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
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
the words are in the negative which will not exclude him of his interest but in the Case at Bar they will because they are in the affirmative so That he shall occupy the Land solely And Iudgment was given for the Plaintiff Pasch 3. Eliz. Woodward against Nelson in B. R. WOodward Parson of Wotton in consideration of 120 l. payd by Bretman one of his Parishioners did accord and agree with him that he and his assignes should be discharged of Tythes during the time that he should be Parson Bretman made a Lease to Nelson Woodward did libell against him for Tythes and Nelson prayed a prohibition upon the said contract And it this was sufficient matter for a prohibition was the Question because it was by word only and without writing which amounts only to a cause of action upon a promise for Bretman but no action for his lessees neither can this amount to a Release of Tythes for as Tythes cannot be leased without Deed so they cannot be released or discharged without Deed. Gawdy Justice Tythes cannot be discharg'd without Deed unless by way of contract for a sum of money and he cited the 21 H. 6.43 Fenner for that year in which the discharge was made it was good by way of discharge without Deed because the Parson for that year had as it were an Interest but such discharge can have no continuance for another year for default of a Deed and so a promise being no discharge it is no cause of a prohibition But Gawdy held as afore And about this time Wray Chief Iustice dyed and Popham succeeded and the same day he was sworn Cook moved this Case again And the Court held that the agreement being by parol was not good And Fenner then said that without writing the agreement could not be good between the parties but for one year And the Court awarded a consultation But upon search made no Iudgment was entred in the Roll. Trinit 35 Eliz. Dr. Foord against Holborrow in B. R. Rot. 367. IN an Action of Debt upon a Bond the case was Dr. Drury to whom the Plaintiff was Executor made a Lease to Holborrow of the Mannour of Golding for years and Holborrow the Lessee entred into a Bond that if he his Executors or Assigns did pay to Anne Goldingham widow the sum of 20 l. for 17 years if the said Goldingham should so long live and so long as Holborrow the Lessee or any claiming by or under the said Holborrow shall or may occupy or enjoy the said Mannour of Goldingham and then Holborrow surreudred his Lease to the Obliges praecextu cujus the Defendant pleaded quod non occupavit nec potuit occupare c. wherefore he did not pay the said sum to Anne Goldingham and the Executor of the Obligee brought an Action of Debt upon this Obligation Johnson for the Defendant The term is gone for he cannot occupy after the surrender and also the Obligee is a party to the cause why it is not performed and therefore he shall take no advantage 4 â— 7.2 But the whole Court was against him for he to whom the surrender is made cometh in quodammodo by him and is his Assignee for he shall be subject to the charge that was before the surrender and also the Defendant shall be bound by these words in the Obligation viz. so long as he shall or may and although these words were not inserted yet he shall pay the annuity for where the first Cause does commence in himself he shall not have advantage thereby but otherwise where he is not party to the first Cause As if two Ioynt-tenants with Warranty make a partition the Warranty is gone because they are parties to the act which made the extinguishment but if one makes a Feoffment of his part the Warranty as to the other remains 11 Ed. 4.8 and in the Case at Bar the Obligor made the surrender and therefore he is party and the first cause and there is a diversity when the thing to be done is collateral and when not for if a Lessee does oblige himself to do a collateral thing as payment of money there he ought to do it although that he surrender for although the Obligee do accept of the surrender yet no act is done by him to hinder the performance of the condition but where the Obligee does any act to hinder the performance of the Condition the Condition is saved as if the Lessee be bound to the Lessor to suffer J.S. to enter into a Chamber during the Lease and he surrenders to the Obligee who will not suffer J.S. to enter the Obligation is saved and Iudgement was given for the Plaintiff 36 Eliz. Bedford against Hall in B. R. IN an Action of Covenant wherein the Plaintiff declared that the Defendant did devise and grant to him certain land with all his goods contained in a certain Inventory for 20 years and said that in the Inventory amongst other things were five Cows which the Defendant seized and that one J.S. took them away as his proper goods as indeed they were and hereupon he