Common tâ—â—ne and the Term to another and dies and the Executor payes the Rent or suffers the Devisee of the Common to put in his Cattell this is no assent as to the Term for the Term is one thing and the profit out of it is another thing but there in the principall Case the assent of the Executor of the Devise to occupy the Land was a sufficient assent to the Remainder of the Term because the occupation of the Land and the Land it self is all one and Comment 541. the same agreed and that the first assent doth go to all And it is no assent to the Term neither can it be taken by Implication to be any assent to the Devise of the Rent for every Act that does enure to another Act by Implication ought to be such as of necessity ought to enure to the other Act which cannot be taken to be otherwise and therefore 2 R. 2. Attornment the 8th A Woman grants a Reversion to which a Rent was incident and afterwards marries the Grantee to whom the Tenant payes the Rent this is no Attornment for it is indifferent whether he payes the Rent to him as Grantee or in right of his Wife Dyer 302. Vivors Case que recover Rents of severall Tenants as Bayly and then they be granted to him and after the Grant they be paid to him this is no Attornment for they may be paid to him as he is Baily as well as he is Grantee But if the Lessee do surrender to him in the Reversion then it is a good Attornment for a Surrender cannot be to any but to him that hath the Reversion And so in our Case it is cleer that the assent to the Legacy of the Land it self is not any expresse assent to the Rent nor any implyed assent for there may be an assent to the one and not to the other and where the Wife had assented to the Devise of the Term she hath utterly dismist her self of the Term as Executor notwithstanding the assent to the Rent but having once assented to the Devise of the Term she hath no more to do with it and therefore in such Case the Legatee of the Rent ought to sue in the Court Christian for his remedy against the Executor in the same manner as if a Term were devised to one and the Executor will not assent to it but sells the Term to another And in this case if the Testator were indebted after this assent to the Devisee of the Term the Term cannot be put in execution for this Debt but the assent of the Wife is in her a Devastavit 21 Ed. 4. 21. 37 H. 6. 30 2 H 6. 16. Also here is no Rent devised out of this house for the Devise is Ex omnibus aliis terris suis which word all excludes all the Lands wherof any mention was made before And Coke Rep 1. Mildmayes Case There Sir H.S. did covenant for a Ioynture for his life and for the advancement of his Issue Male if he had any and for advancement of his three Daughters and for continuance of his Land in his blood to be seised to the use of himself for life and then of part to the use of his Wife for her life with other remainders to his Issues Males and Females Proviso that it should be lawfull for him to limit any part to any person for life or years for payment of Debts or Legacies preferment of his Servants or other reasonable considerations And then he did limit the part of one of his Daughters to another for the term of a thousand years and this was adjudged a void limitation and one principall reason was because that the word other cannot comprehend any consideration mentioned in the Indenture before the Proviso and the advancement of his Daughter was mentioned before Object 2 But it may be objected that other Lands shall be understood such as shall be demised after her marriage and so will not relate to the house whereof there was mention made before Answer That this Obligation is against the recited resolution for it may as well be said in this Case that other considerations shall be other then what are mentioned in the said Proviso but it was resolved that other shall exclude all considerations mentioned before the said Indenture and so he excludes in this case all mention before in this Writ And this Case was argued at the Bench Pasch 14. Jac. And all the Iustices did agree that all the exceptions taken by the Counsell of the Defendant as well to the matter as to the pleading to be of no force saving the principall point sc If the Rent shall be determined by the death of the Wife or not and herein the Court was divided viz. Haughton and Crook held that it was determined but Coke and Doderidge on the contrary Et sic pendet c. Hillar 12. Iac. Iohn Harry and Lewis Howell against Grace Harry IN a Writ of Errour brought to reverse a Judgment given in a Writ of Dower brought by the said Grace of the endowment of Richard Harry her Husband And the Error assigned was because the demand amongst other things was De tertia parte de uno Horreo uno pomario and the Tenants pleaded Ne unques accouple in legall matrimony which was certified against them whereupon Judgment was given against them whereupon the Demandant did surmise that her husband died seised and so prayed her Dower with damages Et petit breve tam de habere facias seisinam quam de inquirendo de damnis and the Writ of Error was purchased before the return of the said Writ or any Judgment given thereupon And I conceive that it is Error for the Demand ought to be as certain and formall as a Writ for the Writ of Dower being generall De libero tenemento the Demand ought to make it certain and therefore it is of the same nature as the Writ is 8. Ass 29. 13. Ass 2. 13. Ed. 3. br 265. A Chappell or an Hospitall shall not be named but by the name of a Messuage and 8 H. 6. 3. Praecipe quod reddat does not lye of a Cottage and Cokes 11. Rep. Serbes Case in an Ejectione firmae of a Close called Dumote Close containing three acres adjudged insufficient for the name and quantity will not serve without the quality and certainty ought to be comprised in the Court because the possession is to be recovered And it was adjudged that the Error would not lye Loyde against Bethell HUmphrey Loyde brought a Writ of Error in the Kings Bench against Bechell and others to reverse a Recovery had at Cardiff in the County of Flynt by Nicholas John ap Robert Loyde to whom the Defendants are Heires against John ap De ap Robert Loyde for the now Plaintiff of Land in the County of Flynt which Assise did begin in the time of Queen Mary and did continue untill the Reign of Queen Elizabeth the third year
