hapned before and without doubt this Certificate is traversable as the Certificate of the Bishop of Recusancy and also the Certificate of the Commissioners of Sewers and here those who are to certifie are to certifie a thing done by themselves and therefore there needs not any Office because they do it virtute Commissionis If a Commission be awarded to take a Surrender of the Bishoprick of N. or of a Pentioner c. there needs not any Office to find it and in the time of King Hen. 8 divers Abbots surrendred their Possessions to him of which no Office was found And now for conclusion The Queen comes in paramount her first Estate which she had pur auter voy scil by Attainder and now she hath it by the Condition and so paramount the Title under which the Defendants claim And afterwards Iudgment was given for the Queen Trin. 31 Eliz. In the Common Pleas. CCLXXVII The Scholars of All Souls and Tamworths Case This Case is Reported in the first Part of Leonard IN a Writ of Right by the Colledge of All Souls in Oxon against Tamworth the Writ was Quod clamat tenere de nobis in liberam puram perpetuam Elemosinam And Exception was taken
the whole matter is not any sufficient demand and so Wray Chief Iustice said CCLXXVIII Trin. 29 Eliz. In the Common Pleas. ACtion upon the Case was brought for these words Thou wouldst have stoln my Cloak if J.S. had not come in the way and thou art a Thief and I will prove it After Verdict it was found for the Plaintiff It was objected in Arrest of Iudgment That these words were not actionable For the first words Thou wouldst have stoln my Cloak c. do not by Law give any cause of Action and when the words subsequent Thou art a Thief are depending apon the said former words and to be construed as spoken in respect of them and upon that intent But the Opinion of the whole Court was to the contrary And that the said latter words should be taken and construed in abstracto by themselves as in gross and not as dependant upon the former words and afterwards Iudgment was given that the Plaintiff should recover Mich. 26 Eliz. In the Common Pleas. CCLXXIX Hungerford and Watts Case HUngerford brought an Action upon the Case againts Watts Words for that the Defendant had said That the Plaintiff had caused the Defendant to be arrested with forged Writs It was objected That the words were not actionable for it might be that the Writs were forged by strangers without the privity of the Plaintiff and that the Plaintiff not knowing them to be forged procured the Arrest But the Opinion of the Court was That the words were actionable for the word Caused extends as well to the Forgery as to the Arrest and so amounts to the slander of Forgery CCLXXX Mich. 19 Eliz. In the Common Pleas. Costs IN an Action upon an Escape the Plaintiff is Nonsuited It was holden that the Defendant should not have Costs Note The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff Notwithstanding this Action is quodam modo an Action upon the Statute 1. by Equity of the Statute of West 2. cap. 11. which giveth it expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries 169 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of Westm 2. an Action upon the Case lay for an Escape and so by Dyer Manwood and Mounson Costs are not given in this Case And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs for it is not a personal wrong for the Writ is quod disseisivit which is a real wrong Mich. 29 Eliz. In the Common Pleas. CCLXXXI Hollingshed and Kings Case HOllingshed brought Debt against King and declared That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London Vpon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he had brought this Action and upon the Declaration the Defendant did demur in Law because that the Plaintiff in the setting forth of the Recognizance had not alledged That the Mayor of London had authority by Prescription or Grant to take Recognizances and if he had not then is the Recognizance taken coram non Judice and so void and as to the Statute of Westm 2. cap. 45. the same cannot extend to Recognizances taken in London which see by the words De his quae recordata sunt coram Cancellario Domini Regis ejus Justiciariis qui recordum habent in rotulis eorum irrotulantur c. and also at the time of the making of that Statute the City of London had not any Sheriffs but only Bayliffs And the Statute ordains That upon Recognizance Process shall go to the Sheriffs c. therefore not to them But the whole Court was clear to the contrary for we well know that