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
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
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
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
Item that when concourse and equality of titles come together 4 Principles for the King that King shall be preferred 3. Item in entire things he shall have all 4. Item that his grant shall not extend to severall intents or purposes For the first if the King be deceived in the operation of the Law his grant shall be voyd as where he grants to a man and his heirs males Release several this shall be voyd 6 Hen. 7. release of all demands 11 H. 7. 10. release of all action and yet in those cases there is matter of interest and not prerogative and yet nothlng passeth if she be deceived For the concourse of title 4 Ed. 6. a man makes a feoffment in fee upon condition that the feoffee shall not commit treason after the feoffee commits treason the King shall have the land Treason 44 Ed. 3. per Thorp tenant of the King c. he shall have the rent again And for the case of the Lady Hales in the Comentaries where lands descend to a villain For entireties 44 Ed. 3. the King and others give lands to a Monastery the King shall be sole Founder The. King sole founder 19 Hen. 6. he shall have the intire obligation where the one obligee is outlawed Obligation and in 11 Hen. 7. 2 R. 3. two are indebted to the King Release to the oblige and he releaseth to one of them then his grant shall not inure to two purposes Baggâ—ts Ass And so if the King give lands to his villain this shall be no enfranchisment to him So for all those reasons I hold the condition may well enough be apportioned Villâ—in Then for the third matter when the commission issueth to enquire of all covenants and provisoes if the condition be within those words and for that point I think that the Plaintif shall recover for allthough it be not within the words yet the commission is generall after but yet I hold that is within the words 21 Hen. 7. fol. 37. per Fineux If I let land for term of years rendring c. I shall have debt or covenant at my election and Dokerayes case 27 Hen. 8. Proviso is a condition and so it was held here in the case of the Lord Cromwell and Andrews Then when the Jury found that 37 s 5 d. ob were behind if this office be good or no and in my conscience that which is good shall be taken for the Queen and the rest shall be voyd for offices between party and party may be voyd for uncertainty as the case is in Dyer 3 4 Eliz. Office in Beverley c. fol. 209. Or they may be avoyded for falsity Proviso is a condition 1 M. Culpepper fol. 100. b. Or for insufficiency as in my Lord of Leicesters case in the Comentaries Offices voyd but this is only for the Queen and therefore shall be taken favourably and therefore I will â—ompare it to a verdict where surplusage is found 3 Hen. 6. Plene administravit Superplusage in a â—erdict and the Jury found that they have more than Assets 47 Ed. 3. the Jury found that he which prayed to be received had nothing in the land where the issue was joyned whether the particular tenant had a fee. And 39 Hen. 6. 9. surplusage in an Inquisition 5 Hen. 5. fol. 2. Resceit Cobhams case where they found a Divorce in Kent c. Inquisition Allso Sir Offices may be good for that which is certain and voyd for that which is uncertain and good for the King and not for a subject Strenes case in 15 Edw. 4. 14 El. Office found after the death of the tenant by the curtefie 29 H. 8. Br. tit Office devant Escheetr 58. Dyer And if a commission be awarded and the lury say that dâ— quo tenetur ignorant then a melius inquirend shall goe forth but if they say per quae servicia ignorant then nothing shall be done but it shall be intended Knights service and so is the experience of the Exchequer And here they have found that more was behind ergo they have found that so much was behind Quia omne majus continet in se minus Then if this be within the Statute of 18 H. 6. c. 16. And it seemeth that it is not for that Statute as I think is but an exposition of 8 H. 6. and that speaketh of Leases by Treasurer and Chancellor and for that see the case of the Duke of Suffolk 3 4 Ph. Mar. Dyer fol. 145. And so I think for all these causes judgement shall be given for the Plaintif Peryam Justice to the contrary For the first matter I agree that they be several rents for the viz. here doth expound the matter and when the viz. may stand with the premises Videliceâ— then it is good and otherwise not and for that the case in 17 lib. Ass which hath been vouched Difference between an annuity and a rent charge and disseisin of one is not disseisin of the other rent And there is a plain difference between an annuity and a rent service because for an annuity it is the book in 29 Edw. 3. fol. 51. 