disguised For the wholness and closness of your Garments they do signifie integrity to be used in your advices and secrecy in your councels And in that the Garments being single and unlined it betokeneth that you should be sincere and plain in your advises and not double carrying your opinion to your self one way and you advise it your Client clean another way The two Tongues do signifie that as you should have one Tongue for the Rich for your Fee as a reward for your long studies and labours so should you also have another Tongue as ready without reward to defend the Poor and Oppressed And therin to shew your seves thankfull to God for all that which he hath bestowed upon you And for the Rings you give as Gold is amongst all Mettals the purest so should you be of all others of your Profession the perfectest both in knowledge and in the other Virtues before remembred And in that it is a Ring and round without end it betokeneth that you have made a perpetuall Vow to this your Profession and Calling and are as it were wedded unto it And therfore I heartily wish you may alwaies walk therin according as appertaineth to your Calling And this done the ancienst Serjeant beginneth to recite his pleading and so each after other in order And that done the ancientest kneeleth down before the chief Justice of England and so the rest before the Justices and Barons as they are in ancienty and had severally by the said chief Justice their Coifs put upon their heads and then their red Hoods upon their shoulders and then the Serjeants return to their Chambers and put on their party colourd Garments and so walk on to Westminster the one after the other as they be in ancienty bare-headed with all their Coifs on and so are in their turn presented the one after the other by two of the ancientest Serjeants And after their pleadings recited they give their Rings in the Court by some friends and so are therupon set in their place at the Bar according to their ancienty And all this done they return to their Chambers and there put on their black Gowns and red Hoods and come into the Hall each standing at his Table according to his ancienty bare-headed with his Coif on and after setteth himself upon the Bench having a whole mess of meat with two courses of many Dishes served unto him And in the afternoon they put on their Purple Gowns and then go in order to Pauls where it hath been accustomed that they heard Service and had a Sermon Edwards versus Halinder 4. IN an Action upon the Case by Rice Edwards against Edward Halinder The Plaintiff declared by his Bill that one Edward Banister was seised in his Demesne as of Fee of a Messuage in such a Parish and Ward in London and being so seised did let to him the Cellar of the same house the 23. day of April 32 Eliz. for a week from the same day and so from week to week so long as the parties should please at such a Rent by the week wherby he was possessed And further that the said Edward Banister being seised of the said house as is aforesaid afterwards to wit 29. July in the 32. year aforesaid gave to the said Defendant Officium Anglice the Warehouse of the said Messuage being right over the said Cellar for a week from thenceforth and so from week to week so long as the parties should please paying such a Rent wherby the Defendant was therof possessed accordingly And the Plaintiff being possessed of the said Cellar and the Defendant of the Warehouse as aforesaid and the Plaintiff then having in the said Cellar three Butts of Sack to the value of 40 l. c. The Defendant the 30 day of July in the 32. year aforesaid put such a quantity of weight and burthen of Merchandize into the said Warehouse and therby did so overburthen the floor of the said Warehouse so that by the force and weight of the said burthen the said floor the said 30. day of July was broken and by force therof did fall and that therby the Merchandize that were in the said Warehouse did fall out of the said Warehouse into the said Cellar upon the said Vessels of Wine and by force therof brake the said Vessels of Wine wherby the said Wine did flye out of the said Vessels and became of no value to the Plaintiffs damage of a hundred pound c. To which the Defendant saith That within a small time before the Trespasse committed the floor of the said Warehouse sustained as great a burthen of Merchandize as this was And that the Warehouse was demised to him as the Plaintiff hath alledged to lay in it 30. Tun weight wherby he was possessed and so possessed the said 30. day of July did put into the said Warehouse but 14. Tun weight of Merchandize and that the damages which the Plaintiff had by the breaking of the floor was because the floor at the time of the laying of the merchandise upon it also before the lease made to him therof was so rotten and a great part of the Wall upon which the said floor lyes so much decayed that for default of Reparations and supporting therof by those to whom the reparations did belong before the Lease therof made it suddainly brake which matter he is ready to aver Wherupon the Plaintiff demurred and Iudgment was given for the Plaintiff in the Exchequer upon which a Writ of Error was brought in the Exchequer Chamber and the Error assigned was that the Iudgment ought to have been given for the Defendant because that now it appeareth that there was not any default in the Defendant for he was not to repair that which was so ruinous at the time of his Lease and therfore if it did bear so much lately before it cannot fall by the default of the Defendant in the weight put upon it but by the ruinousnes of the thing demised And yet by the advice of the Iustices the Iudgment was this Term affirmed for the Plaintiff hath alledged expresly that the floor brake by the weight of the Merchandize put upon it which ought to be confessed and avoided or traversed wheras here he answers but argumentatively to wit that it did bear more before therfore that he did not break it by this weight or that it was so ruinous that it brake Ergo not by the weight wheras here it is expresly alledged that it brake by the weight put upon it and if lesser weight had been put it would not have broken And he who takes such a ruinous house ought to mind well what weight he put into it at his perill so that it be not so much that another shall take any damage by it But if it had fallen of it self without any weight put upon it or that it had fallen by the default only of the posts in the Cellar which support the floor with which the
resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
Sheriff of another County then where the occasion brought or by Warrant of a Iustice of Peace of another County for matter of the Peace and the like which are not like to the case of Partridge who was beâ—ten in the County of Glocester by Sir Henry Pole for which he brought his Action in London And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glocester with a trâ—verse that he was not guilty in London But it was then ruled in this Court that he could not do it to oust the Plaintiff to sue in London but in such a case he might have alledged that the Assault was done in London because it was also a thing transitory of which they shall take notice there and so help himself if the matter had been true But in the case at the Bar if the speciall matter alledged in the forraign County be false as here the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant And so a traverse in such a case may be upon a Traverse when falsity is used to oust the Plaintiff of that benefit which the Law gives him Hillary Term 38 Eliz. Wood versus Matthews 1. IN a writ of Error brought by Owen Wood against Griffeth Matthews upon a judgment given in the common Pleas the case was briefly thus The Issue in the Common Pleas was whether one were taken by a Cap. ad satisfaciendum or not and upon the triall therof at the Nisi prius the Jury found for the Plaintiff in this Action to wit that the party was not taken by the said Capias and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pannell thus to wit That the Jury say that no Capias was awarded which was otherwise then was put in Issue or found by the Jury and the Roll of the Record was according to the Postea and upon this Judgment given for the said Matthew then Plaintiff upon which amongst other Errors this variance between the Issue and Verdict was assigned for Error and after deliberation had upon this point and this matter alledged by the Defendant in the Writ of Error and certified out of the Common Pleas the Court awarded as to this point that the Record sent up out of the Common Pleas by the Writ of Error shall be amended according to that which was endorsed on the back of the Pannell for the endorsement upon the Pannell is the Warrant for the certifying of the Postea aâ—d so this Warrant over to him that makes the Entry in the Roll And therfore wheras it was alledged that the Postea was amended in the Common Pleas aftâ—r the Record removed it was holden to be well done there for although the Record were removed by the Writ of Error yet the Nisi prius the Postea and the like remain still there as it is of the Warrant of Attorney and the like And if the Postea had not been amended there but sent up with that which was endorsed upon the Pannel all shal be amended here according to that which was indorsed upon the Pannel and according to this there was a Presidâ—nt shewn Tr. 35. H. 8. between Whitfeild and Wright where the Issue was whether a quantity of Grain were delivered between two Feasts and endorsed upon the Pannel Dicunt pro quaer and yet the Postea certified and the Rolls also made that the delivery was made ad festa and upon this matter alledged in Banco Regis and the Error in this point assigned and certified out of the Common Pleas the Record removed by the Writ of Error was by award of the Court amended and the word Ad razed out and the word Inter written in lieu of it according as it appeareth it ought to have been by the Note upon the back of the Pannel And the like amendment was made lately in the Checquer Chamber upon Error brought there upon a Iudgment given in Banco Regis where the Iudorsment upon the back of the Writ was pro Quer. and the Postea and Roll was that the Plaintiff was guilty and there amended the last Term. Slanings Case 2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee of the Mannor of Bickley and of a Mill in Walkhampton in the County of Devon called a blowing Mill and of another Mill there called a knocking Mill and of an acre of Land there also and of divers other Mannors and Lands in the said County of Devon the said Mills and acres of Land in Walkhampton then being in the possession of one Peterfeild and Atwill of an Estate for divers years then to come and being so seised he with Margaret his Wife levied a Fine of the said Mannor of Bickley and of other Lands omitting the said Lands in Walkhampton to certain Câ—nuzees who rendred the same back again to the said Margaret Slaning for her life with the remainder over