they of London have a Court of Record and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the Iurisdiction of that Court and which arise by reason of the matters there depending Another matter was Objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera therefore it was not well taken But as to that Anderson Chief Iustice said Admit that the Recognizance was not well taken yet because that in a Scire Facias sued upon it the Defendant shall not take any advantage he shall be now bound by that admittance As if one sues a Scire Facias as upon a Recognizance whereas in truth there is not any such Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him the same is not void but voidable And Fleetwood Recorder of London alledged many Cases to prove the Courts of the King ought to take notice that those of London have a Court of Record for if a Quo Warranto issueth to the Iustices in Eyre it doth not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And at the last after many Motions the better Opinion of the Court was That the Plaintiff should recover Periam aliquantum haesitavit And it was said by Anderson and in a manner agreed by them all That if dependant this Demurrer here the Iudgment in London upon the Scire Facias is reversed yet the Court here shall proceed and take no notice of the reversal CCLXXXII Mich. 20 Eliz. In the Common Pleas. A Man seized of a Barn in which the Tythes of certain Lands have used to be inned let the same by these words Demises .. Demise and to Farm-let the Barn with all Tythes belonging to the same It was holden That by that Demise the Tythes did not pass but Tythes which had usually been demised with the Barn passed by such words as by the Demise of an House Cum omnibus terris eidem pertinent ' all the Lands pass which have used to be demised with the said House for the demising usually of the Tythes with the Barn makes the Tythes belonging to the Barn but not the Inning Mich. 30 Eliz. In the Common Pleas. CCLXXXII Haltons Case Recognisance Inrollment A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery and before the same was Inrolled the Conusee dyed the point was whether at the request of the Executors
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
against the Inhabitants of the Hundred of Everingham It was argued by Serjeant Shuttleworth for the Hundred and he insisted upon this That the Robbery for which the Suit was brought was committed in the night and Vide Stamford 33 38. If a man be robbed in the day and the Chief escape and be not taken the Town or Hundred shall answer for it as if he should have said If the Robbery was not done in the day the Town or Hundred should not answer for it and by 11 H. 7 5. the Lord cannot distrain in the Night for Rent arrear for the Tenant is not bound to tender his rent in the night time And although there are no express words in the Statute of Winchester that Huy and Cry shall be made by the party robbed yet in reason it is to be presumed that the same was intended by the Statute Vide that by these words in the Statute it may be implyed viz. That no pain as yet hath been appointed for their Concealments and Lachess which Lachess imports That none ought to be charged in such case but here there was a defalt and no defalt can be where there was not notice and all the course is Hutesiam clamorem fecit notitiam inhabitantibus dedit and also this word Concealment amounts to as much for none can be said to conceal that whereof he had no notice And vide Stamford 35 36. if the Felon escape the Hundred shall answer to the party robbed who hath made Huy and Cry But the whole Court was clear that Huy and Cry or Notice to the Inhabitants was not requisite by the Statute for as it was said by the Lord Anderson it might be that the party robbed was bound so as he could not give notice or make Huy and Cry or it may be he was killed by the Thieves and b. 28 E. 3. 