Plaintif was non suit And it was now moved whether the Plaintif ought to have a new venire facias upon the first issue insomuch as the first venire facias did not issue forth upon the first Record and no non suit Et opiniâ— Curiae that he may go to a new triall but whether he shall have a venire facias de novo or that the old venire facias should serve the Court doubted for that the first Jury was sworn 38. FOrd brought an Action of Debt against Glanvile and his Wife Administratrix bonorum Catellorum qua fuerunt Johannis S. durante minore aetate T. S. Abatements The Defendant pleaded that hanging this action against them the said T. S. during whose nonage the Wife was Administratrix came to full age and if this were a good Plea or no was the question And adjudged a good Plea 39. UPon an information against Sr. Christopher Blunt a Juror was challenged for want of Free-hold Free-hold of a Juror and by examination was found that he had 20 shillings a year Fenner and Gawdy doubted whether this be sufficient Free-hold or not Popham and Clinch held it is sufficient for the Statute binds not the Queen and by the Common law if he had any Free-hold it was sufficient Fenner This is a Statute made for the benefit of the Common-wealth and therefore the Queen shall be bound by it though she be not named in it Gawdy Me thinks every Juror ought to have 40. s Free hold at the least by the Common-Law No bill of enception against the Queen Cook No certainly and if they doe take the Law to be so they may have a bill of exception Tanfield Wee cannot have a bill of exception against the Queen see the Statute of 1 Hen. 5. cap. 3. that that is between party and party and the Statute of 8 Hen. 6. the preamble is between party and party But Popham commanded the Jury to be sworn but Gawdy would have sent to the Justices of the Common Pleas for their opinion but the Juror was sworn by Commandment of Popham against the opinion of Justice Fenner 40. PEr Cook Proxime future If I am bound in an Obligation in Lent upon Condition to pay a lesser sum in quarta septimana quadragesima proximae futurae This money shall be paid in Lent Twelvemonth after And so it is upon the Feast day of St Michael I am bound to pay a lesser Summe upon the Feast day of Saint Michaell prox futur without question said he it shall be paid the Twelvemonth after and not the instant day 41. THE Duke of Norfolk Morgaged certain Lands to Rowland Haward Demand Alderman of London upon Condition that if the said Duke do repay to the said Alderman a certain Sum of money That then the Duke might re-enter and after the Duke was attainted before the day of payment Condition given to the Queen and all his Lands Tenements and Conditions were given to the Queen And the question moved at the Table in the Serjeants Inne was whether Sir Rowland ought now to make a Demand of the money upon the Land or to demand that at the Receipt of the Exchequer or that the Queen ought to make the tender upon the Land And it was agreed by all the Judges and Serjeants at dinner that the Queen ought to make no tender But the Alderman ought to make his Demand at the Exchequer and not upon the Land 42. REdfrein agaiust I. S. an Action of the case was brought for words Slander viz. I was robbed and you were privy thereunto and had part of my money It was pleaded in arrest of Judgement that the words will not maintain an Action For that a man may be privy to a robbery after that it is made and have part of the money by honest meanes and therefore it is no slander but the whole Court held the contrary Infected Smell of robbery as well as you are infected with a robbery and smell of the same will maintain an Action so will these words therefore Judgement was given for the Plaintif 43. MEggs against Griffyth brought an Action for these words Slander viz. A woman told me that she heard say that Meggs Wife poysoned her Husband in a mess of milk and Judgement given for the Plaintif 44. REvell against Hart A Parsons Lease the case was upon the Statute of 13 Eliz. of Leases made by a Parson Serjeant Harris A Lease made by a Parson is not void against the Parson himself no more than a Lease made by a Bishop which is not void against the Bishop himself as was judged in the case of the Bishop of Salisbury Fenner The Law is as you said in a case of a Bishop but the case of a Parson percase will differ Popham If Rent be reserved Rent reserved it is good against the Parson himself otherwise not Clinch and Gawdy It is good against the Parson himself 45. WInch brought a Writ of Error against Warner Space in the roll upon a Judgement in a Writ of Debt in the Common place upon Arrerageâ— upon an account and it was assigned for Error for that the Plaintif in the Common place The emparlance roll is the Warrant in the first Declaration left a space for the day and year And after imparlance he put in a new Declaration which was perfect But for that the two Declarations did not agree and the first Declaration is the Warrant of all and therefore ought to be perfect therefore the Judgement ought to be Reversed for this default 46. IT appeared in Evidence inter Petties and Soam Foractor upon an Assumsit for ware bought by the Factor of Soam per opinionem Cur. If one be Factor for a Merchant to buy one kind of Stuff as Tin or other such like and the said Factor hath not used to buy any other kind of wares but this kind onely for his Master If now the said Factor buy Saies or other Commodities for his Master and assume to pay money for that Now the Master shall be charged in an Assumpsit for the money and for that let the Master take heed what Factor he makes 47. A. B. being seised in Fee Devise made his Will and devised his Land to his Wife for life the remainder to his Son in Tail and if he died without issue the Land to remain to R. W. and his Wife for their lifes and after their deceases to their children The question is whether the children of W. take by descent or as Purchasers Popham Gawdie were of opinion that they had an Estate Tail But Fenner Clinch but for life 48. WIlliam Gerrard was arrested by a Latitat and put in bail by the name of William Gerrat Bail by a false name and the Plaintif declared against him by the name of Gerrart and all the proceedings and issue was accordingly and Judgement was had
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
that he was robbed and made hue and cry according to the Statute of Winchester the. Defendant pleaded that he was not robbed and a full Jury appeared at this day and upon the giving of the evidence Shuttleworth moved for the Defendant that it appeared by the Plantifs own evidence that the money was my Lady Riches and that the Plantif was but her receiver and then as he thought the Action should have been brought by the Lady and not by Tirrell Anderson in my opinion without question the Action is well brought for when he had the money and was robbed the money was taken from him Receiver and he was her receiver and Vouched a case in 3 Ed. 3. where a man takes my Corn from me and after c. the King shall have it and so of money for it cannot be known from other money Rodes to the same intent for if my servant be possessed of my goods and be thereof robbed Appeal he shall have an appeal Windham I have seen that a man sent his servant to London with money and he was robbed coming from thence and the opinion of the Court was that the servant should have an Action against the Hundred Peryam So I think clearly whereby the Jury found for the Plantif 4. THe Quare impedit by Moor was moved again and the opinion of the Court was Quare impedit that the Bishop as well for his contempt in not retournig the first VVrit as for his evill retourn made upon the second Writ for it appeared that he which he said was inducted of the presentation of the Queen was Defendant in this Action should be amerced and so he was amerced at x. l. and a new Writ awarded to admit the Clerk of Moor. 5. AN Action upon the case was brought in the King Benchs for saying that the Plantif was a forging knave Slander and a Verdict given for Plaintif And it was spoken in arrest of Judgement Gawdy Justice inchit capiat per billam for the Action is not maintenable 6. WAlmysley came to the Bar shewed how Lennard Custâ—s bâ—evium had brought an Action of Trespass against another the Defendant justified by reason that Sir Christo Heydon was seised in Fee and infeoffed him Feoffment gave a colour to the Plaintif The Plaintif replied that Sir Christofer Heydon died seised and it descended to his Son who enfeoffed the Plaintif Absque hoc that C. H. enfeoffed the Defendant And the Iury found a speciall Verdict viz. That C. H. was seised and made a lease for years to the Defendant and afterwards by his Deed conteyning dedi concessi confirmavi gave it to the Defendant and his Heirs with Letters of Attorny to make livery if this were a Feoffment or but a confimation was the doubt Feoffment Walmysley It is but a confirmation when it is by deed and hath words of confimation Anderson Then by your reason he in Reversion cannot enfeoffee his Lessee for years by deed as he may without deed but I think the Lessee is at liberty to take it as a Feoffment or as a confirmation Walmysley Sir I think that when the Lessee takes the deed immediately this is a declaration of his meaning to have it as a confirmation by your favour Anderson And by your favour when the Lessor sheweth his meaning to make livery and the Lessee his meaning to accept livery and livery is made accordingly is not this an express declaration that he will take it by the livery and shall this livery be idle no Sir and see Bracebridges case in the Commentaries where Tenant in tail makes a bargain and sale and makes livery and within six months Enrolls it this is adjudged a discontinuance and yet the bargain and sale is not any discontinuance and if you well mark the cases you shall find but little difference Disseisin Walmysley If Tenant in tail bee disseised and it is agreed between the disseisor and the disseisie that the disseisee shall make a Feoffment to the disseisor and make such a deed as this the disseisor shall not have election to take it as a Feoffment Anderson tota Curia the cases differ for thedisseisee hath not any power to make a Feoffment Walmysley Well will you give us a day to argue this matter and the other Feryam For the other if you will Walmysley No Sir if this point be no hotter than the other Peryam The other is cold enough And so the Court held the Feoffment good clearly And they laughed upon Lennard because he had profited so well by his action 7. LAnds were given by fine to one Jones and his Wife and to the Heirs of Jones upon his Wife ingendred the Remainder to one Owen in Fee Scire facias Afterwards Jones only without his Wife suffers a Common Recovery with Voucher Recovery the Wife dies Jones dies without Issue and Owen brought a Scire facias to execute this fine and the Tenant pleaded the Recovery in Bar. Snagg the Recovery is good to Bar Owen For if there be a sufficient Tenant against whom the Praecipe is brought then is it good And as I think here the Husband is a sufficient Tenant The case in 16 Hen. 6. in a purchase to the Husband and Wife during the Coverture there are no Moities and the case in 23 Hen. 8. Meuies Recovery against Husband and Wife where the Wife is Tenant in tail and they Vouch over it shall be a Bar to the intail vide Bro. titulo Recoverie in value 27. and yet the Husband had nothing but in right of his Wife so in this case Walmysley to the contrary For if the recompence here doth not go to the Estate of him which brought the Scire facias then it shall be no Bar in 9 Edw. 4. an Action was brought against two Executors when there were four and a Recovery had against them two the other shall falsifie for that they had equall Authority Falsifying of recovery per executors and here the Husband and Wife have equall Authority 10 Ed. 4. the Wife shall have an Assise if a Recovery be had only against the Husband 2 Ed. 4. he in Reversion prayed to be received Resceit per def de un Joynt he shall plead that the Tenant held joyntly with another and the reason is if he should be received only upon the default of one of them then he cannot have his recompence over Paramount Grant de reversion de un Joynt 18 Hen. 6. 1. 13 Edw. 3. Husband and Wife Ioyntenants for life and he in Reversion will grant the Reversion of the Husband only this is void for he hath not any such Reversion And here the Estate of Husband and Wife and he in Remainder is all but one and then the Estate of the Husband only is not the same Estate and the case in 23 Hen 8. vouched by Snagg seemeth to make for
and the one with force and the other not as if I command one to make a Disseisin and he makes a disseisin with force and allso if one enter with force to my use and after I agree he is a Disseisor with force and I am not so and those cases will answer the Books of Assises for in those cases they were present Present but in these not and so I hold that he which is present when force is made is a Disseisor with force Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces VVyndam It doth extend to them by express words and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force Then for the other matter of trebling of damages increased the Court made no doubt but that they shall be trebled and they said that so it was lately adjudged here in a case of Staffordshire 19. PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin Challenge where the Defendant made Conusance as Bayley to one Hussey and in the Attaint surmise was made that the Sherif was Cosen to Hussey and thereupon prayed Process to the Coroners and Puckering moved that no Process should issue to the Coroners for Hussey was not party to the Attaint and then this is but matter of favour and he cited 3 Hen. 7. And all the Court accorded with him that it is but matter of favour onely and no surmise to have a Writ to the Coroners but VValmisley would have put a difference between Lessee for years and a Bayley Lessee pur ans for as he pretended in the case of a Bayley it shall be a principall challenge but not in the other case but all the Court was against him and that it is no principall challenge in the one case nor in the other The last day of the Term it was moved again and the Court was of the same mind as before 20. IN a Quare impedit Adverson it was said by Anderson and agreed by all the Court that if a man make a Feoffment in Fee of a Mannor without deed and without saying with the appurtenances yet the Advowson shall pass and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor and lieth in Tenure 21. IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire Pleading an Action of Battery was brought in London and a Justification made in Somersetshire Absque hoc that he was guilty in London and the Plaintif replyed de injuria sua propriae absque tali causa and Anderson said that a man shall never plead de son tort demeasne where the matter ariseth in a Forein Country 22. AN ejectione firme was brought by Clayton against Lawson Bar. the Defendant pleaded in Bar a Recovery had in the Kings Bench against the Lessor of the Plaintif And Fenner moved that it should be no Bar no more than in Trespass Anderson I think it to be a good Bar. For this Action is as strong to bind the possession as a Writ of right is to bind the right VVyndam I think it is no Bar no more than in Trespass Anderson This is more than an Action of Trespass for in this he shall recover his Term. Rodes This case was moved the last Term and the opinion of the Court then was that it was a good Bar. Fenner True it is if it were between the parties themselves but here the Plaintif is but Lessee to him which was Barred Anderson Allthough that it be so yet he claymeth by the Lease of him which was Barred and during the Lease of the other his Lessor could have no right and what shall he have then Fenner That which is between the parties cannot be an Estoppell to the Plaintif here which is but a stranger Estoppell Anderson I know that he shall not plead it by way of Estoppell but he shall conclude Iudgement si Actio Peryam If in an Assise a Recovery in another Assise be pleaded in Bar Assise he shall not conclude by way of Estoppell but Iudgement si Actio and there he is driven to a higher Action and so here and the Law shall never have end if after a man is Barred in his Action he may bring the same Action again therefore I think it a good Bar and that he is driven to a higher Action VVyndam Lessee for years can have no higher Action Anderson Peryam If one which hath a Lease for years and no more Tenant for years disseisor of tenant in Fee simple enter upon him which hath a good title he is a disseisor of all the Feesimple Wyndam If two claim by Lease from one man and one bringeth an Ejectione Firme and is Barred what Action shall he have then Anderson None for he hath no Right VVyndam That is hard Anderson What Action shall he have which is Barred in Formdone surely none Fenner This is another case Anderson Aliquantulum incensus truly it is a plain case that he shall be Bared whereunto Peryam and Rodes agreed clearly 23. IN a praecipe quod reddat View the Tenant demanded the view and an habere facias visum issued and the Tenant came not to the Sherif to take the view it was said by the whole Court that the Sherif may retâ—urn that none came to take the view and he shall never have the view again Anderson The habere fac visum is the suit of the Tenant and then when he doth not come to take the view this is a default and then good reason to exclude him from the view Gawdy Such a retourn was never seen before and therefore it is to be noted the case was between Hoâ— and Hoo for Lands in Norfolk 24. IOhn VViseman of the Inner Temple Apportionment brought an Action of debt against Thomas VVallenger the case was this A man seised of three acres of Land in Fee makes a lease reserving xxx s of Rent and after devised the Reversion of two acres to a stranger and the third acre descended to the Heir and he brought an Action of debt for xij d. being behind and Puckering moved if they were agreed of their judgement in the case Rent extinct by the grant of part of the Reversion Anderson If a man let two Acres of Land rendring Rent and grant the Reversion of one of them all the Rent is gone as it is in Dyer and at the Common Law before the Statute of W. 3. there was no apportionment and the Statute speaketh of no such apportionment as this is Rodes Surely no Book in all the Law will warrant this apportionment Fenner Yes Sir 5 Ed. 3. If a man have a Rent of xx s and grants parcell thereof and the Tenant Attourns this is good Rodes This is another case But shew us the case which was in the Kings Bench
