a Report 34 Eliz. between Badinton and Hawle in the Kings Bench adjudged that if the Queens Copyholder be outed and a Lease be made for years by the Intrudor this Lessee shall not have an Ejectment if he be outed but he shall have an Action of Trespasse against any stranger The second exception was taken to the pleading because the Defendant pleaded in que estate del Lessee del Abbe without shewing how he came to the Estate And by the Court a good exception for he shall be compelled to shew how he came to an Estate in the terme inasmuch as it cannot be by loyall means vide 1. 2 Eliz. Dyer 171. that a Que Estate of a particular Estate of a terme is not good and 7 Eliz. Dyer 238. where the Plea was of a que Estate of a Termor and exception taken to it and the difference between it and a Freehold so in the 7 H. 6.440 it was agreed that H. could not convey an Interest by a que Estate of a particular Estate as Intail for life or years without shewing how he came by the Estate be it on the part of the Plaintiff or the Defendant The third exception was that the Defendant pleaded a Lease made by the Abbot and Covent by Indenture as it ought to be without saying Hic in curia prolat which exception was also clearly allowed by the Court for he is privy to it and therefore he ought to shew it And for these two exceptions but especially for the former Iudgment was given for the Plaintiff Mich. 36 and 37 Eliz. in C. B. Palmers Case Action on the case for words PAlmer an utter Barrester of Lincolns-Inn brought an Action on the Case against Boyer for these words Palmer being Steward to I.S. the Defendant in discourse had with I.S. said I marvail you will have such a paltry Lawyer for your Steward for he hath as much Law as a Jack a Napes And the Plaintiff shewed all the matter in the Declaration and that by reason of such words he was displaced of his Office Williams Serjeant did move in that the words were not That he hath no more Law then c. for then those words were actionable but that he hath as much Law as c. for which words no Action will lye But resolved by the Court that the Action will lye for the words are standerous and prejudiciall to his credit and by reason of them he was discharged of his Stewardship also an Action will lye for saying That he hath as much Law as a Jack an Apes or my Horse because they are unreasonable creatures but if he had said that he hath no more Law then I.S. that is not actionable although I.S. be no Lawyer And Iudgment was given for the Plaintiff Pasch 35 Eliz. in B. R. Audleys Case A Man brought an Action of Debt on an Obligation made by the Father of the Defendant in which Writ the Defendant was named Son and Heir apparent of the Obligor Iudgment was given against the Defendant whereupon he brought a Writ of Error for the Writ does imply that his Father was living for he is his Heire in truth and in fact if his Father be dead and not apparent To which was answered that that was but Surplusage which shall not abate the Writ as appeares by the Book of the 10 Edw. 3. But the Court held that Iudgment should be reverst for he ought to be named Heire as in debt against Executors he shall be named Executor And Iudgment was reverst Trin. 36 Eliz. in B. R. Downinghams Case Ejectment THe Defendant in an Ejectione firmae pleaded that the Lord of the Mannor did enter into the Land of a Copyholder by reason of forfeiture for Waste committed in suffering the houses to be uncovered by which the timber is become rotten and did not alledge in facto that the Custome of the Mannor is that such Waste is a forfeiture for it was said that although other Waste by the Common Law is a forfeiture yet this permissive Waste is not Sed non allocatur for all Waste done by a Coppholder is forfeitable 2. It was resolved that if a Coppholder made a Lease for yeares which is not according to the Custome of the Mannor yet this Lease is good so that the Lessee may maintain an Ejectione firmoe for between the Lessor and the Lessee and all other except the Lord of the Mannor the Lease is good and so hath it been severall times adjudged in this Court Trin. 36 Eliz. in B. R. Wisdomes Case Action on the case for words STich brought an Action on the Case for slanderous words against Wisdome the words were There is many a truer and honester man hanged and that there was a Robbery committed whereof he thought him to be one and that he thought him to be a Horse-stealer And it was moved in Arrest of Iudgment that these words were not actionable for it is not said in facto that he was in the Robbery or that he was a a horse-stealer in fact but onely by imagination that he thought he was such a one but Iudgment was given for the Plaintiff Trin. 36 Eliz. in B. R. Rot. 815. Palmers Case CHristopher Palmer brought an Ejectione firmae against John Humphrey and declared that one George Hanger the eighteenth day of May in the six and thirtieth year of Eliz. by his Indenture did demise unto him a certain peece of Land called the great Ashbroke and other peece of Land called Stocking and also divers other peeces of Land naming the peeces and of one Garden called Muchins Gardein and of another peece of Meadow called Michins Meade and of seven acres of arable Land for the terme of two years by vertue whereof the said Christopher entred untill the Defendant by force and armes c. did eject him and did set forth in his Declaration that the Defendant ejected him out of the said peeces of Land and yet did not expresse the contents thereof in certainty And upon not-guilty pleaded it was found for the Plaintiff and for the seven arable acres of Land and the Garden the Court gave their Iudgment that it was certain enough but as to the other peeces of land the Court was divided For Popham Gawdy held that it was certain enough being in an Ejectione firmae which is but in the nature of an Action of Trespasse and the damages are the principall and a man may bring an Action of Trespasse for a peece of land without any other certainty But Clench and Fenner were on the contrary for he ought to set forth his terme in the land and then to shew the contents thereof as well in an Ejectment as in a Precipe quod reddat by which land is demanded and a man shall have an Ejectione firmae de una visgata terrae but shall not have a Precipe quod reddat of one portion of land by Skeene and Hill 7 H. 4.40 9 H. 6.3
5 H. 7.9 And afterwards vide Mich. 37 38 Eliz. It was adjudged that this was good enough in an Ejectione firmae for there the damages are the principall but otherwise in a Precipe for there ought to be a certainty but in an Assise of Novel Disseisin it is good enough but afterwards Mich. 38 39 Eliz. the case was debated in the Exchequer Chamber by Writ of Error and the Iudgment was reversed Hil. 36 Eliz. in B. R. Rot. 34. Walters Case LOve brought an Action of Debt against Wotton who pleaded the Statute of Vsury in Bar and by reason of Mispleader it was awarded by the Court that the parties should plead De novo and this Award was entred in this manner viz. Et quia placitum illud in modo forma placitat est sufficiens in lege the Court awarded that the parties should replead and hereupon they pleaded and Iudgment for the Plaintiff and the Defendant brought a Writ of Error in the Exchequer Chamber which was certified accordingly And there Gawdy moved that the Record in this point might be amended and to have the Record certified de novo into the Exchequer Chamber for that the first Award is repugnant in it self for it is awarded that they shall replead because the Plea est sufficiens whereas it ought to be that they shall replead because est minus sufficiens as the paper books are and the opinion of the Court was that it could not be amended because that the fault is in the Iudgement it self which is the act of the Court and therefore cannot be amended Glanvill It is no Error in the Iudgment for the Iudgment is only that they shall replead but the Error is in the Iudgment to the Iudgment and may be well amended and of the same opinion was Popham Mich. 36 and 37 Eliz. in B. R. Rot. 579. Bartwrights Case BArtwright brought an Action of Debt upon a Bond against Harris the Condition was that if the Defendant did acquit discharge and save harmlesse the Plaintiff against an Obligation in which he and the Defendant were bound to I.S. in 601 l. that then the Obligation should be void The Defendant said that Bartwright was sued on this Obligation by I. S. and upon default I.S. had Iudgment to recover and that the Defendant before execution did deliver to the Plaintiff the 601 l. and hereupon the Plaintiff demurred Humbert It is no plea for he confesseth that the Plaintiff was not yet taken in execution yet inasmuch as he may be taken therefore his body goods and lands are liable to the execution and he hath not acquitted nor saved him harmlesse against the Bond of I.S. vide Dyer 186. And the Plaintiff had Iudgment c. Mich. 36 and 37 Eliz. in B. R. Rot. 25. Greyes Case GRey brought an action of Trespasse against Bartholmew the Case was A man did purchase divers Fishes viz. Carpes Tenches Trouts c. and put them into his Pond for store and then died The question was whether the Heire or the Executors should have the Fish Popham The Heire shall have the Deer in the Park and by the same reason the Fish Clench If the Fish be stolne it is Felony so that it appears there is a property in them vide 18 Ed. 4. 10 Ed. 4.14 22 Ass 98. that stealing of Tench out of a Pool is Felony by which it seems they are but Chattels Popham the Book is so and so is the Law but that is of stealing Fish out of a Trunk or some narrow place where they are put to be taken at will and pleasure but otherwise it is where they are put into a Pond Fenner He which hath the water shall have the Fish And Popham ex assensu curiae gave Iudgment for the Heire And in the principall case the Executors did take the Fish with Nets and the Heire brought a Trespasse and adjudged maintainable See what Chattels Executors shall have and what not in 21 H. 7.26 10 H. 7.6 30. an account will lye for Fish in a Fish-pond so in the 5 R. 2. Waste 97. an Action of waste did lye against Guardian in Chivalry for taking Fish out of a Pool by the Statute of Magna Charta but quaere if it lies against a Termor or Guardian in Soâ—age upon an Account for Fish 36 Eliz. in B. R. Rot. 767. Leighs Case LEigh brought an Ejectione firmae for a Chamber against Shaw the Case was A Lease was made of the Rectory of Chingford in Essex and of the Glebe excepting the Parsonage house saving and allowing to the Lessee a Chamber over the Parlor next the Church It was adjudged that the Lease of the Chamber was good for as well as a man by his exception may except part of a thing so as it shall be intended that it was never let or granted so in this case when he saies except the Parsonage house saving and allowing to the Lessee a Chamber this saving makes the Chamber as it were excepted out of it as if it had been leased so a saving out of a saving is as much as there had been no saving at all and then this Chamber not being excepted out of the Lease shall passe clearly by the Lease of the Rectory And Iudgment was given for the Plaintiff 37 Eliz. in B. R. Rot. 242. Wrights Case WRight brought a Writ of Error against the Mayor and Comminalty of Wickombe to reverse a Fine levied by his Ancestor of twenty acres of Land the Defendants in abatement of the Writ of Error did plead that the Plaintiff after the death of his Ancestor did disseise the Defendants of the Land and made a Feoffment to a stranger Iudgment c. The Plaintiff replied that they did re-enter upon him without that that he did enfeoff a stranger modo forma The Iury found that there was a Fine of twenty acres and that the Plaintiff being Disseisor of all made a Feoffment of six of the acres to a stranger Et si supra totam materiam c. And it was objected that the Record was intire and the Error is a Chose in Action and not a Chose in Droit and therefore cannot be divided but if it were a Chose in Droit it is otherwise as if a Disseisee of twenty acres releaseth all his right in five acres this doth extinguish all his right in the five acres so upon a Feoffment of parcell yet the right remaineth as to the remnant But of a Chose in Action which is meerly entire no apportionment can be as in the 31 Eliz. in the Kings Bench between Charnock and Wrothesley the case was Husband and Wife levied a Fine of the Wives Land and after because the Wife was within age they sued a Writ of Error to reverse the Fine The question was If this should be reversed as to the Wise onely or against the Husband according to the opinion of Belknap in the 50 Ed. 3. And after long debate it was resolved
that it should be against both for it is intire and cannot be affirmed in part and disaffirmed in another part And the Lord Norris case is very agreeable to this where Tenant for life did levy an erroneous Fine and then was attaint by Parliament and all the right which he had to any Land was given to the Queen and it was adjudged that there is no title of Error nor was it given to the Queen by this word Right and then if it be so the Title of Error is not of any right in the land but onely to the Suit and if it be a Suit it is a Suit intire for he cannot have severall Suits as is agreed in Sir Richard Knightleys case A man had judgment to recover 150 l. and did release 20 l. of it and after sued execution and the other brought an Audita querela upon the Releases and defeated all the execution But it is otherwise where such apportionment of such Suit is done by act in Law as in 7 Ed. 4. fol. ultimo The Sheriff levied parcell of the debt by Fieri facias yet shall he have an Action of Debt for the Residue upon the Record But in this case it is the act of the party himself that destroies his Suit for part of the Land for which it shall destroy the other suit for the Error is intire as to all the land and cannot be divided as in the 38 Ed. 3. and 12 H 6. if a false Verdict be found and the party greived does make a Feoffment of parcell he shall not have an attaint for any part So in the 19 H. 6. and the 39 Ass If he who hath cause to bring a Writ of Error or Attaint does take a Lease for years of parcell he doth suspend his Action and if he takes in fee it is quite gone But it was resolved by the Court that the Feoffment does not destroy the Title of the Writ of Dower for more then so much as a Feoffment was made of and thereupon they first took a difference between suspension and extinguishment of an Action for peradventure if he suspend his Action as to any part for any time this is a suspension unto all but extinguishment of part is a Bar to that part onely and Gawdy cited the case in 9 H. 6. where Iudgment was reverst for part only and it is not unusuall to have a Fine reversed for part as if a fine be levied of lands in ancient Demesne 47 Ed. 3.9 a. there by Parsley If there be Error in Law as to one parcell and Error in Fact as to another parcell the Iudgment as touching the matter of Law may be reversed Fenner He who hath Title to reverse a Fine or recovery by Writ of Error hath right in the Land and if he release all his right in the land the Error is extinct and the reason of the Lord Norris Case was not that the Title to the Error was an Action in privity annexed to the party to the Record and his Heires and cannot be transferred over to another no more then a Writ of partition between Coparceners or a Nuper obiit Popham He who hath Title to have the Writ of Error hath no Title to the Land although that thereby he be to be restored to the Lande for if the Land discend to one who hath Title to have the Writ of Error without doubt it shall not be accounted a remitter But as to the matter now in question he said that if two men bring a Writ of Error in the Realty and the Tenant plead the release of one this is a good Bar against both because the Error in the Record is released But if one who hath Title to a Writ of Error does make a Release of all his Right in one acre this is a Bar but for so much inasmuch as the Release is a Bar but as to the Restitution of the Land onely and no Release of Errors in the Record for by the Reversall of a Fine or Recovery the party may annihilate the Record and have Restitution of that which the Record before took from him and therefore it shall bar the Plaintiff And the opinion of all the Court was that the Fine should be reversed for that part of the Land onely whereof no Feoffment was made but for some defects in the Writ of Error Iudgment was stayed Mich. 37 and 38 Eliz. in B. R. Barnards Case SMith brought an Action of Debt upon a Bond against Barnard the Defendant pleaded that the Plaintiff was outlawed and a day was given him to bring in the Record at which day he made default Daniel moved that the Iudgment for the Plaintiff in this case should be that the Defendant should answer for that the plea of Outlawry was but a dilatory Plea and no Plea in Bar as appears 21 Ed. 4 15. but this difference was taken by the Court. In an Action of Debt upon a Bond Vtlary of the Plaintiff is a Plea in Bar and the reason is because all the Debts in specialties are forfeited to the Queen by reason of the Outlawry and because the Queen is to have them it is a good Plea in Bar But in a Trespasse or Debt upon a Contract the Outlawry is but to the abatement of the Writ and the Queen shall not have Debts upon simple Contracts but after the Outlawry pardoned the Plaintiff may have an Action for them again And because he failed to bring the Record at his day appointed the Plaintiff recovered vide Dyer 6 Eliz. 227 228. Hil. 32 Eliz. in C. B. Lord Dacres Case GRegory Lord Dacres was summoned to answer Richard Gawton in a Plea of Debt for 26 l. 14 s. and did declare that the Defendant did retain the Plaintiff to be his Bayliff of his Mannor of Moreford c. and to receive the Defendants money for a certain time and to do other businesses for the Defendant and to render an account and afterwards before one Launcelot Love the Auditor assigned by the Defendant the Plaintiff did account Super quo computo praefatus Richardus pro diversis costagiis expensis quae idem Richardus circa prosecutionem executionem negotiorum praefati Gregorii in surplusagiis in praedict 26 l. 14. s. erga ipsum Gregorium ultra omnes denariorum summas per ipsum Richardum ad ipsum dicti Gregorii recept permansisset And thereupon he brought his Action and the Defendant pleaded Nil debet and it was found for the Plaintiff and yet he had not Iudgment First because the Declaration was insufficient because the Plaintiff was not in Surplusage to the Defendant but the Defendant to the Plaintiff and so are all the Presidents directly and he ought to alledge he was in Service and that he had received Goods whereof no mention is made Secondly Because neither day nor place is alledged where the Auditor was assigned Pasch 33 Eliz. in C. B. Rot. 409. Owseleys Case ROger Owsely brought a
that the Action might be against the Husband onely because that the woman could not convert them to his own use during the Coverture but onely to the Husbands use And the opinion of the Court was that the Writ was good against them both and that the conversion was in nature of a Trespasse and so the Action would well lye Mich. 32. and 33 Eliz. Kent against Wichall IN a Trespasse Quare clausum fregit herbam conculcavit the Defendant pleaded that he tendied sufficient amends to the Plaintiff and he refused the same and demanded Iudgment c. And upon a Demurrer the opinion of the Court was that this is no plea in Trespasse but in a Replevin it is a good plea Sed non dierunt causam diversitatis 21 H. 7.30.9 H. 7.22 F.N.B. 69. G. 31 H. 4.17 Drew demanded of the Court that whereas Edmund Leusage had bound himself in an Obligation by the name of Edward Leusage if this was good or not and it seemed to the Court Quod non est factum and Anderson and Walmesley said expresly that it was void 34 H. 6.19 6. Dyer 279 21 H. 7.8 Sir John Arrundell and his Wife brought a Quare Impedit against the Bishop of Glocester and others who pleaded in Bar that William Sturton was seised of a Mannor to which the Advowson was appendant and bound himself in a Statute-merchant of two hundred pounds to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present Note it was said by the Iustices of the Common Pleas that if a man promise another that he shall have a Lease in his land for eight years or it is agreed amongst themselves that one shall have a Lease of the others land for eight yeares that is no lease of the land but onely a Contract and Agreement but if one promise another that he shall have his land for eight years or openly agree that one shall have the others land for eight years this is a good lease for eight years by force of the agreement A. came before the Major of Lincolne and acknowledged a Statute-merchant and the Seal of the Major was not put to it and it was adjudged that the Statute was not good but a man may sue upon it as an Obligation because the Seal of the party is to it Pasch 36 Eliz. IN a Waste the Case was that a Lessee for yeares purchased Trees growing upon the land and had liberty to cut them within eighty yeares and after the said Lessee purchased the inheritance of the land and devised it to his Wife for life the Remainder to the Plaintiff in see and made his Wife Executrix and died who after married with the Defendant who cuts the Trees whereupon the Action is brought And by opinion of all the Court the Action was maintainable for although the Trees were once Chattels yet by the purchase of the Inheritance they were united to the land and Iudgment was given for the Plaintiff accordingly Pasch 36 Eliz. UPon an Exigent the Sheriff returned that after Divine Service he made proclamation and did not say that there was no Sermon and therefore the Iudges held that the return was not good for by the Statute if there be a Sermon in the Church the Sheriff shall make his proclamations after the Sermon and if there be no Sermon then after Divine Service and because it did not appeare whether there were any Sermon or not the opinion of the Court was ut supra It was said that a man shall not aver against a Postea in the Kings Bench or the Common Pleas to say that it was contrary to the Verdict nor shall he be received to say that the Iudges gave a Iudgment and the Clarks have entred it contrary to their Iudgment but otherwise is it in Court Barons or other base Courts not Courts of Record 10 Ed. 3.40 35 and 36 Eliz. Newman against Beaumond IF the Ordinary grants the Administration of the Goods of B. to A. and after grants the Administration to R. this second Grant is an appeale of the first without any further sentence of repeale for the Administrator is but a servant to the Ordinary whom he may charge at any time In an Action of Debt on a Bond bearing date the nineth of July the Defendant pleaed a Release of all Actions the same day usque diem dati ejusdem scripti and it was adjudged that the Obligation was not discharged because the Release does exclude the nineth day on which it was made Mich. 37 and 38 Eliz. Rot. 211. Holman against Collins HOlman brought a Writ of Error against Collins upon a Iudgment given in the Court of Plymmouth in the County of Devon the case was Collins was possessed of a peece of Ordnance and in Consideration that he would tender this to Holman for to put into his Ship which was then going to Sea and that Collins would stand to the hazard of losing it The said Holman did assume upon himself and did promise to give Collins certain Goods which he should gain by the Voyage and after the said Ship did return laden with certain Goods and for non-satisfaction the said Collins brought his Action on the Assumpsit and had Judgment to recover And Crook assigned these Errors 1. That the Stile of the Court was not good for it was Curia Dominae Reginae Burgi praedict tent coram Majori de Plymmouth without saying secundum consuetudinem villae praedict and he who is Iudge of the Court ought to be either by Patent or Prescription and then for not expressing the stile of the Court nor by what authority they held their Court it is error and he cited the case in the Lord Dyer 262. and a Iudgment 30 Eliz. Rot. 32. given in the very point Another Error was that no day was prefixed for the Defendant to appear but generally ad proximam curiam which is Error although it be held every munday And for these Errors Iudgment was reversed Trin. 28 Eliz. Rot. 948. Mercer against Sparks MErcer had Iudgment to recover against Sparks in the Common Pleas upon an Action of the Case for words and Sparks brought a Writ of Error in the Kings Bench and assigned for Error that the Plaintiff did not expresse in the Declaration that the Defendant spake the words malitiose but it was adjudged that it was no Error because the words themselves were malicious and slanderous wherefore Iudgment was affirmed Savacres Case IT was adjudged in the Common Pleas that if a Baron or others mentioned in the Statute of 21 H 8. take divers Chaplaines which have many benefices and after they discharge their Chaplaines from their Service they shall retain their Benefices during their lives and if the Baron takes others to be his