11. Fresh suit is to be made from Town to Town and from Country to Country and that Fresh suit is to be made by the Inhabitants of the Hundred and not by the party robbed for no mention is made of such Fresh suit And that will more clearly appear if we take to the Common Law before the Statute of Winchester for before the said Statute the Law was That every Town and City should be guarded by the Inhabitants c. so that if any suspected persons did resort to such Town or City he should be stayed until the next Sessions in which Case he should have deliverance according as he could acquit himself And if any Town or City failed therein and then a Robbery had been done the County should answer for it for at their own peril they were bound to guard the Country But there was some difference betwixt Robberies committed in the day time and Robberies done in the night which see 3 E. 3. so Corone 293. Where a man killed another in the day and the Felon was not taken but escaped in the night and the Town was amerced for the same because there the Adventurers came in the day time and the Felon was not taken And as to that which is found by the Verdâ—ct That the Robbery was done post occasum solis per lucem diurnam the Opinion of all the Iustices was That with such a Robbery the Hundred should be charged for that at such time of the day Travellers are commonly drawing to their Lodgings And afterwards Iudgment was given for the Plaintiff Pasc 29 Eliz. In the Kings Bench. CCCLIII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs and Commonalty of the City of Norwich The Writ was directed to the Coroners of the said City and Exception was taken to the Writ because it was not directed to the Sheriff of the same City but to the Coroners But the Exception was disallowed by the Court for the Sheriff was part of the Corporation And also it hath been adjudged That a Sheriff cannot summon himself The Writ was holden good CCCLIV. JOhn Grendon brought Trespass for breaking of his Close against Thomas Albany and upon the pleading the Case was That Francis Bunney was seized and 1 Maij 20 Eliz. by Deed indented enfeoffed M. H. to the use of the said Francis Bunney for the term of his life the remainder to D. in tail the remainder to E. in tail the remainder over to F. in Fee In which Deed of Feoffment there was a Proviso That if it should happen one P. P. to dye without Issue Male of his Body that then it should be lawful for the said Francis Bunney at all times during his life by his Deed indented to be sealed and delivered in the presence of three credible Witnesses to alter change diminish or amplifie any Vse or Vses limited by the said Deed or any Vse or Vses thereof to any person or persons and to limit after the death of the said Francis to begin After which the said Francis Bunney 1 Aprilis 23 Eliz. by his Deed indented did renounce relinquish and surrender to the said M. H. D. E. F. all such liberty power and authority of revocation which he had after the death of the said P. P. without Issue c. and further did remise release and quit-claim to them the said Condition Promise Covenant and Agreement aforesaid and all his said Power Liberty and Authority and further granted to them and their Heirs that at all times then after the said power liberty and authority should cease and to all intents and purposes should be void After which P. P. dyed without Issue Note that in this Case Francis Bunney being but Tenant for life enfeoffed one T. upon whom the said D. entred for a Forfeiture 1 Maij 23 Eliz. after which 20 Maij 24 Eliz. the said Francis Bunney by Indenture between him and the said D. sealed and delivered as abovesaid altered the former Vses and covenanted and agreed with the said D. that from thenceforth the said M. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs It was argued by Altham That by that Feoffment made by the said Francis Bunney to the said F. the liberty and power aforesaid was not extinct or lost for the liberty and power was not then a thing in esse because then P. P. was alive and also the liberty is collateral to the Land whereof the Feoffment is made 39 H. 6. 43. The Son and Heir apparent disseiseth his Father and hereof enfeoffeth a Stranger the Father dyeth now against his own Livery the Son doth not enter but if the Father dyeth then the Son shall enter which proveth that the Livery is not so violent as to destroy a future Right but that afterwards it may be well revived à fortiori in our case where the thing pretended to be extinct is meerly collateral 34 E. 3. Fitz. Garr 69. In Assize of Common the Release of the Father with Warranty of the Land is no bar because it is of