29. lib. Ass 3 Parceners and rent reserved for equality of partition c. vouched by Rodes but if I grant you xl s out of my Mannor viz. x s out of parcel in the tenure of A. and x s out of another parcell Rent limited out of an intire mannor this is voyd for first there was a grant out of the entire Mannor 9 lib. Ass yet this is one lease but one reversion but one condition the condition is entire and that is wel proved by the express words of the condition totaliter reentrare and this proved by Winters case in 14 El. and Rawlins case adjudged Totaliter where the sum in gross was behind Dyer the case vouched by Rodes Cond is undevidable 33 Hen. 8. in a common persons case it cannot be divided neither by title nor by the act of the party If surrender be made of parcell Surrender of parcel the rent shall be apportioned but the condition is utterly gone Dyer But peradventure it will be objected that in 17 Eliz. the condition there was divided where he aliened parcell with the consent of the Lessor and the other parcell without consent and in that the Lessor entred for the condition broken Cond â—pportioned I grant this case and yet this doth not prove that a condition may be apportioned for the reason in that case is when he made such a condition the condition extended but to that which he aliened without license and to no more and so I hold the Law where a lease is made of twenty Acres with condition Eviction c. and parcell is evicted And warranty at the Common Law cannot be divided for if two Coparceners were who
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
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
keep their Country in such sort so that men may safely travell upon their way So that at this time the Court held that he should be aided by the Statute and also that no Hue and cry was necessary or convenient to be made by the party but they were not resolved and therefore they gave a day to have it argued again 11. AN Action upon the case was brought for these words Normans case thou wouldest have stoln a piece of cloth or else thou wouldest have delivered it to my Wifes Daughter and thou art a thief and an arrant thief and I will prove it and upon not guilty pleaded it was found for the Plaintif And the Defendant spoke in arrest of Judgement because the former words proved but onely an Intent Words which was no Flony and the last words shall be referred thereunto and therefore the Action not maintenable But now Shuttleworth moved for Judgement for the Plaintif because the last words are sufficient by themselves and shall not be referred to the former because they were spoken absolutely by themselves and so was the opinion of three Justices Anderson absente Rodes Otherwise it is if the words had been Therefore and therefore thou art a thief 12. SAmuell Hayles brought an Action of debt upon an Obligation the Condition was that if the Defendant did pay to the Plaintif 40. l. within twenty dayes after the retourn of one Russell into England from the City of Venice in the parts beyond the Seas that then c. and the Defendant pleaded in Bar that Russell was not at the City of Venice whereupon the Plaintif demurred in Law and at this day the Record was read and clearly per 3. Justices Anderson absente it is no good Plea For in such cases where parcell is to be done within the Realm and parcell without the Realm they ought to plead such a Plea as is triable in this Realm and therefore they commanded the Serjeant to move for Judgement when Anderson was present and so he did the last day of the Term and Judgement was given for the Plaintif by all the Court. 13. IN Trespass by Moor against Hills Attornment the Defendant pleaded that the Dean and Chapter of Westminster made a Lease tâ— one Payn who made Leases out of it first to A. for certain years rendring Rentand after the end of that Lease then to B. rendring Rent and afterwards sold all the entire interest to the Defendant to whom the second Lessee which had no possession Attorned Possession And the Plaintif moved that he might plead a better Attornment for this is not good because it is no Attornment And so was the opinion of the Court and therefore they gave him day to amend his Plea or else let a Demurrer be entred 14. VPon a wager of Law Payment by estranger it was said by Anderson that if I am bound to you to pay you a certain sum of money and a stranger deliver you a Horse by my assent for the same debt this is no satisfaction So if I be indebted upon a simple contract and a stranger make an Obligation for this debt the Debtor cannot wage his Law for this doth not determine the Contract Et nullut dedixit 15. BEtween Peirce and Davy this was the case Legacie A man covenants with I. S. to pay to A. B. and C. every of them x. l. at the age of twenty four years and makes an Obligation to perform the Covenant And afterwards makes his Will in this sort Item I will that every one of my Wifes Children viz. A. B. and C. shall have every of them x. l. at their severall ages of 21 years in performance of my Bond and Covenant in that behalf made at the time of my Mariage and not otherwise and dyeth Then A. B. and C. sued in the spirittuall Court Prohibition for these Legacies and Peirce brought a Prohibition and they prayed a consultation and the Court seemed to encline to their demand because they were all strangers to the Covenant