maneriis de Badmanshall and the question was If the Vitar by this Indowment shall have the third part of the Tythes growing upon the â—and of the Freeholders within the Mannor or not And it was said by the Court that a Mannor cannot be without Freeholders and inasmuch as they are to be charged with the payment of Tythes one and the other together shall be said to be the Tythes of the Mannor and so it was adjudged that the Vicar should have Tythes of the third part of the land of the Freeholders as well of the Demesnes and Copyholders Trin. 37 Eliz. Rot. 438. Willoughby against Gray A Venire facias did beare Teste out of the Terme and also there was no place mentioned in the Writ here the Visne should be impaunelled and after the Writ said Coram Justiciariis and did not say apud Westmonasterium and a tryall was had hereupon and Iudgment given which was prayed might be reversed for these causes But it seemed to the Court that notwithstanding all that was alledged it was good enough for although the Venirefacias was not good yet if the Distringas had a certain return and place therein And the Iury appeared and gave their Verdict so that a Verdict was had the Statute will aide the other defects as in the case adjudged between Marsh and Bulford where the Venire bore Teste out of the Term. But Fenner said that the Teste was in the Term but on the Sabboth day which was not Dies Juridicus Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem against Hopton Flam and Williams Hopton pleaded not guilty Flam pleaded that he was mis-named and demanded Iudgment c. Et quoad feloniam mahemium not guiltâ— de hoc ponit se super patriam praedict Kinton similiter And Williams pleaded no such man in rerum natura as Flam and demanded Iudgment of the Writ and as to the Mayhem and Felony not guilty Et de hoc ponit se super patriam c. And as to the other two pleas to the Writ Kinton demurred prayed that the Writ might be awarded him and a Venire facias to try the issue For Tanfeild urged that by pleading over to the felony he waved the plea to the Writ for there was a diversity between an appeal of Murther and of Mayhem for in Murther as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal yet of necessity he must plead over to the Murther because it is in favorem vitae or else if he will joyne in Demurrer upon the plea to the Writ he doth confesse thereupon the Felony and therefore he must plead over not guilty But in Mayhem it is otherwise for although the Declaration was for Felony yet is a Mayhem but a Trespasse onely and all are pruâ—cipalls and the life of the Defendant is not questioned but he shall onely render damages and therefore it he plead over to the Felony that is a waver of the plea and so a Venire faciaâ— ought to issue out to try if he be culpable or not and of this opinion were Popham Fenner and Gawdy clearly and agreed to the diversity between the appeal of Mayhem and Murther Mich. 38 and 39 Eliz. King against Braine A Man sells Sheep and warrants that the yare sound and that they shall be sound for the space of a year upon which Warrant an Action of the Case was brought and it was moved that the Action did not lye because the Warranty is impossible to be performed by the party because it is onely the act of God to make them sound for a year But Clench and Fenner on the contrary for it is not impossible no more then if I warrant that such a Ship shall return safe to Bruges and it is the usuall course between Merchants to warrant the safe return of their Ships Mich. 38 and 39 Eliz. Wentworth and Savell against Russell IN a Writ of Parco fracto the Plaintiffs declared that they were Tenants pro indiviso of a Mannor in Yorkshire and that the Defendant held of them certain lands as of their Mannor rendring Rent which Rent was behind and for which they distrained and impounded the Distresse and the Defendant broke the Pound and rescued the distresse and thereupon they brought this Action and the Defendant demurred on the Declaration because the Plaintiffs did not shew how they were Tenants pro indiviso or Tenants in Common or Coparceners But the Court ruled the Declaration to be good And Gawdy said that a Tenant in Common alone without his companion may have an Action De parco fracto And Iudgment was given for the Plaintiff Hil. 39 Eliz. POphamsaid that in Lancashire there is a Parish called Standish within which are many Townes and one of the Townes is called Standish And if a man seised of lands in the Town of Standish and also of land in the other Townes do let all his land in Standish onely his land within the Town of Standish doth passe and not all his land within the Parish of Standish in the other Townes For where a man speaks of Standish or of Dale it shal be intended to be a Town and not a Parish unlesse there be expresse mention of the Parish of Standish or of Dale Gawdy and Fenner on the contrary for the Grant of every man shall be taken strongest against himself and therefore all the land as well within the Parish of Standish as within the Town of Standish shall passe And Fenner said that when Dale is mentioned in any Precipe it shall be intended the Town of Dale because Towns are noted at the Common Law and not Parishes for Parishes were ordained by the Councell of Lyons but notwithstanding in Grants there shall be no such intendment but the intendment shall be according to the common usage and understanding of the Country and Country-men in favour of the Grantee and when a man speake of Standish or any such place it shall as well be intended to be a Parish as a Town Hil. 29 Eliz. Clarentius against Dethick CLarentius brought an Action of the Case against Dethick by the name of Dethick alias Garter The Defendant demanded Iudgment of the Writ for the Queen by her Letters Patents had created him King at Armes Et quod nuncuparetur Garter principalis Rex armorum and that he should sue and be sued by such name and because he was not sued according to his creation he demanded Iudgment c. Tanfeild prayed that the Writ might abate for this case had been here in the Court in question before where Dethick was indided by the name of Dithick onely and because he was not named according to his creation he pleaded that matter and the Indictment was quashed Gawdy I remember the case very well and it was adjudged at my first coming to this Court and in truth the Iudgment passed against my opinion which then and still is
should do no other thing that should be forfeiture of the Copyhold that then c. The Defendant pleaded conditions performed the Plaintiff replyed and alledged waste committed in a shop that fell down during the term for want of reparation but the Defendant in rejoynder alledged that the shop was ruinous at the time of the Lease and by reason thereof fell down Tanfield It is no waste as the Books are 42 Ed. 3. 19 Ed. 3. 2 H. 7.3 a. 12 H. 8.11 a. If a house be ruinous at the time of the Lease and fall during the term it is no waste yet the Book in 7 H. 6. is otherwise And in the 12 H. 4. a man lets his house promiseth that the Lessee shall not suffer any voluntary waste if the timber be so good as it will endure the whole term although it be not covered yet is the Lessee bound to reserve it during the term Godfrey for the Plaintiff and agreed to all the cases aforesaid But here the Defendant is bound by his obligation and therefore it differs from the case in 42 Ed. 3.6 and of Perkins 142. where a diversity is between a waste and a covenant for if a man makes a Lease for years and by sudden chance waste is committed this shall excuse the Lessee but if he covenant to leave the house in as good a condition as he found it if the house fall down by tempest yet he ought to re-edify it Also in this case it is a waste in Law although the house were ruinous at the beginning of the Lease for in a waste brought in such case if he pleads nul waste fait he shall not give such matter in evidence but it is onely to excuse him And with him agreed all the Court and Iudgement was given for the Plaintiff Austin against Courtney 30 Eliz. in B. R. Rot. 165. AUstin and his wife as daughter and heir of one Webb brought a Writ of Errour against Thomas Courtney to reverse a Fine leavied in a base Court by the said Webb to himself Cook assigned these errours 1. Because the Fine was levied de uno tenemento which is not good for the generality for it may be land or common or rent And in 3 Ed. 4. a Plea in Bar was rejected because it was pleaded that one was seized de uno tenemento for this is uncertain And in 38 H. 6. an Action is brought upon the Statute of 8 H. 6. for entry into certain tenements that is not good for it ought to be brought of so many acres The second errour was because Webb the Conusor did acknowledge the land to be his right whereas it ought to be the right of Courtney the Conusee The third errour was because the Fine was levied in a base Court which prescribes to hold Pleas but they cannot levy Fines there for then the King shall lose his silver 50. Assiâ— And so was it adjudged between Bambury and Peres that a Fine levied in Chester which had such prescription is not good wherefore Iudgement was given that the Fine should be reverst Trinit 30 Eliz. Ireland against Higgins Rot. 403 vel 43. IN an Action of the Case the Plaintiff declared that whereas a dog came to the hands of the Defendant which belonged to the Plaintiff the Defendant did assume to deliver the said dog to the Plaintiff upon request and that the Plaintiff had requested him and he did not deliver the dog ad damnum c. and hereupon the Defendant demurred Leigh for the Defendant Here is no consideration for when the Plaintiff is out of the possession of his dog he hath lost his interest in him for a dog is ferae naturae and therefore when he is out of possession he hath no remedy 22 H. 6. 10 H. 7. â— 6 Ed. 4. and he cited Fyneâ— and Sir Johâ— Spencers Case in Dyer where a Trespass will not lye for a hawk Also by the Grant of omnia bona catalla dogs do not pass nor are tithable nor are Assets Tâ—…field contra Horses cows and all cattel which are most profitable for service of man were at first ferae naturae and so were dogs also but since by use nothing is so familiar and domestick to man than is a dog and then he cannot be ferae naturae and therefore a Trespass will lye for a dog if he declare his dog for that word does imply it is his domestick dog and he much relyed on a Book the Roll whereof he had seen Trâ—nâ—t 15 H. 7. R. 35. where a man justified in a Trespass of Battery in defence of his dog And in 2 Ed. 2. Avowry 182. a Replevin was brought of a Ferret And in 23 Elâ—z Leeks Case where one had Iudgement to recover great damages for a blood-hound And as to the Case of Fâ—neâ— and Sâ—eâ—ce the reason why the Plaintiff had not Iudgement was because he did not shew that the hawk was reclaimed but after he brought a new Action and had great damages And at last it was adjudged by all the Court that the Action is maintainable and Iudgement commanded to be entred nisi c. Trinit 30 Eliz. Stone against Withepoole in B. R. Rot. 771. IN an Action of the Case the Plaintiff declared that J. S. wan indebted to him for velvet and other things to such a value and was bound in a Bond to pay money for them and that afterwards the Defendant being his Executor did assume and promise to pay the money The Defendant pleaded that the Testator was within age at the time of the making the Bond and hereupon the Plaintiff demurred Egerton S ll citor for the Plaintiff A Contract made by an Infant is not voyd but voydable and if the Infant at his full age had assumed as the Defendant hath it had been good and by the same reason the Executors assumsion is good 9 Eliz. 13. where the Lord Graâ— being heir to the former Lord Gray although he was not bound to pay the debts of his father upon simple contract yet in regard he did assume to pay them he was made chargeable And in 15 and 16 E iz it is a good consideration where an Administrator undertakes to pay debts upon a simple contract but admitting the Executor be not chargeable by Law yet in equity and conscience he is chargeable in Chancery and when he promiseth in consideration that the Plaintiff will not sue him that is a good consideration Cooke The consideration is the ground of every Action on the Case and it ought to be either a charge to the Plaintiff or a benefit to the Defendant 17 Eâ— 4 5. where a man promised and assumed to a Chyrurgean money for curing a poor man that was a good consideration for although it is no benefit to the Defendant yet it is a charge to the Plaintiff and where there is no consideration there can be no good action as where a man promiseth a debt that he never owed
Replevin against Edmund Brach and others the Defendant made Conulance as Baily to John Levison and said that long time before the taking c. one William Coup was seised of a house and eight acres of Meadow c. whereof the place is parcell in his Demesne as of Fee and did demise the same to Richard Coup for one and twenty years reserving Rent and the Lessee died and the Land came to his Wife as his Executrix who married Roger Owseley and that William Coup did levy a Fine of the Premisses to Stephen Noke and others to the use of Stephen and his Heires and after Stephen entred and outed the Termor and infeoffed John Leveson and his Heires and then the Termor re-enters claiming his Terme and for Rent arreare the Defendant made Counsans as aforesaid and it was adjudged against the Defendant because this entry and Feoffment by Noke to Leveson and the re-entry of the Termor is no Attornment and this varies from Littleberries case where the Lessor entred and made a Feoffment and the Lessee re-entred for Noke the Lessor had not any Attornment and can have no Distresse and his Feoffee cannot be in better case then he himself And if the first Feoffee makes Feoffment to B. who enfeoffs C. and the Lessee re-enters that is Attornment but to the first Feoffee and not the other for he may be misconusant of it because he was outed by the Lessor but note Iudgment was not given till Trin. 36 Eliz. Pasch 36 Eliz. in C. B. Owens Case EDward Owen brought an Action of Waste against Peerce for land in ancient Demesne the Defendant made defence and pleaded to the Iurisdiction of the Court because the land was ancient Demesne and the Defendant was ruled to plead over for it is but a personall Action and the Statute is a beneficiall Statute for the Common-wealth and by the opinion of all the Court except Walmsley does extent to ancient Demesne 40 Ed. 3.4 Ancient Demesne is a good plea in Replevin 2 H. 7.17.21 Ed. 4.3 it is no good plea in an action upon the Statute or Glocester Mich. 33 and 34 Eliz. in C. B. Rot. 2122. Sir Edward Cleeres Case SIr Edward Cleere brought a Quare Impedit against the Bishop of Norwich Edward Peacock and Robert Hinston Clerk to present to an Addowson holden in Capite Anderson A Devise of an Addowson in grosse is void because it is of annuall value whereof the King shall have the third part But Owen Beaumont and Walmsley held the contrary and so it it was adjudged See the Case of the Earle of Huntington against the Lord of Montjoy of a Devise of Liberties of Cramford which were not of any annuall value and yet the opinion of Wray and Anderson Iustices was certified to some of the Councell being Arbitrators that the Devise was not good Trin. 36 Eliz. in C. B. Rot. 2145. Brownes Case ANthony Brown brought an Action of Trespasse against Richard Pease the Case was this John Warren was seised in fee of the Mannor of Warners and of the Mannor of Cherchall and demised his Mannor of Warners to the youngest Son of Richard Foster his Cosin in fee. at which time Richard the Father had issue George Foster and John Foster And he demised his Mannor of Cherchall in haec verba I will my Mannor of Cherchall to Margery Water for her life and if she die and then any of my Cosin Fosters Sons then living then I will my foresaid Mannor of Cherchall unto him that shall have my Manner of Warners and after the Devisor died without issue and the Reversion of the Mannor of Cherchall discended to Henry Warner as Brother and Heire of the Devisor And after the said Henry Warner by Deed Inrolled did bargain and sell the Mannor of Cherchall to Anthony Browne who devised it to the Plaintiff And then George Foster dies without issue and the Mannor of Warners does discend to Iohn Foster his Brother and Heire who enters and enfeoffs the Lord Rich and after marriage the Tenant for life of the Mannor of Cherchall dies and the Plaintiff enters and the Defendant enters upon him as Servant to Iohn Foster whereupon the Plaintiff brought this Action And Iudgment was given for the Plaintiff because that the words and the intent of the Devise was that the Mannors of Warners and Cherchall should go together and therefore the Mannor of Warners was sold before the death of Margery by John Foster and after the death of Margery John can take nothing by the Devise Mich. 29 and 30 Eliz. Rot. 2325. or 2929. Hambletons Case JOhn Hambleton had issued foure Sons John the eldest Robert the second Richard the third and Thomas the fourth and devised to each of them a parcell of land to them and the Heirs Males of their body begotten and if it happen that any of their Heirs dye without issue Male of his body lawfully begotten then the Survivor to be each others Heire If these words make a Remainder or are void was the question And it was adjudged against the Plaintiff for the Court held that all those that survived were Ioynt-tenants and one Ioynt-Tenant cannot have a Trespasse against the other for by the intent of the Will it appears that the Survivors should have that part and the survivority of each other Heire each Survivor that is all that survive shall be each others Heire and so the remainder should be to every one of them 29 Eliz. Fenners Case argued before the Lord Mayor of London at Guildhall IN this Case it was adjudged that if a man Covenants that his Son then within age and infra annos nubiles before such a day shall marry the Daughter of I.S. and he does marry her accordingly and after at the age of consent he disagrees to the marriage yet is the Covenant performed for it is a marriage and such a one as the Covenantee would have untill the disagreement vide 7 H. 6.12 Dyer 143.313 369. 25 Eliz. Webbe against Potter IN an Ejectione firmae by Webbe against Potter the Case was Harris gave Land in Frank-marriage to one White and the Deed was Dedi concessi Iohan. White in liberum maritagium Iohannae filiae meae habend dictae Ioannae heredibus in perpetuum tenend de capitalibus Dominis feodi illius with Warranty to Iohn White and his Heires Periam The usuall words in Frank-marriage shall not be destroyed for the words of Frank-marriage are Liberum maritagium cum Ioanna filia mea in the Ablative case and although here it be in the Dative case it is good And of the same opinion were all the Iudges Also a Gift in Frank-marriage made after the Espousals was held good by all the Iustices 2 H. 3. Donor 199.4 Ed 3.8 Dyer 262 B. And a Gift in Frank-marriage before the Statute was a Fee-simple but now speciall taile and if it be not a Frank-marriage he shall have an Estate for life and to prove this his
not claimed to hold at Will for he hath done contrary for he hath made Copies By all the Iustices if Tenant at will or for years or at sufferance make a Lease for years this is a Disseisin and a Tenant at will doth thereby gaine a Freehold and thereby doth claim a greater Estate then he ought and so it is in this case 2. Admitting him to be Tenant at sufferance the question is if he may grant Copies and if whether they be good and it seems he may for no trespasse lies against him because he is Dominus pro tempore and it is not like a Copy made by an Abator or Disseisor for it hath been adjudged that Copies made by them are void but in this case his act of making Copies agrees with the Custome as in Grisbrooks case If an Administrator sells Goods and paies debts with the money and after he who is Executor proves the Will he shall never avoid this sale for that it was done according to the Will which the Executors were compelled to do So in the 12 H. 6. If a Baily cuts Trees and repaires an ancient Pale this is good and 6 R. 2. if he paies quit-rents it is good Coke He comes in by right and therefore is Tenant at sufferance and like this case is Dyer 35 H. 8.57 Lord Zouches case where Cestuy que use for life the remainder over in taile made a Lease for the terme of the life of the Lessee and dies and the Lessee continues his Estate And the opinions of the Iustices of both Benches were that he is but Tenant at sufferance Popham If a Mannor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet the Copies of Surrender made by such Devisee are good but contrary where new or voluntary Copies are made by him 7 Eliz. and in the Lord Arundells case a Feoffment in fee was made of a Mannor upon condition the Feoffee upon Condition grants voluntary Copies those are good Atkins on the contrary And he made a difference between a Tenant at will and a Tenant at sufferance for a Tenant at will shall have aid but so shall not the other as in the 2 H. 4. and a Release to one is good to the other not c. and when he holds over he doth assume an Interest which shall not be thought wrongfull for he is neither Abator nor Disseisor and therefore Dominus and therefore the Copies made by him are good 4 H. 7.3 Tenant at sufferance may justifie for Damage-feasant And all the Iustices held for the Plaintiff and that he that made the Copy was but Tenant at sufferance and not Disseisor and that he had no Fee And the Iudgment was to be entred unlesse the Defendant shewed better matter Trin 28 Eliz. Rot. 329. Smiths Case SMith assumed upon himselfe that when I. N was indebted to I.D. in an Obligation of forty pounds that if I.D. would not implead the said I.N. that then if the money were not paid at such a day that then he viz. the said Smith would pay the money Vpon which Assumpsit after the day I.D. brought his Action on the case and did set forth in his Declaration that he did not implead I.N. and it was moved by Kingsmill that he could not have this Action untill I.N. be dead for so long as he lives I.D. hath time to implead him As if a man promiseth another that he will be named in his Action that he hath against a third person and if the third person payes not the money at such a day then he will he cannot sue unlesse he shewes he hath discharged the other of the Obligation Clench It is implied that he will never implead him Shuttleworth Iustice not so for if hereafter he sue him contrary to his promise then the other who made the Assumpsit shall have his Action on the case and recover to the value of the sunâ—m in the Bond. And after the case was moved again and the Plaintiff brought the Obligation in Court and thereupon the Obligation was entred so that now the Plaintiff could not implead I. N in posterum for which Iudgment was entred for the Plaintiff 29 Eliz. Cosens Case COsen the Father had issue three Sons John George and Thomas John the eldest died in the life-time of his Father his Wife Enseint with a Daughter the Father makes a Devise in these words That if it shall please God to take to his mercy my Son Richard before he shall have issue of his body so that my Lands shall descend to my Son George before he shall be of the age of one and twenty years then my Overseers shall haue my Land untill George come to the age of one and twenty years If Richard who is yet living had an Estate in taile by these words was the question And all the Iustices agreed that it was a plain implication to make an Estate-taile in Richard the second Son 13 H. 7.17 29 Eliz. in C. B. Warrens Case WIlliam Warren brought an Action of Debt for forty pounds and in his Declaration confessed satisfaction of twenty pounds and hereupon a Writ of Error was brought in the Kings Bench and the Iudgment reversed For by his Declaration he had abated his owne Writ and he ought to have Iudgment according to his Writ and not to his Count. And Error was brought upon the Outlawry for if the first Record was reversed the Outlawry thereupon is reversed 4 and 5 Phil. Mar. BEnlowes Serieant moved this case a man seised of Lands and Teâ—ements in London devises them by these words I will and bequeath unto my Wife Alice my livelyhood in London for terme of her life By this Will the lands in London passe to the Wife by this word Livelyhood Nota for Brook Iustice said that it was in ancient time used in divers places of this Realm and had been taken for an Inheritance To which Dyer agreed Case of Slander BRook said that if a man speak many slanderous words of another he who is slandred may have an Action on the case for any one of these words and may omit the others But if a man write many slanderous things of another in a Letter to a friend an action upon the case will not lye for it shall not be intended that it is done to the intent to have it published Mich. 1 and 2 Eliz. N. Arch-bishop of York and I.B. Executors of the last Will and Testament of Thomas Duke of Norfolk did bring a Writ of Ravishment de Guard and then he was deprived by his own consent The question is if the Writ shall abate Benlowes It shall abate for if a Dean and Parson of a Church bring an Action for such a Custome and then resigne the Writ shall abate because it is their own Act. Dyer The Writ shall not abate for the Action is not brought in their own persons but in their Testators and