to the said Nicholas and his Heirs After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and enfeoffed all the said Mannors and Premisses to John Fits and others and the Heirs of the said Fits to the Vses Provisoes and Limitations mentioned in the said Indenture which was to the use of himself and the Heirs Males of his body by any other Wife the remainder to Nicholas Slaning of Newton Ferries and the Heirs Males of his body with divers remainders over with this Proviso to wit Provided and it is the intent of these presents and of the parties therunto that the said John Slaning and the Heirs Males of his body or the said Nicholas Slaning of Newton-ferries and the Heirs Males of his body in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents shall pay to Agnes the Daughter of the said Nicholas Slaning of Bickly 200 l. or so much therof as shall be unpaid at the time of the death of her said Father according to the intent of his last Will with a Letter of Attorney to it by which he ordains John Hart and Robert Fort joyntly and severally his Attorney to enter into the said Mannor of Bickley Walkhampton c. and all other the Lands Tenements and Hereditaments in the said Indenture mentioned and possession for him to take and after such possossion taken for him and in his name to deliver full possession and seisin of the Premisses to the said John Fits c. according to the form and effect of the said Indenture wherupon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill And the said Pererfield and Atwill nor either of them never attorned to the said Grant After which Nicholas Slaning of Bickly made his last Will by which devised to the said Agnes his Daughter 200 l. to be paid in form following
it shall not be taken by intendment that the Messuages had such a Curtilage to it if it be not specially named Fennors Case 5. IN Trespasse brought by Fennor in the common Bench against for breaking his Close in c. the Defendant pleads a Bar at large to make the Plaintiff assign the place in certain where he supposeth the Trespasse to be done the Plaintiff therupon alledgeth that the place where he complaineth is such c. and sheweth in certain another then that in which the Defendant justifies the Defendant avers that the one and the other are all one and known by the one name and the other and therupon the Plaintiff demurs and adjudged there for the Plaintiff because that in such a case upon such a speciall assignment it shall be taken meerly another then that in which the Defendant justifies in as much as the Plaintiff in such a case cannot maintain it upon his evidence given if the Defendant had pleaded not guilty to this new Assignment that the Trespasse was done in the place in which the Defendant justifies although it be known by the one and the other name and that the Plaintiff hath good Title to it because that by his speciall Assignment saying that it is another then that in which the Defendant justifies he shall never after say that it is the same in this Plea for it is meer contrary to his speciall Assignment And upon this a Writ of Error was brought in the Kings Bench and the Iudgment was there affirmed this Term for the same reason Quod nota Scot versus Sir Anthony Mainy 6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. against Sir Anthony Mainy Knight the Condition wherof being to perform the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff of his Capitall Messuage in Holden with the Lands to it belonging c. amongst which Covenants one was that wheras by the same Indenture he had demised it to him for 21. years that the said Sir Anthony covenanted with the said John Scot that the said Sir Anthony from time to time during the life of the said Sir Anthony upon the surrender of this Demise or any other Demise hereafter to be made by the said Sir Anthony of the said Messuages and Lands and to be made by the said John Scot his Executors or Administrators and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators to the said Sir Anthony for the like tearm and number of years in the aforesaid Indenture comprised for the same Rent c. to seal and deliver to the said John Scot his Executors and Administrators And the said Sir Anthony as to this Covenant pleaded did not surrender nor offer to surrender to him the said Demise nor offer to him any new Demise of the Premisses ready engrossed for to seal it for the like Term c. as it is in this Covenant And for the other Covenants he pleads performance of all To which the Plaintiff replies that the said Sir Anthony after the Obligation and before the Action brought had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years from the Feast of Easter next before the Fine which was Pasch 36 Eliz. wherby he said that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant upon which it was demurred in the Commen Bench and the Iudgment given for the Plaintiff as appeareth Trin. 37. Eliz. Rot. 2573. And upon this Iudgment a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous in as much as the first act was to be done by John Scot before the new Lease was to be made to wit the surrender of the former Lease and the drawing of the new one ought to have been done by the Plaintiff which not being done on his part the said Sir Anthony is not bound to make the new Lease And also it was moved that as the case is here the said John Scot might surrender to the Defendant notwithstanding the intervening of this Lease between the Lease of the Plaintiff and the Inheritance of the Defendant as if a man make a Lease for years in possession and afterwards make another Lease to a stranger to begin after the end of the former Lease this shall not hinder but that the first Lease may be surrendred to him who was the Lessor notwithstanding the said Term intervening To which it was answered by the Court that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony in as much as the said Sir Anthony hath disabled himself to take the Surrender or to take the Lease according to the purport of the Condition and by this disabling of himself the Obligation is forfeited Come per 44 E. 3. 8. and by Littleton also If a man make a Feoffment upon condition to re-enfeoff him this is not to be done untill request therof be made by the Feoffor yet if in the mean time the Feoffee suffer a fained recovery of the Land grant a Rent charge acknowledgeth a Statute taketh a Wife or the like the Feoffor may re-enter without request made to re-enfeoff him and the reason is because that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight as he might have done at the time of the Feoffment in the same manner here for by this render by the Fine the Reversion passe in right so that the Termor in possession attorning to it they shall have the Rent reserved upon the first Lease and therfore the Plaintiff cannot now surrender to the said Sir Anthony but to the Grantees of the Reversion and therfore there shall be no prejudice to the Plaintiff because the Defendant was the cause of disabling the Plaintiff to make the Surrender to him And suppose it be but a Term to begin at a day to come yet by this the Obligation is forfeited because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made wherby the Obligation is presently forfeited albeit the Plaintiff never surrender nor offer to do it And therfore the Iudgment there was affirmed Mounson versus West 7. IN an Assise brought in the County of Lincoln before Gawdy and Owen by Thomas Mounson Esquire Demandant against Robert West Tenant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Tenant del Frank-tenant named in the Writ and if that be not found then Nul tort nul Disseisin And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint and put in view to the Recognitors of
Anglice Copie des except according to any custom of the said Mannor of Yeatminster and that the Obligation was made for the payment of the same Rent reserved by the said Articles and demands Iudgment c. wherupon the Plaintiff demurred in the Common Bench and there Iudgment was given that the Plaintiff should recover his Debt and Damages as appeareth there Mich. 36 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench and there moved that the Iudgment was erroneous in as much as upon the matter he ought to have been barred of his Action for if an Action of Debt had been brought upon the Demise by the Articles the Defendant might have pleaded as here and the Plaintiff should be cleerly barred As if a man be bound to make an Estate or to assure to another all the Lands which he hath by descent from his Father or all the Lands which he hath by purchase from such a one or the like And of this opinion Gawdy was saying in as much as the Obligation is that he shall be paid according to the true intent of the Articles the intent of them is not that the Rent shall be paid if any Land be not passed by them for it should be paid as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him he ought to pay it at his peril But if it be to pay it accordingly to the Lease there he said it is not payable but upon the Bond and is to be paid as a Rent And if the Land be evicted in the interim before the day of payment the Obligor shall help himself by pleading of it upon such an Obligation to discharge the Bond so here But it seemed to Popham that the Iudgment was well given and yet he agreed the Cases that were put but he said there was a diversity where the Obligation goes in the generality and where it tends to a speciality for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against such a one or to assure to another all his Lands in Dale he may say that he hath not any Suit or that he hath no Land in Dale But if it be that he shall be Non-suit in a Formedon depending or to enfeoff him of White acre there it is no plea because he refers to a special point And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee it is no plea for him to say that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter this cannot be denied of him who is bound And therfore in this case the Defendant cannot say that there were not any such Articles contrary to that which is specially comprised in the Condition as by 28 H. 6. A man was bound to perform the Covenants comprised in a certain Indenture of Covenants he shall not say that there was not any such Indenture because it resorts to a speciall So I think if a man be bound to pay the Rent of 10 l. a year reserved upon an Indenture of Demise made of Lands in D. payable at such a Feast he shall not say against it that there was no such Demise made nor no such Rent reserved upon the Demise but is estopped of the one and the other And in Hill 3. Eliz. A man was bound thâ—t he shall pay to A. or the Obligee all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one according to the Will of the said party and in Debt upon this Obligation he saith that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P c. to pay c. Pro usu filiorum c. as in the Condition and per Curiam adjudged no good Bar because he is estopped to deny the speciall matter which is matter of Writing and not a bare matter in Deed. Kirton versus Hoxton and others 10. IN an Appeal of Mayhem brought by Kirton Plaintiff against Appeal of Mayhem Rob. Hoxton Esq and divers other Defen the one of the Defen plead Nul tiel in rerum natura as another of the Appellees and if it be not found then as to the Felony and Mayhem not guilty Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem because no life is put in danger by the suit And yet it was objected that there are presidents that such form of pleading hath been admitted in Appeals of Mayhem But the Court had respect to it that the reason in all the Books of Law in which it hath been admitted in an Appeal of death and the like is that it stands in Favorem vitae and therfore it is admitted to be good or otherwise by the Books it shall not be admitted to be so for the doublenesse of it But no life is to be put in â—eâ—pardy in this case and therfore such a plea shall not be admitted but the Not guilty shall stand by which the other plea is waived Hillary Term 38 Eliz. Henry Earl of Pembrook versus Sir Henry Backley IN an Action upon the Case between Henry Earl of Pembrook Plaintiff See this Case Coke lib 5. 