but yet they would not absolutely grant it And afterwards in Termino Pasch 30. it was moved again and then the Court doubted because it was not given as a Legacy allthough that it was payable before for that it was given in performance of the Covenant and not otherwise and Anderson and Rodes said precisely that a consultation should not be granted sed alii haesitabant But yet they all thought it good reason and conscience that it should be payd wherefore they compounded the matter and gave day to Peirce to pay the money and 2 pound 8 pence to them which had sued in the Spirituall Court for their costs The same Testator allso devised diverse summs of money to his Wife to pay to the said A. B. and C. in performance of his Covenant who had the money accordingly And in debt brought upon the Obligation for the same Covenant the Executor pleaded plene administr 〈◊〉 and upon the Evidence all this matter appeared and the opinion of the Court in the Exchequor was that it shall be assetz and so adjudged there 16. BUrnell of Shrewsbery was robbed in Buckinghamshire Hue and cry and thereupon he brought his Action against the Hundred who pleaded not guilty and the Jury found a speciall Verdict viz. that he was robed the day and year specified in the Declaration but in another place within an other Parish than he had alleged but they found allso that both the Parishes were within the same Hundred and thereupon they prayed the advise of the Court. And three Justices Anderson being in the Starchamber held clearly that the Plaintif shall have Judgement and they said that so was the opinion of my Lord Anderson allso for it is not materiall within what Parish he is robbed so that it be within the same Hundred 17. RIchard Hamington Administr of the goods and Chattels of Isabell Oram brought an Action of debt against James Richards and Mary his Wife Future charge by possibility Administraterix of the goods and Chattells of Laurence Kydwelly upon a bond for performance of covenants and the case was such Tenant for 31 one years deviseth to his Wife as long as she shall be sole and Widow the occupation and Profits of his Term and after her Widowhood expired all the Lease and interest to Reignold his Son and dieth and the Wife hath the Term by force of the Devise and he in the Reversion by Indenture bearing date quinto Decemb An. Mariâ—â— primo did give and grant bargain and sell all that his Tenement to the Wife and to her Heirs for ever And also did covenant to make further assurance and that at the making thereof it should be discharged of all former Bargains Sales Titles Rights Joyntures A Feoffment to her and after also Dowers Morgages Statutes Merch. Statutes Staple intrusions Forfeitures Condemnations Executions Arrerages of Rents and all other
charges except Rents and Services which shall be due after c. to the chief Lord And afterward he made and levyed a fine And after the Wife maried and then the Son entred and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares Walmisley It seemeth that Judgement shall be given for the Plaintif because it was not discharged at the time of the Feoffment For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age Com. fo 539. after at his full age the Son shall have it so that there it was chargable to the Entry of the Son hereafter And here allthough that it be not presently charged yet when there is a charge arise the Covenant is broken And for that in 8 Eliz. a man bargains and sells Land Rent charge future and Covenants that it shall be discharged of all charges and he had granted a Rent before to begin twenty years after when the Rent begins it shall be said a breach And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land c. And so I think Judgement shall be given for the Plaintif Fenner to the contrary and here the Term was extinct by the grant end sale and then the Feoffment void and therefore no charge and thereupon no charge at the time of the Feoffment and for that he cited 42 Ed. 3. 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed c. so here in that she took nothing by the Feoffment there was no charge at the time of the Feoffment And this possibility of a remainder doth not make an interest and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 Resceit upon Cond where Tenant for life lets the Land to one upon condition that if he dye in the life of the Lessor that it shall retourn to the Lessor c. upon such a matter he may be received and he cited for that the case of Wheler 14 Hen. â— fol. 17. and a title suspended is no title 3 Hen. 7. 12. 