another thing 15 H. 7. 11. Cestuy que Use declares by his Will That his Feoffees shall sell his Lands and dyeth the Feoffees make a Feoffment to the same use yet they may sell so as against their Livery the Authority to sell remains to them And he cited Brents case Dyer 340. where a future Vse is limited to his Wife that shall be shall not be prevented by a Fine or Feoffment And vide the Statute of Fraudulent Conveyances 27 Eliz. where a Conveyance is made with Clause of Revocation if afterwards the party makes such a Conveyance bargain sell or grant the said Lands for money or other good consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the last Purchasors shall be void Another matter was admitting that the said Power and Liberty be not extinct by the said Feoffment If by the said Indenture or Renunciation Relinquishment Release c. it be destroyed And he said that a thing in esse could not be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before that it come in esse 11 H. 6. 29. Br. Damages 138. In Detinue The Defendant would have confessed the Action if the Plaintiff would have released the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not interest in the damages but he was intituled to them by the Iudgment so Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding that Release may enter for his title which accrued to him by the reversal was not in esse at the time of the Release And it was adjudged 23 Eliz. that where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the said term that then the residue of his term should go unto his daughter who then should be unpreferred and dyed the daughter released to her mother all her right in the said Land the mother dyed within the term That that Release did not bind the daughter for that at the time of the Release she had not any title Cook contrary And he said That by the Feoffment the said power and title was extinct and he well agreed the case cited before of 15 H. 7. for in such case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7.1 The husband makes a discontinuance of the Land of his wife and takes back an Estate to him and his wife by which his wife is remitted they have Issue the wife dyeth the husband shall not be Tenant by the Courtesie for he hath extinguished his future right by the Livery 12 Ass ultimo A Praecipe brought against A. who loseth the Land by erronious Iudgment and after Execution had enters upon the demandant and makes a Feoffment his Writ of Error is gone 38 E. 3.16 In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant in the Scire Facias by Writ of Error reverseth the Iudgment in the Scire Facias Now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6.44 A Recovery against B. by false Oath and after Execution had B. enters and makes a Feoffment to a Stranger who enfeoffs him who recovers it is a good bar in an Attaint 27 H. 8.29 The Feoffees to an Vse are disseised the Disseisor enfeoffeth Cestuy que Use who enfeoffs a Stranger now by that Feoffment his right to the Vse is extinct And as to the Release the same is not properly a Release but rather a Defeasance to determine the power and authority aforesaid as if A. enfeoffeth B. with warranty and afterwards B. covenants with A that the said Warranty shall be void that Covenant shall enure to defeat and determin the Warranty And afterwards in the principal Case Iudgment was given against the Plaintiff See more of this Case in Cook 1. part Trin. 29 Eliz. In the Kings Bench. CCCLV. Owen and Morgans Case Ante 26. 93. GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the Land was given to the Conusee and his Heirs and the Conusee rendred the same to Husband and Wife Note that the Husband was the Conusor the remainder in Fee to the now demandant and Note that the Writ of Covenant was between the Conusee Plaintiff and the Husband Deforceant without naming of the Wife and afterwards the Husband suffered a common Recovery without naming of the Wife The Husband and Wife dyes without Issue and now Owen to whom the remainder in Fee was limited by the Fine brought the Scire Facias in bar of which the Recovery was pleaded It was argued by Serjeant Shuttleworth That the Recovery had against the Husband only was a good bar and should bind the remainder and he said That the Wife ought not to be named in or party to the Recovery for nothing accrued to her by the Fine because she was not party to the Writ of Covenant nor party to the Conusance and none can take by the render who was not party to the Writ of Covenant and to the Conusance Vide 30 H. 8. Fines 108. None can take the first Estate by the Fine but those who are named in the Writ of Covenant c. but every Stranger may take by Remainder Vide 3 E. 3. Er. Fines 114. 6 E. 2. Fines 117. 