76. a. and Sir Henry Backley Knight Defendant the case upon the pleading appeareth to be thus The said Earl was seised in his Demesn as of Fee of the Mannor of Stocktrift in the County of Somerset to which Mannor the Office of the custody of the Forest of Selwood in the same County belongeth and also that there was before time of memory an Office within the same Forest called the Lievtenant-ship or Custody of the said Forest belonging to the said Mannor of which also the said Earl was seised in his Demesn as of Fee And that there was one part of the said Forest called the West part of the said Forest in which there were two Walks or Bayliwicks the one called Staverdale walk and the other Brewick walk And that the said Lievtenant had the charge of the Deer and the disposition and appointment of the Keepers of the said Forest And that the said Earl being so seised by his Writing bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Lievtenant-ship and Deputy-ship of the said West part of the said Forest Cum vadiis c. quando acciderit and the Keeper-ship of Brewick-walk aforesaid to the said Sir Maurice Barkley Knight and the Heirs Males of his body and instituted and ordained him and the Heirs Males of his body Lievtenant and Deputy therof to the said Earl and his Heirs confirmed the Grant aforesaid And further by the
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
another 20. H. 6. 15. And a scilicet is but an Exposition of that which is once before and it shall not destroy the precedent matter but if it be contrary to it it is voyd Co. lib. 5. Knights case A scilicet shall not make an alteration of that which went before 15. Jac. B. R. Desmond and Iohnsons Case In a Trover and Conversion the Plaintiffe declared that he was possessed of the said goods 1 Jan. 15. Jac. and that Postea scil the first day of May hee in the yeare aforesaid lost them and that they came to the hands of the Defendant and upon issue joyned it was found for the Plaintiffe and this was moved in arrest of Judgement and by the Court the scil was agreed to be void and the Postea good and the like case was 17. Jac. in Debt The second Question is a man makes Conusance for Rent for him in remainder in taile and does not alledge the precise time when the Lessee for life died but onely that he died and I conceive that it is well enough 1. Because an Avowry which is in lieu of an action is a reall action and in reall actions no precise day need to be alledged 2. Because he avows for 4 s. rent due and the arreare to the remainder which implies that the Lessee for life is dead See 14. Eliz. Dyer The case of a person in one Arundalls case a man was Lessee for ninty years if the Lady Morley should so long live in an action brought by him as Lessee for years in his Declaration he did not averre that the Lady Morley was alive and yet awarded good Trin. 12. Jac. in Hord and Paramores case the defendant avowed as Heir of Sir John Arundell and alledged no time incertaine of the death of Sir John Arundell and yet awarded good for the reason aforesaid and therefore he prayed Judgment for the Avowant The same Terme in the same Court. Jenkin versus Vivian IN trespas Jermy for the Plaintiff took some exceptions to the Plea of the Intr. Hill 1. Car. Rot. 331. Defendant 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii and doth not say a tempore cujus contrarium memoria hominum non existit 2. The Defendant alledgeth that he and all his Occupiers of Down-close had used to have common in the said Tridgemore Moore c. whereas he ought to have shown what estate they had in Down-close who have used to have this coÌ„mon Rol. there néed no prescriptioÌ„in this case no more then in a coÌ„mon appendant which case of a coÌ„mon appendaÌ„t was agreed by the whole Court for it is mixt 6. E. 4. 55. Co. lib. Intr. 625. tit trespas For the 2. exception I agree that if it be by way of prescription then it is not good as it is alledged here but if it be by way of custome as here it is then it is good for a custome goes to Land and a Prescription to persons Hill 11. Jac. Higgs brought an Action upon the Case for erecting of a new Mill and alledged a Custome that he and all the Inhabitants c. an exception was taken to it and it was there ruled that it was good because alledged by way of custome Co. lib. 6. Gatewards case and also Mich. 14. Jac. it way be alledged by way of custom as our case is and 15. E. 4. when it is by way of discharge it may be alledged in all Occupiers Jermy for the Plaintiff It cannot be a custom here for as it is in 23. Eliz. Dyer A custom cannot extend to a particular place and this was agreed by the whole Court But there is another exception he clayms common in Tridgemore Moore for cattle levant and couchant in Down-close and does not aver that these beasts were levant and couchant upon Down-close and per totam Curiam this ought to be averred and it was also agreed that in this case he ought to have prescribed But for the exception of all occupiers it was doubted but for the other exceptions Iudgment was given for the Plaintiff The same Term in the same Court. Chambers Case IT was said in this case that in debt upon a Recognizance acknowledged in Chancery or in any other Court the Defendant cannot demand Oyer of the condition for the Recognizance is not in Court as an obligation is when debt is brought upon it But if Debt be brought upon a Recognizance acknowledged in this Court then the Defendant may demand Oyer of the Recognizance The same Term in the same Court Harison versus Errington IN Error to reverse an Inditement of rescous and Riot taken in the County Palatine of Durham Bankes assigned the Errors whereof one was therâ— was a Warrant to three conjunctim divâ—sim to arrest the sayd Harison and two of them arrest him and therefore the Arrest was not well done for it ought to have been by one or all three and the reason is because it is a ministeriall act otherwise if it had been a judiciall act 14. H. 4. 34. 2. The Inditement of Riot was against three and the Iury found only one of them guilty of the â—â—â—ot this is a voyd verdict for one alone cannot make a riot like to the case in 11. H. 4. 2. Conspiracy against two and only one of them is found guilty it is voyd for one alone cannot conspire And at another day in the same Term Noy took other exceptions 1. Because the Inditement is Jurator pro Domino Rege presentant c. and doth not say that 12. Iurors presentant and peradventure but 11. did present 2. The names of the Iurors ought to have been certified for peradventure they are not probe legales homines but Villains and Outlawes 15. H. 4. 41. 3. It is sound that Rolson the Sheriff by vertue of a Writ directed to him came c. and upon this rescous was made by Harrison c. and it doth not appear what manner of Writ it was scilicet Elegit Capias ad satisfaciend on c. and if there were no Writ there can be no rescous and albeit he had a Writ yet if execution were done by vertue of another Writ which he had the Party may disobey it as if upon an habere facias seisinam the Sheriff makes a Warrant as upon a Capias the party is not bound to obey the Bayliffe if hee bee not a Bayliffe knowne but in case it appeares they were only Bayliffs pro hac Vice Nota that an Inditement before Coronâ—rs which found that the Earl of B. was felo de se was quasht because it did not appear that it was per sacramentum probor legal hominum And in the case of Sarum this Term an Inditement was quasht for the same cause The same Term in the same Court. Rochester versus Rickhouse IN a writ of Error to reverse a Judgement given in Ejectione firmae in Newcastle Banks assigned these errors 1. The Plaintiffe declares of
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
case who agreed that the wife shall not have it The same Term in the same Court. Dennis versus Sir Arthur Mannaring and others IN the great case between Gabriel Dennis Plaintiff in Trespasse against Sir Arthur Mannaring and Brimblecomb and others the Verdict was found for the Defendants And now it was moved in Arrest of Iudgment for the Plaintiff because no Bail was entred for Brimblecomb one of the Defendants A Verdict is given in B â— before any bail entred not good for every Defendant is supposed in Custodia Marescalli and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants where one of the Defendants is no party in Court And Serjeant More put the case of the Lord Chandoys and Sculler and other Defendants where the Iudgment in such a case was resolved to be erroneous Mountague we ought Discernere per legem quid sit justum and here Brimblecomb being no party in Court no Verdict could be given Doderidge I have seen in this Court where upon a Writ of Error brought in such a case we have compelled him to put in his Bail because he should not take advantage of his own wrong and folly But because that here no fraud appeared to be in the Plaintiff he shall not be bound to stand to the Verdict Haughton agreed but Crook seemed to the contrary But it was agreed that if Brimblecomb had appeared at the Suit of any other the same Term it had been sufficient And these Books were cited to be in the point 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10. The same Term in the same Court Hide versus Whistler WIlliam Hide made a Lease for years of certain Lands to Whistler excepting Exception of all Wood under-wood Coppices and Hedgerows to the Lessor all his Wood and under-wood Coppices and Hedgerows and in a Replevin the question was whether the Soil shall passe ther by for the Lessee put his Beasts into a Coppice and the Lessor distrained them wherupon c. And the words of the exception were further standing growing and being in and upon the Premisses And the Lessee covenanted to make Fences but if the Lessor made new Coppices that the Lessee should net make Fences about them And it was said that a Coppice signifies a parcell of Land fenced for the safegard of young Trees And it was said for A Coppice what it is the Plaintiff that Premisses are Pre dimissa and by these words growing and being in the Premisses it shall be intended that the Soil did not passe for it is pre-demised But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice 14 H. 8. 