against the next Term. adjornatur but the Plaintif said then to divers Barresters that such a case was adjudged with him in the Kings Bench. Pasch xxviij Eliz. Rot. 341. between Wiseman and Brewer and another case in the Common place London Rogers versus Hunt Pasch 16 Eliz. Rot. 1544. 25. A Quare impedit was brought by Beverley against Cornwall Vtlary which was the Presentee of the Queen and the Plaintif had Judgement to recover and now the Queens Serjeant shewed that the Plaintif is outlawed and prayed that he Writ to the Bishop might be stayed and that they may have a scire facias for the Queen to shew wherefore she shall not have Execution of this Judgement Walmysley This cannot be debated now for the Plaintif hath no day in Court after Judgement and this is but a surmise Curia The Record here before us testifies that he is outlawed VValmysley Yet it is but their surmise that he is the same person VVyndam In debt upon an Oblig If the Plantif be outlawed the Queens Serjeants may pray the debt for the Queen and yet this is but a surmise And the opinion of three Justices was for Anderson was absent that they ought to stay Execution but how Processe shall be awarded or if a Scire sacias shall issue against the Plaintif or no they would be advised for the course thereof but Peryam thought that they might have a Scire facias against the antient Incumbent 4. A Quare impedit was brought by Gerard Travers and declared that his Ancestor was seised of the Mannor to which the Advowson is appendent and presented and died seised and the Mannor descended to him and so he ought to present the Defendant pleaded in Bar that the Ancestor of the Plaintif was joynt ly seised with his Wife and that she survived for default of her Presentation thâ— Lapse accrued to the Bishop who did collate Absque hoc that he died sole seised and it was moved by Gawdy that the Traverse shall be naught for he â—ad sufficiently answered to him before And the opinion of the Court Anderson being absent was that the Traverse is void because he had confessed and avowed him before and cited 5 Hen. 7. 11. 12. Bro. tit Traverse sans ceo 13. 27. BYngham brought an Action of debt upon an Obligation against Doctor Squire Cond impossible and the Condition was that if the Defendant did obtein a good grant of the next avoydance of the. Archdeaconry of Stafford so that the Plaintif might enjoy it that then c. and the Defendant pleaded that he had obteined a good grant of the next avoydance and in truth so he had but the antient Incumbent was created a Bishop whereby it perteined to the Queen to Present so that the Plaintif could not enjoy it and therefore the Plaintif moved the Court that the Defendant should amend his plea and the Court Anderson absente commanded him to do so for it seemed unto them that the Obligation was forfeit Gawdy moved for the Defendant that when the Archdeacon was made a Bishop the avoidance perteined to the Queen by her Prerogative so that it was become impossible but nevertheless he took day to amend his Plea De Term. Pasch Anno Eliz. xxix 1. THE First day of this Easter Term Sir Christopher Hatton Knight late Vicechamberleyn to the Queen and Captain of the Guard rode from his house in Holborn the Lord Burghley Lord Treasurer being on his right hand and the Earl of Leicester on his left hand and the Gentlemen Students of the Inner Temple attending upon him because he was one of the same House and with great Honor he was brought to VVestminster Hall and there in the Chancery sworn Lord Chancellor of England according to the Patent and Seal delivered unto him the Sunday before 2. THe Queen brought a Quare impedit against the Incumbent and the Bishop Abatement the Bishop pleaded that he claimed nothing but as Ordinary and thereupon Judgement Formall was given against him The incumbent dyeth sed cesset executio c. the Incumbent pleaded in bar whereupon they were at issue and this issue depending the Incumbent died and now Gawdy moved if the Writ should abate against the Bishop or no and VVyndam and Peryam clearly that it shall abate but if the Plaintif had averred the Ordinary to be a disturber then Judgement should have been executed but now he claiming nothing but as Ordinary and thereupon Iudgement given which is but conditionall upon the Plea of the Incumbent it seemeth that the Writ shall abate for there is none now to plead against the Queen But if the Bishop had been averred to be a disturber Patron then it had been otheâ—wise and Peryam resembled it to the case of 9 Hen. 6. where it is brought against the Patron and the Incumbent and the Patron dieth or the Incumbent the Writ shall not abate against the other But they commanded him to move it again when the Lord Anderson was present 3. EJectione Firme was brought by King against King and others Surrender who pleaded not guilty and now the Jury appeared and the Plaintif declared upon the Lease of one West Gawdy for the Defendant shewed that before the said Lease VVest had made a Lease for six yeares so that during that time this Lease could not be good the Counsell of the Plaintif confessed the said Lease for six years but said further that it was surrendred VVyndam demanded where that surrender was made and it was answered in London and the Land lay in Essex Was the surrender said VVyndam made in London Out of possession and he out of possession and the Land in Essex What surrender call you this And the Justices laughed at this evidence and so did the Serjeants for the Defendant concluding that it was not good without question And so the Plaintif was Nonsuite and the Iury discharged incontinently 4. SHuttleworth shewed how Hurleston was Plaintif in an Ejectione Firme Traveâ—s and declared upon the Lease of one Pinchine to which the Defendant said that before P. had any thing c. one E. Roberts was seised in Fee in right of Fayth his Wife and so being seised made a Lease to the said P. If the said E. R. so long should live whereby P. being possessed made a Lease to the Plaintif and shewed that the said Roberts was dead and the Defendant as servant to the said Fayth entred and Ejected him now he demanded what he should Traâ—erse in this Plea VVyndam This is a shifting Plea Peryam Is this Plea true Shuttleworth No Sir Peryam Then you may trice him upon this Plea for you may Traverse the seisin in the right of his Wife without doubt or you may Traverse any other part thereof and VVyndam and Rodes agreed clearly thereunto for the seisin Anderson absente 5. AN Action of the case was brought upon an Assumpsit Jeofayl the
Defendant pleaded non Assumpsit and the issue was found for the Plaintif and now Gawdy spoke iâ— arrest of Judgement because the Plaintif had alledged no place of the Assumpsion No Place of the assumpsion and he said that when an Issue is mis-tried it hath been adjudged here that it is not helped by the Statute and here is no place alledged whereupon the Tryall may be Peryam The opinion of many hath been that the Statute shall be taken most strictly but in my opinion it shall be taken most liberally so that if a verdict be once given it shall be a great cause that shall hinder judgement wherefore allthough no place be shewen yet when it is tryed and found it seemeth that he ought to have judgement and so was the opinion of the Court Anderson absente 6. AN Action upon the case was brought in Staffordshire by Whorwood against Gybbons Consideration how in an account between them the Defendant was found in Arrerages and in consideration that the Plaintif differreret deem solutionis debiti praedicti per parvum tempus the Defendant did assume to pay it and upon Non assumpsit pleaded it was found with the Plaintif and it was alleged in arrest of judgement that this was no consideration And the opinion of the whole Court Absente Anderson was that insomuch as the Proviso was made by him by whom the debt was due that it is a good consideration and that it is a common course in Actions upon the case against him by whom the debt is due to declare without any words in consideratione And allthough that Gawdy moved that parvum tempus may be three or four hours or dayes which is no consideration yet for the cause alleged the Court sayd that they saw no cause to stay judgement 7. AN Action upon the case was brought for these words Scandal Thou dost harbour and maintain Rebels and Traitors and the issue was found for the Plaintif and the judgement was entred by the Pregnotary yet notwithstanding Walmisley moved the Court to have regard unto it for the Action was not maintainable for if a man keâ—p Theeves and do not know them to be Theeves he is in no fault and an Action for these words will not lye and the Plaintif hath not averred that the Defendant sayd that the Plaintif knew them to be Traytors Peryam The Action in the Kings-bench was that the Plaintif kept Theeves and there if there be no such averment the Action is not maintainable Maintain but here is the word Maintain and that word implyeth a thing prohibited and therefore not sufferable and therefore I think the Action is maintainable and by the opinion of VVindham Peryam and Rodes the Action was well brought Anderson absente propter agritudinem 8. AN Action upon the case was brought by Richard Body against A. Consideration and declared that whereas Kary Raleigh was indebted to Body in 14l and the said A. was indebted to Raleigh in 50l in consideration that the said K. R. allocavit eidem A. 14l promisit ei ad exonerandum eâ—ndem A. de 14l parcell praedict 50l the Defendant did assume to pay to the said Plaintif the said 14l and the Court was moved if this were a good consideration to bind the Defendant And the opinion of all the Court Anderson absente was that the Consideration was good for that he was discharged of so much against Raleigh and Raleigh might also plead payment of the 14l by the hands of the Defendant 9 AN Action of Assault and Battery was brought Assault and the Defendant was condemned by nihil dicit and a Writ to enquire of damages went forth and then the Attourney of the Plaintif died and another Attourney without Warrant prayed the second Judgement and Execution Warrant if this shall be error or no it was moved by Fenner And the Court gave their opinion that if in an action after Judgment the Attourney dye a new Attourney may pray Execution without Warrant but in this case because that he died before the second Judgement it seemeth that he ought to have a Warrant of Attourney for the first Judgment is no finall Judgement And the Pregnotaries said that if after the first Judgement one of the parties had died the Writ should abate quod fuit concessum per curiam And also Fenner moved that this shall not be within the intent of the Statute of Jeofayles which speaketh of Verdicâ—â— Verdict for this shall not be said a Verdict whereto the Court agreed for a Verdict is that which is put in issue by the joyning of the parties 10 A Woman brought an action Covenant and she Covenanteth that she shall not do any act to repeal to discontinue to be nonsuit or countermand this action and hanging the Writ she takes a husband whereby the Writ abateth Now Fenner moved if she had broken the Covenant VVindam If one be bound that he shall not attorn and he make an Attornment in Law Attornment the Obligation is forfeit without question Assignment Rodes If I be bound not to make in Assigâ—ment of such a thing and I devise it by my will this is a forfeiture as it is in 31. H. 8. Fenner there is a case in Long 5. E. 4. If one be bound to appear at the Sessions c. and. I am to make a plea in this case and I would know your opinions VVindham You may plead according to the truth of your cause for that shall not change the Law therefore plead what you list 11. DEbt was brought upon an Obligation Condition the Condition was to perform Articles contained in an Indenture and one Article was that the Defendant Sir William Drury should plead the generall Issue or aâ—issuable Plea or such a Plea in quo staret aut persisteret within seven dayes next ensuing The Defendant sayd that he pleaded such a Plea and shewed what and averred that it was sufficient and issuable within seven dayes The Plaintif demanded judgement if to this Plea he shall be received for he appeared in Michaelmas Term in which he ought to have pleaded and took imperlance over unto Hill Term And Fenner shewed that in truth an issuable Plea was pleaded and drawn in paper in Mich. Term and the Plaintif replyed and the Defendant rejoyned and the Plaintif surrejoyned and theâ— by assâ—â—t in Hill Term all this was waved and an imperlance of the other Term entered forfear of a discontinuance and now he would have the Obligation of five hundred pound forfeited by this And the opinion of the Court Anderson absente was that the Obligation 〈◊〉 was forfeit for the Plea ought to have been entred of Recordâ—◠〈…〉 be bound in an Obligation to appear here at a certain day Appearance entred allthough he do appear at the same day yet if his appearance be not entred upon Record his Obligation is forfeit Peryam If the Plaintif deny that
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
be Fidi Rodes I know a Wife which is called Troth in English and she was called Trothia in Latin and it was good And all the Court adjudged this Writ good here 11. AN Action upon the Statute of Winch. was brought against a hundred in Gloucester Hue and 〈◊〉 and the Jury found a speciall Verdict viz. that the money was delivered to a Carrier of Bristow to be carried to London who packed it up And as he was on his journey certain Malefactors came to him in an another Hundred and there took his Horse and Pack and led him into a Wood within this Hundred against which the action is brought And if this Hundred be guilty or no they prayed the advise of the Court And all the Justices agreed that this was a robbery in the first Hundred and not in the second for upon the first taking he was robbed but if the Carrier had led the Horse himself Possession then it should be adjudged to be in his own possession and no robbery untill he came into the second Hundred and if a man have money and the Malefactors take him in one Hundred and carry him unto another Hundred and there Rifle him this shall not be a robbery in the first but onely in the second Hundred for he is allwaies in possession per totam Curiam and Judgement was given accordingly So of the purse picked in the Kings Bench and the thief taken with the manner but a key being fastened to the purse still stuck in the pocket and 2 Justices against two that the man was still in possession of his purse and so no robbery 12. WAlmisly shewed Termor how a woman brought Dower against her two daughters and another and in truth the third was but a Termer and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term for they all have made default at the grand cape and now he prayed to be received and shewed cause that the Husband made a lease for yeares and after the Lessee levied a fine to the Lessor and they granted and rendred back again to the Lessee for the same yeares rendring the same rent and the Statute of Gloucester is if the Farmour have c. that is if he may have covenant as in 19 Ed. 3. and here he may have covenant Ejectione firme and prayed to be received and shewed his plea. Shuttleworth You are at no mischief for you shall have an ejectione firme if you be ousted where she hath no cause of Dower Walmisley But we shall be put out of possession which shall be no reason Anderson I hold that a Termer may falsify by the Common law Falsify Shuttleworth But his lease is after our title of dower Lesser may plead destruction of dower Peryam although that it be after yet if he have matter which goeth in destruction of the Dower he shall falsify well enough as if she have title of Dower and five yeares pass after the fine levied And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession but here the Termer is named ideo quare And after at another day Shuttleworth moved it again Resceit of the partie to the Writ and said that the Termer shall not be received because he is named in the Writ and the Court was of the same opinion then but they said that he might plead speciall non tenure Shuttleworth first he ought to save his default for he commeth in upon the grand cape Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there Shuttleworth Then I shall have judgement against the two which made default at the grand cape Conusance Curia you had best be advised lest the Writ should abate by non tenure of parcell Cemurier Shuttleworth by my Conusance of non tenure of parcell Difference all shall abate but if I demurr upon his plea then it shall abate but for one parcell 13. LEonard White brought a Formdon in Discender and declared of a gift in tayl made to his father Estoppell who died and the land descended to the elder brother of the Demandant who also died without Issue and so conveyed to himself as heir in tayl c. The Tenant pleaded that the elder brother had Issue a Daughter who levied a fine to him and he relied upon the fine and proclamation Inducement doth 〈◊〉 make a plea double Walmisly this Plea is double the one is the Issue the other the fine Curia forasmuch as he cannot come to the one without shewing the other it shall not be double also here he relieth upon the Estopple vide 18. E. 3. 25. Tit. Gard. per Wylly 14. A Formdon in descend by three brethren for lands in Gavelkind they were at Issue upon Assetz descended to the Demandants Assets in Gavelkind And the Jury found a speciall Verdict that the Father of the Demandant was seised of those lands and by his Testament devised them to his three sonnes now Demandants and to their heires equally to be divided And if this shall be said a descent to them or no was the question because the Law would have done as much and therefore it shall be said Assetz But all the Court held the contrary and that they shall be joynt-Tenants or Tenants in common and then they shall not be in by the descent and so no Assetz and Anderson said that if a man devise to his sonne and heir in tayl he shall not take it by descent Peryam if a man may have any more benefit by the Devise than by the descent then he shall take by the Devise Eadem lex per Curiam if he devise his lands to his two daughters and heires they shall be joynt-Tenants and no coparceners è contra if he have but one son or one daughter only 15. IN the Exchequer Chamber all the Justices of the Common Pleas and the Barons of the Exchequer Venus were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator who pleaded plenè administravit and the action was laid in Barkshire at Newbery and the Plaintif averred that the Defendant had Assetz at Westwood in the same County and the venire facias was of Newberry whereas it should have been of Westwood And this he assigned for Error And all the Court agreed una voce that it was Error and so the judgement was reversed but the Assetz being transitory might have been assigned at Newbery 17. ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him Amendment and assigned for error that the judgement was quod recuperet versus Edward Seymour
and did not say praedict Edward Seymour And all the Justices agreed that this was amendable And so the first judgement was affirmed 18. ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench Rent suspenpended and the Case was such A man makes a lease of ten acres for ten yeares rendring rent upon a Condition the Lessee grants 5. acres thereof to a stranger for five years and after grants the residue of the years in the five acres to the Lessor And after the Lessee broke the Condition whereby the Lessor re-entred and if he may do so or if the Condition was suspended or no was the question because he accepted a future interest in parcell Future interest Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended and now this was assigned for error And all the Justices except Anderson and Peryam held that it is not suspended before he had entred by force of his lease Anderson If I make a lease as here upon Condition and waive the possession this may be suspended before his entrie Cook This is another case Peryam But the reason thereof commeth well to this case And afterwards because the said two Justices dis-assented from the rest it was adjourned over 19. ANother Writ of Error was there brought upon a judgment given in the Kings bench Trover And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices If a man lose his goods which come to the hands of another he converteth them to his own use and after the owner dye Day and place of conversion whether his Executors shall have an action of the Case for this Trover and whether he ought to shew the place and the day of the Conversion or no And the Counsellours at the bar said that he ought to shew both for so it was adjudged where an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation and it was found that he had broken the seales c. and because he did not shew the time and place of the Conversion he could never get Judgement And now the Justices were of the same opinion but yet Anderson seemed to doubt Peryam Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator and the doubt is if they shall have an Action upon the Case Manwood if a man hath another in Execution for debt and the Gaoler suffer him to escape and after the Recoverer dyes shall his Executors have an action against the Gaoler Cook No. Peryam So it seemeth But Anderson Manwood and VVindam clearly to the contrary and that they shall have debt upon this Escape Cook But not an Action upon the Case at the Common Law and here by his own shewing he might have Trespass vi armis and therefore not this action De Term. Trinitat An. Reg. Eliz. xxx 1. RAlph Heidon brought a Writ of Right against Smethwick and his Wife Droit of two parts of forty Acres of Land in Surret and they pleaded that one Ibgrave was seised and devised it to his Wife now one of the Tenants for term of her life the remainder to Benjamin Ibgrave in fee Praying ayd in an Assise which was his heir and dyed and they prayed in ayd of B. I. who came and joyned to them and thereupon they came and pleaded to the grand Assise and the first day of this term the Assise appeared and sixteen were sworn whereof four were Knights and the residue were Squires and Gentlemen and the title was all one as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part And the opinion of all the Court clearly that it is not ayded by the Statute for there is not any certainty in the Grant Name certain but if he had given it a certain name as green Acre then allthough he had mistaken the Parish yet it had been good enough Peryam The Assise may goe their way and they did so and after they being agreed came again to the Bar and the Demandant was called and did not appear whereby the Tenant prayed the Court to record the Nonsuit and it was done Curia All is one as if he had appeared Non-suits for this Non-suit is peremptory for ever the issue being joyned upon the meer droit aliter if the issue had been joyned upon any collaterall poynt 2. IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass Challenge VValmisley This Inquest you ought not to take for it is favourably made by the Sherif which is within the distress of one of the Plaintifs and shewed how the Sherif held certain lands of a Mannor now in question whereof Lister hath possession and allso hath certain lands for term of years of him and the Plaintifs moved that he ought to take one cause onely 1 Cause Curia He may allege both for the challenge is that he is within the distress and the allegations are but evidence to prove it and then the Plaintif sayd not within his distress whereupon the Court appointed Tryers and the Defendant sayd that all the Jury are favourable Tryors refused and prayed Tryers de circumstantibus Gawdy That cannot be but onely in an Assise and cited 9 Edw. 4. Curia We cannot appoint other Tryers in this case but only of the Jurors wherefore let the fourth and seventh be Tryers but you may refuse them and take others if you will and thereupon the Defendant refused the fourth whereby the third was appointed and they found the Array favourably made and therefore it was quashed 3. A Recovery was had by Arthur Mills against Sir Owen Hopton of divers lands twelve years passed Amendment and by the negligence of the Attorney Warranty of Attorney no Warrant of Attorney was entred for him and now suit was made to the Justices that it might be entered and they all consented thereunto and so it was entered incontinently but first the party made a corporall Oath that he had retained an Attorney and that this was the negligence of his Attorney 4. IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor Arbitrement and sayd that there was an Error in the Record Error not assigned which was not assigned and prayed that it might be examined allthough that it was not assigned because that it appeared in the Record which was agreed to by the Court. And then he shewed the case that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others and they Arbitrated that the Plaintif in this Writ of Error should release to the now Defendant all Actions which he might