and Iudgment was given therein whereupon the Tenant to the Assise brought a Writ of Error the 5. Eliz. in Easter Term which did abate by reason of his death and after in the time of King James the new Plaintiff brought a Writ of Error in Recordo quod coram nobis refidet which did also abate by reason of variety between the Record and the second Writ of Error whereupon Mich. 13. Jac. the said Plaintiff did purchase this new Writ of Error And the Defendants did plead in abatement of the said Writ of Error that the now Plaintiff before the purchasing of the said last Writ of Error and since the purchasing of the second Writ of Error viz. the 19th of September the 10. Jacob. did enter into the said Land and the same day and year at the place aforesaid did devise the said Tenements to one Thomas Alport Habendum from the Feast of S. John Baptist then last past for four years next ensuing by vertue of which Demise the said Thomas Alport into the said Tenements did enter and was and yet is possessed Vpon which Plea the Plaintiff demurred and the Defendants joyned And I conceive that the Plea is insufficient Yet I do agree that if he who hath cause to have a Writ of Error to reverse a Iudgment of Land does make a good Lease for years he hath suspended his Writ of Error for the Term as he does quite extinguish it by his Feoffment But here it appears that there is no Lease made for it is pleaded only that the Plaintiff did enter into the Land and it appears by the recovery that his entry was taken away by the Iudgment in the Assise whereby he gains nothing by his Entry but the Freehold and possession does remain alwaies to the Defendants being Heirs to the Recovery as appears by Litt. Warrant 158. If one be seised of Land and another who hath no right doth enter into the Land and continues possession yet doth he gain nothing thereby but the possession doth alwaies continue in him that hath right and so in the 3. Ed. 4. 2. Woolocks Case and in the Comment 233. Barkleys Case Execution is taken to be no plea in Bar to an Ejectment because it was shewed that the Lord Barkley did enter as in his Remainder and was seised in Fee untill the Lessor of the Plaintiff did eject him and did demise to the Plaintiff which is not good because it is not alledged that he disseised the Lord Barkley for otherwise he had no Estate to make the Lease and the Entry doth not imply any disseisin or doth gain any possession and 11 Edw. 4. 9. B. 12 H. 6. 43. B. And the Court did agree that the plea was insufficient But then it was moved that the Writ of Error was nought for the Writ was that Quidem Recordum processus Dom. Regina Elizabeth nuper Regina Angliae causa erroris interven venire sec and it appears by the Record that although the Recovery was removed by Writ of Error the 5. Eliz. at the Suit of the Father of the Plaintiff yet the Plaintiff did purchase a new Writ of Error Mich. 9 Jacob. and had a Scire facias against the Heirs of the Recover or who appeared Mich. 10. Jacob. and also the Writs of Habeas Corpus tales Distringas wherefore the Writ is naught for all the Recovery was not in the time of the Queen but part in her time and part in the Kings time But I conceive that it is good enough for first the Recovery and Processe is satisfied by transmitting the body of the Recovery as it is proved by the usuall form of all Writs of Error which is to certifie the Record and Processe and yet they do certifie only the Declaration and the Pleas omitting the Writs Also the Record shall be intended the principall Record and not the Writ and Proces Coke Rep. 11. Metcalfes Case the words of the Writ of Error Si judicium inde redditum sit this shall be taken to be the principall Iudgment 39 Ed. 5. 1. In a Scire facias brought by John Duke of Lancaster and Blanch his Wife to execute a Fine levied to them in the time of Ed. 2. and the Writ did recite the Fine to be levied Tenendum de nobis c. but it was adjudged good by Iudgment of Parliament and 2 R. 3. 4. Bough brought an Action of Debt against Collins who pleaded a forreign Attachment in L. by custome and did mistake the Custome and it was traversed that there was no such Custom and the major certified it so and all this was in the time of King Edw. the first and it was adjourned over to another Term before which time the King died and resumed in the time of King Richard the third and Iudgment given whereupon Collins did bring a Writ of Error which was Rex Dei gratia c. quia in Recordo processu in redditione Judicii loquela quae fuit coram nobis per breve nuper inter B. c. error c. And the question was if it was good And some said that there was no Warrant for such a Writ and some said that the Writ ought to have been speciall reciting how c. But the Masters of the Office said that in a Writ of Error before the Iustices of the Bench there is but a generall form in the Writ And after it was adjudged that the Writ of Error was good John Vandlore Plaintiff Cornelius Dribble Defendant Trinit 14 Jacob. Rot. 1062. IN an Action of Debt on a Bond of two hundred pounds made the eleventh of Febr. the 12th of King James upon condition that the Defendant shall perform the agreement of William Holliday Thomas Moulson Robert de la Bar and Humphrey Burlemacke Arbitrators elected c. to arbitrate of and for all Actions Suits Accounts and Demands had moving or depending in variance between the parties before the date of the said Obligation so that the agreement of the premisses be made and put into writing before the twentieth of March next The Defendant pleaded that there was no such Arbitrement The Plaintiff replyed that the eighteenth of March 12 Jacob. they did make an Arbitrement c. of and concerning the Premisses that the Defendant should pay the Plaintiff fifty pounds viz. twenty pounds at April next and twenty five pounds at _____ and the twentieth of July next twenty five pounds in full satisfaction and discharge of all such monies as the Plaintiff did claim or demand of the Defendant by reason of the administration of the Goods c. of John Stadsell or by any other means whatsoever And that each of the parties upon payment of the said fifty pounds shall make generall Acquittances one to the other of all Actions Debts and Demands unto the day of the making of the said Acquittances And alledged breach to be made in the payment of the said twenty five pounds the twentieth of
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