1. The Bishop of Londons case Co. lib. 5. Ives case and lib. 11. Lyfords case And by the reserving of a Coppice the Soil it self is reserved for by Mountague that which is reserved is not demised and so the Distresse well taken Crook agreed and he said the difference was good between Wood and Trees for by the excepting of Wood the Soil it self is excepted otherwise of Trees Haughton agreed that the Soil it self is excepted in this case and so it was adjudged The same Term in the same Court. Talbot versus Sir Walter Lacen IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen upon a Lease made by the Plaintiff to the Defendant of a Park Covenant to leave the Premistes in repatations at the end of the Term. c. for five years if she should live so long in which the Lessee covenants for him his Executors and Assigns to keep the Premisses in good Reparations and so to leave them at the end of the Term and also to deliver to the Plaintiff upon notice given four Bucks and four Does in season during the life of the Plaintiff in every of the said years And after the expiration of the aforesaid term of five years she brought a Writ of Covenant and assigned the breach because that in the end of the term he committed Wast and because that after the end of the term the Defendant refused to deliver the Deer And albeit the words of the delivery of the Deer are during the life of the Plaintiff yet they are also every of the aforesaid years and therforeit was resolved that she shall not have them during her life in this case And for the other point it was objected that in Fine termini was incertain for it may extend after the term but Ad finem termini had been sufficient Old book of Entries 169. for when he covenants that at the end of the term he would leave the Premisses in reparations and Ad finem termini he did wast this ought of necessity to be intended a breach of the Covenant and therfore it was adjudged that the action of Covenant well lies Mich 16. Jac. In the Kings Bench. Havergall and Hares Case IN this Case which see before fol. 1. b. four points were observed 1. Whether Fisher the Assignee of the Rent were such a person who Before fol. 1. b shall take benefit of the entry 2. When 10 l. is only in arrear whether the Rent of 20 l. shall be said in arrear 3. Whether these advantages which were first granted with the Rent may be granted over 4. When the Vse shall rise whether upon the first Indenture of the grant of the Rent or afterwards For the case was that the Grantee of the Rent of 20 l. covenanted by the same Indenture that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment that the Grantee shall distrain and if there be not sufficient distresse upon the Land or if there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land and to retain it untill he be satisfied And the said Rent was granted 9 Jac. it was arrear 11 Jac. the Fine for the better assurance of the Rent was levied 12 Jac. and 13 Jac. the Distresse was taken There were four Causes which give an entry and upon the Distresse and Replevin brought the Assignee enters As to the three first points it was resolved by the whole Court 1. That Fisher was such an Assignee who shall take benefit of the Entry 2. When 10 l. is only arrear the Rent of 20 l. shall be said arrear wherupon there shall be a Title of Entry 3. That these advantages granted with the Rent may be granted over And as to the fourth point it was holden by Mountague and Crook that the Vse riseth upon the first Indenture and not upon the entry after the Replevin brought although the words are that then it shall be lawfull for the Grantee and his Heirs to enter wherby the use is only awaked as it is in the principall point in Shelleys case and although a Fine is afterwards
Prohibition and had it and Noy moved for a Consultation 1. Because that a Prohibition and an Attachment upon it are but one Suit for the contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once tried for the Defendant the same thing shall not be tried again And as to the Statute of 50 E 3. 4. upon the mistake wherof the mistake is raised he confessed that the Printed Books and also in the Extract of the Parliament one Roll remaining in the Tower is the same Iudge but the Parliament Roll it self and the Petition is Liceatque Iudici Ecclesiastico sive diocess eidem an hujusmodi and the answer to the Petition is one Consultation granted sufficeth in this case And the Parliament Roll it self was brought into the Court and viewed but he said that if it were as it is in the printed Book and Extract the same Iudge shall not be intended the same personall Iudge but the same Iudge of Conusance of the same Iurisdiction or cause for otherwise if another Commissary be made as the Bishop may when he will his Successor may be newly prohibited and also one thing may be infinitely tried for in many places the Suit begins in the Arch-deacons Court and from him an Appeal may be brought to the Bishop The same Term in the Kings Bench. Pack versus Methold in a Writ of Error IN Mich. Term 22 Jac. Methold brought an action upon the case in the Common Pleas against Pack and declared that in consideration that the Plaintiff would pay to Playford 52 l. 14 s. to the use of the said Pack such a day c. Pack promised to deliver to him his Bond in which he was bound to him in the said summ when he should be therunto requested And shews that he had paid c. and the Defendant did not deliver to him the Bond albeit the same to do he was afterwards often times requested and upon non assumpsit pleaded it was found for the Plaintiff and now it was moved in Arrest of Iudgment because the request is not laid specially nor the day nor place therof expressed But the Court to wit Hobart chief Iustice Hutton and Harvey gave Iudgment for the Plaintiff and yet they agreed that if he had demurred upon the Declaration it had not been good and also that if it had been generall Licet saepius requisit it had not been good in as much as it is parcell of the promise and therfore ought to be said substantially viz. That it was after the promise and payment of the 52 l. but the time is supplied by these words Postea and there is no defect but in the place and Postea implies that it was after the promise and payment And Hobart said that all the points of the Declaration which have matter and substance are good only there wants the place where the request was made which by the Issue is moved and the request is here well notified to the Court and the defect of the place is now helped by the Statute Hutton said that if the promise had been to pay so much upon request at Easter there the day ought to have been shewn and Postea had not been sufficient but here the Postea refers only to a thing wherby it is certain and he said that upon this Issue such a request shall be given in evidence Harvey said that the request being here laid as it is the Court may well give Iudgment And it seemed to Hobart that such a request cannot be given in evidence where the Issue is upon an Assumpsit And Iudgment was given for the Plaintiff and afterwards a Writ of Error Hill 1. Car. Where in an action upon the case there ought to be a speciall request and where not was brought in the Kings Bench and the opinion of the Court was strongly that the Plaintiff ought to have alledged the request specially and ceriainly in time and place because it is traversable and parcell of the Assumpsit and not to be done but upon request Jones Iustice remembred divers Presidents in the point and further day was given to bring in Presidents of either side and two Presidents were produced according to the opinion of this Court Scil. Pasch 30 Eliz. Rot. 464. in 1. Court Old and Estgreens case Trin 16 Jac. Rot. 268. Wales case But in Debt Licet saepius requisit is sufficient for it is not materiall nor traversable for the bringing of the action of Debt which is a Precipe is a sufficient demand in it self and afterwards at another day the Court continued of the same opinion and therfore the Plaintiff in the first action brought a new action Quod nota for albeit the Defendant had pleaded non assumpsit and Issue was joyned upon it yet this did not amend the evill laying of the request according to the Presidents abovesaid Pasch 2 Car. In the Kings Bench in t Hill 1 Car. Rot. 135. Constable versus Clobery IN an action of Covenant the question was upon the Traverse the Plaintiff declared upon the Indenture of Covenant and the Covenant was that a Ship shall go with the next fair wind and that the Merchant shall pay so much for fraught the Defendant saith by way of traverse that he did not go with the next wind and it was obiected by Stone of the Temple of Counsell with the Plaintiff that the Traverse was not good but he ought to have traversed that the Ship did not go at all for that which is materiall shall be traversed and that the Ship did not go is the most materiall thing here and this appeareth by 15 E. 4. 2. where a Gift in tail is traversed and not the death of the Tenant in tail 19 H. 8. 7. 36 H. 6. 16. 2 H. 5. 2. 2 H. 7. 12. and there are cases to this purpose Co. lib. 7. 9. Ughtreds case If a man intitles himself to Land by an Estate which cometh by Condition he ought to shew that the Condition is performed A Covenant against a Covenant will not make an Estoppell but he shall bring his action 3 H. 6. 33. Where he ought to shew that he went to Rome because it is a precedent Condition The principall case in Ughtreds case prove other to wit that which is materiall is alledgable And the difference upon the case of 48 E. 3. 3. 4. Where A. Covenant with B. to serve him with three Esquires in France and B. covenant for it to pay him 42. marks he may chuse to covenant in generall or speciall as he will for there was Covenant against Covenant and here there is a Covenant of one part to go with the Ship and on the other part to pay so much for the Fraught and so Covenant against Covenant And it seemed to Doderidge Iustice that the Traverse is not good for the Traverse here is by permission of God And for another thing where Merchants
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