brought this Action Fenner The Action will not lye for no interest in the Cows doth pass to the Lessee by this Lease neither was there any right to them in the Lessor As if I demise to you the land of J. S. by these words Dem si concessi and you enter and J S. re-enters no Covenant lyes against me And so in the 11 H. 4. a Prebend made a Lease for years and resigned now is the term of the Lessee quite destroyed and if after he be outed by a new Prebend yet he shall have no Action of Covenant And so is it 9 Eliz. Dyer â—57 Lessee for life makes a Lease for years and dyes the Lessee shall not have a Covenant if he be outed by him in the reversion because he is not in as a Termor at the time of the disturbance But if in the principal Case the Lessor had been possest of the goods although by a wrong title and the Owner had seized them then a Covenant would lye And so if a Disseisor makes a Lease and the Disseisee re-enters the Lessee shall have a Covenant Gawdy If a man lets lands wherein he hath no estate together with his goods although the land will not pass yet the goods do and if a man lets goods for a year and re takes them within the year no Covenant will lye for the property was never in the Lessee Câ—…câ— If a man lets anothers goods to me by Deed if I seize them and the Owner re-takes them a Covenant will lye and so will an Action on the Case if it be without Deed 42 Assi 8. If I be in possession of anothers goods and sell them a deceit lyes against me by the Vendee and so is the Book of Ass 42.8 conâ—ra where the Vendor hath not possession at the time of the sale And if I sell goods by Deed which
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
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
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
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
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
Chaplaines they cannot take many Benefices during the lives of the others which are beneficed and discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplaines In an Action of false Imprisonment brought against the Maior Citizens Sheriffs and Commonalty of Norwich it was moved where the Issue should be tried And by the Court the Issue shall not be tryed there and in the same case it was moved whether the Sheriff could summon himself and it was answered by the Court that he could not and Periam said that so it had been after adjudged Mich. 29. and 30 Eliz. IN an Avowry adjudged by the Court Anderson being absent that in an Avowry it is sufficient for the Avowant to say Son Franktenement but if the Plaintiff traverse it it is no plea without he makes to him a Title that is the difference of pleading Son Franktenement on the part of the Avowant and on the part of the Plaintiff And Welson said that so were all the Presidents that it is no plea to traverse the Bar in the Avowry without making Title And Periam said that it is no Title to plead De son seisin demesne but he must make out his Title Paramount his Seisin Demesue Mich. 29 and 30 Eliz. Bloss against Holman JOhn Bloss brought an Action of Trespasse Quare vi armis for taking of his Goods against Holman and the Defendant pleaded not guilty and the Iury gave a speciall Verdict viz. That the Plaintiff at the time of the Trespasse was of the Mystery of the Mercers and that at that time the Defendant was his Servant and put in trust to sell his Goods and Merchandizes in Shopa sua ibidem de tempore in tempus and that he took the Goods of the Plaintiff named in the Declaration and carried them away and prayed the advice of the Court if the Defendant were culpable or not and upon the Postea returned Shuttleworth prayed Iudgment for the Plaintiff And the doubt was because the Declaration was Quare vi armis because it appeared that the Defendant had custody of the Goods but Shuttleworth doubted whether he had Custody and cited the case of Littleton viz. If I give my Sheep to Compasture c. and he kills them an Action of trespasse lies and the Iustices held that in this case the Action did well lye and Periam said that the Defendant had onely an authority and not custody or possession and Iudgment was given for the Plaintiff 3 H. 7.12.21 H. 7.14 And Windham said that if he had imbezelld his Masters Goods without question it was felony Quod fuit concessum Anderson absente and the Law will not presume that the goods were out of the possession of the Plaintiff and the next day came the Lord Anderson and rehearsed the case and said that the Defendant had neither generall nor speciall property in the Goods for it is plaine he could have no generall property and speciall he had not for he could not have an action of Trespasse if they were taken away then if he had no property a trespasse lies against him if he take them so if a Shepheard steal Sheep it is felony for he