was a surrender But admitting it was no surrender but the first terme continues then the second question is 2. If when the Devisee enters into the terme devised to him without consent of the Executor by which entry he is a wrongfull Seisor and a Disseisor and after he grants his right and interest to the Executor if this Grant be good or no because he had not any terme in him but onely a right to the terme suspended in the land and to be revived by the entry of the Executor And adjudged that it was a good Grant and it shall inure first as the agreement of the Executor by the acceptance of the Grant that the Devisee had a terme in him as a Legacy And secondly the Deed shall have operation by way of Grant to passe the Estate of the Devisee to the Executor and so no wrong and the case was resembled to the case of surrender to the grantee of a Reversion which first shall inure as attornment and after as surrender and so was it adjudged Trin. 37 Eliz. IN an Action on the Case for these words Carter is a prigging pilfering Merchant and hath pilfered away my Corne and my Goods from my Wife and my Servants and this I will stand to And the Action was commenced in a base Court in the Country and Iudgment given and the Record removed by Writ of Error And it seemed to the Court that the words were not actionable wherefore Iudgment was reverst Sed quaere rationem Gowood against Binkes A Man did assume and promise to I.S. in consideration that he would forbeare a Debt due to him untill such a time That he would pay the Debt if A.B. did not pay it and he that made the promise died and the money was not paid and therefore an Action was brought against his Executors who traversed the Assumpsit and a Verdict found against them and in Arrest of Iudgment it was moved that an Action grounded on a simple Contract lies not against Executors unlesse upon an Assumpsit for a Debt or Duty owing by the Testator himself and not of such a collaterall matter as the forbearance of the Debt of another but by Gawdy Iudgment was given for the Plaintiff whereupon Popham said that he believed this Iudgment would be reversed by Writ of Error in the Exchequer Chamber and the same day at Serjeants-Inn such a case was depending in the Exchequer Chamber to be argued and reversed for the cause ut supra And the case was between Jordan and Harvey and entred Trin. 36 Eliz. Rot. 384. Hil. 37 Eliz. Rot. 34. Castleman against Hobbs IN an Action of the Case for saying Thou hast stollen half an acre of Corne innuendo Corne severed the Defendant demurred upon the Declaration Fenner It is not Felong to move Graine and take it away Popham agreed to it and that the word Innuendo would not alter the Case unlesse the precedent words had vehement presumption the Corne was severed and in this case no man can think that the Corne was severed when the words are half an acre of Corne on the contrary if the words had been that he had stollen so many loads or bushels of Corne And Gawdy was of the same opinion and Iudgment against the Plaintiff c. Hil. 38 Eliz. IN an Account the Plaintiff declared that he delivered Goods to the Defendant to Merchandize for him the Defend said that the Goods with divers other of his own proper goods werâ— taken at Sea where he was robbed of them And it was moved that this was no plea in Bar of an Account but if it be any plea it shall be a plea before Auditors in discharge But admitting it be a good Bar yet it is not well pleaded for the Plaintiff as it is pleaded cannot traverse the robbing and try it for things done super altum mare is not tryable here wherefore the Defendant ought to have pleaded that he was robbed at London or any other certain place upon the Land and maintain it by proofs that he was robbed on the Sea Gawdy It is no good plea for he hath confest himself to be accountable by the receipt 9 Ed. 4. and it is no plea before Auditors no more then the Case was in 9 Ed. 4. for a Carrier to say that he was robbed Popham It is a good plea before Auditors and there is a difference between Carriers and other Servants and Factors for Carriers are paid for their carriage and take upon them safely to carry and deliver the things received Gawdy If Rebels break a Prison whereby the Prisoners escape yet the Goaler shall be responsible for them as it is in the 33 H. 6. Popham In that case the Goaler hath remedy over against the Rebels but there is no remedy over in our case Gawdy Then the diversity is when the Factor is robbed by Pyrates and when by enemies Popham There is no difference Hil. 38 Eliz. Rot. 40. IN a Writ of Error upon a Iudgment given in Nottingham the Error assigned was because the Defendant had no addition for it appeared the Action was in Debt and the Record was that H. Hund complained against Richard Preston of c. in the County of Nottingham Husbandman the which addition is not in his first name but in the alias and that could not be good and therefore it was prayed that Iudgment might he reversed But by the Court the Court of Nottingham had no authority to outlaw any man so that addition is not requisite wherefore it is no Error and Iudgment was affirmed Trin. 37 Eliz. Rot. 553. Browne against Brinkley IN an Action of the Case for words the Declaration was That the Plaintiff was produced as a Witnesse before the Iustices at the Assises at Darby where he deposed in a certain cause and the Defendant said Browne was disproved before the Iustices of Assise at Darby before Mr. Kingsley Innuendo that he was disproved in his Oath that he took before the Iustices And adjudged against the Plaintiff for although he was disproved in his Oath yet it is not actionable in this case for that disproof might be in any collaterall matter or any circumstance but otherwise if the words had been that he was perjured and the Innuendo will not help the matter and so was it adjudged The chief Iustice and Fenner being onely in the Court. Trin. 36 Eliz. Higham against Beast IN an Action of Trespasse by the Parson of Wickhambrooke in the County of Suffolk against the Vicar of the same place for taking of Tythes and on the generall issue the Iury gave this speciall Verdict That the place where c. was a place called B. the Freehold of I.S. and parcell of the Mannor of Badmanshall and found that the Pope as supream Ordinary heretofore made such an Indowment to the Vicaridge in these words Volumus quod Vicarius c. habebit tertiam partem decimarum Bladorum Foeni quomodocunque pervenientem de
that when he is sued as King at armes in such case wherein his Office or other thing belonging to his Office comes in question then he ought to be named according to his Patent but when he is sued as I.S. then it is sufficient to name him by his proper name Popham Vpon the creation of any Deanery which is ordained and granted by Patent of the King the Dean shall sue and be sued by the name of Dean of such a place yet if such Dean doth sue or is sued about any matter concerning his naturall capacity it is not necessary to name him Dean Fenner But this is a name of dignity and by his installation is made parcell of his name and if a man be made a Knight in all Actions he shall be so named wherefore it seemed to him that the Writ ought to abate Et Adjournetur Hil. 37 Eliz. Hugo against Paine HUgo brought a Writ of Error against Paine upon a Iudgment given in the Common Pleas upon a Verdict the Error assigned was That one Tippet was returned in the Venire facias but in the Habeas Corpus and the Distringas he was named Tipper and so another person then was named in the Venire tryed the issue Curia Examine what person was sworne and what was his true name to which it was answered that his name was Tippet according to the Venire facias and that he was summoned to appeare to be of the Iury and he inhabits in the same place where Tipper was named and that no such man as Tipper inhabited there and therefore it was awarded by the Court that the Habeas Corpus and Distringas should be amended and his true name put in and Iudgment was affirmed c. Hil. 38 Eliz. Rot. 944. Rainer against Grimston RAiner brought an Action of the case against Grimston in the Kings Bench for these words He was perjured and I will prove him so by two Witnesses without speaking in what Court he was perjured and the Plaintiff had Iudgment and upon Error brought by the Defendant it was moved that the words were not actionable But in the Exchequer Chamber the first Iudgment was affirmed Hil. 39 Eliz. Rot. 859. Chandler against Grills IN a Trespasse the parties were at issue and a Venire facias was awarded on the Roll returnable Octabis Trinitat and the Venire was made six daies after the day of Octabis returnable at a day out of the terme and the Distringas was made and the Iury Impanelled and a Verdict and Iudgment for the Plaintiff And in a Writ of Error brought this matter was assigned And the first Iudgment affirmed for this is aided by the Statute being it is the default of the Clark and the case was cited between Thorne and Fulshaw in the Exchequer Chamber Mich. 38 39 Eliz. where the Roll being viewed and the Venire not good it was mended and made according to the Roll being that which warrants it and is the act of the Court and the other matter but the mistake of the Clarks But if the Roll were naught then it is erroneous because the Venire is without warrant and no Record to uphold it and so was it held in the case of Water Hungerford and Besie Hil. 39 Eliz. During against Kettle DUring brought an Action against Kettle after a Tryall by Verdict in London and in Arrest of Iudgment it was alledged that the Venire facias is Regina vicecomit London salut praecipimus tibi quod c. where it should be praecipimus vobis c. But ruled by the Court that this Venire being as it were a Iudiciall Writ that ought to ensue the other proceedings it was holden to be amendable and so it was accordingly Pasch 39 Eliz. East against Harding IT was moved Whether if a Lord of a Mannor makes a Lease for years after a Copyholder commits a Forfeiture the Lessee for years shall take advantage hereof and it was said by Popham that the Feoffee or Lessee shall have advantage of all Forfeitures belonging to Land as in case of Feoffment and the like but on the contrary for not doing of Fealty Mich. 39 Eliz. Collins against Willes THe Father makes a promise to Willes that if he would marry his Daughter to pay him 80 l. for her portion but Willes demanded a 100 l. or else did refuse to marry her wherupon the daughter prayed her Father to pay the 100 l. and in consideration therof she did assure him to pay him 20 l. back again The 100 l. is paid and the marriage took effect And the Father brought his Action on the case against the Husband and Wife for the 20 l. Gawdy and Fenner said that the Action would lye but Popham held the consideration void Mich. 39 and 40 Eliz. Penn against Merivall IN an Ejectment the Case was If a Copyholder makes a Lease for years which is a forfeiture at the Common Law and after the Lord of a Mannor makes a Feoffment or a Lease for years of the Freehold of this Copyhold to another if the Feoffee or Lessee shall take advantage hereof was the question Popham He shall not for the lease of the Freehold made by the Lord before entry is an assent that the Lessee of the Copyholder shall continue his Estate and so is in nature of an affirmance and confirmation of the Lease to which Clench and Fenner agreed and therefore upon motion made by Yelverton Serjeant and Speaker of the Parliament Iudgment was given Quod querens nihil caplat per Billam Mich. 6 Eliz. ONe enters a plaint in a base Court to pursue in the nature of a writ of entry in the Post and had Summons against the party untill such a day at which time and after Sun-set the Steward came and held the Court and the Summons was returned served and the party made default and Iudgment given the question was If the Iudgment was good Dyer Welch and Benlowes held the Iudgment good although the Court was held at night and Dyer said that if it were erroneous he could have no remedy by Writ of false Iudgment nor otherwise but onely by way of petition to the Lord and he ought in such case to do right according to conscience for he hath power as a Chancellor within his own Court Lane against Coups IN an Ejectment by John Lane against Coup and the Plaintiff declared on a Lease made by William Humpheston the Case was William Humpheston being seised of land in see suffered a common recovery to the use of himself and his wife for life the remainder Seniori puero de corpore Gulielmi Humpheston and to the Heirs Males of the body dicti senioris pueri Plowden One point is that when a remainder is limitted Seniori puero in tail if Puer shall be intended a Son or a Daughter also and methinks it shall be intended a Son onely for so are the words in common and usuall speech and words in Deeds ought to be
that the Estate-tail was not barred Dyer The Estate tail is barred and made a difference where the Fine is defeated by entry by reason of the Estate-tail and where it is defeated by entry by reason of another estate-tail as in 40 Eliz. Tenant in tail discontinues and disseiseth the Discontinuee and levies a Fine to a stranger and retakes an Estate in Fee before the Proclamations passe the Discontinuee enters and then the Tenant in tail dies seised and adjudged that the Issue is not remitted for the Statute 32 H. 8. saies That a Fine levied of lands any way intailed by the party that levies the Fine shall bind him and so it is not materiall whether he were seised by force of the Estate-tail or by reason of another Estate or whether he have no Estate And all the Iustices were of opinion that the Estate was barred for although the discontinue had avoided the Fine by the possession yet the Estate-tail remains concluded and the same shall not enter by force of the Estate-tail but by force of the Fee which he had by discontinuance Popham Avoidance of a Fine at this day differs much from avoidance of a Fine at the Common Law for it appears by the 16 Ed 3. that if a Fine at the Common Law be defeated by one who hath right it is defeated against all but at this day the Law is contrary for if a man be disseised and the Disseisor die seised his Heir within age and he is disseised by a stranger who levies a Fine and then five years passe the Heire shall avoid this by his nonage yet the first Disseisee is bound for ever for the Infant shall not avoid the Fine against all but only to restore the possession And therefore it was adjudged in the Lord Sturtons Case 24 Eliz. where Lands were given to him and his Wife and the Heires of him and he died and his Issue entred and levied a Fine to a stranger and before the Proclamations passed the Mother enters it was adjudged that the Issue was barred for the Wife shall not avoid this but for her own Estate And so if a stranger enters to the use of him who hath right this shall not avoid the Fine Fenner did agree to this and said that it had been so adjudged but all the Iustices agreed that the Estate-taile being barred the entry shall go to the benefit of him who hath most right to the possession and that is the discontinue and therefore the Plaintiff in the Formedon hath good Title to the Land but onely to the Fee and not to the Intaile for that is barred by the Fine 28 Eliz. in C. B. Rot. 2130. Gibson against Mutess IN a Replevin the Case was John Winchfeild was seised of Lands in Fee and by his Will did devise all his Lands and Tenements to Anthony Winchfeild and his Heires and before his death made a Deed of Feoffment of the same Lands and when he sealed the Feoffment he asked If this Feoffment will not hurt this last Will if it will not I will seal it And then he sealed it and made a Letter of Attorney to make Livery in any of the said Lands the Attorney made Livery but not of the Lands which were in question and then the Testator died And the question was if the Devisee or Heire of the Devisor should have the Land And it was said in behalf of the Heire that if the Testator had said It shall not be my Will then it is a Revocation Quod curia concessit But it was the opoinion of the Court that it appears that it was the intent of the Testator that his Will should stand and if it be not a Feoffment it is not a Revocation in Law although that the Attorney made a Livery in part so that the Feoffment was perfect in part yet as concerning the Land in question whereof no Livery was made the Will is good and the Iury found accordingly that the Land does not descend to the Heire Fenner cited a Case of Serjeant Jeffereys where it was adjudged that where one had made his Will and being demanded if he will make his Will doth say he will not that this is no Revocation Sir Wolston Dixy against Alderman Spencer 20 Eliz. in C. B. IN a Writ of Errour brought upon a Iudgement given in an Assize of Fresh-force in London The case was Sir Wolston Dixy brought an Action of Debt for rent arrear against Spencer upon a Lease for years made to him by one Bacchus who afterwards granted the reversion to Dixy and the Tenant attorned and for rent arrear Dixy brought an action c. The Defendant pleaded in Bar that before the Grant made to Dixy the said Bacchus granted it to him by parole according to the custome of London whereupon he demanded Iudgement if c. and the Plea was entred on Record and hanging the suit Dâ—xy brought an assize of fresh force in London and all this matter was here pleaded and it was adjudged a forfeiture of the Land and hereupon Spencer brought a Writ of Errour and assigned this for errour that it was no forfeiture Shuttleworth It is no forfeiture untill a Trial be had whether the reversion be granted or not as in wast the Defendant pleads that the Plaintiff had granted over his estate this is no forfeiture and in the 26 Eliz. in a Quid Juris clamat the Defendant pleaded that he had an estate Tail and when he came to have it tryed he acknowledged he had an estate but for life and that was no forfeiture But the Court said they could remember no such Case Walmesley It was so adjudged and I can shew you the names of the parties Periam Justice If there be such a Case we would doubt of it for there are Authorities to the contrary as the 8 Eliz. and 6 Rich. 2. Anderson If the Defendant in a Trespass prayes in aid of an estranger this is a forfeiture and if it be counter-pleaded it is a forfeiture and the denial alters not the Case Walmesley The Books in 15 Ed. 2. Judgement 237. and 15 Ed. 1. that Iudgement in a Quid Juris clamat shall be given before the forfeiture Andâ—rson In my opinion he may take advantage before Iudgement as well as after if the Plea be upon Record And so was the opinion of the Court. The Dutchess of Suffolks Case Pasch 4 5 Ph. Mary in C. B. IN a Quare impedit against the Bishop of Exeter the Writ was ad respondendum Andrew Stoke Dennisae Franciscae de Suffolk Uxori eâ—uâ— Benlowes demanded Iudgement of the Writ c. because she lost her name of dignity by marriage with a base man as it was adjudged 7 Ed. 6. Dyer 79. where Madam Powes and her husband brought a Writ of Dower and the Writ abated because she called her self Dame Powes whereas she had lost her dignity by marrying with her husband Stanford agreed for Mulier nobilis si
estate and therefore the Release here is good Anderson We are all agreed that the Release is void and gave Iudgment that the Plaintiff should be baned Bretton against Barnet Mich. 41. 42. Eliz. A Man delivers money to J.S. to be redelivered to him when he should be required which J.S. refused and therefore an action of debt was brought and the defendant demurred for that an action of debt would not lie but an account as in the 41 Ed. 3.31 33. Walmesley An action of debt will very well lie And he took a difference between goods and money for if a horse be delivered to be redelivered there the property is not altered and therefore a Detinue lies for they are goods known but if money be delivered it cannot be known and therefore the property is alterd and therefore a Debt will lie And if Portugalls or other money that may be known be deliverd to be redelivered a Detinue lies Owen and Glanvill agreed to this and Glanvill cited a Iudgment given in Hilary Term wherein he was of Councell which was that a man delivers money to another to buy certain things for him and he does not buy them the party may bring an action of debt but he said that the Plaintiff ought to aver that the Defendant had not redeliverd them And Iudgment was given for the Plaintiff Mich. 41. 42. Eliz. Green against Wiseman in C. B. IN an Ejectment The Defendant pleaded that a Feoffment was made to the use of J.S. the Lessor of the Defendant who by force thereof and of the Statute was seised and made a lease to the Defendant and that one Green entred and made a Lease to the Plaintiff and did not say that he entred upon J.S. And all the Question was whither when a feoffment is made to the use of another if he have such a seisin before his entry whereof he may be disseised Glanvill He hath no freehold neither in Deed nor in Law before entry Walmesley This is contrary to all the Books for a possession in Law is so translated from the Feoffee to Cestuy que use that the wife of the feoffee shall not be endowed Owen He ought to have alledged a Disseisin Anderson As he might have possession by force of a Devise at Common Law so he shall have possession of the land here by force of the Statute and it is in Cestuy que use before agreement or entry but if he disagree then it shall be out of him presently but not before he disagree And after viz. Hillar 42. Eliz. Williams moved the case again and Walmesley said then that he might be disseised before his entrie or agreement and the pleading shall be that he did enter and did disseise him but he shall not have a trespass without actuall entrie for that is grounded on a possession Glanvill agreed to this and advised Williams to adventure the case thereupon Hillar 41 Eliza. Smiths Case in C. B. THe Patron of an advouson before the Statute of 31 Eliz. For Symony doth sell Proximam advocationem for a sum of money to one Smith and he sells this to Smith the Incumbent After which comes the generall pardon of the Queen whereby the punishment of Smith the Incumbent is pardon'd and of Smith the Patron also If the Incumbent may be removed was the Question Williams said that the Doctors of the Civill Law informed him that the Law Spirituall was that for Symony the Patron lost his presentment and the Ordinary shall present and if he present not within six months then the Metropolitan and then the King Spurling Serjeant This punishment cannot discharge the forfeiture although it dischargeth the punishment Glanvill contra And said that this point was in question when the Lord Keeper was Atturney and then both of them consulted thereupon and they made this diversity viz. between a thing void and voidable and for Symony the Church is not void untill sentence declaratory and therfore they held that by the pardon before the sentence all is pardon'd as where a man committs Felony and before conviction the King pardons him by this pardon the Lord shall lose his Escheate for the Lord can have no Escheate before there be an attaindor but that is prevented before by the pardon and so here this pardon prevents the sentence Declaratory and so no title can accrue to the Ordinary Walmesley cont If the patron be charged by the sentence he may plead the pardon But if a Quare Impedit be brought by a third person the pardon of the King shall be no bar to him for the title appeares not to him but only the punishment Anderson They may proceed to sentence Declaratory notwithstanding the pardon for the pardon is of the punishment but the sentence does not extend to that but only to declare that the Church is void Glanvill in 16 Eliz. a man was deprived of his Benefice for incontinency and after he was pardond and restor'd Walmsley I doubt much whither the King can pardon Symony And Williams said that the Doctors of Civill Law said that neither the Pope nor the King could pardon Symony quoad culpam but only quoad poenam they may And the Court at last said that if the parties would not demur they would hear the Doctors upon this matter Jelsey against Robinson Trinit 25. Eliz. continued untill Pasch 28 Eliz. in C. B. Rot. 704. 1544. UPon a speciall verdict upon an Ejectment the Iury gave this speciall verdict That the King was seised of the Mannor of Freemington and of the hundred there and granted this to Hâ—…pton to hold of the Mannor of East-Greenwich by fealty and 13 l. Rent and then the King being seised of the Mannor of Crankford of which the place in Question was parcell does grant his Mannor of Crankford and his Mannor of Freemington to the Marquess of Exceter and his heirs who by his Will does devise Legacies to his servants and does devise that all his Legacies shall be payd out of the Mannors of Freem ngton Uplaing and Crankford All which Mannors I give to my Cosen Blunt and his heires And the Defendant as servant to Baker who was heir to the Marquess did eject the Plaintiff the question was if by the Devise of the Mannor of Freemington the Rent of 13 l. did passe or not if it does not passe then by the Statute of 32 H. 8. the 3. part of the Mannor of Crankford does not go to the deuisee but descends to the heire at the Common Law Shuttleworth for the Plaintiffe The seigniory does not passe by the devise of the Mannor for the intent thereof shall be collected by the words of the Will 15 H. 7.12 a. 19 H. 8.9 6. but here he limits a distresse out of a Lordship which cannot be 3 H. 6. Also it is doubtfull if the seignory being entire may be divided by force of the Statute of the 32 H. 8. And I thinke not for when the
