was a surrender But admitting it was no surrender but the first terme continues then the second question is 2. If when the Devisee enters into the terme devised to him without consent of the Executor by which entry he is a wrongfull Seisor and a Disseisor and after he grants his right and interest to the Executor if this Grant be good or no because he had not any terme in him but onely a right to the terme suspended in the land and to be revived by the entry of the Executor And adjudged that it was a good Grant and it shall inure first as the agreement of the Executor by the acceptance of the Grant that the Devisee had a terme in him as a Legacy And secondly the Deed shall have operation by way of Grant to passe the Estate of the Devisee to the Executor and so no wrong and the case was resembled to the case of surrender to the grantee of a Reversion which first shall inure as attornment and after as surrender and so was it adjudged Trin. 37 Eliz. IN an Action on the Case for these words Carter is a prigging pilfering Merchant and hath pilfered away my Corne and my Goods from my Wife and my Servants and this I will stand to And the Action was commenced in a base Court in the Country and Iudgment given and the Record removed by Writ of Error And it seemed to the Court that the words were not actionable wherefore Iudgment was reverst Sed quaere rationem Gowood against Binkes A Man did assume and promise to I.S. in consideration that he would forbeare a Debt due to him untill such a time That he would pay the Debt if A.B. did not pay it and he that made the promise died and the money was not paid and therefore an Action was brought against his Executors who traversed the Assumpsit and a Verdict found against them and in Arrest of Iudgment it was moved that an Action grounded on a simple Contract lies not against Executors unlesse upon an Assumpsit for a Debt or Duty owing by the Testator himself and not of such a collaterall matter as the forbearance of the Debt of another but by Gawdy Iudgment was given for the Plaintiff whereupon Popham said that he believed this Iudgment would be reversed by Writ of Error in the Exchequer Chamber and the same day at Serjeants-Inn such a case was depending in the Exchequer Chamber to be argued and reversed for the cause ut supra And the case was between Jordan and Harvey and entred Trin. 36 Eliz. Rot. 384. Hil. 37 Eliz. Rot. 34. Castleman against Hobbs IN an Action of the Case for saying Thou hast stollen half an acre of Corne innuendo Corne severed the Defendant demurred upon the Declaration Fenner It is not Felong to move Graine and take it away Popham agreed to it and that the word Innuendo would not alter the Case unlesse the precedent words had vehement presumption the Corne was severed and in this case no man can think that the Corne was severed when the words are half an acre of Corne on the contrary if the words had been that he had stollen so many loads or bushels of Corne And Gawdy was of the same opinion and Iudgment against the Plaintiff c. Hil. 38 Eliz. IN an Account the Plaintiff declared that he delivered Goods to the Defendant to Merchandize for him the Defend said that the Goods with divers other of his own proper goods werâ— taken at Sea where he was robbed of them And it was moved that this was no plea in Bar of an Account but if it be any plea it shall be a plea before Auditors in discharge But admitting it be a good Bar yet it is not well pleaded for the Plaintiff as it is pleaded cannot traverse the robbing and try it for things done super altum mare is not tryable here wherefore the Defendant ought to have pleaded that he was robbed at London or any other certain place upon the Land and maintain it by proofs that he was robbed on the Sea Gawdy It is no good plea for he hath confest himself to be accountable by the receipt 9 Ed. 4. and it is no plea before Auditors no more then the Case was in 9 Ed. 4. for a Carrier to say that he was robbed Popham It is a good plea before Auditors and there is a difference between Carriers and other Servants and Factors for Carriers are paid for their carriage and take upon them safely to carry and deliver the things received Gawdy If Rebels break a Prison whereby the Prisoners escape yet the Goaler shall be responsible for them as it is in the 33 H. 6. Popham In that case the Goaler hath remedy over against the Rebels but there is no remedy over in our case Gawdy Then the diversity is when the Factor is robbed by Pyrates and when by enemies Popham There is no difference Hil. 38 Eliz. Rot. 40. IN a Writ of Error upon a Iudgment given in Nottingham the Error assigned was because the Defendant had no addition for it appeared the Action was in Debt and the Record was that H. Hund complained against Richard Preston of c. in the County of Nottingham Husbandman the which addition is not in his first name but in the alias and that could not be good and therefore it was prayed that Iudgment might he reversed But by the Court the Court of Nottingham had no authority to outlaw any man so that addition is not requisite wherefore it is no Error and Iudgment was affirmed Trin. 37 Eliz. Rot. 553. Browne against Brinkley IN an Action of the Case for words the Declaration was That the Plaintiff was produced as a Witnesse before the Iustices at the Assises at Darby where he deposed in a certain cause and the Defendant said Browne was disproved before the Iustices of Assise at Darby before Mr. Kingsley Innuendo that he was disproved in his Oath that he took before the Iustices And adjudged against the Plaintiff for although he was disproved in his Oath yet it is not actionable in this case for that disproof might be in any collaterall matter or any circumstance but otherwise if the words had been that he was perjured and the Innuendo will not help the matter and so was it adjudged The chief Iustice and Fenner being onely in the Court. Trin. 36 Eliz. Higham against Beast IN an Action of Trespasse by the Parson of Wickhambrooke in the County of Suffolk against the Vicar of the same place for taking of Tythes and on the generall issue the Iury gave this speciall Verdict That the place where c. was a place called B. the Freehold of I.S. and parcell of the Mannor of Badmanshall and found that the Pope as supream Ordinary heretofore made such an Indowment to the Vicaridge in these words Volumus quod Vicarius c. habebit tertiam partem decimarum Bladorum Foeni quomodocunque pervenientem de
Administration it is at the election of the Plaintiff to sue him as Executor or Administrator 9 Ed. 4.33 21 H. 6.8 2 Rich. 2.20 18 Ed. 4. Walmesley agreed for the Statute of the 27 Eliz. hath made voyd the Testators gift and subâ—ata causa toll â—ur effectus and the gift being taken away the property is also taken away from the Donee and setled in the Donor as to any Creditor To which the other Iustices agreed and Iudgement was given for the Plaintiff Trinit 43 Eliz. George Brooks Case in C. B. Rot. 1822. GIbson recovered in a Debt against Broâ—k as Executor to J.S. 60 l. and 6 l. damages and upon a scire facias to the Sheriff he returns no Assets and then upon the estate which was in Lâ—ndon which the Defendant had wasted and soâ—d a fieri facâ—as was awarded to the Sheriff of Lâ—…don with a Commission to the Sheriff of London to enquire if he had Assets at the day of the Writ c and by the inquest it was found that he had Assets at the day of the Writ purchased c. and that he had wasted the estate which was thus return'd by the Sheriff against which the Defendant took issue that he had not Assets and upon this was a a Demurr Walmesley A man may avert against the return of a Sheriff if the return be a matter collateral as if upon a Caâ—ias the Sheriff returns a Rescous there may be an averment against this 4 Eliz. 212. a. But if it be in pursuance of the Writ as non est inventus there no averment shall be taken against this but here the return is the saying of the Inquest and not his own saying Warburton I conceive he shall have an averment and traverse or else he shall be without remedy for he cannot have an Action on the Case against the Sheriff because he returns that which was found by the Inquest and so not like where the Sheriff returns falsly without such Inquest and no attachment lyes because it is but an Inquest of office and after it was moved at another day and a president shewn 33 Eliz. in B. R. between Westner and Whitenore and there it was adjudged that such return of the Sheriff was traversable and Anderson and Kingsmill agreed to it wherefore Iudgement was given for the Defendant and that the issue was well taken Day against Fynn IN an Ejectment the Plaintiff declared of a Lease for years of a house and 30 acres of land in D. and that J. S. did let to him the said Messuage and 30 acres by the name of his house in B. and ten acres of land there sive plus sive minus it was moved in arrest of Iudgement because that 30 acres cannot pass by the name of 10 acres sive plus sive minus and so the Plaintiff hath not conveyed to him 30 acres for when 10 acres are leased to him sive plus sive minus these words ought to have a reasonable construction to pass a reasonable quantity either more or less and not twenty or thirty acres more Yelverton agreed for the word 10 acres sive plus sive minus ought to be intended of a reasonable quantity more or less by a quarter of an acre or two or three at the most but if it be 3 acres less than 10. the Lessee must be content with it Quod Fenner Crook concesserunt and Iudgement was staid Smith against Jones IN an