Also the Bar is not good because the Defendant says he was possessed of five Steers and doth not say of the aforesaid 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it and the Defendant pleaded that there was a Chantery in the said Chappel and made title to it and traversed the title of the King and adjudged to be no plea because he did not answer to the Chantry whereof the King had declared And Pasch 14 Elizab. Downing against Hayward In a false imprisonment in Suffolk the Defendant did justifie as servant to A. to whom a Commission of Rebellion of Chancery was directed and the Plaintiff pleaded De son tort Demesne and found for the Plaintiff and reversed again by Error in the Star Chamber because that when the matter of justification is upon matter of Record and matter in fact or of matters done in two Counties that cannot joyn the Issue ought to be upon one only And Pasch 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague Crook and Doderidge because that all that was done after Sir Thomas Buriets Warrant was illegall but they agreed that the Plaintiff might have an Action for the charging of Felony and for all that was done before the said Warrant But Haughton disagreed who conceived that Iudgment should be given for the Plaintiff because the Plea of the Defendant was no justification for what was done before the warrant but at last Iudgment was given for the Defendant Judgment Mills against Marshall IN a Writ of Error to reverse a Iudgment given for the now Defendâ—nt against the Plaintiff in the Common Pleas upon an Action of Debt on a Bond of twenty pounds Hil. 11 Jac. Ror 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James and it was on Condition to stand to the Award of George Cockrell Edward Sureton and William Wasse to arbitrate of and concerning all matters then depending between â—hem so that the said Award be made and delivered to the parties under the hands and Seals of the said Arbitrators before the twenty ninth of January next The Defendant pleaded that the Arbitrators the twenty fourth of January in the sixth year of King James did make their Award of the Premisses by Indenture under their hands and Seals 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease and that the Plaintiff should have liberty to drive his Cattell to the River Eâ—ke c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward a sufficient Hedge by the top of the Scar Sicut terrae praedicti Querentis Defendentis extendunt Anglice as their own Ground goes for security of the Cattell and Sheep which said Hill doth extend to the Land of Henry Facherly unto the Pale which then was between the Land of the Defendant and if any Trees or Woods growing in or neer the Woods of either party shall fall in controversie at any time that it shall be arbitrated by the said Arbitrators three or two of them which Arbitrement was delivered to the parties the same day and the Defendant pleaded that he had performed c. The Plaintiff replyed that the Defendant did not make a sufficient Hedge upon the top of the Scarr Prout terra sua extendit the Defendant said that before the Writ purchased viz. the fourth of April 12 Jacob. at Eshdayle in the County aforesaid he did make a sufficient Hedge upon the top of the Hill aforesaid prout terra sua extendit and so they were at Issue and found for the Plaintiff and Iudgment given and the Defendant brought this Writ of Error And I conceive Iudgment ought to be affirmed Coke 5 Rep. Slingsbles Case If one let white Acro to I.S. and B. Acre to I. D. and covenant with them Et quemlibet eorum that he is Owner each of them may have an Action and Coke 5. Rep. Hurgots Case Submission to an Award so as it be delivered to either of the parties ought to be delivered to each of them 39 H. 6. 7. And all the Court did agree that each of them ought to inclose against his own Land only and so the breach was well assigned wherefore the Iudgment was well assigned wherefore Iudgment was affirmed Hilar. 13 Jac. Crawley against Marrow IN an Ejectment upon a Lease by Robert Faldoc dated the one and thirtieth day of August the thirteenth year of King James of two Houses two Orchards forty acres of Land ten of Meadow and fifty of Pasture in Bridgenorth Habendum from the tenth day of the said month for three years whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him ad damnum c. Vpon not guilty pleaded The Iury found the Defendant not guilty for all except one House and five acres of Land and found further that before the said time the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight was seised in Fee of the said one house and five acres of Land and ten of Meadow and being so seised thereof did enfeoff John Day and Robert Marshall in Fee to the use of John Whitbrooke and Margaret his Wife in Taile the remainder to the right Heirs of John Whitbrooke and that the last of January 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe which money was not paid to Richard in his life time That John Whitbrooke and Margaret had issue John Whitbrooke Knight and after and before the fourteenth of January 8. Jacob. died and before the said day Richard Faldoe made his Will and did make Amphillis his Wife his Executor and died and Amphillis did make Robert Faldoe Esquire and Thomas Shepheard Knight her Executors and died who undertook the Executorship 14. Jan. 8. Jac. Robert Shepeard and Faldoe had a Scire facias to the Sheriff of Middlesex to have execution of the Recognizance whereupon John Whitbrook was returned dead whereupon they had a Scire facias against the Heir and the Ter-tenant whereupon John Whitbrook was returned Heir and Ter-tenant who pleaded that he had no Land that was the Conusors at the time of the Recognizance or ever since by hereditary descent from the Conuzor in Fee and said that he ought not to be charged as Ter-tenant because he hath no Freehold that was the Conusors The Plaintiff replyed that the said John Whitbrook had divers lands by descent from the said Conuzor viz. A house called the Hospitall thirty seven Tenements or Messuages five Cottages one Tost one Dove-house thirty nine Gardens six Barns fifty four acres of Land thirty nine of Meadow and thirty six of Pasture in Bridgnorth and that the said John Whitbrook was Tenant of the Premisses
in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
