the Lessee re-entered into the Close Rent extinct by empairing the estate and whether the rent were revived or not was the question And Popham and Gawdy The rent is not revived and that the Lessee shall hold the Close discharged of any Rent by the folly of the Lessor to impair the estate of the Lassee 16. DOwnall brought a Writ of Formdon against Catesby in the Common-place Error and there was a speciall Verdict found and Judgement given for a default in the Writ against the Plaintif and the Plaintif brought Error and alleged for Error that after Verdict given no default in the Writ shall prejudice the party per le Statute de 18 Eliz. cap. 14. Popham chief Justice sayd if there be no Writ it is holpen by the Statute Insufficient Writ â—ot holpen but it is otherwise if there be an insufficient Writ in matter for that is not holpen but a Writ that is insufficient in form and sufficient in matter is holpen And in every Writ of Formdon there are two things requisite the one is the gift the other the conveyance to the Demandant and if either of these two fail the Writ is insufficient in substance and is not holpen by the Statute 17. PEter Palmer of Lincolns Inne brought an action upon the case against one Boyer Slander of a Counsellor at Law and declared how he was an Utter-barrester of the Law and got his living by practising of the Law and was Steward of divers Courts and namely of one John Petty Esquire and the Defendant praemissorum non ignarus to the intent to prejudice the Plaintif in his good name and practise sayd of the Plaintif these English words viz. Peter Palmer is a paltry Lawyer and hath as mâ—ch Law as a Jackanapes and it was pleaded in arrest of Judgement that the words would not maintain an action for they are not slanderous for it is not sayd he hath no more Law than hath a Jackanapes for then it had been clear that the action is maintainable for by that he had abated the opinion of his Learning but it is not so in this case for the words are that he hath as much Law as hath Jackanapes and this is no impeachment of his Learning for every man that hath more Law than Jackanapes hath as much Et non allocatur for the comparison is to be taken in the worst sense and tant amounts that he hath no more Law than Jackanapes per quod Judgement was given for the Plaintif for this is a slander in his profession by which he doth acquire his living 18. ONe libelled in the Spirituall Court for Tithe of Billet Prohibition Faggot ' and Talwood And averred that it came of Birch Maple Hasell and Hume and thereupon a Prohibition was sued surmising that they came of Oke Ash Elm and Birch And in the Spirituall Court allbeit one Libell for wood of one nature and that is found of another nature yet sentence shall be given for the Plaintif The Court said that was absurd Absurd practise of the spirituall Court and therefore they would hear a Civilian speak to that point Cook Attorney Generall If consultation shall not be granted then farewell all Tithe of Wood for in truth in every faggot of Birch there is put a great stick of Oak or Ash intending by that to privilege the whole faggot of Tithe Nam crescit in orbe dâ—lus Webb Clark said the cunning is of your side to Libell for fagot For if you had Libelled for Maple Birch or Hasell no Prohibition would have been sued And it was adjudged in this Court in Molins case one Libbelled for billet and fagot generally without shewing of what Wood they were made And upon pleading upon the Prohibition Partable tithable it appeared to the Court that part was tithable and part not And for that they could never obtain a Consultation Cook It doth not appear here that there was any mixture so the case is not like Webb You have no Right to have Tith of fagot for that part thereof is not tithable being Oak so by your Covetousness to have more than is your Right you have lost that that is your Right Et adjornatur And after at another day in the same Term it was moved again by Savile Lanes case which said that it was adjudged in Lanes case that tith shall never be paid for Hasell-wood wich is mixt with Oak in fagots quod Gawdie negavit Fenner He ought to have pleaded the speciall matter to have had a Consultation Seeciall pleading viz. how much of the fagot was Hasell for so it was done inter Molius Dames And therefore forasmuch as it is not so done Consultation shall not be granted for no part of that and of this opinion were all the Justices quod nota 19. NOta per Master Kemp Secondary of the Kings Bench Office Appearance if a Latitat goeth forth against the Husband and Wife and the Husband onely is taken The Husband shall find surety for himself and his Wife or otherwise he shall lie in Prison untill he find bail as well for his Wife as for himself and said that this hath been the use of the Kings Bench by the space of forty years of his knowledge 20. SCire facias was brought by Middleton against Hall Usury after Judgement to execute a Judgement The Defendant pleaded that he borrowed of the Plaintif 100. l. to give him 120. l. for the loan thereof for a year And the Plaintif for his assurance would have the Defendant confess this Judgement of 120. l. And so he pleaded the Statute of Usury in bar to this Scire facias and upon that the Plaintif demurred in Law Godfery prayed Judgement for the Plaintif The words of the Statute of Usury are all Bonds Contracts and assurances Collaterall or other made c. shall be utterly void But here this Judgement may not be said any assurance for the money but is a Judgement upon the assurance for which c. Clark contra But the whole Court being twise moved held clearly that this is no plea to defeat a Judgement But if such matter had been the Defendant ought to have pleaded that upon the first Action in bar and so not to suffer the Judgement Popham Here are two inconveniences one to defraud and defeat the Statute of Usury the other to avoid Judgements upon such suggestions which might be pleaded in bar in the first Action and after the Plaintif had Judgement to recover 21. MArtin Slander of an Attorney Attorney of the Kings Bench brought an Action of the case against Burling for slanderous words viz. Martin is he your Attorney he is the foolishest and simplest Attorney towards the Law And if he do not overthrow your cause I will give you my ears he is a fool and an ass and so I will prove him If these words be actionable or not was the question
Plaintif replyed that it was made upon good consideration and traversed the delivery of the Copperas which was an evill issue clearly Issue misâ—oyned and it was found for the Plaintif and this was alleged in arrest of judgement and yet for that there was an issue tryed allthough it was mis-joyned the exception was disallowed and judgement was given for the Plaintif 16. AN Action of Debt was brought upon the Statute of Purveyors Issue because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty and it was moved that this was an evill issue for he ought to have pleaded nil debet and the Court commanded him to plead nil debet 17. WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild Ayd prier who was Tenant for life and they were at issue and the Venire fac issued in Michaelmas Term and now this Term the Defendant prayed in ayd which he sayd he ought not to doe beâ—â—use they have furceased their time for they ought to pray it when the Venire facias is awarded or otherwise they shall not have it and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion that he ought then to pray it or not at all 18. A Writ of Error was brought upon a judgement given in London â—orfeiture and this was the case Sir Wolstan Dicksey Alderman brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus who afterwards granted the reversion to Dicksey and the Tenant attorned and the rent was behind c. Spenser pleaded in bar that before the grant of the reversion to Dicksey Bacchus was seised and shewed the custom of London to make inrolments of deeds indented and then shewed that before the bargain to Dicksey he bargained the reversion to him by paroll and so demanded judgement si actio c. and this plea was entered upon record and hanging this suit Dicksey entred into the Land for a forefeiture of the term because he had claimed a Fee simple and Spenser re-entered with force and his servant with him but not with force and thereupon Dicksey brought an Assisse of fresâ— force against them in London and all this matter was there pleaded adjudged that it was a forfeiture of the term the Jury gave damages and the Court increased them and the judgement trebled as wel the damages increased as the others and allso the Iudgement was quod praedicti defendentes capiantur c. Increase of damages and thereupon Spenser brought a Writ of Error and assigned Error in the point of the Judgment because it was no forfeyture And allso because the Damages increased by the Court were trebled And allso because the judgment was Capiantur where but one was a Disseisor with force therfore it should be Capiatur Shuttleworth There is no forfeyture made by this Plea before triall had thereof Wast For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another this is no forfeyture so in Cleres case if he say that another is next Heir this is no forfeyture Quid juris clam And in 26 Eliz. here was a case in a quod jurâ—s clamat the Defendant pleaded an Estate tayl and after at the Assises he confessed but an Estate for Life and yet this was no forfeiture Curia None of us do rememember any such case here Walmisley Surely the case is so and I can shew you the names of the parties Anderson I will not believe you before my self and I am sure that I never heard of any such case Peryam If any such case had been here we would have made a doubt therof for ther are Authorities against it as in 8 Eliz. 6. R. 2. Plesingtons case Shuttleworth Allso theyhave said that the fresh force was brought infra quarentenam silicit quadraginta septimanas Quarentenae Scilicet a surplusage and the quarentena is but 40 dayes Curia That is no matter for the silicet is but surplusage and so no cause of Error Shuttleworth If a man disseise another without force he shall not be taken and imprisoned and therefore for this cause the Judgement is erroneous and allso the costs encreased are trebled and therefore erroneous Aydin Trespass and cited 22. Hen. 6. 57. Anderson In an Action of Trespass If the Defendant pray aid of a stranger this is a forfeiture and if it be counterpleaded yet it is a forfeiture then shall the deniall thereof make any change in the case surely no Proper acts in my opion And I say that Acts which come from himself are forfeitures Collaterall but Collaterall Acts Difference as in the case of Wast are not Walmisley In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him the Judgement shall be but that he shall Attourn And allso he cited 3 Ed. 3. 33 Ed. 3. 18 Ed. 3. 36 Hen. 6. 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall Quid juris clamat Anderson If one who hath no Reversion bring a quid juris clamat against Tenant for life this is a forfeiture of his Estate and as you have said if in VVast the Tenant plead the Feoffment of the Plaintif or non dimisit true it is that these are no forfeitures for you know well enough that a Feoffment is no Plea and then it is void and to say non dimisit is no forfeiture Peryam The Judgement given in Plesingtons case is not well given for it ought to have been quod pro seisina sequatur si volunt as in the case of Saunders against Freeman and he cited 10 Edw. 3. fol. 32. to that intent Wyndam The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented and he sheweth that his bargain was by parol and therefore void and then no forfeiture as if in Trespass a man prays ayd as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void Praying in ayd Anderson Allthough that it be so yet the pleading is that he bargained the Reversion and then this is good by parol in London therefore there is no doubt in that point Walmisley The Books in 15 Ed. 2. 25 Ed. 3. Importâ— that Judgement ought to be given before any forfeiture can be Forfeiture before Judgement Curia Without doubt he may take advantage thereof before Judgement as well as after if the plea be entred upon record Wyndam For the point of capiantur the Book is in 2. lib. Ass Pl. 8. Br. imprison 30. in 9. lib. Ass 12. lib. Ass Pl. 33 Br. imprison 40. Anderson Two may be Disseisors Present Disseisor absent Differance
against the next Term. adjornatur but the Plaintif said then to divers Barresters that such a case was adjudged with him in the Kings Bench. Pasch xxviij Eliz. Rot. 341. between Wiseman and Brewer and another case in the Common place London Rogers versus Hunt Pasch 16 Eliz. Rot. 1544. 25. A Quare impedit was brought by Beverley against Cornwall Vtlary which was the Presentee of the Queen and the Plaintif had Judgement to recover and now the Queens Serjeant shewed that the Plaintif is outlawed and prayed that he Writ to the Bishop might be stayed and that they may have a scire facias for the Queen to shew wherefore she shall not have Execution of this Judgement Walmysley This cannot be debated now for the Plaintif hath no day in Court after Judgement and this is but a surmise Curia The Record here before us testifies that he is outlawed VValmysley Yet it is but their surmise that he is the same person VVyndam In debt upon an Oblig If the Plantif be outlawed the Queens Serjeants may pray the debt for the Queen and yet this is but a surmise And the opinion of three Justices was for Anderson was absent that they ought to stay Execution but how Processe shall be awarded or if a Scire sacias shall issue against the Plaintif or no they would be advised for the course thereof but Peryam thought that they might have a Scire facias against the antient Incumbent 4. A Quare impedit was brought by Gerard Travers and declared that his Ancestor was seised of the Mannor to which the Advowson is appendent and presented and died seised and the Mannor descended to him and so he ought to present the Defendant pleaded in Bar that the Ancestor of the Plaintif was joynt ly seised with his Wife and that she survived for default of her Presentation thâ— Lapse accrued to the Bishop who did collate Absque hoc that he died sole seised and it was moved by Gawdy that the Traverse shall be naught for he â—ad sufficiently answered to him before And the opinion of the Court Anderson being absent was that the Traverse is void because he had confessed and avowed him before and cited 5 Hen. 7. 11. 12. Bro. tit Traverse sans ceo 13. 27. BYngham brought an Action of debt upon an Obligation against Doctor Squire Cond impossible and the Condition was that if the Defendant did obtein a good grant of the next avoydance of the. Archdeaconry of Stafford so that the Plaintif might enjoy it that then c. and the Defendant pleaded that he had obteined a good grant of the next avoydance and in truth so he had but the antient Incumbent was created a Bishop whereby it perteined to the Queen to Present so that the Plaintif could not enjoy it and therefore the Plaintif moved the Court that the Defendant should amend his plea and the Court Anderson absente commanded him to do so for it seemed unto them that the Obligation was forfeit Gawdy moved for the Defendant that when the Archdeacon was made a Bishop the avoidance perteined to the Queen by her Prerogative so that it was become impossible but nevertheless he took day to amend his Plea De Term. Pasch Anno Eliz. xxix 1. THE First day of this Easter Term Sir Christopher Hatton Knight late Vicechamberleyn to the Queen and Captain of the Guard rode from his house in Holborn the Lord Burghley Lord Treasurer being on his right hand and the Earl of Leicester on his left hand and the Gentlemen Students of the Inner Temple attending upon him because he was one of the same House and with great Honor he was brought to VVestminster Hall and there in the Chancery sworn Lord Chancellor of England according to the Patent and Seal delivered unto him the Sunday before 2. THe Queen brought a Quare impedit against the Incumbent and the Bishop Abatement the Bishop pleaded that he claimed nothing but as Ordinary and thereupon Judgement Formall was given against him The incumbent dyeth sed cesset executio c. the Incumbent pleaded in bar whereupon they were at issue and this issue depending the Incumbent died and now Gawdy moved if the Writ should abate against the Bishop or no and VVyndam and Peryam clearly that it shall abate but if the Plaintif had averred the Ordinary to be a disturber then Judgement should have been executed but now he claiming nothing but as Ordinary and thereupon Iudgement given which is but conditionall upon the Plea of the Incumbent it seemeth that the Writ shall abate for there is none now to plead against the Queen But if the Bishop had been averred to be a disturber Patron then it had been otheâ—wise and Peryam resembled it to the case of 9 Hen. 6. where it is brought against the Patron and the Incumbent and the Patron dieth or the Incumbent the Writ shall not abate against the other But they commanded him to move it again when the Lord Anderson was present 3. EJectione Firme was brought by King against King and others Surrender who pleaded not guilty and now the Jury appeared and the Plaintif declared upon the Lease of one West Gawdy for the Defendant shewed that before the said Lease VVest had made a Lease for six yeares so that during that time this Lease could not be good the Counsell of the Plaintif confessed the said Lease for six years but said further that it was surrendred VVyndam demanded where that surrender was made and it was answered in London and the Land lay in Essex Was the surrender said VVyndam made in London Out of possession and he out of possession and the Land in Essex What surrender call you this And the Justices laughed at this evidence and so did the Serjeants for the Defendant concluding that it was not good without question And so the Plaintif was Nonsuite and the Iury discharged incontinently 4. SHuttleworth shewed how Hurleston was Plaintif in an Ejectione Firme Traveâ—s and declared upon the Lease of one Pinchine to which the Defendant said that before P. had any thing c. one E. Roberts was seised in Fee in right of Fayth his Wife and so being seised made a Lease to the said P. If the said E. R. so long should live whereby P. being possessed made a Lease to the Plaintif and shewed that the said Roberts was dead and the Defendant as servant to the said Fayth entred and Ejected him now he demanded what he should Traâ—erse in this Plea VVyndam This is a shifting Plea Peryam Is this Plea true Shuttleworth No Sir Peryam Then you may trice him upon this Plea for you may Traverse the seisin in the right of his Wife without doubt or you may Traverse any other part thereof and VVyndam and Rodes agreed clearly thereunto for the seisin Anderson absente 5. AN Action of the case was brought upon an Assumpsit Jeofayl the
Defendant pleaded non Assumpsit and the issue was found for the Plaintif and now Gawdy spoke iâ— arrest of Judgement because the Plaintif had alledged no place of the Assumpsion No Place of the assumpsion and he said that when an Issue is mis-tried it hath been adjudged here that it is not helped by the Statute and here is no place alledged whereupon the Tryall may be Peryam The opinion of many hath been that the Statute shall be taken most strictly but in my opinion it shall be taken most liberally so that if a verdict be once given it shall be a great cause that shall hinder judgement wherefore allthough no place be shewen yet when it is tryed and found it seemeth that he ought to have judgement and so was the opinion of the Court Anderson absente 6. AN Action upon the case was brought in Staffordshire by Whorwood against Gybbons Consideration how in an account between them the Defendant was found in Arrerages and in consideration that the Plaintif differreret deem solutionis debiti praedicti per parvum tempus the Defendant did assume to pay it and upon Non assumpsit pleaded it was found with the Plaintif and it was alleged in arrest of judgement that this was no consideration And the opinion of the whole Court Absente Anderson was that insomuch as the Proviso was made by him by whom the debt was due that it is a good consideration and that it is a common course in Actions upon the case against him by whom the debt is due to declare without any words in consideratione And allthough that Gawdy moved that parvum tempus may be three or four hours or dayes which is no consideration yet for the cause alleged the Court sayd that they saw no cause to stay judgement 7. AN Action upon the case was brought for these words Scandal Thou dost harbour and maintain Rebels and Traitors and the issue was found for the Plaintif and the judgement was entred by the Pregnotary yet notwithstanding Walmisley moved the Court to have regard unto it for the Action was not maintainable for if a man keâ—p Theeves and do not know them to be Theeves he is in no fault and an Action for these words will not lye and the Plaintif hath not averred that the Defendant sayd that the Plaintif knew them to be Traytors Peryam The Action in the Kings-bench was that the Plaintif kept Theeves and there if there be no such averment the Action is not maintainable Maintain but here is the word Maintain and that word implyeth a thing prohibited and therefore not sufferable and therefore I think the Action is maintainable and by the opinion of VVindham Peryam and Rodes the Action was well brought Anderson absente propter agritudinem 8. AN Action upon the case was brought by Richard Body against A. Consideration and declared that whereas Kary Raleigh was indebted to Body in 14l and the said A. was indebted to Raleigh in 50l in consideration that the said K. R. allocavit eidem A. 14l promisit ei ad exonerandum eâ—ndem A. de 14l parcell praedict 50l the Defendant did assume to pay to the said Plaintif the said 14l and the Court was moved if this were a good consideration to bind the Defendant And the opinion of all the Court Anderson absente was that the Consideration was good for that he was discharged of so much against Raleigh and Raleigh might also plead payment of the 14l by the hands of the Defendant 9 AN Action of Assault and Battery was brought Assault and the Defendant was condemned by nihil dicit and a Writ to enquire of damages went forth and then the Attourney of the Plaintif died and another Attourney without Warrant prayed the second Judgement and Execution Warrant if this shall be error or no it was moved by Fenner And the Court gave their opinion that if in an action after Judgment the Attourney dye a new Attourney may pray Execution without Warrant but in this case because that he died before the second Judgement it seemeth that he ought to have a Warrant of Attourney for the first Judgment is no finall Judgement And the Pregnotaries said that if after the first Judgement one of the parties had died the Writ should abate quod fuit concessum per curiam And also Fenner moved that this shall not be within the intent of the Statute of Jeofayles which speaketh of Verdicâ—â— Verdict for this shall not be said a Verdict whereto the Court agreed for a Verdict is that which is put in issue by the joyning of the parties 10 A Woman brought an action Covenant and she Covenanteth that she shall not do any act to repeal to discontinue to be nonsuit or countermand this action and hanging the Writ she takes a husband whereby the Writ abateth Now Fenner moved if she had broken the Covenant VVindam If one be bound that he shall not attorn and he make an Attornment in Law Attornment the Obligation is forfeit without question Assignment Rodes If I be bound not to make in Assigâ—ment of such a thing and I devise it by my will this is a forfeiture as it is in 31. H. 8. Fenner there is a case in Long 5. E. 4. If one be bound to appear at the Sessions c. and. I am to make a plea in this case and I would know your opinions VVindham You may plead according to the truth of your cause for that shall not change the Law therefore plead what you list 11. DEbt was brought upon an Obligation Condition the Condition was to perform Articles contained in an Indenture and one Article was that the Defendant Sir William Drury should plead the generall Issue or aâ—issuable Plea or such a Plea in quo staret aut persisteret within seven dayes next ensuing The Defendant sayd that he pleaded such a Plea and shewed what and averred that it was sufficient and issuable within seven dayes The Plaintif demanded judgement if to this Plea he shall be received for he appeared in Michaelmas Term in which he ought to have pleaded and took imperlance over unto Hill Term And Fenner shewed that in truth an issuable Plea was pleaded and drawn in paper in Mich. Term and the Plaintif replyed and the Defendant rejoyned and the Plaintif surrejoyned and theâ— by assâ—â—t in Hill Term all this was waved and an imperlance of the other Term entered forfear of a discontinuance and now he would have the Obligation of five hundred pound forfeited by this And the opinion of the Court Anderson absente was that the Obligation 〈◊〉 was forfeit for the Plea ought to have been entred of Recordâ—◠〈…〉 be bound in an Obligation to appear here at a certain day Appearance entred allthough he do appear at the same day yet if his appearance be not entred upon Record his Obligation is forfeit Peryam If the Plaintif deny that
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