Action of the Case upon an Assumpsit the Case was that the wise of Jones was Executrix to J.S. and had Assets to satisfie all Debts and Legacies The woman dyes and the goods remained in the hand of her husband who was the Defendant and Smith the Plaintiff being a Legatee demanded his debt of the husband who said to him Forbear tâ—ll Michaelmas and I will pay you and if this was sufficient cause of Action was the question on a Demurrer Davies The promise is voyd because it is after the death of the wife Yelverton The Action will lye because he hath the â—oods in his possession and therefore is chargeable and must answer for them and therefore there is a good consideration And he cited Godfreys Case who laid claim to a Copyhold and the Copyholder in possession said to him If the opinion of the Lord Cook be that Godfrey hath a good title to it I will surrender it to him and because he did not surrender to him Godfrey brought an Action on the Case and it was adjudged that the staying of the suit was a sufficient consideration to have an Action on the Case Yelverton If the promise had been to pay this Legacy in consideration he would not sue him then it had been good Williams If there be no cause of suit there is no assumpsit and here is no just cause for he cannot be sued for Legacies Flemming of the same opinion for the husband cannot be sued by the Plaintiff and although perhaps the Legatee may sue him in the spirituall Court yet that is only for the temporall administration And afterwards Iudgment was given for the Defendant Michaelm 9. Jacob. Kempe and James against Laurence in C. B. Rot. 3648. IN a scire facias the case was thus Gant having two daughters made his wife Executrix untill his daughters came to the age of 21. years or should be married and then the Executorship should cease and that then his daughters should be his Executors and the woman did recover a debt upon a bond made to the Testator after which the daughters marryed the Plaintiffs and they brought the scire facias upon the said Judgment against the Defendants as terre-tenants and the Sheriff return'd the Defendants terre-tenants and no others and upon Oyer of the scire facias the Defendants pleaded that H. was seâ—sed of those lands die Judicii reddit and made a Lease for years to them Iudgment c. Nichols The daughters shall have this judgment as Executors for they are in privity and in by the Testator and are not like an Administrator who comes in by the Ordinary after the death of the Executor 6 H. 8.7 Cook 5. Rep. Brudnells Case and the daughters are Executors and subject to debts of the Testator And as to the plea he said that forasmuch as the Defendants are returned terre-tenants they cannot plead that they are but tenants for years and that their Lessor is not warned for the scire facias is a personall action to have execution but of the goods but in a reall action it is a good plea because the lessor himself cannot plead in discharge of such action 8 H. 6.32 And note that Michaelm 43 44. Eliz. Rot. 834. Iudgment in the very same point was given accordingly Trinit 9 Jacob. Information against West in C. B. Rot. 1246. IN an Information upon the Statute of the 5 of Ed. 6. cap. 14. for buying of wheate-meale and converting it into starch It was resolved by three of the
Estoppell otherwise if it were by Deed. Vid. 1 H. 7.12 Mich. 32 33 Eliz. Marshes Case in B. R. Rot. 1011. MArsh and his wife brought a Writ of Errour as Executors to Nicholson to reverse an Outlawry upon an Indictment of Felony pronounc'd against the Testator Altham of Grayes-Inne The sole point was whether the Executors may have a Writ of Errour and I hold that they may for if there be no heir it is great reason that the Executors should have it for otherwise the erroneous judgement cannot be at all reverst and every one shall have a Writ of Errour that is damaged by the erroneous judgement and Executors have right to the personal estate to have Errour For if a man recovers damages in a Writ of Cosenage and the land also and dyes his heir shall have Execution for the land and the Executors Execution for the damages by the 19 Ed. 4.5 43 Eâ— 3. 13 Ed. 4.2 If a man does recover my villain by a false Verdict the heir shall have an attaint for the villany and the Executors for the damages and a Writ of Errour shall be given to him to whom the right of the thing lost doth descend as it was adjudged in the Case of Sir Arthur Henningham and he cited two presidents in the point 1 Tâ—…ity 11 H. 8. Rot. 3. where an Administrator brought a Writ of Errour to reverse a Iudgement given in an exigent Vid. 2 Rep. 41. a. Cook contr In Natura Brevium 21 M. he sayes an Executor shall have a Writ of Errour upon a Iudgement given in Debt against the Testator and the heir shall have Error to reverse Outlawry in Felony and to restore him in his blood and he said that it was part of the punishment in Felony to have the blood corrupted sic filius portat iniquitatem patris and by reason of the attainder he cannot inherit any Ancestor wherefore he having the damage it is reason that he should reverse it And although Executors shall have a Writ of Errour for Chattels personal yet they shall not have one when they are mixt with things real 5 H. 7.15.18 Ed. 4. If Writings be in a Box the heir shall have the Box because real things are more regarded than personal Nevertheless in this Case the Writ of Errour is in a real Action for the Law sayes that it is in the same nature as in original action whereupon it is brought as if Errour be brought to reverse a Iudgement given in a personal action the Writ of Errour is personal and so in like manner is it real if the first action be real 47 Ed. 3.35 35 H. 6.19 23. and although the first action be mixt yet the Law does rather respect the reality 30 H. 6. Barr. 59. where two brought an assize and one did release and there it was said that although this were a mixt action yet it shall be according to the most worthy and that is the reality and 16 Assi 14. divers Disseisors being barr'd in an assize did bring a Writ of attaint for the damages and summons and severance was suffered for damages were joyned with the reality and Stanford 184. If a man be indicted before a Coroner quod fugam fecit if he after reverse the Indictment yet he shall have his goods for de minimis non curat Lex But note that the Iustices said that the fugam fecit was the cause of forfeiture of the goods and not the Felony And as to the presidents he agreed to the Case of the 18 H. 7. for an Executor shall have a Writ of Errour to reverse Iudgement given in an exigent for there nothing but the goods are forfeit 30 H. 6. Forfeiture 31. and for the president in 11 H. 8. it cannot be proved that the Outlawry was for Felony Vid. Rep. fol. 3. 33 Eliz. Lilly against Taylor in B. R. Rot. 467. MArsh seized of the land in question did devise this to Rose Lilly for life and if she fortun'd to marry and after her decease should have any heirs of her body lawfully begotten then that heir should have the land and the heirs of the body of such heir and for default of such issue the land shall revert to Philip Marsh his son and his heirs and the question was if the husband of Rose shall be Tenant by the curtesy or not and so if Rose had estate Tail or for life onely Godfrey She hath estate but for life and he cited a Case adjudged in Benlowes Reports 40 Eliz. where lands are devised to A for life and after his decease to the male children of his body and it was adjudged that the male children have an estate Tail by purchase and nothing by descent and so A had nothing but for life Gawdy agreed for she hath but for life and when she dyes her issue shall have it Popham agreed if the words were that if she had issue that he should have it But Clench held that she had an estate in Tail executed and that her husband shall be Tenant by the curtesy Fenner The issue is as a Purchaser for the Devisor intended that Rose should not have a greater estate than for life And also it was agreed by all the Iustices that a Devise to a man and his heir shall be accounted a Foe-simple for that the word heir is collective and so is the 29 Assi where land was given to a man and to the heir of his body uno haeredi ejusdem haeredis this is an estate Tail Popham He shall be Tenant by the curtesy and he agreed that heir of the body was a good name of purchase but if a Frank-tenement be limited to his Ancestor and by the same Deed it is also limited to his heir the heir shall be in by descent But Fenner on the contrary Pasch 38 Eliz. Bolton against Bolton Rot. 882. 582. TEnant for life being impleaded doth pray in aid of him in the Reversion who joyn and lose c. and the Tenant for life brings a Writ of Errour and the Record is removed and he in the remainder brings a Writ of Errour also De Recordo quod coram vobis residet and the question was upon which Writ of Errour the Iudgement should be reverst and it was objected that if it should be reverst by the Tenant for life that he in the remainder should be restored But Gawdy Fenner and Clench contr Who held that it should be reverst at his suit who first brings the Writ as in case of Interpleader it shall be alwayes upon the first Writ And notwithstanding the removing of the Record by the Tenant for life at the next term the Court said it was at their discretion to reverse this at suit of anâ— of the parties as they pleased and because they observed some indirect practices by him in the remainder it was reverst at suit of Tenant for life Pasch 5 Jacob. Sir Henry Dimmocks Case in the