to the West eighteen foot ten inches which Messuage so newly built stood the day of the Writ purchased and yet stands c. And if upon the whole matter the said Demise of the said John Bradley and Anne be and in Law ought to be adjudged the Demise of the said Messuage newly built upon the said part of land where the Messuage of the said John Bradley and Anne stood then the Iury find that the said John Bradley demised to the said Thomas and Iohn Allen the said house newly erected as aforesaid as the Plaintiff hath alledged and if not then they find that he did not demise And upon this Verdict Iudgment was given there and an especiall Writ of Habere facias seisinam awarded of the said Messuage with the Appurtenances viz. 18 foot of it from the North to the South and 12 foot and an half of it from the East to the West upon which a Writ of Error being brought in the Kings Bench it was alledged for Eror by Coke Sollicitor that upon this Verdict Iudgment ought to have been given for the Tenant and not for the Demandant for what was remaining of that which was of the house is not a house but only a peece of a house and therfore it ought to have been demanded by the name of a peece of Land containing so much one way and so much another for a house wasted and utterly drawn away cannot be demanded by a Messuage but by the name of a Curtilage or so much Land of such contents for a Praecipe lies of a peece of Land containing so many feet in length and so many in breadth And also Land built during the possession of him which hath it by Tort cannot be demanded by the name of Land by him which hath right but by the name of a house nor e contra for every demand of Land ought to be made according to the nature of which it is at the time of the Action brought be it a Messuage Land Meadow Pasture Wood c. And if the Walls of a house be made upon the Land without any covering yet it shall be demanded but by the name of Land for he said that it cannot be a house without its perfection to be habitable which he said is not here because it stands upon the Land of the said Anne which hath not the perfection of a house habitable without the remnant But this notwithstanding the first Iudgment was affirmed for it was said by Popham and other Iustices that that which is erected upon the Land of the said Anne shal be said a house as to the right of the Heir of the said Anne for a house may be such to be demanded by the name of a house albeit it hath not all the perfection of a house as if it hath no doors so if it hath part of the side wals not made drawn away or fallen yet the remainder continues to be demanded by the name of an house so if part of the covering be decayed yet it shall be demanded by the name of an house and the rather here because with that which is upon the other Land it is a perfect house And I may have a perfect house although the side Walls belong to another as in London where a man joynes his house to the side walls of his Neighbours he hath a perfect house and yet the side walls belong to another and this commonly happens in London but it is otherwise if it were never covered or if the covering be utterly fallen or drawn away for without a covering a house cannot be said to be a house for the covering to keep a man from the Storms and Tempests over head is the principall thing belonging to a house And further suppose that a man hath a Kitchin or a Hall upon Land to which another hath right he which hath right ought to demand it by the name of a house suppose then that there is adjoyning to this upon other land a Parlor a Buttery a Shop a Closet and the like with Chambers over them this doth not change the form of the Writ that he is to have which hath right although before it was built by the name of a house and yet as to the rent both the one and the other was but a house but as to the demandant it is otherwise for they are severall so here And the Demise which before was made of the house drawn away shall be now upon the matter a Demise as to this part of it a new Messuage for if a man make a Lease for years of a house and the Tetmor pull it down and erect there a new house or if land be demised and the Lessee build a house upon it in an Action of Wast for Wast done in this new house the Writ shall suppose that he did wast in the Houses c. which were demised to him and yet in the one case it is not the Messuage which was demised to him and in the other the house was not demised but the Land only But he hath no term in the house but by the Demise before made And it seems to Popham that Allen the Defendant cannot pull down this part of the house erect upon his own land to the prejudice of the house which Hayes demands if this which is erected upon the land of Allen be of such a necessity that without it the house of Hayes cannot stand for a house but if he dies after that Hayes hath built it then Hayes shall have an Action upon the case against him for the damages which he sustained by it As if a man agree with me that I shall set the outer wall of my house upon his land and I do it accordingly and afterwards the party which grants me this licence breaketh it down if the Grant were by Deed I shall have an Action of Covenant for it and if but by Paroll yet I shall have an Action upon the case against him And here this being done by him which was then Owner and Possessor of the one and the other land it shall be taken as a licence in Law to the benefit of him which hath right which he cannot pull down after it is once made but he shall be subject to Hayes his Action for it or otherwise Hayes shall be at great mischief and prejudice by the Act of him which did the wrong which the Law will not suffer but rather shall turn this to the prejudice of him which did the wrong then to the prejudice of the other which shall have wrong by the doing of it for Volenti non fit injuria As if I am to inclose between my Neighbour and my self and my Neighbour pull down this inclosure or part of it wherby my Cattell escape into the land adjoyning and depasture there I shall be excused of this Trespasse in the same manner as if he had licenced me to have occupied it and whatsoever hapneth to this Land adjoyning
by my Neighbours means shall be in the same degree as my Neighbours Act for what he does shall be to his own prejudice And upon the Iudgment affirmed the Attorney of the said Hayes made the like Writ of Habere facias seisinam directed to the Sheriffs of London as was done in the Common Pleas wherupon it was affirmed to the Court in Hillary Term next ensuing that the Sheriffs had made their execution by the quantity of the feet comprised in the writ and that in the doing of it there was pulled down the part of another house of the said Allen which was erected two feet upon the land of the said Anne and prayed remedy for it and that this Habere facias seisinam varying from the thing recovered might not be filed To which it was said that this quantity of feet was but a Surplusage in the Writ and that the Writ before this was sufficient and warranted by the Verdict and judgment Sherrey versus Richardson 5. IN Debt upon an Obligation of 50 l. by Lawrence Sherrey against Arnold Richardson the case was this 16 Martii 33 Eliz. the said Richardson was bound to Sherrey in 50 l. with condition to stand to and observe the Arbitrement Award order rule finall end and judgment of one Walter Bolton and Edward Price Arbitrators indifferently elected to arbitrate award and judge of and for all Actions Suits Quarrels and Demands whatsoever betwixt them untill the date of the Obligation so that it be made and done in writing under their hands and Seals ready to be delivered to the parties at or before the last day of this instant month of April and the said Arbitrators the last day of April 33 Eliz. made an Arbitrement in writing under their hands and Seals that within four daies next ensuing the award either of the said parties shall release each to other all Actions Suits and Demands before the date of the said Obligation with this Proviso that if either of the said parties shall be discontented with the said Award or any part of it within twenty daies after the Award that then upon the payment of 10 s. by the party which thinks himself agrieved with the Award to the other within the twenty daies the Award shall be void either of them to be at liberty against the other as before the Award and by the whole Court if the Award shall be said made within the time comprised in the Oâ—ligation where the Proviso had been to be performed after the four daies it had been good and a finall Award because that the Proviso to make the Award void after the time limited for making of Releases is repugnant to that which was to be executed before to wit that either of them shall release each to other vvithin four daies for every Avvard ought to be reasonable and indifferent betvvixt the parties in all appearance and so that the one part of it ought not to impugn or encounter the other and here to what purpose shall it be to make the Award void and to put out at liberty against the other when they have made Releases each to other and vvhat indifferenty or reason should there be that vvhen one hath released the other may dissolve the Arbitrement by the Proviso and hovv may the Obligation vvhich had been once forfeited by the not making of the Release vvithin the four daies be helped and become not forfeited by dissolving of the Arbitrement by the Proviso But by Popham Gawdy and Clench if the Releases had been limited to have deen made at a day to come as ten daies after and that the Proviso had been to have been performed in the mean time before these ten daies then the Avvard had been void because they had not pursued the submission for it vvas no finall end of the controversie in as much as it is not certain by reason of the Condition whether it shall be an end or not But it seems to Popham that the Award here is not made within the time that it ought to have been made by the Condition for the Obligation is alledged to be made the 16 of March 33 Eliz. and then no month can be the instant month but March and therfore this word April is but a meer negation and if it should not be so to what April shall it refer for there is no matter to guide it more to one April then another but the generall intendment which happily shall guide it to the next April for avaiding of incertainty if it had not been for the words this instant moneth and the words within this moneth shall not be said to be frivolous vain where they may have a good and plain intendment but rather the word April which is repugnant to it shall be said to be void and a meer negation but it seems to him that as the Award is the case being that at any time within 20 daies after the Award made the one or the other disliking the Award might have been defeated upon the payment of 10 s. if the 10 s. had been paid within four daies as it might have been and before the Releases made the party by the intent of the Award had not been bound to have made the Releases because that by it within the time before the Releases made the Arbitrement shall be defeated by the Condition if it had been a good Award and therfore it shall not be said to be a finall Award at the time of the Award made because that instantly upon it before the four daies are passed there was power in the said parties to have defeated the Award upon the payment of the said 10 s. and therfore it seems to himself also that the Award was void and by consequence the Plaintiff shall be barred 6. KIng Richard the 3. by his Letters Patents granted to the Burgesses of Glocester and to their Successors that the Town of Glocester c. shall be a County of it self several and distinct from the County of Glocester for ever and no part of that County and shall be called the County of the Town of Glocester neverthelesse saving and reserving to himself and his Heirs that the Iustices of Assise in the County of Glocester the Iustices of Goal-delivery and of the Peace in holding of their Sessions and also the Sheriff of the County of Glocester in holding of his County-Courts and every of them may freely enter into the said Town and keep the said Sessions and County-Courts of and for any thing and matter arising out of the said County of the Town aforesaid and within the said County of Glocester as before time they had accustomed to hold them there the said Grant or any other thing notwithstanding And grants further that they shall have a Major two Sheriffs and one Recorder within the same County of the Town of Glocester and that the Ministers of the Sheriff of the County shall not afterwards enter to do or execute any thing