be Fidi Rodes I know a Wife which is called Troth in English and she was called Trothia in Latin and it was good And all the Court adjudged this Writ good here 11. AN Action upon the Statute of Winch. was brought against a hundred in Gloucester Hue and 〈◊〉 and the Jury found a speciall Verdict viz. that the money was delivered to a Carrier of Bristow to be carried to London who packed it up And as he was on his journey certain Malefactors came to him in an another Hundred and there took his Horse and Pack and led him into a Wood within this Hundred against which the action is brought And if this Hundred be guilty or no they prayed the advise of the Court And all the Justices agreed that this was a robbery in the first Hundred and not in the second for upon the first taking he was robbed but if the Carrier had led the Horse himself Possession then it should be adjudged to be in his own possession and no robbery untill he came into the second Hundred and if a man have money and the Malefactors take him in one Hundred and carry him unto another Hundred and there Rifle him this shall not be a robbery in the first but onely in the second Hundred for he is allwaies in possession per totam Curiam and Judgement was given accordingly So of the purse picked in the Kings Bench and the thief taken with the manner but a key being fastened to the purse still stuck in the pocket and 2 Justices against two that the man was still in possession of his purse and so no robbery 12. WAlmisly shewed Termor how a woman brought Dower against her two daughters and another and in truth the third was but a Termer and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term for they all have made default at the grand cape and now he prayed to be received and shewed cause that the Husband made a lease for yeares and after the Lessee levied a fine to the Lessor and they granted and rendred back again to the Lessee for the same yeares rendring the same rent and the Statute of Gloucester is if the Farmour have c. that is if he may have covenant as in 19 Ed. 3. and here he may have covenant Ejectione firme and prayed to be received and shewed his plea. Shuttleworth You are at no mischief for you shall have an ejectione firme if you be ousted where she hath no cause of Dower Walmisley But we shall be put out of possession which shall be no reason Anderson I hold that a Termer may falsify by the Common law Falsify Shuttleworth But his lease is after our title of dower Lesser may plead destruction of dower Peryam although that it be after yet if he have matter which goeth in destruction of the Dower he shall falsify well enough as if she have title of Dower and five yeares pass after the fine levied And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession but here the Termer is named ideo quare And after at another day Shuttleworth moved it again Resceit of the partie to the Writ and said that the Termer shall not be received because he is named in the Writ and the Court was of the same opinion then but they said that he might plead speciall non tenure Shuttleworth first he ought to save his default for he commeth in upon the grand cape Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there Shuttleworth Then I shall have judgement against the two which made default at the grand cape Conusance Curia you had best be advised lest the Writ should abate by non tenure of parcell Cemurier Shuttleworth by my Conusance of non tenure of parcell Difference all shall abate but if I demurr upon his plea then it shall abate but for one parcell 13. LEonard White brought a Formdon in Discender and declared of a gift in tayl made to his father Estoppell who died and the land descended to the elder brother of the Demandant who also died without Issue and so conveyed to himself as heir in tayl c. The Tenant pleaded that the elder brother had Issue a Daughter who levied a fine to him and he relied upon the fine and proclamation Inducement doth 〈◊〉 make a plea double Walmisly this Plea is double the one is the Issue the other the fine Curia forasmuch as he cannot come to the one without shewing the other it shall not be double also here he relieth upon the Estopple vide 18. E. 3. 25. Tit. Gard. per Wylly 14. A Formdon in descend by three brethren for lands in Gavelkind they were at Issue upon Assetz descended to the Demandants Assets in Gavelkind And the Jury found a speciall Verdict that the Father of the Demandant was seised of those lands and by his Testament devised them to his three sonnes now Demandants and to their heires equally to be divided And if this shall be said a descent to them or no was the question because the Law would have done as much and therefore it shall be said Assetz But all the Court held the contrary and that they shall be joynt-Tenants or Tenants in common and then they shall not be in by the descent and so no Assetz and Anderson said that if a man devise to his sonne and heir in tayl he shall not take it by descent Peryam if a man may have any more benefit by the Devise than by the descent then he shall take by the Devise Eadem lex per Curiam if he devise his lands to his two daughters and heires they shall be joynt-Tenants and no coparceners è contra if he have but one son or one daughter only 15. IN the Exchequer Chamber all the Justices of the Common Pleas and the Barons of the Exchequer Venus were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator who pleaded plenè administravit and the action was laid in Barkshire at Newbery and the Plaintif averred that the Defendant had Assetz at Westwood in the same County and the venire facias was of Newberry whereas it should have been of Westwood And this he assigned for Error And all the Court agreed una voce that it was Error and so the judgement was reversed but the Assetz being transitory might have been assigned at Newbery 17. ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him Amendment and assigned for error that the judgement was quod recuperet versus Edward Seymour
and did not say praedict Edward Seymour And all the Justices agreed that this was amendable And so the first judgement was affirmed 18. ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench Rent suspenpended and the Case was such A man makes a lease of ten acres for ten yeares rendring rent upon a Condition the Lessee grants 5. acres thereof to a stranger for five years and after grants the residue of the years in the five acres to the Lessor And after the Lessee broke the Condition whereby the Lessor re-entred and if he may do so or if the Condition was suspended or no was the question because he accepted a future interest in parcell Future interest Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended and now this was assigned for error And all the Justices except Anderson and Peryam held that it is not suspended before he had entred by force of his lease Anderson If I make a lease as here upon Condition and waive the possession this may be suspended before his entrie Cook This is another case Peryam But the reason thereof commeth well to this case And afterwards because the said two Justices dis-assented from the rest it was adjourned over 19. ANother Writ of Error was there brought upon a judgment given in the Kings bench Trover And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices If a man lose his goods which come to the hands of another he converteth them to his own use and after the owner dye Day and place of conversion whether his Executors shall have an action of the Case for this Trover and whether he ought to shew the place and the day of the Conversion or no And the Counsellours at the bar said that he ought to shew both for so it was adjudged where an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation and it was found that he had broken the seales c. and because he did not shew the time and place of the Conversion he could never get Judgement And now the Justices were of the same opinion but yet Anderson seemed to doubt Peryam Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator and the doubt is if they shall have an Action upon the Case Manwood if a man hath another in Execution for debt and the Gaoler suffer him to escape and after the Recoverer dyes shall his Executors have an action against the Gaoler Cook No. Peryam So it seemeth But Anderson Manwood and VVindam clearly to the contrary and that they shall have debt upon this Escape Cook But not an Action upon the Case at the Common Law and here by his own shewing he might have Trespass vi armis and therefore not this action De Term. Trinitat An. Reg. Eliz. xxx 1. RAlph Heidon brought a Writ of Right against Smethwick and his Wife Droit of two parts of forty Acres of Land in Surret and they pleaded that one Ibgrave was seised and devised it to his Wife now one of the Tenants for term of her life the remainder to Benjamin Ibgrave in fee Praying ayd in an Assise which was his heir and dyed and they prayed in ayd of B. I. who came and joyned to them and thereupon they came and pleaded to the grand Assise and the first day of this term the Assise appeared and sixteen were sworn whereof four were Knights and the residue were Squires and Gentlemen and the title was all one as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part And the opinion of all the Court clearly that it is not ayded by the Statute for there is not any certainty in the Grant Name certain but if he had given it a certain name as green Acre then allthough he had mistaken the Parish yet it had been good enough Peryam The Assise may goe their way and they did so and after they being agreed came again to the Bar and the Demandant was called and did not appear whereby the Tenant prayed the Court to record the Nonsuit and it was done Curia All is one as if he had appeared Non-suits for this Non-suit is peremptory for ever the issue being joyned upon the meer droit aliter if the issue had been joyned upon any collaterall poynt 2. IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass Challenge VValmisley This Inquest you ought not to take for it is favourably made by the Sherif which is within the distress of one of the Plaintifs and shewed how the Sherif held certain lands of a Mannor now in question whereof Lister hath possession and allso hath certain lands for term of years of him and the Plaintifs moved that he ought to take one cause onely 1 Cause Curia He may allege both for the challenge is that he is within the distress and the allegations are but evidence to prove it and then the Plaintif sayd not within his distress whereupon the Court appointed Tryers and the Defendant sayd that all the Jury are favourable Tryors refused and prayed Tryers de circumstantibus Gawdy That cannot be but onely in an Assise and cited 9 Edw. 4. Curia We cannot appoint other Tryers in this case but only of the Jurors wherefore let the fourth and seventh be Tryers but you may refuse them and take others if you will and thereupon the Defendant refused the fourth whereby the third was appointed and they found the Array favourably made and therefore it was quashed 3. A Recovery was had by Arthur Mills against Sir Owen Hopton of divers lands twelve years passed Amendment and by the negligence of the Attorney Warranty of Attorney no Warrant of Attorney was entred for him and now suit was made to the Justices that it might be entered and they all consented thereunto and so it was entered incontinently but first the party made a corporall Oath that he had retained an Attorney and that this was the negligence of his Attorney 4. IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor Arbitrement and sayd that there was an Error in the Record Error not assigned which was not assigned and prayed that it might be examined allthough that it was not assigned because that it appeared in the Record which was agreed to by the Court. And then he shewed the case that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others and they Arbitrated that the Plaintif in this Writ of Error should release to the now Defendant all Actions which he might
the Declaration ought to agree with the Writ 14. A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster Administrators in an Action upon the case brought against one as Administrator And did not shew by whom the Administration was committed which he ought to have done by 32 Hen. 6. 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant And whether this were a good consideration was another doubt and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid And at this day it was held that when an Action is brought against an Administrator it need not be shewed but in an Action brought by them clearly they ought to shew it And for the other matter whether the Plaintif needed to aver that they had Assets besides the Debts c. it was said that this ought to come and be shewn on the other part And for that Woodwards case in the Commentaries was cited And the next morning Puckering shewed that he had a report of a Judgement given in the Kings Bench that it is not necessary to shew that they had Assets besides the Debts and Legacies c. And therefore he prayed that the Judgement may be affirmed And so it was for Rodes had seen the report of Puckering according to his saying and testified the same whereby Judgement was here given against the Administrator Anderson being in the Starchamber 15. IT was agreed by all the Justices Herriot that for a Herrioâ— service the Lord cannot distrein out of his Fee no more than for a Rent but he may seise a Herriot Custom out of his Fee 16. A Man was outlawed Vtlary and the Sherif retourned the Proclamation tali die omnes singulas proclam fieri feci And did not shew that such a day he made the first and such a day the second c. and this was assigned for Error and prayed that the Utlary night be reversed and so it was 17. FLeetwood shewed that this case came in pleading Rent-service A man had a Rent service payable at the Feast of St. Michael And on Michaelmas day he died about ten of the clock in the morning now he demanded whether his Heir or his Executor shall have the Rent Anderson Hath he not all the day to pay it and upon condition to pay such a sum he may tender it any time before Sun-set Peryam But if the party accept the payment in the morning it is good Curia If it be a case in this Court you ought to demur as your case is and not to be thus Politick 18. A Writ of Error was brought upon a Judgement in the Kings Bench Abatement and one of the parties died hanging the Writ And the Court held this to be an abatement of the Writ and that he ought to purchase a new Writ De Term. Mic. Anno Reg. Eliz. xxx xxxj 1. AFormdon was brought against Haselwood and Haselwood Abatement and the one took the Tenancy of the one Moity Dier 3. 4. Phil. Mar. 134. Absque hoc that the other had any thing therein and pleaded in abatement of the Writ and the other took the Tenancy of the other Moity and vouched Shut Shall I maintain my Writ or answer to the Bar of the other Tota Curia You must needsmaintain your Writ Anderson Where the pleading is such as your Writ cannot be good there it is a ground that you ought to maintain your Writ Praecipe quod reddat but if a praecipe quod reddat be brought against two and the one plead Nontenure and the other accepts the entire Tenancy Absque hoc c. and doth plead in Bar there you may answer to the Bar because there peradventure the Writ is good notwithstanding As if a Writ be brought against the Feoffor and Feoffee upon condition or Morgagor and Morgagee and so there is a diversity 2. IN a Quare impedit brought by the Queen against the Archbishop the disturber Vtlary and the Incumbent the disturber pleaded that long time before he had any thing in the Advowson by whose Utlary the Queen is intitled King Ed. 4. was seised of the Honor of Haststings and granted it to the Lord Hastings in Fee and further granted omnia bona catalla omnium teneutium ejusdem honoris sive manerii residentium non residentium qui forent utlagati c. and so conveyes the Honor by descent to the now Lord Hastings and did not aver that he which was Utlawed Averment was a Tenant of the Honor. Curia It is not good without doubt for otherwise he is not within compass of the Grant and therefore a day was given by which if the Defendant did not shew better matter the Queen should have Judgement 3. IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford Devise and other Defendants Glocester And upon not guilty pleaded Hit 30. Eliz. rot 188. the Jury found a speciall Verdict viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell and of divers other Tenements within the same Parish and within a place known in the same Parish which is neither Town nor Hamlet called Ebney in which Samford had a Tenement which hath Lands time out of mind perteining thereunto lying as well in Ebney as in Stone-house which Tenement is in the Tenure of one Bucher by Copy of Court-roll according to the custom of the Mannor Afterwards William Samford deviseth to his Brother after the death of Bucher all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney Now the question was whether the Lands in Stone-house perteining thereunto shall pass or no And the famous Cook argued that it should pass for this word Tenement referreth to his dwelling which is in Ebney and not to the place where the Lands lie And therefore he said that words ought to have relation ut ne impediatur sententia sed ut res magis valeat quam pereat Quare impedit and he cited 4 Ed. 3 in a Quare impedit quod permittat praesentare ad ecclesiam de Mourton Majorem and the Defendant demanded Judgement of the Writ for false latin because of Majorem and yet it was adjudged good for it shall be referred to ecclesiam and he cited 19 Ed. 3. 3 Ed. 4. Allso it passeth by this word appurtenances for there was such a Chambridgshire case here within this Twelve-month where a man gave instructions to another to make his Will in this form I will that B. shall have my House with all my Lands thereto apperteining And the other made it in these words I devise to B. my house with the Appurtenances and it was adjudged that
But if a man be indebted to me and after I am Outlawed and then the King releaseth this debt Release of the King of the debt of one outlawed and then I bring a Writ of Error and reverse this Outlary I shall be restored to my action again And here he hath shewen to us a peece of cunning for when he pleads the Outlary in us he hath pleaded the Record specially for otherwise we would have sayd Speciall pleading nul tiel record and then it being reversed it should have been certified for us as there is a case in Dyer Then here allthough that be in by a new presentation yet all the words of our Writ are true in this Scire facias but I grant that Executors shall have a Qnare impedit for a disturbance done to their Testator Executors shal have a Quare impedit Anderson The case in Dyer is thus reported That I when I was the Queens Serjeant and Gerrard now Master of the Rolls then being Attorney of the Queen were of opinion that the Clerk of another shall not be removed and concerning that matter I held then as I doe still that in some cases the Clerk shall not be removed and in some cases he shall for if he come in under the title of the Plaintif Title peramont and since the same then he shall be removed but if he come in by title Paramont he shall not be removed and here for that this is done hanging the Writ it seemeth that he shall be removed For if a man bring a Praecipe and hanging the Writ the Tenant alien yet the recovery is good against him Tenant in a Praecipe aliens and shall allso bind every one under him Peryam That point is clear enough but the question is if by the Outlary the Plaintif hath forfeited his presentation to the Queen For if it be so then this is a new title for the Queen Anderson What reason is there in that when it was an apparent practise of the Defendant to resign for otherwise she could not have presented Plenarty the Church being full before Peryam The practise is not good without doubt but what is the Law Anderson The Law is that the Defendant by his resignation shall never extort the Plaintif from his execution Peryam The point is if by the Outlary the Queen have a new title by reason of the Plaintif and I doubt much thereof if by the judgement she shall have the presentation Anderson I am resolved that there is not any colour in the case but what say you Rodes Truly I hold that the Plaintif shall remove the Clerk Windham And in my opinion it is clear enough that by the reversall of the Outlary the Plaintif shall have his presentation Reversal Anderson Then let Judgement be entred for the Plaintif Peryam In the name of God if you be agreed against me 10. A Writ of Partition was brought by Henry Tannworth Partition and Christian Tannworth against John Tannworth their elder brother for lands in Hawlesteed alias Elsted in Leicester-shire because that Halsteed is parcel of the Soak of Rothelay wherein there is such a custom Members of a Mannâ—r that the lands shall equally descend to all the heirs males and in giving of evidence Walmisley sayd that the members of a Mannor are other Towns in which the Mannor extends and Puckering sayd Soak quid that at this day the Queen may make a Soak For it is nothing else but a Precinct to which divers Mannors come to doe suit and as a great Leet containing divers other Courts and the Evidence was strong for the Tenant for he shewed by plain proof that this was never parcell of the Soak allthough that it was within the ancient Demeasne of Rothelay Domesday as it was proved by the Book of Domesday which was there shewen and a Clerk of the Exchequer read it for other Clerks could not and he sayd and so sayd the Serjeants and the Tenant delivered to Anderson and Peryam an ancient Book of the time of Ed. 2. for their remembrance wherein in 4 Ed. 2. in a nuper obiit it is sayd that if the Lands which have been departible and departed come into the Lords hands by Escheat they shall not be departible in his hands Partible lands Escheat vel in manibus alicujus alius perquisitoris non possunt partiri And he sayd that such was the opinion of Sir Thomas Bromley the last Lord Chancellor upon hearing of the matter there whereby when the Jury came to give their Verdict the Plaintif was Non-suit 11. SHuttelworth shewed how Robert Hughson brought an Action of Debt against B. Office of the Court. as Administrator of F. and declared upon a simple contract made by the Intestate Pasch 30 El. rot 421. and the Defendant pleaded plene administravit and it was found by Verdict against him And now in arrest of Judgement the Defendant alleged that the Action is not maintainable against him upon a simple contract And Shuttelworth thought that now he is past that advantage because he did not shew it in pelading and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question Rodes It appeareth to us judicially that no action will lie upon a simple contract against Executors or Administrators wherefore then ought the Plaintif to have Judgement Shuttelworth Because by his Plea he took upon him notice of the contract and by 46 Ed. 3. where the Administrator was privy to the retainer of a servant he was charged by a simple contract Rodes Here he did not take notice and in 15 Edw. 4. The Court ex officio abated the Writ Shuttelworth This is by Littleton onely Rodes The case is ruled and Littleton gave Judgement so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper A common Ianholder if he be not named Hospitator allthough he plead in bar yet we ex officio ought to abate the VVrit Peryam If he be no Hosteler the Action lyeth not against him And if an Action of Debt be brought and doe not shew the place of the Obligation if the other plead a release this is good enough Shuttelworth So is 18 Edw. 4. A Deâ—d not shewed in Court 6 Hen. 7. Rodes If a man bring an Action and the Defendant plead in bar by Deed and do not shew the Deed and the other pleads in bar and doth not except thereunto but they were at Issue this is Error for we ex officio ought to have adjudged it evill and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case Then Shuttelworth sayd privily to his Client I doubt we shall doe no good by our Action Anderson being then in the Star-chamber After at another day Anderson rehearsed the case and sayd
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
in arrest of Judgement after Verdict for the Plaintif and the Court seemed prima facie that they are not But after the case was moved by Harris for the Plaintif and then by the consent of all the Court Judgement was given for the Plaintif And Popham said that to say that an Attorney will overthrow his Clients cause is an Actionable slander 22. COllet brought a Writ of Error against Marshe Error for non summons upon a Judgement given in the Common place in a praecipe quod reddat And assigned for Error for that by the Statute de 31 Eliz. cap. 13. it is inacted for the avoiding of secret summons in reall Actions without convenient notice of the Tenants of the Freehold that after every summons upon the Land in any reall Action fourteen daies at the least before the Retorn thereof Proclamations of the summons shall be made on a Sunday at or near the most usuall door of the Church or Chapell of that Town or Parish where the Land whereupon the summons were made doth lie and these Proclamations so made as aforesaid c. ut in Statuto And in this case there was not any Proclamation made at the Church door And whether the Plaintif shall have an Averment against the Sherifs Retorn was the question And adjudged that the party shall not have the Averment against the Retorn of the Sherif No averment against a Sherifs retorn For if the Retorn be false the party shall have an Action upon the case against the Sherif 23. POrtman brought an ejectione firme against Willis and a speciall Verdict was founâ— that Roger Hill was possessed of a Lease for years and gave divers personall Legacies to severall persons and gave all his other goods and Chattells to his Wife and whether the Wife shall have this Term being a Chattell reall or not was the question 24. GRay brings Trespass against Trowe Fish in a pond for entring into his Close and taking of Fish out of a Fish-pond with nets and other Engines The defendant pleaded that long time before the Trespass was done one Thomas Grey was seised of the Close and Pond and put the Fishes into the Pond and after the said Thomas Grey made the Defendant his Executor and died And he as Executor took the said Fishes Chattells descendable and upon that the Plaintif demurred and it was adjudged that the Heir shall have the Fishes in the Pond and not the Executors Felony for they are Chattells descendable but by Clinch it is Felony to take them Popham If they be in a Trunck so that they may be taken out by the hands of men without nets or other Engins there it is Fellony but otherwise it is not Fellony 25. THynn brings Debt against Cholmeley for 300. p. of arrerages of a nomine poenae Nomine poenae against an Assignee and declared of a Lease for years made by him to one Agar rendring Rent And if default of payment be made of payment of the said Rent at any day in which it ought to be paid that then so often the said A. his Executor and Assignes shall pay 3. s 4. p. for every day untill the aforesaid Rent so behind shall be satisfied And shewed how the Rent was behind and not payed for two years But doth not say that he demanded the Rent Jackson The sum demanded is by computation more than is due reckoning but iij. s iiij d. for every day that the Rent is arrear And if that be his intent he demands too little for in two years that will be infinite Gawdy It seemeth that he shall not have but onely iij. s iiij d. for every day Fenner I think he ought to make demand of the Rent or otherwise he shall never have the nomine poenae Gawdy No truly no more than in debt upon an Obligation and he cited 21 Hen. 6. 21 Edw. 4. 22 nomine poenae Fenner The cases are not alike In demand for in debt upon an Obligation there is a duty but otherwise it is of Rent And it was agreed that the action well lieth against an Assignee in this case 26. HUmphrey Parlor brought an Action upon the case for words against I. S. And the words were these Slander viz. Parlor was in Prison in a Jail for stealing of Mr. Piggots Beasts and it was pleaded in arrest of Judgement that the Action doth not lie forasmuch as it is not presciely alleged and affirmed that he stole the Beasts But by Implicatior Nevertheless Judgement was given for the Plaintif for by Fenner if he had said he had been in Prison for suspition of stealing Mr. Piggots Beasts no Action will lie for a treue man may be suspected But here is a direct affirmance of stealing For a man cannot be imprisoned for stealing if he do not steal 27. THe Earl of Pembrâ—ok brought an Action upon the case against Henry Barkley militem Proviso and the case in effect was such that the late Earl of Pembrook Father of the now Plaâ—ntif was seised in Fee of the Mannor of D. in comâ—tatu Somerset and by reason of that he had the Office of Liuetenantship in the Forrest of Cromcelwood and of all the Walks in that And by reason of the said Office had all the commandement of the game within the Forrest and he so seised the Earl granted to Sir Maurice B. Father of the now Defendant and to the Heirs Males of his body the Keepership of a walk called S. in the West part of the Forrest and in the said Deed of grant were such words Provided allwaies and the said Sir Mawrice B. doth Covenant and grant to and with the said Earl of Pembrook that it shall and may be lawfull to and for the Earl his Heirs and Assignes to have the preheminence of the game within the said Walk Provided allso and the said Sir M. B. doth further Covenant and grant to and with the said Earl That neither he the said Sir M. his Heirs or Assignes shall or will cut down any Timbertrees growing within the said Walk And after Sir M. B. died and the said Sir H. was his Son and Heir and cut down Trees within the Walk And the Lord of P. commanded his servants to enter into the said West-walk and there to Walk And Sir H. B. did disturb them and upon that the Action was brought and the point of the case was if the wordes in the second Proviso make a Condition or but a Covenant Gawdy I doubt of the case for all the question of the case is if it be a Condition or but a Covenant And as I am now advised â—â—hit is but a Covenant and no Condition For in all cases where this word Proviso ought to make a Condition there ought to be a perfect sentence to explain the meaning of the parties or otherwise it is no Condition As if the wordes are provided allwaies that if the Rent be behind and