hath no property in them wherefore he gave Iudgment accordingly Mich. 29 and 30 Eliz. Rot. 1410. Cooke against Baldwin A Lease was mate for one and twenty years to one Truepenny and Elizabeth if she and he or any Child or Children between them lawfully begotten should so long live and then they were married and the Wise died without Issue If the Lease be determined or not was the question And it was moved that it was determined because it is conjunctive if he and she c. and now one of them is dead without issue and it is not like the case of Chapman where a man covenants to enfeoff one and his Heires for it is impossible to enfeoff his Heires he living and therefore in that case it shall be taken for a disjunctive and if I make a Lease for years to two if one of them dye the other shall have all because they take by way of interest but it a Lease be made to two during the life of one of them if one dye the Lease is gone Quod fuit concessum And here the meaning is that the Lease shall be determined if one of them dye Rhodes Iustice The meaning is against you for by the word or which comes after it appears that they are to have their lives in it Anderson By the words it is plain that after the death of one the Lease is determined and that which moves me to think it was so intended is because it was intended as it seems to me to be a Ioynture for the wife which was made by them before marriage and then if by the death of one it should be gone and she have nothing could not be the meaning To which the other Iustices assented And all the Iudges agreed that the Lease was not determined by the death of one and Iudgment given accordingly Mich. 29 and 30 Eliz. IN a Quare Impedit by Sir Thomas Gorge Knight against the Bishop of Lincolne and Dalton Incumbent the Case was That a Mannor with the Advowson appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question And all the Iustices held clearly that the avoidance would not passe because it was a Chatiell vested And Periam said that in case of a common person without question an Advowson appendant would not passe by such Grant for if the Father dye it shall go to his Executor but if it be an Advowson in grosse in case of a common person there is some doubt But in the principall case all the Iudges held ut supra and said that so it was in 9 Ed. 3.26 Quare Impedit 31. And in Dyer in the case of the Church of Westminster but F.N.B. is contrary 33 N. Mich. 29 and 30 Eliz. Rot. 728. HOuse and Elkin brought an Action of Debt upon an Obligation made to them against Roger Grindon as Sheriffs of London upon condition of appearance at a certain day in the Kings Bench The Defendant pleaded that he being arrested by a Precept out of the Kings Bench appeared at the day And upon this they were at issue to be tried by the Country And a Repleader was awarded because it was triable by Record for although the Sheriff do not return the Processe yet the Defendant ought to come into the Court at the day and there speciall entry shall be made of his appearance And so was it adjudged this terme in the Case between Bret and Shepheard But Bradford Prothonotary said it was well enough for it may be that he appeared there and there was no Record of it To which it was answered that it
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
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
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
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
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
Writ is grounded upon a recovery by default in a reall action but a waste is a meere personall action And therefore in the 2 H. 4. in a waste against the husband and wife the wife shall not be received also it will not lie in this case because here is no default within the intent of the Statute for the Statute intends to relieve defaults after appearance and therefore all the Iudgment in this Writ is that the recovery was by default and if there was a default in pleading it is a default but not within the Statute Glanvill cont No waste is committed and so the recovery shall not bind for it appears in the 8 Ed. 4. by West That this action was provided instead of a Writ of right and there is no question but a Writ of right will lie here and this Writ is of the same nature And Mr Plowden in his Reading said that this action will lie upon a recovery upon a Writ of waste aswell as in other actions for the recovery is not upon the Inquiry of the Iury but upon default And it is also a reall action 7 Ed. 3. 