one part at one time and another part at another an Action of Wast may well lye Albeit Fitzherbert and Brook seem therin to be of a contrary opinion and that severall Actions of Wast ought to be in that case And the exception was taken because the Iudgment was entred that he shall recover the place wasted Per visum Jurator praedict wheras they had not the view of it in this case for this should be where it is given upon a Writ awarded to enquire of the Wast upon default made at the grand Distresse whereas here the Wast is not denied but acknowledged But as to this severall Presidents were shewn the one upon Demurrer for part Hill 1. Mariae Rot. 301. and another Tr. 31. H. 8. Rot. 142. in an Information in both which Cases the Iudgment was entred as here to wit Per visum Jur. praedict and yet in these the Wast was as acknowledged Whereupon it was ordered that the Iudgment should be affirmed 3. In an Ejectione firmae brought by Sir Moyle Finch Knight Plaintiff against John Risley Defendant for a Messuage and a Mill in Raveston in the County of Buckinghamshire the case for the matter in Law appeared shortly to be this The King and Queen Philip and Mary by their Letters Patents dated the eight of July 3. 4. of their Raign made a Lease of the Reversion of the Mannor of Raveston of which this was parcell to Sir Robert Throgmorton for seventy years from such a Feast after the death of the Countesse of Ormond who then had it for her life rendring yearly 73 l. 13 s. payable at the Feasts of Saint Michael the Arch-angel and the Annunciation of our Lady at the receit of the Exchequer by equall portions with a Proviso that the Lease shall cease if the said Rent or any part therof were arrear and not paid at the said Feast or a certain time after the Reversion descend to the now Queen and the said Countesse died 7 Eliz. part of the Rent then payable was not paid at the day nor within the time limited by the Proviso afterwards Queen Elizabeth by her Letters Patents dated 30. May 30 Eliz. granted the said Mannor to the said Sir Moyl and one Awdeley and their Heirs in Fee with a clause in it that the Letters Patents shall be good notwithstanding there be not any recitall of any Leases or Grants at any time before that made by her or any of her Progenitors after which an Office is found for the Queen that the Rent was arrear and not paid as before after which the said Sir Moyl and Awdeley assured the said Mannors by bargain and sale to Sir Thomas Hennage who demised the said Messuage and Mill to the said Sir Moyl upon whom the said Risley entred in right of the said Lease made by the said King Phillip and Queen Mary under Thomas Throgmorton who then pretended to have the term of the said Lease from Sir Robert his Father The case was well argued at the Bar and now at the Bench where Fennor moved first Whether it were a Condition 2. Whether an Office were requisite 3. Whether this Office found comes soon enough for time For the first he conceived that it was a conditional Limitation for a Limitation is that which limits an Estate certain oâ— doubtfull as Quandiu in manibus nostris fore contigerit quamdiu amicus sit or dummodo solverit And there dummodo was a Condition as appeareth 5 Ass plit 9. 2. Ass a Grant made to J. S. and his Heirs tam diâ— as the Grantor and his Heir shall enjoy such a Mannor this is a Limitation and a Limitation alwaies determines the Estate but a Condition albeit it be broken during the Estate yet it doth not determine the Estate and so it is of a conditional Limitation and therfore t is not in the King untill an Office be therof found for the King submits himself to the Law for Bracton saith Quod non debet judicare sed secundum legem and his Prerogative is so excellent that he cannot take a part with any thing but by matter of Record neither can he draw the Right or Possession of any one in question upon a bare surmise but by Office or other matter of Record for a Record alwaies carries credit with it And there is no diversity where two matters are limited in Deed and where one is limited in a Deed and the other by the Law And the contrary objections are easily answered for when the Tenant in tail of the King dies without Issue it is in the King without Office because the Law does not help them which contemn it But in case of an Office which is forfeited it is in the King to dispose without Office because the King is not to have the Office it self but the disposition of it and yet it is to be defeated by Scire facias in the Chancery If a Mill be demised for life upon condition that he shall not let it but to a Milner and he breaks the Condition in case of the King there must be an Office to avoid it and there the Office entitles the King to the Condition and not to the Entry for after the Office it is not in the King untill Entry And here the Rent may be paid to the Kings Bayly in the Country which is matter in fait and therfore shall not be defeated without Office And here the Office comes too late to give any advantage to the Patentee for the King cannot grant a Title of Entry before Office no more then the Assignes of a common person can take advantage of a Condition broken in the time of the Grantor of which the Grantor did not take advantage in his time And if the Queen makes a Lease durante beneplacito the Patentee shall not avoid it as it appears in the Lord Burgleighs case and therfore the Office herâ— shall not help the Patentee but the Queen for the mean profits for although nullum tempus occurrit Regi yet the Patentee shall not take advantage of this Prerogative Clench agreed cleerly that it was a Limitation but yet that it is at the Queens liberty to avoid or make it good for perhaps the Rent is better then the value of the Land and upon this reason a Lease from the King Probiâ— hominibus de dale or to a Monk rendring rent is good which otherwise had been meerly void And by the Office found the Election of the Queen appeareth without which the Lease is to continue and therfore the Patentee shall not defeat that which happened in the Queens time before Popham to say that the Office helps the Queen for the mean Profits and that now the Patentee shall not take advantage to avoid the Lease is too absurd for the Queen cannot take advantage to have the mean Profits but in respect of the avoidance of the Lease And if the Lease were made void or determined against the Queen it shall not
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
Tales might be of the other County only Davies versus Gardiner 3. AN Action upon the case for a Slander was brought by Anne Davies against Iohn Gardiner That wheras there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had Vide this case reported Cook lib. 4. 16. b the Child by the said Grocer wherby she lost her Marriage To which the Defendant pleaded not guilty and was found guilty at the Assises at Aylesbury to the Damages of 200. marks And now it was alledged in Arrest of Iudgment that this matter appeareth to be meerly spirituall and therfore not determinable at common Law but to be prosecuted in the spirituall Court. But per Curiam the Action lies here for a woman not maried candot by intendment have so great advancement as by her Marriage wherby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the temporall Laws gives by reason of her Marriage and therfore by this slander she is greatly prejudiced in that which is to be her temporall advancement for which it is reason to give her remedy by way of Action at common Law As if a woman keep a Victualling house to which divers of great credit repair wherby she hath her livelyhood and one will say to her Guests that as they respect their credits they take care how they they use such a house for there the woman is known to be a Bawd wherby the Guests avoid her house to the losse of her husband shall not she in this case have an Action at common Law for such a slander It is cleer that shee will So if one saith that a woman is a common Strumpet and that it is a slander to them to come to her house wherby she looseth the adâ—antage which she was wont to have by her Guests she shall have her Action â—or this at common Law So here upon these collaterall circumstances wherby it may appear that she hath more prejudice then can be by calling of one Harlot and the like And Iudgment was given for the Plaintiff Hillary Term 36 Eliz. in the Kings Bench. IN Michaelmas Term 33 34 Eliz. Rot. 181. William and Joane his wife Administratrir of Andrew Stock brought an Action upon the Case upon an Assumpsit made to the Intestate for the payment of 5 l. to William Stock who imparled untill Tuesday next after Octa. Hillary next which was the 24th day of January and then the Defendâ—nt demanded Oyer of the Letters of Administration which were entred in haec verba Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law Commissary to the Bishop of London c. wherby the Defendant pleaded that after the last continuance â—he said Letters Patents of Administâ—ation sealed with the Seal of the Vicar Generall of the said Bishop which he useth in this behalf and brought here into Court bearing date the 27th day of January 1591. which was three daies after the continuance committed the Administration to the said Defendant And pleaded further the Act of 37 H. 8. which sayes that it shall be lawfull hereafter for any person being a Doctor of the Law to be Chancellor Commissary or to exercise Ecclesiasticall Iurisdiction albeit he were a meer Lay person so that such a person be a Doctor as aforesaid and avers that at the time of the committing of the Administration to the said Joane the said Thomas Taylor was a meer Lay person and not Doctor Legis civilis nec minister allocatus according to the Laws of the Church of England wherby he had no lawfull power to commit the Administration Vpon which it was demurred