7 E. 3. Scire Facias 136. It is said by Horton If such a Fine is accepted it is good The Case was adjourned CCCLVI. A. Seized of a Manor to which two parts of the Advowson were appendant presents and afterwards aliens the Manor with the appurtenances the Alienee presents and purchaseth the third part of the Advowson and presents again one A. who was Chaplain to the Duke of Rutland and had a Dispensation from the Pope 1 Eliz. before the Statute was repealed and was instituted and inducted and afterwards accepted of a plurality viz. another Benefice and dyed 11 Eliz. The Queen presented for Lapse and her Clerk was instituted and inducted The said Lord of the Manor dyed seized inter alia and that Manor was allotted to the Wife of D. for her part and he brought a Quare Impedit It was moved if D. should not joyn in the Quare Impedit with him who had the third part and by Walmsley he is not to joyn in it 22 E. 4. by Brian If an Advowson descends to four Coparceners and they make partition to present by turns and the third doth present when the second ought for that time the presentment is gone but when it comes to his turn again he shall present which proves that they are as several
that the Son for a Fine of three years paid should have the Land for his life Hutton said That the Traverse was good for if there was not any such Custom that the Son should have it so for life then ex consequente sequitur that there is not any such Custom that the Son should have it after the death of the Wife or her Surrender and therefore he needed not to Traverse the last Custom alledged But the whole Court was against him and ruled That the Traverse was not good for he ought to have traversed the last Custom because there are several Customs and the one is immediately to him the other not and the Defendant claimed by the Second Custom and therefore the Court awarded That he should amend his Plea. Pasc 12 Jac. In the Common Pleas. CCCCVII Sir Henry Rolls and Osborns Case Hob. Rep. 20. More Rep. 859 2 Brownl 169. SIr Henry Rolls brought a Writ of Warrantia Chartae against Sir Robert Osborn and Katharine his Wife and shewed That the Defendant ought to warrant him a Messuage 40 Acres of Land 700 Acres of Pasture in Kelmarsh and shewed That Sir Robert Osborn and his Wife levied a Fine to him and his Heirs of a Manor and of the Lands aforesaid with warranty to him and his Heirs and further shewed That a Writ of Entre sur disseisin was brought against him of the said Messuage 40 Acres of Land 700 Acres of Pasture and that he had demanded the Warranty of the Defendant or that he would minister to him a Plea which the Defendant hath refused to do to his damage of 1000 l. the Defendant confessed the Fine and Warranty as aforesaid but further pleaded That in the same Term that the Fine was levied a Writ of Entry was brought against Sir Henry Rolls in which Writ he vouched to Warranty the said Defendant who alone entred into the Warranty and vouched over the common Vouchee and so a Recovery was had accordingly And averred That the said Recovery was to the use of Sir Henry Rolls for his life and if there was a Marriage between him and A. S. within 4 years then to the use of the said A. S. for her Ioynture with divers remainders over and averred the life of Sir H. Rolls Vpon which the Plaintiff did demur in Law. Shirley Serjeant argued for the Plaintiff That the Warranty was not destroyed but that the Plaintiff might well mantain his Warrantia Chartae and for the same he vouched 22 H. 6.22 Cliffords Case That there ought to be an alteration of the Estate to which the Warranty is annexed and here is no alteration of the Estate for although the Recovery was had the said Term and a Voucher upon it yet because the uses did not take effect presently but were contingent uses he remained Tenant in Fee-simple as he was before and so the first Warranty remained and was not destroyed Mountague Serjeant contrary and that the Warrantia Chartae was gone and that for four Causes 1. He who comes to an Estate in the Post shall not have a Warrantia Chartae but Sir Hen. Rolls cometh to the Estate in the Post ergo he shall not have Warrantia Chartae And for that vide 29 Ass 34. Lord by Escheat shall not have Warrantia Chartae 22 Ass 57. The Lord of a Villain shall not have a Warrantia Chartae 21 H. 6. Disseisor shall not have Warrantia Chartae and so 19 H 6.25 10 H. 7.10 Tenant by the Courtesie shall not have the Writ because all these come to the Lands in the Post But see Cook 3. part Lincoln Colledge Case they may have peradventure benefit of a Rent or of a Condition but not of a Warranty 27 E. 3. garr ' Statham acc ' 2. Every Warranty ought to have the same Estate continuing to which the Warranty is annexed but Sir Hen. Rolls had not the same Estate continuing ergo he shall not have the Warranty because the Fine was to him and his Heirs with Warranty but this Recovery which was but a further assurance was but to the use of himself for life with divers Remainders over so as the first Estate is altered And 42 E. 3.2 40 E. 3. 