28 Ed. 3.30 If the husband make default herein the wife shall be received Anderson There is no question but this action lies upon a recovery in waste but if this be a default within the Statute is a doubt for if this should be suffer d it were very mischievous for then contempts shall be favoured which was never the intention of the Statute and therefore it will not lie where there is a default after appearance Walmesley of the same opinion for this case differs much from the Statute of Glocester for this Statute gives remedy to a third person upon default of the particular Tenant and therefore upon this Statute the intent of the partie who makes default is more regarded than the manner of the default and therefore it shall be taken largely But here is default in the party himself and he shall have no favour against his willfull default for every nihil dicit is a confession of it self for thereupon it is supposed that nothing can be said Windham I hold that a Quod ei deforceat will not lie in a Writ of waste for the inquiry of the Iury is the cause of the Iudgment But he agreed that default within the Statute is intended such default that in it self is the cause of the Iudgment but here the Iudgment is given upon contempt and refusall of the party and therefore no favour Perryam This action cannot be compar'd to a writ of right which is grounded upon the right and not on the Iudgment but the form in the Quod ei deforceat is set down in the Statute which ought to be observed and the Statute gives this action upon a default and here is no default for it cannot be a default where the partie appears and hath no day in Court but he doubted much if it lay in awrit of waste because the damages are the principall but as the case is here it will not lie And to prove that a nihil dicit is a confession he cited Pepyss Ease in the Comentaries 438. And at last Iudgment was given that the Writ would not lye Pasch 35 Elizab. James against Portman WIlliam James and Thomas James Ioyntenants for life of a lease made by Portman William James doth assent covenant and agree that Thomas James occupy all the land alone and sow it with his own Corn After the land is sowed Thomas James dyes William James the survivor grants the Corne to Portman who takes it and the Plaintiff as executor to Thomas brought an action of trespass Ewens for the Defendant one Ioyntenant cannot make a Lease to his companion no more than one may infeof the other by reason they have joynt possession 10 Ed. 4.3 2 R. 2. Extinguishment 3. Also the words here are not sufficient to make a Lease but admitting this yet the survivor shall have the corn of that part which belongs to him for by this Lease the Ioynture is severed and then the Survivor shall have that which grows on his part For it two Ioyntenants sowe their land and one of them letts his moytie for years and he who did not let dyes the other shall have the corn as Survivor Pyne cont Although one Ioyntenant cannot inteof another because he cannot make livery because he hath possession before yet may he Release to his companion and so may he make a Lease for years for there is no need of any livery and by the 22 H. 6.43 If one Ioyntenant infeofs another this shall enure by way of confirmation And 14 H. 6.10 One Ioyntenant may put out his companion by this means for he may clayme a Lease from him and then a Release and if it be a good Lease then the Executors shall have it Popham The action is good for one Ioyntenant may make a Lease to the other although he cannot infeof for a Lease is but a contract And 11 H. 6.33 one Ioyntenant commanded the other to occapy all and in a trespass he was compelled to plead this as a Lease and then if one Ioyntenant does sow all and dyes the other shall have the Corne by Survivor and it is not as in case where a man hath an estate determinable upon uncertainty for there his Executors shall have the Corn but in our case the Survivor had contracted with his companion and thereby had bound himself not to meddle with the land and the other bestowed great costs in manuring and sowing the Land and therefore the Executors shall have the Corn. Fenner agreed but doubted whether one Ioyntenant could make a Lease to the other but said that by the contract he had excluded himself from the proffits and by the 39 Ed. 3.27 one Ioyntenant may have an account against the other And he said that if I agree that you shall sow my Land with me you shall gain no interest in the land and yet you shall have the corne And one Ioyntenant may distreyn for himself and as Bayly for the other And the Cause was adjourned and afterwards viz. Hillary 36 Eliz. the case was repeated And Gawdy said That if there be two Ioyntenants and one grants to the other that he may sow the Land yet may the other occupie with him for these words do not transfer any sole interest but if he sayes that he shall occupy all the Land and shall sow it solely this does exclude him from having any interest with him Popham Agreed because this is but a contract and so of a Lease for years Gawdy If one Ioyntenant sayes to the other that he will not occupie the Land with him or that he will not put in his Cattle this does not transfer any interest but that he may occupie with him and so in this case if it had not been said that he should occupy solely Popham of the same opinion for where he sayes he will not occupy