a Report 34 Eliz. between Badinton and Hawle in the Kings Bench adjudged that if the Queens Copyholder be outed and a Lease be made for years by the Intrudor this Lessee shall not have an Ejectment if he be outed but he shall have an Action of Trespasse against any stranger The second exception was taken to the pleading because the Defendant pleaded in que estate del Lessee del Abbe without shewing how he came to the Estate And by the Court a good exception for he shall be compelled to shew how he came to an Estate in the terme inasmuch as it cannot be by loyall means vide 1. 2 Eliz. Dyer 171. that a Que Estate of a particular Estate of a terme is not good and 7 Eliz. Dyer 238. where the Plea was of a que Estate of a Termor and exception taken to it and the difference between it and a Freehold so in the 7 H. 6.440 it was agreed that H. could not convey an Interest by a que Estate of a particular Estate as Intail for life or years without shewing how he came by the Estate be it on the part of the Plaintiff or the Defendant The third exception was that the Defendant pleaded a Lease made by the Abbot and Covent by Indenture as it ought to be without saying Hic in curia prolat which exception was also clearly allowed by the Court for he is privy to it and therefore he ought to shew it And for these two exceptions but especially for the former Iudgment was given for the Plaintiff Mich. 36 and 37 Eliz. in C. B. Palmers Case Action on the case for words PAlmer an utter Barrester of Lincolns-Inn brought an Action on the Case against Boyer for these words Palmer being Steward to I.S. the Defendant in discourse had with I.S. said I marvail you will have such a paltry Lawyer for your Steward for he hath as much Law as a Jack a Napes And the Plaintiff shewed all the matter in the Declaration and that by reason of such words he was displaced of his Office Williams Serjeant did move in that the words were not That he hath no more Law then c. for then those words were actionable but that he hath as much Law as c. for which words no Action will lye But resolved by the Court that the Action will lye for the words are standerous and prejudiciall to his credit and by reason of them he was discharged of his Stewardship also an Action will lye for saying That he hath as much Law as a Jack an Apes or my Horse because they are unreasonable creatures but if he had said that he hath no more Law then I.S. that is not actionable although I.S. be no Lawyer And Iudgment was given for the Plaintiff Pasch 35 Eliz. in B. R. Audleys Case A Man brought an Action of Debt on an Obligation made by the Father of the Defendant in which Writ the Defendant was named Son and Heir apparent of the Obligor Iudgment was given against the Defendant whereupon he brought a Writ of Error for the Writ does imply that his Father was living for he is his Heire in truth and in fact if his Father be dead and not apparent To which was answered that that was but Surplusage which shall not abate the Writ as appeares by the Book of the 10 Edw. 3. But the Court held that Iudgment should be reverst for he ought to be named Heire as in debt against Executors he shall be named Executor And Iudgment was reverst Trin. 36 Eliz. in B. R. Downinghams Case Ejectment THe Defendant in an Ejectione firmae pleaded that the Lord of the Mannor did enter into the Land of a Copyholder by reason of forfeiture for Waste committed in suffering the houses to be uncovered by which the timber is become rotten and did not alledge in facto that the Custome of the Mannor is that such Waste is a forfeiture for it was said that although other Waste by the Common Law is a forfeiture yet this permissive Waste is not Sed non allocatur for all Waste done by a Coppholder is forfeitable 2. It was resolved that if a Coppholder made a Lease for yeares which is not according to the Custome of the Mannor yet this Lease is good so that the Lessee may maintain an Ejectione firmoe for between the Lessor and the Lessee and all other except the Lord of the Mannor the Lease is good and so hath it been severall times adjudged in this Court Trin. 36 Eliz. in B. R. Wisdomes Case Action on the case for words STich brought an Action on the Case for slanderous words against Wisdome the words were There is many a truer and honester man hanged and that there was a Robbery committed whereof he thought him to be one and that he thought him to be a Horse-stealer And it was moved in Arrest of Iudgment that these words were not actionable for it is not said in facto that he was in the Robbery or that he was a a horse-stealer in fact but onely by imagination that he thought he was such a one but Iudgment was given for the Plaintiff Trin. 36 Eliz. in B. R. Rot. 815. Palmers Case CHristopher Palmer brought an Ejectione firmae against John Humphrey and declared that one George Hanger the eighteenth day of May in the six and thirtieth year of Eliz. by his Indenture did demise unto him a certain peece of Land called the great Ashbroke and other peece of Land called Stocking and also divers other peeces of Land naming the peeces and of one Garden called Muchins Gardein and of another peece of Meadow called Michins Meade and of seven acres of arable Land for the terme of two years by vertue whereof the said Christopher entred untill the Defendant by force and armes c. did eject him and did set forth in his Declaration that the Defendant ejected him out of the said peeces of Land and yet did not expresse the contents thereof in certainty And upon not-guilty pleaded it was found for the Plaintiff and for the seven arable acres of Land and the Garden the Court gave their Iudgment that it was certain enough but as to the other peeces of land the Court was divided For Popham Gawdy held that it was certain enough being in an Ejectione firmae which is but in the nature of an Action of Trespasse and the damages are the principall and a man may bring an Action of Trespasse for a peece of land without any other certainty But Clench and Fenner were on the contrary for he ought to set forth his terme in the land and then to shew the contents thereof as well in an Ejectment as in a Precipe quod reddat by which land is demanded and a man shall have an Ejectione firmae de una visgata terrae but shall not have a Precipe quod reddat of one portion of land by Skeene and Hill 7 H. 4.40 9 H. 6.3
Rot. 610. Bond against Richardson In Debt the Defendant pleaded payment at the day and gave in evidence payment at another day before the day of payment and so was it found by the Iury in a speciall Verdict And Anderson said We are all agreed that Iudgment shall be given against the Plaintiff for payment before the day is payment at the day and Iudgment was given that the Plaintiff should be barred Willis against Whitewood A Man was seised of lands in Socage and made a Lease for years by Paroll and died his wife was Guardian in Socage to his Son and the Lessee accepted of a new Lease by Deed of the Guardian in Socage and then the Guardian died and a new Guardian entred and outed the Lessee and if the second Guardian could do this was the question Anderson It cannot be a surrender for a Guardian hath no Estate that may be surrendred but it is an extinguishment of the Lease and if a Woman Guardian in Socage takes Husbandâ— and dies the Husband shall not be Guardian in Socage Almeskey against Johnson JOhnson had a second deliverance returned which was returned Averia eloigniata c. whereupon he prayed a Withernam of the Cattle of the Plaintiff and it was granted and then came the Plaintiff and satisfied the Defendant his damages and charges and praid a Writ of Restitution to have his Cattle again taken in Withernam Fleetwood Cattle taken in Withernam are not repleiditable how then can you have your Cattle and then we shall not be paid for the meat And the Court held that the Cattle were not repleivisable but for satisfaction of damages he shall have restitution of the Cattle and so is the course which was confirmed by the Clarks And Walmesley cited 16 H. 6. Repleviâ—… to warrant this And as to the meat he had the use of the Cattle whereby it was reason he should sustain them And a Writ of Restitution was granied Mich. 31 and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood it was said that the Order called the Cistrenses Order hav a priviledge that they should pay no Tythes for the lands that Proprils manibus excolunt but if they let it to Farmers then they were to pay Tythes and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tythes was the question And it was said that the Queen and her Farmers also should hold the land discharged of Tythes as well as the particular persons of the Order should for the King cannot be a Husband and therfore his Farmers shall hold the land discharged so long as the King hath the Freehold in him although he make a Lease thereof for years at will but to if the King sell the land to another or the reversion to another then the Farmers shall pay Tythes Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumont that a Debt which is not naturally a Debt in it self but a Debt onely by circumstance may be assigned to the Queen As where a man is bound in a Bond to save another harmlesse and failes thereof the Obligation may be assigned to the Queen But in such case a present extent shall not be awarded but the Processe shall be onely a Scire facias against the party to see if he hath any thing to plead against it which note well And where a man recovers damages in an Action on the case parcell of the damages cannot be assigned