the Declaration ought to agree with the Writ 14. A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster Administrators in an Action upon the case brought against one as Administrator And did not shew by whom the Administration was committed which he ought to have done by 32 Hen. 6. 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant And whether this were a good consideration was another doubt and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid And at this day it was held that when an Action is brought against an Administrator it need not be shewed but in an Action brought by them clearly they ought to shew it And for the other matter whether the Plaintif needed to aver that they had Assets besides the Debts c. it was said that this ought to come and be shewn on the other part And for that Woodwards case in the Commentaries was cited And the next morning Puckering shewed that he had a report of a Judgement given in the Kings Bench that it is not necessary to shew that they had Assets besides the Debts and Legacies c. And therefore he prayed that the Judgement may be affirmed And so it was for Rodes had seen the report of Puckering according to his saying and testified the same whereby Judgement was here given against the Administrator Anderson being in the Starchamber 15. IT was agreed by all the Justices Herriot that for a Herrioâ— service the Lord cannot distrein out of his Fee no more than for a Rent but he may seise a Herriot Custom out of his Fee 16. A Man was outlawed Vtlary and the Sherif retourned the Proclamation tali die omnes singulas proclam fieri feci And did not shew that such a day he made the first and such a day the second c. and this was assigned for Error and prayed that the Utlary night be reversed and so it was 17. FLeetwood shewed that this case came in pleading Rent-service A man had a Rent service payable at the Feast of St. Michael And on Michaelmas day he died about ten of the clock in the morning now he demanded whether his Heir or his Executor shall have the Rent Anderson Hath he not all the day to pay it and upon condition to pay such a sum he may tender it any time before Sun-set Peryam But if the party accept the payment in the morning it is good Curia If it be a case in this Court you ought to demur as your case is and not to be thus Politick 18. A Writ of Error was brought upon a Judgement in the Kings Bench Abatement and one of the parties died hanging the Writ And the Court held this to be an abatement of the Writ and that he ought to purchase a new Writ De Term. Mic. Anno Reg. Eliz. xxx xxxj 1. AFormdon was brought against Haselwood and Haselwood Abatement and the one took the Tenancy of the one Moity Dier 3. 4. Phil. Mar. 134. Absque hoc that the other had any thing therein and pleaded in abatement of the Writ and the other took the Tenancy of the other Moity and vouched Shut Shall I maintain my Writ or answer to the Bar of the other Tota Curia You must needsmaintain your Writ Anderson Where the pleading is such as your Writ cannot be good there it is a ground that you ought to maintain your Writ Praecipe quod reddat but if a praecipe quod reddat be brought against two and the one plead Nontenure and the other accepts the entire Tenancy Absque hoc c. and doth plead in Bar there you may answer to the Bar because there peradventure the Writ is good notwithstanding As if a Writ be brought against the Feoffor and Feoffee upon condition or Morgagor and Morgagee and so there is a diversity 2. IN a Quare impedit brought by the Queen against the Archbishop the disturber Vtlary and the Incumbent the disturber pleaded that long time before he had any thing in the Advowson by whose Utlary the Queen is intitled King Ed. 4. was seised of the Honor of Haststings and granted it to the Lord Hastings in Fee and further granted omnia bona catalla omnium teneutium ejusdem honoris sive manerii residentium non residentium qui forent utlagati c. and so conveyes the Honor by descent to the now Lord Hastings and did not aver that he which was Utlawed Averment was a Tenant of the Honor. Curia It is not good without doubt for otherwise he is not within compass of the Grant and therefore a day was given by which if the Defendant did not shew better matter the Queen should have Judgement 3. IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford Devise and other Defendants Glocester And upon not guilty pleaded Hit 30. Eliz. rot 188. the Jury found a speciall Verdict viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell and of divers other Tenements within the same Parish and within a place known in the same Parish which is neither Town nor Hamlet called Ebney in which Samford had a Tenement which hath Lands time out of mind perteining thereunto lying as well in Ebney as in Stone-house which Tenement is in the Tenure of one Bucher by Copy of Court-roll according to the custom of the Mannor Afterwards William Samford deviseth to his Brother after the death of Bucher all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney Now the question was whether the Lands in Stone-house perteining thereunto shall pass or no And the famous Cook argued that it should pass for this word Tenement referreth to his dwelling which is in Ebney and not to the place where the Lands lie And therefore he said that words ought to have relation ut ne impediatur sententia sed ut res magis valeat quam pereat Quare impedit and he cited 4 Ed. 3 in a Quare impedit quod permittat praesentare ad ecclesiam de Mourton Majorem and the Defendant demanded Judgement of the Writ for false latin because of Majorem and yet it was adjudged good for it shall be referred to ecclesiam and he cited 19 Ed. 3. 3 Ed. 4. Allso it passeth by this word appurtenances for there was such a Chambridgshire case here within this Twelve-month where a man gave instructions to another to make his Will in this form I will that B. shall have my House with all my Lands thereto apperteining And the other made it in these words I devise to B. my house with the Appurtenances and it was adjudged that
rather to the contrary For common intent is that which shall be intended more strong than any other and not that which resteth indifferent As if a man Plead a Feoffment in fee it shall be intended that the Feoffer was of full age but here common intent is that he was another person because Barber Chirurgeon and Tayler are divers functions by common intent And as to the case put by common intent it shall be intended the same Westm because the place is so notorious that common intent will nor intend any other But Peryam would not grant that case of 21 H. 7. At another day Gawdy said that they have a President in 16. Eliz. where an action was brought here against the Administrator of Francis Fitzherbert Mercer And they pleaded likewise a Recovery in the Kings bench against them as Administrator of F. F. Grocer and allowed for good and in 10 H. 7. wast is brought and doth not say praedict and yet good Peryam For the cases in 10. H. 7. 21 H. 7. It was all in one Plea but it is not so here And for his President Anderson and Peryam said that they would not regard it if it do not appear that Exception was taken thereunto if the Presidents be shewen for matter Matter 〈◊〉 Form 〈◊〉 Presidents but if they be shewen for form then otherwise it is Anderson If I. S. bring a Praecipe against me and I vouch I. S. it shall not be intended the same person â—oucher if he do not say expresly that he is the same person therefore a Fortiori here it shall not be intended the same person Afterwards the next Term Shuttleworth argued again that it shall be intended the same person but all the Court was against him and so they gave judgement for the Plaintif 19 FEnner shewed how Bartholmew Brooksbie hath brought a Quare impedit A thing in action released and declared how A. was seised of the advowson in fee and graunted to him and another the next avoidance and after the church became void and the other released to him all his right c. and the Defendant disturbed him And after they pleaded to issue which was found with the Plaintif and this matter alleged in arrest of judgement that the Release was void and then he hath no cause of action for when the Church became void then it was a thing in action or actionary and therefore could not be granted over by 28 H. 8. Interest shall survive and by the same reason it cannot be released as 1 and 2 P. and M. and 2 and 3 P. and M. in Dyer Anderson If it be an interest it shall survive and by the same reason it may be released And it shall goe to his Executors wherefore then may it not be released Et adjornatur De Term. Mich. Anno xxxix xl Eliz. Reg. 1. TIsdale Maintainance one of the Attorneyes of the Common pleas brought an Action upon the Statute of Maintainance against John al Tree in Chancery lane for Maintainance in a Spirituall Court and by all the Court an Action is not Maintainable for Maintainance in an inferiour Court for this word alibi being in the Statute was expounded to be meant of the Kings Court onely and in the argument of the same case Drew remembred the Court of a Judgement given there in the like case for one Constantine of Wiltshire 2. BEtween Brown and Lother an Action was brought in the Spiritual Court Consultation for these words Thou art a forsworn Knave for thou madest a false account when thou wert Churchwarden and thereupon the Defendant brought a Prohibition supposing the discussing of Perjury to belong to the Temporall Court and upon the opening of the matter to the Court the Plaintif had a consultation because the Perjury was supposed to be committed about the execution of his Office of Churchwarden which doth belong to the Spirituall jurisdiction But otherwise it had been if the Perjury had been supposed to have been committed concerning a Feoffment or other Temporall act per Walmisley Owen 3. BRoughton against Flood Amendment the originall Writ was returned by Needham Esquire Sherif and his Christian name left out Williams moved the Court to have the Christian name of the Sherif put into the Writ but the Court denyed it because the Record was made up and likewise by this means they should make an Outlary good which was now erroneous 4. IN an Advowry the Defendant saith Venue that locus in quo c. is parcell of the Manner of Dale and avows for suit of Court the Plaintif by replication saith that locus in quo c. is parcell of the Mannor of Sale and maketh to himself a title absque hoc that it is parcell of the Mannor of Dale and the Venire faciaâ— was of Dale onely and upon motion all the Court adjudged that it ought to have been of both Mannors and made a rule for stay of Judgement after Verdict This was the case of Atwood of the Middle-Temple 5. IT was sayd by Anderson and Owen Prohibition that a Prohibition will not lye after a sentence in the Spirituall Court and that if the Libell be for such a matter as may be determined in the Spirituall Court no Prohibition will lye unless some Plea be pleaded by the Defendant in that Court which the Judge will not allow For if a Suit be in the Court of Admiralty upon a contract made upon the Sea and the Defendant pleaded a release or a gift after the coming to Land that Court may enquire and try this issue the like for Tythes 2 Rich. 3. 6. IT was sayd by Drew in the Argument of the case between Râ—theâ—â—â— and Green Common that if a Commoner take a Lease of one Acre out of which his Common is issuing that his whole Common is suspended Rent allso where a Lease for years is rendring Rent and for default of payment a re-entry if the Lessor grant the reversion of one Acre Condition the whole condition is gone Also that an entry by the Lessor into any parcel suspends the whole rent during his occupation and Anderson sayd that there is no Common by common right but Common appendant 7. ADams brought an Action of Debt upon an Obligation against Oglethorp Restitution the Defendant pleaded that after the making of the Obligation Trin. 39 Eliz. 〈◊〉 1803. the Plaintif was attainted of Treason for Coyning and pleads the Attainder at length the Plaintif confesseth the Attainder and saith that afterwards the Queen by Letters Patents did pardon him and did restore unto him omnia bona cattella sua and thereupon the Defendant did demur in Law the question was whether Debts by specialty be included in those words 8. EVeling against Leveson Executor of the Testament of Walton Assets in effect the case was this The Queen was indebted to Walton in a hundred pound for
the Lessee re-entered into the Close Rent extinct by empairing the estate and whether the rent were revived or not was the question And Popham and Gawdy The rent is not revived and that the Lessee shall hold the Close discharged of any Rent by the folly of the Lessor to impair the estate of the Lassee 16. DOwnall brought a Writ of Formdon against Catesby in the Common-place Error and there was a speciall Verdict found and Judgement given for a default in the Writ against the Plaintif and the Plaintif brought Error and alleged for Error that after Verdict given no default in the Writ shall prejudice the party per le Statute de 18 Eliz. cap. 14. Popham chief Justice sayd if there be no Writ it is holpen by the Statute Insufficient Writ â—ot holpen but it is otherwise if there be an insufficient Writ in matter for that is not holpen but a Writ that is insufficient in form and sufficient in matter is holpen And in every Writ of Formdon there are two things requisite the one is the gift the other the conveyance to the Demandant and if either of these two fail the Writ is insufficient in substance and is not holpen by the Statute 17. PEter Palmer of Lincolns Inne brought an action upon the case against one Boyer Slander of a Counsellor at Law and declared how he was an Utter-barrester of the Law and got his living by practising of the Law and was Steward of divers Courts and namely of one John Petty Esquire and the Defendant praemissorum non ignarus to the intent to prejudice the Plaintif in his good name and practise sayd of the Plaintif these English words viz. Peter Palmer is a paltry Lawyer and hath as mâ—ch Law as a Jackanapes and it was pleaded in arrest of Judgement that the words would not maintain an action for they are not slanderous for it is not sayd he hath no more Law than hath a Jackanapes for then it had been clear that the action is maintainable for by that he had abated the opinion of his Learning but it is not so in this case for the words are that he hath as much Law as hath Jackanapes and this is no impeachment of his Learning for every man that hath more Law than Jackanapes hath as much Et non allocatur for the comparison is to be taken in the worst sense and tant amounts that he hath no more Law than Jackanapes per quod Judgement was given for the Plaintif for this is a slander in his profession by which he doth acquire his living 18. ONe libelled in the Spirituall Court for Tithe of Billet Prohibition Faggot ' and Talwood And averred that it came of Birch Maple Hasell and Hume and thereupon a Prohibition was sued surmising that they came of Oke Ash Elm and Birch And in the Spirituall Court allbeit one Libell for wood of one nature and that is found of another nature yet sentence shall be given for the Plaintif The Court said that was absurd Absurd practise of the spirituall Court and therefore they would hear a Civilian speak to that point Cook Attorney Generall If consultation shall not be granted then farewell all Tithe of Wood for in truth in every faggot of Birch there is put a great stick of Oak or Ash intending by that to privilege the whole faggot of Tithe Nam crescit in orbe dâ—lus Webb Clark said the cunning is of your side to Libell for fagot For if you had Libelled for Maple Birch or Hasell no Prohibition would have been sued And it was adjudged in this Court in Molins case one Libbelled for billet and fagot generally without shewing of what Wood they were made And upon pleading upon the Prohibition Partable tithable it appeared to the Court that part was tithable and part not And for that they could never obtain a Consultation Cook It doth not appear here that there was any mixture so the case is not like Webb You have no Right to have Tith of fagot for that part thereof is not tithable being Oak so by your Covetousness to have more than is your Right you have lost that that is your Right Et adjornatur And after at another day in the same Term it was moved again by Savile Lanes case which said that it was adjudged in Lanes case that tith shall never be paid for Hasell-wood wich is mixt with Oak in fagots quod Gawdie negavit Fenner He ought to have pleaded the speciall matter to have had a Consultation Seeciall pleading viz. how much of the fagot was Hasell for so it was done inter Molius Dames And therefore forasmuch as it is not so done Consultation shall not be granted for no part of that and of this opinion were all the Justices quod nota 19. NOta per Master Kemp Secondary of the Kings Bench Office Appearance if a Latitat goeth forth against the Husband and Wife and the Husband onely is taken The Husband shall find surety for himself and his Wife or otherwise he shall lie in Prison untill he find bail as well for his Wife as for himself and said that this hath been the use of the Kings Bench by the space of forty years of his knowledge 20. SCire facias was brought by Middleton against Hall Usury after Judgement to execute a Judgement The Defendant pleaded that he borrowed of the Plaintif 100. l. to give him 120. l. for the loan thereof for a year And the Plaintif for his assurance would have the Defendant confess this Judgement of 120. l. And so he pleaded the Statute of Usury in bar to this Scire facias and upon that the Plaintif demurred in Law Godfery prayed Judgement for the Plaintif The words of the Statute of Usury are all Bonds Contracts and assurances Collaterall or other made c. shall be utterly void But here this Judgement may not be said any assurance for the money but is a Judgement upon the assurance for which c. Clark contra But the whole Court being twise moved held clearly that this is no plea to defeat a Judgement But if such matter had been the Defendant ought to have pleaded that upon the first Action in bar and so not to suffer the Judgement Popham Here are two inconveniences one to defraud and defeat the Statute of Usury the other to avoid Judgements upon such suggestions which might be pleaded in bar in the first Action and after the Plaintif had Judgement to recover 21. MArtin Slander of an Attorney Attorney of the Kings Bench brought an Action of the case against Burling for slanderous words viz. Martin is he your Attorney he is the foolishest and simplest Attorney towards the Law And if he do not overthrow your cause I will give you my ears he is a fool and an ass and so I will prove him If these words be actionable or not was the question