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
for the goods themselves are not to be recovered in this action nor damages for them and so they are but collaterall to the action as in 10 Edw. 3.30 In a Rescous the Court was for taking of Cattle without shewing what Cattle and the Iury found them to be two horses and the Plaintiff had judgment where note that a verdict did help an insufficient Court and 22 Aâ—si 21 Ed. 3. a trespass was brought for taking away of Writings concerning land without shewing what they were or the quality of the land But otherwise in a detinue for Charters for there the Writings themselves are to be recovered The second and great doubt was when a man doth promise to another that if he will deliver the pawn he will pay the debt if this be a sufficient consideration to maintain an Assumpsit Foster Justice It is not for he that hath the pawne hath not such an interest in it as he may deliver it over to another or make a legall contract for it and that his delivery being illegall he cannot by his own wrong raise an action to himself and a man shall never maintain any action where the consideration is illegall and not valuable 9 Ed. 4. In an action on the Case the Defendant pleaded an accord and that he delivered the writing to the Plaintiff which concern'd the land and it was held no plea because the Plaintiff having land the writtings belonged to it And cited Reynolds Case where a man promised another 100 l. to solicite his business and it was holden that no action would lie for the money because the soliciting his business was illegall he being no man of Law Dier 355 356. Cook Warburton and Daniell cont Who said that the consideration was good legall and profitable and sufficient to maintain an assumpsit for he who hath goods at pawn hath a speciall property in them so that he may work such pawn if it be a Horse or Oxe or may take the Cowes milk and may use it in such manner as the owner would but if he misuseth the pawn an action lyes also he hath such interest in the pawn as he may assign over and the assignee shall be subiect to a detinue if he detaines it upon payment of the money by the owner as in the 2. assise Land was leased untill he had raised 100 l. he hath such interest as is grantable over And Foster agreed to this because he had power to satisfie himself out of the profits And it was agreed by the Court that if a man takes a distress he cannot work the distress for it is only the act of the Law that gives power to the distress for he hath no propertie in the distress nor possession in jure as in the 21 H. 7. Replevin A man hath returne Irreplevisable he cannot worke them for the Iudgment is to remit them to the pound ibid. remansurum vid. 13 R. 2 Brook 20 H. 7 1 a. 34 H. 8. Bâ— pledges 28.22 Edw. 4 11. goods pawned shall not be put into execution untill the debt be satisfied And it was agreed by Cook and Warburton that when a man hath a speciall interest in a thing by act in Law that he cannot work it or otherwise use it but contrary upon a speciall interest by the act of the partie as in case of a pawn Daniell There is difference between pawns which are chargeable to the parties as Cowes and Horses and things that are not chargeable and also there is a difference between pawnes that will be the worse by usage as Clothes c. For if the pawn be the worse by usage an action of the Case will lie against him that hath them pawned to him But contra of goods that are not the worse for usage Cook If I deliver goods to you untill you are promoted to a benefice you may use them which Foster denied And Iudgment was given for the Plaintiff and that they may be granted over and so a good assumpsit will lie 26 Eliz. Earl of Northumberlands Case THis case was privately argued before the Lord Treasurer because the parties agreed to refer themselves to the opinion of Wray and Anderson And the case was this the Earl of Northumberland devised by his will his Iewells to his wife And dyed possessed of a Collar of Esses and of a Garter of gold and of a Buckle annexed to his bonnet and also of many other buttons of gold and pretious stones annexed to his robes and of many other chains bracelets and rings of gold and pretious stones The question was if all these should passe by the devise under the name of Iewells And both Iustices did Resolve that the Garter and Collar of Esses did not pass because they were not properly Iewells but ensignes of Honour and State and that the Buckle in his bonnet and the buttons did not pass because they were annexed to his Robes and were therfore no Iewells But for all the other chaines rings braceletts and