say no more now this is no Condition And here all the sense comes in after the words of Covenant and these words are the words of Sir M. B. And for that it seemeth no Condition for if the words had been And it is provided by Sir M. B. there it is clear no Condition But if in a Lease for yeares be words and the Lessee do provide that if the Rent be behind that then the Lessor shall re-enter there I agree that this makes a Conditon And in the case put by my Brother Williams a Lease made provisum est quod non licebit to the Lessor to grant over upon pain of forfeiture there is a good Condition But otherwise it shall be if sub poena forisfacturae were omitted Fenner I think it is a a Condition for all the words put together explain the meaning of the parties as if he had said upon Condition And the Lessee doth Covenant and grant and none will deny but that this is a Conditidition Clinch seemed that it is no Conditon for the words may not be used as a Covenant and allso as a Condition As where a grant is by Deed by words of Dedi concessi confirmavi the Deed may be used as a Grant or confirmation at the Election of the party But it cannot be used in both sorts Popham I think that the Proviso as it is here placed will make a Condition and yet I will agree that a Proviso shall be sometimes taken for a Condition and sometimes for Explanation and sometimes for a Covenant and sometimes for an Exception and sometimes for a Reservation and it is taken for a Condition As if a man Lease Land provided that the Lessee shall not Alien without the Assent of the Lessor sub poena forisfactura here it is a Condition and if I have two Mannors both of them named Dale and I Lease to you my Mannor of Dale Provided that you shall have my Mannor of Dale in the Occupation of I. S. here this Proviso is an Explanation what Mannor you shall have and if a man Lease a house and the Lessee Covenanteth that he will that maintain Provided allwaies that the Lessor is contented to find great Timber here this is a Covenant and if I Lease to you my Messuage in Dale provided that I will have a Chamber my self here this is an Exception of the Chamber and if I make a Lease rendring Rent at such a Feast as I. S. shall name Provided that the Feast of St. Michael shall be one here this Proviso is taken for a Reservation and in our case if the words had been provided allwaies that the Donees shall cut down no Trees and the Lessee doth Covenant he will not fell any here every one will agree that it is a Condition and allso a Covenant And in this case in my opinion this tant amounts Serjeant Williams and Cook Attorney for the Plaintif Atkinson and Tanfield for the Defendant 28. LAssels the Father Sâ—ander brought an Action upon the case against Lassels the Son for words viz. he quendam Thomam Lassels fratrem ejusdem Def. innuend stole a Mare and you innuend querent knowing the same conveyed her into the Fenns to my Brother B. his house Clinch and Gawdy seemed the Action maintainable Fenner econtra 29. A Man was indicted for stealing of a hat and a band and other such things Indictment And the Prisoner said that he was before that time indicted for goods stolen the same day and time and acquitted Gawdy said he may not be severally indicted for goods stolen at one time As if a man steal a dozen of silver spones he may not be indicted for two in one Indictment and for other two in another sic de singulis Clinch accord Fenner Yes truly for it was the case of Thomas Cobham the which was indicted for goods taken in two shipps and acquitted and after condemned for other goods taken at the same time 30. PEarce brought an Action upon the case against Barker Prescription by a Copy-holder and delared how within the Mannor of Dale time out of mind there had been divers Copyholders and during the same time there hath been a usage within the said Mannor That every Copyholder for every Acre of Land shall have Common in such a Wast of the Lords for two Beasts And shewed how the Plaintif is possessed of twenty Acres and by reason of those ought to have Common for forty Beastâ— And there hath the Defendant being Lessee for years of the same Mannor one Conigray within the same Wast by which the Conies have so digged the ground that his Beasts cannot have Common as they were wont to have Fenner A Copyholder may not prescribe but in right of his Lord but now the Lord pro tempore is party to the action and whether this will alter the case or not I doubt Glanvile Albeit the Copyholder may not prescribe but in right of his Lord yet by way of usage as this case is it hath been adjudged that he may make his title 31. A Ruudell was heretofore arraigned upon an Indictment of willfull Murder for the death of one Parker Indictment and was found not guilty of Murder but guilty of Manslaughter for which he pleaded the generall pardon de 35 El. And the Queens Attorney alleged That in the sayd generall pardon there is an exception of all persons being in prison by the commandement of one of the Privy-counsell and said that the sayd Arundell was committed by the Lord Chamberlain for suspition of the sayd Felony and for the same in prison at the time of the Parliament Commitment and so a person exempted To which it was sayd by the Defendant that long time before the sayd Parliament and after the sayd commitment by the Lord Chamberlain there went out of this Court a Corpus eum causa by force of which he was sent into this Court with the cause of his commitment and was for the sayd offence committed by this Court to the Marshalsey and there was remaining at the time of the Parliament by force of the commitment of this Court and it seemed by the better opinion of the Court if a man be committed by a Privy-counsellor and removed by Habeas corpus and committed by this Court he shall be now sayd imprisoned by commitment of this Court and not of the Privy-counsellor 32. STaugnton brings a Writ of Error against Newcomb upon a Judgement given in Debt in the Common-place Error and the first Error assigned was for that the originall Writ was xx l. and all the mean Process were so likewise but when the Defendant appeared to the Exigent the entry was quod defendens obtulit se in placitâ— debitâ— decem librarum where it ought to be xxl. Dodderidge I think it shall be amended for it is the misprision of the Clerk and to prove that he cited 37 Hen. 6. 44. Ed. 3. 18. But upon
Plaintif was non suit And it was now moved whether the Plaintif ought to have a new venire facias upon the first issue insomuch as the first venire facias did not issue forth upon the first Record and no non suit Et opiniâ— Curiae that he may go to a new triall but whether he shall have a venire facias de novo or that the old venire facias should serve the Court doubted for that the first Jury was sworn 38. FOrd brought an Action of Debt against Glanvile and his Wife Administratrix bonorum Catellorum qua fuerunt Johannis S. durante minore aetate T. S. Abatements The Defendant pleaded that hanging this action against them the said T. S. during whose nonage the Wife was Administratrix came to full age and if this were a good Plea or no was the question And adjudged a good Plea 39. UPon an information against Sr. Christopher Blunt a Juror was challenged for want of Free-hold Free-hold of a Juror and by examination was found that he had 20 shillings a year Fenner and Gawdy doubted whether this be sufficient Free-hold or not Popham and Clinch held it is sufficient for the Statute binds not the Queen and by the Common law if he had any Free-hold it was sufficient Fenner This is a Statute made for the benefit of the Common-wealth and therefore the Queen shall be bound by it though she be not named in it Gawdy Me thinks every Juror ought to have 40. s Free hold at the least by the Common-Law No bill of enception against the Queen Cook No certainly and if they doe take the Law to be so they may have a bill of exception Tanfield Wee cannot have a bill of exception against the Queen see the Statute of 1 Hen. 5. cap. 3. that that is between party and party and the Statute of 8 Hen. 6. the preamble is between party and party But Popham commanded the Jury to be sworn but Gawdy would have sent to the Justices of the Common Pleas for their opinion but the Juror was sworn by Commandment of Popham against the opinion of Justice Fenner 40. PEr Cook Proxime future If I am bound in an Obligation in Lent upon Condition to pay a lesser sum in quarta septimana quadragesima proximae futurae This money shall be paid in Lent Twelvemonth after And so it is upon the Feast day of St Michael I am bound to pay a lesser Summe upon the Feast day of Saint Michaell prox futur without question said he it shall be paid the Twelvemonth after and not the instant day 41. THE Duke of Norfolk Morgaged certain Lands to Rowland Haward Demand Alderman of London upon Condition that if the said Duke do repay to the said Alderman a certain Sum of money That then the Duke might re-enter and after the Duke was attainted before the day of payment Condition given to the Queen and all his Lands Tenements and Conditions were given to the Queen And the question moved at the Table in the Serjeants Inne was whether Sir Rowland ought now to make a Demand of the money upon the Land or to demand that at the Receipt of the Exchequer or that the Queen ought to make the tender upon the Land And it was agreed by all the Judges and Serjeants at dinner that the Queen ought to make no tender But the Alderman ought to make his Demand at the Exchequer and not upon the Land 42. REdfrein agaiust I. S. an Action of the case was brought for words Slander viz. I was robbed and you were privy thereunto and had part of my money It was pleaded in arrest of Judgement that the words will not maintain an Action For that a man may be privy to a robbery after that it is made and have part of the money by honest meanes and therefore it is no slander but the whole Court held the contrary Infected Smell of robbery as well as you are infected with a robbery and smell of the same will maintain an Action so will these words therefore Judgement was given for the Plaintif 43. MEggs against Griffyth brought an Action for these words Slander viz. A woman told me that she heard say that Meggs Wife poysoned her Husband in a mess of milk and Judgement given for the Plaintif 44. REvell against Hart A Parsons Lease the case was upon the Statute of 13 Eliz. of Leases made by a Parson Serjeant Harris A Lease made by a Parson is not void against the Parson himself no more than a Lease made by a Bishop which is not void against the Bishop himself as was judged in the case of the Bishop of Salisbury Fenner The Law is as you said in a case of a Bishop but the case of a Parson percase will differ Popham If Rent be reserved Rent reserved it is good against the Parson himself otherwise not Clinch and Gawdy It is good against the Parson himself 45. WInch brought a Writ of Error against Warner Space in the roll upon a Judgement in a Writ of Debt in the Common place upon Arrerageâ— upon an account and it was assigned for Error for that the Plaintif in the Common place The emparlance roll is the Warrant in the first Declaration left a space for the day and year And after imparlance he put in a new Declaration which was perfect But for that the two Declarations did not agree and the first Declaration is the Warrant of all and therefore ought to be perfect therefore the Judgement ought to be Reversed for this default 46. IT appeared in Evidence inter Petties and Soam Foractor upon an Assumsit for ware bought by the Factor of Soam per opinionem Cur. If one be Factor for a Merchant to buy one kind of Stuff as Tin or other such like and the said Factor hath not used to buy any other kind of wares but this kind onely for his Master If now the said Factor buy Saies or other Commodities for his Master and assume to pay money for that Now the Master shall be charged in an Assumpsit for the money and for that let the Master take heed what Factor he makes 47. A. B. being seised in Fee Devise made his Will and devised his Land to his Wife for life the remainder to his Son in Tail and if he died without issue the Land to remain to R. W. and his Wife for their lifes and after their deceases to their children The question is whether the children of W. take by descent or as Purchasers Popham Gawdie were of opinion that they had an Estate Tail But Fenner Clinch but for life 48. WIlliam Gerrard was arrested by a Latitat and put in bail by the name of William Gerrat Bail by a false name and the Plaintif declared against him by the name of Gerrart and all the proceedings and issue was accordingly and Judgement was had
by Verdict tryed for the Plaintif And Gerrard pleaded in arrest of Judgement for that there is no bail entred for the bail is for Gerrat and his name is Gerrard Cook Attorney He may be known both by the one name and the other For in Norfork there is a Knight which in Common speech is called Barmeston but his right name is Barnardiston And if he by the name of Barmeston put in bail in this Court it is good being knowen by the one and other and so it seemed the Court did incline for the dangerousness of the President For otherwise every man impleaded may give a false name to his Attorney by which he will be bailed and then Plead that in arrest of Judgement but Judgement was giuen for the Plaintif 49. IN debt upon an Obligation Notice of a retorn from beyond sea the Condition was that if the Obligee retorned from beyond Sea before the 22 of Aprill and the Obligor pay to the said Obligee 200. l. before the twenty seventh of Aprill then the Obligation to be void Otherwise to stand in force Cook moved that the Obligee ought to give notice to the Obligor of his retorning from beyond Sea before the two and twentith day of Aprill or otherwise the Obligor is not bound to pay him the money For when a thing resteth in the will of another to be done and the time is uncertain when it shall be done Then notice ought to be given to him which ought to do the thing as 18 19 Eliz. 354. placiâ— 32. 17 Eliz. A man made a Lease for years And after made a new Lease to Commence after determination Forfeiture or Surrender of the first Lease with clause of Re-entry for non payment of the Rent And after the Lessor took a secret surrender of the first Lessee and after that surrender a Rent day incurred and the Rent was not paid by the second Lessee and yet adjudged that his Estate is not void because the other ought to give him notice of the Surrender Gawdy The case is not alike for 8 Edw. 4. a man ought to take notice of an Abitrement Fenner It shall be as dangerous for the Obligee if he ought to give notice as for the other to take notice 50. STafford brought an Action of Trespass against Bateman Distress for issues for of a strangers beasts Levant for taking of a Cow The Defendant said that the Land where the Trespass was supposed to be made is the Land of one Iohn Dean The which I. D. hath lost iiij l. issues to the Queen and there came a Warrant out of the Exchequer to the now Defendant being undersherif to levy the said iiij l. in the Lands of the said I. D. And because this Cow was Levant and Couchant within the said Land he took her as lawfull was for him to doe Gawdy Fenner The Sherif may not take Beasts of a stranger in the Land of him that hath lost issues to the Queen Popham By way of distress he may take Beasts of a stranger if they be Levant and Couchant upon the Land of him that hath lost issues but not to sell them and so to levy the Issues 51. ERror was brought by An. Latham Error upon a Judgement given against him in a Writ of Debt in the Common place and the Error assigned was for that the Originall Writ was purchased against him by the name of A. L. nuper de London Yeoman alias A. L. de Sherbâ—â—â— in Com. Ebor. Variance in the alias no error Yeoman And upon that the said An. L. appeared and pleaded and was condemned and after a Capias ad satisfaciend issued against him by the name of A. L. nuper de L. Yeoman alias A. L. de Shelbâ—â—â— in Com. Ebor. Yeoman and so he assigned the variance between the first Originall and the Capias ad satisfaciendum Shelbone for Sherbone but for that this variance was not in the first name but in the first Addition therefore it was adjudged no Error by the opinion of the Court. 52. LAugford and Bushy did present by turns to the Advowson of Norwinkfield Quare imp Langford presented one A. which was instituted Pasch 43 Eliz and inducted and dyed Bushy presented one C. which C. was lawfully deprived by the Bishop of Coventrey and Lichfield without giving any notice to Langford who had the next turn The Bishop made Collation and after Collation Langford sold his moity to Lee Collation before notice and Lee to the Earl of Shrewsburie The question was whether by the Collation Langford hath lost his turn The Court seemed to incline that by the Collation the turn is lost for if it had been by usurpation it had been lost without any question And yet it seemeth that upon deprivation the Patron ought to have notice Vide Statut. de 13 Eliz. 53. YElverton the Queens Serjeant demanded the opinion of the Court Devise if a man be seised of land in Fee and have two Daughters onely and deviseth his land to his Daughters in Fee if now the two Daughters shall be Joyntenants or take by descent as parceners and the opinion of the Court was that they are in by the Devise and not by descent and so they shall be in as Joyntenants and not as Parceners but otherwise it shall be if there were but one Daughter and the Father devise the land to her so if he devise the land to his Son and Heir in fee. 54. NEcton and Sharp Executors of Throward sued a Prohibition against Gennet and others Prohibition for a Legacy and the case was that one that had a Legacy devised unto him sued the now Plaintifs being Executors for the sayd Legacy in the Spiritual Court and the Executors there pleaded that the Testator in his life time made a certain Obligation sufficient in Law to J. S. the which is not yet satisfied and the Spirituall Court would not allow this Plea for which he had a Prohibition Makin Attorney of Essex sayd to me that this is the second case in question of this point but he doubted that the pleading was so vitiouâ— that the matter in Law would not come in question Executors represent the person of their Testator and therefore if a release be made by one of them Action confessed by one Executor by admittance this shall bind all and so if an Action is brought against one Executor where there be divers Executors and he admit the Writ and confess the Action this shall bind all the goods of the dead as well as if they were all named Per Hâ—rn 55. GReningham brought an Action of Debt upon an Obligation against Ewer Election The Condition was that if the said Ewer doe deliver unto the said Greningham certain Obligations which the said Ewer hath of the sayd Greninghams or else doe seale such a release as the said G. shall devise before Mich. that then c. The Defendant
shall have the corn for if Lessee for life leaseth for years and this Lessee for yeers sowe the land and the Lessee for life dye now the Lessee for yeers shall have the corn by reason of his right to the land at the time of his sowing and never lawfully devested by any Act done by himself and he denyed the cases put by Mr. Tanfield and so concluded Gawdie The lessee for yeers of the Tenant for life shall have the corn and he denyed some of the cases put by Mr. Tanfield for in the case where Tenant for life sowes the land and after assigns over his esttae now if Tenant for life dye the Assigne shall have the corn as well as the Executors of the Tenant for life if he had not assigned over his estate But I agree the case of the devise for life of land sowed with the remainder for life for there he in remainder shall have them and the laches of the not entry of the Lessee for yeers shall not prejudice him Lessee for years ousted for it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted and after the Tenant for life dye yet the Lessee for yeers shall have trespasse with a continuando for all the mean profits The which proves that they belong to him so is it in 38. H. 6. Lessee at wil ousted If Lessee at will be ousted and after the Lessor dye now the Lessee shall have a trespasse with a continuando without regress for when he may not enter Regress the law supplyeth it and the mean profits do belong to him And by consequence in this case the corn belongeth to the Lessee for yeers Ground let for life after sowing of the Tenant for life Popham Sir Henry Knevit shall not have the Corn for if a man lease for life ground which is sown and the Lessee dye now the Lessor shall have the Corn and not the Executors of the Lessee for life And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life of ground sowed and the Tenant for life dye that he in Reversion shall have the Corn Disseisor sow the land of tenant for life And if a Disseisor sow the land of Tenant for life and the Tenant for life dye now the Executors of the Tenant for life shall have the Corn and not the Disseisor nor he in Reversion and by consequence the Lessee for years of the first Lessee for life in this case Fenner was of the same opinion and after it was adjudged that Knevit should have the land and that Poole should have the Corn because of his possession 61. RAme sued a Prohibition against Patteson Prohibition for Dotards and the question was if Trees which are above the age of twenty years become rotten and are cut down for fuell shall pay Tyths or not and the opinion of the Court was that they shall not for Tythes are payable for an increase and not for a decrease and being once privileged in regard of hie nature this privilege shall not be lost in regard of his decrepitage 62. PArtridge brought an Action of Debt against Naylor upon the Statute of 1 2 P. M. 12. Empounding For taking of a Distress in one County and driving it into another and the case was that three men distreined a flock of Sheep and them impounded in severall places and if every of them shall forfeit a hundred shillings severally or but all together a hundred shillings Common place The Court was divided for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings and treble damages but Walmisley thought that every one should forfeit a hundred shillings and he put a difference between person and party for many persons may make but one party 63. BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts Erroneous Judgement in London was a forfeiture of their Liberties but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated and was made finable as in Chester if they give an erroneous Judgement they shall forfeit an hundred pound for these inferior Courts which have peculiar Jurisdictions ought to do justly for if these Courts shall not be restrained with penalties Justice will be neglected and before the Statute of 28 Ed. 3. those of London might not reform Errors in London 64. NOta per Doctor Amias in the Lord Souch his case Caveat if a Church become voyd and a stranger enters a Caveat with the Register of the Bishop that none be instituted to that Church untill he be made privy thereunto and the Bishop before that he have notice of the Caveat institutes an Incumbent the Institution is meerly voyd in the Spiritual Law for the Register ought to notifie the Caveat to the Bishop and his negligence in that shall not prejudice him that entered the Caveat and if the Bishop have notice of the Caveat and gives day to him that puts that in and before that day he institutes an Ineumbent this is meerly voyd for the entering of the Caveat is as a Supersedeas in our Law 65. THornton brought an Action upon an Assumpsit against Kemp Day of payment and declared that the Testator was indebted to him in ten pound and in consideration that the Plaintif would give day to the Defendant being Executor to pay that until Michaelmas he assumed to pay that in facto dicit that he hath given day and yet the Defendant hath not that payd The Defendant pleaded in bar that post praedictam assumptionem factam and before Michaelmas the Plaintif did arrest him for the same Debt and demands Judgement and upon that the Plaintif demurred Gawdy When he hath given to him day of payment usque ad Michaelmas allbeit he arrest him before that time yet if he do not receive the money before Michaelmas the consideration is performed Fenner I deny that for to what purpose is the giving of day of payment untill Michaelmas if in the mean time he may sue him Popham I agree with my brother Gawdy for insomuch that he onely forbears the payment untill Michaelmas and doth not promise to forbear to sue him the payment is forborn if the money be not received 66. SHerington â—ued a Prohibition against Fleetwood Parson de Orrell Prohibition in Com. Linc. for that that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments and the now Plaintif being Defendant in the Spirituall Court pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture and for this payment he had been discharged of payment of Tythes for all Agistments in that land Payment for one thing shall not discharge another Popham This payment of money for Milch
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good