in arrest of Judgement after Verdict for the Plaintif and the Court seemed prima facie that they are not But after the case was moved by Harris for the Plaintif and then by the consent of all the Court Judgement was given for the Plaintif And Popham said that to say that an Attorney will overthrow his Clients cause is an Actionable slander 22. COllet brought a Writ of Error against Marshe Error for non summons upon a Judgement given in the Common place in a praecipe quod reddat And assigned for Error for that by the Statute de 31 Eliz. cap. 13. it is inacted for the avoiding of secret summons in reall Actions without convenient notice of the Tenants of the Freehold that after every summons upon the Land in any reall Action fourteen daies at the least before the Retorn thereof Proclamations of the summons shall be made on a Sunday at or near the most usuall door of the Church or Chapell of that Town or Parish where the Land whereupon the summons were made doth lie and these Proclamations so made as aforesaid c. ut in Statuto And in this case there was not any Proclamation made at the Church door And whether the Plaintif shall have an Averment against the Sherifs Retorn was the question And adjudged that the party shall not have the Averment against the Retorn of the Sherif No averment against a Sherifs retorn For if the Retorn be false the party shall have an Action upon the case against the Sherif 23. POrtman brought an ejectione firme against Willis and a speciall Verdict was founâ— that Roger Hill was possessed of a Lease for years and gave divers personall Legacies to severall persons and gave all his other goods and Chattells to his Wife and whether the Wife shall have this Term being a Chattell reall or not was the question 24. GRay brings Trespass against Trowe Fish in a pond for entring into his Close and taking of Fish out of a Fish-pond with nets and other Engines The defendant pleaded that long time before the Trespass was done one Thomas Grey was seised of the Close and Pond and put the Fishes into the Pond and after the said Thomas Grey made the Defendant his Executor and died And he as Executor took the said Fishes Chattells descendable and upon that the Plaintif demurred and it was adjudged that the Heir shall have the Fishes in the Pond and not the Executors Felony for they are Chattells descendable but by Clinch it is Felony to take them Popham If they be in a Trunck so that they may be taken out by the hands of men without nets or other Engins there it is Fellony but otherwise it is not Fellony 25. THynn brings Debt against Cholmeley for 300. p. of arrerages of a nomine poenae Nomine poenae against an Assignee and declared of a Lease for years made by him to one Agar rendring Rent And if default of payment be made of payment of the said Rent at any day in which it ought to be paid that then so often the said A. his Executor and Assignes shall pay 3. s 4. p. for every day untill the aforesaid Rent so behind shall be satisfied And shewed how the Rent was behind and not payed for two years But doth not say that he demanded the Rent Jackson The sum demanded is by computation more than is due reckoning but iij. s iiij d. for every day that the Rent is arrear And if that be his intent he demands too little for in two years that will be infinite Gawdy It seemeth that he shall not have but onely iij. s iiij d. for every day Fenner I think he ought to make demand of the Rent or otherwise he shall never have the nomine poenae Gawdy No truly no more than in debt upon an Obligation and he cited 21 Hen. 6. 21 Edw. 4. 22 nomine poenae Fenner The cases are not alike In demand for in debt upon an Obligation there is a duty but otherwise it is of Rent And it was agreed that the action well lieth against an Assignee in this case 26. HUmphrey Parlor brought an Action upon the case for words against I. S. And the words were these Slander viz. Parlor was in Prison in a Jail for stealing of Mr. Piggots Beasts and it was pleaded in arrest of Judgement that the Action doth not lie forasmuch as it is not presciely alleged and affirmed that he stole the Beasts But by Implicatior Nevertheless Judgement was given for the Plaintif for by Fenner if he had said he had been in Prison for suspition of stealing Mr. Piggots Beasts no Action will lie for a treue man may be suspected But here is a direct affirmance of stealing For a man cannot be imprisoned for stealing if he do not steal 27. THe Earl of Pembrâ—ok brought an Action upon the case against Henry Barkley militem Proviso and the case in effect was such that the late Earl of Pembrook Father of the now Plaâ—ntif was seised in Fee of the Mannor of D. in comâ—tatu Somerset and by reason of that he had the Office of Liuetenantship in the Forrest of Cromcelwood and of all the Walks in that And by reason of the said Office had all the commandement of the game within the Forrest and he so seised the Earl granted to Sir Maurice B. Father of the now Defendant and to the Heirs Males of his body the Keepership of a walk called S. in the West part of the Forrest and in the said Deed of grant were such words Provided allwaies and the said Sir Mawrice B. doth Covenant and grant to and with the said Earl of Pembrook that it shall and may be lawfull to and for the Earl his Heirs and Assignes to have the preheminence of the game within the said Walk Provided allso and the said Sir M. B. doth further Covenant and grant to and with the said Earl That neither he the said Sir M. his Heirs or Assignes shall or will cut down any Timbertrees growing within the said Walk And after Sir M. B. died and the said Sir H. was his Son and Heir and cut down Trees within the Walk And the Lord of P. commanded his servants to enter into the said West-walk and there to Walk And Sir H. B. did disturb them and upon that the Action was brought and the point of the case was if the wordes in the second Proviso make a Condition or but a Covenant Gawdy I doubt of the case for all the question of the case is if it be a Condition or but a Covenant And as I am now advised â—â—hit is but a Covenant and no Condition For in all cases where this word Proviso ought to make a Condition there ought to be a perfect sentence to explain the meaning of the parties or otherwise it is no Condition As if the wordes are provided allwaies that if the Rent be behind and
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
Plaintif replyed that it was made upon good consideration and traversed the delivery of the Copperas which was an evill issue clearly Issue misâ—oyned and it was found for the Plaintif and this was alleged in arrest of judgement and yet for that there was an issue tryed allthough it was mis-joyned the exception was disallowed and judgement was given for the Plaintif 16. AN Action of Debt was brought upon the Statute of Purveyors Issue because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty and it was moved that this was an evill issue for he ought to have pleaded nil debet and the Court commanded him to plead nil debet 17. WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild Ayd prier who was Tenant for life and they were at issue and the Venire fac issued in Michaelmas Term and now this Term the Defendant prayed in ayd which he sayd he ought not to doe beâ—â—use they have furceased their time for they ought to pray it when the Venire facias is awarded or otherwise they shall not have it and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion that he ought then to pray it or not at all 18. A Writ of Error was brought upon a judgement given in London â—orfeiture and this was the case Sir Wolstan Dicksey Alderman brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus who afterwards granted the reversion to Dicksey and the Tenant attorned and the rent was behind c. Spenser pleaded in bar that before the grant of the reversion to Dicksey Bacchus was seised and shewed the custom of London to make inrolments of deeds indented and then shewed that before the bargain to Dicksey he bargained the reversion to him by paroll and so demanded judgement si actio c. and this plea was entered upon record and hanging this suit Dicksey entred into the Land for a forefeiture of the term because he had claimed a Fee simple and Spenser re-entered with force and his servant with him but not with force and thereupon Dicksey brought an Assisse of fresâ— force against them in London and all this matter was there pleaded adjudged that it was a forfeiture of the term the Jury gave damages and the Court increased them and the judgement trebled as wel the damages increased as the others and allso the Iudgement was quod praedicti defendentes capiantur c. Increase of damages and thereupon Spenser brought a Writ of Error and assigned Error in the point of the Judgment because it was no forfeyture And allso because the Damages increased by the Court were trebled And allso because the judgment was Capiantur where but one was a Disseisor with force therfore it should be Capiatur Shuttleworth There is no forfeyture made by this Plea before triall had thereof Wast For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another this is no forfeyture so in Cleres case if he say that another is next Heir this is no forfeyture Quid juris clam And in 26 Eliz. here was a case in a quod jurâ—s clamat the Defendant pleaded an Estate tayl and after at the Assises he confessed but an Estate for Life and yet this was no forfeiture Curia None of us do rememember any such case here Walmisley Surely the case is so and I can shew you the names of the parties Anderson I will not believe you before my self and I am sure that I never heard of any such case Peryam If any such case had been here we would have made a doubt therof for ther are Authorities against it as in 8 Eliz. 6. R. 2. Plesingtons case Shuttleworth Allso theyhave said that the fresh force was brought infra quarentenam silicit quadraginta septimanas Quarentenae Scilicet a surplusage and the quarentena is but 40 dayes Curia That is no matter for the silicet is but surplusage and so no cause of Error Shuttleworth If a man disseise another without force he shall not be taken and imprisoned and therefore for this cause the Judgement is erroneous and allso the costs encreased are trebled and therefore erroneous Aydin Trespass and cited 22. Hen. 6. 57. Anderson In an Action of Trespass If the Defendant pray aid of a stranger this is a forfeiture and if it be counterpleaded yet it is a forfeiture then shall the deniall thereof make any change in the case surely no Proper acts in my opion And I say that Acts which come from himself are forfeitures Collaterall but Collaterall Acts Difference as in the case of Wast are not Walmisley In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him the Judgement shall be but that he shall Attourn And allso he cited 3 Ed. 3. 33 Ed. 3. 18 Ed. 3. 36 Hen. 6. 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall Quid juris clamat Anderson If one who hath no Reversion bring a quid juris clamat against Tenant for life this is a forfeiture of his Estate and as you have said if in VVast the Tenant plead the Feoffment of the Plaintif or non dimisit true it is that these are no forfeitures for you know well enough that a Feoffment is no Plea and then it is void and to say non dimisit is no forfeiture Peryam The Judgement given in Plesingtons case is not well given for it ought to have been quod pro seisina sequatur si volunt as in the case of Saunders against Freeman and he cited 10 Edw. 3. fol. 32. to that intent Wyndam The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented and he sheweth that his bargain was by parol and therefore void and then no forfeiture as if in Trespass a man prays ayd as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void Praying in ayd Anderson Allthough that it be so yet the pleading is that he bargained the Reversion and then this is good by parol in London therefore there is no doubt in that point Walmisley The Books in 15 Ed. 2. 25 Ed. 3. Importâ— that Judgement ought to be given before any forfeiture can be Forfeiture before Judgement Curia Without doubt he may take advantage thereof before Judgement as well as after if the plea be entred upon record Wyndam For the point of capiantur the Book is in 2. lib. Ass Pl. 8. Br. imprison 30. in 9. lib. Ass 12. lib. Ass Pl. 33 Br. imprison 40. Anderson Two may be Disseisors Present Disseisor absent Differance
Rodes Surely I have noted my book that Judgement is given and so I supposed that it had been 5. SHuttelworth moved that whether a Lease is made to a man oâ— his own Land by Deed indented Estopple this is an Estopple whereto the Court agreed But VVindham and Peryam sayd if the Lease be made for life by Indenture Livâ—ry that yet this shall be no Estopple because the Lease takes effect by the Livery and not by the Deed but Rodes did not fully assent to that Anderson was absent in the Staâ—â— chamber 6. DEbt was brought by Lassels upon an Obligation Hill 1â— Eliz. tot 1 511. with condition that if the Defendant did personally appear in the Kings-bench such day Stat. 23 Hen. 6 that then c. the Defendant pleaded the Statute of 23 H. 6. said that he was taken by the Plaintif being Sherif then by force of a Latitat and that the Bond was not made according to the Statute For being made for his deliverance this word personally was inserted in the condition more than is in the Statute And it seemed by three Justices Anderson absente that if it were in such an Action where a man may appear by Attourney that then it shall be voyd but now the question is whether the party ought to appear in proper person by force of a Latitat or no And some said yea and some said no. And the Plaintif shewed a Judgement given in the Kings bench for Sackford against Cutt. where Cutt. was taken by a Latitat and made such an Obligation as this is for his deliverance Sackford being Ballivus sanct Etheldredâ—e in Suff. and adjudged for the Plaintif that the Obligation was good And this was in the Kings-bench Mic. 27 28 Eliz. Rot. 575. but Peryam doubted of that judgement for peradventure he might appear by Attourney Ideo quare for that was the reason of the judgement given in the Kings-bench as it was sayd because he could not appear but in proper person 7. AN Action of Trover was brought for Goods Jeofayle and the Defendant pleaded a bargain and sale in open Market thereupon they were at issue and found for the Plaintif and now the Defendant spake in arrest of judgement because the Plaintif had shewed no place of conversion No place of conversion yet notwithstanding by the opinion of the Court the Plaintif shall have his judgement by the Statute Peryam If in Debt upon an Obligation he doe not shew the place 36 El. rot 266. yet if the Defendant plead a collaterall bar as a release or such like judgement shall be given for the Plaintif notwithstanding by the Statute if it be found for him by Verdict 8. THe case of Beverley was moved again at this day Utlary how the Queen had brought a Scire facias against him to shew wherefore she should not have the Presentation Walmisley It seemeth that she shall not have the Presentation for allthough we have recovered our Presentation Disseiser outlawed yet before execution we have but a right As if a man be disseised and after outlawed he shall not forfeit the profits of the land And allso she hath brought a Scire facias and this will not lie except for him which is party or privy Peryam After that you have recovered it is a chattle and then forfeited by the Utlary Anderson The judgment that he shall recover doth not remove the Incumbent and as long as he remains Incumbent the Plaintif hath nothing but a right Then Peryam sayd to Walmisley argue to that point whether he hath but a right or no but for the other point that she shall not have a Scire facias for want of privity that is no reason Recoverer in debt outlawed for in many cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and after am Outlawed Recovery in quare impedit shall the Queen have this debt Windham If I recover in a Quare impedit and dye who shall have the presentation my Executor or my Heir Sed nemo respondit Curia It is a new and a rare case and therefore it is good to be advised VValmisley Whatshall we in the mean time plead in bar to the Scire facias Curia Demur in Law if you hold the matter insufficient VValmisley Sowe will 9. ONe Combford was robbed within the Hundred of Offlay in Stafford-shire Hue Cry and he and his servant pursued the Felons into another County and there one of the Felons was taken and the Hundreds did nothing And now Puckering moved that he might have an Action against the Hundred Plaintif a Hundreder allthough that he himself was resiant within the same Hundred Hue and Cry by strangers but the opinion of the Court was against him for they sayd that if a stranger make Hue and Cry so that the Felons be taken the Hundreds are discharged Another question he moved because that but one of the Felons was taken Quaâ—re But quâ—re what was sayd to that for I heard not 10. FRancis Ashpool brought an Action against the Hundred of Evenger in Hampshire Hue Cry for that he was robbed there And the Jury found a speciall Verdict viz. that he was robbed after the setting of the Sun per diurnam lucem and that afterwards the same night he came to Andever which is in another Hundred and there gave notice of the robbery and the morning following the men of Andever came into the Hundred of Evenger and there made Hue and cry about ten a clock in the morning and that there were many Towns nearer to the place where he was robbed than Andever was and allso within the same Hundred of Evenger and that the Melafacters escaped and they prayed the advise of the Court. Now this matter rested on two points Robbery after Sunset the first was if he which is robbed after the Sun-set shall have the benefit of the Statute and the other was if he had made Hue and cry accordingly Hue and cry or whether any Hue and cry be needfull And Walmisley argued that he which is robbed after the Sun-set shall be helped by the Statute for they are bound to keep watches in their Towns to take night-walkers And to the second he said that the Statute doth not speak of any Hue and cry but only recens insecutio and that ought to be done by the Hundreders Shuttleworth to the contrary No distcess and that it ought to be in the day and cited Stamf. fol. 35. and after the Sun-set it cannot be said to be day For the Lord cannot then distreyn for his Rent per 11 Hen. 7. 4. nor demand Rent for he is not bound to be there after the Sun-set and he vouched Fitz. titulo core 302. but at this time the Judges seemed to hold for the Plaintif Anderson The Countries are bound by the Statute to
charges except Rents and Services which shall be due after c. to the chief Lord And afterward he made and levyed a fine And after the Wife maried and then the Son entred and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares Walmisley It seemeth that Judgement shall be given for the Plaintif because it was not discharged at the time of the Feoffment For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age Com. fo 539. after at his full age the Son shall have it so that there it was chargable to the Entry of the Son hereafter And here allthough that it be not presently charged yet when there is a charge arise the Covenant is broken And for that in 8 Eliz. a man bargains and sells Land Rent charge future and Covenants that it shall be discharged of all charges and he had granted a Rent before to begin twenty years after when the Rent begins it shall be said a breach And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land c. And so I think Judgement shall be given for the Plaintif Fenner to the contrary and here the Term was extinct by the grant end sale and then the Feoffment void and therefore no charge and thereupon no charge at the time of the Feoffment and for that he cited 42 Ed. 3. 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed c. so here in that she took nothing by the Feoffment there was no charge at the time of the Feoffment And this possibility of a remainder doth not make an interest and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 Resceit upon Cond where Tenant for life lets the Land to one upon condition that if he dye in the life of the Lessor that it shall retourn to the Lessor c. upon such a matter he may be received and he cited for that the case of Wheler 14 Hen. â— fol. 17. and a title suspended is no title 3 Hen. 7. 12. 30 Ed. 3. Lease for life upon condition that if the Rent be behind then he shall retain the Land c. and he said that the opinion of Bâ—omley in Fulmerstons case was contrary thereunto but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso And so it seemed to him that the Plaintif shall be barred 18. THE case of Fr. Ashpool was moved again by Fenner Hue and cry and it seemed to him that the Plaintif ought to make Hue and cry for as he said it hath allwaies been the manner of pleading and allso it hath been allwaies parcell of his issue to prove Allso he argued that he should not have remedy by the Statute post occasum solis For Stamford saith expresly that if a man be robbed in the day that he shall have remedy and the day shall be said but from the rising of the Sun to the fall thereof for the words of the Statute are that the Gates of the walled Towns shall be shut ab occasu usque ad ortum solis and then if the Gates be shut and that walled Town be within a Hundred how can they make Hue and cry And the case in 3 Ed. 3. is not like to this case Fresh suit by the Hundreders for there it was enquired and found of the Dozen Anderson The fresh suit mentioned in the Statute ought to be made by the Inhabitants and not by the parties and I am of your opinion that Hue and cry was at the Common Law but what of that But look the Statute and there is no word of Hue and cry And the Statute of 28 Ed. 3. is an exposition of that Statute and there is no mention thereof but Fresh suit is there mentioned which ought to be made by the Inhabitants And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort as men may safely travell without robbing And for the night Sir wee ought to construe it as it is most reasonable and about the setting of the Sun is the common time of robbing and therefore if this shall not be intended by the Statute nothing shall be intended and allthough the walled Towns cannot persue Walled Towns may keep the waies yet they may keep the waies so that no robberies shall be committed and this is both day and night as I think And if a man be slain in the robbery so that no Hue and cry can be made I doubt not but the Country shall answer for the robbery A man is robbed slain and bound and so if he be bound And if Hue and Cry ought to be when ought it to be For if a man be bound two dayes together he had as good make no Hue and cry as make Hue and cry afterwards and yet I hope you will agree that this man shall be relieved by the Statute which case was agreed by all the Court. Peryam The day without doubt is after the Sun-set Day after Sun-set Rodes cited the case of waging Battail in an Appeal in Stamford And so by agreement of all the Justices Judgement was entred for the Plaintif but Fenner sayd privately that in his conscience it was against the Law yet notwithstanding all the Judges were clear in opinion and the Serjeants of the other part allso So that it seemed to the Judges that no Hue and Cry is necessary by the party for they all agreed that the Country ought to be kept so that no Robberies be committed And Anderson and Rodes affirmed precisely that it is not necessary and the other agreed in the reason thereof and sayd that it is not mentioned in the Statute but sayd that the waies ought to be kept so that men may travell safely or otherwise it is against the Statute 19. IN a Writ of False Judgement brought against the Mayor Tryall Sherifs Citizens and Commonalty of Norwich it was moved where the Issue shall be tryed and per Curiam it shall not be tryed there but yet the Action may be used there And in the same case it was demanded Summons if the Sherif may summon himself and the Court answered that he could not and Peryam sayd that so it hath been adjudged here many times 20. THe â—ast day of the Term the matter of Lassels was moved again and it seemed to Anderson that the Obligation is voyd in that there is an express form limited by the Statute and this varying from the form in substance is voyd for in his opinion he excludes the