a County of it self but because it was made a County since the Teste of the Writ the Writ was adjudged to be good 3. These Ter-tenants are estopped to plead Non-tenure because that they with the residue at first did plead that John Chatterton was Tenant of parcel of the Land by which Plea they have taken upon themselves to be Tenants of the Land and therefore they cannot afterwards plead Non-tenure 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ and the Writ abated whereupon the Writ did abate and a new Writ brought for Jornies Accompts against I. S. he shall not plead Ioyntenancy with the other because he hath admitted himself sole Tenant by the first Writ 33 H. 6. 3. In a Formedon against the Husband who pleaded Ioyntenancy with his wife for which the writ a bated and a new writ was purchased against the husband and wife who pleaded non-tenure and adjudged a good plea for the benefit of the wife but if the last writ had been against the husband only he could not have pleaded non-tenure 22 H. 6. 54. B. In a Praecipe quod reddat the Tenant pleaded Non-tenure the Demandant said that before he brought another Writ against the Tenant and I. S. who made default for which a Grand Cape was awarded upon which I. S. made default and the now Tenant said that he was sole Tenant and waged his Law of Non-summons which the Demandant did acknowledge whereupon the writ abated and this Writ purchased by Jornies Accounts and there it is argued if he shall have advantage of this because the first Writ did abate by his own default but it was agreed that if he could have such advantage the Tenant shall be estopped to plead Non-tenure and adjudged that the Tenant shall answer 42 Ed. 3. 16. In a Praecipe quod reddat one took the severall Tenancy on his part and the other of the other part and they were estopped because that a former proces was against them and others and they took the entire Tenancy upon them without that that the others had any thing and did gage their Law of Non-summons wherefore the first writ did abate and this writ purchased by Journies Accounts And so in our Case when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne they have taken the Tenancy upon them and therefore they cannot afterwards plead Non-tenure And now the Writ being maintainable notwithstanding these exceptions Part. 2 it is to be considered whether there be any error in the Recovery or not And I conceive clearly that the appearance of the Wife within age by Attorney is Error for by the Rule of the Common Law in every Praecipe quod reddat whereby Land is demanded if the Tenant appear he ought to appear either in person or by one lawfully authorized by him and that is the reason that if Iudgment be given against one upon an appearance by the Attorney where the Attorney had no Warrant to appear that this is Error untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader but if the Iudgment be given upon default or demurrer or upon a Verdict and no Warranty by him who recovered this is not Warranted by the Statute Dyer 93. 20 Eliz. Dyer 363. and the reason is because that the Land or thing in demand is lost or gained by one who had no Warranty and then the Rule of Law is that an Infant shall not appeare by Attorney and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another and so therefore it is there said that he cannot appear by an Attorney 22 H. 6. 31. b. There by Newton if an Infant sue by an Attorney it is Error And the Law in this case stands with great reason for the Warrant of Attorney is made by the Infant which although it be sufficient when it is of full age yet it shall be dangerous to permit Infants to lose their Land by their Attorney while they have not discretion enough to choose such who shall be faithfull to them and therefore the Law hath made better provision for them to wit that they shall appear by their Gardian admitted and allowed by the Court so that in regard of the imbecility of the Infant the Court makes choyce of a sufficient trusty person to plead and defend their cause Nat. Br. 27 H. 1. an Infant shall sue by his next friend but if he be Defendant in any Action he shall make defence by his Guardian and not by his next of kin and the Court does assigne a Guardian for an Infant who is Defendant and that is commonly one of the Officers of the Court and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service The Defendant pleaded that he was free c. and as to the losing of the Service that he was not retained and found for the Plaintiff and severall damages viz. for the taking of nine and twenty pounds and for the losing of the Service twenty shillings And it was argued neither Iudgment should be entred because the Retainer was not found And after Markham moved that the Plaintiffs being within age did appear by their Attorney and did declare that all the proces continued by the Attorney whereas it ought to have been by their Guardian so that all was Error And Newton said that if it were so there was good reason to have a Writ of Error and after the Plaintiffs released the twenty shillings and had Iudgment of the other So that an Attorney being alwaies made by the party ought to be therefore made by one of ability to give such Authority which ability cannot be in an Infant for all Authorities made by an Infant â—re utterly void And that the appearance of an Infant by Attorney in any Action is Error does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b. Object But it may be objected that the Husband in this case is of full age and therefore he may make an Attorney for himself and his Wife Answer But I answer that the Law is not so for the Rule of Law is that the Husband cannot give away or lose the Inheritants of his Wife but it must be given or lost by her her self and by her own act and therefore if the Inheritance in this case being to the Wife she is the principle and only to be taken notice of and she ought to appear in such manner as the Law hath appointed in regard of her nonage 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife the Husband did appear by an Attorney and the Wife by her Guardian and upon suggestion that she was of full age the Guardian was hidden to bring her into Court to see whether she were
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