REPORTS Of that Learned and Judicious Clerk J. Gouldsborough Esq Sometimes one of the Protonotaries of the Court of COMMON PLEAS OR His Collection of choice Cases and matters agitated in all the Courts at Westminster in the latter yeares of the Reign of Queen Elizabeth With Learned arguments at the Barr and on the Bench and the grave Resolutions and Judgements thereupon of the Chief Justices ANDERSON and POPHAM and the rest of the Judges of those times Never before Published And now Printed by his Original Copy With short Notes in the Margent of the chief matters therein contained with the yeare Terme and Number Roll of many of the Cases And Two Exact Tables viz. A Briefer of the Names of the severall Cases with the Nature of the Actions on which they are founded and a Lâ—rger of all the remarkable things contained in the whole Book By W. S. of the Inner Temple Esq Ubi est nulla Lex ibi est nulla transgressio Sed ubi lex est nullum ibi abundat Iniquitas LONDON Printed by W. W. for Charles Adams and are to be sold at his Shop at the Signe of the Marygold over against Fetter Lane in Fleetstreet Anno Dom. 1653. TO THE Studious and Ingenious READER TWO things usually make new Books famous the Name of the Authour and the Approbation of the Judicious neither of these are here wanting for thou seest that this Book as part of its Title challengeth the Name of that Learned and Judicious Clerk John Gouldsborough A Name so well known even in this our Age that I should but trifle away time in multiplying words to tell thee what he was and to inlarge upon his worth and allso discover too much mine own weakness by endeavouring to prove so known a Truth that it is by all allready taken for grantld For the second I am assured that the Copy hath been communicated to the view of many knowing men in the profession of the Common Law whose unanimous consent in a fair Testimony of the excellency thereof hath been not only a chief cause of the now making it publique but allso of heigthning the Publishers hopes that this Book will be perused with as much content and received with as generall an Applause as any thing of the like nature that these latter yeares have afforded And that his great care and hazard in this his Edition may receive thy candid construction and himself reap if not a fruitfull yet at least a saving return for his better encouragement to adventure further hereafter in this kind for thine and the publique good For thy further satisfaction know that thou hast not here a spurious deformed Brat falsly fathered upon the name of a dead man too too usuall a trick played by the subtile Gamesters of this Serpentine Age but thou hast presented to thee though I cannot say the Issue of the Learned Gouldsborough's own Brain yet I dare say the Work of his own Hand and that which were he living he would not blush to own A Work I say not roughly drawn and cast by in neglected Sheets till time should give leave for the perfecting thereof but carefully transcribed by himself in a fair Manuscript destined as it should seem either for the Press and publique view or to be preserved as a pretious Jewell to be privately made use of in succeeding Ages That this is true there want not many living Testimonies of persons of worth who doe and have very good reason to know his Hand-writing that if need required might be produced to say as much I shall adde but one thing more and that in brief is this As the Authour was very careful in Transcribing and Correcting his Copy that he might leave it fair and entire to Posterity so hath the Publisher spared neither pains nor cost in the Printing thereof that the Book may not come foul and imperfect to the hands of thee it 's courteous and ingenious Reader W. S. A Table of the Names of the severall Cases with the Nature of the Actions on which they are founded  pag. pl. Wast COnstance Fosters case 1 1 Return of a Writ 1 2 Wast 1 3 Devise 2 4 Battery Webster against Payn 2 5 Trespass Nelsons case 3 6 Quare impedit Moores case 3 7 Dower Tristram Ascough and Eulalia his wife 4 8 Quid juris clamat Justice Windham against the Lady Gresham 4 9 Verdict in an Ejectione firme 5 10 Avowry Capel against Capel 5 11 Trespass Baintons case 6 12 Replevin Colgate against Blith 12 13 Ejectione firme Knight against Brech 15 1 Writ of Right Heydon against Ibgrave 23 2 Debt upon the Stat. of Winchester Tyrrels case 24 3 Quare impedit Mores case 24 4 Action on the Case for words 25 5 Trespass Leonards case 25 6 Scire facias Owens case 26 7 Dower 27 8 Arrest of Judgement in an Action for words 28 1 Partition by word 28 2 Debt for Rent 29 3 Lands purchased by an Alien 29 4 Misdemeanours of an Attorney 30 5 Annuity Sellengers case 29 1 Plea by an Executor 31 2 Râ—plevin Boss against Huntley 31 3 Trespass VVilgus against VVelch 31 4 Ejectione firme 31 5 Action upon the case Fulwood against Fulwood 32 6 Replevin Gibson against Platless 32 7 Battery Lees case 33 8 Copyhold Smith against Lane 34 9 Quare impedit Specot against the Bishop of Exeter 35 10 Replevin Brooks case 37 11 Replevin Knights case 37 12 Replevin Wakefield against Cossard 38 13 Debt The Earl of Kents case 39 14 Debt Mounsay against Hylyard 39 15 Debt The Purveyors case 39 16 Trespass Justice Anderson against VVild 40 17 Error in debt Sir Wolstan Dixy against Spencer 40 18 Attaint Husseys case 42 19 Quare impedit 42 10 Pleading in Battery 43 21 Ejectione firme Clayton against Rawson 43 22 View Hoo against Hoo 44 23 Debt Wiseman against VVallinger 44 24 Quare impedit Beverley against Cornwall 44 25 Quare impedit Gerrards case 45 26 Debt Bingham against Squire 45 27 Lords Chancellors solemnity 46 1 Quare impedit The Queens case 46 2 Ejectione firme Kent against King 47 3 Ejectione firme Hurlestones case 47 4 Assumpsit 47 5 Action on the case VVhorwood against Gibbons 48 6 for words Action for words 48 7 Action upon a promise Bodyes case 49 8 Assault and Battery 49 9 Action of covenant 49 10 Debt upon a bond Sir Will. Druries case 50 11 Estrepment 50 12 Perjury 51 13 Conspiracy Hurlstone against Glascour 51 14 Quare impedit Specots case 52 1 Replevin Board against Henley 52 2 Quare impedit The Queen against Lee 53 3 Kimptons case 53 4 Estopple 53 5 Debt upon a bond Hasels case 54 6 Trover and Conversion 54 7 Vtlary Beverleys case 55 8 Hue and Cry Comberfords case 55 9 Hue and Cry Ashpools case 55 10 Action for words Normans case 56 11 Debt upon a bond Hayles case 57 12 Attornment Moore against Hills 57 13 Wager of Law 57 14 Prohibition Pierce
Brough against Devison 143 58 Forfeiture of Copyhold 143 59 Lease for years Knevit against Poole 143 60 Prohibition Rame against Patison 145 61 Partridge against Nayler 145 62 Forfeiture 146 63 Quare impedit Lord Zouches case 146 64 Assumpsit Thornton against Kemp. 146 65 Prohibition Sherington against Fleetwood 147 66 Trust VVildgoose against VVayland 147 67 Reservation of Rent 148 68 Action for a Robbery 148 69 Outlary reversed 148 70 Fine with proclamation 148 71 Feoffment to a use 148 72 Tenure and Wardship 149 73 Devise 149 74 Prohibition Benefield against Finch 149 75 Oyer of a bond 150 76 Ejectione firme Beckford against Parnecole 150 77 Writ of Error Harecourts case 151 78 Trover Easts case 152 79 Writ of Error Wiseman against Baldwin 152 80 Assumpsit Pine against Hide 154 81 Prohibition Jacksons case 154 82 Trover and conversion 155 83 Assumpsit Chessins case 155 84 Assumpsit Dixon against Adams 156 85 Ejectione firme Ross against Ardwick 157 86 Trover Harding against Sherman 158 87 Debt upon a bond Paytons case 158 159 88 Trespass quare clausum fregit 159 89 Debt upon a bond Allen against Abraham 159 90 Account Huntly against Griffith 159 91 Scire Facias Lady Gresham against Man 160 92 Prohibition Ramsies case 161 93 Account 161 94 Indictment Hom's his case 162 95 Fine of Lands 162 96 Ejectione firme Robins against Prince 162 163 97 Scire facias Hoo against Hoo 166 98 Mackerell against Bachelor 168 99 Information Goodale against Butler 169 170 100 Scire facias Foe against Balton 170 101 Contra formam Collationis 111 102 Ejectione firme Cootes against Atkinson 171 103 Action for words Pollard against Armeshaw 172 104 Elegit Palmer against Humphrey 172 105 Covenant 173 174 106 Debt upon a bond Robinson against May 174 107 Audita querela Hobs against Tedcastle 174 175 108 Covenant Matures against Westwood 175 109 Assault and battery Sims his case 176 110 Trespass Goodale against Wyat 176 111 Ejectione firme Sayer against Hardy 179 112 Rent Walter against Walter 180 113 Debt upon an Escape 108 114 Vtlary after Judgement 108 115 Fine levied Sir Henry Jones case 181 116 Evidence Tutball against Smote 181 117 Debt Richard Thornes case 182 118 Debt Humble against Glover 182 119 Evidence Maidstone against Hall 182 120 Speciall Verdict Dickins against Marsh 182 183 121 Covenant Cole against Taunton 184 122 Grant 184 123 Error Brewster against Bewty 187 124 Trespass Pannell against Fen 185 125 Repleuin Second deliverance 185 126 Action for words Stitch against VVisedom 185 127 Accessary to Felony 185 128 Debt Thin against Chomley 186 129 Lease Harbin against Barton 185 103 Action for words Baddocks case 186 131 Debt upon a bond Staples against Hankinson 187 132 Error Boyer against Jenkins 187 133 Grant over 187 134 Ejectione firme Thomas against King 187 135 Trespass Oland against Bardwick 188 136 Error Ascough against Hollingworth 188 137 Trespass Bodeam against Smith 189 138 Name of purchase 189 139 Perjury 189 140 Obligation 190 141 De Term. Pasch Anno Elizab. Reg. xxviij 1. WAst war brought by Constance Foster Wast and another against Lessee for years in effect the case was such A man makes a Lease of certain Lands 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods the Lessee cuts down Trees and he in Reversion brings an Action of Wast and by the opinion of the Court the Lessee is not punishable in Wast for they were never let and therefore the Plaintif is driven to his Action of Trespass at the Common Law 2. THe Sherif returneth in a Writ of Right four Esquires to make the pannel Return and doth not say that there be any Knights it was sayd by the Court that he ought to return them which be and that there be no more 3. WAst was brought for digging in Land Wast and taking away Okes the Defendant pleaded in bar That the Queen by her Letters Patents under the Great Seal of England granted unto him that he might dig for Mines of Cole in the Land and prayed that it might be entred verbatim and a Grant under the Seal of the Exchequor was entred whereupon the Plaintif Demurred Now came Walmisley and would have amended it and by the opinion of the Court he cannot amend it after the Demurrer be entred Demurrer but Judgement shall be given for the Plaintif if he shew no other matter 4. A Man seised of Lands in Fee Devise and sale by Executors Deviseth to his Wife for life the Remainder to his Son in tayl and if his Son dye without issue of his body that then the Land shall be sold by his Executors and maketh two Executors and dyeth the Wife dyeth one Executor dyeth the Sonne dyeth without issue the other Executor selleth the Land and Gawdy the Queens Serjeant moved whether the sale be good or no and it seemeth to him that the sale is good and vouched the Case in 30 Hen. 8. Brook Devise 31. And now lately it was adjudged in the Kings-bench where a man did Devise his Lands in tayl and for default of such issue that the Land shall be sold by his Sonnes-in-law and dieth having five Sonnes-in-law the one dyed the others sold the Land and this was adjudged a good sale Anderson It seemeth the sale is not good for if one make a Letter of Attorney to two to make Livery and Seisin Livery if the one dye the other cannot doe it So if one grant the Office of Stewardship to two the one of them cannot hold Court alone Stewardship And if one of them may sell to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell Windham The Statute will not prove the case but it seemeth the sale to be naught And there is a difference where one giveth an interest to two and when he giveth but an authority Interest for an interest may survive but an authority cannot Authority Rodes to the same intent and cited M. 4 Eliz. fol. 219. a. 177. 210. 371. 5. BAttery Battery by Webster against Pain the Action was layd in London and in truth the Battery was committed at Uxbridge in Midlesex the Defendant pleaded that such a day and year at A. in the County of Huntington 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him and the hurt c. absque hoc that he is guilty in London Snag moved that the Traverse should not be good Anderson Will you have him to say absque hoc that he is guilty that he ought not for by the speciall matter he hath confessed the Battery and you will not deny but that if his Plea be true he hath good cause to bar the
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
6. the Priors case Note that Puckering then said privily to Shuttelworth is not the book contrary to that which he hath vouched for he vouched the Book contrary to that which Puckering had done before Shuttelworth No Sir but the record is contrary to the Book quod nota and when she granteth ex certa scientia it shall be taken beneficial for the party 1 H. 7. 13. omnia debita released to the Sherif and 29 Ed. 3. the King seised the lands of a Prior alien c. Difference per enter interest prerogative Touts droits poss per fine Fine puis disseisin ou discont alit de recovery and there is a difference between the cases put and this case for when the Queen makes a Grant all matters of interests may pass by the words but matters of prerogative as in the cases put by my brother Puckering cannot pass for they are not within the words but interests are To that which hath been sayd that he was not seised of any estate tayl this is not any argument for if he had three rights by the Fine all are gone and passed to the Conisee for if he be disseised or discontinue and then levy a Fine this is a bar but otherwise it is of a recovery Lessee purâ—ans en reversion poss diversity for that is no bar but of an estate tayl And as to the case of Saunders that lessee for years need not to make claim the case was not so but the case was of a lease inreversion and he had never entred and therefore it was but as a common or a rent but if it be a lease in possession he is bound as in Zouches case Then because the King is in possession it hath been sayd that it is no bar but this seemeth to be no reason for the Statute began with the King and the Preamble seemeth to induce it and the third saving of the Statute is by force of any gift in tayl so this is generall And because he cannot discontinue therefore can he not make a bar Non sequitur For he cannot discontinue and yet a Fine levyed is a good bar and the Statute of 32 Hen. 8. doth not impair this opinion but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case as it was agreed by all the Judges in Stowels case and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar doth not extend but to the words going before as in the case in Dyer that a man had not done any act but that c. And the Queen in this case hath not any prejudice for she shall have the rent with the reversion And as for Jacksons case that maketh for me for the question of the case there was that the remainder shall be gone and we ought not to take regard to that which is sayd indirectly in the case but the point of the Judgement is the matter and for authority it is direct in Dyer fol. 26. pl. 1. and therefore it seemeth that the entayl is barred and so the action maintainable Anderson You have well argued but for any thing that I see none of you shall have the Land Grant for the Queen is deceived in her grant and therefore the Patent is voyd and then it shall be seised into the Queens hands And therefore you had best to be advised and we will hear what can be sayd for this point at another day And note that it was sayd by the Justices 3 Costs in forcible entry that if a man recover in a Writ of forcible entry upon the Statute of 8 Hen. 6. by confession or by default he shall recover his treble costs 22 Hen. 6. 57. 13. ONe Colgate brought a Replevin against Blyth who avowed the taking Replevin and thereupon they were at Issue in Kent and the Jury found a speciall Verdict The case in effect was this Husband and Wife are seised of Lands in right of the Wife And she by Indenture in her own name agrees that a Fine shall be levyed and limits the uses by Indenture After the Husband by another Indenture agrees that a Fine shall be levied and limits other uses and afterwards a Fine is levied by them both now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity The Jury prayed the advise of the Court c. For if they be good they found for the Plantif if not then they found for the Defendant Shuttleworth Serjeant It seemeth that Judgement shall be given for the Plantif For the use limited by the Husband shall be a good limitation in Perpetuity Rent ch ou Lease per feme covert and first the Wife only cannot limit any use for her Acts are of no Validity And therefore if a Wife grant a Rent charge or make a Lease and the Grantee enter this is a Disseisin 43. Ed. 3. Deeds given by a Feme Covert are void 17. lib. Ass a VVife levies a Fine Executory Fine executory executed per feme covert sur grant render as a sole Woman and after a Scire fac Is brought to Execute this Fine the Husband shall extort the Execution and if it were a Fine Executed then it is a Disseisin to the Husband Vse quod For an use is a Declaration how the Land shall continue in Perpetuity and the Feoffees are nothing but Instruments or Organs to convey the use for the Land yields the use and not the Feoffees then when the Wife which is under the Power of her Husband Limitation per infant quaere limits an use this is void for I hold for Law if an Infant limit uses and after levy a Fine and do not Reverse it during his Nonage yet the limitation shall not bind him and so of a man non compos mentis Non compos mentis And so it was ruled in the Court of Wards where a naturall Ideot made a Declaration of uses and levied a Fine accordingly Ideot naturall that yet it shall be to the use of himself And then in our case the Limitation by the Wife cannot be good but her Will depends upon the Will of her Husband and the expressing of the use by the Husband shall be good Estate disseisin assumsit al feme For if an Estate be made to a Wife if the Husband seaven years after agree it is good and so it is of a Disseisin to a use so ofan Assumpsit to the Wife 27 Hen. 8. in Jordans case 1 Hen. 7. in Doves case and in a Praâ—cipe quod reddat the default of the Wife shall be the default of the Husband Default del feme because she is Compellable to the Will of her Husband by the Intendment of the Law 21. lib. Ass A man seised of Land in Right of his Wife makes a Feoffment in Fee
had warranty to detain Garrâ—nty and they made partition the one could not vouch without the other Vâ—uâ—her and therefore she should pray in ayd and then both to vouch Paramount and so the Statute which giveth pâ—â—tition between Joyntenants saveth their warranty otherwise it were gone And so if two Joyntenants make a lease for years reserving rent upon condition Partition of a 〈◊〉 and after they make partition as they well may having the reversion and the freehold in them I hold the Law clearly that the one nor the other shall enter for the condition broken Then in the case of the King I hold the Law that it shall not be apportioned and yet I agree that the King shall have his Preâ—â—gatives for his present lands and goods Prerogative but he shall never have Prerogative when wrong shall be done to any man Rent charge appâ—rtioned If the King have a Rent chage and after Purchase parcell of the Land charged it shall be apportioned 21 Hen. 7. he may well condition that his Feoffee shall not alien for in those cases there is no prejudice to others but all those cases run upon other grounds And in Bartlets case the King is bound by the Statute of donis conditionalibus for it was a wrong that the Donee at the Common Law should alien the inheritance And this case as me seemeth is not within the concourse of Title Câ—â—â—â—urse of â—itle as my Brother Rodes hath argued neither is the King deceived as hath been said For when the King enters he shall be seised in pristino statu suo Dyer and this is a principall reason in Winters case 16 Eliz. a person makes a Lease reserving Rent upon condition that if it be behind lawfully demanded that then he shall re-enâ—er Deâ—and after the reversion cometh to the King he shall not maâ—â— demand I agree well thereto the reason is because the demand is a thing which goeth to the person of the King Then Sir the Statute is that the King shall have it as the Prior had it which is meant of the estate and not of the person of the King Then Sir it is impossible that the King should have the land as the Prior had it ut in pristino statu suo if he doe not utterly defeat the grant made to Cordall then here the condition is gone The Kings grant against the Law is voyd but not by any grant as it hath been moved but by the operation of the Law And 49 Ed. 3. the King grants that lands shall be devisable it is voyd because it is against the Law and it is against the Law that a condition should be apportioned ergo the King shall not apportion it But admit this question against me then let us see what title the Queen hath by this commission First the commission is to enquire if Cordall his Assigns and Farmers have performed all covenants and provisoes contained in the Indenture Proviso as for that I hold the law clear that they have auâ—hority by those words to enquire of the condicion but for other reasons I think the Commission void For the Commission is to enquire per bonos legales homines de Com. nostre Mâ—dd and it doth not appear here that the Jurors were of Middlesex and therefore the inquisition is not good Further Severall spespecial finding they have found a thing in another County and this they cannot find but I hold that the Jury in one County may find the generall issue in another County Allso I hold that when the party cannot plead that which is the great matter of the Action they may find it in an another County because the party cannot pleade it as in 9 Ed. 2. in debt against Executors c. And for these reasons I hold judgement is to be given for the Defendant 2. RIchard Heydon Misre-cital in Letters Patentt Gentleman demands against Benjamin Ibgrave Gentleman the third part of 40. Acres of Land with the appurtenances in three parts to be divided in Sarrot in the County of Hartford as his right and Inheritance and to hold of our Lady the Queen in Capite and Laies the Esples in the time of Ed. the sixth and that such is his Right he offers himself c. And the aforesaid Benjamin put himself upon the great Assise whether it be his right or no c. And now the Assise made by the four Knights appeared at the Bar Challenge Snagg Serjeant for the Plantif we challenge A. B. for that c. Nelson chief Prothonotary all the Court you cannot challenge because it was made by the four Knights and the Assise is now at the Bar. Snagg well Sir then we will give evidence Anderson for whom are you Snagg for the Plantif Anderson then you shall not give evidence first for the Tenant affirms that he hath more right Evidence and that ought to be first proved Rodes and all the Court So it was here rul'd five years ago in Nowells case and thereupon Puckering gave evidence for the Tenant that it was Parcell of the Mannor of Sarrot which Mannor the Tenant hath and this was granted by the Counsell of the Defendant And in conclusion upon the evidence given the Defendant would have had the Tenant to have Demurred upon his evidence and discharge the Inquest but the Tenant would not in effect this was the doubt K. H. 8. by his Letters Patents gave among other things all the Lands which were in the Tenure of one Whyton and demised to Johnson in the Parish of Watford And it was true that the Lands were in the Tenure of Whyton but not demised to Johnson Misre-citall and allso they were not in the Parish of Watford if this shall be helped by the Statute of Misrecitall and not Recitall is the question and the party did not aver that the intent of the King was to pass this Parcell now in question to the Patentee and the opinion of all the Court was that it is not within the Statute clearly but they said to the Jury that they may find all this matter if they will or otherwise say what they will And thereupon after they were agreed they came again to the Bar and then all the Court told them that yet they might give a speciall Verdict The Jury said we are all agreed that the Tenant hath more right to hold these Lands as he now holdeth then the Demandant as he demands them Anderson then are you discharged and as I think you have done well So they gave their Verdict according to the opinion of the Court for the Statute of Misrecitall and yet Peryam was well content to have them give a speciall Verdict and the Demandant was demanded who appeared and thereupon Judgement finall was given for ever against him 3. ONe Tirrell brought an Action of Debt against a Hundred in Essex Hâ—e and Cry for
Pasch 28 El. rot 2091. and declared how A. F. was seised of the Manner to which the Advowson is appendant and presented and devised the Mannor to his wife now one of the Plaintifs and she after took to husband Specot and then the Church became voyd and they presented their Clerk and the Bishop disturbed them The Bishop pleaded that he claims nothing but as Ordinary and that the Church is with cure of soules and confesseth the title of the Plaintif And that they presented but he alleged in bar that he examined their Clerk and upon the examination Invenit eum fore schismaticum inveteratum so that by the Law of holy Church he could not admit him Whereupon the Plaintif demurred in Law Shuttelworth The Plaintif ought to recover Certainty First I agree that if it had been alleged in certain wherein he had been a Schismatick this had been a sufficient plea to excuse him but as this is it is otherwise For a Schismatick is he which divides and separates himself from the Religion and the Faith established Schismatick But this plea is insufficient for the uncertainty and therefore in 38 H. 3. fol. 2. Fitzh Quare imped 124. The Earl of Arundell brought a Quare impedit and the other sayd that he presented one to him who was perjured for certain causes Perjury and shewed for what whereby he was not a person capable and so it should be in this case and in 12 Eliz. Dyer fol. 293. he ought to set down the disability of the Clerk Notice of disability certain and give notice to the Patron And allso in Dyer 9 Eliz. fol. 254. the Bishop refused the Clerk because he was a haunter of Taverns and unlawfull Games Tavern and gaming c. Et obâ—ea diversa alia criminafuit criminosus inhabilis c. And there the Plea was thought not good Evil in it self because that the faults alleged were not evill in their own nature Evil forbidden but by the prohibition of the Law And allso the Plea was naught because he had not shewed what the other faults were And the reason wherefore the Ordinary ought certainly to allege what faults the Presentee hath is because the Patron may present another unto him who is not infected with the same faults and how can the Patron tell that his Clerk is disabled for such a fault when he doth not know certainly what the fault is Then if the Plea of the Ordinary be insufficient whether he shall be a disturber by his evill Plea Disturber by evil pleading Triall and it seemeth that he shall for so is the Book in 14 Hen. 7. fol. 21 b. 5. Hen. 7. 20. Allso for another reason the Plea is not good for it is too general for the trial and all though that it may be sayd that it shall not be tryed by a Jury but by the Metropolitan as perchance it shall be yet it is too generall for how can he know wherein he is a Schismatick Ravishment of a Ward so that he may examine him thereof as in Ravishment of Ward supposing that the Infant holdeth of him by Knights service 12 H. 8. f. 6. a. f. 11. it must be shewed in certain by what service And allso in the case of Winbish the Plea was not good because he did not shew in certain how she was heir to the other Coment f. 42. b. and so I think the Plaintif ought to recover Walmisley to the contrary And it seemeth the Plaintif shall be barred First when a Parson is presented to the Bishop it appears fully that the examination of him appertains fully to the Bishop Examination as it is expressed in the Statute De Articulis Clers de ideoneitate personae present at ae ad beneficium Ecclesiasticum pertinet examinatio ad judicem ecclesiasticum ita hactenus usitatum est fiat in futurum For the cure of the Parson is the cure of the Ordinary as it is expressed in 32 Hen. 6. He shall say to him Accipe curam tuam curam meam Then if we shall be driven to shew wherein he is a Schismatick and I think not for the Book of 38 Ed. 3. fol. 2. which is vouched against me is with me Perjury for there he shewed before what Judge he was perjured which is very necessary for if it be not before a Judge it is no perjury but there he did not shew wherein he was perjured Allso he sayd that in 12 Eliz. in the Bishop of Norwich's case the opinion of Walsh Manners Learning difference that those things which touch the manners of the Clerk shall be tryed by the Temporall Court but that which toucheth the learning or sufficiency of the Clerk shall be tryed by the Spirituall Court And in vain it shall be to allege wherein he is a Schismatick for this Court cannot judge of it in proof whereof he cited the Statute of 2 Hen. 8. Schism And he defined a Schism to be Recens dissentio congregationis jure aliquo but an Heretick is he which hath a habit therein Heretick and is invetorate so he concluded that Schismaticus inveteratus est Haereticus Haereticus est Schismaticus inveteratus and he defined inveteratus to be qui est multi veteris usus in malitia And if the Bishop had sayd that he was an Heretick he should not need to shew wherein and for that he cited the case in 9 Edw. 4. 24. Bro. Deposition 5. Deposition Where a Deposition of A. was pleaded there he ought to shew before what Judges he was deposed but not wherein And what is the reason that he must shew before what Judge it was Surely because this Court may know to what Court to write and allso the case in 11 Hen. 7. fol. 8. Bro. 9. of the Union of Wamborough where it is pleaded that concurrentibus hiis c. and allso he cited 8 Ed. 4. 24. where a divorce was pleaded causa consanguinitatis prout patet in recordo and yet well And allso he cited the opinions of Fitzherbert and Shelley 27 Hen. 8. 14. that an Action upon the case doth not lye at the Common Law Heretick for calling one Heretick because the Judges at the Common Law cannot discuss it and he granted the cases put by Shuttelworth Matter issuable that where the matter is issuable there it ought to be certain but not as this case is where it shall not be tryed by a Jury And that which hath been sayd that the Archbishop cannot examine him because he knoweth not wherein he was a Schismatick this is not so for the Bishop which accuseth him may inform the Archbishop so that he may be well advised thereof and so I think judgment shall be given against the Plaintif Anderson I doubt if the Writ be wel brought in the name of the Husband and Wife Advowson in right
of the wife For if the Husband have an Advowson in right of his Wife and the Church become voyd and the Husband dye the Executors shall have the presentation and the Serjeant sayd that there be many Books in that point Anderson I know it well but I doubt of the Law in the case Allso I would have you to argue if this be within the Statute of Demurrers in 27 Eliz. For if this be not matter of substance then it shall goe hard with the Plaintif therefore let it be argued again another time 11. ONe Brook was Plaintif in a Replevin Copyhold the Case was such Tho. Speek was seised of a Mannor in which were Copyholds according to the Custom and the place in which the taking was supposed was a Copyhold and the sayd Tho. Speek being so seised took to wife one Anne B. and died seised after whose death the sayd A. in the time of King Edw. 6. demanded the third part of the Mannor for her Dower by the name of Cent. Messuagiorum Cent. Gardinorum tot acr terrae tot acr prati c. and was endowed accordingly of parcel of the Demesns and parcel of the services of the Copyholds and after she granted a Copyhold and if this be good was the question for if she had a Mannor the Grant was good and otherwise not And the opinion of all the Court clearly was against the Grant for when she demanded her Dower she was at liberty to demand the third part of the Mannor or the third part of Cent. Mes Cent. Gard. Cent. acr c. and when she demanded it per nomen Cent. Mes c. Mannor a corporation she could have no Mannor For a Mannor cannot be claimed except by his name of Corporation as Anderson termed it and not otherwise and then Cent. Mes and Cent. acr c. cannot be sayd a Mannor and then the Grant of a Copyhold by her which had no Mannor was utterly voyd and this was the opinion of the Court clearly Quod not a. 12. SHuttelworth shewed how one Knight was Plaintif in a Replevin Visne 〈◊〉 Ass pl. 42. and they were at issue upon a prescription for Common in Newton appendant to land in another place and the venue was of Newton onely and it was found for the Plaintif and he prayed his judgment for the tryall may be in the one place as well as in the other as in annuity where the seisin is alleged in one County Annuity and the Church in another it may be tryed in any of the Counties Anderson But we think otherwise for it ought to be of both places when the matter ariseth in both and if they had been in severall Counties Counties joyn the Counties ought to have joyned Shuttelworth So is 10 Ed. 4. fol. 10. But our case being after a verdict I think we ought to have judgement Anderson and Windham The verdictdoth not amend the matter if it be mis-tried as this case is Rodes agreed that it was a mis-triall Mis-trial and therefore evill and that mis-trialls are not helped by the Statute of Jeofayles Shuttelworth I agree to that if you say that the triall is not good Windham So we say New Venire facias Then Shuttelworth advised his Client to take a new Venire facias 13. WAkefield brought a Replevin against Costard The Lord. who avowed for damage fesaunt Comptons case and the Plaintif prescribed for Common that all the inhabitants of Dale except the Parson and infants and such a house Prescription for Common have used to have Common in the place The Avowant sayd that the house whereunto the Plaintif claimed Common was built within thirty yeares last past and if he may have Common to this new house by prescription or no was demurred in judgement in Michaelmas Term and then Shuttelworth argued for the Plaintif that he should have his Common by prescription but not of common right And Gawdy argued for the Avowant that the Plaintif shall not have Common because the prescription is against all reason that he should have Common time out of mind to that which is but of thirty years continuance And allso he excepteth the Parson and infants and such a house and by the same reason he may except all which is not good Then one of the Judges sayd that if this be good Antient inhabitants hereafter there shall be no Common for the ancient inhabitants Improvement Peryam By such a prescription he shall for ever barre the Lord from improving any Common Common entire which is no reason Anderson All Common is intire for if a man have Common to three Mesuages and he infeoffee one man of one Mesuage and another of the second and another of the third the Common is gone And by this reason allso the new house cannot have Common And now this Term Gawdy demanded of the Court if they were resolved in the poynt Anderson We are all agreed that the prescription is utterâ—y voyd for it is impossible to have Common time out of mind for a house which was built within thirty yeares and then he commanded to enter judgement if nothing were sayd to the contrary by the next day Shuttelworth We have sayd all that we can say my Lord. Anderson Then let judgment be entred against the Plaintif 14. SNagg shewed how the Earl of â—Kent had brought an action of debt against a Londoner for rent behind Grant and shewed how the Countesâ— of Derby was tenant in Dower of this land and took to husband the Earl of Kent and that Henry Earl of Derby had granted it to the Earl of Kent habendum after the death of the Countess for certain yeares and he shewed how the grant was made by the name of a reversion also Lease in reversion Grant in reversion difference and that the Tenant had attorned and alleged the death of the Countess And the Court said that the Attornment is not necessary for it is but a lease in reversion and then no rent passeth thereby Anderson If you had been privy to the case of Talboys in the Kings-bench you would not have moved this doubt Peryam It is allso the very case of Throckmorton in the Commentaries Snagge But here in my case he hath granted it by the name of the reversion allso and then the reversion will carry the rent Curia Then is your grant voyd for a man cannot grant his reversion habend after the death of another and therefore quacunque via data you shall have no rent And thereupon Snagge conticuit cum rubore 15. MOunsay was Plaintif in debt upon an obligation against Hylyard Jeofayle and the Defendant pleaded the Statute of Usury because it was made for the sale of certain Copperas and he took more than was limited by the Statute and that it was made by shift and chevisance and other matter he alleged to prove it within the Statute the
Rodes Surely I have noted my book that Judgement is given and so I supposed that it had been 5. SHuttelworth moved that whether a Lease is made to a man oâ— his own Land by Deed indented Estopple this is an Estopple whereto the Court agreed But VVindham and Peryam sayd if the Lease be made for life by Indenture Livâ—ry that yet this shall be no Estopple because the Lease takes effect by the Livery and not by the Deed but Rodes did not fully assent to that Anderson was absent in the Staâ—â— chamber 6. DEbt was brought by Lassels upon an Obligation Hill 1â— Eliz. tot 1 511. with condition that if the Defendant did personally appear in the Kings-bench such day Stat. 23 Hen. 6 that then c. the Defendant pleaded the Statute of 23 H. 6. said that he was taken by the Plaintif being Sherif then by force of a Latitat and that the Bond was not made according to the Statute For being made for his deliverance this word personally was inserted in the condition more than is in the Statute And it seemed by three Justices Anderson absente that if it were in such an Action where a man may appear by Attourney that then it shall be voyd but now the question is whether the party ought to appear in proper person by force of a Latitat or no And some said yea and some said no. And the Plaintif shewed a Judgement given in the Kings bench for Sackford against Cutt. where Cutt. was taken by a Latitat and made such an Obligation as this is for his deliverance Sackford being Ballivus sanct Etheldredâ—e in Suff. and adjudged for the Plaintif that the Obligation was good And this was in the Kings-bench Mic. 27 28 Eliz. Rot. 575. but Peryam doubted of that judgement for peradventure he might appear by Attourney Ideo quare for that was the reason of the judgement given in the Kings-bench as it was sayd because he could not appear but in proper person 7. AN Action of Trover was brought for Goods Jeofayle and the Defendant pleaded a bargain and sale in open Market thereupon they were at issue and found for the Plaintif and now the Defendant spake in arrest of judgement because the Plaintif had shewed no place of conversion No place of conversion yet notwithstanding by the opinion of the Court the Plaintif shall have his judgement by the Statute Peryam If in Debt upon an Obligation he doe not shew the place 36 El. rot 266. yet if the Defendant plead a collaterall bar as a release or such like judgement shall be given for the Plaintif notwithstanding by the Statute if it be found for him by Verdict 8. THe case of Beverley was moved again at this day Utlary how the Queen had brought a Scire facias against him to shew wherefore she should not have the Presentation Walmisley It seemeth that she shall not have the Presentation for allthough we have recovered our Presentation Disseiser outlawed yet before execution we have but a right As if a man be disseised and after outlawed he shall not forfeit the profits of the land And allso she hath brought a Scire facias and this will not lie except for him which is party or privy Peryam After that you have recovered it is a chattle and then forfeited by the Utlary Anderson The judgment that he shall recover doth not remove the Incumbent and as long as he remains Incumbent the Plaintif hath nothing but a right Then Peryam sayd to Walmisley argue to that point whether he hath but a right or no but for the other point that she shall not have a Scire facias for want of privity that is no reason Recoverer in debt outlawed for in many cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and after am Outlawed Recovery in quare impedit shall the Queen have this debt Windham If I recover in a Quare impedit and dye who shall have the presentation my Executor or my Heir Sed nemo respondit Curia It is a new and a rare case and therefore it is good to be advised VValmisley Whatshall we in the mean time plead in bar to the Scire facias Curia Demur in Law if you hold the matter insufficient VValmisley Sowe will 9. ONe Combford was robbed within the Hundred of Offlay in Stafford-shire Hue Cry and he and his servant pursued the Felons into another County and there one of the Felons was taken and the Hundreds did nothing And now Puckering moved that he might have an Action against the Hundred Plaintif a Hundreder allthough that he himself was resiant within the same Hundred Hue and Cry by strangers but the opinion of the Court was against him for they sayd that if a stranger make Hue and Cry so that the Felons be taken the Hundreds are discharged Another question he moved because that but one of the Felons was taken Quaâ—re But quâ—re what was sayd to that for I heard not 10. FRancis Ashpool brought an Action against the Hundred of Evenger in Hampshire Hue Cry for that he was robbed there And the Jury found a speciall Verdict viz. that he was robbed after the setting of the Sun per diurnam lucem and that afterwards the same night he came to Andever which is in another Hundred and there gave notice of the robbery and the morning following the men of Andever came into the Hundred of Evenger and there made Hue and cry about ten a clock in the morning and that there were many Towns nearer to the place where he was robbed than Andever was and allso within the same Hundred of Evenger and that the Melafacters escaped and they prayed the advise of the Court. Now this matter rested on two points Robbery after Sunset the first was if he which is robbed after the Sun-set shall have the benefit of the Statute and the other was if he had made Hue and cry accordingly Hue and cry or whether any Hue and cry be needfull And Walmisley argued that he which is robbed after the Sun-set shall be helped by the Statute for they are bound to keep watches in their Towns to take night-walkers And to the second he said that the Statute doth not speak of any Hue and cry but only recens insecutio and that ought to be done by the Hundreders Shuttleworth to the contrary No distcess and that it ought to be in the day and cited Stamf. fol. 35. and after the Sun-set it cannot be said to be day For the Lord cannot then distreyn for his Rent per 11 Hen. 7. 4. nor demand Rent for he is not bound to be there after the Sun-set and he vouched Fitz. titulo core 302. but at this time the Judges seemed to hold for the Plaintif Anderson The Countries are bound by the Statute to
party from his advantage given him by the Statute But all the other Justices held opinion against him for they sayd that a man ought to appear in proper person upon a Latitat which Anderson denyed and sayd that the Latitats are not but of threescore yeares continuance which the other day Peryam had affirmed and he seemed to mislike with the Latitats And the Serjeant moved for their resolution in the case Anderson All my Brethren are of opinion against me wherefore take your judgement accordingly And so judgement was entred for the Plaintif 21. GAwon brought Debt upon an Obligation against White Traverse with condition that if the Defendant suffer the Plaintif his Tenants and Farmers to enjoy such a Common that then c. And the Defendant pleaded conditions performed and the Plaintif assigned for breach that he did not suffer A. B. his Tenant to enjoy c. Absque hoc that he performed the condition And it was sayd by the Court that this Traverse was not good no more than if one be bound to perform the covenants in an Indenture and the Defendant pleads that he hath performed all generally if the Plaintif assign his breach he shall not say further Absque that the Defendant hath performed the covenants for so much he had sayd before But Walmisley would have put a difference between the cases because in the one there were divers covenants to be performed but not so here Anderson If a man plead a Plea which is sufficient of it self and take a traverse allso you will grant that this Plea is not good quod fuit concessum and this Plea had been sufficient of it self onely quod fuit concessum ergo the traverse was not good without question Et sic opinio totius Curiae 22. GOverstone brought a Replevin against B. Rent charge who avowed the taking for a Rent charge granted to him by the Duke of Suffolk And this was the case The Duke was seised of three parts of a Mannor and granted a Rent charge to the Avowant And one Pole was seised of the fourth part and Hatcher purchased the Dukes three parts and the part of Pole allso and demised a fourth part to the Plaintif but the Serjeants could not agree whether it was Poles fourth part or otherwise the fourth part generally and as it seemed to the Court if it were the fourth part of Pole then the Avowry is not maintainable but otherwise if it were the fourth part generally And after in Michaelmas Term the case was rehearsed again and it was that he demised eandem quartam partem to hold at will And all the Justices agreed that it shall be discharged because it was never charged allthough once he might have distreined in all the Mannor Vnion of possession for that then there was no fourth part for all was alike in the hands of the purchaser but now when the fourth part is in the hands of a stranger it is no reason that it shall be charged Walmisley But the Tenant at will hath nothing but the profits by the way of taking Tenant at wil. and not any land but if Hatcher had made a Feoffment then I agree that it shall be discharged â—eryam And as well shall Tenant at will take the profits in his own right as long as the will doth continue wherefore judgement was given for the Plaintif 23. LEssee for years Wast the reversion in fee to Constance Foster and the Lessee granted over all his term and interest to A. B. Pasch 18 El. reserving and excepting all trees growing in and upon the premisses Rot. 420. the Lessee makes wast and destruction in the trees and C. F. brought Wast against the assignee and if this action will lye or no was the question wherein it was disputed whether this exception and reservation made by the Lessee be good or no for if the reservation be voyd then the action will lye well against the Assignee and thereupon these cases were put to shew both what interest the Lessor and Lessee have in the Trees viz. 33 Hen. 8. 2 Hen. 7. 42 Ed. 3. 21 Hen. 6. 46. 27 Hen. 6. Wast in Slatham 2 Eliz. fol. Danseyes case 7 Hen. 6. 12 Ed. 4. but to prove the reservation voyd Fenner took this ground That thing which a man cannot grant he cannot reserve and the Lessee cannot grant the Trees ergo he cannot reserve them And afterwards judgment was given for the Plaintif for default of pleading on the part of the Defendant but for the matter in Law two Judges were against the other two so that they could not agree De Term. Mic. An. Reg. Eliz. xxix xxx 1. AN action of Debt was brought by Bret against Andrews upon an Obligation indorced with condition to stand to the arbitrement of A. B. Request who did arbitrate that the Defendant should pay to the Plaintif xxâ—l and appointed no certain day of payment and the Defendant in pleading confessed the arbitrement but he sayd further that the Plaintif did never require him to pay it and thereupon the Plaintif demurred in Law and upon reading of the Record the Court held clearly that it was no plea because the Defendant at his peril ought to make payment within convenient time and the Plaintif needeth not to make any request And Anderson commanded to enter judgment accordingly 2. FEnner moved this case Possibility of Interest a man deviseth lands to his Wife for term of her life and if she live untill his sonne come to the age of 24 yeares that then he shall have the lands and if she dye before he come to that age that then I. S. shall have it untill his sonne come to that age and dyed then I. S. dyed before the wife and after she dyed before the sonne came to 24 years if the Executors of I. S. shall have the land untill the sonne come to that age or no was the question And the opinion of all the Court was that they shall not have it because their Testator had never any interest vested in him Fenner But here was a possiblity of an interest Curia But that is not sufficient Rodes cited the case of Bret and Rigden in the Commentaries Grant Anderson If I grant you that if you pay me xxl. at Easter then you shall have an Annuity of xl s to you and your heirs if you dye before Easter now your Heir shall never have it and so in this case 3. THatcher recovered in an Assise of Novel disseisin against Elmer for Lands in Hackney in Middlesex Redisseisin and after Elmer re-disseised him and Thatcher re-entred and Elmer disseised him again And Fleetwood moved the Court if Thatcher may have re-disseisin because that after action accrued to him he had re-entred Anderson What is the Judgement in this Action Judgement Surely it is not that he shall recover any land but double damages and that the
Defendant shall be taken and shall make a Fine wherefore forasmuch as he shall recover no land the entry into the land cannot purge the offence and wrong which is made punishable by the Statute and so was the opinion of the whole Court And the Court then held opinion likewise that if a man be disseised and after re-enters and is disseised again Assise that he ought to have an Assise of the last entry and not of the first 27 Ass pl. 42. 4. ONe Powell was sued in the Common-Pleas Privilege and as he was coming to Westminster he was arrested in London and thereupon had a common Writ of Privilege surmising that he was coming to retain Counsell and Walmisley prayed that he might be examined whether he did so or no but the Court would not Walmisley It is no reason that if he be going about other matters he should have the privilege of this place Curia A hundred Writs have been allowed without any examination Walmisley In 10 Hen. 6. 4 Hen. 7. such an examination was made Anderson But that was not de rigore Juris and all the Court refused utterly to examine him But Walmisley sayd privily that it was against the Law 5. DOrothy Millington brought Debt against J. Burges for 9 l. and declared that he bought certain Oad Wager of Law and the truth of the case was this Oad was sold to him upon condition that if she did not prove it to be good and sufficient then he should pay nothing for it and all this was disclosed by the Defendant upon his Wager of Law Detinue Windham If the case be so then you may wage your Law and it was sayd that she must have detinue for the Oad 6. IN an Avowry made by the Lady Rogers Title in avowry it was sayd by the Court Anderson absente that it is sufficient for the Avowant to plead his Freehold but if the Plaintif will traverse the same he ought to make himself a title Nelson Pronotary so are all our Presidents Peryam It is not sufficient to make it of his own seisin but he must make it Paramount his own seisin 7. WAlmisley moved for Judgement in the case of Richard Hanington for the Plaintif For he sayd that it was not clearly discharged because of the possibility of the charge ensuing allthough the charge were not then presently executed in proof whereof he sayd that it is not all gone by the acceptance of the Feoffment and then it is a bargain for a Lease for years is a bargain for there he hath quid pro quo Allso it is a Title as in Nichols case in the Commentaries And then allthough he had nothing which he could release because it was casuall whether it shall happen or no yet now when it happens it is a charge ab initio and thereupon he cited 9 H. 6. where one which had nothing but a possibility may maintain And so where a man makes a Feoffment and covenants that it shall be discharged as here and afterwards his Wife recovers her Dower the Covenant is broken and yet it was but a possibility And 8 Eliz. where a man covenants that it shall be discharged and he had granted a Rent charge to begin twenty years after this was not discharged Fenner argued to the contrary for the reasons moved by him before Peryam Here allthough it be no charge at the time of the Feoffment yet it is not discharged for if it were discharged then it shall never be charged afterwards And so was the opinion of all the Court Anderson absente and after at the end of the Term when Anderson was present they were all agreed that it was an incumbrance and not discharged of the incumbrance and therefore they gave Judgement for the Plaintif 8. IN Avowry by Johns of Surrey Esquire Tenure it was sayd by Anderson for Law that if a man before the Statute of quia emptores terrarum makes a gift and reserveth to himself upon every alienation the value of the Land by a year this shall be adjudged according to the value of the Land at the time of the tenure and not that whereunto it is enhauâ—ced at this day for a tenure ought to be certain when it is made 9. â—Aven brought Debt upon an Obligation against Stockdale who pleaded non est factum Statute 23 H. 6 and the Jury in Norfolk found this specially Verdict that the Defendant was sued by the Plaintif and made a Bond to the Plaintif endorced with Condition that if the sayd S. did personally appear in the Queens Majesties Court called the Kings bench and then and there make answer to such matter as the Plaintif should object against him the sayd Plaintif giving him warning that then c. And the Plaintif was neither Sherif nor Sherifs Officer for the pretence of the Defendant was to avoyd it by the Statute of 23 Hen. 6. And now the Plaintif prayed Judgement Anderson The case is no more than this A man is bound to another to appear at his suit in the Kings-bench and doth not so if this Obligation shall be avoyded and I see no colour to avoyd it for it is not within the Statute and all the Judges agreed clearly that it is not within the Statute and therefore they gave Judgement for the Plaintif 10. BLosse brought Trespass vi armis against Halmon for taking of his Goods Possession the Defendant pleaded not guilty and the Jury found a speciall Verdict that the Plaintif at the time of the Trespass supposed was of the Mystery of the Grocers and that the Defendant was his servant and put in trust to sell res mercandisas detempore in tempus in shopa sua existen and he took those goods and carried them away c. and they prayed the advise of the Court The doubt was because the action was vi armis whereas the Defendant had the custody or if this shall be called a custody Shuttleworth for the Plaintif and he cited the case in Littleton fol. 15. if I deliver my sheep to compost your land Sheep and you kill them I shall have trespass whereto the Justices agreed and held clearly that he shall have this action well enough Auctority Peryam he hath but an auctority only and not any custody or possession v. 2. E. 4. 22. 2 E4 8. 22 E. 4. 5. 13 E. 4. 9. Tenant at will ought not to cut down trees nor abate 3. H. 7. 12. 21 H. 7. 14. the case of Butler 11. TRespass by Foster against Pretty and his wife Title who justified that I was seised and made a lease to them for yeares c. the Plaintif replied de son tort demeasne Absque hoc that he leased c. Peryam Will you take a Traverse and not make your self a title Curia without question you ought to make your self a title otherwise it is if the Defendant claym a Common or such like and no
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
Wast and the Defendant demurred in law whether such an action will lie against him or no it was for cutting down of trees And at this day Anderson rehearsed the case and said that they were all agreed that the action will lye well enough vi armis for otherwise he shall have no action for wast is not maintainable and Littleton saith that Trespass lyeth so seemeth the better opinion in 2 E. 4. 33. for otherwise this being a common case it shall be a common mischief And he commanded the Pregnotary to enter judgement for the Plaintif 18. Snagg moved to stay Judgdment in the case of Blosse Property and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods Trespass will not lie sed vide librum and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler Windam If he had imbezeled the goods it is Felony and for the case of 3 Hen. 7. it is Felony without question Property quod fuit concessum Anderson The servant hath neither generall nor speciall property in the goods Taking Embezeling and he shall have no Action of Trespass if they be taken away and therefore if he take them Difference Trespass lieth against him and if he imbezell them it is Felony wherefore he commanded to enter Judgement for the Plaintif 19. THomas Taire and Joane his Wife brought an Action of Wast against Pepyat Pas 25. Eliz. and declared how that the Defendant was seised in Fee Rot. 602. and made a Feoffment to the use of himself for life Wast and after to the use of the Mother of Joane in Fee who died and it descended to her and after the Defendant made Wast c. The Defendant pleaded that he was and yet is seised in Fee Absque hoc that he made the Feoffment in manner and form pro ut c. And the Jury found a speciall Verdict that the Defendant made a Feoffment to the use of himself for life but that was without impeachment of Wast the Remainder in Fee as before And the Plaintif prayed Judgement and the doubt was because they have found their issue and more viz. that it was was without impeachment of Wast Anderson Whether it were without impeachment of Wast or no was no part of their issue and then the Verdict for that point is void and the Plaintif shall have Judgement VVindham The doubt is for that they have found that the Defendant is not punishable and where a Verdict discloseth any thing whereby it appeareth that the Plaintif ought not to Recover Judgement thereupon ought to be given against him As in detinue the Plaintif counts upon a Bailment by himself Bailment and the Jury findeth that another Bailed to his use the Plaintif shall not Recover And a Serjeant at the Bar said that the issue is not found Anderson That which is found more than their issue is void Assise and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise â—i troâ—â— ne so it c. and the Jury found that he was Tenant but that he held jointly with another and there the Plaintif Recovered and so he shall here And at length by the opinion of all the Court Judgement was entred for the Plaintif for he might have helped the matter by pleading 16. IN debt by May against Johnson Payment the Condition was to pay a 100. l. to Cowper and his Wife and by all the Court if he plead payment to Cowper alone it sufficeth for payment to him alone sufficeth without naming the Wife 15. IN a Quare impedit by Sir Thomas Gorge Avoydance against the B. of Lincoln and Dalton Incumbent the case was that a Mannor with an advowson appendant was in the hands of the King then the Church becoms void and after the King grants the Mannor with the advowson now the question was if the Patentee shall have this presentation or the King And all the Judges held clearly that the avoydance doth not pass for it was a Chattell vested in the King and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh nat br is contrary fol. 33. 11. 22. DEbt was brought by Goore Plaintif for 200. l. Bailiwick upon such a Bill Be it known unto all men by these presents that I Ed. Wingfield of H. in the County of Midd. Esq do acknowledge my self to be indebted to William Goore in 200. l. for the payment whereof I mine Heirs and Assigns do licence the said G. to have and use the Baliwick of Dale to the use c. untill c. the Defendant pleaded in bar that the Plaintif had used the said Bailiwick and said no more nor at what place he had received the money and Suagg moved that the Plea was not good because he had not shewed the value which he ought to have done Value and the Judges were of the same opinion and they said moreover that this Plea is not good in bar of this specialty for payment is no plea upon a single Bill Licence and he might have brought his Action upon this Bill without using the Bailiwick for this Licence is no Condition 〈◊〉 De Term. Hill Anno Eliz. xxx 1. AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton Covenant and the case was this A man maketh a Lease for years rendring Bent upon Condition with a Covenant that the Lessee shall repair the Houses with other Covenants And after he deviseth the same Lands to the same Lessee for more years rendring the like Rent and under the like Covenants as in the first Lease the remainder over to another in Fee and dyeth Then the first Lease expires and the Lessee held in by force of the Devise aâ—d did not repair the Houses so that if the first Lease had been in esse Condition he had broken a Covenant now if this shall be a Condition so that he in Remainder may enter was the question Shuttleworth This is a Condition for he cannot have an Action of Covenant and then the intent was that it shall be a Condition But all the Court was against him and that the intent was not so for the words are under like Covenants which words do not make a Condition allthough they be in a Will Anderson The nature of a Covenant is 〈◊〉 to have an Action and not to enter and so all the Court held it no Condition And Perâ—â—â— said that under like Covenants were void words and therefore Judgement shall be given against you 2. PUckering the Queens Serjeant moved Fee determinable that one Adams was indebted to the Queen in a great sum which was stalled to pay yearly so much untill all werere paid And for security he levied a a fine to William Lord Burghley Lord Treasurer and others that they should
half whereby the Land was sown accordingly and that the Bore of Okely came and destroyed the Corn. Sed utrum c. And the doubt rested upon two points 1. because the Verdict saith that it conteineth sixty Acres and so shall be intended not the same place and the Court varied in opinion thereof insomuch that the sixteen Acres are found to be within the close conteining sixty Acres but for the 2 which was that they all four joyned in quare clausum fregit and it appeareth that three have nothing there Verdict shall abate the Writ but that Hare is sole seised And for that the Court held opinion that the Verdict shall abate the Writ for the Defendant cannot break their close where three of them have nothing but Hare onely Rodes A Case hath been adjudged a where Cheâ—ey brought Partition against Bury Partition who pleaded that they did not hold in Common and the Jury found that he and his Wife held in Common and yet the Verdict abated the Writ Windham You will all grant that the other three have no interest in the Land quod Walmisley concessit how then can they have quare 〈◊〉 fregit Fenner Executors shall have quare clausum fregit Executors and yet they have no interest in the Land Rodes There they have an interest for the time Anderson Here is but a bargain and no interest and then the three have no colour to bring Trespass quare elaâ—sum fregit 10. THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law Avoydance and now the Record was read and day given over to hear the Arguments but 〈◊〉 said that it is all one case with that which hath been adjudged here viz. that the Queen hath title of Lapse and doth not present but the Patron presents and after the Church becomes voyd by the death of the Incumbent that now the Queen shall not present but the Court answered Difference between Death and Privation that there the avoydance came by death but here it cometh by privation and whether this will make a diversity was the question 11. HArper brought Trespass against Spiller and Drew Estate upon not guilty pleaded a speciall Verdict was found and the case in effect was this F. gave Lands to a woman to have and to hold to her to the heirs of F. of the body of the woman ingendred what estate the woman had was the question and now the Record was read and day given over to argue it 12. SHuttleworth moved the Court Amendment and shewed that one Brokes by had brought a Quare impedit against the Bishop of Lincoln and others and the Writ was suam spectat donationem and this word 〈◊〉 was omitted and he prayed the Court that it might be amended and he cited 11 Hen. 6. 2. where it was imaginavit and it should have been imaginat fuit and 13 Hen. 7. where the teste was omitted and the Court took time of advisement and at length by the opinion of all the Justice it was amendable and then a Clerk of the Chancery came into the Court of the Common-pleas and amended it 13. IN an Avowry for an Amercement in a Leet By-law a Prescription was made for making of By-lawes and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants and not for the private commodity of any particular man as J. S. onely or the Lord onely As if a By-law be made that none shall put in his beasts into the common-field before such a day this is good but if a By-law be made that they shall not carry hay upon the lands of the Lord or break the hedges of J. S. this is not good because it doth not respect the common benefit of all And Windhaâ—â— sayd that some Books are that they shall bind no more than such as agree to them 14. HAre brought Debt against Curson for a great sum Capias utlâ—gatum and Process continued untill Capias â—tlog And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ because they doubted thereof and the Writ was delivered to the Sherif in Court and he sayd that he would doe his endeavour but Curson hath long kept his house so that he cannot come at him Peryam You may take the power of the Country with you and break his house and take him out for so it hath been adjudged here which the Court granted 15. PUckering shewed how an Action of Debt was brought against an Administrator Assetâ— who pleaded plens administraâ—it and thereupon the Jury found a speciall Verdict that certain Obligations made by the Testator to the value of a hundred pound were forfeit and the Administrator took in the said Bonds and gave his own Bond for the Debt and retained the money in his own hands besides which c. he had nothing c. and if that hundred pound shall be liable to this Action of the Plaintif they prayed the advice of the Court and by the opinion of Windham and Peryam it shall not be Assets because the property is changed in giving his own Bond for the same Payment with Proper râ—â—ds and it is as if he had payd the Debts with his own goods but if he had compounded for less Surplusage then the surplusage should have been Assets But Rodes was of a contrary opinion in the principall case forasmuch as he had payd no money but onely given his Bond for in and Anderson was absent at this day And after at another day the case was moved again by Shuttelworth and then he shewed that for part thereof the Administrator had given his Bond and for another part his promise Promise and he sayd that this is no payment but a composition and therefore no change of property Anderson For so much as he hath given his promise I think it not good because that by this promise this first debt being due by Bond is not discharged but for so much as he hath given his Bond for I hold it good enough because the first Debt is discharged thereby allthough that the Obligation be made to a stranger Estranger by the appointment of the Debtee and allso before the Debt due for by this the first Debt is gone And Windham and Peryam were of the same opinion that the Debt was discharged and that it should not be Assets in his hands but Rodes doubted thereof and it was adjorned 16. JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants Abatement and after a Verdict found for the Plaintif and before Judgement one of the Defendants died and the Writ was adjudged to stand good against the other 17. IN Debt by Saunderson Wager of Law the Defendant pleaded nil debet per legem and in truth the money was due to the Plaintif but the Plaintif was allso
indebted to the Defendant in the like sum and before the Action brought they were agreed that each of them should be acquitted against the other and thereupon the Defendant would have waged his Law Concord and Anderson and Peryam doubted much whether he might do so or no for an accord without satisfaction is no pleaâ— and Debt cannot be discharged by paroll No discharge by word but Rodes sayd that it is good by consent of the parties and so sayd some Serjeants and Fenner cited 11 Rich. 2. tit Bar. 242. where a man hath a Rent by way of Retainer and Rodes cited 22 Hen. 6. 37 Hen. 6. Payment by way of Retainer 18. EDward Sibill brought Debt against George Hill Rent suspended for Rent reserved upon a Lease for years and the Defendant pleaded that the Plaintif had entred into part before any rent due and the issue was expulit amovit adhuc extra tenet whereby it is plain that entry into part suspends all the rent And in Hill Term before in the like case for rent reserved Pleading the Defendant pleaded nil debet per priam and he would have given in evidence an entry before any rent due per Curiam he could not doe so but ought to plead it ut supra for it doth not maintain the Issue no more than in the case of Wast 12 Hen. 8. 1. 19. IN a Quare impedit by Agnes Kemp against the Bishop of Winchester Joynt Advowson Anderson told the Jury upon the Evidence given that if there be four Joyntenants of an Advowson and one of them grants over his interest this is good and the survivor shall not hold place And Windham and Rodes did not gain-say it and Peryam was absent but Fenner spake against it because it is a thing entire but Anderson clearly to the contrary 20. CUnuy brought an Action of Debt upon an Escape against Sir James Harrington Sherif of the County of Huntington Escape who pleaded that the Plaintif dedit concensum eidem Jacobo that the prisoner should goe at large whereby he did so Walmisley He ought to plead it by way of licence and not by consent Curia The Plea is good without question and he may take issue thereupon 21. TAylor brought an Action upon an Assumpsit against Fulham for payment of money Release by word and the Defendant pleaded that after the Assumpsit the Plaintif released to him all Assumpsits and this he pleaded without Deed and the Court sayd that this Plea is not good and they commanded Shuttelworth to demur to it and they would give him expedition and he demurred to the Plea and Anderson was very angry with the Serjeant which set his hand to the Plea 22. IAne Plain was Plaintif against Sams Tenant by curtesie and the Jury found a speciall Verdict viz. that one Jane Plain the Mother was seised in fee and had issue Elizabeth and Jane now Plaintif and by Indenture upon consideration of naturall affection to her two Daughters covenanted to stand seised to the use of Elizabeth in tayl upon condition following viz. that the sayd Elizabeth the heirs of her body or their Assignes should pay to Jane now Plaintif thirty pound within one year after the death of Jane the Mother or within one year after that Jane now Plaintif should accomplish the age of eighteen years and for default of issue in Elizabeth the remainder to Jane now Plaintif in tayl Elizabeth takes a Husband and hath issue of her body which dyeth without issue and Elizabeth did not pay the thirty pound within the year after the death of Jane the Mother and then Jane now Plaintif came to the age of eighteen years Disability of performance and after Elizabeth dyed within the year after that Jane came to the age of eighteen years without issue and after the year passed and no money was payd whereby the Plaintif entred and if the Husband shall be Tenant by the curtesie was the question and upon the motion the Court was clear in opinion that he shall be Tenant by the curtesie for the condition was gone because Eliz. dyed within the time which she had limited to her for performance therof And Anderson sayd that if an estate be determined by limitation this will not avoyd a Tenancy by the curtesie Limitation condition difference but otherwise it is if the estate be determined by a condition for this shall relate to the defeasance of the estate 23. EJectione firme was brought by Stapley against Lark Use and upon Evidence the case was that Feoffees seised to the use of B. before the Statute of 27 Hen. 8. by consent of B. made a Feoffment to another and his heirs to the use of the sayd Feoffee and his heirs and the Feoffee had notice of the first use now if he shall be seised to his own use or no was the question and all the Justices held that he shall be seised to his own use because the use was so expressed upon the Feoffment And so is the Law if the second Feoffment had been in consideration of money Consideration of mony allthough no use had been limited yet it should have been to the use of the Feoffee and his heirs and not to the first use 24. IT was the opinion of three Justices Disseisin that if a man levy a Fine sur conisans de droit come ceo que il ad de son don c. and after continue possession that yet he is a Disseisor and not Tenant at will or sufferance and that a Praecipe lyeth against him De Term. Pasch Anno xxx Eliz. Reg. 1. IN a Writ of Annuity it was the opinion of the Justices that if one grant a Rent charge to B. which is paid to him Rent charge and after B. grants it over to C. and the Tenant of the Land attourneth that now C. shall not have his election to make this an Annuity but ought to take it as a Rent charge 2. THomas Michell brought debt upon an Obligation against Stockwith and Andrews Seal fall off after issue and the Jury found a speciall Verdict viz. that after the issue joyned and before the nisi prius the seal of Andrews was fallen off si c. Windham A case hath been adjudged here that where a Bond was delivered to the Custos brevium to be kept and the Mise broke the seal Custos brevium and the Court adjudged that the Plaintif should be at no prejudice thereby And here insomuch that no fault was in the Plaintif the Court awarded that he should recover and Judgement was entred accordingly 3. WIghtman is Plaintif against Chartman Conjunctim And the case was this two were bound in an Obligation quilibet eorum conjunctim and the Action was brought against one alone and the opinion of the Court was that it is not maintainable by reason of this word
have against him untill the 24 of June then next following which was half a year after and because he had not performed this an action upon an Assumpsit was brought and Judgement given for the Plaintif and all the Justices agreed that this was Error because that this thing arbitrated was out of the submission and so voyd for they have no authority to arbitrate that which is not submitted unto them Submission and the submission is onely of things passed and not to come but because that the Defendant had not heard of this Error before therefore they gave him day Afterwards the case was moved again and Anderson sayd that damages recovered doe not lye in arbitrement Damages recovered Peryam Amongst other things they will lye well enough quod Anderson non negavit But they all sayd that they may well assume upon consideration and an Action will be maintainable for it 5. THomas Mounson Esquire Term extinguished sonne and heir apparent to Sir Iohn Mounson Knight brought an Action of Trespass against VVest who pleaded not guilty and upon Evidence it appeared that Sir Iohn Mounson had an estate for years the Remainder in tayl to the Plaintif with divers Remainders over and the Lessee made a Feoffment to divers and a Letter of Attorney to others with commission to enter into the lands and to seal the Feoffment and deliver it in his name to the use of the sayd Thomas and his heirs and another by commandement or Letter of Attorney of the sayd Thomas entred in his name And the Court held this a good Feoffment notwithstanding that both the Lessee and the Attorney were disseisors Disseisors for it is good between the Feoffor and the Feoffee for they sayd that by the Feoffment to the use of him in the remainder and his heirs if he in remainder enter he is remitted and the estate for years is gone implicatively Freehold joyned to the term Morgage for Peryam sayd that in all cases where the Freehold cometh to the term there the term is extinguished And therefore if a man morgage his reversion to the Lessee for years and after perform the condition yet the Lease for years is utterly extinguished And the Evidence on both parts was very long and the chief matter was whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas by which Devise lands were conveighed to him by William Mounson his Father whose heir at the Common Law Sir John Mounson is viz. the Sonne of Roberts eldest brother and the Deed was shewed by VVest and it was perished with Mice all the Seal and part of every side but yet by the last Will of the sayd VVilliam Mounson and by divers other proofs it was evident that the Deed was good and but little in effect was shewed to prove the Deed forged Misdemenour yet the Jury went together and tarryed there all night and in the mean time some of them had victualls with them for one had Cheese and another had Pruens another had Pippins and another had an Orange but he which had the Orange swore that he brought it onely for the smell and therefore he was excused and he which had Pruens had given half a Pruen to one of his companions which eat it and he which had Cheese had eat thereof therefore all those which had victuals Fine and imprisonment were fined at 40 s and they which had eaten at 5 l. every of them and all committed to the Fleet but because they were agreed therefore the Verdict was taken and the Verdict was given for the Plaintif viz. that the Deed was forged by Justice Mounson and the Verdict taken de bene esse and all this matter commanded to be entred for the Justices doubted whether it were a good Verdict This matter was moved divers Terms afterwards and at the last adjudged a good Verdict 6. IN an Ejectione firme by Ashby against Laver for Lands in Westminster Countermand it was sayd by all the Justices to the Jury that if a man hath a Lease and disposeth of it by his will and after surrenders it and takes a new Lease and after dyeth that the Devisee shall not have this last Lease because this was a plain countermand of his Will 7. IN Trespass by Johnson against Astley it was said by the Justices to the Jury that if there were a Chauntery in reputation allthough it be none in right as if it be gone by disseisin yet the Queen shall have the Lands 8. AT Serjeants-Inne in Fleet-street Rent suspended the Justices of the Common Pleas and Barons of the Exchequer were assembled for divers Errors in the Kings-bench and the case of Rawlins was moved again and Anderson and Peryam retained their former opinions and Peryam sayd that he would differ from all the cases of collaterall conditions Feoffment upon condition which may be put for he sayd that if a man make a Feoffment in fee of 20 Acres of land upon condition that if he pay to the Feoffee xx l. at Easter that then it shall be lawfull for him to re-enter allthough that he be re-enfeoffed of 10 Acres yet he ought to perform the condition because it is collaterall But Cook the famous Utter-barrister sayd Truly it hath been adjudged to the contrary and I was privy to it for when he took as high an estate again as he had before by that the condition is confounded and the case of the Corody in 20 Ed. 4. will prove this case Rodes I see no diversity Peryam It is collaterall there but so it is not here but afterwards those two Judges changed their opinions and so the first Judgement was affirmed 9. BRown recovered against Garbrey in an Assumpsit Consideration and thereupon Garbrey brought a Writ of Error and assigned for Error that there was no Consideration for the Declaration was that whereas there was a communication between Brown and a woman for Mariage between them that the Father of Brown had promised to the Wife that if she would marry his Son he would make a Feoffment of his land to the use of himself for life and after to the use of them two in tayl the remainder c. and that Garbrey assured to the Wife in consideratione praemissorum that if the Father did not doe so then he would give the Wife a hundred pound ac licet the Father did not give to them in tayl secund agreament praedict yet Garbrey refused c. And Cook moved that this should be no Consideration for the communication of Mariage was not by him but between strangers to him but if the Father had assumed in consideration of Mariage then that should have been good against the Father but against Garbrey it is â—o otherwise than as if one promise to you to Enteoff you and I say that if he doe not so then I will give you a hundred pound this is
the Land should pass by this words Appurtenances For allthough that in late Books Lands shall not pass by this word Appurtenances yet this is good authority to prove that they shall pass as 7 Hen. 5. 41. T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning and here upon this devise 4. l. Rent is reserved and the antient Rent is but 45. s and if the Land should be racked it is all worth but v. l. a year and because they are held in Capite therefore by the Statute we shall have but two parts And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney Valew wich are not worth so much therefore somtime the valew is considerable in a Will and cited 4 Ed. 6. 7 Ed. 6. and so he thought the Plaintif ought to recover And at this time the Court seemed to be of the same opinion for they gave day over to the Defendant at which day if nothing were said Judgement shall be given for the Plaintif 4. GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon Survivor the case was such H. was seised in Fee and had issue Mic. 29. 30 three Sonnes Eliz. râ—t 2325. John VVilliam now Plaintif and Richard now Defendant And by his last Will devised Lands to Iohn and to the Heirs Males of his body ingendred and devised other Lands to William in like sort and other Lands to Richard in like sort And that if any of his Sonnes died without issue Male that then the Survivor shall be each others Heir Afterwards the eldest died without issue Male And if William shall have all his part alone or else he and Richard between them was demurred in Law and day was given over to argue it 5. WAlmisley shewed how an Action was brought by Berdsley against Pilkington Impounding upon the Statute of 2 3 P. Mary for driving a Distress out of the County And shewed the truth of his case that the Distress was taken in the Hundred of Offlay in Staffordshire and the City of Lichfield was sometime within this Hundred And by Letters Patents of 1 Mariae the City was made a County of it self and he which took the Distress impounded them within a pound in the County of the City of Lichfield now whether he hath incurred the penalty of the Statute or no was the question And because the Court had not a Statute Book there to see the Preamble therefore they would give no resolution Anderson The meaning of the Statute was because the Bailif of the Hundred might make deliverance Allso I think it is within the compass of the Statute because the City was a County severed before this Statute made And the Serjeants at the bar said Same Hundred that the party may drive the Distress as far as he will within the same Hundred but he ought not to drive it above three miles without the Hundred 6. IOhn Slywright exhibited an information upon the Statute Champerty for buying of Titles Pasch 30. Eliz. rot 1532. against Page and declared how Joane Wade demised to Page for 60 yeares the Defendant pleaded not guilty And now a Jury of Sussex appeared at the bar And upon Evidence it was moved â—if a man have a lawfull Title to enter into Lands Lawfull title but hath not been in Possession and he entreth and makes a Lease for yeares thereof if this be within compass of the Statute Anderson It is within the Statute for the mischief was that when a man had a Title to Land he would let it to another to have maintenance and imbracery and make contentions and Suites for remedy whereof the Statute was made For if a man have a Title he may recover according to his Title Recovery Peryam The mischief hath been truly recited and therfore it is reason to restrain such bargains But if a man Recover by Formdon or Cessavit and make a Lease this is not within compass of the Statute A pretended Right allthough that he hath not been in Possession by a year and in my opinion the Plaintif need not prove that it is a pretented Right because the Statute expoundeth what is a pretented Right viz. if he hath not been in possession And so I have delivered my opinion before this time Anderson If a man hath not been in Possession and cometh to me and saith that he will make me a Lease and demands if I will take it and I agree thereto whereby he maketh me this Lease Ignorance if I do not know that he hath not been in possession I am not within the Statute And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor whereby he might take the Lease well enough For Fleetwood cited 6 Ed. 3. if one brother maintain the other this is not within the Statute of Champerty which case the Court agreed this is for speciall cause vide statut de articulis super cartas Maintenance Champerty Difference Anderson One brother may travell for another and maintain him but if he take a Lease of him he is within the Statute of 32. Hen. 8. for this is a generall mischief and the mischief is as great if the brother take a Lease as if another take it The case quod Periam coucessit clearly but because it was the case of the Defendant the Jury found a speciall Verdict viz. that the Lands were conveyed by the Husband of Joane Wade to the use of himself and his Wife in Tail-speciall the Remainder to the Husband in generall-Tail the Remainder to the Wife in Fee and after the Husband Enfeoffed diverse men thereof and the Feoffees continued in Possession diverse years After the Husband died and then the Wife by indenture sealed and delivered of the Land made a Lease to Page which knew all this matter Knowledge from the fift day of Jenuary last past for 60 years if the Wife should live so long and that the Wife was Sister to Page the Defendant by the Mother and found the valew of the Land as if it should be sold and they prayed the advise of the Court c. And the morow after the like information being brought against the woman being Lessor the like Evidence was given and the like case found 7. FEnner moved this case to the Court. Recovery An Alien born purchaseth Lands in Tail the Remainder to a stranger in Fee The Alien suffereth a Common Recovery to his own use in Fee And after an Office is found of all this matter if the Remainder shall be to him which had it before or no was the question Anderson I think the Queen shall have a good Fee-simple Tenant sufficient to the praecipe for if there be a good Tenant to the praecipe then is the Remainder gone and you will not deny but that
Will shall be good Rodes If a man make his Will and after do become non compos mentis and then live three or four years after Long life maketh difference it is no reason that such a Will shall be good and he cited 3 Edw. 3. it in Northt for this case Gawdy If the Proviso in the Statute of Wills had not been then every Will made by a Feme-Covert should have been good Tota Curia That is nothing so for allthough the Proviso had not been Reasonable construction yet the Statute should have had a reasonable construction But for the principall case the Court was not yet resolved After at another day Gawdy moved the case again and held strongly that by taking of a Husband this is not Countermanded and cited 2 R. 2. and then during the Coverture she hath sâ—bmitted her Will to her Huâ—band For by 3 Ed. 3. it in Roteland she cannot devise to her Husband whereby he concluded that the VVill is good Shuttleworth to the contrary because she hath no ability at the time when it should take perfection and every Will ought to have three things Inception Progression and Consummation And he cited Bret. and Rigdens case Anderson I am of my first opinion that this VVill is not good for I think this Countermand by the Wife is sufficient â—â—uâ—termand by one not of found mind and if non compos mentis say that he doth revoke his Will this is a sufficient Countermand And whereas it hath been said that a Feme-Covert hath no VVill Sir that is not so for she hath a Will in many cases Wills of feâ—e 〈◊〉 as if she be Executrix she may make a gift c. So if I be bound to do such an Act if such a Feme-Covert will consent in this case if the Husband onely consent it is not sufficient but the Wife ought to assent allso And if this Will shall be good then this mischief will ensue that after a Will is once made the partie shall have no power to controll it Controlement therefore I think the Will is not good Wyndham I am of the same opinion For a Will is not perfect untill after the death of the Devisor No countermand and when she is disabled at the time of her death the Law saith that such a Will is void But I think that a Feme-Covert cannot Countermand her Will for the same reason which doth disable her to make a Will doth allso disable her to Countermand that which is made before for by 3 Edw. 3. Consummation which was cited before she cannot devise to her Husband and by the same reason she cannot Countermand that which is devised to her Husband but because the Wife was not a person able at the time of the Consummation thereof therefore it is not good Marâ—iage no countermand Peryam to the same intent First the Mariage is not any Countermand and for the case in 2 R. 2 I think it good Law And I have allwaies taken this diversity that if a woman grant the Reversion after Tenant for years Reversion and before Attornment had she take a Husband that this is a Countermand but if that it be a Reversion after Tenant for life then it is no Countermand For in the first case his Title of Tenant by the Curtesie begun by the intermariage Allthough that it was not consummate before issue had And it seemeth a clear case that a Feme-Covert cannot Countermand a Will for she cannot make a Will And whereas it hath been said by my Lord that a woman hath a will Will by customâ— or by some by-matter true it is but that is either by custom or by reason of some by-matter as in the cases put But VVills ought to take effect at the time of the death and if then she be disabled it is not good for it is not consummate before as if there be Husband and VVife and the Husband be seised of Lands in Fee and levy a Fine thereof and then dye and after the levying of the Fine five yeares pass yet she shall not be Barred but if after the death of the Husband five yeares pass she is barred by a Fine because her title was not conmsumate untill after the death of the Husband whereby c. Rodes to the same intent for if I devise the Mannor of Dale as it is iu the Com. for c. and then have nothing in it but afterwards purchase it Perfection now it shall pass which proveth that the perfection of a Will is at the time of the death and in 39 H. 6. a man devised lands and before his death was disseised Disseisin after Will nothing passed by the Will because it was no Will untill death and here in our case because she was disabled at the time of her death it is void Anderson Then let judgement be entred accordingly 17. A Proclamation was directed to the Sherif of Cheshire against John Hockenhall Proclamation and the Writ was retorned Tale die ad comitat meum tent in le Shirehall c. Dyer fol. 206. proclamationem feci ac eodem die ad generalem Sessionem c. proclamationem feci c. And now this matter was pleaded in avoidance of the Utlary to reverse it because those proclamations were made one day whereas the Writ was tribus seperalibus diebus c. And the Sherif was amerced to forty shillings for his evill retorn And at another day he was amerced to other forty shillings because he had retorned divers Writs in Secretary hand Secretary hand And commandment was then given to the Custos brevium to receive no Writs retorned in Secretary hand for the Court said that writing in Secretary hand would be so worn in a dozen yeares that no man can read it 18. HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd â—â—perdict Common intendment Hen. Gooderd de London Tayler Trin. 30. Eliz. And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper dicti H. G de Lond. Rot. 2â—03 Barber Chirurgeon whereupon the Plaintif demurred And the Defendant did not aver that the said G. Tayler G. Barber Chirurgeon was allone person and they also omitted this word praedictum And whether this were good or no was the doubt And it seemed to the Justices that it was not good although it was alleged that it shall be intended all one person and then if a plea in bar be good to common intent it is good enough And therupon John Pastons case was cited in 21 H. 7. Where it was Westmonasteriuâ— doth not say praedictum Common intent what it is yet it shall be intended the same VVestm mentioned before Whereunto the Court answered that here by common intent he shall not be intended the same person but
rather to the contrary For common intent is that which shall be intended more strong than any other and not that which resteth indifferent As if a man Plead a Feoffment in fee it shall be intended that the Feoffer was of full age but here common intent is that he was another person because Barber Chirurgeon and Tayler are divers functions by common intent And as to the case put by common intent it shall be intended the same Westm because the place is so notorious that common intent will nor intend any other But Peryam would not grant that case of 21 H. 7. At another day Gawdy said that they have a President in 16. Eliz. where an action was brought here against the Administrator of Francis Fitzherbert Mercer And they pleaded likewise a Recovery in the Kings bench against them as Administrator of F. F. Grocer and allowed for good and in 10 H. 7. wast is brought and doth not say praedict and yet good Peryam For the cases in 10. H. 7. 21 H. 7. It was all in one Plea but it is not so here And for his President Anderson and Peryam said that they would not regard it if it do not appear that Exception was taken thereunto if the Presidents be shewen for matter Matter 〈◊〉 Form 〈◊〉 Presidents but if they be shewen for form then otherwise it is Anderson If I. S. bring a Praecipe against me and I vouch I. S. it shall not be intended the same person â—oucher if he do not say expresly that he is the same person therefore a Fortiori here it shall not be intended the same person Afterwards the next Term Shuttleworth argued again that it shall be intended the same person but all the Court was against him and so they gave judgement for the Plaintif 19 FEnner shewed how Bartholmew Brooksbie hath brought a Quare impedit A thing in action released and declared how A. was seised of the advowson in fee and graunted to him and another the next avoidance and after the church became void and the other released to him all his right c. and the Defendant disturbed him And after they pleaded to issue which was found with the Plaintif and this matter alleged in arrest of judgement that the Release was void and then he hath no cause of action for when the Church became void then it was a thing in action or actionary and therefore could not be granted over by 28 H. 8. Interest shall survive and by the same reason it cannot be released as 1 and 2 P. and M. and 2 and 3 P. and M. in Dyer Anderson If it be an interest it shall survive and by the same reason it may be released And it shall goe to his Executors wherefore then may it not be released Et adjornatur De Term. Mich. Anno xxxix xl Eliz. Reg. 1. TIsdale Maintainance one of the Attorneyes of the Common pleas brought an Action upon the Statute of Maintainance against John al Tree in Chancery lane for Maintainance in a Spirituall Court and by all the Court an Action is not Maintainable for Maintainance in an inferiour Court for this word alibi being in the Statute was expounded to be meant of the Kings Court onely and in the argument of the same case Drew remembred the Court of a Judgement given there in the like case for one Constantine of Wiltshire 2. BEtween Brown and Lother an Action was brought in the Spiritual Court Consultation for these words Thou art a forsworn Knave for thou madest a false account when thou wert Churchwarden and thereupon the Defendant brought a Prohibition supposing the discussing of Perjury to belong to the Temporall Court and upon the opening of the matter to the Court the Plaintif had a consultation because the Perjury was supposed to be committed about the execution of his Office of Churchwarden which doth belong to the Spirituall jurisdiction But otherwise it had been if the Perjury had been supposed to have been committed concerning a Feoffment or other Temporall act per Walmisley Owen 3. BRoughton against Flood Amendment the originall Writ was returned by Needham Esquire Sherif and his Christian name left out Williams moved the Court to have the Christian name of the Sherif put into the Writ but the Court denyed it because the Record was made up and likewise by this means they should make an Outlary good which was now erroneous 4. IN an Advowry the Defendant saith Venue that locus in quo c. is parcell of the Manner of Dale and avows for suit of Court the Plaintif by replication saith that locus in quo c. is parcell of the Mannor of Sale and maketh to himself a title absque hoc that it is parcell of the Mannor of Dale and the Venire faciaâ— was of Dale onely and upon motion all the Court adjudged that it ought to have been of both Mannors and made a rule for stay of Judgement after Verdict This was the case of Atwood of the Middle-Temple 5. IT was sayd by Anderson and Owen Prohibition that a Prohibition will not lye after a sentence in the Spirituall Court and that if the Libell be for such a matter as may be determined in the Spirituall Court no Prohibition will lye unless some Plea be pleaded by the Defendant in that Court which the Judge will not allow For if a Suit be in the Court of Admiralty upon a contract made upon the Sea and the Defendant pleaded a release or a gift after the coming to Land that Court may enquire and try this issue the like for Tythes 2 Rich. 3. 6. IT was sayd by Drew in the Argument of the case between Râ—theâ—â—â— and Green Common that if a Commoner take a Lease of one Acre out of which his Common is issuing that his whole Common is suspended Rent allso where a Lease for years is rendring Rent and for default of payment a re-entry if the Lessor grant the reversion of one Acre Condition the whole condition is gone Also that an entry by the Lessor into any parcel suspends the whole rent during his occupation and Anderson sayd that there is no Common by common right but Common appendant 7. ADams brought an Action of Debt upon an Obligation against Oglethorp Restitution the Defendant pleaded that after the making of the Obligation Trin. 39 Eliz. 〈◊〉 1803. the Plaintif was attainted of Treason for Coyning and pleads the Attainder at length the Plaintif confesseth the Attainder and saith that afterwards the Queen by Letters Patents did pardon him and did restore unto him omnia bona cattella sua and thereupon the Defendant did demur in Law the question was whether Debts by specialty be included in those words 8. EVeling against Leveson Executor of the Testament of Walton Assets in effect the case was this The Queen was indebted to Walton in a hundred pound for
Muskets and Callivers delivered into the Tower for which money Walton took a Debenter from the Queen in the name of a stranger and afterwards dyed and made Leveson Executor who procured the stranger to release and surrender the former Debenter to the Queen and took a new Debenter for the same hundred pound to himself this was adjudged no Assets nor devastavâ—t in the hands of the Executor Leveson upon a speciall Verdict but otherwise it should have been if the first Debenter had been taken in VValtons own name for then it had been a devastavit by the Executor 9. BAcon Plaintif against Selling in an Ejectione firme Assets de judgement the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39. Trin. 39 Eliz. rot 1345. so that it appeared to the Court that the Plaintif brought his Action before he had an interest in the Land and by all the Court a Rule was given for stay of Judgement after a Verdict but afterwards the Plaintif came and shewed that after Improlance he filed a new originall 10. HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words Scandalum magnatum viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged Warrant c. And the Earl recovered great damages by Verdict and now it was spoken in arrest of Judgement that the words were not sufficient to maintain the Action because it was not averred that the Earl knew the Warrant to be forged and of the same mind was the Court at this time 11. WIlloughby brought an Action of Debt against Milward Debt and declared that the Defendant bought Timber of him for ten pound solvend modo forma sequenti viz. five pound ad festum Pasch proxime sequentem and saith nothing when the other five pound should be payed and the Plaintif recovered the whole ten pound by Verdict and now it was spoken in arrest of Judgement for the cause aforesaid but yet by all the Court it was good enough for the Law intendeth the other part of the money to be due presently if no certain day of payment bee alleged 12. KItchin brought an Action of Debt against Dixson Debt Executor of Craven Mich. 36 37 El. rot 1028. or 1021. the Defendant pleaded ne unques Executor and the Jury found a speciall Verdict viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson and they found likewise that this Deed was to defraud Creditors against the form of the Statute and that the Defendant by colour of this Deed did take the Goods after the death of Craven and if this Deed vvas good then they found for the Defendant if not then they found the Defendant was Executor of his own wrong and so for the Plaintif and by all the Court Judgement was given for the Plaintif 13. IT was sayd by Drew arguendo That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires Rent charge the residue may be apportioned and the Land shall remain chargeable still for that residue but if he release in one Acre parcell of the Land charged then all the Rent is gone 14. IT was said by Glanvile in the argument of the case between Cromwell and Andrews Provisâ— that a Proviso in a conveiance to be performed on the part of the Lessee implies a re-entry allthough there be no speciall words of re-entry but otherwise it is when it ariseth on the part of the Lessor and Vouched bendlowes case where there was a Covenant going between the Habendum and Proviso But where the Proviso standeth substantively as where I grant a Rent charge Proviso that he shall not charge my person Condition this is no Condition but a Qualification Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas if the grant be not made before the first Feast which shall next happen the Condition is broken and he put a difference where the Condition must be performed by none but himself and where it may as well be performed by his Executors as himself And Drew said then that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer there ought the Feoffor to make a request otherwise if it be to enfeoff another 15. SMith against Bonsall Common in effect the case was such In an Action of Trespass the Defendant pleaded his Freehold Hil. 39. Eliz. rot 1753. and the Plaintif replyed that A. was seised of a Yard-land to which he had Common of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land and of the Moity thereof did enfeoff the Plaintif the question was whether this Common may be apportioned or else it be extinct alltogether In the argument whereof Drew said that Common sans number cannot be granted over because if it should be granted to a rich man he may surcharge the Common then and leave none for the rest of the Commoners so of estovers uncertain for so the Grantee may burn all the Wood quod Walmisley concessit and he vouched 17 Eliz. in Dyer that a Commoner may purchase parcell of the Land out of which his Common is issuing Purchase after that it be improved by the Lord and not extinguish his Common thereby And he said that if parcell of the Common be inclosed Inclosure a Commoner ought to make but one gap to put in Cattell but Anderson said that he may make as many gapes as he will And it was said by Anderson and Beamont Appendant may be apportioned that Common appendant cannot be for all manner of Cattell but onely for such â—attell as compass the Land and that such Common may be apportioned into twenty parts Append. quid as any Common certain may be Walmisley Owen If my Land to which I claim Common belonging can yield me stover to find a hundred Cattell in Winter then shall I have Common in Summer for a hundred Cattell in the Land out of which I claim Common and so for more or fewer proporitionably which they did expound to be the meaning of pertinen Moity of a Mannor levan and cuban Walmisley If I grant away the moity of my Mannor we shall both keep Courts so if I be disseised of a Moity or that the Moity be in Execution by elegit and we shall both have Common and in apportionment of Common respect ought allwaies to be had to the quality of the Land unto wâ—ich it is alloted Copiholder And a Copyholder may prescribe for Common in the Lords Land within the same Mannor by usitatum fuit but if he claim any other Common he must lay the prescription in the Lord. De Term. Hill An Reg. Eliz. xliii 1. WAlter Ascough prisoner
in the Fleet Appearance was brought to the Common place bar by habâ—as corpus to the intent to have him appear to an Originall in debt brought against him And being demanded by Goldesburg Clark whether he were the same party against whom the Originall was brought confessed it but denied to appear to the Action Brâ—â—keâ— Prothonotary said the Court ought to record his appearance confessing himself to be the same person but the whole Court said this was no appearance whereby he was remanded to the Fleet And Tamworth the Plaintif proceeded to the outlary against him 2. PRice brought an Action of Trover against Sir Walter Sands Frandulent deeds Trin. xxxviii Eli. And this was for finding of Corn. And the first point of the case was That a man had a Lease in Reversion and granted it to another by fraud and his Grantee granted that over to Sir Walter Sands bona fide And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void per the Statute of 27 Eliz. or not was the question Harris Serjeant It seemeth the Grant to Sir Walter Sands to be good And not within the Statute of 27 Eliz. For 33 Heâ— 6. 28. If a man make a Feoffment in Fee by Collusion to the intent to defraud the Lord of the Wardship And after this Feoffee by Collusion make a Feoffment over bona fide Now the Lord is without remedy for the Collusion is gone And in this case there is an ignorance in Sir Walter Sands the which is not willfull and for that it is not punishable Notice But if the other had taken the profits so that the purchaser might have notice there it should be otherwise The â— cause was non constat whether the Grant were before the Statute of 27 Eliz. or not For if it were before then the party shall not answer the mean profits Allso a third matter is ten yeares of the Term was granted for money But when he granted the Residue of the Term and no Consideration expressed Consideration expressed then there shall be no consideration intended And if there were no Consideration given he is not holpen by the Statute For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid Et non constat that any thing was paid by the Plaintif Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute Allso here the party is charged with a speciall fraud And the other saith that it was made bona fide And this is a good course of pleading without any Traverse per 4 Ed. 4. 24. 3. HUgh Hall brought an Action upon his case for words and declared Slander that where he himself was robbed of divers parcels of Cloth per quendam ignotum and made his integrity and indeavour to apprehend the said thief praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone viz. Hugh Hall hath received three parcells of his Cloth again of the thief And if I receive any hurt henceforth I will charge him with it And by Judgement of the Court the words are not actionable 4. THe Lady VVilloughby Wife to the late Sir Francis VVilloughby Caveat sued in the Chancery as Administratrix of her said Husband against Percivall Willoughby which had maried one of the Daughters of the said Sir Francis And the Defendant pleaded that before any Administration commited to the said Plaintif he himself put in a Caveat in the Spirituall Court hanging which Caveat she hath attained these Letters of Administration Appeal whereby the Defendant hath appealed 〈◊〉 which appeal is not yet determined for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix And it seemed to Egerton then Lord Keeper of the great Seal that the Defendants plea is good to stay the suit untill the appeal be determined But not to be dismissed out of the Court Appeal Erâ—â—â— Difference no more than an excommunication And he said there is difference between an appleal in Spirituall Law and a Writ of Error in our Law For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter but not for the costs and for to prove that he cited 2 R. 2. Quare impedit 143. vide 27 H. 6. Gaud. 118. 2 M. 105. Dyer 7 Eliz. 240. 5. IN the Chauncery a speciall Verdict was retorned upon an extent Execution uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—e the Remainder in Tail and the Tenant in Remainder in Tail made a Statute Staple and after granted his Remainder And after the Tenant for life died 〈◊〉 Bull 〈◊〉 and the Grantee of the Remainder entered And whether Execution shall be sued of this land upon the said Statute insomuch that the said land was never in Demeasne in the hands of the Coâ—â—so◠〈◊〉 â—ames 〈◊〉 and so not extendable in his hands was the question And Sr. Thomas Egerton Lord Keeper of the great seal said that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life For to a Remainder are no services due nor incident and for that it is termed Seck But a Reversion hath services incident and those may be extended and by consequence the Reversion when it commeth in possession Bâ—t it seemed unto him that all was one for one may charge a Remainder when it happeneth aswell as a Reversion and a Statute is in the nature of a charge Cook the Queenes Attourney said there was no question in the Case for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question for if he in the Remainder make a lease for yeares to commence at a day to come Yet if he grant over his Remainder the Grantee shall hold that charged with his lease And every Statute is a charge Executory By which the said Lord Keeper awarded that there should be a liberate made to the Conusee upon the retorn above 6. OVerton brought an action of Debt against Sydall Debt by a Successor against an Executor after assignment And the case was that Prebendary made a lease for yeares rendring rent and the Lessee died and the Executors of the Lessee assigned over the Term and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over and the opinion of three Justices was that the action would not lye But Popham the chief Justice held the contrary For the Successor is privie to the Contract of the predecessor And so the Executor to the contract of the Testator
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance Gawdie The Obligation is void for in so much as the Obligee hath not tendred to him any acquittance therefore he hath tolled from him the election whereof he shall not take advantage Fenner è contra for the election is not in the Partie for the making â—o the acquittance resteth in the will of the Obligee and so the Obligor hath no election Popham was of the same opinion 56. IF a Sheriff doe execute his Writ the same day that the Writ is retornable Execution of a writ done the day of the retorn it is a good execution per Yelverton and he cited these cases A Judgement given in a quare impedit 18. Eliz. and the Writ of dammages was executed the same day that it was retornable and this matter pleaded in arrest of judgement and notwithstanding the partie had judgment and if a capias ad satisfaciendum goe forth and the Sheriff take the Partie the same day that the Writ is retornable and send him into the Court who will say that this is not a good execution 57. WOodcock brought an Action of Debt against Heru Assets Executor of I. S. The Defendant pleaded that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing And if this Plea be good or not is the question Fenner The Plea is good without question Gawdie I have heard divers learned men doubt of that for if the Testator were bound in a Statute to perform Covenants which are not yet broken and it may be they will never be broken and then he shall never be chargeable by this Statute and yet he shall never be compelled to pay any debts which will be a great inconvenience And again I think there will be a greater mischief of the other part for put the case if the Executors doe pay this debt and the Statute is broken after he shall be chargeable by a devastavit of his own proper goods the which will be a greater inconvenience 58. BRough against Dennyson brought an Action for words Slander viz. Thou hast stoln by the high-way side Popham The words are not actionable for it may be taken that he stole upon a man suddenly as the common proverb is that he stole upon me innuendo that he came to me unawares And when a man creepeth up a hedge the common phrase is he stole up the hedge Fenner When the words may have a good construction you shall never construe them to an evill sense And it may be intended he stole a stick under a hedge and these words are not so slanderous that they are actionable 59. A Copy-holder was not upon his Land to pay his rent Forfeiture of a copy-hrld when the Lord was there to demand it And whether this were a forfeiture or not was the question Fenner It is no forfeiture if there were not an express denyall for the non-payment here is but negligence the which is not so hainous an injurie as a willfull denyal for it may be that the Copy-holder being upon the Land hath no money in his purse and therefore it shall be a very hard construction to make it a forfeiture But if he make many such defaults it may be it shall be deemed a forfeiture Popham If this shall not be a forfeiture there will grow great danger to the Lord and the Copy-holders estate was of small account in ancient time and now the strength that they have obtained is but conditionally to wit pay their rent and doing their sevices and if they fail of any of these the Condition is broken and it seemeth cleer if the rent be payable at our Lady day Demand after the day and the Lord doth not come then but after the day to demand the rent there is no forfeiture 60. THe Case was that there was Lessee for life Sir Henry Knevit against Poole interest of Corn. the Remainder for life and the first Lessee for life made a lease for years and this Lessee was put out of possession by a stranger and the stranger sowed the Land and the first Lessee for life dyed and he in remainder for life entred into the Land and leased it to Sir Henry Knevit and who should have the corn was the question Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder shall have the corn for the reason for which a man which hath an uncertain estate shall have the corn is for that he hath manured the land and for that it is reason that he that laboureth should reap the fruit but he said that the stranger that sowed the land shall not have the corn Lease of ground sowed because his estate begun by wrong for if a man make a lease for life of ground sowed and before severance the Lessee dyed now his Executor shall not have the corn Assignment after sowing concess per Popham cont per Gawdy for that they came not of the manurance of their Testator so it is if the Lessee for life sowe the land and assign over his interest and dye now the Assigne shall not have the corn cansa qua supra and for this reason in our case neither the Executors of the first Tenant for life nor the Lessee of the first Tenant for life shall have the corn here for that it comes not by their manurance and the stranger which sowed them he shall not have them Vncertainty necessarie unnecessary difference for albeit he manured the land and howbeit his estate was defeasable upon an uncertainty yet he was a wrong doer and the incertainty of his estate came by his own wrong for which the law will never give any favour to him and for that when he in remainder for life entreth it seemeth that he shall have the corn for he hath right to the possession and the corn are growing upon the soile and by consequence are belonging to the owner of the soile but it hath been said that here there was no trespasse done to him in remainder and for that he shall never have the corn Sir as to that I say if an Abator after the death of the Ancestor enter and sowe the land Abator soweth and after the right heire enter in this case the heire shall have the corn and yet no trespasse was made to him and it hath been adjudged in this Court where a man devised land sowed to one for life and after his decease the remainder to another for life and the first Tenant entred and dyed before severance and he in remainder entred that there he in remainder shall have the corn and by consequence the same Law shall be in our case Godfrey è contra and he argued that the Lessee for yeers Devise of land sowne of the first Lessee for life
date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
a Grantee of a Reversion for years be within the Statute or not Gawdy Well enough For the words of the Statute extend to that quod fuit concessum Then it was moved that this was a meer collaterall Covenant between the persons and not concerning the estate of the land and for that not within the Statute Popham sayd Covenant reall which concerneth the estate If nothing be sayd to the contrary intretur Judicium for the Plaintiff afterwards the case was moved again Gawdie It seems the case is Assigne which in regard of his reversion as of a Covenant may well maintain this action by the Statute of 32. Fenner This Covenant is not any Covenant to be performed during the estate or terme of the Defendant but it is a Covenant to doe a thing in the end of his term and for that is not a Covenant of which the Assignee of the reversion shall have benefit by the Statute for that he hath not any reversion depending upon any estate when the Covenant is alledged to be broken for the Defendant when he breaks that Covenant is but Tenant at sufferance Gawdie contra the Covenant is not to doe a thing after the terme determined but at the instant of the determination of the term and therfore it is a Covenant annexed to the State and runnes with the Land and therefore the Plaintiff shall have advantage over it 110. TRespasse and assault was brought against one Sims by the Husband and the Wife for beating of the woman A Child born living but bruised Cook the case is such as appears by examination A man beats a woman which is great with child and after the child is born living but hath signes and bruises in his body received by the said batterie and after dyed thereof I say that this is murder Fenner Popham absentibus cateris cleerly of the same opinion and the difference is where the child is born dead and where it is born living for if it be dead born it is no murder for non constat whether the child were living at the time of the batterie or not or if the batterie was the cause of the death but when it is born living and the wounds appeare in his body and then he dye the Batteror shal be arraigned of murder for now it may be proved whether these wounds were the cause of the death or not and for that if it be found he shall be condemned 111. GOodale against Wyat in trepasse The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee Mortgage and morgaged it to one Woodliff upon condition that if he or his Heires did pay to the Heires Executors or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment and the Seisin thereupon given should be void and afterwards Woodliff infeoffed Goodale of the same land and gave notice of the said Feoffment to Sr J. P. and after Woodliff dyed and Sir J. agreed with the heir of W. to wit one Drew Woodliff to take 30 l. for the said 50 l. but when the 30 l. was to be paid Sir J. paid to the said Drew VV. all the fifty pounds and after such payment made Drew VV. gave back to the said Sr. J. 20 l. parcel of the 50 l. Altam 2. points are in the case The first is to whom the payment of the money as this case is ought to be made and I think to the Feoffee because the Heir hath nothing to do in the land and to prove that he cited fundamenta legum 17. Ass 2. 6. R. 2. Plesingtons case and the case of one Ramsey 19. Eliz. was such a man infeoffed three Ramseys case upon condition that if the Feoffor paid to them or their heires 100 l. that then he might re-enter and after one of the Feoffees dyed and the Feoffor tendred the money to his Heir and adjudged a void tender And also Littleton proves that but tif the condition might be performed to the Heirby payment that ought to be precisely performed for he is now as a stranger having nothing in the land and the Covin between the Feoffor and the Heir must not hurt my Olient for by 4. E. 2. câ—i in vita 22. If cui in vita be brought against a Prior and hanging the action he is deposed by Covin this shal not abate the Writ and it was adjudged in this Court where a man was bound by Obligation to deliver a bond and after he got a judgement upon it and then delivered the bond and holden no performance of the condition because the intent was not performed and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed whereby the Plaintiff granted that if the Defendant made a Recognisance to him that then the Writ of accompt shall be made void and he shewed how he made a Recognisance But the Plaintiff said that after the making and before deliverie of that to him Composition by Executors the Defendant took it from the Clerk and therefore was adjudged to accompt Precisely named and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes if he do license him and then disturb him the condition is broken and the common case of Executors will prove this for if an Executor have but 20 l. assets in his hands and is in debt to two men in 20. l. to either of them if he pay but 10 l. to the one and have an acquittance of him for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other for no compacting between strangers shall prejudice my right per quo c. Payment upon a mâ—rgage good to the Executorrs cleelry Gawdy I think cleerly if the payment had been intirely made to the Heir without collusion it had been good for that he is preisely named for none will deny but that if the payment had been made to the Executors it had been good but the Covin between the Heir and the Feoffor peradventure will make no payment Father enfeoff the son and for that 34. E. 1. Warrantie 88. If the father infeoff the Son to the intent that this land shall not be assets to the Sonne to bar him in a Formdone this Covin will not serve to aid him Covin by administration and 2 3 Mar. the Husband dyed intestate and administration was committed to the wife which tooke another husband and the second husband and his wife as Administrators brought an action of Debt hanging which suit the Sonne of the intestate by fraud and covin between him and a Debtor obtained other letters of Administration to him and the woman joyntly and after judgement the sonne by covin to defeat the execution released to the Debtor all demands and executions and after the Husband and
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
say they shall take that as Legatees and not as Executors in respect of the 100. l. which they are to have to then proper use 126. NOta Second deliverance if a man have Judgement to have Retorn upon a Nonfuit in a Replevin and the Plaintif bring a second Deliverance this is a Supersede as of the Retorn yet the Defendant in the first Replevin shall have a Writ to enquire of the damages which shall not beestaid by the second Deliverance but if he have Iudgement in the second Deliverance then shall be retorn Irreplevisable and shall recover damages 127. STitch against Wisdom Thoughts are not to be uttered an Action upon the case was brought for words viz he did better than many an honest man did For there is many a truer and honester man hang'd and there was a Robery committed whereof I think him to be one and I verily think him to be an Horse-stealer and upon non Cul. pleaded It was found for the Plaintif and pleaded in arrest of Judgement for that it is not expresly affirmed that the Plaintif was one of the Robbers neither that he was a Horse-stealer precisely but that he thought him to be one and thought is free for every man and no slander but this notwithstanding Judgement was given for the Plaintif for thoughts tending to slander may not be uttered 128. NOta per Gawdy Felony That a man may be accessary to the stealing of his own goods As if he confederate with an other to steal goods from his Bayly to the intent to charge his Baily this is Felony 129. THynn brought Debt against Cholmley for 300. l. Arrerages of a nomine poenae Nomine poene against an Assignee And declared of a Lease for years made by him to one Ager rendring Rent and if default of payment be made of the said Rent at any day Trin. 36. E. rot 842. in which it ought to be paid Quod tunc toties the said Ager his Executors and Assignes shall pay iij. s iiij d. pro quolibet die donec praedictus reddit so behind shall be satisfied And shewed how the Rent was behind and not paid by the space of two years but did not shew that he demanded the Rent Jackson The sum demanded is by computation more than should be true But it seems that the Plaintif intends to have every iij. s iiij d. doubled for every day that the Rent is behind And if that be his intent then he demands too little Demand for in 2 years that will be infinite Gawdy He shall have but iij. s iiij d. for every day Fenner I think that he ought to make a demand of the Rent Or otherwise he shall not have the nomine poene Gawdy Nay truly no more than in Debt upon an Obligation and he cited 21 Hen. 6 21. Edw. 4. 22. Edw. 4. Fenner Not like for in debt upon an Obligation it is a duty but otherwise of Rent and it was agreed that it lies against the Assigne in this case 130. HArbin against Barton A Jointenants Lease to begin after his death The case was that two Jointenants for life the one made a Lease for 80 years to begin after his death and after died And whether the Lease is good against the Survivor or not is the question Gawdy said that the Lease was good and cited 2 Eliz. 187. Popham Fenner è contra After this Lease was adjudged a good Lease by all the Judges of England for every Jointenant hath interest during his life and the life of his companion Ewdalls case For it was Ewdalls and Paramores case 31. Eliz. Where a Lease was made to the Father during his life and the life of two of his Sons The Father assigned over and adjudged to continue after the death of the Father The like between Gutter Locrofts and between Orwin and others 131. Baddock against Ja. S. and declared in an Action upon the case for words Insufficient declar for words quod in praesentia diversorum leigiorum dixit de praefat quer haec verba Anglicana viz. Thy Father praedictum quer innuendo is a thief for he stole my sheep The Defendant justified the words and at the Assisâ—s it was found for the Plaintif and exception was taken in arrest of Judgement For that it is not shewed in the Declaration Substance Form in a Declaration that the words were spoken to the son of the Plaintif Gawdy I think it is good for that the Defendant hath Justified the words spoken of the Plaintif tota Cur. è contra But if the Declaration be uncertain in form yet the bar may make it good But if the Declaration want substance as in this case it doth there the bar cannot make it good 132. RObert Sharples and Grace his Wife Debt brought Debt upon an Obligation against N. Hankinson the Obligation boar date xiij die Octobris An. xxxj Eliz. The Condition was if N. H. did pay viij l. of lawfull money c. in the year of our Lord God 1599. At or upon the 13th day of October which shall next ensue the date herof The Defendant pleaded that the day of payment was not come Gawdy I think the day of payment is the 13th day of October next after the date of the Obligation And that these words in the year of our Lord God 1599. are meerly â—oid Fenner Justice I think that the payment shall be in the year of our Lord 1599. For when a certainty appears allbeit afterwards an incertainty come yet that shall not hurt the certainty but the first certainty shall stand and the incertainty shall be void And in this case the An. Do. 1599. is sufficicient certainty and therfore the subsequent words are void Popham I think that the payment shall be the 13 day of October prox post An. Dom. 1599. For the words are that the Obliger shall pay viij l. of lawfull money of England in the year of our Lord God 1599. And if the payment shall be before this time none may know but by the spirit of Prophecie what money shall be current in England that year before the year come and it is impossible to pay that before and if I am bound to enfeoff before Easter Impossible condition void him that comes first to Pauls upon Michaelmas day next this is void because it is impossible 133. BOyer brings a Writ of Error against Jenkings Teste of the Venire mistaken and the Error assigned was for that the suit was commenced 35 Eliz. And the Venire fac to try this issue bore Teste 33 Eliz. Gawdie a Venire fac which bears Teste 33 Eliz. cannot possible be to try an issue in 35 Eliz. which is two years after and therefore here is no venire fac and so holpen by the Statute of 18 Eliz. after Verdict Tunfield This very case was Yorks case adjudged in this Court that it was not holpen by
of a thing is necessary where not pag. 189. 5. pl. 137. Detinue VVhere an Action of Detinue lies and where not pag. 65. pl. pag. 152. pl. 79. Deed. What shall be a good Deed what not pag. 83. pl. 2. pag. 116. pl. 12. Devise What things may be Devised what not pag. 84. pl. 6. What is a good Devise what not pag. 88. pl. 14. pag. 99. pl. 3. pag. 100. pl 3. pag. 111. pl. 15. pag. 129. pl. 23. pag. 139. pl. 47. pag. 149. pl. 74. pag. 150 151. pl. 77. pag. 153. pl. 80. pag. 184. pl. 122. pag. 185. pl. 125. Debt Where an Actiou of Debt lies where not pag. 119. pl. 6. pag. 130. pl. 26. pag. 152. pl. 79. pag. 182. pl. 118 119. pag. 185. pl. 29. Declaration What shall be a good Declaration what not pag. 97. pl. 12. pag. 109. pl. 15. pag. 111. pl. 18. pag. 115. pl. 19. pag. 155. pl. 84. 156. pag. 186 pl. 135. Devastavit What shall be said a Devastavit what not pag. 113. pl. 8. pag 14. pl. 57. pag. 181. pl. 117. Determination Where an estate is determined where not pag. 157 158. pl. 86. pag. 178. pl. 111. pag. 179. pl. 112. Dispenation What is a good Dispensation to hold divers livings and what not pag. 162. pl. 97. Discontinuance What shall be said a Discontinuance what not pag. 25. pl. 6. Where and when one may discontinue his Action when not pag. 53. pl. 3. Distress Where a Distress lies for rent or service where not pag. 6. pl. 11. pag. 62. pl. 29. pag. 97. pl. 14. When a Distress ought not to be taken pag. 56. pl. 10. pag. 140. pl. 50. How a distress must be used pag. 100 101. pl. 5. Disseisor and Disseisin VVho shall be a Disseisor with force who not pag. 42. pl. 18. Who shall be a Disseisor who not pag. 82. pl. 24. Discent What lands shall Discend to the heir what not pag. 84. pl. 6. pag. 88. pl. 14. Where one shall take by Discent where not pag. 139. pl. 47. Discharge What is a good Discharge of a debt or duty pa. 156. pag. 84. pl 174. pl. 108. Dower What shall be a good plea in bar of Dower what not pag. 4. pl. 8. pag. 27. pl. 8. pag. 108. pl. 13. pag. 148. pl. 71. VVhere the feme may waive her Dower where not pag. 108. pl. 13. E. EJectione firme Who may have an Ejectione firme and who not pag. 87. pl. 12. Where Election of Action lyes or other things where not pag. 20. pl. 4. pag. 25. pl. 6. pag. 83. pl. 1. pag. 124. pl. 9. pag. 131. pl. 27. pag. 142. pl. 55. pag. 175. pl. 108. Elegit VVhere an Elegit lies where not pag. 180. pl. 115. Enrolment To what time an Enrolment of a Deed shall relate pag. 18. pl. 14. What shall be a good Enrolment and what not pag. 162 163 164. pl. 97. Entirety and Severality Where a thing is Entire and where Severall pag. 18. pl. 14. pag. 19. pl. 14. Entry What Entry into lands is a ground for an Ejectione firme pag. 5. pl. 10. Where an Entry is lawfull where not pag. 6. pl. 1. pag. 125. pl. 13. pag. 153. pl. 80. pag. 178. pl. 111. pag. 188. pl. 136. What Entry of Record is good what not pag. 91. pl. 3. Error What is Error to Reverse a Judgement what not pag. 138. pl. 45 pag. 140. pl. 50. pag. 184 185. pl. 124. Who may reform Errors in Judgements who not pag. 14. pl. 63. Where a writ of Error lies where not pag. 181. pl. 116. Escape Where an Escape lies where not pag. 180. pl. 114. Estople What shall be an Estople to parties what to strangers pag. 43. pl. 22. pag. 53 54. pl. 5. Estrepment Where an Estrepment lies and where not pag. 50. pl. 12. Evidence Who must first give Evidence pag. 27. pl. 2. What matter may be given in Evidence what not pag. 80 81. pl. 18. What is good Evidence what not pag. 124 125. pl. 11. Executor What Acts done by an Executor are good what not pag. 2. pl. 4. pag. 141. pl. 54. pag. 184. pl. 25. What things an Executor shall have what not pag. 64. pl. 2. pag. 98. pl. 17. pag. 112. pl. 19. pag. 129. pl. 24. pag. 143. 144 145. pl. 60. pag. 84. pl. 123. pag. 185. pl. 125. What Actions an Executor may have and what not pag. 90. pl. 19. pag. 105. pl. 9. What Actions may be brought against an Executor what not pag. 106. pl. 11. pag. 154. pl. 81. Exchange What is a good Exchange what not pag. 27. pl. 8 Extinguishment By what Acts a thing may be extinguished pag. 43. pl. 24. pag. 53. pl. 4. pag. 92 93. pl. 5. pag. 93 94. pl. 7. pag. 84. pl. 4. pag. 107. pl. 12. pag. 114. pl. 6. pag. 116. pl. 13. pag. 116. pl. 15. pag. 125 126. pl. 16. pa. 140. pl. 73. pag. 156. pl. 84. pag. 157. pl. 86. pag. 181. pl. 116 117. Examination Where one shall â—e examined where not pag. 64 65. pl. 4. Exposition How Statutes shall be expounded pag. 137. pl. 40. How a condition shall be expounded pag. 137. pl. 40. Execution Where Execution shall issue forth where not pag. 120. pl. 5. What is a good plea in bar of an Execution what not pag. 170. pl. 101. pag. 174 175. pl. 108. pag. 108. pl. 114. What is a good Execution what not pag. 180. pl. 115. Extent Where a Statute shall be Extended where not pag. 120. pl. 5. What is a good extent what not pag. 161. pl. 92. Exeption Where a bill of exception lies where not pag. 137. pl. 39. F FAlsifying What falsifying is and who may falsifie and who not pag. 8. pl. 11. pag 26. pl. 7. pag. 96. pl. 1. pag. 87. pl. 12. Fee Simple Divers sorts of Fee Simple pag. 9. pl. 12. What words will create a fee simple what not pag. 135. pl. 33. pag. 183. pl. 211. Feem Covert What Acts done by feem covert are void what not pag. 13. pl. 13. 14. What Acts done to a feem covert are good what not pag. 13. pl. 13. Felony What shall be accounted felony what not pag. 72. pl. 18. pag. 129. pl. 24. pag. 185. pl. 28. Feoffment What is a good feoffment what not pag. 92 93. pl. 5. Fine of lands c. What right in lands a Fine shall bar what not pag. 6. pl. 11. pag. 107. pl. 12. pag. 110. pl. 15. pag. 148. pl. 71. pag. 162. pl. 96. pag. 171 172. pl. 103. pag. 181. pl. 116. How a Fine shall inure whereno use limited pag. 67 68 69 70. pl. 13. Of what a Fine may be levied of what not pag. 107. pl. 12. Fine and Imprisonment For what offences a Court may Fine and Imprison pag. 30. pl. 5. pag. 34. pl. 8. pag. 93. pl. 5. What offences are Finable and what not pag. 146. pl. 63. pag. 165. pl. 97. 182. pl. 120. Forfeiture By what acts a lease for years or other estate shall be forfeited by what not