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
If a Quare Impedit does lye of an Archdeaconary for it is but a function or dignity and therefore a Quare Impedit will not lie of an office of a Commissary but the 24 Ed. 3.42 is express in the point And 30 Edw. 3.21 a Qure Impedit did lye of a Priory And therefore notwithstanding this exception Iudgement was given for the the Plaintiff But there were two other doubts in the Case First If a Quare Impedit will lie for an Executor for disturbance done in vita Testatoris and that by the Statute of 4 Ed. 3.7 Snigge The action will lye by the Executors for in all Cases where damages are to be recovered they shall have an action by that Statute 11 H. 7.2 An action of trespass was brought for taking of goods in the life of the Testator but no action will lie for entrie into land in the life of the Testator for it ought to be such an action as will survive in damages and may be a damage to the Executor 7 H. 42. An ejectement lies for Executors upon an ejectment in the life of the Testator And if an ejectment be maintenable in which a Terme shall be recover'd it shall be also maintenable in a Quare Impedit in which a presentment may be recovered Drew cont At the Common Law Executors have no remedy for a personall wrong quia moritur cum persona for upon the death of the Testator Executors have no remedy for arrears of Rent at the Common Law but only the Statute of 32 H. 8. And it cannot be that the Executors in this case are within the Statute of 4 Ed. 3. For that Statute intends onely to remedy such things as are avaylable to the Testator and are assets to pay debts and although Executors may have a Quare Impedit that is intended of a disturbance fait al eux but contra if it be done in vita Testatoris Walmesley I conceive no actions will lie For the Statute gives an action for the taking of goods and such like things but here is no taking but only a disturbance which may be done by Parol Perryam Justice cont For the Statute says that they shall have an action of trespass for a trespass done to their Testator and not for taking goods so that the taking of goods is but by way of resemblance and not that they shall have an action of trespass for taking of goods onely Windham and Anderson agreed with Perryam and whereas it hath been said that this cannot be Assetts Put the case that the Testator had judgment to recover damages shall not that be Assetts and why may the damages here recovered be Assetts and why shall not the grant of the Advowson be Assetts in the hands of the Executor aswell as in the hands of the issue And so was the opinion of the Court. 32 Eliz. Foster and Wilson against Mapps in B. R. Rot. 71. THe Case on a speciall verdict was thus Mapps the Defendant made a Lease of the Parsonage of Broncaster by Indenture and Covenanted by the same Deed to save the Plaintiff harmless and indemnified and also all the proffits thereof and premisses against Philip Blount the Parson of Broncaster and hereupon a writ of Covenant was brought against Mapps and the breach assigned was that Blount had entred and ejected the Plaintiff And one point was if this shall be accounted the Deed of the Defendant because the Defedant delivered his part of the Indenture to the Plaintiff as his Deed but the Plaintiff did not deliver the counterpart to him But the opinion of the Court was that this was a good Deed of the Defendants and Gawdy said that the safest way had been to deliver his part as an Escroll to be his Deed when the Plaintiff delivered the Counterpaine But a great doubt was made in this case because it was not shewed that Blount entred by a Title and then he shall be taken to have entred by wrong and so the Covenant not broken for to save harmeless is only from legall harmes as it is in Swettenhams Case Dyer 306. Where the Warden of the Fleet suffered a prisoner to escape and took a bond of him to save him harmeless and then the Warden was sued upon an escape and thereupon he sued the Obligation and adiudged that the bond was not forfeit because the partie was not legally in execution and therefore the Warden could not be damnified for the escape Padsy cont The Diversitie is where the Covenant is generall and where it is speciall for in this case it being speciall to save harmeless from Blount he ought to defend against him his entry be it by good title or by wrong and so is Catesbies Ease Dyer 3.28 Where the Lessor covenanted that the Lessee should injoy his terme sine ejectione vel interruptione alicujus the Lessee brought an action of Covenant because a stranger entred and did not say he had any title and Iudgment was given for the Plaintiff Gawdy The Covenant is broke For if Blount disturbe him so that he cannot take the proffits this is a breach of the Covenant for hereby the Plaintiff is damnified 2 Ed. 4.15 where the Condition of a Bond was that the Obliger should warrant and defend the Obliged for ever and against all and the Defendant pleaded that he had such a Warrant and there it was held by Danby to be no plea because he cannot warrant unless the other be impleaded And there it was said by Danby and Needham that if the obligee be outed by a stranger who hath no title the Obligation is forfeit by reason of this word defend Wray agreed and said that this case was not like to the Ease of 26 H. 8.3 where the Lessor Covenanted to warrant the land to the Lessee for there he shall not have a Covenant if he be wrongfully outed but our case is to save harmeless which is of greater force than to warrant for to warrant Land is only upon the title but here be the Lessee outed by wrong or by title yet is the Covenant broken to which the other Iustices agreed Fenner Vouchf 18 Ed. 4.27 where a man is obliged to save J.S. harmless against me if I doe arrest J.S. although wrongfully the obligation is forfeit which the other Iustice denied And at last Iudgment was given for the Plaintiff Pasch 33 Eliz. Elmer and his wife against Thatcher in C. B. Rot. 1125. And Cooks 1. Inst 355. IN a Quod ei deforceat of a third part of an acre of Land whereof the wife was tenant in Dower The defendant confesed she was tenant in Dower but shewed how she committed waste Statut Westm 2. cap. 4. wherefore he brought his action of waste to which she appeared and pleaded nothing for which he had Iudgment to recover The Plaintiff said that no waste was committed and the Defendant Demurred Owen for the Defendant a Quod ei deforceat lies not in this case for such
Estoppell otherwise if it were by Deed. Vid. 1 H. 7.12 Mich. 32 33 Eliz. Marshes Case in B. R. Rot. 1011. MArsh and his wife brought a Writ of Errour as Executors to Nicholson to reverse an Outlawry upon an Indictment of Felony pronounc'd against the Testator Altham of Grayes-Inne The sole point was whether the Executors may have a Writ of Errour and I hold that they may for if there be no heir it is great reason that the Executors should have it for otherwise the erroneous judgement cannot be at all reverst and every one shall have a Writ of Errour that is damaged by the erroneous judgement and Executors have right to the personal estate to have Errour For if a man recovers damages in a Writ of Cosenage and the land also and dyes his heir shall have Execution for the land and the Executors Execution for the damages by the 19 Ed. 4.5 43 Eâ— 3. 13 Ed. 4.2 If a man does recover my villain by a false Verdict the heir shall have an attaint for the villany and the Executors for the damages and a Writ of Errour shall be given to him to whom the right of the thing lost doth descend as it was adjudged in the Case of Sir Arthur Henningham and he cited two presidents in the point 1 Tâ—…ity 11 H. 8. Rot. 3. where an Administrator brought a Writ of Errour to reverse a Iudgement given in an exigent Vid. 2 Rep. 41. a. Cook contr In Natura Brevium 21 M. he sayes an Executor shall have a Writ of Errour upon a Iudgement given in Debt against the Testator and the heir shall have Error to reverse Outlawry in Felony and to restore him in his blood and he said that it was part of the punishment in Felony to have the blood corrupted sic filius portat iniquitatem patris and by reason of the attainder he cannot inherit any Ancestor wherefore he having the damage it is reason that he should reverse it And although Executors shall have a Writ of Errour for Chattels personal yet they shall not have one when they are mixt with things real 5 H. 7.15.18 Ed. 4. If Writings be in a Box the heir shall have the Box because real things are more regarded than personal Nevertheless in this Case the Writ of Errour is in a real Action for the Law sayes that it is in the same nature as in original action whereupon it is brought as if Errour be brought to reverse a Iudgement given in a personal action the Writ of Errour is personal and so in like manner is it real if the first action be real 47 Ed. 3.35 35 H. 6.19 23. and although the first action be mixt yet the Law does rather respect the reality 30 H. 6. Barr. 59. where two brought an assize and one did release and there it was said that although this were a mixt action yet it shall be according to the most worthy and that is the reality and 16 Assi 14. divers Disseisors being barr'd in an assize did bring a Writ of attaint for the damages and summons and severance was suffered for damages were joyned with the reality and Stanford 184. If a man be indicted before a Coroner quod fugam fecit if he after reverse the Indictment yet he shall have his goods for de minimis non curat Lex But note that the Iustices said that the fugam fecit was the cause of forfeiture of the goods and not the Felony And as to the presidents he agreed to the Case of the 18 H. 7. for an Executor shall have a Writ of Errour to reverse Iudgement given in an exigent for there nothing but the goods are forfeit 30 H. 6. Forfeiture 31. and for the president in 11 H. 8. it cannot be proved that the Outlawry was for Felony Vid. Rep. fol. 3. 33 Eliz. Lilly against Taylor in B. R. Rot. 467. MArsh seized of the land in question did devise this to Rose Lilly for life and if she fortun'd to marry and after her decease should have any heirs of her body lawfully begotten then that heir should have the land and the heirs of the body of such heir and for default of such issue the land shall revert to Philip Marsh his son and his heirs and the question was if the husband of Rose shall be Tenant by the curtesy or not and so if Rose had estate Tail or for life onely Godfrey She hath estate but for life and he cited a Case adjudged in Benlowes Reports 40 Eliz. where lands are devised to A for life and after his decease to the male children of his body and it was adjudged that the male children have an estate Tail by purchase and nothing by descent and so A had nothing but for life Gawdy agreed for she hath but for life and when she dyes her issue shall have it Popham agreed if the words were that if she had issue that he should have it But Clench held that she had an estate in Tail executed and that her husband shall be Tenant by the curtesy Fenner The issue is as a Purchaser for the Devisor intended that Rose should not have a greater estate than for life And also it was agreed by all the Iustices that a Devise to a man and his heir shall be accounted a Foe-simple for that the word heir is collective and so is the 29 Assi where land was given to a man and to the heir of his body uno haeredi ejusdem haeredis this is an estate Tail Popham He shall be Tenant by the curtesy and he agreed that heir of the body was a good name of purchase but if a Frank-tenement be limited to his Ancestor and by the same Deed it is also limited to his heir the heir shall be in by descent But Fenner on the contrary Pasch 38 Eliz. Bolton against Bolton Rot. 882. 582. TEnant for life being impleaded doth pray in aid of him in the Reversion who joyn and lose c. and the Tenant for life brings a Writ of Errour and the Record is removed and he in the remainder brings a Writ of Errour also De Recordo quod coram vobis residet and the question was upon which Writ of Errour the Iudgement should be reverst and it was objected that if it should be reverst by the Tenant for life that he in the remainder should be restored But Gawdy Fenner and Clench contr Who held that it should be reverst at his suit who first brings the Writ as in case of Interpleader it shall be alwayes upon the first Writ And notwithstanding the removing of the Record by the Tenant for life at the next term the Court said it was at their discretion to reverse this at suit of anâ— of the parties as they pleased and because they observed some indirect practices by him in the remainder it was reverst at suit of Tenant for life Pasch 5 Jacob. Sir Henry Dimmocks Case in the
facias by the Queen against Allen. THe Case was A man recovers damages in an Action on the case and he assignes parcell of his debt to the Queen before execution and the Queen thereupon brought a Scire facias Manwood chief Baron and all the Court held cleerly that parcell or a Meyety of this debt could not be assigned over to the Queen See 22 H. 6.47 where parcell of a debt upon an Obligation was attached by a forren Attachment Beverley against the Arch-bishop of Canterbury Quare Impedit THomas Beverley brought a Quare Impedit against John Arch-bishop of Canterbury and Gabriel Cornwall the case was That the Queen being intituled to an Advowson by Lapse because that the Incumbent had two Benefices each of them being of the value of eight pounds per annum whereby the first by the Statute of 21 H. 8. became void and after the said Incumbent died and divers others were presented by the Patrons who died also whereby the Church becomes void againe If the Queen may now take her turn to present in regard she took not her turn when the first Lapse happened immediatly at the first avoidance was the question And after long and serious debate all the Iustices of the Common Pleas did resolve That the Queen shal not now have her Presentment but the Patron because the Queen hath such presentment by Lapse as the Bishop had and no other and could present but to the present avoidance then void and although Nullum tempus occurrit Regi yet we must distinguish it thus for where the King is limited to a time certaine or to that which in its self is transitory there the King must do it within the time limited or in that time wherin the thing to be done hath essence or consistence or while it remaineth for otherwise he shall never do it For if the Grantee of the next avoidance or Lessee Per auter vie be attaint here the King must take his interest and advantage during the time viz. during the life of Cestui que vie or within the years of the next avoidance or otherwise he shall never have it the same Law is where a second presentment is granted to the King and he does not present he shall not present after Shuttleworth we have an Outlawry against the Plaintiff whereupon Iudgment was staied But after Hil. 29 Eliz. The Queens Serjeants shewing that the Plaintiff was outlawed It was argued by Walmsley that that could not now come into debate for the plaintiff hath no bay in Court after judgment and it is but a surmise that the plaintiff is the same party Windham In a debt upon an Obligation the Serjeants may pray the debt for the Queen and yet it is but a surmise And the opinion of three Iustices was for Anderson was absent that the Writ to the Bishop ought to be staied but in what manner processe should be made if the Scire facias shall issue against the Plaintiff they said they would advise concerning the Course But Periam said that a Scire facias might have issued against the ancient Incumbent and then the Queen shall bring a Scire facias again because she had no presentation And the Scire facias was brought against Beverly Walmsley I conceive the Queen shall have no Presentation for although we have acknowledged our Presentment yet before execution we have but a right As if a Disseisee be outlawed he shall not forfeit the profits of his Land also he hath brought a Scire facias and a Scire facias lies not but by him that is party or privy Periam After that we have this Chattell it is forfeit by Outlawry Anderson The Iudgment that he shall recover shall not remove the Incumbent and then the Plaintiff hath but a right to which Periam and Walmsley agreed but as to the other point that the Queen shall not have a Scire facias for default of privity they saw no reason for in many Cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and then I am outlawed shall the Queen have this debt Walmsley If I recover in a Quare Impedit and dye who shall have the Presentment my Executor or my Heire To which no answer was made But the Court would take advice for the rarenesse of the Case And it was said to Walmsley that he might demur in Law if he thought the matter insufficient to which Walmsley agreed and did demur c. Annuity to a woman who marries and dies AN Annuity is granted to a woman for life who after marries the Arrears of the Annuity encur and the wife dies whereby the Annuity is determined It was adjudged that the husband shall have an Action of Debt at the Common Law for that an Annuity is more then a Chose in Action and may be granted over And it was agreed by the Court in this case That if a man grant an annuall Rent out of Land in which he hath no interest yet this is a good Annuity to charge the person of the Grantor in a Writ of Annuity 14 H. 4.29 A. Coke 4th Rep. 51. A. Bragg against Brooke Second deliverance LUcas Bragg brought a Writ of second deliverance against Robert Brook for taking his Cattell in a place called East Burlish in the County of Surrey the Case was That Sir Thomas Speck was seised of a Mannor containing in it severall Copyholds and the place where c. was Copyhold And the said Sir Thomas being so seised married and then died and the wife 5 Edw. 6. demands the third part of the Mannor for her Dower Per nomen centum Messuagium centum gardinum tot acr terrae prati c. And the wife had Iudgment to recover and the Sheriff assigned to her part of the Demesnes and parcell of the Services and of the Freeholders and Copyholders And it was resolved clearly that the Copy-holds did not passe by the assignment and that she could not grant a Copyhold for when she demanded her Dower it was at her election and liberty to demand either a third part of the Mannor or of the Messuages and when she demanded Per nomen Messuagiorum c. she cannot then have the Mannor nor can a Mannor be claimed unlesse by his name of Corporation as Anderson termed it and not otherwise And the Lands and Acres cannot be called Mannors and then the grant of a Copyhold by one who hath no Mannor cannot be good And so was the opinion of the Court and yet the Sheriff had assigned to her Demesnes and Services and all things which make a Mannor And 29 Ed. 3.35 If a Mannor to which an Advowson is appendant be delivered by the Sheriff in execution by the name of a Mannor cum pertinentiis the Advowson passeth also but it is otherwise if it be delivered in extent by the name of Acres Lands Meadow Wood c. Wakefeilds Case 28 Eliz. Rotulo
607. Replevin WAkefeild brought a Replevin against Cassand who avowed for Damage-feasant And the Plaintiff prescribed that D. is an ancient Town c. and that all the Inhabitants within the said Town except the Parâ—ion Infants and some particular houses have used to have Common to their houses c. The Avowant shewed that the house to which Common was claimed was built within thirty years last past And whether he shall have Common to this new erected house was the question on a Demurrer Shuttleworth he shall have this Common by prescription but not of common right Gawdy the Prescription is against common reason that he should have Common time cut of mind c. to that which hath not been thirty years and he hath excepted the Parson Infants and such particular houses and by the same reason may exceptall and therefore it is not good But it was adjudged no good Prescription for if this be a good Prescription then any body may create a new house so that in long space of time there will be no Common for the ancient Inhabitants Periam By such Prescription the Lord shall be barred to improve the Common which is against reason Anderson The Common is intire for if H. hath Common appendant to three Messuages and enfeoff one of one Messuage another of the second and another of the third the Common in this case is gone But all agreed that it is impossible to have a Common time out of mind c. for a house that is builded within the thirty years Mich. 29 and 30 Eliz. Rot. 2299. Bishop of Lincolns Case Quare Impedit THe Queen brought a Quare Impedit against the Bishop of Lincoln and Thomas Leigh to present to the Church of Chalsenut Saint Giles in the County of Bucks The case was thus H. being qualified took two Benefices which were above the value of eight pounds and after took a third Benefice above the said value whereby the first Benefice became void and so remained for two years whereby Title of Lapse accrued to the Queen and before presentment made by the Queen the Patron did present one A. who being admitted instituted and inducted did refuse to pay 38 l. 2 s. ob due to the Queen for the Tenths which matter was certified by the Bishop into the Exchequer whereupon and by force of the Statute of the 26 H. 8. the Church is ipso facto void wherefore the Bishop the now Defendant being Patron in right of his Bishoprick did present Thomas Leigh the other Defendant against whom the Queen brought her Quare Impedit And it was adjudged by the Court that the Quare Impedit very well lies for the Recusancy to pay the Tenths was his own act and is a Resignation and by that reason she Church is void and this shall not hinder the Queen of the Lapse But if A. the Incumbent who was presented dies being presented by usurpation upon the Lapse to the Queen yet afterwards the right Patron shall present again But when A. the Incumbent doth resigne and make the Church void by his own Act viz. by Recusancy as in this case is done this may be done by Collusion and by such means the Queen may be deprived of her Litle by Lapse for if this Collusion between the Bishop and the Incumbent be suffered then may a stranger present upon the Title of the Queen and presently such Recusancy and Certificate may be made by which the Church shall become void and so the Queen deprived of the Lapse Fenner this Lapse is given to the Queen by her Prerogative but on condition that she take it in due time for such is the nature of the thing Lapsed as is in this case adjudged viz. That when the Queen hath Title to present by Lapse and doth not present but the Patron presents and after the Church becomes void by the death of the Incumbent In this case adjudged by the Court also the Queen cannot present but in this case the avoidance being by privation and not by death Iudgment was entred for the Queen Trin. 19 Eliz. in Com. B. Hales Case Debt on â— Bond. SAmuel Hales brought an Action of Debt on a Bond against Edward Bell and the Condition of the Bond was that if the said Bell should pay to the said Hales forty pounds within forty daies next after the return of one Russell into England from the City of Venice beyond the Seas that then the Obligation to be void and the Defendant pleaded in Bar that the said Russell was not in Venice upon which the Plaintiff demurred And adjudged by all the Iustices that it was no good plea for in such cases where parcell is to be done within the Realm and parcell out of the Realm the tryall shall be within the Realm 7 H 7.9 Trin. 28 Eliz. in Com. Ban. Haveringtons Case 1974. Debt by an Administrator HAverington and his wife as Administratrix of one Isabell Oram brought an Action of Debt against Rudyand and his wife Executrix to one Laurence Kidnelly the Case appeared to be thus Farmer for thirty years did devise to his wife so long as she shall be sole and a Widow the occupation and profits of his terme And after her Widowhood the Residue of the terme in the Lease and his interest in it to Reynald his Son the Devisor dies and the wife enters according to the Devise And afterwards he in the Reversion by Indenture Dedit concessit vendidit Barganizavit totum illud tenementum suum to the wife and her Heires and did also covenant to make further assurance and to discharge the said Tenement of all former Bargains Sales Rights Joyntures Dowers Mortgages Statute-merchants and of the Staple Intrusions Forfeitures Condemnations Executions Arrearages of Rents and of all other charges except Rents Services which shall be hereafter due to the Lords Paramount And then the Reversioner and his wife levied a Fine to the uses aforesaid and after the Devisee takes husband and thereupon the Son enters in the terme And the Administrator of the wife brought an action of debt upon an Obligation for the performance of the Covenants of the Indenture against the Administrator of the Reversioner And Judgment for the Plaintist And it appeared by the Record that these points following were adjudged to be Law although that the latter matter was onely argued 1. That the wife of the Reversioner who had Title of Dower in the Land is concluded of her right of Dower by the Declaration of the uses of the Fine by the husband onely which Fine is after levied by them joyntly because no contradiction of the woman appears that she doth not agree to the Vses which the husband selely by his Deed of Indenture had declared 2. To Devise that the wife shall have the occupation and profits during her Widowhood is a good Devise of the Land it self during such time See Plow 524. And that no Act which she can do