way Cum sepibus Januis and did not say praedict so that it might not be of the same Gates in the Declaration and that is there said to be a fault incurable And although we are not in the nature of a Plea in our case but of a speciall Verdict yet as I have shewed before that is all one where it wanteth matter of substance Thirdly the Confirmation is utterly defeated and avoided by the Remitter to Sir Richard Knightley and therefore the Fine cannot revive it 14. Assise 3. Tenant in Taile doth charge the Land and dies and the Issue does enfeoff a stranger he shall hold the Land discharged because the Land was once discharged by his Entry and so shall the Issue do that re-purchaseth the Land 19 Ed. 3. Resceit 112. Tenant in tail acknowledgeth a Statute and dies and the Issue enfeoffs a stranger against whom the Conusee sues out execution and adjudged there good but yet it was denyed in 11 H. 6. 26. b. by Paston and Comment 437. Smith and Stappletons case And Trin. 15 Jac. This Case was argued by Sir Tho. Coventry the Kings Solicitor for the Plaintiff by Sir Hen. Yelverton the Kings Attorney for the Defendant And Hil. 15. Jac. by Serjeant Chidborn for the Plaintiff and by Serjeant Harvy for the Defendant And Pasch 16. Jac. without any argument by the Iudges agreed for the Plaintiff and thereupon Iudgment Judgment was given that the Plaintiff should recover Mich. 14 Jac. Ashfeild against Wrendford IN a Writ of Error to reverse a Judgment given in the Common Pleas for the now Defendant against the Plaintiff in an Action of Debt upon a Bond of two hundred Marks made the first of October 9 Jac. In which the now Plaintiff then Defendant did plead that Gregory Havard was possessed of five Cowes thirteen Sheep and of certain Hay Wheat Rye Pease Barley Oates and Fetches not Threshed And some speech being had between the said Gregory and one John Ashfeild for the buying thereof whereupon the said Gregory did affirm the same to be twenty Loads of Hay thirty of Wheat a hundred of Rye c. whereupon before the making of the Bond viz. the last of September the 9 Jacob. It was agreed between the said Gregory and the said John that the said John should pay for the said goods seventy five pounds and that a Bond should be made in which should be contained that the said now Plaintiff with the said John Sturet were bound to Cuidam Edward Wrensford in two hundred Marks upon condition for the payment of the said seventy five pounds which writing was to be delivered to the said Gregory as a Schedule to be kept upon condition that the said Gregory before the said day of payment should go to the house of the said John in Pixley to account with him for the said Goods and if thereupon any of the said Goods should be wanting if the said Gregory shall be content to make the same up that then the Writing should be delivered to the said Edmund otherwise it should remain as a Schedule whereupon the said Writing mentioned in the Declaration was made and sealed and delivered to the said Gregory upon condition aforesaid And after the measuring of the Hay there wanted eight Loads c. and the said Gregory did not come to the House of the said John c. And so pleaded it was not his Deed. And found for the Defendant c. And I conceive that Judgment ought to be reversed For Cuidam Edward Wrensford cannot be intended the Plaintiff in the first Action but a stranger of that name as in Dyer 5 Ed. 6. Case of Isham and Wither And then the aforesaid Edward to whom the Obligation is made and who joyned Issue and appeared at the tryall and at the return of the Postea and for whom Judgment was given ought to be referred to Cuidam Edward Wrensford whereof mention is last made in the Plea and not to the Plaintiff in the Action and so Issue is joyned by a stranger and Judgment given for him and not for the Plaintiff Judgment confirm'd But all the Court held that the Issue shall be intended to be joyned by the Plaintiff himself and upon the Bond whereon the Declaration is made wherefore Judgment was affirmed c. Hil. 14 Jac. Newsham against Carew Knight In the Exchequer IN an Ejectment the Case was this A Bishop makes a Lease of a Rectory to I.S. for 21. years and dies the Successor before the Statute 1 Eliz makes a Lease of this to I. N. habend from the 20. Decemb. 1. Eliz. being the day of the date for 56. years from thence next ensuing the end of the Lease to I S. and dies and the 56. years are expired from the 20. of Decemb. 1 Eliz. And if this second Lease be ended or not is the Question And I conceive that the Lease shall begin from the 20 of December and so it is ended before the Lease made to I. S. For the argument of which case the true sence and meaning of this ill pen'd Habendum is to be considered for thereupon all the difficulty of this case doth depend and as to that I conceive there are but four ways to expound this Habendum and if it be taken in any of these constructions this Lease shall begin by computation from the 20 of December 1 Elizab. and so shall end the 20 of December 12 Jacob. which is before the Lease made to the Lessor of the Plaintiff And the first way is to observe the first part of the Habendum scil from the 20 day of December then next following to be onely material and good and the last part being repugnant thereto is voyd The second way is to take the first words of the limitation of the begining of the Estate to be voyd and the last words scil next following the determination and end of the term of I. S. c. to be good The third way is to construe as well the first as the last words of the Commencement to be voyd by reason of the direct repugnancy in them And the fourth and last construction is to make such construction as all these words by a reasonable exposition may agree together And according to any three of these constructions viz. the first the third or the fourth it is apparent that the Lease to I. N. under whom the Defendant claims did end the 20 of December 12 Jacob. which was before the entry of Anthony Rudd the last Bishop and the Lease made to the Lessor of the Plaintiff and then this Lease is good and therefore my endeavor is to prove that this Habendum ought to be taken in any of these three ways viz. the first third or fourth and to disprove that it cannot be taken in the second way For the argument whereof I shall speak to the first and second together for that that I will speak of the first will be a manifest
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