14. it is a good Plea in a Warrantia Chartae that the Demandant is not Tenant And 41 Eliz. in Bointon Chesters Case it was adjudged in this Court That if a man makes a Feoffment with Warranty who enfeoffs the first Feoffor upon Condition that that Warranty remains he shall vouch by reason of the first Warranty but if upon that Feoffment he had limited any new use there because the Estate was altered the Voucher was gone Vide F. N. B. 135. 19 E. 3. T. Voucher 12.2 48 E. 3. 18. acc ' And it was Resolved 34 Eliz in Banco Regis in Kempe Henninghams Case That in such Case he should not have several Warrantia Charta's And therefore because in the principal Case he hath once vouched upon this Recovery and upon that the Estate is altered he cannot now have Warrantia Chartae 3. Every Warranty is a Covenant real which consists in privity and therefore destroy the privity and the warranty is gone But now in this Case the first privity is destroyed therefore the warranty is gone And therefore 11 H. 4. 8. if two Ioyntenants be with warranty and one of them maketh a Feoffment in Fee the warranty is destroyed because the first privity is destroyed 21 H. 6. 51. acc ' But Vide 19 E. 3. Statham Garr ' 31. If two Ioyntenants are with warranty and the one Releases to the Feoffor there the warranty remains because the privity remains Vide 2 H. 6. 7. Cook 1 Part Chudleighs Case 125. acc ' And see M. 31 Eliz. in this Court King and Watts Case Land is given to Husband and Wife and to the Heirs of the Body of the Husband and Wife the Husband levies a Fine and dyes without Issue the Wife is impleaded and adjudged that she could not have Aid nor Warrantia Chartae because the Estate was bound by the Fine the Husband being Tenant in special Tail. 4. No warranty can have but one recompence and if there be recompence given the warranty is gone and extinct But here is a recompence made by the Voucher in this Recovery therefore the warranty is extinct 34 Ass pl. 15. 23 E. 3. garr ' 77. acc ' and 15 E. 4. 13. 12 E. 4. 12. If he will not take advantage of the warranty when he may he shall never have it after Vide F. N. B. 134. acc ' And 36 Eliz. it was adjudged in Owens Case That if Tenant in Tail bargains and sells his Lands and suffers a Recovery and afterwards Inrolls the Deed that that Recovery is a good bar to the Estate tail because there is a supposition of recompence and so he prayed Iudgment for the Defendants It was adjourned Vide this Case now Resolved in the Lord Hoberts Reports
A TABLE OF THE Principal Matters Contained in this BOOK Abatement of a Writ IN Account the Writ abated for part and for part the Plaintiff had Judgment 39 In Action upon the Case and why 55 Account Of the King against a Stranger 32 Actio personalis moritur cum persona Trover is an Action personal for it is grounded upon a personal wrong and ariseth upon a disceit and wrong and if there was no Conversion then an Action of Detinue should lye 44 Where one takes my Horse and dyes I shall not charge his Executor 46 If a Smith pricks my Horse my Executors shall not have an Action for it ibid. Action upon the Case Assumpsit Where it is requisite for the party in an Action upon the Case to express the Assumpsit with the Request and where not 2 If one promise in consideration c. to assign to J. S. the Lease of a Stranger for this an Action will lye Adjudged 2 If A. Prisoner at the Suit of B. escapes and being at liberty promiseth to B. that if he will permit him to be at large c. that he will pay to him 10 l. for this no Action will lye Adj. 3 A Promise against a Promise will maintain an Action upon the Case ibid. By an Executor to a Creditor upon forbearance to pay his Debt makes him lyable to pay it of his own Goods Adj. 1. ibid. Will lye against the Executors of A. upon his Promise at full Age to save one harmless who was bound with him for his Debt when he was an Infant 5 Will not lye against an Executor if he promises to pay a Debt and hath not Assets ibid. Nor is an Heir subject to an Action upon such a promise if he hath nothing by Descent 6 An intire Assumpsit cannot be severed by Action ibid. To avoid Controversies and Suits is a good and sufficient Consideration to ground an Assumpsit upon 31 The Defendant exhibited a Bill to the Justices of Peace complaining