to the King before execution for he must bring a Scire facias upon such Record And Manwood chief Baron held clearly that a moyely hereof could not be assigned over 22 H. 6.47 One was indicted of Treason at S. Edmundsbury Coram Justiciariis ad diversas felonias c. audiendas and after the Indictment made mention of Bury and did not say praedict and by the opinion of the Iustices the Iudgment was quasht Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert for saying that the Plaintiff was a Suitor to a Widow in Southwark and that he consened her of her money in procuring false witnesses to consen her And a Verdict found for the Plaintiff And in Arrest of Iudgment it was said that in the case of Kerby it was adjudged that Cousener will not beare Action and so was it adjudged in this case Mosse against Reade THe Defendant called him Theef and thou forgest a Deed and a Verdict was found for the Plaintiff and in Arrest of Iudgment it was said that Theef generally without saying of what nature specially will not bear Action But Wray chief Iustice denied that and said that it had of late been adjudged to the contrary and Gawdy against him But as to the words that he had forged a Deed adjudged that the Action will lye although it be not specially alledged what manner of Deed was forged Pasch 32 Eliz. COllings informed upon the Statute of buying of Tythes against Robert Davyes and Stock And it was said by Periam that although the words of the Statute be Pro termino diversorum annorum yet if a Lease be made but for one year yet is it within the penalty of the Statute Mich. 31 and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury and others and declared upon a Grant of the next avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance and upon this there was a Demur And the whole Court for the Demur for that such Letter was a mockery for the Grant was not good without Deed and Iudgment was given accordingly In Tymbermans Case it was said that if a Sheriff took one in Execution by force of a Capias although he return not the Writ yet an Action of Debt will lye against him upon an escape and Periam said it had been so adjudged Katherine Gilham brought an Ejectment as Administratrix to her Husband Quare determino eject bona catalla sua ibidem inventa cepit c. and a Verdict for the Plaintiff and it was alledged in Arrest of Iudgment that this word Sua shall not be intended her own Goods and not the Testators And the Court was of opinion that Sua shall be intended in such manner as Administrator and no otherwise And therefore Iudgment was affirmed Mich. 31 and 32 Eliz. Baldwin against Mortin USe to the Husband and Wife habendum to the Husband for thirty years the Wife shall take nothing thereby and this case was argued at the Bar and Bench and was called the Earl of Cumberlands case Fleetwood moved that an Action was brought against the Husband and his Wife and dit declare a trover of the Goods of the Plaintiff by the Wife which she converted to her own use and prayed
this very cause prescribed as we do in this case so they may prescribe in a way or other thing of easement or pleasure 7 Ed. 4.26 a. 15 Ed. 4.29 a. Anderson There is no question but Parishioners may justify their going over any bodies land in their Perambulation Warberton Parishioners shall not prescribe in an easement as in â—y way to the Church Owen The books make a difference between things of interest as in common for in such things Parishioners cannot prescribe and things of easement as a waste for in such things a man may prescribe Anderson It is plain that Parishioners cannot prescribe for none may prescribe but those that have perpetuall continuance and therefore Tenant for years or for life or Parishioners cannot prescribe but must be aided by custome Walmsley of the said opinion for there is no descent or succession in Parishioners And Iudgment was given for the Plaintiff Trin. 37 Eliz. in B. R. Norton and Sharp against Gennet Rot. 178. A Prohibition was sued by the Plaintiffe as Executors to I.S. who surmised that the Defendant sued them in the Court Christian for a Legacy of 200 l. and that the Testator had goods but to the vale of 350 l. and set forth how he was Keeper of the Prison of Ludgate that he was bound to A. and M. Sheriffs of London to discharge and save harmlesse the same Sheriffs from all escapes which bond was to the value of a 1000 l. And shewed that one Holmes was taken by a Capias utlegatum at the suit of a stranger and how the Testator suffered him to escape whereupon an action of debt was brought against the Sheriffs and a Iudgment whereby the Obligation made to them by their Testator is forfeit and pleaded riens intermaines and because the Court Christian would not allow this plea they prayed a Prohibition upon which Coke Attorney-generall demurred And it was agreed by Gawdy Iustice Coke and Tanfeild that if the Bond to the Sheriff be not forfeit then is the Surmise good and the Legacy shall be paid But Fenner said to Coke Quomodo probas Who answered The difference is when a bond is made by the Testator for payment of money in a Suit at the Court Christian for a Legacy such a bond is a good plea although the bond be not forfeit as in the 9 Ed. 4.12 13. for the Condition of the Bond is part of the Bond and a duty but otherwise it is where the Condition is collaterall for the performance of Covenants but in our case the Condition is not broken as is supposed for the Capias utlegatum issued the 25 of Eliz. and so the Arrest meerly void for every Capias ought to be returned the next term after the Teste 21 H. 7.16.6 8 Ed. 4.4 6. Sed alii contra But after a Consultation was moved for if a Recovery was afterwards had against the Executors And it was answered that it was not the course to make a Bond to the party but to the Court But Fenner said that it such course be allowed no Legacy would be paid And Iudgment was given that a Consultation should be awarded if the Legatee would enter into a Bond to the Executor to make restitution if c. or otherwise not Hil. 38 Eliz. in B. R. Haddon against Arrowsmith IN an Ejectment the case was The Queen being Lady of the Mannor of Winterburne in the County of Berks by her Steward did license a Copyholder for life to make a Lease for three years if he should so long live the Copyholder did make a Lease generally to the plaintiff for three years who being ejected brought this Action Stephen The Action will not lye because the Copyholder hath not pursued his licence for license or authority must be pursued very strictly as well in form as substance 10 H. 7. license to enfeoff by Deed or license to impark 300. acres he cannot enfeoff by paroll or impark but 100. acres and it was resolved the last Terme in the Exchequer that if the King license his Tenant to alien he cannot alien to one in tail the remainder to the Donor in fee And so in our case where he makes a Lease for 3. years absolutely he hath not performed his license Gawdy contra for when his license is to make a Lease for yeares if he so long live these words If he so long live are but Surplusage for the Law saies that if Copyholder for life makes a Lease for years and dies the Lease is determined and therfore the clause in the License is no more then the Law saies and so is void Quod suit concessum per totam curiam Fenner The Condition in the License is meerly void for the Lord gives nothing by the License but only doth dispence with the forfeiture and the Lessee is in by the Copyholder and not by the Lord for the Lord cannot condition with him in his License Clench The Lord may license on Condition as where the Lord doth licence his Copyholder on condition that the Lessee shall repair the house or shall not cut Trees for otherwise the Copyholder may cut them and the Lord hath no remedy for his License is a dispensation of the forfeiture Popham contra A Condition to a License is void as a License to make a Lease for years on condition that he pay 20 l. the second year this is void for the reason given by my brother Fenner for the license does not give a right but only executes it as a Livery or Attornment but a Limitation to such License is good as license to alien for two years he cannot alien for three but in our case the Condition the Limitation made by the Lord is void and the difference is between a Copyholder in fee and a Copyholder for life for if the Lord doth license his Copyholder in fee to make a Lease for three years if he so long live and he makes a Lease absolutely this is no forfeiture for this Lease shall be a good interest against the Heir of the Copyholder but otherwise of a Copyholder for life And Iudgment was given for the Plaintiff Pasch 38 Eliz. in C. B. Bishop of Rochesters Case THe Bishop of Rochester brought a Writ of Annuity against the Deane and Chapter of Rochester and declared of an Annuity by Prescription from the Prior of S. Andrewes of Rochester which Priory was dissolved the 28 H. 8. 31 H. 8. their possessions were committed by the King to the Dean Chapter of Rochest Anderson The Annuity does not remain for an Annuity chargeth the party and not the possession and therfore when the Corporation is dissolved which is the person the Annuity is gone Walmesley But in 2 H. 6 9. it is said there If a Priory be charged with an Annuity the Annuity shall continue although it be charged to an Abby Anderson That is true for there the Corporation is changed only but here it is