Sir William the Remainder to the said Elizabeth for life the Remainder to the Plaintiff in Fee as the Defendants alledged and so they were at Issue And the Iury found the Lease and the descent of the Reversion and the Fine 33 Eliz. and the use and the death of John Parsons ut supra And that the one and twentieth of September 5 Jac. Sir William Ligon and Elizabeth his wife did make a Deed of Indenture of the said Tenements in these words This Indenture made c. between them of the one part and the Plaintiff on the other part whereby Sir William for seven hundred pounds before the ensealing and delivery paid to Sir William by the Plaintiff did covenant that he and Sir William before Christmas next should levy to the Plaintiff a Fine with Proclamations of the said Tenements which Fine and all Fines and Assurances to be had within seven years should be to the use of the Plaintiff and his Heirs upon Condition that if Sir William and Elizabeth or any of them or the Heirs or Assigns of Sir William should pay to the Plaintiff or his Assigns nine hundred forty three pounds at the Annunciation 1611. that the Estate of the Plaintiff should cease and that Sir William and Elizabeth and his Heirs should enter and the Fine should be to the use of Sir William and Elizabeth and the heirs of Sir William And Sir William covenanted with the Plaintiff that he and his Heirs untill the nine hundred forty three pounds be to be paid should have and enjoy to their use under the said Condition and according to the meaning of the said Indenture and if default of payment should be made then after such default the Premisses and the Rents and Profits thereof if such default should be shall be taken and enjoyed to their use without any interruption of Sir William and Elizabeth c. and discharged and saved harmlesse of all Incumbrances c. made by Sir William c. except the said Lease and Sir William covenanted that if the nine hundred forty three pounds should be paid to pay to the Plaintiff the charge of the assurance Pasch 5 Jac. The Fine was levied by Sir William and his wife to the Plaintiff and they found that the sixteenth of April 6 Jac. the Conusance of the Fine was made at M. in the County of Wilts and that after the said Conusance and before the said fifth of September Pasch 20. Martii 5 Jac. the said Sir William made another Indenture between him and his wife of the one part and the Plaintiff of the other part whereby Sir William and Elizabeth for seven hundred pounds before paid to them by the Plaintiff Sir William and Elizabeth did bargain sell and grant to the Plaintiff and his heirs the said Tenements upon the like Condition as aforesaid and Sir William did covenant that he and his wife should make a further assurance by Fine c. and that all such assurances should be to the Plaintiff and his Heirs under the said Condition untill default of payment and after such default to the use of the Plaintiff and his heirs absolutely and if payment be made to the use of Sir William and Elizabeth and the heirs of Sir William and the Plaintiff did covenant that Sir William and Elizabeth and their heirs untill the Annunciation 1611. should have all the Rents and Profits of the Premisses without interruption of the Plaintiff or his heirs That the eighth of December 6 Jac. Sir William Ligon died after whose death scil the aforesaid time quo c. the Defendants as Bayliffs to Elizabeth did take the said Oxe in the said place for the said seventy eight pounds six pence of the said Rent for three quarters ending at Christmas 9 Jac. But whether the Distresse was well or not they prayed the advice of the Court c. And upon this Verdict it was adjudged in the Common Pleas after many Arguments that the Plaintiff should recover For all the Iustices did agree that the said Fine was to the use of the Plaintiff and his Heirs whereupon the Defendant brought this Writ of Error and assigned the Error in the point of Iudgment only And it was objected by the Councell of the Plaintiffs in the Writ of Error that that it was apparent upon this assurance that it was made for the assurance of the payment of seven hundred pounds lent by the Plaintiff to Sir William and Sir William was to repay nine hundred forty three pounds which was full Interest according to the rate of ten in the hundred and then by the expresse Covenant in the first Indenture the Defendant in the Writ of Error was to have the Rents and Profits of the Land also whereby Worfeild should have more then ten pounds in the hundred and then the assurance is void by the Statute of Vsury then although by the last Indenture it is provided that Sir William and his wife should have the Rents and Profits untill the day of payment yet this shall not bind the wife for it is found expresly that she did disagree to this Indenture But I conceive that the Distresse was not well taken but that the Fine was to the use of William Worfeild and his heirs and so the Rent belonged to him And first as to the Objection that the assurance is void by reason of the Statute of Vsury that cannot be 1. Because it was not found that there was any lone of mony or usurious Contract and therefore it may be and so it shall be intended that the seven hundred pounds was paid bona fide after the purchase of this conditionall Estate made to William Worfeild 2. The Consideration is for seven hundred pounds paid before the ensealing and delivery of the Indenture so that if it be admitted that the seven hundred pounds was lent as Interest yet it may be that this was tent so long before the making of the Indenture that the nine hundred forty three pounds to be paid with the Profits of the Land does not exceed the principall debt according to the rate of ten pounds in the hundred And that Vsury shall not be intended without it be expresly found by the Iury vide Coke 10. Rep. the Case of the Chancellor of Oxford fol. 56. Covin shall not be intended or presumed in Law unlesse that it be expresly averred and so was it agreed in the Case between Tyrer and Littleton in the Common Pleas for the taking of an Oxe The Defendant pleaded Not guilty and the Iury found that Thomas Tyrer held certain Land of John Littleton by Rent and Herriot and the 42 of Eliz. did enfeoff John Tyrer his Son and heir who made a Lease to Thomas Tyrer for forty years if he should so long live to the intent that Joyce whom he intended to marry should not have her Dower during his life Thomas died possessed of the Oxe and the Defendant took it for a Herriot And they found