generally and by all the Court the Plaintiff had Iudgment to recover for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed that the Canon Law was that there was a meer nullity in such Administration so although the party that did it not being a Clark nor Doctor according to the Stat. of 37 H. 8. yet all the Iustices agreed that the Administration so committed will be adjudged in our Law to be of force and effect being shewn under the Seal of the Officer and committed by him who is reputed the Officer who ought to do it and is invested in the Office untill it be avoided by sentence and yet such an avoidance shall not make a mans act to be made void no more then if a meer Lay-man be presented to a benefice albeit this be a meer nullity in our Law and void yet we adjudge the Church full according to the publike admission constitution and induction and not according to the capacity of the person which is a thing secret untill such a one be deprived for it by sentence in the spirituall Court and yet the Church shall be in our Law void but from the time of deprivation of which notice ought to be given to the Patron So here he remains as to our Law an Officer untill his authority be defeated by sentence of the spirituall Court otherwise great mischief will happen for an infinite number of Administrations may be drawn in question by Averment that he who granted them was a meer lay person and so make such Garboils in the Common-wealth which is not to be suffered for the inconveniency which will happen by it and therfore our Law which is founded upon reason shall judge of it according to the open appearance of the Officer to wit that he hath a grant made to him and not according to the private capacity of the person and this is not altered by the said Statuts which is made in affirmation of it and makes the authority of a Doctor of Law absolute not to be defeated by the Civill or Canon Law which is not in the other case But yet it doth not make this case of worse condition then it was at Common Law And by all the pleading of the Administration committed to the Defendant is not good because it appeareth by the date of it that it was made after the day of the last continuance and therfore could not have been pleaded untill a new continuance after And by the Doctor the last Administration does not avoid the first but in case where there is an especial revecation of the first But they did not speak of the doublenesse because the Demurrer was generall and not speciall and also because the other matters were so cleer 2. IN Trespasse for carrying away certain Loads of Hay the case hapned to be this The Plaintiff pretending Title to certain Hay which the defend had standing in certain Land to be more sure to have the Action passe for Property him
in making pursuit And it is not the form of the pleading to alledge that he pursued him freshly and had him alwaies in his view untill he re-took him but only that he pursued him freshly and took him in this fresh pursuit without saying any thing that he was in his view and therfore his being out of the view of the Sheriff is not materiall in the case but the fresh pursuit and the taking of him in this pursuit Then Coke moved that the Bar was not good because he doth not shew where he made the pursuit so that he might agres to answer that which is alledged by the Plaintiff to wit his being at large at London and therfore the Bar not being good Iudgment shall be given against the Defendant for the insufficiency of his Bar for a Repleader shall not be in case of Demurs as it hath been adjudged here very lately and also in the Common Bench. To which it was answered by the said Iustices That if the Bar be insufficient in matter so that it may appear by it that the Plaintiff hath sufficient cause of Action which in matter is not sufficiently avoided by the Bar Judgment shall be given for the Plaintiff upon the Bar if the Replication be sufficient and no Repleader but if the Bar be sufficient for the matter and insufficient for the form only as it is here there before the Statute of Eliz. for pleading there shall be a Repleader but now because no Demurrer was upon the Bar but a Replication made to it therfore by Popham no advantage shall be taken of the Bar for matter of form which is admitted by the party and no advantage taken therof according to the Statute And they all agreed that the Sheriff albeit he did not make fresh pursuit upon the escape may yet take re-take the Prisoner who escaped from him out of Execution for the Prisoner shall not take advantage to avoid the Execution and therfore in respect of the Plaintiff who yet may accept the Prisoner to be in execution the Sheriff may re-take the Prisoner But if the Plai had recovered against the Sheriff before for the escape then the Sheriff for his Indempnity cannot re-take him but is put to his Action upon the Case against the Prisoner for the Sheriff hath no colour in such a case of escape to retake him but in respect and for the advantage of the Plaintiff who had Iudgment against the Prisoner and not in respect of the private wrong done to himself of which he hath no Iudgment and as it is now the Replication not being good by Popham Iudgment ought to be given against the Plaintiff But by assent it was ordered that the Defendant shall put in new Bail and that upon it he shall plead anew But how shall it be if the Sheriff do notmake fresh Suit and re-take him And afterwards he at whose Suit he was in Execution recovered against the Sheriff may the Prisoner have an Audita querela upon the matter Vpon an Assembly of all the Iustices at Serjeants-Inn in Fleetstreet with the Barens of the Exchequer it was cleerly agreed by them all but two who at the beginning made some doubt of it but at the end assented also If in the night the house of any be broken with an intent to steal any thing being in the house although no person be in the house at this time yet this is Burglary for the Law is that every one shall be in security in the night as well for their Goods as their persons which be in the house And if a Church be broken in the night for the stealing of any thing in it this is Burglary though no person be in it at this time And so hath the Law alwaies been put in execution and in all the Books which speak of Burglary it is not mentioned that any person ought to be in the house but that it is Burglary the Messuage being â—eckâ—n in the night to the intent to kill any person thâ—â—e or to the intent to steal any thing out of it And the case that of late time it hath been put in the Inditements of Burglary that some person was then there c hath been because that in such cases of Burglary Clergy was taken away but now by the Statute of 18 Eliz. Clergy is taken away in every case of Burglary And the ancient Presidents are Quod domum of such a one Nectanter Felonice burglariter fregit without making mention that any person was then in it or making mention that it was Domus mansionalis of any And it may be a Mansion House albeit no person then inhabit in it And agreed that hereafter it shall be so put in execution by all the Iustices See this more fully hereafter Trin. 36 Eliz. Pl. 1. in this Book AT Tres Paschae this Term there were made for Serjeants at Law viz. Lewkenor Savage and Williams of the Middle-Temple Heale only of the Inner-Temple Kingsmill Warburton Branthwaite and Flemming of Lincolns-Inn and Daniel and Spurling of Grayes-Inn And all the Iustices were assembled in the Middle-Temple Hall the Wednesday past Mâ—nsem Paschae being the second day of May where the two chief Iustices and chief Baron sate upon the Vpper-Bench of the same Hall in their Scarlet Robes with their Collers of S. S. and every one of the other Iustices and Barens in their Ancienty one on the one side and the other on the other side in their Scarlet Robes also and then came the new Serjeants in their black Gowns before the Iustices there the two eldest being put in the midst before the chief Iustice of England and so every one of them one on the one side and the other on the other side according to their Ancienty and every one of the said Serjeants having one of his Servants behind him at his back with his Masters Scarlet Hood and Coife upon his arms And therupon the said chief Iustice made his Speech in this manner IF men will enter into a due consideration upon what grounds the Laws of this Realm have their Original Foundation and what good effects are wrought through the due execution of the same they might say and that justly that the profession therof is both an honest and honourable Profession The Laws are derived partly from the law of God and partly from the Law of Nature From the Law of God in that it ordaineth means how the people may be truly instructed in the knowledge and fear of God How they should demean themselves towards their Soveraign and Prince How they ought to live one with the other and how to be defended from oppressions and injuries From the Law of Nature in that it provideth how each man may defend himself that he may live by his own labours or otherwise according to his profession or calling That he may secure his Posterity of that which he hath gathered together by his industry and that man with man
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
Execution shall be sued against him as Ter-tenant 2. There is not any lien as Heir for the Iudgment doth not mention the Heir and therfore he cannot be charged unlesse he be expresly bound and in the Record of the Recovery it doth not appear that the first lien shall bind the Heir for he declares that he bound himself and not that he bound himself and his Heirs 3. If the Heir were bound in the Obligation so that he were once bound as Heir yet the Iudgment determines the specialty so that now he is not bound and in the Iudgment the Heir is not mentioned as in 10 H. 4. 21. 