607. Replevin WAkefeild brought a Replevin against Cassand who avowed for Damage-feasant And the Plaintiff prescribed that D. is an ancient Town c. and that all the Inhabitants within the said Town except the Parâ—ion Infants and some particular houses have used to have Common to their houses c. The Avowant shewed that the house to which Common was claimed was built within thirty years last past And whether he shall have Common to this new erected house was the question on a Demurrer Shuttleworth he shall have this Common by prescription but not of common right Gawdy the Prescription is against common reason that he should have Common time cut of mind c. to that which hath not been thirty years and he hath excepted the Parson Infants and such particular houses and by the same reason may exceptall and therefore it is not good But it was adjudged no good Prescription for if this be a good Prescription then any body may create a new house so that in long space of time there will be no Common for the ancient Inhabitants Periam By such Prescription the Lord shall be barred to improve the Common which is against reason Anderson The Common is intire for if H. hath Common appendant to three Messuages and enfeoff one of one Messuage another of the second and another of the third the Common in this case is gone But all agreed that it is impossible to have a Common time out of mind c. for a house that is builded within the thirty years Mich. 29 and 30 Eliz. Rot. 2299. Bishop of Lincolns Case Quare Impedit THe Queen brought a Quare Impedit against the Bishop of Lincoln and Thomas Leigh to present to the Church of Chalsenut Saint Giles in the County of Bucks The case was thus H. being qualified took two Benefices which were above the value of eight pounds and after took a third Benefice above the said value whereby the first Benefice became void and so remained for two years whereby Title of Lapse accrued to the Queen and before presentment made by the Queen the Patron did present one A. who being admitted instituted and inducted did refuse to pay 38 l. 2 s. ob due to the Queen for the Tenths which matter was certified by the Bishop into the Exchequer whereupon and by force of the Statute of the 26 H. 8. the Church is ipso facto void wherefore the Bishop the now Defendant being Patron in right of his Bishoprick did present Thomas Leigh the other Defendant against whom the Queen brought her Quare Impedit And it was adjudged by the Court that the Quare Impedit very well lies for the Recusancy to pay the Tenths was his own act and is a Resignation and by that reason she Church is void and this shall not hinder the Queen of the Lapse But if A. the Incumbent who was presented dies being presented by usurpation upon the Lapse to the Queen yet afterwards the right Patron shall present again But when A. the Incumbent doth resigne and make the Church void by his own Act viz. by Recusancy as in this case is done this may be done by Collusion and by such means the Queen may be deprived of her Litle by Lapse for if this Collusion between the Bishop and the Incumbent be suffered then may a stranger present upon the Title of the Queen and presently such Recusancy and Certificate may be made by which the Church shall become void and so the Queen deprived of the Lapse Fenner this Lapse is given to the Queen by her Prerogative but on condition that she take it in due time for such is the nature of the thing Lapsed as is in this case adjudged viz. That when the Queen hath Title to present by Lapse and doth not present but the Patron presents and after the Church becomes void by the death of the Incumbent In this case adjudged by the Court also the Queen cannot present but in this case the avoidance being by privation and not by death Iudgment was entred for the Queen Trin. 19 Eliz. in Com. B. Hales Case Debt on â— Bond. SAmuel Hales brought an Action of Debt on a Bond against Edward Bell and the Condition of the Bond was that if the said Bell should pay to the said Hales forty pounds within forty daies next after the return of one Russell into England from the City of Venice beyond the Seas that then the Obligation to be void and the Defendant pleaded in Bar that the said Russell was not in Venice upon which the Plaintiff demurred And adjudged by all the Iustices that it was no good plea for in such cases where parcell is to be done within the Realm and parcell out of the Realm the tryall shall be within the Realm 7 H 7.9 Trin. 28 Eliz. in Com. Ban. Haveringtons Case 1974. Debt by an Administrator HAverington and his wife as Administratrix of one Isabell Oram brought an Action of Debt against Rudyand and his wife Executrix to one Laurence Kidnelly the Case appeared to be thus Farmer for thirty years did devise to his wife so long as she shall be sole and a Widow the occupation and profits of his terme And after her Widowhood the Residue of the terme in the Lease and his interest in it to Reynald his Son the Devisor dies and the wife enters according to the Devise And afterwards he in the Reversion by Indenture Dedit concessit vendidit Barganizavit totum illud tenementum suum to the wife and her Heires and did also covenant to make further assurance and to discharge the said Tenement of all former Bargains Sales Rights Joyntures Dowers Mortgages Statute-merchants and of the Staple Intrusions Forfeitures Condemnations Executions Arrearages of Rents and of all other charges except Rents Services which shall be hereafter due to the Lords Paramount And then the Reversioner and his wife levied a Fine to the uses aforesaid and after the Devisee takes husband and thereupon the Son enters in the terme And the Administrator of the wife brought an action of debt upon an Obligation for the performance of the Covenants of the Indenture against the Administrator of the Reversioner And Judgment for the Plaintist And it appeared by the Record that these points following were adjudged to be Law although that the latter matter was onely argued 1. That the wife of the Reversioner who had Title of Dower in the Land is concluded of her right of Dower by the Declaration of the uses of the Fine by the husband onely which Fine is after levied by them joyntly because no contradiction of the woman appears that she doth not agree to the Vses which the husband selely by his Deed of Indenture had declared 2. To Devise that the wife shall have the occupation and profits during her Widowhood is a good Devise of the Land it self during such time See Plow 524. And that no Act which she can do
that it should be against both for it is intire and cannot be affirmed in part and disaffirmed in another part And the Lord Norris case is very agreeable to this where Tenant for life did levy an erroneous Fine and then was attaint by Parliament and all the right which he had to any Land was given to the Queen and it was adjudged that there is no title of Error nor was it given to the Queen by this word Right and then if it be so the Title of Error is not of any right in the land but onely to the Suit and if it be a Suit it is a Suit intire for he cannot have severall Suits as is agreed in Sir Richard Knightleys case A man had judgment to recover 150 l. and did release 20 l. of it and after sued execution and the other brought an Audita querela upon the Releases and defeated all the execution But it is otherwise where such apportionment of such Suit is done by act in Law as in 7 Ed. 4. fol. ultimo The Sheriff levied parcell of the debt by Fieri facias yet shall he have an Action of Debt for the Residue upon the Record But in this case it is the act of the party himself that destroies his Suit for part of the Land for which it shall destroy the other suit for the Error is intire as to all the land and cannot be divided as in the 38 Ed. 3. and 12 H 6. if a false Verdict be found and the party greived does make a Feoffment of parcell he shall not have an attaint for any part So in the 19 H. 6. and the 39 Ass If he who hath cause to bring a Writ of Error or Attaint does take a Lease for years of parcell he doth suspend his Action and if he takes in fee it is quite gone But it was resolved by the Court that the Feoffment does not destroy the Title of the Writ of Dower for more then so much as a Feoffment was made of and thereupon they first took a difference between suspension and extinguishment of an Action for peradventure if he suspend his Action as to any part for any time this is a suspension unto all but extinguishment of part is a Bar to that part onely and Gawdy cited the case in 9 H. 6. where Iudgment was reverst for part only and it is not unusuall to have a Fine reversed for part as if a fine be levied of lands in ancient Demesne 47 Ed. 3.9 a. there by Parsley If there be Error in Law as to one parcell and Error in Fact as to another parcell the Iudgment as touching the matter of Law may be reversed Fenner He who hath Title to reverse a Fine or recovery by Writ of Error hath right in the Land and if he release all his right in the land the Error is extinct and the reason of the Lord Norris Case was not that the Title to the Error was an Action in privity annexed to the party to the Record and his Heires and cannot be transferred over to another no more then a Writ of partition between Coparceners or a Nuper obiit Popham He who hath Title to have the Writ of Error hath no Title to the Land although that thereby he be to be restored to the Lande for if the Land discend to one who hath Title to have the Writ of Error without doubt it shall not be accounted a remitter But as to the matter now in question he said that if two men bring a Writ of Error in the Realty and the Tenant plead the release of one this