30 Ed. 3. Lease for life upon condition that if the Rent be behind then he shall retain the Land c. and he said that the opinion of Bâ—omley in Fulmerstons case was contrary thereunto but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso And so it seemed to him that the Plaintif shall be barred 18. THE case of Fr. Ashpool was moved again by Fenner Hue and cry and it seemed to him that the Plaintif ought to make Hue and cry for as he said it hath allwaies been the manner of pleading and allso it hath been allwaies parcell of his issue to prove Allso he argued that he should not have remedy by the Statute post occasum solis For Stamford saith expresly that if a man be robbed in the day that he shall have remedy and the day shall be said but from the rising of the Sun to the fall thereof for the words of the Statute are that the Gates of the walled Towns shall be shut ab occasu usque ad ortum solis and then if the Gates be shut and that walled Town be within a Hundred how can they make Hue and cry And the case in 3 Ed. 3. is not like to this case Fresh suit by the Hundreders for there it was enquired and found of the Dozen Anderson The fresh suit mentioned in the Statute ought to be made by the Inhabitants and not by the parties and I am of your opinion that Hue and cry was at the Common Law but what of that But look the Statute and there is no word of Hue and cry And the Statute of 28 Ed. 3. is an exposition of that Statute and there is no mention thereof but Fresh suit is there mentioned which ought to be made by the Inhabitants And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort as men may safely travell without robbing And for the night Sir wee ought to construe it as it is most reasonable and about the setting of the Sun is the common time of robbing and therefore if this shall not be intended by the Statute nothing shall be intended and allthough the walled Towns cannot persue Walled Towns may keep the waies yet they may keep the waies so that no robberies shall be committed and this is both day and night as I think And if a man be slain in the robbery so that no Hue and cry can be made I doubt not but the Country shall answer for the robbery A man is robbed slain and bound and so if he be bound And if Hue and Cry ought to be when ought it to be For if a man be bound two dayes together he had as good make no Hue and cry as make Hue and cry afterwards and yet I hope you will agree that this man shall be relieved by the Statute which case was agreed by all the Court. Peryam The day without doubt is after the Sun-set Day after Sun-set Rodes cited the case of waging Battail in an Appeal in Stamford And so by agreement of all the Justices Judgement was entred for the Plaintif but Fenner sayd privately that in his conscience it was against the Law yet notwithstanding all the Judges were clear in opinion and the Serjeants of the other part allso So that it seemed to the Judges that no Hue and Cry is necessary by the party for they all agreed that the Country ought to be kept so that no Robberies be committed And Anderson and Rodes affirmed precisely that it is not necessary and the other agreed in the reason thereof and sayd that it is not mentioned in the Statute but sayd that the waies ought to be kept so that men may travell safely or otherwise it is against the Statute 19. IN a Writ of False Judgement brought against the Mayor Tryall Sherifs Citizens and Commonalty of Norwich it was moved where the Issue shall be tryed and per Curiam it shall not be tryed there but yet the Action may be used there And in the same case it was demanded Summons if the Sherif may summon himself and the Court answered that he could not and Peryam sayd that so it hath been adjudged here many times 20. THe â—ast day of the Term the matter of Lassels was moved again and it seemed to Anderson that the Obligation is voyd in that there is an express form limited by the Statute and this varying from the form in substance is voyd for in his opinion he excludes the
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
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
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
de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei every one will agree that this is voyd but if a further addition be made to the Corporation the Lease is true Addition superfluous shall not hurt allbeit that it be varying as if the Lease had been Minister Dei omnipotentis the addition of this word omnipotent shall not hurt sic de similibus And allbeit that it be not agreeing in words yet if it agree in common understanding Common understanding it is good but if in common understanding the grant may not be taken according to the Foundation if it be not wrested to an unexpected understanding there it is not good and if the Foundation had been in English words Minister of God of the poor house of Donington and the Lease by name of Minister of the poor house of God of Donington every one will agree that this is palpable variance and the Lease not good And I doubt of the case of Everwick for there the Prior beatâ—â— Mariae brought an action by name of Prior beatâ—â— Mariae extramures civitatis Ebor and if this case were now to be adjudged that would be variance as the case of Bristoll Prior beatae Maria de Bristoll made a Lease by name of Prior beatae Maria juxta Bristoll and this Lease was adjudged voyd but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance for it had been but an explanation which will never hurt and for that the Court was so divided in opinion that is to say two against two and the case concerned a poor house They