Iewells they passed by vertue of the said Will. Michaelm 40 41 Eliz. Sperke against Sperke in C. R. Rot. 2215. IN an ejectment the Case was this M. Sperke made a Lease of the land in question to William Sperke for 89. years if William should so long live the remainder after his death to the Executors or Assignes of the said William for 40. years afterwards William dyes Intestate and administration is committed to Grace Sperke his wife who entred clayming the 40. years and the Defendant clayming by another Lease entred upon him and he brought this action Aâ—dâ—…on Executor is as good a name of purchase as Heire is And I conceive the points in this case are two First if the Administrator be an assignee Secondly If the lease for 40. years be a Chattell vested in the Intestate in his life for if it be then his Administrator shall have it And as to the first I conceive that she is not assignee to take these 40 years For in the 19 Ed. 3. It is there said that Administrators are not assignees for administration is appointed by the ordinary and assignees must be in by the party himself and not by a stranger and therefore an Administrator cannot be an assignee as an Executor that comes in by the partie or as a husband for his wife Walmesley and Glanyâ—… accorded But Kingsmill cont for he said that although one could not be assignee in Deed without the act of the partie yet one may be assignee in Law by the act of the law And so the opinion of the â— Iustices to the first point was that the Administrator could not have it as assignee and as to the second point Anderson said that it could not vest for if a man have a Lease for life the remainder for 40. years the remainder is voyd because there is no person named to whom it is limited but if a man make a Lease for life and after his death to his lessee for
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
the wife is at large to have the twelve pound and her Dower also But the Court held that she could not have her joynture for by the recovery of the Dower her joynture is barred for the Rent was given her in recompence of her Dower so that it cannot be intended that she shall have Rent Dower also wherefore it was adjudged that her entry on the Land was not good 30 31 Eliz. The King against the Bishop of Canterbury and Hudson Rot. 1832. IN a Quare impedit Hudson the Incumbent did plead that King Edw. the 4th did grant the Rape of Hastings Et bona catalla Fellonum Fugitivorum ategat of all Residents and non-residents within the said Rape to the Earl of Huntington And pleaded that John Ashborne was seized of the Mannor of Ashborne and of the advowson appending to it and held the same of the Earl of Huntington as of his Rape of Hastings and that the said John Ashborn was outlawed during which the Incumbent of the said Church dyed and the Earl presented the said Hudson Shut I conceive this avoydance does not belong to the Earl by reason of this grant for by the same Patent libertie is given to the said Earl his heirs to put himself into possession and of such things as he cannot put himself into possession they will not passe and here this is a thing in action which by these words will not passe 19 H. 6.42 by the grant de Catalla Fellonum obligations do not passe VValmesley Stanford in his prerogative saith that by the words Bona catalla the King shall have the presentation to the Church of him that is outlawed or Attaint and by the same reason he may grant it by such a name and although the party cannot seise such a thing yet it shall passe 39 H. 3.35 Rent for years shall passe by the grant of bona Catalla Periam It will passe by these words for it is an ancient grant for in that time the Patents of the King were not so specially penned as now they are Anderson I conceive the avoydance will not passe by thse words for within this word bona moveables are contained both dead and living and Avoydance is no Chattell nor right of Chattell Quod Peryam negavit c. Mich. 37 38 Eliz. Townsend against VVhales IN an Ejectment the Iury found that J.S. was seized of land in possession and also in reversion for terme of life and made a Devise by these words That his Executors take the profit of all his Lands and tenements Free and Copy for ten years for the payment of his debts and Legacies and after the end of the said ten years that all the aforesaid lands and tenements with their appurtenances should be sold by his Executors or one of them and the silver to be bestowed in the performance of his Will or by the Executors of his Executors or any of them and then one of the Executors dyed within the ten years and the two surviving Executors did grant all aswell in possession as in reversion to House who made a Lease to the Plaintiff And two points were resolved 1. That the Executors may grant the reversion 34 H. 6. for by these words Free and