in purchasing the Inheritance by which the Terme is extinct shall bar the possibility which Reynald the Son hath to come upon the womans marriage 3. That a Lessee for years being in possession may take a Feoffment although it be by Deed and may take Livery after the delivery of the Deed and shall be deemed to be in by force of the Feoffment as in this case is pleaded although that the Lessee may take the Deed by way of confirmation and then the Livery is but Surplusage and void 4. It was resolved that this possibility which was in Reynald the Son to have the residue of the terme upon the inter-marriage which at the time of the Feoffment and of the Fine was but Dormant shall be accounted a former charge and before the Covenant because of the will which was before the Covenant and shall awake and have relation before the marriage As if Tenant in tail of a Rent purchaseth the Land out of which the Rent issueth and makes a Feoffment and covenants that the Land at that time is discharged of all former charges although this charge is not in esse but is in suspence as it is said 3 H. 7.12 yet if the Tenant in tail dye his Issue may distrain for this Rent and then is the Covenant broke for now it shall be accounted a former charge before the Feoffment Mich. 29 and 30 Eliz. in Com. Ban. Bretts Case Debt on â— Bond. BRett brought an action of Debt on a Bond against Averden and the Condition of the Bond was to stand to the Arbitrement of J.S. who did award that the Defendant should pay ten pounds to Brett and no time was limited to pay it The Defendant confest the Arbitrement but pleaded in Bar that the Plaintiff hath not required him to pay the money And the Plaintiff hereupon demurred Adjudged by the Court that it is no good plea for the Defendant at his perill ought to pay the money and the Plaintiff need not make any request wherfore Iudgment was given for the Plaintiff Trin. 29 Eliz. in Com. Ban. Bucknells Case Action for Robbery on the Statute of Winchestster BUcknell was robbed in a Hundred within the County of Bucks and thereupon brought his Action upon the Statute of Winchester because the Theeves were not taken And Not guilty being pleaded by the Inhabitants the Iury gave this speciall Verdict viz. That he was robbed the same day alleadged in the Declaration but in another place and within another Parish then that he hath alledged in the Declaration but that both the Parishes were within the said Hundred Vpon which they prayed the Iudgment of the Court whether the Inhabitants were guilty Adjudged by the Court for the Plaintiff for it is not materiall in what Parish he was robbed so it were within the same Hundred Hil. 30 Eliz. in Com. Banc. Rot. 904. Spittles Case Replevin SPittle brought a Replevin against Davis the Case was this Turk being seised of Land in Fee did devise parcell thereof to his youngest Son Proviso and it is his intent that if any of his Sons or any of their Issues shall alien or demise any of the said Lands devised before they shall attain the age of thirty years that then the other shall have the Estate and does not limit any Estate And then the eldest Son made a Lease before his age of thirty years and the youngest Son enters and afterwards and before the age of thirty years he aliens the Land he entred into by reason of the limitation the elder Brother re-enters and demised to Spittle the Plaintiff for three years who put a Horse into the ground and Davis by the commandment of the younger brother entred and took the Horse Damage-feasant and Spittle brought a Replevin And upon the whose matter there was a Remainder It was resolved 1. That this is a limitation and that the Estate shall be to such use as by the Will is directed untill there be an Alienation and upon Alienation the Land shall go to the other Brother 2. When the youngest Brother hath once entred for the Alienation then is the Land discharged of all Limitations for otherwise the Land shall go and come to one and the other upon every Alienation ad infinitum wherefore all the Iudges agreed that after the one Brother hath entred by reason of the limitation the Land is then for ever discharged of the Limitation made by the Will And Iudgment was given accordingly Michaells Case Debt on a Bond THomas Michaell brought an Action of Debt on a Bond against Stockworth and Andrews the Iury gave this speciall Verdict That the said Stockworth and Andrews did seale a Bond and delivered it to the Plaintiff as their Deed and after Issue joyned and before the Nisi prius the Seale of Andrews was taken from the Bond. Shuttleworth The Plaintiff shall be barred for it is one entire Deed and the Seale of one is wanting And admit in case it goes against us the Iudgment be reversed by Writ of Error the Plaintiff can have no Action on such Bond But it was adjudged to be a good Bond and Iudgment for the Plaintiff See the like case in Dyer Trin. 36 H. 8.59 A. Hillari 33 Eliz. in Com. Ban. Rot. 1315. Richmonds Case Debt for rent RIchmond brought an Action of Debt against Butcher the case was A man makes a Lease for years reserving Rent to him and his Executors and Assignes and during the terme the Lessor dies and his Heire who hath the Reversion brings an Action of Debt And it was urged that the Rent was incident to the Reversion and the Heire having the Reversion shall have the Rent also as incident to it as the case is in the 27 H. 8.16 If H. makes a Lease for years rendring Rent without saying any more words the Heire shall have this part because it shall go along with the Reversion So in the fifth of Edw. 4.4 If two Ioynt-tenants make a Lease for years rendring Rent to one of them yet the other shall have the Rent also although no mention were made of him so in the 7 H. 4.223 By the Court If I make a Feoffment in Fee rendring a Rent to me my Heires may distraine And if I grant over this Rent my Assignees in this case may distraine and avow so in this case an Action will lye for the Heire although he be not mentioned But adjudged to the contrary by the Court for when H. passeth Lands from himself the Law gives him liverty to passe them in such way and manner as he himself will and this liberty ought to take effect according to the expresse words for the Law will not extend the words further for the intent shall appeare by the words and then it cannot be here intended that his will was that his Heire shall have the Rent because the words are not sufficient to give it to his Heirs And therefore note a diversity when
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his â—isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further infâ—rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessioneÌ„ Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchangâ— and iâ— the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander bâ—ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents
Customes or Services and this is neither Rent Custome or Service for that of common right the Estrey belongs to the King and no common person may have it unlesse by grant or by prescription and the Statute is to be taken strickly for the Avowant for Damage-feasant or for Rent Charge should not recover Damage by this Statute before the Statute of 21 H. 8.19 where the Plaintiff hath remedy as it is holden in Dyer 141. B. But because divers Presidents were shewn out of the Common Pleas from time to time since the making that Statute that damages shall be recovered by the Avowant who avowes for Amercements c. it was said that it would be very difficult to controll so many Presidents Gawdy no great credit is to be given to such Presidents as passe sub silentio without any exception taken to them Another Error was assigned because the Iudgment was to have return averiorum predictorum whereas there was but one Guelding wherefore Iudgment was reversed and the Roll markt Trin. 36 Eliz. in B. R. Fulgeambs Case Trespass against the Constables of Cambridge FUlgeambe brought an Action of Trespasse against the Constables of Cambridge the Case was The Plaintiffs horses estrayed into Cambridgeshire and were thereupon Impounded in Cambridge and then one A. came with a Commission from the Lord Hunsdon Captaine of Barwick to take Horses to ride to Barwick and the Constables delivered to him the Plaintiffs Horses and then one of the Horses died And the opinion of all the Iustices was that the Action did well lye for the Constables cannot take Horses out of the Pound to deliver them to any by vertue of such a Commission Trin. 36 Eliz. in B. R. Tauntons Case Lease on condition COles made a Lease to Taunton for ninety nine years on condition â—hat if he demised it in other manner then in such manner as he let the same to him that then it should be lawfull for him to re-enter the Lessee devises it by his Will to his youngest Son Resolved that Rigore Juris this is a breach of the Condition for a Devise is an Alienation as is holden 31 H. 8 Dyer 6. and although Conditions shall be taken strickly yet not directly against the intent of the parties and the reasonable disposition of the words and therefore a Devise shall be intended to be within this word Demise yet it was said that it was very hard according to equity that the Estate should be lost For he intended by this Will to prefer one of his youngest Children and not to break the Condition and thought not it was any breach of the condition and for this cause some doubt was made of the Case but Hil. 38 Eliz. Iudgment was given as aforesaid Pasch 36 Eliz. in B. R. Rot. 41. Leighs Case Ejectment THe Queen being seised of lands as Dutchesse of Lancaster did make a Lease thereof to the Plaintiff the Lessee is outed by A. the Plaintiff makes a Lease to B. for years and B. being outed brought an Ejectione firmae 1. It was resolved that the Queen as Dutchesse of Lancaster cannot be disseised for although she be not seised in jure Coronae yet is it in Seisin of the Queen and cannot be taken away from her in respect of her person 2. Gawdy and Fenner held that the Lessee being outed the terme is turned into a Right and therefore it hath been adjudged that an Ejectment will lye as the case is in Dyer 29 H. 8. It Tenant in taile the reversion in the King suffers a Recovery although this shall not be to the prejudice of the Kings Reversion yet shall it bar the Estate-tail So if a Parson makes a Lease for years and the Patron and Ordinary confirme it and the Parson dies and during the Vacation the Lessee is outed he is hereby outed of his terme yet is not the Frank-tenement touched Clench on the contrary That he who is outed hath an Estate but at sufferance for he cannot have an Estate for years without a Lease and it is agreed he shall not have an Estate of Freehold by reason of the Reversion in the Queen and the possession of the Lessor shall maintain the possession of the Lessee as well as the possession of the Lessee shall keep the Freehold of the Lessor and if he have but an Estate at sufferance then cannot the Lease to B. he good For if Tenant at sufferance of a common person makes a Lease for years this is a Disseisin And Popham was of opinion with Gawdy and Fenner wherefore Iudgment was given for the Plaintiff I have seen a Report 24 Eliz. in the Kings Bench upon a Demurrer between Edmund Frough and Henry Dixe where the better opinion was That if one enters on the terme of the Queen he shall not thereby gaine any possession but notwithstanding the Termor may grant over his Terme but it was agreed that he shall have an Ejectione firmae for by Plawden an Assise will lye of a Mill where the water is divers for the possession of the Mill continues in him But the Justices doubted whether it was an Ejectment wherefore the parties did compound In the 4. H. 6. Intrusion If Lessee for life the Remainder in the King be outed he shall have an Assise Trin. 36 Eliz. in C. B. Rot. 134. Thurstons Case Ejectment GOffe brought an Ejectment against Thurston the Case was this The Abbot of Kingswold in Wiltshire being seised of Land in the 28th yeare of H. 8. did with consent of the Covent make a Lease for years by Deed indented and then the Abby came into the hands of H. 8. and from him to Edw. 6 and from him to the present Queen And it was pleaded that the Defendant hath the Lease and that Henry Thinne did intrude on the Defendant and made a Lease to the Plaintiff who being ejected by the Defendant brought this Action and on this matter the parties demurred 1. It was said that the Plaintiff cannot bring this Action inasmuch as Henry Thinne by his entry on Lessee for years the Reversion being in the Queen cannot gaine any possession so that nothing passeth by his Lease to the Plaintiff But the Court was against this for he is a sufficient Lessee to maintain an Action of Ejectment And it was adjudged in the Exchequer Chamber that the Queens Lessee for years being outed may have an Ejectione firmae which proves that he is put out of possession of his terme and this very point was in a manner agreed the last terme in the case of Norris Fenner If H. enters on the possession of the Queen and makes a Lease for years nothing doth passe and the Lessee cannot maintain an Ejectione firmae for he gains no possession at all but it is on the contrary heâ—e when he enters on the Queens Lessee Gawdy That is no difference for the Lessee for years of an Intrudor shall maintain at Ejectione firmae And I have seen
Oathes and they who had eaten were fined five pounds and committed to the Fleet. And some of the Iustices did doubt if the Verdict were good and upon many Presidents had it was adjudged good and they relyed much on the President of the 12 H. 8. Rot. 102. where one of the Iury did eat before they were agreed and yet the Verdict was good And after a Writ of Error was brought and the Iudgment affirmed 20 H. 7.3 13 H 4.13 Pasch 27 Eliz. A Man gives land to I.S. in the Premisses Habendum to him and three others for their lives Et eorum diutius viventium successive The question was what Estate I.S. had and whether there be any occupancy in the case Coke hâ—ld that I.S. had but an Estate for his own life because he cannot have an Estate for his own and anothers life where the interest of both begin at one instant and the Habendum by no means can make a Remainder as if a Lease be made to one for life habendum to him and his first begotten Son this makes no remainder to the Son although some have held to the contrary so of a Lease to one for years habendum to him and another does not make any remainder to the other also the word Successive will not make a remainder as in the 30 H 8. Br. Joynt-tenant 53. Also one cannot have an Estate for life and for anothers life also in present interest for the greater doth drowne the lesse but if the greater be present and the other future as a Lease to him for life the remainder to him for anothers life or a Lease for life and three years over this is good but if a Lease be made for life and for years the Lease for years is drowned 19 Ed. 3. Surrender 8. where Tenant for life of a Mannor did surrender to him in the Reversion c. Gawdy If a Lease be made to one for life and so long as another shall live quaere what Estate he hath And as to the second point certainly there cannot be an Occupancy for if the Estate be void the Limitation is void also the Occupancy is pleaded Que un tiel and does not say Claymant comme occupant c. for if a man comes a hawking on Land he is not an Occupant and the Book of Entries is that he ought to plead it Clinch Iustice every Occupant ought to be in possession at the time of the death of the Tenant for otherwise the Law casts the Interest upon him in the Reversion But Gawdy and Chute denied this and after viz. 29 Eliz. the Case was moved again by Popham and he made three points 1. If the other three had a joynt Estate 2. If they had a Remainder 3. If there be an Occupancy And he was of opinion that they had nothing by the habendum for they were not named in the Premisses they cannot have a Remainder for the incertainty but if those three had been named in the Premisses habendum to them Successive as they had been named there they had a Remainder for there the certainty appeared 30 H. 8.8 Dyer 361. Also there can be no Occupancy during the lives of the other three but he agreed to the Book of the 18 Ed. 3.34 that a Lease for life the Remainder to him for anothers life was good And that if a Lease be made to I.S. and a Monk it is void to the Monk and the other hath all and that during the life of the Monk there can be no Occupancy And if I make a Lease to I. S. for the life of a Monk it is a good Lease And till the same terme Iudgment was given that they could take nothing in possession joyntly nor by way of Remainder and that no Occupancy could be in the Case and that I.S. had Estate for terme of his owne life onely Stile against Miles STile Parson did suggest that the Land was parcell of the Glebe of the Parsonage and that the said Stile did let the said Glebe being foure and twenty acres to Miles for years rendring thirteen shillings foure pence Rent and in a Prohibition the case was if Tythes were to be paid And Wray said that although it was parcell of the Glebe yet when it was leased out Tythes ought to be paid and if no Rent be reserved Tythes ought to be paid without question but there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tythes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Iustices took no regard of those words But Godfrey said that those words would discharge him but Wray on the contrary for that this Tythe is not issuing out of the Land but is a thing collaterall and if a Parson do release to his Parishioners all demands in the Land yet Tythes are not thereby released for such generall words will not extend to such a speciall matter And in the 15 of R. 2. Avowry 99. one held of another by ten shillings for all Services Suits and Demands yet the Tenant shall pay Relief because it is incident to the Rent and 8 Ed. 3.26 Mich. 29 Eliz. Rot. 2574. or 2375. Stephens against Layton IN an Ejectione firmae upon issue joyned the case in a speciall Verdict was that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife primogenito habend to them diutius eorum viventi successive for terme of their lives and then the Husband and Wife had issue a Daughter The question was if the Daughter had any Estate And three Iustices held that she had no Estate because she was not in being at the time of the Lease made and a person that is not in esse cannot take any thing by Livery for Livery ought to carry a present Estate where the Estate is not limited by way of Remainder 18 Ed. 3.3 17 Ed. 3.29 30. adjudged but it was said at the Bar that if the Estate had been conveyed by way of use it is otherwise And the said Iustices held clearly that the word Successive would not alter the case And the case was further found that William Beale and Sampson Beale did covenant with one Lendall that if Tho. Beale Son of Sampson Beale should marry Margaret the Daughter of the said Lendall if she would assent and also that the said Lendall did covenant that the said Margaret should marry the said Thomas if he would assent Pro quo quidem Maritagio sic tum postea habendo the said William Beale covenanted that he would make or cause to be made an Estate to the said Thomas and Margaret and to the Heirs of their bodies for the Ioynture of the said Margaret and it was further found that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Sampson Beale and William Beale