moved the parties to comprimise 8. RUswell brought disceipt against Vaughan Disceipt and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that and sold the profits of the sayd Advowson to the Plaintif pro quadam pecunia summa And it was pleaded in arrest of Judgement for that the Plaintif did not aver ubi revera the Defendant had no title non allocatur 9. THe case was that the Queen made a Lease for years Burrough versus Taylor rendring rent at the receipt of her Exchequer or to the hands of her Baylif upon condition that if the rent be not payd that the estate shall cease Payment of rent the reversion being granted away by the Queen after the Queen granted over the reversion and whether the rent shall be now tendered upon the land or at the receipt of the Exchequer or to the person of the Assignee of the reversion was the question and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land or otherwise he shall not re-enter for the condition broken that for two causes the one for that that when the reversion was in the Queen Election the Lessee had election to pay it at the receipt of the Exchequer or to the hands of the Queens Baylif and when the Queen had granted over the reversion the election of the Lessee is tolled by which now the rent shall ensue the nature of other rents reserved by common persons The common receipt of the Exchequer and those are payable upon the lands another reason is every rent reserved by the Queen is of common right payable at the receipt of the Exchequer or to the Baylifs of the Queen without words appointing at what place it shall be payd for these are the usuall receipts of the Queen and so the words which appoint that to be payd at the receipt of the Excheq â—r to the hands of the Baylif of the Queen are idle words for that the Law appointeth so much of common right ex praerogativa Regis but when the reversion is transferred into the hands of a common person No prerogative can be granted over there this Prerogative ceaseth for it cannot be granted to a common person and by consequence the rent shall be payd upon the Land 10. THomas VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome recuperet No amendment in point of judgement and for that Error was brought and Serjeant Heale moved that the Record might be mended for that it was the mis-entring of the Clerk but adjudged to the contrary for the Judgement is the act of the Court and not of the Clerk 11. EDmund Nevell brought an Action of Trespass against J. Sayle Abuttals and declared Quare clausum fregit in quodam loco vocato Claveringfield abuttan super quoddam molend in tenura J. S. Opinio Curiae If the Plaintif do not prove his Buttals he is gone And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged and howbeit that there be a way between the Close and the Mill yet the Buttall is good 12. RIchard Somerstailes brought an Action upon the case for slanderous words Slanderous words that is to say R. S. is a very bad fellow for he made J. S. drunken in the night and consened him of an hundred Marks and upon not guilty pleaded it was found for the Plaintif and Judgment was stayed for the words are not sufficient to maintain an Action 13. IF the Heir of the Morgagee is in Ward Mortgage and the Morgager payeth the mony his entry is not lawfull upon the King but shall be put to monstrans de droit per Popham chief Justice 14. HAmond brought Debt upon an Obligation against Hatch Award of paâ—t onely and the Condition was That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant for and concerning the matters contained in 9 severall Articles bearing date the day of these presents So that the same be given up under the hand and seal of c. And the Arbitrator made an award of 7 of the sayd Articles omitting the other two and whether the Obligor ought to perform this Award was the question Man I think he ought to perform the Award for that he is bound by Obligation to perform it and to prove that he cited 5 Edw. 4. 19 Hen. 6. 17 Edw. 4. Gawdy The words of the Condition are so that the same Award be given up in writing before such a day and that shall have reference to all the Articles for the Submission was conditionall as 14 Elizab. And after Judgement was given quod quer nihil capiat per billam 15. How against Broom and others A Man leased a House and a Close rendring rent and the Lessor entered into the house and pulled that down and after
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
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