half whereby the Land was sown accordingly and that the Bore of Okely came and destroyed the Corn. Sed utrum c. And the doubt rested upon two points 1. because the Verdict saith that it conteineth sixty Acres and so shall be intended not the same place and the Court varied in opinion thereof insomuch that the sixteen Acres are found to be within the close conteining sixty Acres but for the 2 which was that they all four joyned in quare clausum fregit and it appeareth that three have nothing there Verdict shall abate the Writ but that Hare is sole seised And for that the Court held opinion that the Verdict shall abate the Writ for the Defendant cannot break their close where three of them have nothing but Hare onely Rodes A Case hath been adjudged a where Cheâ—ey brought Partition against Bury Partition who pleaded that they did not hold in Common and the Jury found that he and his Wife held in Common and yet the Verdict abated the Writ Windham You will all grant that the other three have no interest in the Land quod Walmisley concessit how then can they have quare 〈◊〉 fregit Fenner Executors shall have quare clausum fregit Executors and yet they have no interest in the Land Rodes There they have an interest for the time Anderson Here is but a bargain and no interest and then the three have no colour to bring Trespass quare elaâ—sum fregit 10. THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law Avoydance and now the Record was read and day given over to hear the Arguments but 〈◊〉 said that it is all one case with that which hath been adjudged here viz. that the Queen hath title of Lapse and doth not present but the Patron presents and after the Church becomes voyd by the death of the Incumbent that now the Queen shall not present but the Court answered Difference between Death and Privation that there the avoydance came by death but here it cometh by privation and whether this will make a diversity was the question 11. HArper brought Trespass against Spiller and Drew Estate upon not guilty pleaded a speciall Verdict was found and the case in effect was this F. gave Lands to a woman to have and to hold to her to the heirs of F. of the body of the woman ingendred what estate the woman had was the question and now the Record was read and day given over to argue it 12. SHuttleworth moved the Court Amendment and shewed that one Brokes by had brought a Quare impedit against the Bishop of Lincoln and others and the Writ was suam spectat donationem and this word 〈◊〉 was omitted and he prayed the Court that it might be amended and he cited 11 Hen. 6. 2. where it was imaginavit and it should have been imaginat fuit and 13 Hen. 7. where the teste was omitted and the Court took time of advisement and at length by the opinion of all the Justice it was amendable and then a Clerk of the Chancery came into the Court of the Common-pleas and amended it 13. IN an Avowry for an Amercement in a Leet By-law a Prescription was made for making of By-lawes and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants and not for the private commodity of any particular man as J. S. onely or the Lord onely As if a By-law be made that none shall put in his beasts into the common-field before such a day this is good but if a By-law be made that they shall not carry hay upon the lands of the Lord or break the hedges of J. S. this is not good because it doth not respect the common benefit of all And Windhaâ—â— sayd that some Books are that they shall bind no more than such as agree to them 14. HAre brought Debt against Curson for a great sum Capias utlâ—gatum and Process continued untill Capias â—tlog And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ because they doubted thereof and the Writ was delivered to the Sherif in Court and he sayd that he would doe his endeavour but Curson hath long kept his house so that he cannot come at him Peryam You may take the power of the Country with you and break his house and take him out for so it hath been adjudged here which the Court granted 15. PUckering shewed how an Action of Debt was brought against an Administrator Assetâ— who pleaded plens administraâ—it and thereupon the Jury found a speciall Verdict that certain Obligations made by the Testator to the value of a hundred pound were forfeit and the Administrator took in the said Bonds and gave his own Bond for the Debt and retained the money in his own hands besides which c. he had nothing c. and if that hundred pound shall be liable to this Action of the Plaintif they prayed the advice of the Court and by the opinion of Windham and Peryam it shall not be Assets because the property is changed in giving his own Bond for the same Payment with Proper râ—â—ds and it is as if he had payd the Debts with his own goods but if he had compounded for less Surplusage then the surplusage should have been Assets But Rodes was of a contrary opinion in the principall case forasmuch as he had payd no money but onely given his Bond for in and Anderson was absent at this day And after at another day the case was moved again by Shuttelworth and then he shewed that for part thereof the Administrator had given his Bond and for another part his promise Promise and he sayd that this is no payment but a composition and therefore no change of property Anderson For so much as he hath given his promise I think it not good because that by this promise this first debt being due by Bond is not discharged but for so much as he hath given his Bond for I hold it good enough because the first Debt is discharged thereby allthough that the Obligation be made to a stranger Estranger by the appointment of the Debtee and allso before the Debt due for by this the first Debt is gone And Windham and Peryam were of the same opinion that the Debt was discharged and that it should not be Assets in his hands but Rodes doubted thereof and it was adjorned 16. JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants Abatement and after a Verdict found for the Plaintif and before Judgement one of the Defendants died and the Writ was adjudged to stand good against the other 17. IN Debt by Saunderson Wager of Law the Defendant pleaded nil debet per legem and in truth the money was due to the Plaintif but the Plaintif was allso
have against him untill the 24 of June then next following which was half a year after and because he had not performed this an action upon an Assumpsit was brought and Judgement given for the Plaintif and all the Justices agreed that this was Error because that this thing arbitrated was out of the submission and so voyd for they have no authority to arbitrate that which is not submitted unto them Submission and the submission is onely of things passed and not to come but because that the Defendant had not heard of this Error before therefore they gave him day Afterwards the case was moved again and Anderson sayd that damages recovered doe not lye in arbitrement Damages recovered Peryam Amongst other things they will lye well enough quod Anderson non negavit But they all sayd that they may well assume upon consideration and an Action will be maintainable for it 5. THomas Mounson Esquire Term extinguished sonne and heir apparent to Sir Iohn Mounson Knight brought an Action of Trespass against VVest who pleaded not guilty and upon Evidence it appeared that Sir Iohn Mounson had an estate for years the Remainder in tayl to the Plaintif with divers Remainders over and the Lessee made a Feoffment to divers and a Letter of Attorney to others with commission to enter into the lands and to seal the Feoffment and deliver it in his name to the use of the sayd Thomas and his heirs and another by commandement or Letter of Attorney of the sayd Thomas entred in his name And the Court held this a good Feoffment notwithstanding that both the Lessee and the Attorney were disseisors Disseisors for it is good between the Feoffor and the Feoffee for they sayd that by the Feoffment to the use of him in the remainder and his heirs if he in remainder enter he is remitted and the estate for years is gone implicatively Freehold joyned to the term Morgage for Peryam sayd that in all cases where the Freehold cometh to the term there the term is extinguished And therefore if a man morgage his reversion to the Lessee for years and after perform the condition yet the Lease for years is utterly extinguished And the Evidence on both parts was very long and the chief matter was whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas by which Devise lands were conveighed to him by William Mounson his Father whose heir at the Common Law Sir John Mounson is viz. the Sonne of Roberts eldest brother and the Deed was shewed by VVest and it was perished with Mice all the Seal and part of every side but yet by the last Will of the sayd VVilliam Mounson and by divers other proofs it was evident that the Deed was good and but little in effect was shewed to prove the Deed forged Misdemenour yet the Jury went together and tarryed there all night and in the mean time some of them had victualls with them for one had Cheese and another had Pruens another had Pippins and another had an Orange but he which had the Orange swore that he brought it onely for the smell and therefore he was excused and he which had Pruens had given half a Pruen to one of his companions which eat it and he which had Cheese had eat thereof therefore all those which had victuals Fine and imprisonment were fined at 40 s and they which had eaten at 5 l. every of them and all committed to the Fleet but because they were agreed therefore the Verdict was taken and the Verdict was given for the Plaintif viz. that the Deed was forged by Justice Mounson and the Verdict taken de bene esse and all this matter commanded to be entred for the Justices doubted whether it were a good Verdict This matter was moved divers Terms afterwards and at the last adjudged a good Verdict 6. IN an Ejectione firme by Ashby against Laver for Lands in Westminster Countermand it was sayd by all the Justices to the Jury that if a man hath a Lease and disposeth of it by his will and after surrenders it and takes a new Lease and after dyeth that the Devisee shall not have this last Lease because this was a plain countermand of his Will 7. IN Trespass by Johnson against Astley it was said by the Justices to the Jury that if there were a Chauntery in reputation allthough it be none in right as if it be gone by disseisin yet the Queen shall have the Lands 8. AT Serjeants-Inne in Fleet-street Rent suspended the Justices of the Common Pleas and Barons of the Exchequer were assembled for divers Errors in the Kings-bench and the case of Rawlins was moved again and Anderson and Peryam retained their former opinions and Peryam sayd that he would differ from all the cases of collaterall conditions Feoffment upon condition which may be put for he sayd that if a man make a Feoffment in fee of 20 Acres of land upon condition that if he pay to the Feoffee xx l. at Easter that then it shall be lawfull for him to re-enter allthough that he be re-enfeoffed of 10 Acres yet he ought to perform the condition because it is collaterall But Cook the famous Utter-barrister sayd Truly it hath been adjudged to the contrary and I was privy to it for when he took as high an estate again as he had before by that the condition is confounded and the case of the Corody in 20 Ed. 4. will prove this case Rodes I see no diversity Peryam It is collaterall there but so it is not here but afterwards those two Judges changed their opinions and so the first Judgement was affirmed 9. BRown recovered against Garbrey in an Assumpsit Consideration and thereupon Garbrey brought a Writ of Error and assigned for Error that there was no Consideration for the Declaration was that whereas there was a communication between Brown and a woman for Mariage between them that the Father of Brown had promised to the Wife that if she would marry his Son he would make a Feoffment of his land to the use of himself for life and after to the use of them two in tayl the remainder c. and that Garbrey assured to the Wife in consideratione praemissorum that if the Father did not doe so then he would give the Wife a hundred pound ac licet the Father did not give to them in tayl secund agreament praedict yet Garbrey refused c. And Cook moved that this should be no Consideration for the communication of Mariage was not by him but between strangers to him but if the Father had assumed in consideration of Mariage then that should have been good against the Father but against Garbrey it is â—o otherwise than as if one promise to you to Enteoff you and I say that if he doe not so then I will give you a hundred pound this is
he is Tenant sufficient before Office found Fenner True Sir but when the Office is found by relation thereof the Recovery is avoided Relation Anderson Truely the Office hath relation for the Possession of the Alien but it hath no such relation to say that the Alien never had it for then the Queen shall not have it but if the Alien were Tenant sufficient at the time of the Writ brought against him then the Remainder is utterly gone And all the Justices said that it is a strong case that the Queen shall have it and that the Remainder is gone And Rodes cited 27 Ass fol. 50. 8. PLympton brought an Action of Trespass against Dobynet Copyhold the Defendant pleaded that the place in which c. is Copyhold and pleaded a Grant to Southey which granted it to him c. The Plaintif replyed that long time before the Grant pleaded by the Defendant Alice Gooding was Lessee for life secundum consuetudinem manerii c. and that the Custom is that the Lord may grant Copies as well in Reversion as in Possession And that in 5 Eliz. the Lord Morley being Lord of the Mannor The Lord Morleys case granted to him a Copy in Remainder before the grant made to Southey which now came in Possession and that he entered untill c. The Defendant rejoyned that there is a custom in the Mannor that the Lord may grant Copies in reversion with the agreement and consent of the Tenant in possession and if any Copies be granted without consent of the Tenant in possession that then there is such a custom that such Grants shall be alltogether voyd absque hoc that they are devisable modo forma c. whereupon the Plaintif demurred in Law Walmisley This Plea of the Defendant is repugnant for by these words If any be granted he implyeth that there is such a custom and then when he saith absque hoc that there is such a custom this traverse is voyd and the Plaintif shall have Judgement by 9 H. 6. Allso he argued that this custom shall be voyd and cited 19 Ass the case of the command of St Johns and 2 Hen. 4. 19 Eliz. Custom what it is the Ejectione firme by Bill anu Attorney and he defined usage to be Constitutio ex diversis actionibus saepius iteratis Shuttelworth argued to the contrary and cited 37 Hen. 6. the case of Common and 26 Ed. 3. 9. GAwdy the Queens Serjeant rehearsed the case of Beverley in this manner Utlary Thomas Beverley brought a Quare impedit against the Ordinary and Gabriell Cornewell the Incumbent which was in of the presentation of the Queen and upon pleading there was a Demurrer entred up and before that was discussed Beverley was Outlawed at the suit of another The Case in an Action of Debt then Cornwell resigned his Benefice and the Queen presented him again whereupon he was instituted and inducted Then Beverley brought a Writ of Error in the Kings-bench and reversed the Outlary because that he was named of Hamby where there were two Towns of the same name and neither of them without an addition and now he brought a Scire facias to execute his first judgement against Cornwell who pleaded all the matter in bar and it seemed to him that the Plaintif shall be barred for by the Outlary of the Plaintif the presentation was forfeited to the Queen allthough that it was but a thing in action and thereupon he cited 2 Hen. 5. where a man had a Patronage with his Wife Patronage in right of his wife and was Outlawed c. then if by the reversall of the Outlary he shall be restored to the presentation and he sayd that he shall not for that it was a thing once lawfully executed and vested in the Queen and he cited 4 Hen. 7. where a man is attainted by Act of Parliament c. Allso the opinion of Brian there is a strong proof of this case And further he sayd that he was of counsell with a case in 26 Eliz. Restitution after a Scire faâ—â— where Debt was brought by Hanmer against Luddington and the Defendant was condemned and a Fieri facias issued to the Sherif who by virtue thereof sold a term of the Defendants and levyed the money thereupon and afterward the Defendant brought a Writ of Error and refused the Judgement the question was if he shall be restored to his term and it was adjudged that he shall not but onely to the money for which it was fold because the sale was once good and so he thought that the Plaintif ought to be barred VValmisley to the contrary For in our case Patronage when the Queen presenteth she hath gained a Patronage to her self untill we recover it again and this is the case of Ratcliffe in 35. For so long as the Incumbent which is presented continueth by that Induction in possession so long he which presented him is Patron Possession per Collow in 20 Ed. 4. and by 46 Edw. 3. tit Incumbent 19 Ed. 3. tit Quare impedit If the King bring a Quare impedit and hath title to recover yet the other is Patron untill his Clerk be removed a fortiore where the Writ is brought against the Incumbent of the King he is Patron untill he be removed then if nothing shall be forfeit to the Queen then it is to be considered because the Queen hath presented the same Defendant of new whether he shall be removed or no Acts done hanging the Writ and it seemeth clearly that he shall because he claimeth under this estate and this is done hanging the Writ and no act done hanging the Writ shall extort the Plaintif from his execution and surely the Writ is hanging untill execution be done and he cited 31 Hen. 6. Attorney If one make an Attorney he shall be Attorney untill execution be done and 21 Hen. 7. if the Defendant resign and a stranger is presented hanging the Writ yet the Plaintif shall remove the stranger Presentment and 20 Eliz. in Dyer accordeth with that notwithstanding that some there held the contrary If he come in by title by mony And to the like purpose is the case in 11 Hen. 4. of traverse of an Office Then for the Outlary that was avoydable by Plea Plea by the Statute by the Statute of 2 Hen. 5. per the Books in 22 Hen. 6. and 38 Hen. 6. Then if by the Outlary reversed he shall be restored and it seemeth that he shall for a man shall see a great difference between this case and the cases put For if a man in an Action deny his Deed and therefore pay a Fine to the King if after he reverse the Judgement yet he shall not be restored to the Fine because it is a by-thing and a thing collaterall and therefore he denyed the opinion of Brian Collateral thing in 4 Hen. 7. for it cannot be Law
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
Muskets and Callivers delivered into the Tower for which money Walton took a Debenter from the Queen in the name of a stranger and afterwards dyed and made Leveson Executor who procured the stranger to release and surrender the former Debenter to the Queen and took a new Debenter for the same hundred pound to himself this was adjudged no Assets nor devastavâ—t in the hands of the Executor Leveson upon a speciall Verdict but otherwise it should have been if the first Debenter had been taken in VValtons own name for then it had been a devastavit by the Executor 9. BAcon Plaintif against Selling in an Ejectione firme Assets de judgement the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39. Trin. 39 Eliz. rot 1345. so that it appeared to the Court that the Plaintif brought his Action before he had an interest in the Land and by all the Court a Rule was given for stay of Judgement after a Verdict but afterwards the Plaintif came and shewed that after Improlance he filed a new originall 10. HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words Scandalum magnatum viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged Warrant c. And the Earl recovered great damages by Verdict and now it was spoken in arrest of Judgement that the words were not sufficient to maintain the Action because it was not averred that the Earl knew the Warrant to be forged and of the same mind was the Court at this time 11. WIlloughby brought an Action of Debt against Milward Debt and declared that the Defendant bought Timber of him for ten pound solvend modo forma sequenti viz. five pound ad festum Pasch proxime sequentem and saith nothing when the other five pound should be payed and the Plaintif recovered the whole ten pound by Verdict and now it was spoken in arrest of Judgement for the cause aforesaid but yet by all the Court it was good enough for the Law intendeth the other part of the money to be due presently if no certain day of payment bee alleged 12. KItchin brought an Action of Debt against Dixson Debt Executor of Craven Mich. 36 37 El. rot 1028. or 1021. the Defendant pleaded ne unques Executor and the Jury found a speciall Verdict viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson and they found likewise that this Deed was to defraud Creditors against the form of the Statute and that the Defendant by colour of this Deed did take the Goods after the death of Craven and if this Deed vvas good then they found for the Defendant if not then they found the Defendant was Executor of his own wrong and so for the Plaintif and by all the Court Judgement was given for the Plaintif 13. IT was sayd by Drew arguendo That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires Rent charge the residue may be apportioned and the Land shall remain chargeable still for that residue but if he release in one Acre parcell of the Land charged then all the Rent is gone 14. IT was said by Glanvile in the argument of the case between Cromwell and Andrews Provisâ— that a Proviso in a conveiance to be performed on the part of the Lessee implies a re-entry allthough there be no speciall words of re-entry but otherwise it is when it ariseth on the part of the Lessor and Vouched bendlowes case where there was a Covenant going between the Habendum and Proviso But where the Proviso standeth substantively as where I grant a Rent charge Proviso that he shall not charge my person Condition this is no Condition but a Qualification Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas if the grant be not made before the first Feast which shall next happen the Condition is broken and he put a difference where the Condition must be performed by none but himself and where it may as well be performed by his Executors as himself And Drew said then that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer there ought the Feoffor to make a request otherwise if it be to enfeoff another 15. SMith against Bonsall Common in effect the case was such In an Action of Trespass the Defendant pleaded his Freehold Hil. 39. Eliz. rot 1753. and the Plaintif replyed that A. was seised of a Yard-land to which he had Common of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land and of the Moity thereof did enfeoff the Plaintif the question was whether this Common may be apportioned or else it be extinct alltogether In the argument whereof Drew said that Common sans number cannot be granted over because if it should be granted to a rich man he may surcharge the Common then and leave none for the rest of the Commoners so of estovers uncertain for so the Grantee may burn all the Wood quod Walmisley concessit and he vouched 17 Eliz. in Dyer that a Commoner may purchase parcell of the Land out of which his Common is issuing Purchase after that it be improved by the Lord and not extinguish his Common thereby And he said that if parcell of the Common be inclosed Inclosure a Commoner ought to make but one gap to put in Cattell but Anderson said that he may make as many gapes as he will And it was said by Anderson and Beamont Appendant may be apportioned that Common appendant cannot be for all manner of Cattell but onely for such â—attell as compass the Land and that such Common may be apportioned into twenty parts Append. quid as any Common certain may be Walmisley Owen If my Land to which I claim Common belonging can yield me stover to find a hundred Cattell in Winter then shall I have Common in Summer for a hundred Cattell in the Land out of which I claim Common and so for more or fewer proporitionably which they did expound to be the meaning of pertinen Moity of a Mannor levan and cuban Walmisley If I grant away the moity of my Mannor we shall both keep Courts so if I be disseised of a Moity or that the Moity be in Execution by elegit and we shall both have Common and in apportionment of Common respect ought allwaies to be had to the quality of the Land unto wâ—ich it is alloted Copiholder And a Copyholder may prescribe for Common in the Lords Land within the same Mannor by usitatum fuit but if he claim any other Common he must lay the prescription in the Lord. De Term. Hill An Reg. Eliz. xliii 1. WAlter Ascough prisoner
in the Fleet Appearance was brought to the Common place bar by habâ—as corpus to the intent to have him appear to an Originall in debt brought against him And being demanded by Goldesburg Clark whether he were the same party against whom the Originall was brought confessed it but denied to appear to the Action Brâ—â—keâ— Prothonotary said the Court ought to record his appearance confessing himself to be the same person but the whole Court said this was no appearance whereby he was remanded to the Fleet And Tamworth the Plaintif proceeded to the outlary against him 2. PRice brought an Action of Trover against Sir Walter Sands Frandulent deeds Trin. xxxviii Eli. And this was for finding of Corn. And the first point of the case was That a man had a Lease in Reversion and granted it to another by fraud and his Grantee granted that over to Sir Walter Sands bona fide And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void per the Statute of 27 Eliz. or not was the question Harris Serjeant It seemeth the Grant to Sir Walter Sands to be good And not within the Statute of 27 Eliz. For 33 Heâ— 6. 28. If a man make a Feoffment in Fee by Collusion to the intent to defraud the Lord of the Wardship And after this Feoffee by Collusion make a Feoffment over bona fide Now the Lord is without remedy for the Collusion is gone And in this case there is an ignorance in Sir Walter Sands the which is not willfull and for that it is not punishable Notice But if the other had taken the profits so that the purchaser might have notice there it should be otherwise The â— cause was non constat whether the Grant were before the Statute of 27 Eliz. or not For if it were before then the party shall not answer the mean profits Allso a third matter is ten yeares of the Term was granted for money But when he granted the Residue of the Term and no Consideration expressed Consideration expressed then there shall be no consideration intended And if there were no Consideration given he is not holpen by the Statute For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid Et non constat that any thing was paid by the Plaintif Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute Allso here the party is charged with a speciall fraud And the other saith that it was made bona fide And this is a good course of pleading without any Traverse per 4 Ed. 4. 24. 3. HUgh Hall brought an Action upon his case for words and declared Slander that where he himself was robbed of divers parcels of Cloth per quendam ignotum and made his integrity and indeavour to apprehend the said thief praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone viz. Hugh Hall hath received three parcells of his Cloth again of the thief And if I receive any hurt henceforth I will charge him with it And by Judgement of the Court the words are not actionable 4. THe Lady VVilloughby Wife to the late Sir Francis VVilloughby Caveat sued in the Chancery as Administratrix of her said Husband against Percivall Willoughby which had maried one of the Daughters of the said Sir Francis And the Defendant pleaded that before any Administration commited to the said Plaintif he himself put in a Caveat in the Spirituall Court hanging which Caveat she hath attained these Letters of Administration Appeal whereby the Defendant hath appealed 〈◊〉 which appeal is not yet determined for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix And it seemed to Egerton then Lord Keeper of the great Seal that the Defendants plea is good to stay the suit untill the appeal be determined But not to be dismissed out of the Court Appeal Erâ—â—â— Difference no more than an excommunication And he said there is difference between an appleal in Spirituall Law and a Writ of Error in our Law For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter but not for the costs and for to prove that he cited 2 R. 2. Quare impedit 143. vide 27 H. 6. Gaud. 118. 2 M. 105. Dyer 7 Eliz. 240. 5. IN the Chauncery a speciall Verdict was retorned upon an extent Execution uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—e the Remainder in Tail and the Tenant in Remainder in Tail made a Statute Staple and after granted his Remainder And after the Tenant for life died 〈◊〉 Bull 〈◊〉 and the Grantee of the Remainder entered And whether Execution shall be sued of this land upon the said Statute insomuch that the said land was never in Demeasne in the hands of the Coâ—â—so◠〈◊〉 â—ames 〈◊〉 and so not extendable in his hands was the question And Sr. Thomas Egerton Lord Keeper of the great seal said that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life For to a Remainder are no services due nor incident and for that it is termed Seck But a Reversion hath services incident and those may be extended and by consequence the Reversion when it commeth in possession Bâ—t it seemed unto him that all was one for one may charge a Remainder when it happeneth aswell as a Reversion and a Statute is in the nature of a charge Cook the Queenes Attourney said there was no question in the Case for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question for if he in the Remainder make a lease for yeares to commence at a day to come Yet if he grant over his Remainder the Grantee shall hold that charged with his lease And every Statute is a charge Executory By which the said Lord Keeper awarded that there should be a liberate made to the Conusee upon the retorn above 6. OVerton brought an action of Debt against Sydall Debt by a Successor against an Executor after assignment And the case was that Prebendary made a lease for yeares rendring rent and the Lessee died and the Executors of the Lessee assigned over the Term and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over and the opinion of three Justices was that the action would not lye But Popham the chief Justice held the contrary For the Successor is privie to the Contract of the predecessor And so the Executor to the contract of the Testator
de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei every one will agree that this is voyd but if a further addition be made to the Corporation the Lease is true Addition superfluous shall not hurt allbeit that it be varying as if the Lease had been Minister Dei omnipotentis the addition of this word omnipotent shall not hurt sic de similibus And allbeit that it be not agreeing in words yet if it agree in common understanding Common understanding it is good but if in common understanding the grant may not be taken according to the Foundation if it be not wrested to an unexpected understanding there it is not good and if the Foundation had been in English words Minister of God of the poor house of Donington and the Lease by name of Minister of the poor house of God of Donington every one will agree that this is palpable variance and the Lease not good And I doubt of the case of Everwick for there the Prior beatâ—â— Mariae brought an action by name of Prior beatâ—â— Mariae extramures civitatis Ebor and if this case were now to be adjudged that would be variance as the case of Bristoll Prior beatae Maria de Bristoll made a Lease by name of Prior beatae Maria juxta Bristoll and this Lease was adjudged voyd but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance for it had been but an explanation which will never hurt and for that the Court was so divided in opinion that is to say two against two and the case concerned a poor house They moved the parties to comprimise 8. RUswell brought disceipt against Vaughan Disceipt and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that and sold the profits of the sayd Advowson to the Plaintif pro quadam pecunia summa And it was pleaded in arrest of Judgement for that the Plaintif did not aver ubi revera the Defendant had no title non allocatur 9. THe case was that the Queen made a Lease for years Burrough versus Taylor rendring rent at the receipt of her Exchequer or to the hands of her Baylif upon condition that if the rent be not payd that the estate shall cease Payment of rent the reversion being granted away by the Queen after the Queen granted over the reversion and whether the rent shall be now tendered upon the land or at the receipt of the Exchequer or to the person of the Assignee of the reversion was the question and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land or otherwise he shall not re-enter for the condition broken that for two causes the one for that that when the reversion was in the Queen Election the Lessee had election to pay it at the receipt of the Exchequer or to the hands of the Queens Baylif and when the Queen had granted over the reversion the election of the Lessee is tolled by which now the rent shall ensue the nature of other rents reserved by common persons The common receipt of the Exchequer and those are payable upon the lands another reason is every rent reserved by the Queen is of common right payable at the receipt of the Exchequer or to the Baylifs of the Queen without words appointing at what place it shall be payd for these are the usuall receipts of the Queen and so the words which appoint that to be payd at the receipt of the Excheq â—r to the hands of the Baylif of the Queen are idle words for that the Law appointeth so much of common right ex praerogativa Regis but when the reversion is transferred into the hands of a common person No prerogative can be granted over there this Prerogative ceaseth for it cannot be granted to a common person and by consequence the rent shall be payd upon the Land 10. THomas VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome recuperet No amendment in point of judgement and for that Error was brought and Serjeant Heale moved that the Record might be mended for that it was the mis-entring of the Clerk but adjudged to the contrary for the Judgement is the act of the Court and not of the Clerk 11. EDmund Nevell brought an Action of Trespass against J. Sayle Abuttals and declared Quare clausum fregit in quodam loco vocato Claveringfield abuttan super quoddam molend in tenura J. S. Opinio Curiae If the Plaintif do not prove his Buttals he is gone And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged and howbeit that there be a way between the Close and the Mill yet the Buttall is good 12. RIchard Somerstailes brought an Action upon the case for slanderous words Slanderous words that is to say R. S. is a very bad fellow for he made J. S. drunken in the night and consened him of an hundred Marks and upon not guilty pleaded it was found for the Plaintif and Judgment was stayed for the words are not sufficient to maintain an Action 13. IF the Heir of the Morgagee is in Ward Mortgage and the Morgager payeth the mony his entry is not lawfull upon the King but shall be put to monstrans de droit per Popham chief Justice 14. HAmond brought Debt upon an Obligation against Hatch Award of paâ—t onely and the Condition was That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant for and concerning the matters contained in 9 severall Articles bearing date the day of these presents So that the same be given up under the hand and seal of c. And the Arbitrator made an award of 7 of the sayd Articles omitting the other two and whether the Obligor ought to perform this Award was the question Man I think he ought to perform the Award for that he is bound by Obligation to perform it and to prove that he cited 5 Edw. 4. 19 Hen. 6. 17 Edw. 4. Gawdy The words of the Condition are so that the same Award be given up in writing before such a day and that shall have reference to all the Articles for the Submission was conditionall as 14 Elizab. And after Judgement was given quod quer nihil capiat per billam 15. How against Broom and others A Man leased a House and a Close rendring rent and the Lessor entered into the house and pulled that down and after
say no more now this is no Condition And here all the sense comes in after the words of Covenant and these words are the words of Sir M. B. And for that it seemeth no Condition for if the words had been And it is provided by Sir M. B. there it is clear no Condition But if in a Lease for yeares be words and the Lessee do provide that if the Rent be behind that then the Lessor shall re-enter there I agree that this makes a Conditon And in the case put by my Brother Williams a Lease made provisum est quod non licebit to the Lessor to grant over upon pain of forfeiture there is a good Condition But otherwise it shall be if sub poena forisfacturae were omitted Fenner I think it is a a Condition for all the words put together explain the meaning of the parties as if he had said upon Condition And the Lessee doth Covenant and grant and none will deny but that this is a Conditidition Clinch seemed that it is no Conditon for the words may not be used as a Covenant and allso as a Condition As where a grant is by Deed by words of Dedi concessi confirmavi the Deed may be used as a Grant or confirmation at the Election of the party But it cannot be used in both sorts Popham I think that the Proviso as it is here placed will make a Condition and yet I will agree that a Proviso shall be sometimes taken for a Condition and sometimes for Explanation and sometimes for a Covenant and sometimes for an Exception and sometimes for a Reservation and it is taken for a Condition As if a man Lease Land provided that the Lessee shall not Alien without the Assent of the Lessor sub poena forisfactura here it is a Condition and if I have two Mannors both of them named Dale and I Lease to you my Mannor of Dale Provided that you shall have my Mannor of Dale in the Occupation of I. S. here this Proviso is an Explanation what Mannor you shall have and if a man Lease a house and the Lessee Covenanteth that he will that maintain Provided allwaies that the Lessor is contented to find great Timber here this is a Covenant and if I Lease to you my Messuage in Dale provided that I will have a Chamber my self here this is an Exception of the Chamber and if I make a Lease rendring Rent at such a Feast as I. S. shall name Provided that the Feast of St. Michael shall be one here this Proviso is taken for a Reservation and in our case if the words had been provided allwaies that the Donees shall cut down no Trees and the Lessee doth Covenant he will not fell any here every one will agree that it is a Condition and allso a Covenant And in this case in my opinion this tant amounts Serjeant Williams and Cook Attorney for the Plaintif Atkinson and Tanfield for the Defendant 28. LAssels the Father Sâ—ander brought an Action upon the case against Lassels the Son for words viz. he quendam Thomam Lassels fratrem ejusdem Def. innuend stole a Mare and you innuend querent knowing the same conveyed her into the Fenns to my Brother B. his house Clinch and Gawdy seemed the Action maintainable Fenner econtra 29. A Man was indicted for stealing of a hat and a band and other such things Indictment And the Prisoner said that he was before that time indicted for goods stolen the same day and time and acquitted Gawdy said he may not be severally indicted for goods stolen at one time As if a man steal a dozen of silver spones he may not be indicted for two in one Indictment and for other two in another sic de singulis Clinch accord Fenner Yes truly for it was the case of Thomas Cobham the which was indicted for goods taken in two shipps and acquitted and after condemned for other goods taken at the same time 30. PEarce brought an Action upon the case against Barker Prescription by a Copy-holder and delared how within the Mannor of Dale time out of mind there had been divers Copyholders and during the same time there hath been a usage within the said Mannor That every Copyholder for every Acre of Land shall have Common in such a Wast of the Lords for two Beasts And shewed how the Plaintif is possessed of twenty Acres and by reason of those ought to have Common for forty Beastâ— And there hath the Defendant being Lessee for years of the same Mannor one Conigray within the same Wast by which the Conies have so digged the ground that his Beasts cannot have Common as they were wont to have Fenner A Copyholder may not prescribe but in right of his Lord but now the Lord pro tempore is party to the action and whether this will alter the case or not I doubt Glanvile Albeit the Copyholder may not prescribe but in right of his Lord yet by way of usage as this case is it hath been adjudged that he may make his title 31. A Ruudell was heretofore arraigned upon an Indictment of willfull Murder for the death of one Parker Indictment and was found not guilty of Murder but guilty of Manslaughter for which he pleaded the generall pardon de 35 El. And the Queens Attorney alleged That in the sayd generall pardon there is an exception of all persons being in prison by the commandement of one of the Privy-counsell and said that the sayd Arundell was committed by the Lord Chamberlain for suspition of the sayd Felony and for the same in prison at the time of the Parliament Commitment and so a person exempted To which it was sayd by the Defendant that long time before the sayd Parliament and after the sayd commitment by the Lord Chamberlain there went out of this Court a Corpus eum causa by force of which he was sent into this Court with the cause of his commitment and was for the sayd offence committed by this Court to the Marshalsey and there was remaining at the time of the Parliament by force of the commitment of this Court and it seemed by the better opinion of the Court if a man be committed by a Privy-counsellor and removed by Habeas corpus and committed by this Court he shall be now sayd imprisoned by commitment of this Court and not of the Privy-counsellor 32. STaugnton brings a Writ of Error against Newcomb upon a Judgement given in Debt in the Common-place Error and the first Error assigned was for that the originall Writ was xx l. and all the mean Process were so likewise but when the Defendant appeared to the Exigent the entry was quod defendens obtulit se in placitâ— debitâ— decem librarum where it ought to be xxl. Dodderidge I think it shall be amended for it is the misprision of the Clerk and to prove that he cited 37 Hen. 6. 44. Ed. 3. 18. But upon
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
by Verdict tryed for the Plaintif And Gerrard pleaded in arrest of Judgement for that there is no bail entred for the bail is for Gerrat and his name is Gerrard Cook Attorney He may be known both by the one name and the other For in Norfork there is a Knight which in Common speech is called Barmeston but his right name is Barnardiston And if he by the name of Barmeston put in bail in this Court it is good being knowen by the one and other and so it seemed the Court did incline for the dangerousness of the President For otherwise every man impleaded may give a false name to his Attorney by which he will be bailed and then Plead that in arrest of Judgement but Judgement was giuen for the Plaintif 49. IN debt upon an Obligation Notice of a retorn from beyond sea the Condition was that if the Obligee retorned from beyond Sea before the 22 of Aprill and the Obligor pay to the said Obligee 200. l. before the twenty seventh of Aprill then the Obligation to be void Otherwise to stand in force Cook moved that the Obligee ought to give notice to the Obligor of his retorning from beyond Sea before the two and twentith day of Aprill or otherwise the Obligor is not bound to pay him the money For when a thing resteth in the will of another to be done and the time is uncertain when it shall be done Then notice ought to be given to him which ought to do the thing as 18 19 Eliz. 354. placiâ— 32. 17 Eliz. A man made a Lease for years And after made a new Lease to Commence after determination Forfeiture or Surrender of the first Lease with clause of Re-entry for non payment of the Rent And after the Lessor took a secret surrender of the first Lessee and after that surrender a Rent day incurred and the Rent was not paid by the second Lessee and yet adjudged that his Estate is not void because the other ought to give him notice of the Surrender Gawdy The case is not alike for 8 Edw. 4. a man ought to take notice of an Abitrement Fenner It shall be as dangerous for the Obligee if he ought to give notice as for the other to take notice 50. STafford brought an Action of Trespass against Bateman Distress for issues for of a strangers beasts Levant for taking of a Cow The Defendant said that the Land where the Trespass was supposed to be made is the Land of one Iohn Dean The which I. D. hath lost iiij l. issues to the Queen and there came a Warrant out of the Exchequer to the now Defendant being undersherif to levy the said iiij l. in the Lands of the said I. D. And because this Cow was Levant and Couchant within the said Land he took her as lawfull was for him to doe Gawdy Fenner The Sherif may not take Beasts of a stranger in the Land of him that hath lost issues to the Queen Popham By way of distress he may take Beasts of a stranger if they be Levant and Couchant upon the Land of him that hath lost issues but not to sell them and so to levy the Issues 51. ERror was brought by An. Latham Error upon a Judgement given against him in a Writ of Debt in the Common place and the Error assigned was for that the Originall Writ was purchased against him by the name of A. L. nuper de London Yeoman alias A. L. de Sherbâ—â—â— in Com. Ebor. Variance in the alias no error Yeoman And upon that the said An. L. appeared and pleaded and was condemned and after a Capias ad satisfaciend issued against him by the name of A. L. nuper de L. Yeoman alias A. L. de Shelbâ—â—â— in Com. Ebor. Yeoman and so he assigned the variance between the first Originall and the Capias ad satisfaciendum Shelbone for Sherbone but for that this variance was not in the first name but in the first Addition therefore it was adjudged no Error by the opinion of the Court. 52. LAugford and Bushy did present by turns to the Advowson of Norwinkfield Quare imp Langford presented one A. which was instituted Pasch 43 Eliz and inducted and dyed Bushy presented one C. which C. was lawfully deprived by the Bishop of Coventrey and Lichfield without giving any notice to Langford who had the next turn The Bishop made Collation and after Collation Langford sold his moity to Lee Collation before notice and Lee to the Earl of Shrewsburie The question was whether by the Collation Langford hath lost his turn The Court seemed to incline that by the Collation the turn is lost for if it had been by usurpation it had been lost without any question And yet it seemeth that upon deprivation the Patron ought to have notice Vide Statut. de 13 Eliz. 53. YElverton the Queens Serjeant demanded the opinion of the Court Devise if a man be seised of land in Fee and have two Daughters onely and deviseth his land to his Daughters in Fee if now the two Daughters shall be Joyntenants or take by descent as parceners and the opinion of the Court was that they are in by the Devise and not by descent and so they shall be in as Joyntenants and not as Parceners but otherwise it shall be if there were but one Daughter and the Father devise the land to her so if he devise the land to his Son and Heir in fee. 54. NEcton and Sharp Executors of Throward sued a Prohibition against Gennet and others Prohibition for a Legacy and the case was that one that had a Legacy devised unto him sued the now Plaintifs being Executors for the sayd Legacy in the Spiritual Court and the Executors there pleaded that the Testator in his life time made a certain Obligation sufficient in Law to J. S. the which is not yet satisfied and the Spirituall Court would not allow this Plea for which he had a Prohibition Makin Attorney of Essex sayd to me that this is the second case in question of this point but he doubted that the pleading was so vitiouâ— that the matter in Law would not come in question Executors represent the person of their Testator and therefore if a release be made by one of them Action confessed by one Executor by admittance this shall bind all and so if an Action is brought against one Executor where there be divers Executors and he admit the Writ and confess the Action this shall bind all the goods of the dead as well as if they were all named Per Hâ—rn 55. GReningham brought an Action of Debt upon an Obligation against Ewer Election The Condition was that if the said Ewer doe deliver unto the said Greningham certain Obligations which the said Ewer hath of the sayd Greninghams or else doe seale such a release as the said G. shall devise before Mich. that then c. The Defendant
beasts shall not discharge him for the payment of Tythes for other beasts and Tythes shall not be payd for beasts fed for the occupation of the house of the owner No tyths for things spent in the house but if a man feed to sell there shall Tyths be payd for those for with the first people live which manure the land of which the Tythes are payd for so is Fitzh Nat. brev 53. Q. to be intended 67. WIldgoose versus Wayland in Cancellar Notice of trust This question arose If A. be seised upon trust and confidence to the use of B. and his Heirs and A. selleth the land to one that hath notice of the trust to whose use shall the Vendee be seised Also it was moved if before the sale one come to the Vendee say to him take heed how ye buy such land for A. hath nothing in that but upon trust to the use of B. and another comes to the Vendee and saith to him It is not as he is informed for A. is seised of this land absolutely by which the Vendee buyeth the land if this first Caveat given to him ut supra be a sufficient notice of the trust or not And the Lord Keeper sayd it is not for flying-reports are many times fables and not truth and if it should be admitted for a sufficient notice then the Inheritance of every man might easily be slandered Notice of Forgery Cook It was holden in Bothes case in the Starchamber that if a man sayd to another take heed how you publish such a Writing for it is forged and notwithstanding the party doth publish it this is a sufficient notice to the publisher that the Deed was forged And upon that the Lord Popham at the same time put this case Notice of Felony If one say to me take heed how you entertain or receive A. B. for he hath committed such a Felony and I giving no credit to the report receive the party where in truth he had committed the Felony now I am accessary to this Felony To which the Lord Keeper answered that he would not draw blood upon such an opinion 68. IF a man make a Lease reserving Rent to the Lessor Reservation of Rent if he say no more the Rent shall goe but to the Lessor but if it be reserved generally and doe not say to whom it shall goe as well to the Heir of the Lessor as to the Lessor himself Per Gawdy 69. IT was sayd by Fell Hue and Cry an Attorney of the Kings-bench that it hath been adjudged in the same Court that an Action upon the Statute of Hue and Cry against Inhabitants of any Hundred will never lye by Bill but ought to be sued by Writ and the reason is for that the Action is brought against Inhabitants which are a multitude and for that may not be in custodia Marescalli as another private person may 70. A Judgement was had in an Action of Debt of 80 l. And the Plaintif had a Fieri facias Capias after a Fieri sacias executed for parcell and the Sherif levyed 20 l. of the goods of the Defendant and retorned that of Record but non constat by the Record whether the Plaintif had received the 20 l. or not and the Plaintif took forth a Cap. ad satisfaciend for the whole Execution being 80 l. and upon that the Defendant was Utlawed and now he brought a Writ of Error to reverse that Utlary which was reversed for that it did appear upon Record that execution was made by Fieri fac of 20 l. of the 80 l. and therefore the Cap. ad satisfaciend should have been but 60 l. 71. IF the Husband sell his land by Fine Claim of Dower with Proclamations and live five years and after dye his Wife being sole of full age of sound memory out of prison and within the four Seas and doe not make any demand or claim of her Dower within five years after the death of her Husband she shall be barred 72. A Feofment was made before the Statute of 27. to the use of a Man and Woman unmarried Moities in Tail and of the Heires of their two bodies begotten and after they intermarried and after marriage the Husband bargained and sold all the land in fee to one of his Feoffees and died without issue and after the Statute of 27 was made the Wife claymed the whole by Survivor as Tenant in tayl after possibility of issue extinct And by the opinion of all the Court without argument she can have but the Moity because the Husband and Wife had Moities as Joyntenants by reason of the Joyntenancy made before marriage And yet by the Court as to the issue in tail if any had beeen he shall have a Formdon of the whole 73. IF Land be holden of a Subject Tenure and Wardship extinct and the Tenant sells the land by Fine with Proclamations to I. S. in tail the Remainder to her Majesty in fee The Tenant in tail dyes his Issue within age The Opinion of the Court was that the Issue shall not be in ward to the Subject if the Queen do not assent to her Remainder for that the tenure and services are gone and extinct by the Fee simple to the Queen which may hold of none And so the issue in tail shall be in ward to none 74. IF a man have goods to the value of 100l and is indebted in 20l. and he deviseth and bequeatheth to his Wife by his Testament the moity of all his goods to be equally divided between her and his Executors Legacy of a moity of all his goods and make his Executors and dieth And the Executors pay the 20l. yet the Wife shall have the moity of the whole estate viz. 50l without any defalcation so that the Executors have Assets besides 75. IN a Prohibition and the Case was this Benefield against Feek Tithe of Saffron the Farmor of a Parsonage sued in he Spirituall Court for Tithes of Saffron against a Vicar The Vicar pleaded that time out of memory of man the Vicar and his predecessors have had the Tithe of all Saffron growing within the parish A Prohibition for the Plaâ—ntif in the Spirituall Court upon his own lihell The Plaintif pleaded that the land where the Saffron was growing this year by the space of 40 yeares next before had been sown with Corn whereof the Parson and his predecessors have had the Tithe And the Spirituall Court would not allow this Plea For which the partie prayed a Prohibition Tanfield The right of the Tithe commeth in question between the Parson and Vicar Howbeit that the Farmor be made partie to the suit and for that the right of Tithes being in question between two Spirituall men Suit between persons spirituall This Court hath no Jurisdiction And this very point was adjudged 30. Eliz. inter Hunt and Bush in this Court that in such
case the partie shall have a consultation Popham The one of the parties is a man temporall and so was it not in your case Sic nota that by the Spirituall law the Vicar shall have Tithes of Saffron of land newly sown with Saffron albeithat before the Parson had the Tith of that land being sowen with Corn. 76. NOta that by the course of the Kings-bench a man may have Oyer of the deed after imparlance Oyer of a deed but not in the Common place Q. 77. BEckford brought an ejectione firme against Parnecote Devise before purchasâ— and the Case upon the speciall Verdict was found to be this That one Parsons was seised of certain land in A. and had issue four Daughters viz. Barbera Johan E. and Mary and made his Will in writing And by the same Will he devised all his land in Aldeworth to Barbera and Johan two of his daughters and made them two his Executors and after he purchased other land in Aldworth and a stranger was desirous to purchase this land of him newly purchased And he said that that land should goe with the residue of his land to his Executors as his other land should go After the said Testator made a Codicill and caused it to be annexed to his Will But the Codicill was of other things and mentioned nothing of this land and whether this new purchased land shall pass by the Will without new publication of the Will for this land was the question Moor I think that the land newly purchased shall pass and to prove that he said that the reason in Bretts case 340. Com. for which land newly purchased shall not pass is by reason that there is no manner of new publication but in our case there is new publication and in Trivillians case 4 M. 143. where cestui quae use made a Will And then the Statute of 27 H. 8. of uses came now this Will was comptrouled The Statute of Wills but by a new publication it may be made good and he cited 44. E. 3. 12. and 44 Ass 36. Atkinson è contra For this Will ought to be warranted by the Statute otherwise it is not good and the Statute doth not enable him which hath no land at the time of the devise to devise land and the words of the Statute manifest this which are Where any person or persons having any land holden c. So by the express words Want of apt words if he have no lands at the time of the Devise he may not Devise as appears plainly in Brets case allso it appears that words out of a Will will never make that to pass which was intended before and with that agreeth the Lord Cheney his case and the case of Downhall and Catesby lately adjudged and in this case allbeit the Testator allowed this Will after to be his Will Things not expressed in the Wil must be expressed in the publication yet this shall never make this land newly purchased to pass without express publication of this land Clinch Justice sayd it seemed to him that the land newly purchased shall pass for after that he had made his last purchase the Testator heard the Will read and by that he devised all his lands in Aldworth and then knew that the land newly purchased lay in Aldworth and upon reading of the Will he allowed it and so I think that the new purchased land shall pass as well as the other and that this allowance upon the reading is a new publication Gawdy Justice è contra For if I make my Will and by that devise all my land in Dale and after I purchase other land there and one afterwards shews me the Will and demands of me if it shall be my Will and I answer it shall I say that this land newly purchased shall not pass Hearing and allowance is a publication and in this case howbeit that the reading of the Testament or annexing of the Codicill be a new publication yet it doth not manifest the intent to be that more shall pass by that than he intended at the first and allso the new reading of the Will and the annexing of the Codicill may not properly be termed a new publication as this case is Where there it no controlment there needeth no new publication for here was not any Controlment and for that the Will needs not any new publication by which it seemeth that without any express publication for this land newly purchased this land shall not pass for the things which are found to be done are but allowances and no new publications 78. HArecourt brought a Writ of Error upon a Judgment given in the Common-place Amendment and assigned for Error for that the Judgement was that the now Defendant should recover xx l. assessed to him per Jnr. nec non x l. bassessed to him hic per Jur. where it ought to be per Cur. Yelverton prayed that it might be amended for that the Record in the Common-place was right and the Misprision which made this Error was in the Clerk which certified the Record and the opinion of the Conrt was that if it were so it should be amended and therefore they sayd they would have the Record it self brought out of the Common-place thither to be viewed whether it were so or not The Record it self shall not be sent out of the Court. Worley Clerk The Justices of the Common-place will not suffer the Record to be brought hither Popham That is no new President that the Record shall be brought hither for I have seen it done before this time But after in truth the Justices of the Common-place would not send their Record into the Kings-bench and therefore Cook the Queens Attorney prayed that it might be amended Popham It may not be amended for that I have spoken with the Justices of the Common place and they say that the Record was at the first as it was certified viz. Iur. pro. Cur. and after the Record was certified it was amended by a Clerk without any Warrant Cook Allbeit that it was so yet under Correction it is amendable for it is the misprission but of a Clerk and that of a Letter onely viz. of I. for this letter C. for the word is written Jur. short where it ought to have been Cur No amendment in â—â—int of Judgement and so amendable by the Statute of 8 Hen. 6. Curta è contra for it is parcell of the Judgement and you never saw the Judgement of the Court amended for which it cannot be amended here 79. EAst Executor of I. S. brought an Action upon the case of finding and Converting of certain goods Trover against Newman And upon not guilty pleaded the Jury found this speciall Verdict viz. That the Testator was possessed of divers goods and them lost and the Defendant found them And knowing them to be the goods of the Testator upon demand denied to deliver them And
Statute of 18 Eliz. cap. 11. c. appoints that the Ordinary after complaint made and sentence given against any such incumbent whereby he ought or shall lose one years profits of his Benefice shall grant Sequestration to one of the inhabitants of the same Parish as he shall think meet And upon default there in by the Ordinary that it may and shall be lawfull to every Parishoner where the Benefice is to retein and keep his or their tithes and likewise for the Church-wardens to enter and take the profits of the Glebe lands and other Rents and duties of every such Benefice to be imployed to the use of the poor and he shewed how that the Parson made a Covenant and a Bond that he would permit I. S. to take the profits of his Benefice for a year And whether this were such a Lease for which the Parson ought to forfeit the profits ut super he prayed the opinion of the Court and it seemed to them it is not the reason seemeth to be because he doth not aver him to be absent above 80 daies in the same year 83. PEr Popham If a man find my horse Conversion and after ride him and then delivers the horse unto me and I bring an Action of Trover for the Conversion It is no plea that you have delivered the horse to me before the Action brought for you ought to answer to the Conversion 84. CHesson brought an assumpsit against D. K. Abatement of debt and declared that where I. S. was indebted to him in 64l The Defendant in consideration that the Plaintif would abate 10l parcell of the said Debt and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael and the Plaintiff in facto saith that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue per quod actio accrevit The Defendant pleaded in Barre That after the said day given and before Michaelmas scil tali die the Plaintiff entred a plaint in London for the Debt aforesaid of 64. l. Arrest before the day given for payment and then caused the said I. S. to be arrested and demanded judgement si actio Tanfield The Declaration is sufficient for you have delared that you have abated part of the debt but you have not shewed how that was defaulked and therefore not good for we may take issue upon that if we will and if a man be bound in an Obligation to discharge me of certaine rent it is no plea for him to say that he hath me discharged without shewing how for that that I may take issue upon thaâ— Also to the second matter the Plaintiff ought not onely to give day of payment but also to forbeare to molest I. S. untill the day be come Cook to the contrary And as to the first poiut it seemeth that the discharge ought to be upon the entring into bond Bond for parcell of a contract for if a man make a Contract for 10. l. and after enter into bond for 5 l. parcell of that all the Contract is gone as appears per 3. H. 4. And as to the second point I think the promise is broken by the Defendant for that he did not enter into Bond the next day after the assumption made Gawdie I doubt whether the Declaration be good or not for it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for it may not be intended a defaulking in Law but of a defaulking indeed and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act himselfe And 17. Eliz. A man was bound to allow ratifie and confirm a term for yeers And it is no Plea to say that he hath that confirmed But he ought to shew how because every Confirmation must be by Deed but if the Declaration were good then perchance the Barre would not be good And howbeit that Mr. Attorney hath said that there is a breach for not entring into Bond yet the Plaintiff may not sue Every discharge to be by writing if he have not performed his promise Fenner It will be hard to make the Declaration good for when one promiseth to defaulk his debt this shall be intended a lawfull discharge which cannot be otherwise than by writing and per 20. E. 3. Accompt If a man be bound to acknowledge a Statute For the intent must also be performed and he doth acknowledge the same but yet keeps the same in his own hands this is no performance And as to the second point when one promiseth in confideration of one thing to doe another there ought to be performance of the first as if a man be bound to make a new Pale Disturbance of the consideration as 9. Edw. 4. 20. 15. Edw. 4. 2. 3. is having the old pale for his labour there if the old pale be taken from him he is not bound to make the new pale Popham I am of the same opinion 85. DIxon brought an Action upon the case against Adams Assumpâ—it in consideration that a man will voluntarily do that act which otherwise he should have been compelled to doc and declared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉 for the said I. S. in the said suit and the said Adams recovered in the said suit and after sued forth a Scire facias against the said Dixon being bail whereupon the said Adams in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation in which the said I. S. was bound unto him and upon which the first action was brought and the judgement thereupon had and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant Sed â—radictus defend promissionem assumptionem suas minime curans hath not assigned over to the Plantiff the said Obligation and Judgement per quod act accrevit and Judgement was given for the Plaintiff for the consideration was holden good 86. ROsse brought an Ejectione firme against Thomas Ardwick Limitation and the case was such that one Norwood was seised in see and leased to one Nicholas Ardwick and his Assignes for his own life and for the lives of Thomas Andrew and John Ardwick and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will and
dyed and if the estate of Tho. was determined by the death of Nich. was the question Johnson There are two points in the case the first if by this word Assignee an Occupant shall have the land and I think he shall not And the second point is when a lease is made to one and his Assignees for his own life and the lives of two others if now his own life confound the other two lives for that that it is greater to the Lessee than the other two lives and he said the Lessee hath no estate but for his own life and when he dyed the state is determined and to prove that he cited the opinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie without impeachment of Wast the remainder to him for his own life that now he is punishable of Wast for that that when the remainder is limited unto him for his own life Wast against the surviving Joyntenant this drowneth the estate pur auter vie which was in him before And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast and one of them purchase the Fee simple and dye now his heir shall have Wast against the Survivor And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane Cook è contra And the case is no more but that a lease is made to one and his Assignes for his own life Remainder for years to the tenant for life and for the lives of two others and I think that all may stand together for a man may have an estate for his own life the remainder for yeares and both may stand together in him simul semel for that that albeit that the Lessee may not have that during his own life yet he may dispose of that and by that means shall have the benefit and so in this case and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant and the inconveniencies shall be exceeding many in this case if the estate doth not endure for all their lifes for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years and usually Tenants in tayl make such leases as these be and for that the generality of the case ought greatly to be regarded and there was a case adjudged in the Common place between Chambers and Gostock Chambers against Gostock where a lease was made to two for their lives and the life of a stranger and one of the Lessees dyed and the Survivor granted the land for his life and the life of the stranger Burdels case and it was no forfeiture and allso it was Burdels case in the Common-place 32 Eliz. where a lease was to him for his own life and the lives of two others and a good lease for all their lives Occupant And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor Gawdy The cases put by Mr. Johnson are not like to the case in question The greater estate preceding the less both may stand and I will agree them for here the greater estate precedeth the lesser I hold that a lease made to one for his life the remainder to him for anothers life is good for he may it grant over and so I think in this case that so long as any of the lives remain living that the estate remains Fenner I am of the same opinion for I think that the state pur auter vies is in the party to dispose at his pleasure so Judgment was given for the Defendant 87. HArding brought an Action of Trover of goods against Shâ—rman Visne and declared of a Trover at D. in the County of Hunt The Defendant pleaded that he bought the goods of one I. S. at Roiston in the County of Hertford in open Market and demanded Judgement The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Huntington by fraud and Covin And after bought them again at Roiston as the Defendant supposeth the Defendant rejoines that he bought the same goods bona fide at Roiston Absque hoc that he bought them by fraud apud D. in Com. Hunt Glanvile pleaded in arrest of Judgement that the Visne ought to be of both Counties Gawdy seemeth to agree but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties therefore Gawdy gave Judgement for the Plaintif for by this speciall Traverse the buying at Roiston shall not come in question 88. PAyton being High-Sherif Keep harmless brought Debt upon an Obligation against his under-Sherif and the Condition was to perform all Covenants in a pair of Indentures conteined and one Covenant was that the under-sherif shall keep all the Prisoners committed to him untill they be delivered by the Law and allso to save Mr. Payton harmless of all escapes made by the said Prisoners And the Defendant pleaded performance of all Covenants Godfry The Plea is not good for one part is in the Affirmative and the other in the Negative By which the Defendant ought to plead that the Plaintif non fuit damnifieatus and so was the opinion of the Court by which day was given to the Deâ—endant to amend his plea. 89. A Man brought an Action of Trespass for entring into an house and breaking of his close in Dale Variance between the declaration and the new assignment or the title of the Plaintif The Defendant said that the said house and close in which the Trespass is supposed to be done conteins twenty Acres and is at the time of the Trespass supposed was his Freehold And the Plaintif replyed quod locus clausa in quo supponitur transgressio est anum messuagium and makes him a Title to it To which the Defendant pleaded non Cul. And it was found for the Plaintif and for that that the Plaintif by his Replication made to him Title but to a messuage and doth not maintain his Declaration which was for the messuage and the close therefore it was awarded quod querens nihil capiat per Billam sed quare if this do not amount to a discontinuance of the close onely and so helped by the Verdict 90. THomas Allen brought a Writ of Debt against William Abraham upon an Obligation bearing date in October Counterbond for an Obligation allready forfeited The Condition was that whereas the sayd Thomas Allen at the request of the above bounden William Abraham standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May the which May was before the
date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
a Grantee of a Reversion for years be within the Statute or not Gawdy Well enough For the words of the Statute extend to that quod fuit concessum Then it was moved that this was a meer collaterall Covenant between the persons and not concerning the estate of the land and for that not within the Statute Popham sayd Covenant reall which concerneth the estate If nothing be sayd to the contrary intretur Judicium for the Plaintiff afterwards the case was moved again Gawdie It seems the case is Assigne which in regard of his reversion as of a Covenant may well maintain this action by the Statute of 32. Fenner This Covenant is not any Covenant to be performed during the estate or terme of the Defendant but it is a Covenant to doe a thing in the end of his term and for that is not a Covenant of which the Assignee of the reversion shall have benefit by the Statute for that he hath not any reversion depending upon any estate when the Covenant is alledged to be broken for the Defendant when he breaks that Covenant is but Tenant at sufferance Gawdie contra the Covenant is not to doe a thing after the terme determined but at the instant of the determination of the term and therfore it is a Covenant annexed to the State and runnes with the Land and therefore the Plaintiff shall have advantage over it 110. TRespasse and assault was brought against one Sims by the Husband and the Wife for beating of the woman A Child born living but bruised Cook the case is such as appears by examination A man beats a woman which is great with child and after the child is born living but hath signes and bruises in his body received by the said batterie and after dyed thereof I say that this is murder Fenner Popham absentibus cateris cleerly of the same opinion and the difference is where the child is born dead and where it is born living for if it be dead born it is no murder for non constat whether the child were living at the time of the batterie or not or if the batterie was the cause of the death but when it is born living and the wounds appeare in his body and then he dye the Batteror shal be arraigned of murder for now it may be proved whether these wounds were the cause of the death or not and for that if it be found he shall be condemned 111. GOodale against Wyat in trepasse The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee Mortgage and morgaged it to one Woodliff upon condition that if he or his Heires did pay to the Heires Executors or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment and the Seisin thereupon given should be void and afterwards Woodliff infeoffed Goodale of the same land and gave notice of the said Feoffment to Sr J. P. and after Woodliff dyed and Sir J. agreed with the heir of W. to wit one Drew Woodliff to take 30 l. for the said 50 l. but when the 30 l. was to be paid Sir J. paid to the said Drew VV. all the fifty pounds and after such payment made Drew VV. gave back to the said Sr. J. 20 l. parcel of the 50 l. Altam 2. points are in the case The first is to whom the payment of the money as this case is ought to be made and I think to the Feoffee because the Heir hath nothing to do in the land and to prove that he cited fundamenta legum 17. Ass 2. 6. R. 2. Plesingtons case and the case of one Ramsey 19. Eliz. was such a man infeoffed three Ramseys case upon condition that if the Feoffor paid to them or their heires 100 l. that then he might re-enter and after one of the Feoffees dyed and the Feoffor tendred the money to his Heir and adjudged a void tender And also Littleton proves that but tif the condition might be performed to the Heirby payment that ought to be precisely performed for he is now as a stranger having nothing in the land and the Covin between the Feoffor and the Heir must not hurt my Olient for by 4. E. 2. câ—i in vita 22. If cui in vita be brought against a Prior and hanging the action he is deposed by Covin this shal not abate the Writ and it was adjudged in this Court where a man was bound by Obligation to deliver a bond and after he got a judgement upon it and then delivered the bond and holden no performance of the condition because the intent was not performed and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed whereby the Plaintiff granted that if the Defendant made a Recognisance to him that then the Writ of accompt shall be made void and he shewed how he made a Recognisance But the Plaintiff said that after the making and before deliverie of that to him Composition by Executors the Defendant took it from the Clerk and therefore was adjudged to accompt Precisely named and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes if he do license him and then disturb him the condition is broken and the common case of Executors will prove this for if an Executor have but 20 l. assets in his hands and is in debt to two men in 20. l. to either of them if he pay but 10 l. to the one and have an acquittance of him for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other for no compacting between strangers shall prejudice my right per quo c. Payment upon a mâ—rgage good to the Executorrs cleelry Gawdy I think cleerly if the payment had been intirely made to the Heir without collusion it had been good for that he is preisely named for none will deny but that if the payment had been made to the Executors it had been good but the Covin between the Heir and the Feoffor peradventure will make no payment Father enfeoff the son and for that 34. E. 1. Warrantie 88. If the father infeoff the Son to the intent that this land shall not be assets to the Sonne to bar him in a Formdone this Covin will not serve to aid him Covin by administration and 2 3 Mar. the Husband dyed intestate and administration was committed to the wife which tooke another husband and the second husband and his wife as Administrators brought an action of Debt hanging which suit the Sonne of the intestate by fraud and covin between him and a Debtor obtained other letters of Administration to him and the woman joyntly and after judgement the sonne by covin to defeat the execution released to the Debtor all demands and executions and after the Husband and
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I
say they shall take that as Legatees and not as Executors in respect of the 100. l. which they are to have to then proper use 126. NOta Second deliverance if a man have Judgement to have Retorn upon a Nonfuit in a Replevin and the Plaintif bring a second Deliverance this is a Supersede as of the Retorn yet the Defendant in the first Replevin shall have a Writ to enquire of the damages which shall not beestaid by the second Deliverance but if he have Iudgement in the second Deliverance then shall be retorn Irreplevisable and shall recover damages 127. STitch against Wisdom Thoughts are not to be uttered an Action upon the case was brought for words viz he did better than many an honest man did For there is many a truer and honester man hang'd and there was a Robery committed whereof I think him to be one and I verily think him to be an Horse-stealer and upon non Cul. pleaded It was found for the Plaintif and pleaded in arrest of Judgement for that it is not expresly affirmed that the Plaintif was one of the Robbers neither that he was a Horse-stealer precisely but that he thought him to be one and thought is free for every man and no slander but this notwithstanding Judgement was given for the Plaintif for thoughts tending to slander may not be uttered 128. NOta per Gawdy Felony That a man may be accessary to the stealing of his own goods As if he confederate with an other to steal goods from his Bayly to the intent to charge his Baily this is Felony 129. THynn brought Debt against Cholmley for 300. l. Arrerages of a nomine poenae Nomine poene against an Assignee And declared of a Lease for years made by him to one Ager rendring Rent and if default of payment be made of the said Rent at any day Trin. 36. E. rot 842. in which it ought to be paid Quod tunc toties the said Ager his Executors and Assignes shall pay iij. s iiij d. pro quolibet die donec praedictus reddit so behind shall be satisfied And shewed how the Rent was behind and not paid by the space of two years but did not shew that he demanded the Rent Jackson The sum demanded is by computation more than should be true But it seems that the Plaintif intends to have every iij. s iiij d. doubled for every day that the Rent is behind And if that be his intent then he demands too little Demand for in 2 years that will be infinite Gawdy He shall have but iij. s iiij d. for every day Fenner I think that he ought to make a demand of the Rent Or otherwise he shall not have the nomine poene Gawdy Nay truly no more than in Debt upon an Obligation and he cited 21 Hen. 6 21. Edw. 4. 22. Edw. 4. Fenner Not like for in debt upon an Obligation it is a duty but otherwise of Rent and it was agreed that it lies against the Assigne in this case 130. HArbin against Barton A Jointenants Lease to begin after his death The case was that two Jointenants for life the one made a Lease for 80 years to begin after his death and after died And whether the Lease is good against the Survivor or not is the question Gawdy said that the Lease was good and cited 2 Eliz. 187. Popham Fenner è contra After this Lease was adjudged a good Lease by all the Judges of England for every Jointenant hath interest during his life and the life of his companion Ewdalls case For it was Ewdalls and Paramores case 31. Eliz. Where a Lease was made to the Father during his life and the life of two of his Sons The Father assigned over and adjudged to continue after the death of the Father The like between Gutter Locrofts and between Orwin and others 131. Baddock against Ja. S. and declared in an Action upon the case for words Insufficient declar for words quod in praesentia diversorum leigiorum dixit de praefat quer haec verba Anglicana viz. Thy Father praedictum quer innuendo is a thief for he stole my sheep The Defendant justified the words and at the Assisâ—s it was found for the Plaintif and exception was taken in arrest of Judgement For that it is not shewed in the Declaration Substance Form in a Declaration that the words were spoken to the son of the Plaintif Gawdy I think it is good for that the Defendant hath Justified the words spoken of the Plaintif tota Cur. è contra But if the Declaration be uncertain in form yet the bar may make it good But if the Declaration want substance as in this case it doth there the bar cannot make it good 132. RObert Sharples and Grace his Wife Debt brought Debt upon an Obligation against N. Hankinson the Obligation boar date xiij die Octobris An. xxxj Eliz. The Condition was if N. H. did pay viij l. of lawfull money c. in the year of our Lord God 1599. At or upon the 13th day of October which shall next ensue the date herof The Defendant pleaded that the day of payment was not come Gawdy I think the day of payment is the 13th day of October next after the date of the Obligation And that these words in the year of our Lord God 1599. are meerly â—oid Fenner Justice I think that the payment shall be in the year of our Lord 1599. For when a certainty appears allbeit afterwards an incertainty come yet that shall not hurt the certainty but the first certainty shall stand and the incertainty shall be void And in this case the An. Do. 1599. is sufficicient certainty and therfore the subsequent words are void Popham I think that the payment shall be the 13 day of October prox post An. Dom. 1599. For the words are that the Obliger shall pay viij l. of lawfull money of England in the year of our Lord God 1599. And if the payment shall be before this time none may know but by the spirit of Prophecie what money shall be current in England that year before the year come and it is impossible to pay that before and if I am bound to enfeoff before Easter Impossible condition void him that comes first to Pauls upon Michaelmas day next this is void because it is impossible 133. BOyer brings a Writ of Error against Jenkings Teste of the Venire mistaken and the Error assigned was for that the suit was commenced 35 Eliz. And the Venire fac to try this issue bore Teste 33 Eliz. Gawdie a Venire fac which bears Teste 33 Eliz. cannot possible be to try an issue in 35 Eliz. which is two years after and therefore here is no venire fac and so holpen by the Statute of 18 Eliz. after Verdict Tunfield This very case was Yorks case adjudged in this Court that it was not holpen by