Deforceants Qui quidem finis fuit ad usus intentiones in Indentura praedict specificat by force whereof the said Thomas and Margaret were seised but the Iury found nothing of the Marriage whether it took effect or not and further found that William Pile and Philip his Wife had Primogenitam prolem a Daughter and then died and then Thomas Beale died and his Wife inter married with one Lamock who made a Lease to the Plaintiff who was ousted by Layton the Lessee of Philip Pile And hereupon it was moved by Gawdy Serjeant that inasmuch as the Marriage took no effect between Thomas and Margaret the uses cannot be in them but the Fine shall be to the use of the Conusor which was opposed by Walshey Serjeant who said that it was not like a Covenant in consideration of marriage to stand seised of such a Mannor for there if the considerations faile the uses faile also for the consideration onely is the sole and entire cause that makes the uses to arise but in this case the consideration is not materiall but the Fine effectuall without consideration of money paid and if a Feoffment be made to the use of I S. although no money be paid yet I.S. shall have the Land Windham The Cases differ much for here the Fine is not exprest to be levied to the use of Thomas and Margaret but to the uses and consents contained in the Indenture but he said that the common course was to limit the use to the Conusor untill the Marriage took effect and after as before was urged by Walmsley And the Iury found that Thomas and Margaret were seised accordingly Winham They are no Iudges to determine doubts in Law Rhodes Iustice Herein they have taken notice but of the matter in fact and he affirmed the difference put by Walmsley Windham The case de matrimon praelocut is stronger then this Case for the secret intention shall reduce the Land if the marriage take no effect And after the Court being full they all agreed to the difference put by Walmsley and also that the sale afterwards was not good by reason of this Limitation And Iudgment was given for the Plaintiff accordingly Hil. 26 Eliz. Britman against Stanford UPon a speciall Verdict the Case was A House Stable and Hay-loft were demised to one for yeares rendring foure and twenty pounds Rent per annum and foure and twenty pounds for an In-come quarterly by equall portions upon Condition that if any of the Rent or In-come be behind at the time it ought to be paid that then the Lease shall cease and determine The Lessee makes a Lease of the Stable to the Lessor and after part of the In-come is behind and unpaid and the Lessor enters for the Condition broken into the house And if this was a good entry was the question And Iudgment was given that the Condition was gone and void by reason of the Lessors taking part of the thing demised because a Condition is speciall and intire and not to be severed And in this Case Fenner said that a Grantee of a Reversion cannot take benefit of a collaterall Condition as in case of a grosse summe but in case of a Rent waste c. it was otherwise Mich. 29 and 30 Eliz. Rot. 2529. Doctor Lewin against Munday IN a Replevin by Lewin against Munday it was found by Verdict That a Fine was levied the 14th of Elizabeth between Lowla and Rutland Plaintiffs and Fook and seven others Deforceants of the Mannors of Gollochall whereby the Defendant did grant the Mannor to the Plaintiffs and the Heires of one of them who granted and rendred twenty pounds per annum to the said Fook and his Heires with a Distresse for non-payment Fook seised of the Rent makes a grant to a stranger in this manner That whereas a Fine was levied the 14. of Eliz. of the Mannor aforesaid and divers other lands c. and mistook the Mannor for he put the names of the Conusees in place of the Conusors and so e contra and that it was levied of the Mannor and divers other lands whereas the Fine was levied of the Mannor solely and that he did grant the said Rent granted unto him to the said stranger and his Heires And this grant was adjudged by Anderson who said that if one recite that he hath ten pounds of the grant of I.S. whereas it was of the grant of I.D. yet it is good Hil. 30 Eliz. Rot. 17.32 Hunts Case HUnt brought an Action on the Case against Torney and declared that he being seised of lands in Swainton in Norf. in fee Secundum consuetudinem Mannerii the Defendant did promise to the Plaintiff in consideration the Plaintiff would permit him to occupy the same for the space of five years that he would pay him at the Feast of All-Saints next coming and so yearly twenty pounds at the Feasts of the Annunciation and All-Saints by equall Portions during the terme aforesaid and alledged that he had injoyed the lands by the space of a year and half and so brought his Action on the Assumpsit And Anderson was of opinion that untill the five years were expired no money was to be paid because the Contract was intire But all the other Iustices on the contrary for the consideration was to pay a certain summe yearly which made severall duties and so severall Actions For by Periam if a man be bound to pay I.S. twenty pounds in manner and forme following viz. ten pounds at such a day and ten pounds at such a day in this case the Obligee cannot have an Action of Debt for the first before the day of payment of the last ten pounds be past because the duty in it self is an intire duty but if a man be bound to pay I.S. ten pounds at such a day and ten pounds at such a day here the Obligee shall have his Action for the first because the duty was in it self severall Anderson at another day said that if a man makes a Lease for ten years rendring Rent in that case he may have an Assumpsit for the Rent due every year So if I covenant with you to build you twenty houses the Covenantee shall have a severall action for each default Periam That Case of the Assumpsit is much to the purpose for an Assumpsit is in the nature of a Covenant and is indeed a Covenant without writing Rhodes cited this Case Gascoigne promised in consideration of a marriage of his Daughter with such a mans Son to give seven hundred marks and to pay a hundred marks every year untill all the sunun were paid and it was held clearly in this Court that a severall action might be brought upon every hindred pounds but because the action was brought for all the seven hundred marks before the seven years were out Iudgment was given against him for if a man be bound in a Bond of a hundred pounds to pay twenty pounds for so many years he
Rot. 610. Bond against Richardson In Debt the Defendant pleaded payment at the day and gave in evidence payment at another day before the day of payment and so was it found by the Iury in a speciall Verdict And Anderson said We are all agreed that Iudgment shall be given against the Plaintiff for payment before the day is payment at the day and Iudgment was given that the Plaintiff should be barred Willis against Whitewood A Man was seised of lands in Socage and made a Lease for years by Paroll and died his wife was Guardian in Socage to his Son and the Lessee accepted of a new Lease by Deed of the Guardian in Socage and then the Guardian died and a new Guardian entred and outed the Lessee and if the second Guardian could do this was the question Anderson It cannot be a surrender for a Guardian hath no Estate that may be surrendred but it is an extinguishment of the Lease and if a Woman Guardian in Socage takes Husbandâ— and dies the Husband shall not be Guardian in Socage Almeskey against Johnson JOhnson had a second deliverance returned which was returned Averia eloigniata c. whereupon he prayed a Withernam of the Cattle of the Plaintiff and it was granted and then came the Plaintiff and satisfied the Defendant his damages and charges and praid a Writ of Restitution to have his Cattle again taken in Withernam Fleetwood Cattle taken in Withernam are not repleiditable how then can you have your Cattle and then we shall not be paid for the meat And the Court held that the Cattle were not repleivisable but for satisfaction of damages he shall have restitution of the Cattle and so is the course which was confirmed by the Clarks And Walmesley cited 16 H. 6. Repleviâ—… to warrant this And as to the meat he had the use of the Cattle whereby it was reason he should sustain them And a Writ of Restitution was granied Mich. 31 and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood it was said that the Order called the Cistrenses Order hav a priviledge that they should pay no Tythes for the lands that Proprils manibus excolunt but if they let it to Farmers then they were to pay Tythes and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tythes was the question And it was said that the Queen and her Farmers also should hold the land discharged of Tythes as well as the particular persons of the Order should for the King cannot be a Husband and therfore his Farmers shall hold the land discharged so long as the King hath the Freehold in him although he make a Lease thereof for years at will but to if the King sell the land to another or the reversion to another then the Farmers shall pay Tythes Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumont that a Debt which is not naturally a Debt in it self but a Debt onely by circumstance may be assigned to the Queen As where a man is bound in a Bond to save another harmlesse and failes thereof the Obligation may be assigned to the Queen But in such case a present extent shall not be awarded but the Processe shall be onely a Scire facias against the party to see if he hath any thing to plead against it which note well And where a man recovers damages in an Action on the case parcell of the damages cannot be assigned to the King before execution for he must bring a Scire facias upon such Record And Manwood chief Baron held clearly that a moyely hereof could not be assigned over 22 H. 6.47 One was indicted of Treason at S. Edmundsbury Coram Justiciariis ad diversas felonias c. audiendas and after the Indictment made mention of Bury and did not say praedict and by the opinion of the Iustices the Iudgment was quasht Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert for saying that the Plaintiff was a Suitor to a Widow in Southwark and that he consened her of her money in procuring false witnesses to consen her And a Verdict found for the Plaintiff And in Arrest of Iudgment it was said that in the case of Kerby it was adjudged that Cousener will not beare Action and so was it adjudged in this case Mosse against Reade THe Defendant called him Theef and thou forgest a Deed and a Verdict was found for the Plaintiff and in Arrest of Iudgment it was said that Theef generally without saying of what nature specially will not bear Action But Wray chief Iustice denied that and said that it had of late been adjudged to the contrary and Gawdy against him But as to the words that he had forged a Deed adjudged that the Action will lye although it be not specially alledged what manner of Deed was forged Pasch 32 Eliz. COllings informed upon the Statute of buying of Tythes against Robert Davyes and Stock And it was said by Periam that although the words of the Statute be Pro termino diversorum annorum yet if a Lease be made but for one year yet is it within the penalty of the Statute Mich. 31 and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury and others and declared upon a Grant of the next avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance and upon this there was a Demur And the whole Court for the Demur for that such Letter was a mockery for the Grant was not good without Deed and Iudgment was given accordingly In Tymbermans Case it was said that if a Sheriff took one in Execution by force of a Capias although he return not the Writ yet an Action of Debt will lye against him upon an escape and Periam said it had been so adjudged Katherine Gilham brought an Ejectment as Administratrix to her Husband Quare determino eject bona catalla sua ibidem inventa cepit c. and a Verdict for the Plaintiff and it was alledged in Arrest of Iudgment that this word Sua shall not be intended her own Goods and not the Testators And the Court was of opinion that Sua shall be intended in such manner as Administrator and no otherwise And therefore Iudgment was affirmed Mich. 31 and 32 Eliz. Baldwin against Mortin USe to the Husband and Wife habendum to the Husband for thirty years the Wife shall take nothing thereby and this case was argued at the Bar and Bench and was called the Earl of Cumberlands case Fleetwood moved that an Action was brought against the Husband and his Wife and dit declare a trover of the Goods of the Plaintiff by the Wife which she converted to her own use and prayed
this very cause prescribed as we do in this case so they may prescribe in a way or other thing of easement or pleasure 7 Ed. 4.26 a. 15 Ed. 4.29 a. Anderson There is no question but Parishioners may justify their going over any bodies land in their Perambulation Warberton Parishioners shall not prescribe in an easement as in â—y way to the Church Owen The books make a difference between things of interest as in common for in such things Parishioners cannot prescribe and things of easement as a waste for in such things a man may prescribe Anderson It is plain that Parishioners cannot prescribe for none may prescribe but those that have perpetuall continuance and therefore Tenant for years or for life or Parishioners cannot prescribe but must be aided by custome Walmsley of the said opinion for there is no descent or succession in Parishioners And Iudgment was given for the Plaintiff Trin. 37 Eliz. in B. R. Norton and Sharp against Gennet Rot. 178. A Prohibition was sued by the Plaintiffe as Executors to I.S. who surmised that the Defendant sued them in the Court Christian for a Legacy of 200 l. and that the Testator had goods but to the vale of 350 l. and set forth how he was Keeper of the Prison of Ludgate that he was bound to A. and M. Sheriffs of London to discharge and save harmlesse the same Sheriffs from all escapes which bond was to the value of a 1000 l. And shewed that one Holmes was taken by a Capias utlegatum at the suit of a stranger and how the Testator suffered him to escape whereupon an action of debt was brought against the Sheriffs and a Iudgment whereby the Obligation made to them by their Testator is forfeit and pleaded riens intermaines and because the Court Christian would not allow this plea they prayed a Prohibition upon which Coke Attorney-generall demurred And it was agreed by Gawdy Iustice Coke and Tanfeild that if the Bond to the Sheriff be not forfeit then is the Surmise good and the Legacy shall be paid But Fenner said to Coke Quomodo probas Who answered The difference is when a bond is made by the Testator for payment of money in a Suit at the Court Christian for a Legacy such a bond is a good plea although the bond be not forfeit as in the 9 Ed. 4.12 13. for the Condition of the Bond is part of the Bond and a duty but otherwise it is where the Condition is collaterall for the performance of Covenants but in our case the Condition is not broken as is supposed for the Capias utlegatum issued the 25 of Eliz. and so the Arrest meerly void for every Capias ought to be returned the next term after the Teste 21 H. 7.16.6 8 Ed. 4.4 6. Sed alii contra But after a Consultation was moved for if a Recovery was afterwards had against the Executors And it was answered that it was not the course to make a Bond to the party but to the Court But Fenner said that it such course be allowed no Legacy would be paid And Iudgment was given that a Consultation should be awarded if the Legatee would enter into a Bond to the Executor to make restitution if c. or otherwise not Hil. 38 Eliz. in B. R. Haddon against Arrowsmith IN an Ejectment the case was The Queen being Lady of the Mannor of Winterburne in the County of Berks by her Steward did license a Copyholder for life to make a Lease for three years if he should so long live the Copyholder did make a Lease generally to the plaintiff for three years who being ejected brought this Action Stephen The Action will not lye because the Copyholder hath not pursued his licence for license or authority must be pursued very strictly as well in form as substance 10 H. 7. license to enfeoff by Deed or license to impark 300. acres he cannot enfeoff by paroll or impark but 100. acres and it was resolved the last Terme in the Exchequer that if the King license his Tenant to alien he cannot alien to one in tail the remainder to the Donor in fee And so in our case where he makes a Lease for 3. years absolutely he hath not performed his license Gawdy contra for when his license is to make a Lease for yeares if he so long live these words If he so long live are but Surplusage for the Law saies that if Copyholder for life makes a Lease for years and dies the Lease is determined and therfore the clause in the License is no more then the Law saies and so is void Quod suit concessum per totam curiam Fenner The Condition in the License is meerly void for the Lord gives nothing by the License but only doth dispence with the forfeiture and the Lessee is in by the Copyholder and not by the Lord for the Lord cannot condition with him in his License Clench The Lord may license on Condition as where the Lord doth licence his Copyholder on condition that the Lessee shall repair the house or shall not cut Trees for otherwise the Copyholder may cut them and the Lord hath no remedy for his License is a dispensation of the forfeiture Popham contra A Condition to a License is void as a License to make a Lease for years on condition that he pay 20 l. the second year this is void for the reason given by my brother Fenner for the license does not give a right but only executes it as a Livery or Attornment but a Limitation to such License is good as license to alien for two years he cannot alien for three but in our case the Condition the Limitation made by the Lord is void and the difference is between a Copyholder in fee and a Copyholder for life for if the Lord doth license his Copyholder in fee to make a Lease for three years if he so long live and he makes a Lease absolutely this is no forfeiture for this Lease shall be a good interest against the Heir of the Copyholder but otherwise of a Copyholder for life And Iudgment was given for the Plaintiff Pasch 38 Eliz. in C. B. Bishop of Rochesters Case THe Bishop of Rochester brought a Writ of Annuity against the Deane and Chapter of Rochester and declared of an Annuity by Prescription from the Prior of S. Andrewes of Rochester which Priory was dissolved the 28 H. 8. 31 H. 8. their possessions were committed by the King to the Dean Chapter of Rochest Anderson The Annuity does not remain for an Annuity chargeth the party and not the possession and therfore when the Corporation is dissolved which is the person the Annuity is gone Walmesley But in 2 H. 6 9. it is said there If a Priory be charged with an Annuity the Annuity shall continue although it be charged to an Abby Anderson That is true for there the Corporation is changed only but here it is
nupserit ignobili desinit esse nobilis Brookes There is a difference where a noble woman marries a noble man of less noble degree than she is and when she marries one that is not at all noble for in the first case the shall hold the dignity of her second husband but in the last case she shall retain her antient dignity And so it was observed where the Marquis of Dorâ—eâ— had two daughters the elder was married to the Lord Audley and the youngest to a Gentleman and the eldest took place alwayes as wife to a Baron but the youngest kept her place as a Marquisses daughter Dyer I was a Counsel in the Case of the Lady Powes already mentioned and she would by no means lose her dignity and an Herauld was brought into Court that said she had such dignity although it was held clearly on the contrary by our Law by Montague and Hales and the Writ did abate Stanford A noble man loseth his honour by his own act as by attaint and so hath the woman here by taking such husband and the nobility of such woman is lost also by attainder Brookes said That he knew where the sons of a Duke and Marquiz had a trespass brought against them for hunting a Park by the name of Squires and it was good wherefore it was said to Benlows that he must plead to the Writ Pasch 4 5 Ph. Mary in C. B. A Feme sole having the custody of the land and body of an Infant took husband and she and her husband did tender convenient marriage to the Infant which he refused and married himself elsewhere and at his full age entred into the land if it be necessary that both shall joyn in a Writ of forfeiture upon the marriage or that the husband alone shall have it was the question Brown Justice Both shall joyn and so is it ruled in a Book Dyer contr The husband alone shall have this Writ for he may discharge it or release it and by the 5 Ed. 3.14 6. the husband alone may have a Writ of Trespass and if the wife have an advouson and a stranger present the husband alone shall have a Quare impedit and the same Law is where the woman hath a Rent and the husband distreyns and Rescous is made the husband alone shall have a Rescous Prideaux The Wardship of a Ward and Land is a thing real and the Survivor shall have it and not the Executors of the Baron and if an Action be accrued before marriage as if a Bond be made to her before marriage she shall joyn with her husband in the Action upon the Bond but if a right to an Action does accrew after marriage there she shall not joyn as here the right of the husband does not accrew untill marriage for the Action is not in respect of the Wardship but of the tender and refusal and his marriage elsewhere all which do accrew after the Coverture Stanford If a man bring a Quare impedit for an Advowson which he hath in right of his wife and hath Iudgement to recover and dyes the wife shall present and not the Executors of the husband so if he recover in a Trespass the wife shall have execution for the damages Prideaux If a Lease be made to a woman and a Rent reserved â—…mine poenae and she takes husband and the Rent is behind both shall joyn in the Action for the pain Dyer This Action is grounded upon a real Covenant Stanford Damages recovered in a Trespass are not real yet the wife shall have them if the husband dye before Execution Dyer The Trespass is done to the inheritance of the wife and therefore she shall have damages and in 43 Ed. 1. Statham The husband alone brought a ravishment of a Ward for a Ward he had in right of his wife and the Writ held to be good but there it is said that otherwise it is in right of a Ward and if they joyn in a Writ of ravishment of Ward and recover and the husband dye before Execution his Executors shall have Execution and not the wife but it is said there Quaere and at last it was agreed that the Action should be allowed but the surest way is to have bosh joyn Pasch 6 Eliz. Powtrells Case in C. B. IN an Ejectment the case was a woman-tenant in Tail did make a Lease for 31 years and took husband and had issue the wife dyes and the husband is tenant by the curtesy and surrenders to the heir who puts out the Lessee who brings this Action Dyer I doubt whether this surrender be good for tenant by the curtesy is but in reversion and hath nothing in possession and it is dubious how he can surrender Weston and Brown He may surrender for a term or franktenement may be surrendred to him that hath the estate in reversion or remainder if it be not a mean estate as tenant for life the remainder for life the remainder in fee the first tenant for life cannot surrender to him that hath the fee. But the great point of the Case was if the issue could avoyd the Lease during the life of the tenant by curtesy and the Court held he could not for the tenant is in as a purchaser And by Walsh and Carus If tenant by the curtesy grants over his estate and then enters into religion the Grantee shall have his estate during the tenants natural life Quod omnes concesserunt and it was said also that if the heir had been impleaded during the life of the tenant by curtesy he shall not have his age quod fuit concessum Mich. 14 15 Eliz. Tottenham against Bedingfield IN an Account the Defendant pleaded he was never his Baily for to render account Gawdy prayed the opinion of the Court if the Action would lye for otherwise he would not trouble the Court. The Case was the Plaintiff had a Lease of a Parsonage and the Defendant being no Lessee nor claiming any interest takes the Tithes being set forth and carries them away if the Plaintiff could have this Action was the question Manwood It will not lye for an account lyes where there is privity but wrongs are alwayes without privity but I agree that it one receive my rents I shall have an account against him for by my consent afterwards I do make a privity for although that he hath received the Rent he hath not done wrong to me inasmuch as it is not my money untill it be paid to me but otherwise it is where a man disseiseth me of land for that is meerly a wrong and so is it in this case for when the Tithes were set forth by the Parishioners the Law sayes they are in the possession of the Parson and therefore when the Defendant took them away he does it wrongfully and therefore no account will lye against him and so was it adjudged in Londâ—… in the Case of one Monax who under colour of a