Statute of 18 Eliz. cap. 11. c. appoints that the Ordinary after complaint made and sentence given against any such incumbent whereby he ought or shall lose one years profits of his Benefice shall grant Sequestration to one of the inhabitants of the same Parish as he shall think meet And upon default there in by the Ordinary that it may and shall be lawfull to every Parishoner where the Benefice is to retein and keep his or their tithes and likewise for the Church-wardens to enter and take the profits of the Glebe lands and other Rents and duties of every such Benefice to be imployed to the use of the poor and he shewed how that the Parson made a Covenant and a Bond that he would permit I. S. to take the profits of his Benefice for a year And whether this were such a Lease for which the Parson ought to forfeit the profits ut super he prayed the opinion of the Court and it seemed to them it is not the reason seemeth to be because he doth not aver him to be absent above 80 daies in the same year 83. PEr Popham If a man find my horse Conversion and after ride him and then delivers the horse unto me and I bring an Action of Trover for the Conversion It is no plea that you have delivered the horse to me before the Action brought for you ought to answer to the Conversion 84. CHesson brought an assumpsit against D. K. Abatement of debt and declared that where I. S. was indebted to him in 64l The Defendant in consideration that the Plaintif would abate 10l parcell of the said Debt and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael and the Plaintiff in facto saith that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue per quod actio accrevit The Defendant pleaded in Barre That after the said day given and before Michaelmas scil tali die the Plaintiff entred a plaint in London for the Debt aforesaid of 64. l. Arrest before the day given for payment and then caused the said I. S. to be arrested and demanded judgement si actio Tanfield The Declaration is sufficient for you have delared that you have abated part of the debt but you have not shewed how that was defaulked and therefore not good for we may take issue upon that if we will and if a man be bound in an Obligation to discharge me of certaine rent it is no plea for him to say that he hath me discharged without shewing how for that that I may take issue upon thaâ— Also to the second matter the Plaintiff ought not onely to give day of payment but also to forbeare to molest I. S. untill the day be come Cook to the contrary And as to the first poiut it seemeth that the discharge ought to be upon the entring into bond Bond for parcell of a contract for if a man make a Contract for 10. l. and after enter into bond for 5 l. parcell of that all the Contract is gone as appears per 3. H. 4. And as to the second point I think the promise is broken by the Defendant for that he did not enter into Bond the next day after the assumption made Gawdie I doubt whether the Declaration be good or not for it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for it may not be intended a defaulking in Law but of a defaulking indeed and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act himselfe And 17. Eliz. A man was bound to allow ratifie and confirm a term for yeers And it is no Plea to say that he hath that confirmed But he ought to shew how because every Confirmation must be by Deed but if the Declaration were good then perchance the Barre would not be good And howbeit that Mr. Attorney hath said that there is a breach for not entring into Bond yet the Plaintiff may not sue Every discharge to be by writing if he have not performed his promise Fenner It will be hard to make the Declaration good for when one promiseth to defaulk his debt this shall be intended a lawfull discharge which cannot be otherwise than by writing and per 20. E. 3. Accompt If a man be bound to acknowledge a Statute For the intent must also be performed and he doth acknowledge the same but yet keeps the same in his own hands this is no performance And as to the second point when one promiseth in confideration of one thing to doe another there ought to be performance of the first as if a man be bound to make a new Pale Disturbance of the consideration as 9. Edw. 4. 20. 15. Edw. 4. 2. 3. is having the old pale for his labour there if the old pale be taken from him he is not bound to make the new pale Popham I am of the same opinion 85. DIxon brought an Action upon the case against Adams Assumpâ—it in consideration that a man will voluntarily do that act which otherwise he should have been compelled to doc and declared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉 for the said I. S. in the said suit and the said Adams recovered in the said suit and after sued forth a Scire facias against the said Dixon being bail whereupon the said Adams in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation in which the said I. S. was bound unto him and upon which the first action was brought and the judgement thereupon had and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant Sed â—radictus defend promissionem assumptionem suas minime curans hath not assigned over to the Plantiff the said Obligation and Judgement per quod act accrevit and Judgement was given for the Plaintiff for the consideration was holden good 86. ROsse brought an Ejectione firme against Thomas Ardwick Limitation and the case was such that one Norwood was seised in see and leased to one Nicholas Ardwick and his Assignes for his own life and for the lives of Thomas Andrew and John Ardwick and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will and
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