24. If an Abbot contract to the use of the house without consent of the Covent this shall bind if he dies but if he takes an Obligation of the Abbot and then he dies this shall not bind the house for the Contract is determined by the Obligation and this is the reason that in the time of E. 3. in a recovery upon debt the Obligation was cancelled 4. Here he cannot be charged as Heir for it appeareth by the Record Where a debt is recorded upon bond the Obligation was cancelled that his Father is living for it is brought against him as Heir apparant which he cannot be but during the life of his Father And as to the objection that in this case he shall have his age and therfore shall be charged as Heir Non sequitur for if execution be sued against the Heir of a Purchasor he shall have his age and yet he is not Heir neither can charged as Heir to the Conusor But because it is a rule in Law that the Heir which hath by discent shall not answer where his Inheritance may be charged during his Nonage Whitlock to the same intent because the Heir is not charged here as Heir but as Ter-tenant wherby his false Plea shall not hurt him with which Jones also agreed and said that he here considered three things 1. That the lien of the Ancestor binds the Heir 2. How the Heir shall behave himself in pleading 3. Our point in question For the first there are two things requisite to bind one as Heir 1. A lien expresse for if one bind himself and not his Heir this shall not bind his Heir in any case 2. A discent of Inheritance for without this he shall not be bound by the act of his Ancestor and he is bound no longer then Assets discend for he alien before the Writ purchased the lien is gone 2. He ought to behave himself truly and plead truly and confesse the assets discended to him when debt is brought against him as heir otherwise his own Lands shall be charged with the debt as it is in Pepys case in Plow Com. But where it is said in Pepys case that upon a Nihil dicit or Non sum informatum c. If the Iudgment passe upon them that it shall be generall I am not of that opinion for the common experience of the Courts is that such a generall Iudgment shall not be given against the Heir unlesse it be upon a false plea pleaded with which agrees Lawsons case Dyer 81. and Henninghams case Dyer 344. where the Iudgment passed by Nihil dicit so that the saying in Plow 440. a. that what way soever the Heir be condemned in debt if he do not confesse the Assets c. that it shall be his proper debt is not now taken for Law And I also hâ—ld that if the Heir plead falsly and there is found more Assets Where upon a false plea by an Heir the Plaintiff may elect to take the Assets in execution or an Elegit of all his Land that yet it is in the election of the Plaintiff to charge him and to take execution of the Assets only or to take an Elegit of all his Land and he is not bound to take an Elegit of all his Land in this case for otherwise this inconvenience may arise If the Heir hath a 100. acres by discent and two by purchâ—se if upon the false Plea of the Heir the Plaintiff cannot have any other execution but an Eligit of the Moyety of his Lands then he by this is prejudiced for otherwise he might have all he Assets in execution and so the Heir by this way shall take advantage of his false plea. 3. He held as Whitlock before and for the same reason Doderidge Iustice How the Heir shall be bâ—und by the act of his Father is worthy of consideration upon which Prima facie the Books seem to disagree but being well considered accord with excellent harmony I have considered this case it was moved at Reading Term and because my Notes are not here I will speak more briefly and will consider 1. Hâ—w an Heir shall be charged upon the Obligation of his Father and as to that in debt against an Heir he is charged as Heir so that at this day it is taken as his proper debt wherby the Writ is in the Debet and Detinet How an Heir shall be charged upon the Obligation of his Father but in the Detinet only against Executors But in former time from the 18. of Ed. 2. till 7 H. 4. if an Executor had Assets the Heir was not chargable but in 7 H. 4. the Law changed in this point for now it is accounted his own debt and debt will lye against his Executor as it is said in Plow Com and so against the Heirs of the Heir to many generations albeit of this Plowden makes a doubt and his plea that he had nothing at the day of the Writ purchased nor ever after is good for if he alien the Assets he is discharged of the debt in regard he is not to wait the action of the Obligee 2. The Heir shall be châ—â—ged upon or Recognisance not as Heir but as Ter-tenant for he is not bound in the Recognisance but only the Conusor grant that the debt shall be levied of all his Lands and Tenements but not against his Heirs And here he is not meerly as Ter-tenant for he shall not have contribution agâ—â—st â—her Ter-tenants but only against those who are Heirs as himself is but to all other intents he is Ter-tenant and so charged Why an Heir is not chargable for debt after he hath fold the assets as 32 E. 3. and 27 H. 6. aâ—â— 3. That upon a Iudgment as our case is the Heir shall be charged as Ter-tenant and not otherwise The Book which hath been cited viz 33 E. 3. Execution 162. is expresse in the point the broken years of Fitzherbert are obsâ—urely reported but by comparing of cases it will appear to be our case exâ—resly 4. That albeit an Heir shall be charged upon the Obligation of his Ancestor where he is particularly bound yet upon his false plea no execution shall be but upon the assets So it seems to me that in the principall case the Iudgment shall be speciall and it seems to be a
own land as in another mans so the Warren hath existence notwithstanding the unity Dyer 326. Where the Queen was seised of Whaddon Chase and the Lord Gray was Lievtenant there in Fee and he and his Ancestors and their Keepers had by prescription used to hunt wandring Deer in the Demesns of the Mannor of S. adjoyning as in Purlieues the Mannor of S. comes into the Queens hands who grants this to Fortescue in Fee with free Warren within the Demesns c. it was holden that the unity doth not extinguish the Purlieu Dyer 295. Two Closes adjoyn the one by prescription is bound to a Fence the Owner of one purchase the other and suffer the Hedges to decay and dies leaving two Daughters his Heirs who make partition Quaere whether the prescription for the Inclosure be revived true it is that it is made a quaere but he saith see the like case 11 H. 7. 27. of a Gutter which proves our case as I will shew afterwards For the Minor proposition that the watering hath being notwithstanding the said unity I will prove it by 12 H. 7. 4. A Precipe quod reddat of Land Aqua Co-opert Mich. 6. Jac. Challenor and Moores case An Ejectione firmae was brought of a Watering-course and there resolved that it does not lye of it because it is not firma sed currit but of Terra aqua co-operta it doth lye Also I will take some exceptions to the Bar there is no Title in the Bar for the Defendant Pigot and so we being in possession albeit in truth we have no Title yet he who hath no Title cannot oust us neither can stop the said Water-course and it is only shewn in the Bar that Searles entred and enfeoffed Pigot but for any thing as yet appears the true Owner continued in possession 21 Jac. C. B. Cook against Cook in a Writ of Dower the Defendant pleads an Entry after the Darrein continuance and doth not plead that he ousted him and upon this the Plaintiff Demurs and there adjudged that it is no plea in Bar because he doth not say that the Defendant entred and ousted the Tenant 2. Exception the action is brought against four Scil. Pigot Cole Branch and Elyman and Pigot hath conveyed a Title from Searles the three other Defendants justifie but Pigot doth not say any thing but that Searles enfeoffed him 7 H. 6. an action of Wast is brought against many one answers and the other not this is a discontinuance And for the principall matter I will conclude with 11 H. 7. 25. Broo. Extinguishment 60. Two have Tenements adjoyning and the one hath a Gutter in the others Land and afterwards one purchase both and then he alien one to one and another to another the Gutter is revived notwithstanding the unity because it is very necessary and so he prayed Iudgment for the Plaintiff Bear for the Defendant I in a manner agree all the cases which have been put on the other side and I conceive that the Water-course is not Stagnum but Servitium which is due from the one land to the other It is but a liberty and therfore I agree Challenors case which is but a liberty that an Ejectione firmae doth not lye of it but Ejectione firmae lies De stagno For the first exception I answer and confesse that to alledge an Entry after the Darrain continuance without alledging an Ouster of the Tenant cannot abate the Writ for the Defendant may enter to another intent as appeareth in the Commentaries and with the assent of the Tenant But here it was alledged that a Feoffment was made and a Livery which implies another For the matter in Law I conceive that the Water-course is extinguished and it may be compared to 21 E. 3. 2. The case of a way which is extinguished by unity of possession Hill 36. Eliz. Rot. 1332. Hemdon and Crouches case Two were seised of two severall acres of Land of which the one ought to inclose against the other one purchase them both and lets them to severall men and there the opinion was and adjudged accordingly that the Inclosure is not revived but remains extinguished 39 Eliz. Harringtons case the same thing resolved and albeit in Dyer 295. is a quaere yet the better opinion hath been taken according to these resolutions H. 4. Jac. Jordan and Ayliffes Case when one had a way from one acre to another and afterwards he purchased the acre upon which he had the way and afterwards sold it and in that Case the opinion of 3. Iustices was that the way was extinguished also 11 H. 4. 50. and 11 H. 7. 25. prove this case for the said case is compared to the custome of Gavelkind and Burrough English and there the quaere is made whether by the custome it be revived and if it be a custome which runs with the Land the unity of possession doth not extinguish it Co. lib. 4. Terringhams case and 24 E. 3. 2. common appendant is destroyed by unity of possession and yet it is a thing of common right but a Water-course being a thing against common right a fortiori it shall be extinguished Now I will take some exceptions to the Declaration 1. Because he hath laid a prescription for a Water-course as to say that it was belonging to a Rectory to which c. and this is a good exception as appears by 6 E 6 Dyer 70. Ishoms case where exception was taken that before his prescription he doth not say that it was Antiquum parcum which exception as it is there said was the principall cause that Iudgment was given against him and also as the case is here it ought to be a Rectory impropriate and this cannot be before the time of H. 8. which is within time of memory for before the said time no lay person could have a Rectory impropriate and therfore I pray Iudgment for the Defendant Barksedale said that the prescription is well laid and that he would prove by 39 H 6. 32. and 33 H. 6. 26. and per curiam the prescription is good enough and albeit it is not said that it is Antiquae Rectoria yet it is well enough Mich. 1 Car. at Reading Term in Broek and Harris case he doth not say that it was Antiquum Messuage and yet resolved good Doderidge the case of 6 E. 6. differs in this point from this case for a Rectory shall alwaies be intended ancient and so is not a Park for this may be newly created and he put this case suppose I have a Mill and I have a Water-course to this in my own land and I sell the Land I cannot stop the Water-course Crew chief Iustice seemed of opinion that the prescription is gone and that the better opinion in Dyer 13 Eliz. hath alwaies been that the Inclosure is gone by unity of possession but yet the Water-course is matter of necessity Doderidge and Whitlock the way is matter of election but the course of water is
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a