the Statute of Fraudulent conveyances c. and it was adjudged that forasmuch as the Feoffment was not found by the Iury to be fraudulent the Court could not adjudge it to be fraudulent although the Iury had found circumstances and inducements to prove the fraud and in the 8. Rep. Lovedays Case In an Information upon the Statute of Vsury the Iury found that the Defendant did accept a certain summe above ten pounds in the hundred for forbearance of the money but no lone of money was found Wherefore it was adjudged that the Verdict was insufficient and a new Venire was awarded Henden The Fine shall be directed onely by the last Indenture for that does controul the first Indenture Count. Rutlands Case Cook Rep. But all the Court agreed that the Count shall be directed by the first Indenture as to the Wife for her disagreement to the second Indenture doth prove enforce her agreement to the first and then the use limited by both Indentures being all one scil to the use of William Worfield and his Heirs and no variance between them in the limitation of the use it is clear that the use shall be to the Plaintiff and his Heirs Wherefore it was adjudged that the Iudgment given in the Common-Pleas should be affirmed But Haughton said that the Verdict was not good for that the use being matter of fact ought to have been found by the Iury and not left to the Court. To which it was answered that the Iury did conclude Judgment That if the Distress was well taken that the Fine was to one use but if not then it was to another use which was sufficient Whereupon he assented to the affirming of the Iudgment Trinit 15 Jac. The King and William Allen against Theophilus Newton Rot. 318. WIlliam Allen as well for the King as for himself did inform against Theophilus Newton for that the Defendant not being assigned named or appointed to keep a Tavern within the Town of Tiverton according to the Statute of the first of November 13 Jacob. and for one hundred day between the first of November and at the day of the Exhibition of the Information to wit the 26 of Octob. the 14 of King James at Tiverton did of his own authority keep and maintain a common Tavern and within the said time did utter and sell Claret-wine and White-wine and Sack and divers other kinds of Wine to divers subjects of the King by retail contrary to the form of the Statute whereby an Action did accrue to the King and the Informer to have of the Defendant 505 l. for every one of the said hundred days whereof the Informer prayed the moyety The Defendant as to the Keeping the Tavern and uttering of the Wines the first of Novemb. 13 Jacob. and all the other days between the said first of Novemb. 13 Jacob. and the said 26 Octob. 14 King James saving fourty of the said hundred days did plead Not guilty And as to the said fourty days he said that the King the fourth of January the 3d Jacob. by his Letters Patents under the great Seal did grant License to Richard King and his Assigns Thomas King and his Assigns and John King and his Assigns that the said Richard and his Assigns during his life for him and themselves their servants deputies and assigns or any of them and that the said Thomas and his assigns after the death of the said Richard for him and themselves their servants and deputies or any of them during the life of the said Thomas and so the said John after the death of Richard and Thomas c. during the life of the said John may have use occupy and hold a Wine-Celler within the Town of Tiverton in the County of Devon in domo mantionali in qua praedictus Richardus Thomas Johannes ad tunc inhabitabant vel ex tunc in posterum inhabitur infra praedict Vill. de Tiverton de tempore in tempus vendere utterare per retail viz. by the Gallon Pottle Quart or Pint or less or greater measure all manner of good and wholesom Wine of what kinde soever as well within their houses as out of their houses at his or their pleasure and at and for such price as from time to time the said Wines for reasonable gain may be afforded without any Impeachment notwithstanding the Statute of 7 Ed. 6. That the first of September 13 Jacob. Richard King dyed The last of August 14 Jacob. Thomas King by Deed shewn did ordain the Defendant to be his Assignee to draw and sell all good and wholesom Wines in the then Mansion House of the said Thomas in Tiverton and to retail them without the said Houses for such prices as for reasonable gain may be afforded for one year wherefore the Defendant after the said last of August and before the Exhibition of the Information scil within the said fourty days parcel of the said hundred days at Tiverton aforesaid in the then Mansion House of the aforesaid Thomas as his Assignee did hold a common Tavern and did sell and utter Claret White-wine and Sack and other Wines by retail And did aver that he sold the said Wines for such prices as he could reasonably afford and that they were good and wholesom Wines and that the said Thomas is alive at Tiverton aforesaid and that Tiverton in the Letters Patents and Tiverton in the Information is all one Town And I conceive that Iudgment ought to be given for the King and the Informer against the Defendant For the License is not pursued for it is to keep a Tavern in the Mansion House in which the three parties did then inhabit or should after inhabit whereby the King hath restrained this liberty to a certain place and the Defendant doth justifie under the License of Thomas King or his Assignee to keep a Tavern in his Mansion House which is not warranted by the Kings License And that every authority ought to be pursued strictly Dyer 177. a. Cestuy que use before the Statute of 27 of Hen. 8. did will that A. B. and C. should sell the Land and dyes B. and C. cannot sell the Land for that it was a joynt authority to them all three and the 27 H. 8. 6. A Warrant of Attorney to three joyntly and severally to make livery one of the three may make livery but not two of them by Baldwin and 30 Ed. 3. 17. The King doth license one to alien his Mannor of D. who doth alien it excepting twelve acres this License will not serve and 3 Ed. 3. 5. One by Fine does grant and render the Mannor of D. to the Abbot of G. and his successors and shewed a Charter whereby the King gave leave to the Conusor to render to finde two Chaplains c. and he would have levyed the Fine without mentioning of the Chaplains whereupon the Court did refuse it because it was disagreeing to the Charter of leave and after