are in my possession and they are evicted by the right Owner a Covenant will lye contra if I have not possession at the time of the letting them and if I let land and J.S. enter before the Lessee the Lessee cannot have a Covenant Quod nota Et ad journeâ—ur 35 Eliz. Scarret against Tanner in C. B. Rot 1458. IN a false Imprisonment the Defendant justified that he was High Constable of the Hundred of E. in the County of â—…p and that the Plaintiff made an affray within the said Hundred upon one Walm who came presently to the Defendant and told him of it and took his oath that he was in fear of his life whereupon the Defendant came to the Plaintiff and arrested him and carried him to Prison untill he could finde sufficient Sureties of peace Glanvill A Constable cannot arrest one to finde surety of the peace upon a complaint made to him unless he himself sees the peace broken 7 Ed. 4. Kingsmill contr For he is at Common Law Conservator pacis 12 H. 7.18 And how can he keep the peace if he may not compell them to finde surety 44 Ed. 3. Barr. 2â—2 If a man that is threatned complain to the Constable he may compell the party to finde surety for his good behaviour and may justifie the imprisoning him or putting him in the Stocks 22 Ed. 4.35 10 Ed. 4.18 where a Constable in such case may take a Bond. Anderson I grant that Constables are keepers of the peace at the Common Law and are to keep the peace as much as in them lyes and that is to take men that they finde breaking the peace and to carry them to a Iustice of peace to finde surety but the Constable cannot take security nor recognizance nor bail for he is not an Officer upon Record and if he do take a Bond how shall he certifie it and unto what Court Walmesley contr Who said that the Constable might take security by bond although not by recognizance or bail Beaumond A Constable may put him that breaks the peace within the Stocks but it must be where the breach of peace is committed in his view for he hath no authority to take an oath that a man is in fear of his life and then the foundation of his justification doth fail Owen The oath is not material for although he cannot take such oath yet his taking of surety is good and before Iustices of peace were made the peace was preserved by Constables and the Statute that creates Iustices does not take away the power of Constables and therefore he may justifie Sed adjournatur Pasch 38 Eliz. Worsley against Charnock in C. B. IN an audita quaerela the Case was thus The father and son were bound in a Statute-Merchant to Charnock who sued out an Execution against them and their lands were severally extended and they supposing that the Statute was not good because it was not sealed with both their seals according to the Statute they both brought a joynt audita querela and whether they could joyn in this Action or not was the question Warburton They shall not joyn for in all cases a man must make his complaint according to his grief and here their grief is several as it two men be imprisoned they shall not joyn in a false imprisonment The same Law in a Battery 8 Ed. 4. 18 H. 6. 10 Ed. 4. It J.S. hath goods of divers men they shall not joyn in a Replevin and 33 H. 6. two men shall not joyn in an audita quaerela unless the land in execution is in them joyntly and 29 Ed. 3. two Ioynt-tenants Infants alien they shall have several Writs of Cum fuit infra aeâ—atem But he confessed the Case in 30 Ed. 3. Fitzherbert audita quaerela where two men were in Execution and the Conusor did release to one and then to another by another Release yet both shall joyn in an audita quaerela but this is not Law and besides they cannot recover damages joyntly by reason of their several vexations and this Action being personal damages cannot be severed Vid. 2 Ed. 3. Execution 45. 9 Ed. 4.31 12 Ed. 4.6 Harris contra And as to the last reason the Book in the 20 of Elizabeth is that no damages shall be recovered in an audita quaerela which if it be Law then is the doubt at an end And whereas it hath been said that they shall not joyn because their griefs are several methinks there is no reason but that if he that survives shall be charged with the whole that they shall joyn also in their discharge for if their charge be joynt their discharge shall be joynt also And in the 34 H. 6. and 30 Ed. 3. where an audita quaerela may be brought joyntly and he resembled this to the Case of a Monstraverunt where if a Tenant in antient demesn be distreyned all the Tenants shall joyn because the grievance to one may be a grievance to all the rest Yelverton of the same opinion Tho suing of the Execution was the cause of the audita quaerela but not the ground for the ground was the Statute-merchant and therefore it is here brought according to the Statute Anderson If two men do me several Trespasses yet I may have a joynt Action against them and the death of one of them shall not abate the Writ but if two are Plaintiffs in a personal Action the non-suit of one shall be the non-suit of the other and in our case the Statute was joynt and also the Execution then if all the Writs are so the audita quaerela which is to discharge them shall be joynt also especially in this Writ where they are as it were Defendants and therefore he resembled this Case to a Writ of Errour or an Attaint brought by two joyntly and one is non-sued yet this shall not abate the Writ because they are in a manner Defendants Walmesley contr The Action ought to be brought according to the cause of the wrong and the wrong begun in suing the Execution and that was several and therefore the audita quaerela ought to be several also but if this Statute had been good and had been discharged by release or defeasance then the audita quaerela might be brought joyntly for then the ground of the execution was joynt but here is but a colourable Statute and the cause of the Action is not begun before the Execution sued Owen and Beaumond agreed and after by assent of Anderson Iudgement was given that they ought to have several Writs Note Pasch 36 Eliz. in B. R. Rot. 323. or 521. between Curteise and Overscot If A. did recover against B. by two several Iudgements whereby B. is in Execution it was adjudged that he shall not have one audita quaerela but two several Writs Pasch 37 Eliz. Sawer against Hardy in B. R. Rot. 254. IN an Ejectment the Case was this A woman was Lessee for forty years sub
himself to infeof the Obligee of all the Land which he hath by descent of his Father there he may plead that he hath no Land from his Father for all may be Released although the Releasor hath no right but a feofment cannot be made of land which a man hath not Pasch 38 Elizab. Holcombe against Rawlins in B. R. Rot. 401. IN a trespass Quare Clausum fregit with a continuando from the 31 Elizab. to the 36. the Defendant pleaded that J.S. was seised in Fee and made a Lease to him c. The Plaintiff replyed that long time before J.S. was seised he himself was seised untill the said J.S. did disseise him and J.S. being so seised did make the Lease to the Defendant for years whereupon the Plaintiff reentred Tanfield It appears by the Plaintiffs Replication that the Defendant was in under the title of J.S. viz. the Lessee of the Disseisor of the Plaintif and therefore he cannot be a Trespassor to the Plaintiff notwithstanding his regress 34 H. 6 30. 37 H. 6 35. 2 Edw. 4 17. 13 H. 7.15 Atkinson contra At the Common Law the Disseisee being out of possession shall not recover any damages but only against the Disseisor and not against any other that comes to the land afterwards and for this cause the Statute of Glocesteâ— was made But at the Common Law when the Disseisee re-enters he is remitted as if he had not been out of possession at all and he shall have a trespass against the meane occupiers as in the 4 H. 7. A man was restored to his land by Parliament as if he had never been out of possession at all and he shall have a trespass against the occupiers that are in by title aswell as here he had against the Kings Patentee Gâ—wdy If a Disseisor be disseised and the first disseisee enter he shall have a trespass against the second Disseisor And Popham and Fenner agreed but Clench cont But at last adjudged for the Plaintiff vid. Cook 11. Rep. fol. 57. Lyfords Case to the contrary Pasch 37. Eliza. VViseman against Baldwin in B. R. Rot. 341. IN a writ of errour to reverse a judgment given in the Common Pleas the Case was thus Râ—chard Baldwin did demise his land in Taile upon condition that the Devisee should pay to J.S. 20. l. and if he failed of the payment that then the land should remain to J.S. and his heires for ever and whether this be a Condition in Law that the heir shall take advantage of or a limitation of the estate so that J.S. shall take advantage was the Question Gawdy It is a limitation and not a condition as is apparent in Dyer Wilfoâ—ds Case 7.128 and Pewis and Scholasticas Case in the Comentaries and there is great diversity between an estate in Law and a devise in which the intent of the Devisor is to be observed and here if this shall be taken for a condition the intent of the Devisor is defrauded Clench agreed For this should be as a new devise to J.S. and not as a remainder as a devise to a Monk the remainder to J.S. the remainder is not good as a remainder but as a new devise Fenner of the same opinion and said it had been so adjudged in this Court in an Attournies Case of Devonshire and also in Sir Edward Cleeres Case Gawdy The received opinion of all learned Lawyers hath been such as hath been said viz. that to the end the intent of the Devisor should be observed it shall be a limitation Then I put this Case A man deviseth his Land to J.S. upon condition and for non-payment be devises that his Executors shall sell the Land if J.S. faile of the payment it is cleere that the Executors may sell the Land Godfrey I agree because the Executors have nothing devised to them but only an authority given them by the Will to sell Gawdy But when the Executors have sold the Vendee is in by the Devisor and then it is no other than a devise to one in Fee on condition of payment c. and if he fail then to another And the three Iustices agreed but because the Chief Iustice was absent it was adjourned to another day at which time Fenner said that he had spoken with â—…wen one of the Iustices of the Common Pleas who said he never agreed to the Iudgment but in case of a perpetuity And therefore the Iudgment in the Common Pleas was reverst The Earl of Lincolne against Fisher THe Steward of the Leete being in Court did say in Fisher who was resident within the precinct of the Leet that he must be sworn for the Queen to make presentments at the said Court. To which Fisher replyed in saying I ought to be sworn you lie For which Fisher was fined at the Court 20 l. And the Earl who had the Leet brought his action for the same Yelverton The action will not lie for he is not finable for such words for they are no disturbance to the Court nor hindrance of Iustice for this word you lie in ancient speaking is no more than to say you do not say true Gawdy agreed that the action would not lie But Fenner Clench and Popham cont For this is a misdemeanor for which the defendant is finable for every Leet is the Queens Court and a Court of Iustice to which respect and reverence ought to he given and these words are in great contempt to the Court and the authority thereof which is supreme And Posito that he should here say to the Iudge of a Court when he delivered his opinion in any Case Mr. Iudge you lie without question he may be fined and imprisoned and as it is of a Iudge here so is it of a Iudge of any inferiour Court because it is a Court of Iustice And Popham said That if any misdemeaned himself in the Leet in any outragious manner the Steward may commit him And Gawâ—y changed his opinion Wherefore the Plaintiff had judgement to recover Pasch 36. Eliz. Allens Case A Scire facias issued out in the name of the Queen to shew cause why execution of a debt which is come to the Queen by the attainder of J.S. should not be had The Defendant pleaded that the Queen had granted over this debt by the name of a debt which came to her by the attainder of J.S. and all actions demands c. upon which the Plaintiff demurr'd And the question was if the Patentee might sue for this in the name of the Queen without speciall words And two presidents were cited that he may 1 Pasch 30 Eliz. rot 191. in the Exchequer where Greene to whom a debt was due was attainted and the Queen granted over this debt and all actions and demands and a â—câ—re facias was sued for him in the name of the Queen also in the 32 Elâ—z rot 219. Mabb of London was indebted by bond and the debt came to the Qu. by
by express words there Livery ought to be pleaded as a Lease to one for years the remainder to another for life there Livery ought to be pleaded So in the 21 Assi If a man pleads a Feoffment and Livery within the view he must plead Livery within the view expresly and so upon Grant of a reversion attornment ought to be pleaded And whereas it was said that it cannot be an estate by will because it was not the will of both parties Vid. 9 Ed. 4.1 and 15 Ed. 4. But Gawdy and Fenner denyed the diversity put by Haughton for in pleading of an estate for life all necessary circumstances in pleading shall be intended And so it was agreed that an estate for life should pass for Livery shall be intended Sed adjournatur Pasch 35 Eliz. Pendigate against Audley in B. R. Rot. 242. IN a Writ of Errour upon recovery of a Debt the Errour was assigned because the Action of Debt upon the Obligation was brought against the Father of the Plaintiff and in the Writ he was named the Son and Heir apparent of the Obligor for this implyes that the Father was alive for if he were dead then is the Plaintiff Heir in facto and not apparent Gawdy It is but Surplusage and in the 11 Ed. 3. the Writ was good although he was not named Son and Heir omnino But this was denyed and agreed that he ought to be named Heir and Iudgement was reverst Hillary 37 Eliz. Tanfield against Rogers in B. R. IN a Replevin the Case was thus Tenant in Tail seized of a Mannour with 3 Acres thereof in Demesn makes a Lease of the three Acres also of the Mannour habendum the three Acres and the Mannour for 21 years rendring Rent for the 3 Acres and all other the premisses therewith demised 5 l. The question was if this be a good Lease within the Statute of the 32 H. 8. Stephens This Lease is not within the Statute for this Lease of 3 Acres and of the Mannour whereof they are parcel is an entire Demise and not several as in 13 H. 4. Grants 88. A man seized of a Mannour with an Advowson appendant makes Feoffment of one Acre of the Mannour and then in the same Deed he grants the Advowson appendant and not in gross and yet they are in several clauses Vid. 48 Ed. 3.41 33 H. 8. Dyer 48. Gawdy and Clench When the Lease is of three Acres and of the Mannour although the Mannour comprehends the three Acres yet in construction of Law they shall be taken as several Demises Fenner I am of the fame opinion and as I remember in the 10 Assis is this Case A Lease is made of the Grist and also of the Mill reserving by the year 5 s. and for the other 10 s. they are several Leases and so is it here Note that Popham was absent But after in the same term he declared that he agreed with the other Iustices and Iudgement was given that the Lease was good for the three Acres Pasch 37 Eliz. Carus Case PEter Carus was indicted for drawing his Sword in Westminster-hall the Court then sitting in resisting the Sheriff who was making an Arrest and being found guilty upon his Arraignment it did appear that this fact was done upon the stairs of the Court of requests out of the view of the Courts yet it was held that being in the Hall it was as much as if it had been in view of the Court But because the Indictment was not good for it was not coram Regina as it ought to be the Iudgement was only to have perpetual Imprisonment and to pay 1000 l. Fine to the Queen But if the Indictment had been as we have seen a president in 1 Ed. 4. then the Iudgement ought to be to have his hand cut off and to forfeit all his lands and goods and to have perpetual Imprisonment 22 Ed. 3.13 Cromptons Justice 246. Mich. 3 Jacob. Walgrave against Skinner in B. R. Rot. 174 IN a Trespass the Plaintiff declared that he was robbed of 20 l. and that he pursued the Felon with hue and cry to such a Town where he discovered the Felon to the Defendant who was Constable of the said Town wherefore he apprehended the Felon and found the 20 l. about him which sum the Defendant fook and detained in his own possession The Defendant confest the taking the 20 l. ut supra but because the Town was of no strength he carried the 20 l. to the next Town and as he was going upon the High-way he was robb'd of it and so he concluded that he ought not to be charged in this Action Johnson for the Plaintiff It appears in 4 H. 7. that the Thief hath no property in the money which is found in his possession and in the 15 Ed. 4. it is resolved that if A robs B and C robs A yet C hath not gained any property and if the Constable takes this out of his possession he cannot seize it to any other use than to the use of the King and therefore if he takes Felons goods and does not keep them safe the first Owner shall have a Trespass against him for by the 21 H. 7. If a man does carry the Parsons tithe to the Parsons barn because it is like to perish yet the Parson may have a Trespass against him And by the opinion of Stanford 44 Assi If goods are taken from a Felon and he will give sufficient surety he himself shall have the keeping of them or else the Town and therefore the â—oâ—stable hath no authority to meddle with them Erby contr For a Constable is Conservator â—acis and 〈…〉 the peace does consist as much in keeping of goods as of 〈…〉 a Felon And here the Constable doubting of the 〈…〉 Town by reason of the Inhabitants who were riotous 〈…〉 he thought it the best course to carry them to the next Town and so no default was in him for his taking and meoling with them was lawfull And 22 Assi 96. If a Felon flying be taken in any Village the Bailiff thereof may take the custody of the goods and I suppose that a Constable may keep goods as well as a Bailiff for he is a Minister of the Law and if they be taken from him he is no more chargeable than if goods were taken out of the possession of my servant Williams Iustice Pasch 2 H. 7. Common same is enough to apprehend any man but if you arrest a person who is possest of money and he dye you are chargeable with the money And so here although the taking of the Felon by the Constable be justiciable yet he is to keep safe the money at his peril and because he hath not he is liable to this Action Popham He might have pleaded not guilty for he said that if a Town hath the possession of my goods a Detinue lyes und not a Trespass but if a stranger takes them out of their
that the wife is not in her former or antient estate but takes hereby a new estate for if Tenant for life grants his estate to J.S. and his heirs and J.S. grants a Rent and then re-grants an estate to the Tenant for life the Tenant for life shall be liable for the Rent Dyer 252. Harris contr For by the rendring of the estate by the Fine she shall be in her antient state and he cited the Case of Peter Cary here adjudged who being Tenant in T. the remainder to the Earl of Devonshire was attainted and then the King pardon'd him and gave him his land again and then he suffered a common recovery and thereby barred the remainder in the Earl of Devonshire But Anderson was against this Case and said that by the render the woman was in her antient estate and so the remainder discontinued and the entry of him in the remainder taken away Warburton The Fine does make no discontinuance for they give away but that which they may lawfully do and so is Bredons Case Cook 1 Rep. 67. and as to the common recovery it is out of the Statute of the 32 H. 8. because she remains party to the Fine and by the render upon the Fine they shall be as in by a new estate and then the recompence shall not be to the antient estate and therefore he in the remainder is not barred nor impeached by this Fine but he may enter within five years Kingsmill accorded for it is plain that by the render to the husband and wife they are in a new estate and the recompence shall go as to that and not to the antient estate but contr if it had been by way of voucher Walmesley accorded but notwithstanding the Fine and recovery the entry of him in the remainder is good and as to the woman it is clear that there is no discontinuance to him in the remainder in Fee for he in the remainder in Tail cannot discontinue because he is seized by force of the estate Tail as the 4 H. 7.17 Tenant in Dower and he in the reversion in Tail joyn in a Fine this is no discontinuance of the estate Tail because he was never seized and therefore it is a forfeiture in the Tenant for life although he in the remainder joyn'd with him by the 41 Ed. 3. but otherwise if Tenant for life and he in remainder in Fee joyn in a Fine Vid. Bredons Case 1 Rep. 76. Anderson I conceive he in the remainder may enter for all passeth from the Tenant for life and it is her Feoffment and the confirmation of the other and so the estate Tail being spent he in the remainder shall enter for forfeiture and the recovery shall be no bar because it was of another estate and also this title of entry for forfeiture shall not be barr'd by the common recovery no more than if a Feoffee upon condition does suffer a common recovery yet may the Feoffor enter for the condition broken and Iudgement was given for the Plaintiff so that his remainder was neither discontinued by the Fine nor his entry taken away by the Recovery 43 Eliz. Hall against VVood in C. B. IN an Action on the Case for a Trover and conversion of 40 l. on not guilty pleaded it was found for the Plaintiff Walmesley How can an Action lye for a Trover of money if it be not within a bag for this Writ supposeth a loss and when the money was lost how doth it appear that the money found is the same money that was lost Davies There are many presidents in the Kings Bench to prove that this Action will well lye for corn and money and I have been of Counsel in many of those Cases Warburton If the money were lost in view of a third person upon such Trover the Action will lye for there it may be proved that it was the money of the Plaintiff And Walmesley agreed And note that a president was shewn tempore 40 41 Eliz. inter Holloway and Higgs which was thus a master delivered to his servant 30 quarters of corn to be sold and the servant sold them and converted the money and the master brought his Action on the Case for the Trover and conversion against the servant who pleaded not guilty and it was sound against him and two things were moved in arrest of Iudgement first that the master was never possessed of the money and therefore could not lose it secondly because the money cannot be known and so non constat whether it was the money of the masters or no. But notwithstanding this Case Iudgement was given for the Plaintiff because the possession of the servant was the possession of the master and when the servant converts this to his own use by this the master loseth the property and is also a conversion in the servant Mich. 42 43 Eliz. Leeke against the Bishop of Coventry in C. B. Rot. 3579. IN a Quare impedit the Case was thus Langford and Bussy were Patrons of an Advowson to which they and their Ministers use to present by turn Langford presented according to his turn and his Clerk dyed and then Bussy presented in his turn also and his Clerk was deprived after which Langford grants his Advowson in Fee to Leeke the Plaintiff and then the Bishop without any notice does collate Dr. Babington who dyes after whose death the question was if Leeke should present or Bussy and Iudgement was given for the Plaintiff because that notwithstanding the Church was voyd by deprivation yet the Patron may transpose his Advowson over Bethell against Sir Edward Stanhop IN Debt against Sir Edward Stanhop as Executor to Francis Vaughan he pleaded that he is not Administrator and the said Vaughan gave 40 l. to his daughter within age with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors and then he dyed possest of the goods and the Defendant sold these goods which made him Executor in his own wrong and afterwards takes Letters of Administration Walburton I conceive the Plaintiff ought to have Iudgement for the Statute of 21 Eliz. of fraudulent conveyances annuls this gift of the Intestate because he did it to defraud his Creditors and then when he dyed it was assets in the hands of the Administrator And if a Testator have goods wrongfully taken from him out of his possession these are not Assets to the Executors or Administrators but if they be taken out of the possession of the Administrators or Executors they shall be Assets for they may take them again but for goods taken from the Testator they have but an Action But here the Administrator may take the goods which were given by the Intestate to defraud Creditors for the gift was voyd and therefore they shall be accounted Assets And as to the Action it is well brought for when a man does administer as Executor and then takes Letters of