Copy his intent appears that all should be granted 2. That although one of the Executors died yet the other two Executors may sell Anderson If such bevise had been at the Common Law and one Executor had refused the two others could not sell but if one die the survidors may sell the land for there the authority doth survive Which difference the other Iustices agreed to And at another day Anderson said there was difference where the Devise is that Executors should sell his and the money divided between them there if one die the others shall not sell but otherwise here because the money is the performance of his will Walmesley The sale by the two Executors is good for it is said the Executors or any of them c. And Beaumond agreed Wherefore judgment was given for the Plaintiff Note that there were two verdicts in this case and the first only found that the Executors shoull sell after the ten years and that one dyed and the other two did sell within the ten years and the opinion of the Court was that the sale was voyd but in the 39 and 40 Eliz. all the whole will was found and Iudgment given ut supra The Earle of Rutlands Case Roger Earl of Rudand and John Maners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland brought an action on the case against Isabell Countess of Rutland And Declared for divers Iewells and goods c. that came to the hands of John Earl of Rudand as Executor to the said Edward and the said John the 10th of July 29 Eliz. did casually loose them which after came to the hands of the Defendant licet saepius requisita she would not deliver them to the said John in his life time nor to the said Plaintiffs after his death but knowing the goods did belong to the Plaintiffs in D. in the County of Notingham converted them to her proper use And a verdict for the Plaintiff And it was moved often in arrest of Iudgment but all the Iustices agreed that the action of Trover and converversion would lie by the Executors upon the Satute of the 4 Ed. 3. upon a conversion in vita Testatoris and so hath it been adjudged in the Kings Bench and although the Statute mentions onely a Writ of trespass that is only put for example Also they all agreed that the sole cause of action to the Conversion for it there were no conversion they shall be put to their Detinue therefore the great doubt did arise because the day and time of the conversion was not shewed for perhaps it was after the Writ and before the Declaration And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said That all Iustices of the Common Pleas and of Serjeants Inne in Fleet-street besides Peryam Chief Baron were of opinion that Iudgment should be given for the Plaintiffs for that some of them held that the day of the Conversion is not materiall to be shewn and others that of necessity as this case is it shall be intended that the conversion was in the Plaintiffs time wherefore Iudgment was entredfor the Plaintiffs but a Writ of Errour was brought and the Case much debated Michaelm 38 39 Eliz. Carew against Warren in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in antient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland who rendred to Gunter in Fee who devised the reversion to his wife for life the remainder in Fee and dyed And then the Lord of Andover which is an ancient Mannor by an
shall not have an Action of Debt untill the last year expired And after Iudgment was given for the Plaintiff viz. Mich. 29. Eliz. Rot. 2248. 28 Eliz. Between Sticklehorne and Hatchman ADjudged by the Court that if for not scouring of a Ditch or Mote the Groundsells of the house are putrified or Trees cut downe which are in defence of the house whereby the house by tempests is blown down Waste shall be assigned in Domibus pro non Scourando c. IN an Ejectione firmae Broker Prothenotary said that where the title of him in the Reversion is not disclosed in pleading nor cometh in question aid shall not be granted Pasch 28 Eliz. in C. B. Yardley against Pescan THe Queen seised of an Advowson being void the Ancestor of Pescan presented and so gained it by usurpation and then the Church being void he presented again and his Clark is now dead and then the Queen grants the Advowson to Yardley the Plaintiff and he brings a Quare Impedit in the name of the Queen supposing that this usurpation did not put the Queen out of possession and it was argued that the Grant could not passe without speciall words because it is of the nature of a Chose in Action and this was moved the last terme and then Dyer Meade and Windham held that this usurpation did gaine possession out of the Queen and that she should be put to her Writ of Right of Advowson and now this terme Fenner moved the case againe and the opinion of Anderson that was the chief Iustice of the Common Pleas was clearly that the Queen was not out of possession for he said that it was a rule in our Books that of a thing which is of Inheritance the act of a common person will not put the Queen out of possession but if she had but a Chattell as the next Advowson then perhaps it is otherwise But Meade and Windham held very earnestly the contrary and they relied on the Book of 18 Ed. 3.15 where Shard said that if the King had an Advowson in his owne right and a stranger who had no right did happen to present that put the King out of possession And the King shall be put to his Writ of Right as others shall vide 47 Ed. 3.14 B. 18 Ed. 3.16 The Defendant there did alledge two Presentments in his Ancestor after the Title of the King and demanded Iudgment if the King should have a Writ of possession and the plea was admitted to be good but after Pasch 25 Eliz. Iudgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 31 Eliz. Rot. 211. SIr Robert Rowley made the Lord Keeper Sir Robert Catlin and the Master of the Rols his Executors and did devise a terme to Sir Robert Catlin and died and they writ their Letters to the Ordinary certifying that they were made Executors but that they could not attend the executing of the Executorship and therefore they required him to commit the Administration to the next of kin ut lex postulat The Ordinary enters in the Register Quia Executors praedicti per testamentum praedictum distulerunt c. and thereupon committed the Administration over Afterwards the Lord Catlin received the Rent of the Farme and after granted it to a stranger The Administrator ousted the Lessee and he brings an Ejectment And if this writing was a refusall in the Executors or not was the question And it was said by Ford Doctor of the Civill Law that it was a refusall and he said that if Legatees being Executors do refuse to prove the Will yet by the Civill Law they shall have their Legacies But adjudged by the Court that if Legatees do refuse to prove the Testament that by the Common Law they have no remedy for their Legacies for by the refusall there is a dying Intestate and then nothing could be devised and also said that this Writing was a refusall of the Executors so that the Ordinary might presently commit Administration and therefore Sir Robert Catlin could take nothing as Legatee Pasch 31 Eliz. THe Array of a Pannell was challenged because the Sheriff was Cosin to the Plaintiff and upon a Traverse it was found that they were Cosins but not in such manner as the Defendant had alledged and per curiam the Array was quasht for the manner is not materiall but whether he be a Cosin or not 18 H. 6.18 Pasch 31 Eliz. IT was resolved in the case of Miles against Snowball that if the Sheriff return one who hath no Freehold yet he shall be sworne in the Iury if he be not challenged by the parties And after upon the evidence it was moved If a woman make a Deed of Feoffment to severall persons of a house and land wherein she her self inhabiteth and is seised and delivers the Deed to the Feoffers without saying any thing if this be a good Feoffment of which Periam doubted because she did inhabit there all the time but if it were of other lands on which she did not dwell and she comes there to make Libery and delivers the Deed upon the land and saies no words yet is this a good Feoffment because she comes thither to malte Livery Anderson The Feoffment in this case is good for if she hath an intent to make Livery the delivery of the Deed is good Livery Quod Periam tota Curia concesserunt if she had intended to make Livery vide Co. lib. 6 26. lib. 9.136 Dyer 192. Pasch 31 Eliz. A Woman brought an Action of Debt as Administratrix to another the Defendant pleaded that the Plaintiff was an Alien born in Gaunt under the obedience or Philip King of Spain the Queens enemy And Walmsley moved for the Plaintiff that this was no plea because that the recovery is to anothers use but the Court was against him for the Court will not suffer that any enemy shall take advantage of our Law and then he moved that that King was no enemy because Wars were not proclaimed But Anderson said that a more open enemy then King Philip cannot be who had conspired the death of the Queen and had endeavoured to invade the Realm and subvert the State which Windham granted but Periam haerebat aliquantulum whether he could be called enemy in law before such proclamation But Walmsley said that the plea was that the woman was born under the obedience of the Emperor who was in amity with the Queen and the Court replied Plead as you will abide by it Pasch 13 Eliz. IN a trespasse of Assault and Battery the Plaintiff declared to his damages of twenty pounds and the Iury found for the Plaintiff and gave thirty pounds damages And by the Court the Plaintiff shall recover no more then he hath declared for and this ought to be done of course by the Clarks 2 H. 6.7.8 H. 6.4.42 Ed. 3.7 Mich. 30. and 31 Eliz.