50 l. for every month after such conviction and if default shall be made in any such payment that the Queen may by Proces out of the Exchequer take seise and enjoy all the goods and two parts as well of the Lands Tenements and Hereditaments Leases and Farms of such Offendor as of all other Lands Tenements and Hereditaments liable to such seisures or penalties leaving a third part onely of the said Lands Leases and Farms for the relief of such Offendor his Wife Children and Family And for the more speedy conviction of such Offendors it was enacted That upon the Indictment of such Offendor proclamation shall be made at the Assises or Gaol-delivery where such Indictment shall be made whereby it shall be commanded that the body of such Offendor shall be rendered to the Sheriff of the same County before the next Assises and Gaol-delivery and if such Offender does not appear at the said next Assises and Gaol-delivery that then upon such default recorded the same shall be sufficient conviction of such Offendor as if a Tryal by Verdict had been had and recorded And the Defendants further said that the 19 of March the first of King James the Iustices of Assise and Gaol-delivery at the Assises and the Iustices of Peace at the Quarter Sessions have authority to enquire and determine of all Recusants as well for not receiving the Communion as for not repairing to Church according to the form of the Lawes in such manner and form as the Iustices of Assises and Gaol-delivery may do and also shall have power to make proclamation whereby a Precept shall be had for the rendring the body of the Offender to the Sheriff before the next Assises or Gaol-delivery or the next quarter Sessions c. And they said that before the Information viz. at the Assises and Gaol-delivery held at Westminster 8. August 12 Jac. before Sir Henry Hobard chief Iustice of the Bench and Sir Laurence Tanfeild chief Baron of the Exchequer Iustices of Assise and Gaol-delivery in the County of Southampton the said Katherine by the Oath of Robert Pawlet Esquire c. scil nineteen in all which were sworn and charged to enquire for the King and the body of the County was indicted for that the said Katherine the first of April 11 Jac. was of sixteen years of ago and did not repair to the Parish Church of Porthchalford nor to any other Church Chappell or usuall place of Common Prayer and was there at the Common Prayer and Divine Service at any time within one month next ensuing the said first of April 11 Jac. but did abstain from the same from the said first of April for amonth contrary to the form of divers Statutes c. upon which Indictment at the said Assises and Gaol-delivery publick Proclamation was made that the said Katherine should render her body at the next Assises and Gaol-delivery to render to the King according to the Statute c. at which next Assises and Gaol-delivery the sixth of March 12 Jac. before the said Iustices the said Katherine did not render her body according to the said Proclamation nor appear upon Record whereupon the said Katherine of the Premisses whereof she was indicted was lawfully convicted and yet stands convicted according to the Statute And the Defendants further said that they the aforesaid Term of Easter next after the conviction aforesaid the said Katherine did not pay nor any of them did pay into the Exchequer according to the rate of twenty pounds for every week contained in the said Indictment nor did after the conviction in the said Exchequer so much as then did remain not payd according to the rate of twenty pounds for every month after such conviction but thereof made default which conviction afterwards viz. in the Term of S. Michael then next after the conviction as aforesaid by the said Sir Henry Hubbert and Laurence Tanfeild Iustices c. was extreated and certified into the Exchequer and so there did remain according to the form of the Statute c. and the said conviction yet does remain in full force and this they are ready to aver with that also that the said Katherine named in the Information and the said Katherine named in the Indictment are one and the same person Vpon which Plea Mr. Attorney demurred in Law and the Defendants did joyn And I conceive that Iudgment ought to be given for the King and the Informer against the Defendants In which first it is to be considered that neither the Statute of 28 Eliz. nor the Statute 35 Eliz. which give severall remedies to the King for the monthly forfeiture of twenty pounds given by the 23 Eliz. doe not restrain the Informer but that notwithstanding those Statutes any one may inform against any Recusant for not repairing to Church against the Statute of 23 Eliz. unlesse the King hath first taken his remedie against him for the same offence for that was adjudged by all the Court in Dr. Fosters Case 11 Rep. And as I beleive this will be granted and by the Defendants Councell so I will agree with them that if the Recusant be once convicted and punisht at the suit of the King he shall not be punisht for the same offence again at the suit of the Informer or otherwise for it is unjust to punish an Offender twice for one Crime And therefore the chief matter to be considered in this Case is the nature and force of this conviction against the wife and whether it be such a conviction as will bar the Informer of his Information or not And as to that first the woman is indicted here of Recusancy and proclaimed according to the Statute of 28 Eliz. and she did not render her body whereby she is convicted by this Statute but this conviction is not any Iudgment for the true words of the Statute are That if the party indicted shall not appear but make default after such Proclamation that then upon such default recorded this shall be a sufficient conviction in Law of such Offender as if a Tryall by Verdict had been had and recorded so that such default of appearance is made equivalent to a Verdict by that Statute but not to a Iudgment so that now it is to be understood that the woman in this Case is convicted by Verdict of Recusancy but no Iudgment is given And I conceive that such conviction is no Bar to the Informer For that this is a fruitlesse conviction and such a one as the King can take no advantage of and every conviction that shall make a discharge to the person convicted ought to be a legall and absolute conviction and such a one as thereby the party convicted may suffer the penalty imposed by the Law for such offence And that the King can have no benefit of this conviction is apparent for the remedy given to him by the 28 Eliz. for the penalty is to seise all the Goods and two parts of the Lands and