is a good Bar against both because the Error in the Record is released But if one who hath Title to a Writ of Error does make a Release of all his Right in one acre this is a Bar but for so much inasmuch as the Release is a Bar but as to the Restitution of the Land onely and no Release of Errors in the Record for by the Reversall of a Fine or Recovery the party may annihilate the Record and have Restitution of that which the Record before took from him and therefore it shall bar the Plaintiff And the opinion of all the Court was that the Fine should be reversed for that part of the Land onely whereof no Feoffment was made but for some defects in the Writ of Error Iudgment was stayed Mich. 37 and 38 Eliz. in B. R. Barnards Case SMith brought an Action of Debt upon a Bond against Barnard the Defendant pleaded that the Plaintiff was outlawed and a day was given him to bring in the Record at which day he made default Daniel moved that the Iudgment for the Plaintiff in this case should be that the Defendant should answer for that the plea of Outlawry was but a dilatory Plea and no Plea in Bar as appears 21 Ed. 4 15. but this difference was taken by the Court. In an Action of Debt upon a Bond Vtlary of the Plaintiff is a Plea in Bar and the reason is because all the Debts in specialties are forfeited to the Queen by reason of the Outlawry and because the Queen is to have them it is a good Plea in Bar But in a Trespasse or Debt upon a Contract the Outlawry is but to the abatement of the Writ and the Queen shall not have Debts upon simple Contracts but after the Outlawry pardoned the Plaintiff may have an Action for them again And because he failed to bring the Record at his day appointed the Plaintiff recovered vide Dyer 6 Eliz. 227 228. Hil. 32 Eliz. in C. B. Lord Dacres Case GRegory Lord Dacres was summoned to answer Richard Gawton in a Plea of Debt for 26 l. 14 s. and did declare that the Defendant did retain the Plaintiff to be his Bayliff of his Mannor of Moreford c. and to receive the Defendants money for a certain time and to do other businesses for the Defendant and to render an account and afterwards before one Launcelot Love the Auditor assigned by the Defendant the Plaintiff did account Super quo computo praefatus Richardus pro diversis costagiis expensis quae idem Richardus circa prosecutionem executionem negotiorum praefati Gregorii in surplusagiis in praedict 26 l. 14. s. erga ipsum Gregorium ultra omnes denariorum summas per ipsum Richardum ad ipsum dicti Gregorii recept permansisset And thereupon he brought his Action and the Defendant pleaded Nil debet and it was found for the Plaintiff and yet he had not Iudgment First because the Declaration was insufficient because the Plaintiff was not in Surplusage to the Defendant but the Defendant to the Plaintiff and so are all the Presidents directly and he ought to alledge he was in Service and that he had received Goods whereof no mention is made Secondly Because neither day nor place is alledged where the Auditor was assigned Pasch 33 Eliz. in C. B. Rot. 409. Owseleys Case ROger Owsely brought a
not claimed to hold at Will for he hath done contrary for he hath made Copies By all the Iustices if Tenant at will or for years or at sufferance make a Lease for years this is a Disseisin and a Tenant at will doth thereby gaine a Freehold and thereby doth claim a greater Estate then he ought and so it is in this case 2. Admitting him to be Tenant at sufferance the question is if he may grant Copies and if whether they be good and it seems he may for no trespasse lies against him because he is Dominus pro tempore and it is not like a Copy made by an Abator or Disseisor for it hath been adjudged that Copies made by them are void but in this case his act of making Copies agrees with the Custome as in Grisbrooks case If an Administrator sells Goods and paies debts with the money and after he who is Executor proves the Will he shall never avoid this sale for that it was done according to the Will which the Executors were compelled to do So in the 12 H. 6. If a Baily cuts Trees and repaires an ancient Pale this is good and 6 R. 2. if he paies quit-rents it is good Coke He comes in by right and therefore is Tenant at sufferance and like this case is Dyer 35 H. 8.57 Lord Zouches case where Cestuy que use for life the remainder over in taile made a Lease for the terme of the life of the Lessee and dies and the Lessee continues his Estate And the opinions of the Iustices of both Benches were that he is but Tenant at sufferance Popham If a Mannor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet the Copies of Surrender made by such Devisee are good but contrary where new or voluntary Copies are made by him 7 Eliz. and in the Lord Arundells case a Feoffment in fee was made of a Mannor upon condition the Feoffee upon Condition grants voluntary Copies those are good Atkins on the contrary And he made a difference between a Tenant at will and a Tenant at sufferance for a Tenant at will shall have aid but so shall not the other as in the 2 H. 4. and a Release to one is good to the other not c. and when he holds over he doth assume an Interest which shall not be thought wrongfull for he is neither Abator nor Disseisor and therefore Dominus and therefore the Copies made by him are good 4 H. 7.3 Tenant at sufferance may justifie for Damage-feasant And all the Iustices held for the Plaintiff and that he that made the Copy was but Tenant at sufferance and not Disseisor and that he had no Fee And the Iudgment was to be entred unlesse the Defendant shewed better matter Trin 28 Eliz. Rot. 329. Smiths Case SMith assumed upon himselfe that when I. N was indebted to I.D. in an Obligation of forty pounds that if I.D. would not implead the said I.N. that then if the money were not paid at such a day that then he viz. the said Smith would pay the money Vpon which Assumpsit after the day I.D. brought his Action on the case and did set forth in his Declaration that he did not implead I.N. and it was moved by Kingsmill that he could not have this Action untill I.N. be dead for so long as he lives I.D. hath time to implead him As if a man promiseth another that he will be named in his Action that he hath against a third person and if the third person payes not the money at such a day then he will he cannot sue unlesse he shewes he hath discharged the other of the Obligation Clench It is implied that he will never implead him Shuttleworth Iustice not so for if hereafter he sue him contrary to his promise then the other who made the Assumpsit shall have his Action on the case and recover to the value of the sunâ—m in the Bond. And after the case was moved again and the Plaintiff brought the Obligation in Court and thereupon the Obligation was entred so that now the Plaintiff could not implead I. N in posterum for which Iudgment was entred for the Plaintiff 29 Eliz. Cosens Case COsen the Father had issue three Sons John George and Thomas John the eldest died in the life-time of his Father his Wife Enseint with a Daughter the Father makes a Devise in these words That if it shall please God to take to his mercy my Son Richard before he shall have issue of his body so that my Lands shall descend to my Son George before he shall be of the age of one and twenty years then my Overseers shall haue my Land untill George come to the age of one and twenty years If Richard who is yet living had an Estate in taile by these words was the question And all the Iustices agreed that it was a plain implication to make an Estate-taile in Richard the second Son 13 H. 7.17 29 Eliz. in C. B. Warrens Case WIlliam Warren brought an Action of Debt for forty pounds and in his Declaration confessed satisfaction of twenty pounds and hereupon a Writ of Error was brought in the Kings Bench and the Iudgment reversed For by his Declaration he had abated his owne Writ and he ought to have Iudgment according to his Writ and not to his Count. And Error was brought upon the Outlawry for if the first Record was reversed the Outlawry thereupon is reversed 4 and 5 Phil. Mar. BEnlowes Serieant moved this case a man seised of Lands and Teâ—ements in London devises them by these words I will and bequeath unto my Wife Alice my livelyhood in London for terme of her life By this Will the lands in London passe to the Wife by this word Livelyhood Nota for Brook Iustice said that it was in ancient time used in divers places of this Realm and had been taken for an Inheritance To which Dyer agreed Case of Slander BRook said that if a man speak many slanderous words of another he who is slandred may have an Action on the case for any one of these words and may omit the others But if a man write many slanderous things of another in a Letter to a friend an action upon the case will not lye for it shall not be intended that it is done to the intent to have it published Mich. 1 and 2 Eliz. N. Arch-bishop of York and I.B. Executors of the last Will and Testament of Thomas Duke of Norfolk did bring a Writ of Ravishment de Guard and then he was deprived by his own consent The question is if the Writ shall abate Benlowes It shall abate for if a Dean and Parson of a Church bring an Action for such a Custome and then resigne the Writ shall abate because it is their own Act. Dyer The Writ shall not abate for the Action is not brought in their own persons but in their Testators and
shall not have an Action of Debt untill the last year expired And after Iudgment was given for the Plaintiff viz. Mich. 29. Eliz. Rot. 2248. 28 Eliz. Between Sticklehorne and Hatchman ADjudged by the Court that if for not scouring of a Ditch or Mote the Groundsells of the house are putrified or Trees cut downe which are in defence of the house whereby the house by tempests is blown down Waste shall be assigned in Domibus pro non Scourando c. IN an Ejectione firmae Broker Prothenotary said that where the title of him in the Reversion is not disclosed in pleading nor cometh in question aid shall not be granted Pasch 28 Eliz. in C. B. Yardley against Pescan THe Queen seised of an Advowson being void the Ancestor of Pescan presented and so gained it by usurpation and then the Church being void he presented again and his Clark is now dead and then the Queen grants the Advowson to Yardley the Plaintiff and he brings a Quare Impedit in the name of the Queen supposing that this usurpation did not put the Queen out of possession and it was argued that the Grant could not passe without speciall words because it is of the nature of a Chose in Action and this was moved the last terme and then Dyer Meade and Windham held that this usurpation did gaine possession out of the Queen and that she should be put to her Writ of Right of Advowson and now this terme Fenner moved the case againe and the opinion of Anderson that was the chief Iustice of the Common Pleas was clearly that the Queen was not out of possession for he said that it was a rule in our Books that of a thing which is of Inheritance the act of a common person will not put the Queen out of possession but if she had but a Chattell as the next Advowson then perhaps it is otherwise But Meade and Windham held very earnestly the contrary and they relied on the Book of 18 Ed. 3.15 where Shard said that if the King had an Advowson in his owne right and a stranger who had no right did happen to present that put the King out of possession And the King shall be put to his Writ of Right as others shall vide 47 Ed. 3.14 B. 18 Ed. 3.16 The Defendant there did alledge two Presentments in his Ancestor after the Title of the King and demanded Iudgment if the King should have a Writ of possession and the plea was admitted to be good but after Pasch 25 Eliz. Iudgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 31 Eliz. Rot. 211. SIr Robert Rowley made the Lord Keeper Sir Robert Catlin and the Master of the Rols his Executors and did devise a terme to Sir Robert Catlin and died and they writ their Letters to the Ordinary certifying that they were made Executors but that they could not attend the executing of the Executorship and therefore they required him to commit the Administration to the next of kin ut lex postulat The Ordinary enters in the Register Quia Executors praedicti per testamentum praedictum distulerunt c. and thereupon committed the Administration over Afterwards the Lord Catlin received the Rent of the Farme and after granted it to a stranger The Administrator ousted the Lessee and he brings an Ejectment And if this writing was a refusall in the Executors or not was the question And it was said by Ford Doctor of the Civill Law that it was a refusall and he said that if Legatees being Executors do refuse to prove the Will yet by the Civill Law they shall have their Legacies But adjudged by the Court that if Legatees do refuse to prove the Testament that by the Common Law they have no remedy for their Legacies for by the refusall there is a dying Intestate and then nothing could be devised and also said that this Writing was a refusall of the Executors so that the Ordinary might presently commit Administration and therefore Sir Robert Catlin could take nothing as Legatee Pasch 31 Eliz. THe Array of a Pannell was challenged because the Sheriff was Cosin to the Plaintiff and upon a Traverse it was found that they were Cosins but not in such manner as the Defendant had alledged and per curiam the Array was quasht for the manner is not materiall but whether he be a Cosin or not 18 H. 6.18 Pasch 31 Eliz. IT was resolved in the case of Miles against Snowball that if the Sheriff return one who hath no Freehold yet he shall be sworne in the Iury if he be not challenged by the parties And after upon the evidence it was moved If a woman make a Deed of Feoffment to severall persons of a house and land wherein she her self inhabiteth and is seised and delivers the Deed to the Feoffers without saying any thing if this be a good Feoffment of which Periam doubted because she did inhabit there all the time but if it were of other lands on which she did not dwell and she comes there to make Libery and delivers the Deed upon the land and saies no words yet is this a good Feoffment because she comes thither to malte Livery Anderson The Feoffment in this case is good for if she hath an intent to make Livery the delivery of the Deed is good Livery Quod Periam tota Curia concesserunt if she had intended to make Livery vide Co. lib. 6 26. lib. 9.136 Dyer 192. Pasch 31 Eliz. A Woman brought an Action of Debt as Administratrix to another the Defendant pleaded that the Plaintiff was an Alien born in Gaunt under the obedience or Philip King of Spain the Queens enemy And Walmsley moved for the Plaintiff that this was no plea because that the recovery is to anothers use but the Court was against him for the Court will not suffer that any enemy shall take advantage of our Law and then he moved that that King was no enemy because Wars were not proclaimed But Anderson said that a more open enemy then King Philip cannot be who had conspired the death of the Queen and had endeavoured to invade the Realm and subvert the State which Windham granted but Periam haerebat aliquantulum whether he could be called enemy in law before such proclamation But Walmsley said that the plea was that the woman was born under the obedience of the Emperor who was in amity with the Queen and the Court replied Plead as you will abide by it Pasch 13 Eliz. IN a trespasse of Assault and Battery the Plaintiff declared to his damages of twenty pounds and the Iury found for the Plaintiff and gave thirty pounds damages And by the Court the Plaintiff shall recover no more then he hath declared for and this ought to be done of course by the Clarks 2 H. 6.7.8 H. 6.4.42 Ed. 3.7 Mich. 30. and 31 Eliz.
estate and therefore the Release here is good Anderson We are all agreed that the Release is void and gave Iudgment that the Plaintiff should be baned Bretton against Barnet Mich. 41. 42. Eliz. A Man delivers money to J.S. to be redelivered to him when he should be required which J.S. refused and therefore an action of debt was brought and the defendant demurred for that an action of debt would not lie but an account as in the 41 Ed. 3.31 33. Walmesley An action of debt will very well lie And he took a difference between goods and money for if a horse be delivered to be redelivered there the property is not altered and therefore a Detinue lies for they are goods known but if money be delivered it cannot be known and therefore the property is alterd and therefore a Debt will lie And if Portugalls or other money that may be known be deliverd to be redelivered a Detinue lies Owen and Glanvill agreed to this and Glanvill cited a Iudgment given in Hilary Term wherein he was of Councell which was that a man delivers money to another to buy certain things for him and he does not buy them the party may bring an action of debt but he said that the Plaintiff ought to aver that the Defendant had not redeliverd them And Iudgment was given for the Plaintiff Mich. 41. 42. Eliz. Green against Wiseman in C. B. IN an Ejectment The Defendant pleaded that a Feoffment was made to the use of J.S. the Lessor of the Defendant who by force thereof and of the Statute was seised and made a lease to the Defendant and that one Green entred and made a Lease to the Plaintiff and did not say that he entred upon J.S. And all the Question was whither when a feoffment is made to the use of another if he have such a seisin before his entry whereof he may be disseised Glanvill He hath no freehold neither in Deed nor in Law before entry Walmesley This is contrary to all the Books for a possession in Law is so translated from the Feoffee to Cestuy que use that the wife of the feoffee shall not be endowed Owen He ought to have alledged a Disseisin Anderson As he might have possession by force of a Devise at Common Law so he shall have possession of the land here by force of the Statute and it is in Cestuy que use before agreement or entry but if he disagree then it shall be out of him presently but not before he disagree And after viz. Hillar 42. Eliz. Williams moved the case again and Walmesley said then that he might be disseised before his entrie or agreement and the pleading shall be that he did enter and did disseise him but he shall not have a trespass without actuall entrie for that is grounded on a possession Glanvill agreed to this and advised Williams to adventure the case thereupon Hillar 41 Eliza. Smiths Case in C. B. THe Patron of an advouson before the Statute of 31 Eliz. For Symony doth sell Proximam advocationem for a sum of money to one Smith and he sells this to Smith the Incumbent After which comes the generall pardon of the Queen whereby the punishment of Smith the Incumbent is pardon'd and of Smith the Patron also If the Incumbent may be removed was the Question Williams said that the Doctors of the Civill Law informed him that the Law Spirituall was that for Symony the Patron lost his presentment and the Ordinary shall present and if he present not within six months then the Metropolitan and then the King Spurling Serjeant This punishment cannot discharge the forfeiture although it dischargeth the punishment Glanvill contra And said that this point was in question when the Lord Keeper was Atturney and then both of them consulted thereupon and they made this diversity viz. between a thing void and voidable and for Symony the Church is not void untill sentence declaratory and therfore they held that by the pardon before the sentence all is pardon'd as where a man committs Felony and before conviction the King pardons him by this pardon the Lord shall lose his Escheate for the Lord can have no Escheate before there be an attaindor but that is prevented before by the pardon and so here this pardon prevents the sentence Declaratory and so no title can accrue to the Ordinary Walmesley cont If the patron be charged by the sentence he may plead the pardon But if a Quare Impedit be brought by a third person the pardon of the King shall be no bar to him for the title appeares not to him but only the punishment Anderson They may proceed to sentence Declaratory notwithstanding the pardon for the pardon is of the punishment but the sentence does not extend to that but only to declare that the Church is void Glanvill in 16 Eliz. a man was deprived of his Benefice for incontinency and after he was pardond and restor'd Walmsley I doubt much whither the King can pardon Symony And Williams said that the Doctors of Civill Law said that neither the Pope nor the King could pardon Symony quoad culpam but only quoad poenam they may And the Court at last said that if the parties would not demur they would hear the Doctors upon this matter Jelsey against Robinson Trinit 25. Eliz. continued untill Pasch 28 Eliz. in C. B. Rot. 704. 1544. UPon a speciall verdict upon an Ejectment the Iury gave this speciall verdict That the King was seised of the Mannor of Freemington and of the hundred there and granted this to Hâ—…pton to hold of the Mannor of East-Greenwich by fealty and 13 l. Rent and then the King being seised of the Mannor of Crankford of which the place in Question was parcell does grant his Mannor of Crankford and his Mannor of Freemington to the Marquess of Exceter and his heirs who by his Will does devise Legacies to his servants and does devise that all his Legacies shall be payd out of the Mannors of Freem ngton Uplaing and Crankford All which Mannors I give to my Cosen Blunt and his heires And the Defendant as servant to Baker who was heir to the Marquess did eject the Plaintiff the question was if by the Devise of the Mannor of Freemington the Rent of 13 l. did passe or not if it does not passe then by the Statute of 32 H. 8. the 3. part of the Mannor of Crankford does not go to the deuisee but descends to the heire at the Common Law Shuttleworth for the Plaintiffe The seigniory does not passe by the devise of the Mannor for the intent thereof shall be collected by the words of the Will 15 H. 7.12 a. 19 H. 8.9 6. but here he limits a distresse out of a Lordship which cannot be 3 H. 6. Also it is doubtfull if the seignory being entire may be divided by force of the Statute of the 32 H. 8. And I thinke not for when the
that the wife is not in her former or antient estate but takes hereby a new estate for if Tenant for life grants his estate to J.S. and his heirs and J.S. grants a Rent and then re-grants an estate to the Tenant for life the Tenant for life shall be liable for the Rent Dyer 252. Harris contr For by the rendring of the estate by the Fine she shall be in her antient state and he cited the Case of Peter Cary here adjudged who being Tenant in T. the remainder to the Earl of Devonshire was attainted and then the King pardon'd him and gave him his land again and then he suffered a common recovery and thereby barred the remainder in the Earl of Devonshire But Anderson was against this Case and said that by the render the woman was in her antient estate and so the remainder discontinued and the entry of him in the remainder taken away Warburton The Fine does make no discontinuance for they give away but that which they may lawfully do and so is Bredons Case Cook 1 Rep. 67. and as to the common recovery it is out of the Statute of the 32 H. 8. because she remains party to the Fine and by the render upon the Fine they shall be as in by a new estate and then the recompence shall not be to the antient estate and therefore he in the remainder is not barred nor impeached by this Fine but he may enter within five years Kingsmill accorded for it is plain that by the render to the husband and wife they are in a new estate and the recompence shall go as to that and not to the antient estate but contr if it had been by way of voucher Walmesley accorded but notwithstanding the Fine and recovery the entry of him in the remainder is good and as to the woman it is clear that there is no discontinuance to him in the remainder in Fee for he in the remainder in Tail cannot discontinue because he is seized by force of the estate Tail as the 4 H. 7.17 Tenant in Dower and he in the reversion in Tail joyn in a Fine this is no discontinuance of the estate Tail because he was never seized and therefore it is a forfeiture in the Tenant for life although he in the remainder joyn'd with him by the 41 Ed. 3. but otherwise if Tenant for life and he in remainder in Fee joyn in a Fine Vid. Bredons Case 1 Rep. 76. Anderson I conceive he in the remainder may enter for all passeth from the Tenant for life and it is her Feoffment and the confirmation of the other and so the estate Tail being spent he in the remainder shall enter for forfeiture and the recovery shall be no bar because it was of another estate and also this title of entry for forfeiture shall not be barr'd by the common recovery no more than if a Feoffee upon condition does suffer a common recovery yet may the Feoffor enter for the condition broken and Iudgement was given for the Plaintiff so that his remainder was neither discontinued by the Fine nor his entry taken away by the Recovery 43 Eliz. Hall against VVood in C. B. IN an Action on the Case for a Trover and conversion of 40 l. on not guilty pleaded it was found for the Plaintiff Walmesley How can an Action lye for a Trover of money if it be not within a bag for this Writ supposeth a loss and when the money was lost how doth it appear that the money found is the same money that was lost Davies There are many presidents in the Kings Bench to prove that this Action will well lye for corn and money and I have been of Counsel in many of those Cases Warburton If the money were lost in view of a third person upon such Trover the Action will lye for there it may be proved that it was the money of the Plaintiff And Walmesley agreed And note that a president was shewn tempore 40 41 Eliz. inter Holloway and Higgs which was thus a master delivered to his servant 30 quarters of corn to be sold and the servant sold them and converted the money and the master brought his Action on the Case for the Trover and conversion against the servant who pleaded not guilty and it was sound against him and two things were moved in arrest of Iudgement first that the master was never possessed of the money and therefore could not lose it secondly because the money cannot be known and so non constat whether it was the money of the masters or no. But notwithstanding this Case Iudgement was given for the Plaintiff because the possession of the servant was the possession of the master and when the servant converts this to his own use by this the master loseth the property and is also a conversion in the servant Mich. 42 43 Eliz. Leeke against the Bishop of Coventry in C. B. Rot. 3579. IN a Quare impedit the Case was thus Langford and Bussy were Patrons of an Advowson to which they and their Ministers use to present by turn Langford presented according to his turn and his Clerk dyed and then Bussy presented in his turn also and his Clerk was deprived after which Langford grants his Advowson in Fee to Leeke the Plaintiff and then the Bishop without any notice does collate Dr. Babington who dyes after whose death the question was if Leeke should present or Bussy and Iudgement was given for the Plaintiff because that notwithstanding the Church was voyd by deprivation yet the Patron may transpose his Advowson over Bethell against Sir Edward Stanhop IN Debt against Sir Edward Stanhop as Executor to Francis Vaughan he pleaded that he is not Administrator and the said Vaughan gave 40 l. to his daughter within age with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors and then he dyed possest of the goods and the Defendant sold these goods which made him Executor in his own wrong and afterwards takes Letters of Administration Walburton I conceive the Plaintiff ought to have Iudgement for the Statute of 21 Eliz. of fraudulent conveyances annuls this gift of the Intestate because he did it to defraud his Creditors and then when he dyed it was assets in the hands of the Administrator And if a Testator have goods wrongfully taken from him out of his possession these are not Assets to the Executors or Administrators but if they be taken out of the possession of the Administrators or Executors they shall be Assets for they may take them again but for goods taken from the Testator they have but an Action But here the Administrator may take the goods which were given by the Intestate to defraud Creditors for the gift was voyd and therefore they shall be accounted Assets And as to the Action it is well brought for when a man does administer as Executor and then takes Letters of