that the Plaintiff is a disquieter of his Neighbours c. and served a Process upon J. S. on a Sunday and the Justices to whom it was exhibited awarded Process against the Plaintiff to find Suerties for his good Behaviour by virtue of which he was taken and imprisoned For this an Action of the Case will not lye 35 Action upon the Case for Words What words are actionable and what not 24 54 121 181 Action upon the Statute Upon 5 Eliz. of Apprentices holden clearly That if one hath been an Apprentice for seven years at any Trade mentioned within that Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it 9 Action upon the Statute of Hue and Cry. 18 Upon the Statute of 5 Eliz. of Perjury 25 Upon the Statute of 5 Eliz. of Usury 43 Upon the Statute of Hue and Cry 51 Upon the Statute of 23 Eliz. of Recusancy 54 Upon the Statute 4 Eliz. of Perjury 105 Upon the Statute of 1 Eliz. of Leases made by Bishops 61 Upon the Statute of Hue and Cry 85 Upon the Statute 5 E. 6. for buying of Woolls 103 Upon the Statute of 31 H. 8. of Partition 106 Upon the Statute of Hue and Cry 191 Alien Purchaser 82. suffers a Common Recovery 84 Amendment If a Writ of Error be brought and delivered to the Chief Justice of the Common Pleas and allowed by him under his hand the Record cannot afterwards be amended 50 Day given by the Court to amend the Count in Disceit 123 Of a Writ of Quare Impedit openly in Court by a Clerk of the Chancery 12 Amercement Of the Sheriff for making a Retorn contrary and repugnant in it self 57 Appeal If Robbery may be brought 20 years after the Robbery committed and the party robbed shall not be bound to bring it within a year and a day 16 If the Defendant be attainted by Verdict in an Appeal of Robbery the fresh Suit shall be inquired of but otherwise if he be attainted by Outlary 48 Assignment Of Debts to the King. 80 No Bonds shall be assigned to the Queen but such as are made for payment of Mony. 9 Attaint Where the King is sole party against the Subject and the Jury find for the King no Attaint lyeth 46 But where the Suit is tam pro Domino Rege quam pro seipso contrary ibid. Attornment What shall be a good Attornment what not 23 Surrender of a Copyhold Reversion with the Rent to the use of a Stranger and his admittance thereupon are in the nature and so amount to an Attornment 25 If A. seized of a Manor Lease the same for years rendring Rent with Clause of Re-entry and afterwards levy a Fine sur Cognizance de droit c. to the use of himself and his Heirs and the Rent being demanded is behind he cannot re-enter nor avow for the Rent but is without remedy for the same without Attornment 34 If A. seized of a Rent in fee grants the same by Fine to B. to the use of C. there needs no Attornment to the Conusee because all the right of the Rent is out of the Conusor and transferred to Cestuy que use instantly 50 Attornment doth not give a right but is only a consent 129 Bargain and Sale. IF the Bargainee levies a Fine and within six months the Deed be inrolled the Land shall pass by the Fine 4 Bayl. If a Scire Facias issue against them before a Capias issue against the Principal and they be taken they shall be put to their Writ of Error 36 Bills The King may exhibit one Bill in the Exchequer for several causes arising within several Counties and it shall be good 26 Carrier SEnt with a Letter by one to a Merchant for Merchandizes to send them to him receiving a sum of Mony the Merchant sent them by the Carrier without mony the Buyer shall not be charged for the mony the Bargain being conditional and it was the Merchants folly to trust the Carrier with those Wares 7 Chancery May compell a Tenant to Attorn 8. 184. Common and Commoner A Commoner cannot kill Conies which destroy his Common 7 In what Case Common appurtenant by Prescription sans number is improveable by the Lord of the Waste 41 Condition Broken by Lessee for years 5 Destroyed in part good in part 27 Divided ibid. Grantee of parcel of the Reversion is an Assignee within 32 H. 8. of Conditions 28 Apportioned ibid. Suspended ibid. Conditions by Act in Law divided not by Act of the Party ibid. Statute of 32 H. 8. of Conditions taken by Equity 29 Condition suspended in part is suspended in all ibid. Shall be taken favourable for him who is to perform it 70 Consultation Was granted because the Prohibition was general where it ought to have been special 16 Conversion In Trover is Traversable and therefore ought to be certainly alledged 45 Conveyance By the Heir upon Intrusion 60 Copyholder Baron Surrenders Femes