Administration it is at the election of the Plaintiff to sue him as Executor or Administrator 9 Ed. 4.33 21 H. 6.8 2 Rich. 2.20 18 Ed. 4. Walmesley agreed for the Statute of the 27 Eliz. hath made voyd the Testators gift and subâ—ata causa toll â—ur effectus and the gift being taken away the property is also taken away from the Donee and setled in the Donor as to any Creditor To which the other Iustices agreed and Iudgement was given for the Plaintiff Trinit 43 Eliz. George Brooks Case in C. B. Rot. 1822. GIbson recovered in a Debt against Broâ—k as Executor to J.S. 60 l. and 6 l. damages and upon a scire facias to the Sheriff he returns no Assets and then upon the estate which was in Lâ—ndon which the Defendant had wasted and soâ—d a fieri facâ—as was awarded to the Sheriff of Lâ—…don with a Commission to the Sheriff of London to enquire if he had Assets at the day of the Writ c and by the inquest it was found that he had Assets at the day of the Writ purchased c. and that he had wasted the estate which was thus return'd by the Sheriff against which the Defendant took issue that he had not Assets and upon this was a a Demurr Walmesley A man may avert against the return of a Sheriff if the return be a matter collateral as if upon a Caâ—ias the Sheriff returns a Rescous there may be an averment against this 4 Eliz. 212. a. But if it be in pursuance of the Writ as non est inventus there no averment shall be taken against this but here the return is the saying of the Inquest and not his own saying Warburton I conceive he shall have an averment and traverse or else he shall be without remedy for he cannot have an Action on the Case against the Sheriff because he returns that which was found by the Inquest and so not like where the Sheriff returns falsly without such Inquest and no attachment lyes because it is but an Inquest of office and after it was moved at another day and a president shewn 33 Eliz. in B. R. between Westner and Whitenore and there it was adjudged that such return of the Sheriff was traversable and Anderson and Kingsmill agreed to it wherefore Iudgement was given for the Defendant and that the issue was well taken Day against Fynn IN an Ejectment the Plaintiff declared of a Lease for years of a house and 30 acres of land in D. and that J. S. did let to him the said Messuage and 30 acres by the name of his house in B. and ten acres of land there sive plus sive minus it was moved in arrest of Iudgement because that 30 acres cannot pass by the name of 10 acres sive plus sive minus and so the Plaintiff hath not conveyed to him 30 acres for when 10 acres are leased to him sive plus sive minus these words ought to have a reasonable construction to pass a reasonable quantity either more or less and not twenty or thirty acres more Yelverton agreed for the word 10 acres sive plus sive minus ought to be intended of a reasonable quantity more or less by a quarter of an acre or two or three at the most but if it be 3 acres less than 10. the Lessee must be content with it Quod Fenner Crook concesserunt and Iudgement was staid Smith against Jones IN an Action of the Case upon an Assumpsit the Case was that the wise of Jones was Executrix to J.S. and had Assets to satisfie all Debts and Legacies The woman dyes and the goods remained in the hand of her husband who was the Defendant and Smith the Plaintiff being a Legatee demanded his debt of the husband who said to him Forbear tâ—ll Michaelmas and I will pay you and if this was sufficient cause of Action was the question on a Demurrer Davies The promise is voyd because it is after the death of the wife Yelverton The Action will lye because he hath the â—oods in his possession and therefore is chargeable and must answer for them and therefore there is a good consideration And he cited Godfreys Case who laid claim to a Copyhold and the Copyholder in possession said to him If the opinion of the Lord Cook be that Godfrey hath a good title to it I will surrender it to him and because he did not surrender to him Godfrey brought an Action on the Case and it was adjudged that the staying of the suit was a sufficient consideration to have an Action on the Case Yelverton If the promise had been to pay this Legacy in consideration he would not sue him then it had been good Williams If there be no cause of suit there is no assumpsit and here is no just cause for he cannot be sued for Legacies Flemming of the same opinion for the husband cannot be sued by the Plaintiff and although perhaps the Legatee may sue him in the spirituall Court yet that is only for the temporall administration And afterwards Iudgment was given for the Defendant Michaelm 9. Jacob. Kempe and James against Laurence in C. B. Rot. 3648. IN a scire facias the case was thus Gant having two daughters made his wife Executrix untill his daughters came to the age of 21. years or should be married and then the Executorship should cease and that then his daughters should be his Executors and the woman did recover a debt upon a bond made to the Testator after which the daughters marryed the Plaintiffs and they brought the scire facias upon the said Judgment against the Defendants as terre-tenants and the Sheriff return'd the Defendants terre-tenants and no others and upon Oyer of the scire facias the Defendants pleaded that H. was seâ—sed of those lands die Judicii reddit and made a Lease for years to them Iudgment c. Nichols The daughters shall have this judgment as Executors for they are in privity and in by the Testator and are not like an Administrator who comes in by the Ordinary after the death of the Executor 6 H. 8.7 Cook 5. Rep. Brudnells Case and the daughters are Executors and subject to debts of the Testator And as to the plea he said that forasmuch as the Defendants are returned terre-tenants they cannot plead that they are but tenants for years and that their Lessor is not warned for the scire facias is a personall action to have execution but of the goods but in a reall action it is a good plea because the lessor himself cannot plead in discharge of such action 8 H. 6.32 And note that Michaelm 43 44. Eliz. Rot. 834. Iudgment in the very same point was given accordingly Trinit 9 Jacob. Information against West in C. B. Rot. 1246. IN an Information upon the Statute of the 5 of Ed. 6. cap. 14. for buying of wheate-meale and converting it into starch It was resolved by three of the
Iustices Cook being against it that this is not within the Statute but they agreed that if one bought corn and thereof made meale or oat-meale and sold it that this was within the Statute for that is usuall and is no alteration and therefore remaines the same corn but starch is altered by a trade or science which is a mysterie and so it is not the same thing that was sold But Cook Chief Iustice contra And cited one Franklinghams Cass Michaelm 39 40 Eliza. in B. R. where one bought Barley and because it was of such Quantity that he could not make Malt of it in his own house he made Malt thereof in anothers house by his own servants And it was resolved First That the conversion of corn into Malt in his own house with an intent to sell it was within the Statute unless there be a saving for it Secondly Forasmuch as it was in anothers house he is out of the proviso and so within the penalty of the Statute And in Pasch 42 Eliz. between Reynolds and Gerret That if a Miller buyes corne and grinds it and sells it within his house this is within the Statute And in the Checquer Chamber in a writ of Errour there between Baron and Brise adjudged there that a Coster-monger who buyes Pippins to sell them again was out of this Statute because they are necessary victuall And divers exceptions were taken to the Information viz. where he saith Ligamen anglicè Starch whereas there is no such word but it is Ligumen and the anglicè will not help this mistake Cook 10. Rep. 134. and this exception was taken by Iustice Winch. But Warburton Iustice cont for Starch is a thing newly devised and there is no Latin word for it and therefore the anglice there is good Foster Iustice took an exception because the information concluded contra formam Statuti whereas it ought to have been contra formam Statutorum For this Statute was of force untill the 8 Elizab. and then was determined untill the 13th of Elizabeth and then it was revived so there are two Statutes but 't was agreed that where a Statute continued de tempore in Tempus and was never discontinued nor determined there it shall be said contra formam Statuti and this diversity hath been twice adjudged upon this very Statute viz. 9 Eliz. in Palmers Case and in the 35 Eliz. Warburton cont for the Information doth intend only the Statute of 5 Ed. 6 and 14. and he did recite the words thereof in his Information also this Statute only makes the offence and declares the manner of it and no other Statute makes any addition to it or increaseth the penalty but only revives it to endure in perpetuum But if a Statute doth prohibit a thing and another Statute gives a penalty there upon Information upon the penalty both Statutes ought to be recited and to conclude contra formam Statutorum vid. Commentar 206. Morgans Case And so the Statute of Vsury 37 H. 8. is revived the 13th Eliz. and an addition made to it there such inclusion ought to be contra formam Statutorum but where the Statute is only revived it is otherwise as the Statute of Perjury 5 Eliz. was continued untill the 14 Eliz. and then it was determined and 27 Eliz. was revived yet all informations upon that Statute are contra formam Statuti 5 Elizab. Cook This is no good exception and cited Talbot and Sheldens Case Hillar 33 Eliz. who were indited for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error the Iudgment was reversed because the penalty was demanded for the 10th Eliz. made the Offence and the 23 Eliz. gave the penalty but if the Information be for the offence only there it had been good See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good because the best shall be taken for the King Vid. 5 H. 7. 17. 8 Ed. 3.47 ◠Pasch 10 Jacob. VValler against the Deane and Chapter of Norwich IN an action of Covenant the Plaintiff declared on a Lease made from the Deane the Case was thus The Deane in the 38 Eliz. had made a Lease for 99. years to one Themilthorpe and then in the 42 Eliz. made a Lease to the Plaintiff for three lives rendring Rent with a Letter of Attorney to make livery and a Covenant to save the Plaintiff harmelesse against Themilthorpe afterwards the Attorney makes livery sc after Michaelmass which was a Rent day and he being disturbed by Themilthorpe brought this Covenant And two points were moved in the Case First Inasmuch as the Lease was voyd to Walter whether that the Covenant was voyd also Secondly If the livery made after the Rent day be voyd Hoghton Serjeant If the Covenant depended on the interest of the Lease as a Covenant to repay the thing devised or to pay rent these had been voyd because the Lease it self is voyd for they do immediatly depend upon the Lease but where the Covenant is for a thing collaterall as a Covenant that the Lessor is owner at the time of the Lease or that the Lessee shall enjoy it or shall be discharged and saved harmeless these Covenants being collaterall to the Lease and interest are good although the Lease be voyd and the 43 Ed. 3. proves this where a Lease was made by a Baron and Feme a Covenant by them shall not binde the wife contra where the Covenant concernes the interest as payment of Rent c. Also the Covenant was broken immediatly upon the sealing of the Lease to the Plaintiff And as to the second point he held it was a good livery because no time was limited in the Letter of Attorney Dodderidge Serjeant The Covenant is voyd because the Lease is voyd but contra if it had been a Covenant to enjoy for three lives and he relyed much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols cont The Covenant is good and yet in force for when an estate is created in which is implyed a Covenant in Law there if the estate be voyd the Covenant is voyd also but when there is an express Covenant in Deed there it is otherwise although the Lease be voyd or voydable as if he Covenant that the Lessee shall enjoy during the terme and the lessee resign yet is the Covenant good although the terme is gone And as to the second point The livery is good for untill the livery be made the lessor shall retaine his land and no Rent is due vid. Commentat 423. for by intendment the possession is better than the Rent And Cook agreed to this And the Iustices agreed with Nicholls Trinit 10 Jacob Barnes Case TEnant for life the Reversion in the Lessor a Formedon is brought against the tenant for life who prays in ayde of him in the remainder for life without him in
was upon the pleading Taylor being Lessee for years 9 Elizabeth did grant and assigne this to Ayer the Plaintiff The Defendant pleaded that before the grant made to Ayer sc 8 Elizabeth Taylor did grant and assigne his estate to the Defendant without traversing the gift made to the Plaintiff Williams There needs no traverse for being granted the 8 Elizab. it is impossible it should be granted 9 Eliz. 2 Edw. 6. and 1 H. 5. Anderson He ought to travers for it is impossible to confesse and avoyd a grant by confession that was granted to another before for if it were so the second grant is voyd and so being so confest here ought to be a travers Walmesley cont in 32 H. 6. it is sufficient to say that at another day c. there was another arbitrement c. for by that the first arbitrement is voyd in Law And it is a good plea in a Will that after that there was another Will made without Traversing and there is difference between Lands and Chattells for land may be gotten out of a man by wrong and therefore it may be that after the feoffment the Feoffor entred and it disseised the Feoffee and did infeoffe another but it cannot bâ— so here of a terme for years for no man can take it away from the Lessee by wrong Glanvill and Kingsmill cont There must be a Traverie for there ought to be a confession before there can be an avoydance but here he does not confess the grant but pleads matter that denies it being granted And at last Anderson gave Iudgment that he ought to Travers 42 Eliz. Rudd against Topsey in C. B. Rot. 135. IN a Quare Impedit The Iury found that Edward Capell was seised of an Advowson in Fee and did let it to the Defendant for years and during the Lease he presented the Defendant and the doubt was whether this were a surrender or an Extinguishment And it was held by all the Iustices that this could not be a surrender but is cleerly an extinguishment For if a man does present to his own Church as Proctor to another by this he looseth his advowson Nat. Br. 25.17 Ed. 33.24 H. 6. Hillar 42 43 Eliz. Forrest against Ballard Rot. 2480. AN Audita querela was brought upon a Statute which was acknowledged before a Maior who had no power to take it Anderson An Audita querela will not lie upon a voyd Statute But Kingsmill Walmesley and Warburton cont and Walmesley cited 〈◊〉 Br. 102. where an Audita querela was brougt upon a forg'd Statute and there it would lie upon a Statute made by Duress 20 Ed. 3.28 Trinit 40. Eliz. Goodrick against Cooper in C. B. Rot. 1259. IN a Replevin the Defendant justified for Rent granted to the Master and Schollers of Emanuell Colledge in Cambridge And the Iury found that one Spendelose being seised of the land where c. by his Deed did grant to the said Master and Fellowes a Rent Ch. of 40 l. per annum for ever and that Spendlose did seale his part of the Indenture and delivered it to the use of the Master and Fellowes to one J.S. to deliver it accordingly but there was no dead to shew their receit thereof and then they sealed the other part but they made no Attorney to deliver it and it was â—ound that the Rent was payd for divers years after VValmesley Although no Letter of Attorney were made yet it is good for by their sealing of the Counterpart there is a sufficient agreement to the grant As it a Reversion be granted to a Corporation by Deed although they cannot accept of this but by Attorney yet if they bring a waste this is a sufficient agreement to vest it in them Quod assi Justiciarii concesserunt And judgment was given for the Avowant Michaelm 43 44. Eliz. Claygate against Batchelor in C. B. Rot. 3217. IN debt upon a Bond of thirty pound the Condition was that if Robert Batchelor son to the Defendant did use the Trade of Haberdasher as Iourneyman servant or Apprentice or as a Master within the County of Kent within the Cities of Canterbury and Rochester within four years after the date that then if he pay twenty pound upon request the Obligation to be voyd And all the Iustices agreed that the condition was against Law and then all is voyd for it is against the liberty of a Free-man and against the Statute of Magna Carta cap. 20. and is against the Commonwealth 2 H 5. 5. And Anderson said that he might aswell bind himself that he would not go to Church And Iudgment was given against the Plaintiff Michaelm 43 44 Eliz. Dogget against Dowell in C. B. Rot. 65â— IN an action on the Case upon an Assumpsit The Plaintiff declared that at the request of the Defendant he had lent to him 30 l. the 10th day of May 5 Eliz. and the Defendant in consideration thereof viz. the second day of May aforesaid did promise and assume upon himself that he at the end of the yeare would lend the Plaintiff other thirty pounds for a year or give to him five pound It was said that the consideration is good for although the promise was made at another day yet is it in pursuance thereof so that in Law it shall be accounted all at one time and is not like to the case in Dyer 372. where the Master promised one who was bayle for his servant that he would save him harmless this is no consideration for the Ballment was of his own will and was executed before the Assumpsit but if the Master had first requested and afterwards assumed there it is good and so was it adjudged in the case of one Sydenham against Worthington Trinit 27 Eliz. Rot. 748. Where the request was before and the promise after and there it was a good Assumpsit VVarburton agreed And it is like as if I should say to you do such a thing and I will give you five pound this is no good contract But all the Iustices on the contrary for when at the first day the Plaintiff did lend to the Defendant thirty pound that was absolute and the speaking on the second day cannot have such reference to the first agreement that it shall be accounted all one Anderson If I say to one In consideration you will serve me for a year I will give you five pound here is no cause of action for the consideration is precedent and not mutuall and so judgment was entred for the Defendant Hillar 41 Eliz. VVentworth against VVright Rot. 2529. IN a Quare impedit two points were moved 1. If the Parson be made Bishop whether the Patron should present or the King by his prerogative VVilliams The King shall for before the Statute the Pope should present and the reason was because the Bishop had received his presentment gratis from the Pope and by the same reason the King now
shall present for there is no reason the patron should for by his precedent presentment he hath dismist himself untill resignation or death as if a man lets land for another mans life he shall not have the land during the life of Cestuy que vie great mischief would be if it should not be so for els all the presentments that the King hath made shal be usurpations The second matter was that no presentment is pleaded against the King by the Patron for it is pleaded that the Parson was admitted and instituted but not that he was inducted but the Court held it good notwithstanding that omission But as to the first point the Court asked Williams if he could shew presidents that the King should have such presentment for they said that the usage by the Pope is no argument at all for that he used to usurpe many things Walmesley I conceive this custome began by the Popes usurpation but he said there is a Book in the time of Edâ— 2. where this point is argued and adjudged that the Patron shall present and not the King VVilliams shewed eight or nine Presidents in the time of H. 8. that the King used to present in such case but all of them were between spirituall persons And the Court said they did not regard those presidents for all spirituall persons were the Popes servants vid. 6 Elizab. 72.8 South against Whitewit IN a prohibition the case was thus the wife of VVhitewit had spoken scandalous words of South and therefore the was excommunicated by the high Commissioners and by Letters Missive a Pursevant came at twelve of the clock at night and broke the house of VVoâ—tewit and tooke the body of VVhi ewâ—… wife who was rescued wherefore VVhitewit her husband was called before the Commissioners and hereupon VVhitew t prayed a prohibition And the question was if a Pursevant could break a house by such Commission or not And it was agreed that by the Common Law neither the Pope nor any other spirituall Iudge had any thing to do with the body and goods of any one for only the sword spirituall belongs unto them VValmesley At the Common Law after Excommunication a Capias Excommunicaâ—um was awarded and I conceive this writ is of force at this day and is not taken away by the Statute of 5 Eâ—…z Kingsmâ—ll agreed for this Statute gives power onely to correct the spirituall law and to take away the authority of the Pope but gives the same means to execute it as before and he further said that the Statute that did erect the Court of Wards doth appoint a Seale belonging to it and other process according to the course of the Common Law and therefore by the same reason if this Statute of â— Eliz. intended to give them such authoritie they would have appointed a Seale also and a course according to the Common Law but as the course is here used a man may be robb'd in his house by a beggerly Pursevant which is no Officer known by the Law And so was the opinion of the Iustices Pasch 40 Eliz. Goosey against Pot in C. B. IN a Replevin the Case was thus two Hundreds were adjoyning together to two several Mannoure of two several persons and the avowant was seized of one of them and he prescribed that all the Tenants of the other Hundred have used to make suit to the Leet within his Hundred and also that the Lord of the other Hundred used to appear or to pay him 4 s. pro anno futuro and if it were not paid the Defendant prescribed that he and all those whose estates he hath have used to distreyn any Inhabitant within the Hundred for the same and therefore for 4 s. not paid he did avow the Distress whithin the Mannour of the Plaintiff who was one of the Inhabitants Williams A man may prescribe by a que estate in a Hundred for a man may have it by disseisin and there are divers presidents which the Prothonotaries have shewed me to warrant this in a Replevin for the seisin is the matter of the title And to this Littletons rule may be added that of all things which lye in grant and whereof a man cannot be disseised against his will a man shall not plead a que estate Kingsmall A que estate cannot be pleaded of a Hundred unless if be appendant to the Mannour and a second matter was moved in this Case viz. that he prescribed to distreyn the Cattle of a stranger for the essence of the Lord. Williams It is not good by the 41 Ed. 3. but by the 47 Ed. 3. for suit and service the Cattle of the Lord may be distreyned on any land within the Hundred Anderson I do agree to the Case of my Lord Dyer that the Cattle of a stranger cannot be taken for a Herriot Walmesley In the 12 of H. 7. it is said by Fineux that a Lord of a Mannour may inlarge his services by prescription and so the Cattle of a stranger may be taken but for a personal matter as for amercement in default of suit no stranger may be distreyned And afterwards agreed by all the Iustices that the strangers Cattle could not be distreyned Holt against Lister IN a Replevin the Case was thus he in the reversion after Tenant in Dower grants it over to the use of himself for life the remainder to his nert son in Tail the remainder to the use of himself in Fee and after this he levyes a Fine to the Plaintiff and his heirs of land which he claimeth de haered tate sua after the death of the Tenant in Dower The Plaintiff brought a Quid Juris clamat against the Tenant in Dower and upon non sum informatus Iudgement was given that the Tenant should attorn and now he prayed that she should not attorn for if she atterns she will torfeit her estate Walmesley If he in the remainder for life grants over by Fine it is no forfeiture for he gives no more right than he hath and so hath it been adjudged in the time of my Lord Dyer Glanvill I agree to that but in this Case he grants that which he hath de haereditate sua and this recital will make a forfeiture and then if the Tenant in Dower attorn this is a forfeiture Anderson This attornment is no forfeiture because it is by judgement of the Court. Walmesley I agree for the Grant it self is no forfeiture unless it be by reason of the recital but the Attornment shall have relation onely to the substance of the Grant And it was much disputed between Walmsley and Glanvill If Lessee for life of a Rent grants this in Fee by Fine if this be a forfeiture and Walmesley vouched a Iudgement that it was no forfeiture and Glanvill voucht 31 Ed. 3. Grant 60. to the contrary and 15 Ed. 4.9 by Littleton If Lessee for life of a Rent grants this by Fine in Fee it is a forfeiture by reason of the
Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before Mâ—châ—e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. Fâ—steâ— did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas