of the wife For if the Husband have an Advowson in right of his Wife and the Church become voyd and the Husband dye the Executors shall have the presentation and the Serjeant sayd that there be many Books in that point Anderson I know it well but I doubt of the Law in the case Allso I would have you to argue if this be within the Statute of Demurrers in 27 Eliz. For if this be not matter of substance then it shall goe hard with the Plaintif therefore let it be argued again another time 11. ONe Brook was Plaintif in a Replevin Copyhold the Case was such Tho. Speek was seised of a Mannor in which were Copyholds according to the Custom and the place in which the taking was supposed was a Copyhold and the sayd Tho. Speek being so seised took to wife one Anne B. and died seised after whose death the sayd A. in the time of King Edw. 6. demanded the third part of the Mannor for her Dower by the name of Cent. Messuagiorum Cent. Gardinorum tot acr terrae tot acr prati c. and was endowed accordingly of parcel of the Demesns and parcel of the services of the Copyholds and after she granted a Copyhold and if this be good was the question for if she had a Mannor the Grant was good and otherwise not And the opinion of all the Court clearly was against the Grant for when she demanded her Dower she was at liberty to demand the third part of the Mannor or the third part of Cent. Mes Cent. Gard. Cent. acr c. and when she demanded it per nomen Cent. Mes c. Mannor a corporation she could have no Mannor For a Mannor cannot be claimed except by his name of Corporation as Anderson termed it and not otherwise and then Cent. Mes and Cent. acr c. cannot be sayd a Mannor and then the Grant of a Copyhold by her which had no Mannor was utterly voyd and this was the opinion of the Court clearly Quod not a. 12. SHuttelworth shewed how one Knight was Plaintif in a Replevin Visne 〈◊〉 Ass pl. 42. and they were at issue upon a prescription for Common in Newton appendant to land in another place and the venue was of Newton onely and it was found for the Plaintif and he prayed his judgment for the tryall may be in the one place as well as in the other as in annuity where the seisin is alleged in one County Annuity and the Church in another it may be tryed in any of the Counties Anderson But we think otherwise for it ought to be of both places when the matter ariseth in both and if they had been in severall Counties Counties joyn the Counties ought to have joyned Shuttelworth So is 10 Ed. 4. fol. 10. But our case being after a verdict I think we ought to have judgement Anderson and Windham The verdictdoth not amend the matter if it be mis-tried as this case is Rodes agreed that it was a mis-triall Mis-trial and therefore evill and that mis-trialls are not helped by the Statute of Jeofayles Shuttelworth I agree to that if you say that the triall is not good Windham So we say New Venire facias Then Shuttelworth advised his Client to take a new Venire facias 13. WAkefield brought a Replevin against Costard The Lord. who avowed for damage fesaunt Comptons case and the Plaintif prescribed for Common that all the inhabitants of Dale except the Parson and infants and such a house Prescription for Common have used to have Common in the place The Avowant sayd that the house whereunto the Plaintif claimed Common was built within thirty yeares last past and if he may have Common to this new house by prescription or no was demurred in judgement in Michaelmas Term and then Shuttelworth argued for the Plaintif that he should have his Common by prescription but not of common right And Gawdy argued for the Avowant that the Plaintif shall not have Common because the prescription is against all reason that he should have Common time out of mind to that which is but of thirty years continuance And allso he excepteth the Parson and infants and such a house and by the same reason he may except all which is not good Then one of the Judges sayd that if this be good Antient inhabitants hereafter there shall be no Common for the ancient inhabitants Improvement Peryam By such a prescription he shall for ever barre the Lord from improving any Common Common entire which is no reason Anderson All Common is intire for if a man have Common to three Mesuages and he infeoffee one man of one Mesuage and another of the second and another of the third the Common is gone And by this reason allso the new house cannot have Common And now this Term Gawdy demanded of the Court if they were resolved in the poynt Anderson We are all agreed that the prescription is utterâ—y voyd for it is impossible to have Common time out of mind for a house which was built within thirty yeares and then he commanded to enter judgement if nothing were sayd to the contrary by the next day Shuttelworth We have sayd all that we can say my Lord. Anderson Then let judgment be entred against the Plaintif 14. SNagg shewed how the Earl of â—Kent had brought an action of debt against a Londoner for rent behind Grant and shewed how the Countesâ— of Derby was tenant in Dower of this land and took to husband the Earl of Kent and that Henry Earl of Derby had granted it to the Earl of Kent habendum after the death of the Countess for certain yeares and he shewed how the grant was made by the name of a reversion also Lease in reversion Grant in reversion difference and that the Tenant had attorned and alleged the death of the Countess And the Court said that the Attornment is not necessary for it is but a lease in reversion and then no rent passeth thereby Anderson If you had been privy to the case of Talboys in the Kings-bench you would not have moved this doubt Peryam It is allso the very case of Throckmorton in the Commentaries Snagge But here in my case he hath granted it by the name of the reversion allso and then the reversion will carry the rent Curia Then is your grant voyd for a man cannot grant his reversion habend after the death of another and therefore quacunque via data you shall have no rent And thereupon Snagge conticuit cum rubore 15. MOunsay was Plaintif in debt upon an obligation against Hylyard Jeofayle and the Defendant pleaded the Statute of Usury because it was made for the sale of certain Copperas and he took more than was limited by the Statute and that it was made by shift and chevisance and other matter he alleged to prove it within the Statute the
Plaintif replyed that it was made upon good consideration and traversed the delivery of the Copperas which was an evill issue clearly Issue misâ—oyned and it was found for the Plaintif and this was alleged in arrest of judgement and yet for that there was an issue tryed allthough it was mis-joyned the exception was disallowed and judgement was given for the Plaintif 16. AN Action of Debt was brought upon the Statute of Purveyors Issue because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty and it was moved that this was an evill issue for he ought to have pleaded nil debet and the Court commanded him to plead nil debet 17. WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild Ayd prier who was Tenant for life and they were at issue and the Venire fac issued in Michaelmas Term and now this Term the Defendant prayed in ayd which he sayd he ought not to doe beâ—â—use they have furceased their time for they ought to pray it when the Venire facias is awarded or otherwise they shall not have it and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion that he ought then to pray it or not at all 18. A Writ of Error was brought upon a judgement given in London â—orfeiture and this was the case Sir Wolstan Dicksey Alderman brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus who afterwards granted the reversion to Dicksey and the Tenant attorned and the rent was behind c. Spenser pleaded in bar that before the grant of the reversion to Dicksey Bacchus was seised and shewed the custom of London to make inrolments of deeds indented and then shewed that before the bargain to Dicksey he bargained the reversion to him by paroll and so demanded judgement si actio c. and this plea was entered upon record and hanging this suit Dicksey entred into the Land for a forefeiture of the term because he had claimed a Fee simple and Spenser re-entered with force and his servant with him but not with force and thereupon Dicksey brought an Assisse of fresâ— force against them in London and all this matter was there pleaded adjudged that it was a forfeiture of the term the Jury gave damages and the Court increased them and the judgement trebled as wel the damages increased as the others and allso the Iudgement was quod praedicti defendentes capiantur c. Increase of damages and thereupon Spenser brought a Writ of Error and assigned Error in the point of the Judgment because it was no forfeyture And allso because the Damages increased by the Court were trebled And allso because the judgment was Capiantur where but one was a Disseisor with force therfore it should be Capiatur Shuttleworth There is no forfeyture made by this Plea before triall had thereof Wast For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another this is no forfeyture so in Cleres case if he say that another is next Heir this is no forfeyture Quid juris clam And in 26 Eliz. here was a case in a quod jurâ—s clamat the Defendant pleaded an Estate tayl and after at the Assises he confessed but an Estate for Life and yet this was no forfeiture Curia None of us do rememember any such case here Walmisley Surely the case is so and I can shew you the names of the parties Anderson I will not believe you before my self and I am sure that I never heard of any such case Peryam If any such case had been here we would have made a doubt therof for ther are Authorities against it as in 8 Eliz. 6. R. 2. Plesingtons case Shuttleworth Allso theyhave said that the fresh force was brought infra quarentenam silicit quadraginta septimanas Quarentenae Scilicet a surplusage and the quarentena is but 40 dayes Curia That is no matter for the silicet is but surplusage and so no cause of Error Shuttleworth If a man disseise another without force he shall not be taken and imprisoned and therefore for this cause the Judgement is erroneous and allso the costs encreased are trebled and therefore erroneous Aydin Trespass and cited 22. Hen. 6. 57. Anderson In an Action of Trespass If the Defendant pray aid of a stranger this is a forfeiture and if it be counterpleaded yet it is a forfeiture then shall the deniall thereof make any change in the case surely no Proper acts in my opion And I say that Acts which come from himself are forfeitures Collaterall but Collaterall Acts Difference as in the case of Wast are not Walmisley In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him the Judgement shall be but that he shall Attourn And allso he cited 3 Ed. 3. 33 Ed. 3. 18 Ed. 3. 36 Hen. 6. 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall Quid juris clamat Anderson If one who hath no Reversion bring a quid juris clamat against Tenant for life this is a forfeiture of his Estate and as you have said if in VVast the Tenant plead the Feoffment of the Plaintif or non dimisit true it is that these are no forfeitures for you know well enough that a Feoffment is no Plea and then it is void and to say non dimisit is no forfeiture Peryam The Judgement given in Plesingtons case is not well given for it ought to have been quod pro seisina sequatur si volunt as in the case of Saunders against Freeman and he cited 10 Edw. 3. fol. 32. to that intent Wyndam The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented and he sheweth that his bargain was by parol and therefore void and then no forfeiture as if in Trespass a man prays ayd as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void Praying in ayd Anderson Allthough that it be so yet the pleading is that he bargained the Reversion and then this is good by parol in London therefore there is no doubt in that point Walmisley The Books in 15 Ed. 2. 25 Ed. 3. Importâ— that Judgement ought to be given before any forfeiture can be Forfeiture before Judgement Curia Without doubt he may take advantage thereof before Judgement as well as after if the plea be entred upon record Wyndam For the point of capiantur the Book is in 2. lib. Ass Pl. 8. Br. imprison 30. in 9. lib. Ass 12. lib. Ass Pl. 33 Br. imprison 40. Anderson Two may be Disseisors Present Disseisor absent Differance
Defendant pleaded non Assumpsit and the issue was found for the Plaintif and now Gawdy spoke iâ— arrest of Judgement because the Plaintif had alledged no place of the Assumpsion No Place of the assumpsion and he said that when an Issue is mis-tried it hath been adjudged here that it is not helped by the Statute and here is no place alledged whereupon the Tryall may be Peryam The opinion of many hath been that the Statute shall be taken most strictly but in my opinion it shall be taken most liberally so that if a verdict be once given it shall be a great cause that shall hinder judgement wherefore allthough no place be shewen yet when it is tryed and found it seemeth that he ought to have judgement and so was the opinion of the Court Anderson absente 6. AN Action upon the case was brought in Staffordshire by Whorwood against Gybbons Consideration how in an account between them the Defendant was found in Arrerages and in consideration that the Plaintif differreret deem solutionis debiti praedicti per parvum tempus the Defendant did assume to pay it and upon Non assumpsit pleaded it was found with the Plaintif and it was alleged in arrest of judgement that this was no consideration And the opinion of the whole Court Absente Anderson was that insomuch as the Proviso was made by him by whom the debt was due that it is a good consideration and that it is a common course in Actions upon the case against him by whom the debt is due to declare without any words in consideratione And allthough that Gawdy moved that parvum tempus may be three or four hours or dayes which is no consideration yet for the cause alleged the Court sayd that they saw no cause to stay judgement 7. AN Action upon the case was brought for these words Scandal Thou dost harbour and maintain Rebels and Traitors and the issue was found for the Plaintif and the judgement was entred by the Pregnotary yet notwithstanding Walmisley moved the Court to have regard unto it for the Action was not maintainable for if a man keâ—p Theeves and do not know them to be Theeves he is in no fault and an Action for these words will not lye and the Plaintif hath not averred that the Defendant sayd that the Plaintif knew them to be Traytors Peryam The Action in the Kings-bench was that the Plaintif kept Theeves and there if there be no such averment the Action is not maintainable Maintain but here is the word Maintain and that word implyeth a thing prohibited and therefore not sufferable and therefore I think the Action is maintainable and by the opinion of VVindham Peryam and Rodes the Action was well brought Anderson absente propter agritudinem 8. AN Action upon the case was brought by Richard Body against A. Consideration and declared that whereas Kary Raleigh was indebted to Body in 14l and the said A. was indebted to Raleigh in 50l in consideration that the said K. R. allocavit eidem A. 14l promisit ei ad exonerandum eâ—ndem A. de 14l parcell praedict 50l the Defendant did assume to pay to the said Plaintif the said 14l and the Court was moved if this were a good consideration to bind the Defendant And the opinion of all the Court Anderson absente was that the Consideration was good for that he was discharged of so much against Raleigh and Raleigh might also plead payment of the 14l by the hands of the Defendant 9 AN Action of Assault and Battery was brought Assault and the Defendant was condemned by nihil dicit and a Writ to enquire of damages went forth and then the Attourney of the Plaintif died and another Attourney without Warrant prayed the second Judgement and Execution Warrant if this shall be error or no it was moved by Fenner And the Court gave their opinion that if in an action after Judgment the Attourney dye a new Attourney may pray Execution without Warrant but in this case because that he died before the second Judgement it seemeth that he ought to have a Warrant of Attourney for the first Judgment is no finall Judgement And the Pregnotaries said that if after the first Judgement one of the parties had died the Writ should abate quod fuit concessum per curiam And also Fenner moved that this shall not be within the intent of the Statute of Jeofayles which speaketh of Verdicâ—â— Verdict for this shall not be said a Verdict whereto the Court agreed for a Verdict is that which is put in issue by the joyning of the parties 10 A Woman brought an action Covenant and she Covenanteth that she shall not do any act to repeal to discontinue to be nonsuit or countermand this action and hanging the Writ she takes a husband whereby the Writ abateth Now Fenner moved if she had broken the Covenant VVindam If one be bound that he shall not attorn and he make an Attornment in Law Attornment the Obligation is forfeit without question Assignment Rodes If I be bound not to make in Assigâ—ment of such a thing and I devise it by my will this is a forfeiture as it is in 31. H. 8. Fenner there is a case in Long 5. E. 4. If one be bound to appear at the Sessions c. and. I am to make a plea in this case and I would know your opinions VVindham You may plead according to the truth of your cause for that shall not change the Law therefore plead what you list 11. DEbt was brought upon an Obligation Condition the Condition was to perform Articles contained in an Indenture and one Article was that the Defendant Sir William Drury should plead the generall Issue or aâ—issuable Plea or such a Plea in quo staret aut persisteret within seven dayes next ensuing The Defendant sayd that he pleaded such a Plea and shewed what and averred that it was sufficient and issuable within seven dayes The Plaintif demanded judgement if to this Plea he shall be received for he appeared in Michaelmas Term in which he ought to have pleaded and took imperlance over unto Hill Term And Fenner shewed that in truth an issuable Plea was pleaded and drawn in paper in Mich. Term and the Plaintif replyed and the Defendant rejoyned and the Plaintif surrejoyned and theâ— by assâ—â—t in Hill Term all this was waved and an imperlance of the other Term entered forfear of a discontinuance and now he would have the Obligation of five hundred pound forfeited by this And the opinion of the Court Anderson absente was that the Obligation 〈◊〉 was forfeit for the Plea ought to have been entred of Recordâ—◠〈…〉 be bound in an Obligation to appear here at a certain day Appearance entred allthough he do appear at the same day yet if his appearance be not entred upon Record his Obligation is forfeit Peryam If the Plaintif deny that
Rodes Surely I have noted my book that Judgement is given and so I supposed that it had been 5. SHuttelworth moved that whether a Lease is made to a man oâ— his own Land by Deed indented Estopple this is an Estopple whereto the Court agreed But VVindham and Peryam sayd if the Lease be made for life by Indenture Livâ—ry that yet this shall be no Estopple because the Lease takes effect by the Livery and not by the Deed but Rodes did not fully assent to that Anderson was absent in the Staâ—â— chamber 6. DEbt was brought by Lassels upon an Obligation Hill 1â— Eliz. tot 1 511. with condition that if the Defendant did personally appear in the Kings-bench such day Stat. 23 Hen. 6 that then c. the Defendant pleaded the Statute of 23 H. 6. said that he was taken by the Plaintif being Sherif then by force of a Latitat and that the Bond was not made according to the Statute For being made for his deliverance this word personally was inserted in the condition more than is in the Statute And it seemed by three Justices Anderson absente that if it were in such an Action where a man may appear by Attourney that then it shall be voyd but now the question is whether the party ought to appear in proper person by force of a Latitat or no And some said yea and some said no. And the Plaintif shewed a Judgement given in the Kings bench for Sackford against Cutt. where Cutt. was taken by a Latitat and made such an Obligation as this is for his deliverance Sackford being Ballivus sanct Etheldredâ—e in Suff. and adjudged for the Plaintif that the Obligation was good And this was in the Kings-bench Mic. 27 28 Eliz. Rot. 575. but Peryam doubted of that judgement for peradventure he might appear by Attourney Ideo quare for that was the reason of the judgement given in the Kings-bench as it was sayd because he could not appear but in proper person 7. AN Action of Trover was brought for Goods Jeofayle and the Defendant pleaded a bargain and sale in open Market thereupon they were at issue and found for the Plaintif and now the Defendant spake in arrest of judgement because the Plaintif had shewed no place of conversion No place of conversion yet notwithstanding by the opinion of the Court the Plaintif shall have his judgement by the Statute Peryam If in Debt upon an Obligation he doe not shew the place 36 El. rot 266. yet if the Defendant plead a collaterall bar as a release or such like judgement shall be given for the Plaintif notwithstanding by the Statute if it be found for him by Verdict 8. THe case of Beverley was moved again at this day Utlary how the Queen had brought a Scire facias against him to shew wherefore she should not have the Presentation Walmisley It seemeth that she shall not have the Presentation for allthough we have recovered our Presentation Disseiser outlawed yet before execution we have but a right As if a man be disseised and after outlawed he shall not forfeit the profits of the land And allso she hath brought a Scire facias and this will not lie except for him which is party or privy Peryam After that you have recovered it is a chattle and then forfeited by the Utlary Anderson The judgment that he shall recover doth not remove the Incumbent and as long as he remains Incumbent the Plaintif hath nothing but a right Then Peryam sayd to Walmisley argue to that point whether he hath but a right or no but for the other point that she shall not have a Scire facias for want of privity that is no reason Recoverer in debt outlawed for in many cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and after am Outlawed Recovery in quare impedit shall the Queen have this debt Windham If I recover in a Quare impedit and dye who shall have the presentation my Executor or my Heir Sed nemo respondit Curia It is a new and a rare case and therefore it is good to be advised VValmisley Whatshall we in the mean time plead in bar to the Scire facias Curia Demur in Law if you hold the matter insufficient VValmisley Sowe will 9. ONe Combford was robbed within the Hundred of Offlay in Stafford-shire Hue Cry and he and his servant pursued the Felons into another County and there one of the Felons was taken and the Hundreds did nothing And now Puckering moved that he might have an Action against the Hundred Plaintif a Hundreder allthough that he himself was resiant within the same Hundred Hue and Cry by strangers but the opinion of the Court was against him for they sayd that if a stranger make Hue and Cry so that the Felons be taken the Hundreds are discharged Another question he moved because that but one of the Felons was taken Quaâ—re But quâ—re what was sayd to that for I heard not 10. FRancis Ashpool brought an Action against the Hundred of Evenger in Hampshire Hue Cry for that he was robbed there And the Jury found a speciall Verdict viz. that he was robbed after the setting of the Sun per diurnam lucem and that afterwards the same night he came to Andever which is in another Hundred and there gave notice of the robbery and the morning following the men of Andever came into the Hundred of Evenger and there made Hue and cry about ten a clock in the morning and that there were many Towns nearer to the place where he was robbed than Andever was and allso within the same Hundred of Evenger and that the Melafacters escaped and they prayed the advise of the Court. Now this matter rested on two points Robbery after Sunset the first was if he which is robbed after the Sun-set shall have the benefit of the Statute and the other was if he had made Hue and cry accordingly Hue and cry or whether any Hue and cry be needfull And Walmisley argued that he which is robbed after the Sun-set shall be helped by the Statute for they are bound to keep watches in their Towns to take night-walkers And to the second he said that the Statute doth not speak of any Hue and cry but only recens insecutio and that ought to be done by the Hundreders Shuttleworth to the contrary No distcess and that it ought to be in the day and cited Stamf. fol. 35. and after the Sun-set it cannot be said to be day For the Lord cannot then distreyn for his Rent per 11 Hen. 7. 4. nor demand Rent for he is not bound to be there after the Sun-set and he vouched Fitz. titulo core 302. but at this time the Judges seemed to hold for the Plaintif Anderson The Countries are bound by the Statute to
possession of the land 11. BRet Plaintif against Shepheard Apparaâ—ce the Condition of the Obligation was to appear at his Suit in the Kings-bench and upon Condition performed pleaded Triall by the Record the issue was found for the Plaintif And now he spake in arrest of judgement for that the triall ought to have been by the Record and not by the Country And so was the opinion of the Court But Radford Pregnotary said that the triall was good enough for it may be that he appeared there and yet there is no Record made thereof to whom it was answered that then it is no appearance if it be not recorded and Radford replied suppose that there is not any such suit there how then can it be recorded but the rule of the Court was ut supra for then the Obligation seemeth to be single 13. THe case of Calgate against Blyth was now again argued by Fletewood for the Plaintif And first he said that the limitation by the Wife is not good for which he took this ground that alwaies when a man shall gain a fee simple by matter of conclusion of Record that he shall be seised to his own use And here the Husband had a fee by conclusion by the fine and therefore his limitation good only Carill And there upon he put a case reported by Carill who was a grave man Fine levied and very learned in the law That if Husband and Wife levy a fine to B. who rendereth to them again for life the reversion shall remain in the Conisor to his own use Also he put another case put by Baldwin in the time of H. 8. Grant of all Estate that a man seised in right of his Wife grants totum statum suum to another the grantee shall have it no longer than during the life of the Husband if his Wife overlive him but if she have issue by him then he shall have it during the life of the Husband absolutely Fine And if two tenants in common inâ—eoff B. Feâ—ffâ—â—ent in see to their use they are then tenants in common of this use Diffâ—â—â—nâ—â— per Tenants â—n common but if they levy a fine to B. to their use then they are Joyntenants And in Queen Maries time a parson of a Church by licence of his patron and ordinary levied fi Parson levies a Fâ—e a fine of a portion of his Rectory and it was adjudged that it shall be to his own use in his naturall capacity Bishops the same law is if a Bishop levy a fine and he cited 1â— H. 4. 1. the first case and so he prayed judgment for the plaintif Anderson chief justice rehearsed the case and first he said that the Wife without her Husband cannot limit the use without doubt And here the case is no more but whether the husband may limit the use without the privity of his Wife and I think it a strong case that he cannot Notice of a use If Husband and Wife have an use and they grant it over to one who hath notice of the Use this shall be to the use of the Wife again What a use is and he defined an Use to be an intent and trust to convey lands and cited 6. H. 7. and that when the interest of the inheritance is in the Wife Fine if Husband and Wife levy a fine this shall be to to the use of the Wife for the use ariseth out of them which give the land and not by the Conises or Feoffees for they neither grant nor give the use Feoffment by he Husband alone and then it shal be to the use of the Wife again But if the Husband alone make a Feoffment this shall be to his own use and the Wife after his death shall be driven to her action And if the wife had been privy or assenting to the limitation Assent without naming although she had not been named yet it should be a good limitation but the Jury have found that she was not privy And a case was here adjudged Indenture after a fine levied that where a fine was levied and the limitation made after by Indenture that this shall be to the use of the Indenture if there be no other against it but in this case it is found expresly by the Jury that shee never agreed which doth impugn that which otherwise should be intended then now the case is no otherwise but that a fine is levyed and no use is limited but if the fine had been levied Silence is an agreemâ—ni the Husband only limited the use and nothing els had been done against it then it should have been to the use limited by the Husband because it should have been intended that the Wife had consented thereunto and so I think judgment shal be given against the Plaintif Windham I am of the same opinion and it seemeth that their difference and disagreement in the limitation is the cause that both the limitations are void First let us see who hath auctority to limit the use surely the principall owner of the land hath the principall auctority to limit the use and here the Wife is the principall owner What a use is and therefore hath chief power to dispose of the use And Sr. the use is the chief profit and commodity of the land and cannot be severed from the land no more than the shadow from the body and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use and not the use to the possession for the use is the principall for by the common law by bargain sale enrolled the land shall pass without livery Bargain and sale for this was a contract for the use and then the law shall make the land to pass The Law erects the use and whithersoever the use is now carried the land and possession shall follow but when the Law carrieth the use it is to the owner and proprietary of the Land The mothers heir For if a man seised of Lands on the part of his Mother levy a fine thereof the use shall pass according as the land shall because the law carrieth the use And here the Wife cannot limit the use without her Husband and therefore that is void but yet it is good to this intent to shew her disagreement Silence Consent And if the Husband limit the use and she doth not disagree the law intendeth that she consenteth thereunto because she hath joined in the fine Sale in London by Husband and Wife And therefore in London sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent or if she do not disagree And although that she shall not be examined concerning the use yet the Law will not have her defrauded of her land by joyning in the fine without her consent to the use for by that meanes
Wast and the Defendant demurred in law whether such an action will lie against him or no it was for cutting down of trees And at this day Anderson rehearsed the case and said that they were all agreed that the action will lye well enough vi armis for otherwise he shall have no action for wast is not maintainable and Littleton saith that Trespass lyeth so seemeth the better opinion in 2 E. 4. 33. for otherwise this being a common case it shall be a common mischief And he commanded the Pregnotary to enter judgement for the Plaintif 18. Snagg moved to stay Judgdment in the case of Blosse Property and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods Trespass will not lie sed vide librum and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler Windam If he had imbezeled the goods it is Felony and for the case of 3 Hen. 7. it is Felony without question Property quod fuit concessum Anderson The servant hath neither generall nor speciall property in the goods Taking Embezeling and he shall have no Action of Trespass if they be taken away and therefore if he take them Difference Trespass lieth against him and if he imbezell them it is Felony wherefore he commanded to enter Judgement for the Plaintif 19. THomas Taire and Joane his Wife brought an Action of Wast against Pepyat Pas 25. Eliz. and declared how that the Defendant was seised in Fee Rot. 602. and made a Feoffment to the use of himself for life Wast and after to the use of the Mother of Joane in Fee who died and it descended to her and after the Defendant made Wast c. The Defendant pleaded that he was and yet is seised in Fee Absque hoc that he made the Feoffment in manner and form pro ut c. And the Jury found a speciall Verdict that the Defendant made a Feoffment to the use of himself for life but that was without impeachment of Wast the Remainder in Fee as before And the Plaintif prayed Judgement and the doubt was because they have found their issue and more viz. that it was was without impeachment of Wast Anderson Whether it were without impeachment of Wast or no was no part of their issue and then the Verdict for that point is void and the Plaintif shall have Judgement VVindham The doubt is for that they have found that the Defendant is not punishable and where a Verdict discloseth any thing whereby it appeareth that the Plaintif ought not to Recover Judgement thereupon ought to be given against him As in detinue the Plaintif counts upon a Bailment by himself Bailment and the Jury findeth that another Bailed to his use the Plaintif shall not Recover And a Serjeant at the Bar said that the issue is not found Anderson That which is found more than their issue is void Assise and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise â—i troâ—â— ne so it c. and the Jury found that he was Tenant but that he held jointly with another and there the Plaintif Recovered and so he shall here And at length by the opinion of all the Court Judgement was entred for the Plaintif for he might have helped the matter by pleading 16. IN debt by May against Johnson Payment the Condition was to pay a 100. l. to Cowper and his Wife and by all the Court if he plead payment to Cowper alone it sufficeth for payment to him alone sufficeth without naming the Wife 15. IN a Quare impedit by Sir Thomas Gorge Avoydance against the B. of Lincoln and Dalton Incumbent the case was that a Mannor with an advowson appendant was in the hands of the King then the Church becoms void and after the King grants the Mannor with the advowson now the question was if the Patentee shall have this presentation or the King And all the Judges held clearly that the avoydance doth not pass for it was a Chattell vested in the King and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh nat br is contrary fol. 33. 11. 22. DEbt was brought by Goore Plaintif for 200. l. Bailiwick upon such a Bill Be it known unto all men by these presents that I Ed. Wingfield of H. in the County of Midd. Esq do acknowledge my self to be indebted to William Goore in 200. l. for the payment whereof I mine Heirs and Assigns do licence the said G. to have and use the Baliwick of Dale to the use c. untill c. the Defendant pleaded in bar that the Plaintif had used the said Bailiwick and said no more nor at what place he had received the money and Suagg moved that the Plea was not good because he had not shewed the value which he ought to have done Value and the Judges were of the same opinion and they said moreover that this Plea is not good in bar of this specialty for payment is no plea upon a single Bill Licence and he might have brought his Action upon this Bill without using the Bailiwick for this Licence is no Condition 〈◊〉 De Term. Hill Anno Eliz. xxx 1. AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton Covenant and the case was this A man maketh a Lease for years rendring Bent upon Condition with a Covenant that the Lessee shall repair the Houses with other Covenants And after he deviseth the same Lands to the same Lessee for more years rendring the like Rent and under the like Covenants as in the first Lease the remainder over to another in Fee and dyeth Then the first Lease expires and the Lessee held in by force of the Devise aâ—d did not repair the Houses so that if the first Lease had been in esse Condition he had broken a Covenant now if this shall be a Condition so that he in Remainder may enter was the question Shuttleworth This is a Condition for he cannot have an Action of Covenant and then the intent was that it shall be a Condition But all the Court was against him and that the intent was not so for the words are under like Covenants which words do not make a Condition allthough they be in a Will Anderson The nature of a Covenant is 〈◊〉 to have an Action and not to enter and so all the Court held it no Condition And Perâ—â—â— said that under like Covenants were void words and therefore Judgement shall be given against you 2. PUckering the Queens Serjeant moved Fee determinable that one Adams was indebted to the Queen in a great sum which was stalled to pay yearly so much untill all werere paid And for security he levied a a fine to William Lord Burghley Lord Treasurer and others that they should
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
6. the Priors case Note that Puckering then said privily to Shuttelworth is not the book contrary to that which he hath vouched for he vouched the Book contrary to that which Puckering had done before Shuttelworth No Sir but the record is contrary to the Book quod nota and when she granteth ex certa scientia it shall be taken beneficial for the party 1 H. 7. 13. omnia debita released to the Sherif and 29 Ed. 3. the King seised the lands of a Prior alien c. Difference per enter interest prerogative Touts droits poss per fine Fine puis disseisin ou discont alit de recovery and there is a difference between the cases put and this case for when the Queen makes a Grant all matters of interests may pass by the words but matters of prerogative as in the cases put by my brother Puckering cannot pass for they are not within the words but interests are To that which hath been sayd that he was not seised of any estate tayl this is not any argument for if he had three rights by the Fine all are gone and passed to the Conisee for if he be disseised or discontinue and then levy a Fine this is a bar but otherwise it is of a recovery Lessee purâ—ans en reversion poss diversity for that is no bar but of an estate tayl And as to the case of Saunders that lessee for years need not to make claim the case was not so but the case was of a lease inreversion and he had never entred and therefore it was but as a common or a rent but if it be a lease in possession he is bound as in Zouches case Then because the King is in possession it hath been sayd that it is no bar but this seemeth to be no reason for the Statute began with the King and the Preamble seemeth to induce it and the third saving of the Statute is by force of any gift in tayl so this is generall And because he cannot discontinue therefore can he not make a bar Non sequitur For he cannot discontinue and yet a Fine levyed is a good bar and the Statute of 32 Hen. 8. doth not impair this opinion but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case as it was agreed by all the Judges in Stowels case and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar doth not extend but to the words going before as in the case in Dyer that a man had not done any act but that c. And the Queen in this case hath not any prejudice for she shall have the rent with the reversion And as for Jacksons case that maketh for me for the question of the case there was that the remainder shall be gone and we ought not to take regard to that which is sayd indirectly in the case but the point of the Judgement is the matter and for authority it is direct in Dyer fol. 26. pl. 1. and therefore it seemeth that the entayl is barred and so the action maintainable Anderson You have well argued but for any thing that I see none of you shall have the Land Grant for the Queen is deceived in her grant and therefore the Patent is voyd and then it shall be seised into the Queens hands And therefore you had best to be advised and we will hear what can be sayd for this point at another day And note that it was sayd by the Justices 3 Costs in forcible entry that if a man recover in a Writ of forcible entry upon the Statute of 8 Hen. 6. by confession or by default he shall recover his treble costs 22 Hen. 6. 57. 13. ONe Colgate brought a Replevin against Blyth who avowed the taking Replevin and thereupon they were at Issue in Kent and the Jury found a speciall Verdict The case in effect was this Husband and Wife are seised of Lands in right of the Wife And she by Indenture in her own name agrees that a Fine shall be levyed and limits the uses by Indenture After the Husband by another Indenture agrees that a Fine shall be levied and limits other uses and afterwards a Fine is levied by them both now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity The Jury prayed the advise of the Court c. For if they be good they found for the Plantif if not then they found for the Defendant Shuttleworth Serjeant It seemeth that Judgement shall be given for the Plantif For the use limited by the Husband shall be a good limitation in Perpetuity Rent ch ou Lease per feme covert and first the Wife only cannot limit any use for her Acts are of no Validity And therefore if a Wife grant a Rent charge or make a Lease and the Grantee enter this is a Disseisin 43. Ed. 3. Deeds given by a Feme Covert are void 17. lib. Ass a VVife levies a Fine Executory Fine executory executed per feme covert sur grant render as a sole Woman and after a Scire fac Is brought to Execute this Fine the Husband shall extort the Execution and if it were a Fine Executed then it is a Disseisin to the Husband Vse quod For an use is a Declaration how the Land shall continue in Perpetuity and the Feoffees are nothing but Instruments or Organs to convey the use for the Land yields the use and not the Feoffees then when the Wife which is under the Power of her Husband Limitation per infant quaere limits an use this is void for I hold for Law if an Infant limit uses and after levy a Fine and do not Reverse it during his Nonage yet the limitation shall not bind him and so of a man non compos mentis Non compos mentis And so it was ruled in the Court of Wards where a naturall Ideot made a Declaration of uses and levied a Fine accordingly Ideot naturall that yet it shall be to the use of himself And then in our case the Limitation by the Wife cannot be good but her Will depends upon the Will of her Husband and the expressing of the use by the Husband shall be good Estate disseisin assumsit al feme For if an Estate be made to a Wife if the Husband seaven years after agree it is good and so it is of a Disseisin to a use so ofan Assumpsit to the Wife 27 Hen. 8. in Jordans case 1 Hen. 7. in Doves case and in a Praâ—cipe quod reddat the default of the Wife shall be the default of the Husband Default del feme because she is Compellable to the Will of her Husband by the Intendment of the Law 21. lib. Ass A man seised of Land in Right of his Wife makes a Feoffment in Fee
Livery per baron and would have made Livery but the Wife would not agree to the Livery yet notwithstanding the contradiction of the Wife the Livery was Adjuged good 33 Hen. 6. Husband and Wife are Plantifs in an Assise Nonsuite del feme and the Husband would Prosecute but the Wife would be Nonsuite the act of the Husband shall be accepted and the act of the Wife rejected So if the Husband will make an Attourny and the Wife wil dissavow him Attourny yet he shall be their Attourny And as I think this Limitation by the Husband shall bind the Wife in perpetuity Case per fine indentare Difference Juris clamat For if the Husband make a Lease of the wifes Land for 100 years the Wife may avoid it after his death but if after they both Levy a Fine the Lease shall be good-for ever And 11 Hen. 4. He in Reversion and one which hath nothing Levy a Fine quid juris clamat shall be brought against them both And as I conceive it it shall be counted her folly Reentry per condition that will take such a Husband as will Limit such uses For if a Wife hath an Estate in Land upon condition for not payment of Rent that the Feoffor shall reenter if she take a Husband which doth not pay the Rent whereby the Feoffor or his Heires reenter the Estate of the Wife is utterly defeated And in 4 Ed. 2. A woman Tenant takes a Husband Cessavit who ceaseth by two yeares whereby the Lord bringeth a Cessavit and recovereth the Inheritance of the Wife she shall be bound And this appeareth in Fitzh in Cui invita 21. And it shall be so if the Wife hath but a Freehold Wast as it is in 3 Ed. 3. A woman Lessee takes a Husband who maketh Wast whereby the Land is recovered and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife this is onely the sale of the Husband but if after they Levy a Fine this shall bind the Wife And for express Authority it is the case in Dyer Joynture fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands takes a Wife who hath a Jointure in his Land and he makes a Limitation of uses and after they both Levy a Fine this shall be the Limitation by the Husband because it shall be intended that the Wife consented if it doth not appear to the contrary Whereby the Declaration of the use here by the Husband shall be good to bind the Wife and therefore Judgement ought to be given for the Plantif Feâ—ner to the contrary for here the Inheritance is in the Wife and where the Husband limits further than he hath Authority there the Law shall make a Declaration of the uses for the Husband cannot Limit uses of that which he hath not 21 Ed. 3. A man takes a Wife seised of Lands in Fee Atteynder del feme and before that the Husband was intitled to be Tenant by the Curtesie the Wife was attainted of Treason Homage the Land shall be forfeit and 44 Ed. 3. He shall not make Homage Conusans before he be intitled to be Tenant by the Curtesie 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife Warranoy And in this case the Conisee is in in the per by the Wife and Warranty made to the Husband shall inure to the Wife and 18 Ed. 3. A man seised of a Mannor in right of his Wife Villain to which there is a Villain regardant the Villain Purchaseth Lands the Husband shall be seised of the Perquisite in right of his Wife And yet otherwise it is where a man is Lessee for years of a Mannor to which c. For he shall be seised of the Perquisite in his own Right Divorce 12. lib. Ass If he be Divorced his Estate is gone Lease Rent ch diversity And I agree to the case put by my Brother Shut Where the Husband makes a Lease for years and after he and his Wife levy a Fine there the Lease shall be good but if the Husband grant a Rent charge and after he and his Wife Levy a Fine I do not agree that this is good for in the first case the Conisee found one which had an Interest in the Land but not in the last Then Sir here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever Feoffee al use 28 Hen. 8. The Feoffece to use at the Common Law Limits an use to a stranger this Devesteth the first use but if he limit is to cestui que use then it is an ancient use and not new And so it is if Tenant for life and he in Reversion levy a Fine this shaâ—l be to the use of him in Reversion 2 Loyntenants And so if two Joyntenants be in Fee and they limit severall uses this shall be good according to their limitations for the Moities of either of them and for no more And if Husband and Wife levy a Fine to the use of the Husbands Sonne Fits del baron yet this is to the use of the Wife but if he be the Wifes Sonne allso then this is a good consideration and the use shall be accordingly And these cases I put to this intent that when a man limits an use which is repugnant Vse repugnant or further than he hath Authority the Law shall make a Declaration of the same use for Bracton saith Nemo potest ad alterum plus juris tranferre quam ipse habet And I take the Law if Husband and Wife levy a Fine of the Lands of the Wife and render back to the Wife in Tail Fine levie de terres del feme Oâ—e râ—eder al feme en tail and the Husband dye and the Wife discontinue that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case And I agree to that which hath been said that the Wife only cannot limit uses but because the Jury hath found for â—he Defendant if the limitation by the Husband be not good as I think it is not then Judgement shall be given for the Defendant Concessum Adjornatur 14 WIlliam Knight Eject firm as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman brought an Executione firme against W. Breâ—h of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell the Defendant pleaded not guilty and the Jury appeared at the Bar and Evidence given on both sides And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant Demurrer al evidence and thereupon the Jury were discharged And now Gawdy the Queens Serjeant
had warranty to detain Garrâ—nty and they made partition the one could not vouch without the other Vâ—uâ—her and therefore she should pray in ayd and then both to vouch Paramount and so the Statute which giveth pâ—â—tition between Joyntenants saveth their warranty otherwise it were gone And so if two Joyntenants make a lease for years reserving rent upon condition Partition of a 〈◊〉 and after they make partition as they well may having the reversion and the freehold in them I hold the Law clearly that the one nor the other shall enter for the condition broken Then in the case of the King I hold the Law that it shall not be apportioned and yet I agree that the King shall have his Preâ—â—gatives for his present lands and goods Prerogative but he shall never have Prerogative when wrong shall be done to any man Rent charge appâ—rtioned If the King have a Rent chage and after Purchase parcell of the Land charged it shall be apportioned 21 Hen. 7. he may well condition that his Feoffee shall not alien for in those cases there is no prejudice to others but all those cases run upon other grounds And in Bartlets case the King is bound by the Statute of donis conditionalibus for it was a wrong that the Donee at the Common Law should alien the inheritance And this case as me seemeth is not within the concourse of Title Câ—â—â—â—urse of â—itle as my Brother Rodes hath argued neither is the King deceived as hath been said For when the King enters he shall be seised in pristino statu suo Dyer and this is a principall reason in Winters case 16 Eliz. a person makes a Lease reserving Rent upon condition that if it be behind lawfully demanded that then he shall re-enâ—er Deâ—and after the reversion cometh to the King he shall not maâ—â— demand I agree well thereto the reason is because the demand is a thing which goeth to the person of the King Then Sir the Statute is that the King shall have it as the Prior had it which is meant of the estate and not of the person of the King Then Sir it is impossible that the King should have the land as the Prior had it ut in pristino statu suo if he doe not utterly defeat the grant made to Cordall then here the condition is gone The Kings grant against the Law is voyd but not by any grant as it hath been moved but by the operation of the Law And 49 Ed. 3. the King grants that lands shall be devisable it is voyd because it is against the Law and it is against the Law that a condition should be apportioned ergo the King shall not apportion it But admit this question against me then let us see what title the Queen hath by this commission First the commission is to enquire if Cordall his Assigns and Farmers have performed all covenants and provisoes contained in the Indenture Proviso as for that I hold the law clear that they have auâ—hority by those words to enquire of the condicion but for other reasons I think the Commission void For the Commission is to enquire per bonos legales homines de Com. nostre Mâ—dd and it doth not appear here that the Jurors were of Middlesex and therefore the inquisition is not good Further Severall spespecial finding they have found a thing in another County and this they cannot find but I hold that the Jury in one County may find the generall issue in another County Allso I hold that when the party cannot plead that which is the great matter of the Action they may find it in an another County because the party cannot pleade it as in 9 Ed. 2. in debt against Executors c. And for these reasons I hold judgement is to be given for the Defendant 2. RIchard Heydon Misre-cital in Letters Patentt Gentleman demands against Benjamin Ibgrave Gentleman the third part of 40. Acres of Land with the appurtenances in three parts to be divided in Sarrot in the County of Hartford as his right and Inheritance and to hold of our Lady the Queen in Capite and Laies the Esples in the time of Ed. the sixth and that such is his Right he offers himself c. And the aforesaid Benjamin put himself upon the great Assise whether it be his right or no c. And now the Assise made by the four Knights appeared at the Bar Challenge Snagg Serjeant for the Plantif we challenge A. B. for that c. Nelson chief Prothonotary all the Court you cannot challenge because it was made by the four Knights and the Assise is now at the Bar. Snagg well Sir then we will give evidence Anderson for whom are you Snagg for the Plantif Anderson then you shall not give evidence first for the Tenant affirms that he hath more right Evidence and that ought to be first proved Rodes and all the Court So it was here rul'd five years ago in Nowells case and thereupon Puckering gave evidence for the Tenant that it was Parcell of the Mannor of Sarrot which Mannor the Tenant hath and this was granted by the Counsell of the Defendant And in conclusion upon the evidence given the Defendant would have had the Tenant to have Demurred upon his evidence and discharge the Inquest but the Tenant would not in effect this was the doubt K. H. 8. by his Letters Patents gave among other things all the Lands which were in the Tenure of one Whyton and demised to Johnson in the Parish of Watford And it was true that the Lands were in the Tenure of Whyton but not demised to Johnson Misre-citall and allso they were not in the Parish of Watford if this shall be helped by the Statute of Misrecitall and not Recitall is the question and the party did not aver that the intent of the King was to pass this Parcell now in question to the Patentee and the opinion of all the Court was that it is not within the Statute clearly but they said to the Jury that they may find all this matter if they will or otherwise say what they will And thereupon after they were agreed they came again to the Bar and then all the Court told them that yet they might give a speciall Verdict The Jury said we are all agreed that the Tenant hath more right to hold these Lands as he now holdeth then the Demandant as he demands them Anderson then are you discharged and as I think you have done well So they gave their Verdict according to the opinion of the Court for the Statute of Misrecitall and yet Peryam was well content to have them give a speciall Verdict and the Demandant was demanded who appeared and thereupon Judgement finall was given for ever against him 3. ONe Tirrell brought an Action of Debt against a Hundred in Essex Hâ—e and Cry for
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
for it is a maxim Nullum tempus occurrit Regi Peryam If the Freehold be in the Alien untill office found Trespass if a trespass be committed who shall punish it for he shall have no Action Fenner That is true and so it is of a Monk if he be a disseisor Monk and yet the freehold is in him Shuttelworth And so it is of a person atteinted Atteynted person and yet before office found the freehold is not in the Queen Rodes It is Dyer 11 Eliz. fol. 283. Feoffment to use If a man enfeoffee an Alien and a Denison to his use that the Queen shall have the moity whereby it seemeth that the confirment is voyd Anderson I hold this rule for certain that in every feoffment there is feoffer and feoffee and if there be a feoffee he must of necessity take wher by I think the confirmation is good Rodes Is this case hanging in this Court Fenner No Sir Windham Wherefore then doe you move it in this Court And afterwards the question being demanded of Shuttelworth by divers Barristers he made answer Truly in my opinion it is not in the Queen before office found and therefore I think the confirmation is good Quaere 5. AN Attorney of the Common Pleas brought an action of debt against another Misdemeaner whereupon he was arrested in the Country and when he came to London the Attorney caused him to be arrested in London for the same debt and this was shewed to the Court and the Attorney called to whom Anderson said if a man be sued here for a debt and after be arrested in another Court for the same debt the penaltie is fine and imprisonment and that is both the law and the custom of this Court wherefore then have you done this surely we will send you to the Fleet for your labour Attorney I beseech you my Lord consider my estate Anderson I have well considered it and that is that you shall goe to the Fleet and therfore Warden of the Fleet take him to you Windham We will punish such gross faults in you more severely than in others because you are an Attorney here and your fault is so much the greater by how much you are skilful in the law and customs of this Court wherefore you shall goe to the Fleet. De Term. Mic. Anno xxix Eliz. 1. IN the case of Sellenger Annuity it was said by Anderson and agreed by the Court that if a man grant an Annuity out of Land and hath nothing in the Land that yet this shall be good to charge the Grantor in a Writ of Annuity and in the same case it was allso agreed by the Court that if a man grant an Annuity to a Woman who takes a Husband and after Arrerages do incur and the Wife dye so that the Annuity is determined that the Husband shall have an Action of debt for the Arrerages by the Common Law Shuttleworth This is not remedied by the Statute of Arrerages of Rents and then at the Common Law it is but a thing in Action Peryam An Annuity is more than a thing in Action Windham He may grant it over and so the opinion of the whole Court was that debt was maintenable 2. AT the same day it was said by Anderson Executor and not gainsaid that if an Executor plead ne unque administer come executor yet afterwards he may take the Administration upon him and well enough be Executor 3. IN a Replevin by Bosse against Hawtrey Triall by provise they were at Issne Termino Mic. An. 28. 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill and after in Termino Hill took an alias retournable in Termino Pasch and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent and thereupon Hawtrey which was Avowant moved the Court and prayed expedition whereupon the Court caused the Roll to be brought in and notwithstanding that it was a Roll of Mic. Term yet because it was awarded the same Term they mended the Roll and awarded the alias retournable the same Term of Hill 4. WYlgus brought an Action of Trespass against Welche quare clausum fregit Travers Welche said Trin. 28. Eliz. rot 537. that I. W. was seised and enfeoffed May and so conveyed a title to himself the Plantif replyed that A. his Auncestor was seised and so the Land descended to him Absque hoc that I. W. was seised and upon this Issue the Court was moved Anderson the seisin is not traversable but where it is materiall and therefore clearly the Traverse is not good but Fenner cited a book in 2 Edw. 6. that the Travers shall be good but he stood not much upon it Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary but the opinion of all the Court clearly was that the Travers is not good 5. A Man makes a Feoffment in Fee to the use of himself and his Wife VVast alterius eorum diutius viventis absque impeticione vasti durantibus vitis ipsorum the Husband dies if the Wife shall hold without impeachment of wast or no was moved by the Serjeants And the opinion of all the Court was that she shall not be impeached of Wast because of the severance but otherwise if it had been Joyntly 6. FUlwood brought an action upon the case against Fulwood Action upon 〈◊〉 case and declared that whereas a motion of mariage was between the Defendant and a Widow in London in consideration that the Plaintif should give his assent that the Father of those Fulwoods should convey to the Defendant all his Lands and Chattells the Defendant promised to pay the Plaintif such a sum of money as their Father should assign Ac licet that the Plaintif had given his consent and that their said Father had assigned him to pay 37. l. yet the Defendant c. and he pleaded non assumpsit and it was found for the Plaintif and now Fenner spoke in arrest of Judgement for four causes First there is no consideration for the declaration is assensum suum daret so that he is at liberty to give his assent or no and so no perfect consideration The second is ac licet the Plaintif c. and doth not say in facto that he gave his assent The third is that he doth not say that he gave his assent when the Father had those Lands and Chattells The fourth is that in consideration the conveyance should be made to the Defendant and it appeareth that it was made to the Defendant and his Wife Shuttleworth To the contrary we have alleged in deed that he gave his assent and that is as much as if he had said in consideration that he gave his assent And allthough that the conveyance be to both yet it is in tayl to them and so the inheritance given to both And therefore that
keep their Country in such sort so that men may safely travell upon their way So that at this time the Court held that he should be aided by the Statute and also that no Hue and cry was necessary or convenient to be made by the party but they were not resolved and therefore they gave a day to have it argued again 11. AN Action upon the case was brought for these words Normans case thou wouldest have stoln a piece of cloth or else thou wouldest have delivered it to my Wifes Daughter and thou art a thief and an arrant thief and I will prove it and upon not guilty pleaded it was found for the Plaintif And the Defendant spoke in arrest of Judgement because the former words proved but onely an Intent Words which was no Flony and the last words shall be referred thereunto and therefore the Action not maintenable But now Shuttleworth moved for Judgement for the Plaintif because the last words are sufficient by themselves and shall not be referred to the former because they were spoken absolutely by themselves and so was the opinion of three Justices Anderson absente Rodes Otherwise it is if the words had been Therefore and therefore thou art a thief 12. SAmuell Hayles brought an Action of debt upon an Obligation the Condition was that if the Defendant did pay to the Plaintif 40. l. within twenty dayes after the retourn of one Russell into England from the City of Venice in the parts beyond the Seas that then c. and the Defendant pleaded in Bar that Russell was not at the City of Venice whereupon the Plaintif demurred in Law and at this day the Record was read and clearly per 3. Justices Anderson absente it is no good Plea For in such cases where parcell is to be done within the Realm and parcell without the Realm they ought to plead such a Plea as is triable in this Realm and therefore they commanded the Serjeant to move for Judgement when Anderson was present and so he did the last day of the Term and Judgement was given for the Plaintif by all the Court. 13. IN Trespass by Moor against Hills Attornment the Defendant pleaded that the Dean and Chapter of Westminster made a Lease tâ— one Payn who made Leases out of it first to A. for certain years rendring Rentand after the end of that Lease then to B. rendring Rent and afterwards sold all the entire interest to the Defendant to whom the second Lessee which had no possession Attorned Possession And the Plaintif moved that he might plead a better Attornment for this is not good because it is no Attornment And so was the opinion of the Court and therefore they gave him day to amend his Plea or else let a Demurrer be entred 14. VPon a wager of Law Payment by estranger it was said by Anderson that if I am bound to you to pay you a certain sum of money and a stranger deliver you a Horse by my assent for the same debt this is no satisfaction So if I be indebted upon a simple contract and a stranger make an Obligation for this debt the Debtor cannot wage his Law for this doth not determine the Contract Et nullut dedixit 15. BEtween Peirce and Davy this was the case Legacie A man covenants with I. S. to pay to A. B. and C. every of them x. l. at the age of twenty four years and makes an Obligation to perform the Covenant And afterwards makes his Will in this sort Item I will that every one of my Wifes Children viz. A. B. and C. shall have every of them x. l. at their severall ages of 21 years in performance of my Bond and Covenant in that behalf made at the time of my Mariage and not otherwise and dyeth Then A. B. and C. sued in the spirittuall Court Prohibition for these Legacies and Peirce brought a Prohibition and they prayed a consultation and the Court seemed to encline to their demand because they were all strangers to the Covenant but yet they would not absolutely grant it And afterwards in Termino Pasch 30. it was moved again and then the Court doubted because it was not given as a Legacy allthough that it was payable before for that it was given in performance of the Covenant and not otherwise and Anderson and Rodes said precisely that a consultation should not be granted sed alii haesitabant But yet they all thought it good reason and conscience that it should be payd wherefore they compounded the matter and gave day to Peirce to pay the money and 2 pound 8 pence to them which had sued in the Spirituall Court for their costs The same Testator allso devised diverse summs of money to his Wife to pay to the said A. B. and C. in performance of his Covenant who had the money accordingly And in debt brought upon the Obligation for the same Covenant the Executor pleaded plene administr 〈◊〉 and upon the Evidence all this matter appeared and the opinion of the Court in the Exchequor was that it shall be assetz and so adjudged there 16. BUrnell of Shrewsbery was robbed in Buckinghamshire Hue and cry and thereupon he brought his Action against the Hundred who pleaded not guilty and the Jury found a speciall Verdict viz. that he was robed the day and year specified in the Declaration but in another place within an other Parish than he had alleged but they found allso that both the Parishes were within the same Hundred and thereupon they prayed the advise of the Court. And three Justices Anderson being in the Starchamber held clearly that the Plaintif shall have Judgement and they said that so was the opinion of my Lord Anderson allso for it is not materiall within what Parish he is robbed so that it be within the same Hundred 17. RIchard Hamington Administr of the goods and Chattels of Isabell Oram brought an Action of debt against James Richards and Mary his Wife Future charge by possibility Administraterix of the goods and Chattells of Laurence Kydwelly upon a bond for performance of covenants and the case was such Tenant for 31 one years deviseth to his Wife as long as she shall be sole and Widow the occupation and Profits of his Term and after her Widowhood expired all the Lease and interest to Reignold his Son and dieth and the Wife hath the Term by force of the Devise and he in the Reversion by Indenture bearing date quinto Decemb An. Mariâ—â— primo did give and grant bargain and sell all that his Tenement to the Wife and to her Heirs for ever And also did covenant to make further assurance and that at the making thereof it should be discharged of all former Bargains Sales Titles Rights Joyntures A Feoffment to her and after also Dowers Morgages Statutes Merch. Statutes Staple intrusions Forfeitures Condemnations Executions Arrerages of Rents and all other
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
half whereby the Land was sown accordingly and that the Bore of Okely came and destroyed the Corn. Sed utrum c. And the doubt rested upon two points 1. because the Verdict saith that it conteineth sixty Acres and so shall be intended not the same place and the Court varied in opinion thereof insomuch that the sixteen Acres are found to be within the close conteining sixty Acres but for the 2 which was that they all four joyned in quare clausum fregit and it appeareth that three have nothing there Verdict shall abate the Writ but that Hare is sole seised And for that the Court held opinion that the Verdict shall abate the Writ for the Defendant cannot break their close where three of them have nothing but Hare onely Rodes A Case hath been adjudged a where Cheâ—ey brought Partition against Bury Partition who pleaded that they did not hold in Common and the Jury found that he and his Wife held in Common and yet the Verdict abated the Writ Windham You will all grant that the other three have no interest in the Land quod Walmisley concessit how then can they have quare 〈◊〉 fregit Fenner Executors shall have quare clausum fregit Executors and yet they have no interest in the Land Rodes There they have an interest for the time Anderson Here is but a bargain and no interest and then the three have no colour to bring Trespass quare elaâ—sum fregit 10. THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law Avoydance and now the Record was read and day given over to hear the Arguments but 〈◊〉 said that it is all one case with that which hath been adjudged here viz. that the Queen hath title of Lapse and doth not present but the Patron presents and after the Church becomes voyd by the death of the Incumbent that now the Queen shall not present but the Court answered Difference between Death and Privation that there the avoydance came by death but here it cometh by privation and whether this will make a diversity was the question 11. HArper brought Trespass against Spiller and Drew Estate upon not guilty pleaded a speciall Verdict was found and the case in effect was this F. gave Lands to a woman to have and to hold to her to the heirs of F. of the body of the woman ingendred what estate the woman had was the question and now the Record was read and day given over to argue it 12. SHuttleworth moved the Court Amendment and shewed that one Brokes by had brought a Quare impedit against the Bishop of Lincoln and others and the Writ was suam spectat donationem and this word 〈◊〉 was omitted and he prayed the Court that it might be amended and he cited 11 Hen. 6. 2. where it was imaginavit and it should have been imaginat fuit and 13 Hen. 7. where the teste was omitted and the Court took time of advisement and at length by the opinion of all the Justice it was amendable and then a Clerk of the Chancery came into the Court of the Common-pleas and amended it 13. IN an Avowry for an Amercement in a Leet By-law a Prescription was made for making of By-lawes and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants and not for the private commodity of any particular man as J. S. onely or the Lord onely As if a By-law be made that none shall put in his beasts into the common-field before such a day this is good but if a By-law be made that they shall not carry hay upon the lands of the Lord or break the hedges of J. S. this is not good because it doth not respect the common benefit of all And Windhaâ—â— sayd that some Books are that they shall bind no more than such as agree to them 14. HAre brought Debt against Curson for a great sum Capias utlâ—gatum and Process continued untill Capias â—tlog And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ because they doubted thereof and the Writ was delivered to the Sherif in Court and he sayd that he would doe his endeavour but Curson hath long kept his house so that he cannot come at him Peryam You may take the power of the Country with you and break his house and take him out for so it hath been adjudged here which the Court granted 15. PUckering shewed how an Action of Debt was brought against an Administrator Assetâ— who pleaded plens administraâ—it and thereupon the Jury found a speciall Verdict that certain Obligations made by the Testator to the value of a hundred pound were forfeit and the Administrator took in the said Bonds and gave his own Bond for the Debt and retained the money in his own hands besides which c. he had nothing c. and if that hundred pound shall be liable to this Action of the Plaintif they prayed the advice of the Court and by the opinion of Windham and Peryam it shall not be Assets because the property is changed in giving his own Bond for the same Payment with Proper râ—â—ds and it is as if he had payd the Debts with his own goods but if he had compounded for less Surplusage then the surplusage should have been Assets But Rodes was of a contrary opinion in the principall case forasmuch as he had payd no money but onely given his Bond for in and Anderson was absent at this day And after at another day the case was moved again by Shuttelworth and then he shewed that for part thereof the Administrator had given his Bond and for another part his promise Promise and he sayd that this is no payment but a composition and therefore no change of property Anderson For so much as he hath given his promise I think it not good because that by this promise this first debt being due by Bond is not discharged but for so much as he hath given his Bond for I hold it good enough because the first Debt is discharged thereby allthough that the Obligation be made to a stranger Estranger by the appointment of the Debtee and allso before the Debt due for by this the first Debt is gone And Windham and Peryam were of the same opinion that the Debt was discharged and that it should not be Assets in his hands but Rodes doubted thereof and it was adjorned 16. JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants Abatement and after a Verdict found for the Plaintif and before Judgement one of the Defendants died and the Writ was adjudged to stand good against the other 17. IN Debt by Saunderson Wager of Law the Defendant pleaded nil debet per legem and in truth the money was due to the Plaintif but the Plaintif was allso
and did not say praedict Edward Seymour And all the Justices agreed that this was amendable And so the first judgement was affirmed 18. ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench Rent suspenpended and the Case was such A man makes a lease of ten acres for ten yeares rendring rent upon a Condition the Lessee grants 5. acres thereof to a stranger for five years and after grants the residue of the years in the five acres to the Lessor And after the Lessee broke the Condition whereby the Lessor re-entred and if he may do so or if the Condition was suspended or no was the question because he accepted a future interest in parcell Future interest Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended and now this was assigned for error And all the Justices except Anderson and Peryam held that it is not suspended before he had entred by force of his lease Anderson If I make a lease as here upon Condition and waive the possession this may be suspended before his entrie Cook This is another case Peryam But the reason thereof commeth well to this case And afterwards because the said two Justices dis-assented from the rest it was adjourned over 19. ANother Writ of Error was there brought upon a judgment given in the Kings bench Trover And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices If a man lose his goods which come to the hands of another he converteth them to his own use and after the owner dye Day and place of conversion whether his Executors shall have an action of the Case for this Trover and whether he ought to shew the place and the day of the Conversion or no And the Counsellours at the bar said that he ought to shew both for so it was adjudged where an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation and it was found that he had broken the seales c. and because he did not shew the time and place of the Conversion he could never get Judgement And now the Justices were of the same opinion but yet Anderson seemed to doubt Peryam Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator and the doubt is if they shall have an Action upon the Case Manwood if a man hath another in Execution for debt and the Gaoler suffer him to escape and after the Recoverer dyes shall his Executors have an action against the Gaoler Cook No. Peryam So it seemeth But Anderson Manwood and VVindam clearly to the contrary and that they shall have debt upon this Escape Cook But not an Action upon the Case at the Common Law and here by his own shewing he might have Trespass vi armis and therefore not this action De Term. Trinitat An. Reg. Eliz. xxx 1. RAlph Heidon brought a Writ of Right against Smethwick and his Wife Droit of two parts of forty Acres of Land in Surret and they pleaded that one Ibgrave was seised and devised it to his Wife now one of the Tenants for term of her life the remainder to Benjamin Ibgrave in fee Praying ayd in an Assise which was his heir and dyed and they prayed in ayd of B. I. who came and joyned to them and thereupon they came and pleaded to the grand Assise and the first day of this term the Assise appeared and sixteen were sworn whereof four were Knights and the residue were Squires and Gentlemen and the title was all one as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part And the opinion of all the Court clearly that it is not ayded by the Statute for there is not any certainty in the Grant Name certain but if he had given it a certain name as green Acre then allthough he had mistaken the Parish yet it had been good enough Peryam The Assise may goe their way and they did so and after they being agreed came again to the Bar and the Demandant was called and did not appear whereby the Tenant prayed the Court to record the Nonsuit and it was done Curia All is one as if he had appeared Non-suits for this Non-suit is peremptory for ever the issue being joyned upon the meer droit aliter if the issue had been joyned upon any collaterall poynt 2. IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass Challenge VValmisley This Inquest you ought not to take for it is favourably made by the Sherif which is within the distress of one of the Plaintifs and shewed how the Sherif held certain lands of a Mannor now in question whereof Lister hath possession and allso hath certain lands for term of years of him and the Plaintifs moved that he ought to take one cause onely 1 Cause Curia He may allege both for the challenge is that he is within the distress and the allegations are but evidence to prove it and then the Plaintif sayd not within his distress whereupon the Court appointed Tryers and the Defendant sayd that all the Jury are favourable Tryors refused and prayed Tryers de circumstantibus Gawdy That cannot be but onely in an Assise and cited 9 Edw. 4. Curia We cannot appoint other Tryers in this case but only of the Jurors wherefore let the fourth and seventh be Tryers but you may refuse them and take others if you will and thereupon the Defendant refused the fourth whereby the third was appointed and they found the Array favourably made and therefore it was quashed 3. A Recovery was had by Arthur Mills against Sir Owen Hopton of divers lands twelve years passed Amendment and by the negligence of the Attorney Warranty of Attorney no Warrant of Attorney was entred for him and now suit was made to the Justices that it might be entered and they all consented thereunto and so it was entered incontinently but first the party made a corporall Oath that he had retained an Attorney and that this was the negligence of his Attorney 4. IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor Arbitrement and sayd that there was an Error in the Record Error not assigned which was not assigned and prayed that it might be examined allthough that it was not assigned because that it appeared in the Record which was agreed to by the Court. And then he shewed the case that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others and they Arbitrated that the Plaintif in this Writ of Error should release to the now Defendant all Actions which he might
But if a man be indebted to me and after I am Outlawed and then the King releaseth this debt Release of the King of the debt of one outlawed and then I bring a Writ of Error and reverse this Outlary I shall be restored to my action again And here he hath shewen to us a peece of cunning for when he pleads the Outlary in us he hath pleaded the Record specially for otherwise we would have sayd Speciall pleading nul tiel record and then it being reversed it should have been certified for us as there is a case in Dyer Then here allthough that be in by a new presentation yet all the words of our Writ are true in this Scire facias but I grant that Executors shall have a Qnare impedit for a disturbance done to their Testator Executors shal have a Quare impedit Anderson The case in Dyer is thus reported That I when I was the Queens Serjeant and Gerrard now Master of the Rolls then being Attorney of the Queen were of opinion that the Clerk of another shall not be removed and concerning that matter I held then as I doe still that in some cases the Clerk shall not be removed and in some cases he shall for if he come in under the title of the Plaintif Title peramont and since the same then he shall be removed but if he come in by title Paramont he shall not be removed and here for that this is done hanging the Writ it seemeth that he shall be removed For if a man bring a Praecipe and hanging the Writ the Tenant alien yet the recovery is good against him Tenant in a Praecipe aliens and shall allso bind every one under him Peryam That point is clear enough but the question is if by the Outlary the Plaintif hath forfeited his presentation to the Queen For if it be so then this is a new title for the Queen Anderson What reason is there in that when it was an apparent practise of the Defendant to resign for otherwise she could not have presented Plenarty the Church being full before Peryam The practise is not good without doubt but what is the Law Anderson The Law is that the Defendant by his resignation shall never extort the Plaintif from his execution Peryam The point is if by the Outlary the Queen have a new title by reason of the Plaintif and I doubt much thereof if by the judgement she shall have the presentation Anderson I am resolved that there is not any colour in the case but what say you Rodes Truly I hold that the Plaintif shall remove the Clerk Windham And in my opinion it is clear enough that by the reversall of the Outlary the Plaintif shall have his presentation Reversal Anderson Then let Judgement be entred for the Plaintif Peryam In the name of God if you be agreed against me 10. A Writ of Partition was brought by Henry Tannworth Partition and Christian Tannworth against John Tannworth their elder brother for lands in Hawlesteed alias Elsted in Leicester-shire because that Halsteed is parcel of the Soak of Rothelay wherein there is such a custom Members of a Mannâ—r that the lands shall equally descend to all the heirs males and in giving of evidence Walmisley sayd that the members of a Mannor are other Towns in which the Mannor extends and Puckering sayd Soak quid that at this day the Queen may make a Soak For it is nothing else but a Precinct to which divers Mannors come to doe suit and as a great Leet containing divers other Courts and the Evidence was strong for the Tenant for he shewed by plain proof that this was never parcell of the Soak allthough that it was within the ancient Demeasne of Rothelay Domesday as it was proved by the Book of Domesday which was there shewen and a Clerk of the Exchequer read it for other Clerks could not and he sayd and so sayd the Serjeants and the Tenant delivered to Anderson and Peryam an ancient Book of the time of Ed. 2. for their remembrance wherein in 4 Ed. 2. in a nuper obiit it is sayd that if the Lands which have been departible and departed come into the Lords hands by Escheat they shall not be departible in his hands Partible lands Escheat vel in manibus alicujus alius perquisitoris non possunt partiri And he sayd that such was the opinion of Sir Thomas Bromley the last Lord Chancellor upon hearing of the matter there whereby when the Jury came to give their Verdict the Plaintif was Non-suit 11. SHuttelworth shewed how Robert Hughson brought an Action of Debt against B. Office of the Court. as Administrator of F. and declared upon a simple contract made by the Intestate Pasch 30 El. rot 421. and the Defendant pleaded plene administravit and it was found by Verdict against him And now in arrest of Judgement the Defendant alleged that the Action is not maintainable against him upon a simple contract And Shuttelworth thought that now he is past that advantage because he did not shew it in pelading and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question Rodes It appeareth to us judicially that no action will lie upon a simple contract against Executors or Administrators wherefore then ought the Plaintif to have Judgement Shuttelworth Because by his Plea he took upon him notice of the contract and by 46 Ed. 3. where the Administrator was privy to the retainer of a servant he was charged by a simple contract Rodes Here he did not take notice and in 15 Edw. 4. The Court ex officio abated the Writ Shuttelworth This is by Littleton onely Rodes The case is ruled and Littleton gave Judgement so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper A common Ianholder if he be not named Hospitator allthough he plead in bar yet we ex officio ought to abate the VVrit Peryam If he be no Hosteler the Action lyeth not against him And if an Action of Debt be brought and doe not shew the place of the Obligation if the other plead a release this is good enough Shuttelworth So is 18 Edw. 4. A Deâ—d not shewed in Court 6 Hen. 7. Rodes If a man bring an Action and the Defendant plead in bar by Deed and do not shew the Deed and the other pleads in bar and doth not except thereunto but they were at Issue this is Error for we ex officio ought to have adjudged it evill and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case Then Shuttelworth sayd privily to his Client I doubt we shall doe no good by our Action Anderson being then in the Star-chamber After at another day Anderson rehearsed the case and sayd
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
rather to the contrary For common intent is that which shall be intended more strong than any other and not that which resteth indifferent As if a man Plead a Feoffment in fee it shall be intended that the Feoffer was of full age but here common intent is that he was another person because Barber Chirurgeon and Tayler are divers functions by common intent And as to the case put by common intent it shall be intended the same Westm because the place is so notorious that common intent will nor intend any other But Peryam would not grant that case of 21 H. 7. At another day Gawdy said that they have a President in 16. Eliz. where an action was brought here against the Administrator of Francis Fitzherbert Mercer And they pleaded likewise a Recovery in the Kings bench against them as Administrator of F. F. Grocer and allowed for good and in 10 H. 7. wast is brought and doth not say praedict and yet good Peryam For the cases in 10. H. 7. 21 H. 7. It was all in one Plea but it is not so here And for his President Anderson and Peryam said that they would not regard it if it do not appear that Exception was taken thereunto if the Presidents be shewen for matter Matter 〈◊〉 Form 〈◊〉 Presidents but if they be shewen for form then otherwise it is Anderson If I. S. bring a Praecipe against me and I vouch I. S. it shall not be intended the same person â—oucher if he do not say expresly that he is the same person therefore a Fortiori here it shall not be intended the same person Afterwards the next Term Shuttleworth argued again that it shall be intended the same person but all the Court was against him and so they gave judgement for the Plaintif 19 FEnner shewed how Bartholmew Brooksbie hath brought a Quare impedit A thing in action released and declared how A. was seised of the advowson in fee and graunted to him and another the next avoidance and after the church became void and the other released to him all his right c. and the Defendant disturbed him And after they pleaded to issue which was found with the Plaintif and this matter alleged in arrest of judgement that the Release was void and then he hath no cause of action for when the Church became void then it was a thing in action or actionary and therefore could not be granted over by 28 H. 8. Interest shall survive and by the same reason it cannot be released as 1 and 2 P. and M. and 2 and 3 P. and M. in Dyer Anderson If it be an interest it shall survive and by the same reason it may be released And it shall goe to his Executors wherefore then may it not be released Et adjornatur De Term. Mich. Anno xxxix xl Eliz. Reg. 1. TIsdale Maintainance one of the Attorneyes of the Common pleas brought an Action upon the Statute of Maintainance against John al Tree in Chancery lane for Maintainance in a Spirituall Court and by all the Court an Action is not Maintainable for Maintainance in an inferiour Court for this word alibi being in the Statute was expounded to be meant of the Kings Court onely and in the argument of the same case Drew remembred the Court of a Judgement given there in the like case for one Constantine of Wiltshire 2. BEtween Brown and Lother an Action was brought in the Spiritual Court Consultation for these words Thou art a forsworn Knave for thou madest a false account when thou wert Churchwarden and thereupon the Defendant brought a Prohibition supposing the discussing of Perjury to belong to the Temporall Court and upon the opening of the matter to the Court the Plaintif had a consultation because the Perjury was supposed to be committed about the execution of his Office of Churchwarden which doth belong to the Spirituall jurisdiction But otherwise it had been if the Perjury had been supposed to have been committed concerning a Feoffment or other Temporall act per Walmisley Owen 3. BRoughton against Flood Amendment the originall Writ was returned by Needham Esquire Sherif and his Christian name left out Williams moved the Court to have the Christian name of the Sherif put into the Writ but the Court denyed it because the Record was made up and likewise by this means they should make an Outlary good which was now erroneous 4. IN an Advowry the Defendant saith Venue that locus in quo c. is parcell of the Manner of Dale and avows for suit of Court the Plaintif by replication saith that locus in quo c. is parcell of the Mannor of Sale and maketh to himself a title absque hoc that it is parcell of the Mannor of Dale and the Venire faciaâ— was of Dale onely and upon motion all the Court adjudged that it ought to have been of both Mannors and made a rule for stay of Judgement after Verdict This was the case of Atwood of the Middle-Temple 5. IT was sayd by Anderson and Owen Prohibition that a Prohibition will not lye after a sentence in the Spirituall Court and that if the Libell be for such a matter as may be determined in the Spirituall Court no Prohibition will lye unless some Plea be pleaded by the Defendant in that Court which the Judge will not allow For if a Suit be in the Court of Admiralty upon a contract made upon the Sea and the Defendant pleaded a release or a gift after the coming to Land that Court may enquire and try this issue the like for Tythes 2 Rich. 3. 6. IT was sayd by Drew in the Argument of the case between Râ—theâ—â—â— and Green Common that if a Commoner take a Lease of one Acre out of which his Common is issuing that his whole Common is suspended Rent allso where a Lease for years is rendring Rent and for default of payment a re-entry if the Lessor grant the reversion of one Acre Condition the whole condition is gone Also that an entry by the Lessor into any parcel suspends the whole rent during his occupation and Anderson sayd that there is no Common by common right but Common appendant 7. ADams brought an Action of Debt upon an Obligation against Oglethorp Restitution the Defendant pleaded that after the making of the Obligation Trin. 39 Eliz. 〈◊〉 1803. the Plaintif was attainted of Treason for Coyning and pleads the Attainder at length the Plaintif confesseth the Attainder and saith that afterwards the Queen by Letters Patents did pardon him and did restore unto him omnia bona cattella sua and thereupon the Defendant did demur in Law the question was whether Debts by specialty be included in those words 8. EVeling against Leveson Executor of the Testament of Walton Assets in effect the case was this The Queen was indebted to Walton in a hundred pound for
Muskets and Callivers delivered into the Tower for which money Walton took a Debenter from the Queen in the name of a stranger and afterwards dyed and made Leveson Executor who procured the stranger to release and surrender the former Debenter to the Queen and took a new Debenter for the same hundred pound to himself this was adjudged no Assets nor devastavâ—t in the hands of the Executor Leveson upon a speciall Verdict but otherwise it should have been if the first Debenter had been taken in VValtons own name for then it had been a devastavit by the Executor 9. BAcon Plaintif against Selling in an Ejectione firme Assets de judgement the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39. Trin. 39 Eliz. rot 1345. so that it appeared to the Court that the Plaintif brought his Action before he had an interest in the Land and by all the Court a Rule was given for stay of Judgement after a Verdict but afterwards the Plaintif came and shewed that after Improlance he filed a new originall 10. HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words Scandalum magnatum viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged Warrant c. And the Earl recovered great damages by Verdict and now it was spoken in arrest of Judgement that the words were not sufficient to maintain the Action because it was not averred that the Earl knew the Warrant to be forged and of the same mind was the Court at this time 11. WIlloughby brought an Action of Debt against Milward Debt and declared that the Defendant bought Timber of him for ten pound solvend modo forma sequenti viz. five pound ad festum Pasch proxime sequentem and saith nothing when the other five pound should be payed and the Plaintif recovered the whole ten pound by Verdict and now it was spoken in arrest of Judgement for the cause aforesaid but yet by all the Court it was good enough for the Law intendeth the other part of the money to be due presently if no certain day of payment bee alleged 12. KItchin brought an Action of Debt against Dixson Debt Executor of Craven Mich. 36 37 El. rot 1028. or 1021. the Defendant pleaded ne unques Executor and the Jury found a speciall Verdict viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson and they found likewise that this Deed was to defraud Creditors against the form of the Statute and that the Defendant by colour of this Deed did take the Goods after the death of Craven and if this Deed vvas good then they found for the Defendant if not then they found the Defendant was Executor of his own wrong and so for the Plaintif and by all the Court Judgement was given for the Plaintif 13. IT was sayd by Drew arguendo That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires Rent charge the residue may be apportioned and the Land shall remain chargeable still for that residue but if he release in one Acre parcell of the Land charged then all the Rent is gone 14. IT was said by Glanvile in the argument of the case between Cromwell and Andrews Provisâ— that a Proviso in a conveiance to be performed on the part of the Lessee implies a re-entry allthough there be no speciall words of re-entry but otherwise it is when it ariseth on the part of the Lessor and Vouched bendlowes case where there was a Covenant going between the Habendum and Proviso But where the Proviso standeth substantively as where I grant a Rent charge Proviso that he shall not charge my person Condition this is no Condition but a Qualification Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas if the grant be not made before the first Feast which shall next happen the Condition is broken and he put a difference where the Condition must be performed by none but himself and where it may as well be performed by his Executors as himself And Drew said then that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer there ought the Feoffor to make a request otherwise if it be to enfeoff another 15. SMith against Bonsall Common in effect the case was such In an Action of Trespass the Defendant pleaded his Freehold Hil. 39. Eliz. rot 1753. and the Plaintif replyed that A. was seised of a Yard-land to which he had Common of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land and of the Moity thereof did enfeoff the Plaintif the question was whether this Common may be apportioned or else it be extinct alltogether In the argument whereof Drew said that Common sans number cannot be granted over because if it should be granted to a rich man he may surcharge the Common then and leave none for the rest of the Commoners so of estovers uncertain for so the Grantee may burn all the Wood quod Walmisley concessit and he vouched 17 Eliz. in Dyer that a Commoner may purchase parcell of the Land out of which his Common is issuing Purchase after that it be improved by the Lord and not extinguish his Common thereby And he said that if parcell of the Common be inclosed Inclosure a Commoner ought to make but one gap to put in Cattell but Anderson said that he may make as many gapes as he will And it was said by Anderson and Beamont Appendant may be apportioned that Common appendant cannot be for all manner of Cattell but onely for such â—attell as compass the Land and that such Common may be apportioned into twenty parts Append. quid as any Common certain may be Walmisley Owen If my Land to which I claim Common belonging can yield me stover to find a hundred Cattell in Winter then shall I have Common in Summer for a hundred Cattell in the Land out of which I claim Common and so for more or fewer proporitionably which they did expound to be the meaning of pertinen Moity of a Mannor levan and cuban Walmisley If I grant away the moity of my Mannor we shall both keep Courts so if I be disseised of a Moity or that the Moity be in Execution by elegit and we shall both have Common and in apportionment of Common respect ought allwaies to be had to the quality of the Land unto wâ—ich it is alloted Copiholder And a Copyholder may prescribe for Common in the Lords Land within the same Mannor by usitatum fuit but if he claim any other Common he must lay the prescription in the Lord. De Term. Hill An Reg. Eliz. xliii 1. WAlter Ascough prisoner
de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei every one will agree that this is voyd but if a further addition be made to the Corporation the Lease is true Addition superfluous shall not hurt allbeit that it be varying as if the Lease had been Minister Dei omnipotentis the addition of this word omnipotent shall not hurt sic de similibus And allbeit that it be not agreeing in words yet if it agree in common understanding Common understanding it is good but if in common understanding the grant may not be taken according to the Foundation if it be not wrested to an unexpected understanding there it is not good and if the Foundation had been in English words Minister of God of the poor house of Donington and the Lease by name of Minister of the poor house of God of Donington every one will agree that this is palpable variance and the Lease not good And I doubt of the case of Everwick for there the Prior beatâ—â— Mariae brought an action by name of Prior beatâ—â— Mariae extramures civitatis Ebor and if this case were now to be adjudged that would be variance as the case of Bristoll Prior beatae Maria de Bristoll made a Lease by name of Prior beatae Maria juxta Bristoll and this Lease was adjudged voyd but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance for it had been but an explanation which will never hurt and for that the Court was so divided in opinion that is to say two against two and the case concerned a poor house They moved the parties to comprimise 8. RUswell brought disceipt against Vaughan Disceipt and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that and sold the profits of the sayd Advowson to the Plaintif pro quadam pecunia summa And it was pleaded in arrest of Judgement for that the Plaintif did not aver ubi revera the Defendant had no title non allocatur 9. THe case was that the Queen made a Lease for years Burrough versus Taylor rendring rent at the receipt of her Exchequer or to the hands of her Baylif upon condition that if the rent be not payd that the estate shall cease Payment of rent the reversion being granted away by the Queen after the Queen granted over the reversion and whether the rent shall be now tendered upon the land or at the receipt of the Exchequer or to the person of the Assignee of the reversion was the question and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land or otherwise he shall not re-enter for the condition broken that for two causes the one for that that when the reversion was in the Queen Election the Lessee had election to pay it at the receipt of the Exchequer or to the hands of the Queens Baylif and when the Queen had granted over the reversion the election of the Lessee is tolled by which now the rent shall ensue the nature of other rents reserved by common persons The common receipt of the Exchequer and those are payable upon the lands another reason is every rent reserved by the Queen is of common right payable at the receipt of the Exchequer or to the Baylifs of the Queen without words appointing at what place it shall be payd for these are the usuall receipts of the Queen and so the words which appoint that to be payd at the receipt of the Excheq â—r to the hands of the Baylif of the Queen are idle words for that the Law appointeth so much of common right ex praerogativa Regis but when the reversion is transferred into the hands of a common person No prerogative can be granted over there this Prerogative ceaseth for it cannot be granted to a common person and by consequence the rent shall be payd upon the Land 10. THomas VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome recuperet No amendment in point of judgement and for that Error was brought and Serjeant Heale moved that the Record might be mended for that it was the mis-entring of the Clerk but adjudged to the contrary for the Judgement is the act of the Court and not of the Clerk 11. EDmund Nevell brought an Action of Trespass against J. Sayle Abuttals and declared Quare clausum fregit in quodam loco vocato Claveringfield abuttan super quoddam molend in tenura J. S. Opinio Curiae If the Plaintif do not prove his Buttals he is gone And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged and howbeit that there be a way between the Close and the Mill yet the Buttall is good 12. RIchard Somerstailes brought an Action upon the case for slanderous words Slanderous words that is to say R. S. is a very bad fellow for he made J. S. drunken in the night and consened him of an hundred Marks and upon not guilty pleaded it was found for the Plaintif and Judgment was stayed for the words are not sufficient to maintain an Action 13. IF the Heir of the Morgagee is in Ward Mortgage and the Morgager payeth the mony his entry is not lawfull upon the King but shall be put to monstrans de droit per Popham chief Justice 14. HAmond brought Debt upon an Obligation against Hatch Award of paâ—t onely and the Condition was That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant for and concerning the matters contained in 9 severall Articles bearing date the day of these presents So that the same be given up under the hand and seal of c. And the Arbitrator made an award of 7 of the sayd Articles omitting the other two and whether the Obligor ought to perform this Award was the question Man I think he ought to perform the Award for that he is bound by Obligation to perform it and to prove that he cited 5 Edw. 4. 19 Hen. 6. 17 Edw. 4. Gawdy The words of the Condition are so that the same Award be given up in writing before such a day and that shall have reference to all the Articles for the Submission was conditionall as 14 Elizab. And after Judgement was given quod quer nihil capiat per billam 15. How against Broom and others A Man leased a House and a Close rendring rent and the Lessor entered into the house and pulled that down and after
the Lessee re-entered into the Close Rent extinct by empairing the estate and whether the rent were revived or not was the question And Popham and Gawdy The rent is not revived and that the Lessee shall hold the Close discharged of any Rent by the folly of the Lessor to impair the estate of the Lassee 16. DOwnall brought a Writ of Formdon against Catesby in the Common-place Error and there was a speciall Verdict found and Judgement given for a default in the Writ against the Plaintif and the Plaintif brought Error and alleged for Error that after Verdict given no default in the Writ shall prejudice the party per le Statute de 18 Eliz. cap. 14. Popham chief Justice sayd if there be no Writ it is holpen by the Statute Insufficient Writ â—ot holpen but it is otherwise if there be an insufficient Writ in matter for that is not holpen but a Writ that is insufficient in form and sufficient in matter is holpen And in every Writ of Formdon there are two things requisite the one is the gift the other the conveyance to the Demandant and if either of these two fail the Writ is insufficient in substance and is not holpen by the Statute 17. PEter Palmer of Lincolns Inne brought an action upon the case against one Boyer Slander of a Counsellor at Law and declared how he was an Utter-barrester of the Law and got his living by practising of the Law and was Steward of divers Courts and namely of one John Petty Esquire and the Defendant praemissorum non ignarus to the intent to prejudice the Plaintif in his good name and practise sayd of the Plaintif these English words viz. Peter Palmer is a paltry Lawyer and hath as mâ—ch Law as a Jackanapes and it was pleaded in arrest of Judgement that the words would not maintain an action for they are not slanderous for it is not sayd he hath no more Law than hath a Jackanapes for then it had been clear that the action is maintainable for by that he had abated the opinion of his Learning but it is not so in this case for the words are that he hath as much Law as hath Jackanapes and this is no impeachment of his Learning for every man that hath more Law than Jackanapes hath as much Et non allocatur for the comparison is to be taken in the worst sense and tant amounts that he hath no more Law than Jackanapes per quod Judgement was given for the Plaintif for this is a slander in his profession by which he doth acquire his living 18. ONe libelled in the Spirituall Court for Tithe of Billet Prohibition Faggot ' and Talwood And averred that it came of Birch Maple Hasell and Hume and thereupon a Prohibition was sued surmising that they came of Oke Ash Elm and Birch And in the Spirituall Court allbeit one Libell for wood of one nature and that is found of another nature yet sentence shall be given for the Plaintif The Court said that was absurd Absurd practise of the spirituall Court and therefore they would hear a Civilian speak to that point Cook Attorney Generall If consultation shall not be granted then farewell all Tithe of Wood for in truth in every faggot of Birch there is put a great stick of Oak or Ash intending by that to privilege the whole faggot of Tithe Nam crescit in orbe dâ—lus Webb Clark said the cunning is of your side to Libell for fagot For if you had Libelled for Maple Birch or Hasell no Prohibition would have been sued And it was adjudged in this Court in Molins case one Libbelled for billet and fagot generally without shewing of what Wood they were made And upon pleading upon the Prohibition Partable tithable it appeared to the Court that part was tithable and part not And for that they could never obtain a Consultation Cook It doth not appear here that there was any mixture so the case is not like Webb You have no Right to have Tith of fagot for that part thereof is not tithable being Oak so by your Covetousness to have more than is your Right you have lost that that is your Right Et adjornatur And after at another day in the same Term it was moved again by Savile Lanes case which said that it was adjudged in Lanes case that tith shall never be paid for Hasell-wood wich is mixt with Oak in fagots quod Gawdie negavit Fenner He ought to have pleaded the speciall matter to have had a Consultation Seeciall pleading viz. how much of the fagot was Hasell for so it was done inter Molius Dames And therefore forasmuch as it is not so done Consultation shall not be granted for no part of that and of this opinion were all the Justices quod nota 19. NOta per Master Kemp Secondary of the Kings Bench Office Appearance if a Latitat goeth forth against the Husband and Wife and the Husband onely is taken The Husband shall find surety for himself and his Wife or otherwise he shall lie in Prison untill he find bail as well for his Wife as for himself and said that this hath been the use of the Kings Bench by the space of forty years of his knowledge 20. SCire facias was brought by Middleton against Hall Usury after Judgement to execute a Judgement The Defendant pleaded that he borrowed of the Plaintif 100. l. to give him 120. l. for the loan thereof for a year And the Plaintif for his assurance would have the Defendant confess this Judgement of 120. l. And so he pleaded the Statute of Usury in bar to this Scire facias and upon that the Plaintif demurred in Law Godfery prayed Judgement for the Plaintif The words of the Statute of Usury are all Bonds Contracts and assurances Collaterall or other made c. shall be utterly void But here this Judgement may not be said any assurance for the money but is a Judgement upon the assurance for which c. Clark contra But the whole Court being twise moved held clearly that this is no plea to defeat a Judgement But if such matter had been the Defendant ought to have pleaded that upon the first Action in bar and so not to suffer the Judgement Popham Here are two inconveniences one to defraud and defeat the Statute of Usury the other to avoid Judgements upon such suggestions which might be pleaded in bar in the first Action and after the Plaintif had Judgement to recover 21. MArtin Slander of an Attorney Attorney of the Kings Bench brought an Action of the case against Burling for slanderous words viz. Martin is he your Attorney he is the foolishest and simplest Attorney towards the Law And if he do not overthrow your cause I will give you my ears he is a fool and an ass and so I will prove him If these words be actionable or not was the question
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
case the partie shall have a consultation Popham The one of the parties is a man temporall and so was it not in your case Sic nota that by the Spirituall law the Vicar shall have Tithes of Saffron of land newly sown with Saffron albeithat before the Parson had the Tith of that land being sowen with Corn. 76. NOta that by the course of the Kings-bench a man may have Oyer of the deed after imparlance Oyer of a deed but not in the Common place Q. 77. BEckford brought an ejectione firme against Parnecote Devise before purchasâ— and the Case upon the speciall Verdict was found to be this That one Parsons was seised of certain land in A. and had issue four Daughters viz. Barbera Johan E. and Mary and made his Will in writing And by the same Will he devised all his land in Aldeworth to Barbera and Johan two of his daughters and made them two his Executors and after he purchased other land in Aldworth and a stranger was desirous to purchase this land of him newly purchased And he said that that land should goe with the residue of his land to his Executors as his other land should go After the said Testator made a Codicill and caused it to be annexed to his Will But the Codicill was of other things and mentioned nothing of this land and whether this new purchased land shall pass by the Will without new publication of the Will for this land was the question Moor I think that the land newly purchased shall pass and to prove that he said that the reason in Bretts case 340. Com. for which land newly purchased shall not pass is by reason that there is no manner of new publication but in our case there is new publication and in Trivillians case 4 M. 143. where cestui quae use made a Will And then the Statute of 27 H. 8. of uses came now this Will was comptrouled The Statute of Wills but by a new publication it may be made good and he cited 44. E. 3. 12. and 44 Ass 36. Atkinson è contra For this Will ought to be warranted by the Statute otherwise it is not good and the Statute doth not enable him which hath no land at the time of the devise to devise land and the words of the Statute manifest this which are Where any person or persons having any land holden c. So by the express words Want of apt words if he have no lands at the time of the Devise he may not Devise as appears plainly in Brets case allso it appears that words out of a Will will never make that to pass which was intended before and with that agreeth the Lord Cheney his case and the case of Downhall and Catesby lately adjudged and in this case allbeit the Testator allowed this Will after to be his Will Things not expressed in the Wil must be expressed in the publication yet this shall never make this land newly purchased to pass without express publication of this land Clinch Justice sayd it seemed to him that the land newly purchased shall pass for after that he had made his last purchase the Testator heard the Will read and by that he devised all his lands in Aldworth and then knew that the land newly purchased lay in Aldworth and upon reading of the Will he allowed it and so I think that the new purchased land shall pass as well as the other and that this allowance upon the reading is a new publication Gawdy Justice è contra For if I make my Will and by that devise all my land in Dale and after I purchase other land there and one afterwards shews me the Will and demands of me if it shall be my Will and I answer it shall I say that this land newly purchased shall not pass Hearing and allowance is a publication and in this case howbeit that the reading of the Testament or annexing of the Codicill be a new publication yet it doth not manifest the intent to be that more shall pass by that than he intended at the first and allso the new reading of the Will and the annexing of the Codicill may not properly be termed a new publication as this case is Where there it no controlment there needeth no new publication for here was not any Controlment and for that the Will needs not any new publication by which it seemeth that without any express publication for this land newly purchased this land shall not pass for the things which are found to be done are but allowances and no new publications 78. HArecourt brought a Writ of Error upon a Judgment given in the Common-place Amendment and assigned for Error for that the Judgement was that the now Defendant should recover xx l. assessed to him per Jnr. nec non x l. bassessed to him hic per Jur. where it ought to be per Cur. Yelverton prayed that it might be amended for that the Record in the Common-place was right and the Misprision which made this Error was in the Clerk which certified the Record and the opinion of the Conrt was that if it were so it should be amended and therefore they sayd they would have the Record it self brought out of the Common-place thither to be viewed whether it were so or not The Record it self shall not be sent out of the Court. Worley Clerk The Justices of the Common-place will not suffer the Record to be brought hither Popham That is no new President that the Record shall be brought hither for I have seen it done before this time But after in truth the Justices of the Common-place would not send their Record into the Kings-bench and therefore Cook the Queens Attorney prayed that it might be amended Popham It may not be amended for that I have spoken with the Justices of the Common place and they say that the Record was at the first as it was certified viz. Iur. pro. Cur. and after the Record was certified it was amended by a Clerk without any Warrant Cook Allbeit that it was so yet under Correction it is amendable for it is the misprission but of a Clerk and that of a Letter onely viz. of I. for this letter C. for the word is written Jur. short where it ought to have been Cur No amendment in â—â—int of Judgement and so amendable by the Statute of 8 Hen. 6. Curta è contra for it is parcell of the Judgement and you never saw the Judgement of the Court amended for which it cannot be amended here 79. EAst Executor of I. S. brought an Action upon the case of finding and Converting of certain goods Trover against Newman And upon not guilty pleaded the Jury found this speciall Verdict viz. That the Testator was possessed of divers goods and them lost and the Defendant found them And knowing them to be the goods of the Testator upon demand denied to deliver them And
Statute of 18 Eliz. cap. 11. c. appoints that the Ordinary after complaint made and sentence given against any such incumbent whereby he ought or shall lose one years profits of his Benefice shall grant Sequestration to one of the inhabitants of the same Parish as he shall think meet And upon default there in by the Ordinary that it may and shall be lawfull to every Parishoner where the Benefice is to retein and keep his or their tithes and likewise for the Church-wardens to enter and take the profits of the Glebe lands and other Rents and duties of every such Benefice to be imployed to the use of the poor and he shewed how that the Parson made a Covenant and a Bond that he would permit I. S. to take the profits of his Benefice for a year And whether this were such a Lease for which the Parson ought to forfeit the profits ut super he prayed the opinion of the Court and it seemed to them it is not the reason seemeth to be because he doth not aver him to be absent above 80 daies in the same year 83. PEr Popham If a man find my horse Conversion and after ride him and then delivers the horse unto me and I bring an Action of Trover for the Conversion It is no plea that you have delivered the horse to me before the Action brought for you ought to answer to the Conversion 84. CHesson brought an assumpsit against D. K. Abatement of debt and declared that where I. S. was indebted to him in 64l The Defendant in consideration that the Plaintif would abate 10l parcell of the said Debt and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael and the Plaintiff in facto saith that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue per quod actio accrevit The Defendant pleaded in Barre That after the said day given and before Michaelmas scil tali die the Plaintiff entred a plaint in London for the Debt aforesaid of 64. l. Arrest before the day given for payment and then caused the said I. S. to be arrested and demanded judgement si actio Tanfield The Declaration is sufficient for you have delared that you have abated part of the debt but you have not shewed how that was defaulked and therefore not good for we may take issue upon that if we will and if a man be bound in an Obligation to discharge me of certaine rent it is no plea for him to say that he hath me discharged without shewing how for that that I may take issue upon thaâ— Also to the second matter the Plaintiff ought not onely to give day of payment but also to forbeare to molest I. S. untill the day be come Cook to the contrary And as to the first poiut it seemeth that the discharge ought to be upon the entring into bond Bond for parcell of a contract for if a man make a Contract for 10. l. and after enter into bond for 5 l. parcell of that all the Contract is gone as appears per 3. H. 4. And as to the second point I think the promise is broken by the Defendant for that he did not enter into Bond the next day after the assumption made Gawdie I doubt whether the Declaration be good or not for it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for it may not be intended a defaulking in Law but of a defaulking indeed and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act himselfe And 17. Eliz. A man was bound to allow ratifie and confirm a term for yeers And it is no Plea to say that he hath that confirmed But he ought to shew how because every Confirmation must be by Deed but if the Declaration were good then perchance the Barre would not be good And howbeit that Mr. Attorney hath said that there is a breach for not entring into Bond yet the Plaintiff may not sue Every discharge to be by writing if he have not performed his promise Fenner It will be hard to make the Declaration good for when one promiseth to defaulk his debt this shall be intended a lawfull discharge which cannot be otherwise than by writing and per 20. E. 3. Accompt If a man be bound to acknowledge a Statute For the intent must also be performed and he doth acknowledge the same but yet keeps the same in his own hands this is no performance And as to the second point when one promiseth in confideration of one thing to doe another there ought to be performance of the first as if a man be bound to make a new Pale Disturbance of the consideration as 9. Edw. 4. 20. 15. Edw. 4. 2. 3. is having the old pale for his labour there if the old pale be taken from him he is not bound to make the new pale Popham I am of the same opinion 85. DIxon brought an Action upon the case against Adams Assumpâ—it in consideration that a man will voluntarily do that act which otherwise he should have been compelled to doc and declared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉 for the said I. S. in the said suit and the said Adams recovered in the said suit and after sued forth a Scire facias against the said Dixon being bail whereupon the said Adams in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation in which the said I. S. was bound unto him and upon which the first action was brought and the judgement thereupon had and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant Sed â—radictus defend promissionem assumptionem suas minime curans hath not assigned over to the Plantiff the said Obligation and Judgement per quod act accrevit and Judgement was given for the Plaintiff for the consideration was holden good 86. ROsse brought an Ejectione firme against Thomas Ardwick Limitation and the case was such that one Norwood was seised in see and leased to one Nicholas Ardwick and his Assignes for his own life and for the lives of Thomas Andrew and John Ardwick and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will and
a Grantee of a Reversion for years be within the Statute or not Gawdy Well enough For the words of the Statute extend to that quod fuit concessum Then it was moved that this was a meer collaterall Covenant between the persons and not concerning the estate of the land and for that not within the Statute Popham sayd Covenant reall which concerneth the estate If nothing be sayd to the contrary intretur Judicium for the Plaintiff afterwards the case was moved again Gawdie It seems the case is Assigne which in regard of his reversion as of a Covenant may well maintain this action by the Statute of 32. Fenner This Covenant is not any Covenant to be performed during the estate or terme of the Defendant but it is a Covenant to doe a thing in the end of his term and for that is not a Covenant of which the Assignee of the reversion shall have benefit by the Statute for that he hath not any reversion depending upon any estate when the Covenant is alledged to be broken for the Defendant when he breaks that Covenant is but Tenant at sufferance Gawdie contra the Covenant is not to doe a thing after the terme determined but at the instant of the determination of the term and therfore it is a Covenant annexed to the State and runnes with the Land and therefore the Plaintiff shall have advantage over it 110. TRespasse and assault was brought against one Sims by the Husband and the Wife for beating of the woman A Child born living but bruised Cook the case is such as appears by examination A man beats a woman which is great with child and after the child is born living but hath signes and bruises in his body received by the said batterie and after dyed thereof I say that this is murder Fenner Popham absentibus cateris cleerly of the same opinion and the difference is where the child is born dead and where it is born living for if it be dead born it is no murder for non constat whether the child were living at the time of the batterie or not or if the batterie was the cause of the death but when it is born living and the wounds appeare in his body and then he dye the Batteror shal be arraigned of murder for now it may be proved whether these wounds were the cause of the death or not and for that if it be found he shall be condemned 111. GOodale against Wyat in trepasse The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee Mortgage and morgaged it to one Woodliff upon condition that if he or his Heires did pay to the Heires Executors or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment and the Seisin thereupon given should be void and afterwards Woodliff infeoffed Goodale of the same land and gave notice of the said Feoffment to Sr J. P. and after Woodliff dyed and Sir J. agreed with the heir of W. to wit one Drew Woodliff to take 30 l. for the said 50 l. but when the 30 l. was to be paid Sir J. paid to the said Drew VV. all the fifty pounds and after such payment made Drew VV. gave back to the said Sr. J. 20 l. parcel of the 50 l. Altam 2. points are in the case The first is to whom the payment of the money as this case is ought to be made and I think to the Feoffee because the Heir hath nothing to do in the land and to prove that he cited fundamenta legum 17. Ass 2. 6. R. 2. Plesingtons case and the case of one Ramsey 19. Eliz. was such a man infeoffed three Ramseys case upon condition that if the Feoffor paid to them or their heires 100 l. that then he might re-enter and after one of the Feoffees dyed and the Feoffor tendred the money to his Heir and adjudged a void tender And also Littleton proves that but tif the condition might be performed to the Heirby payment that ought to be precisely performed for he is now as a stranger having nothing in the land and the Covin between the Feoffor and the Heir must not hurt my Olient for by 4. E. 2. câ—i in vita 22. If cui in vita be brought against a Prior and hanging the action he is deposed by Covin this shal not abate the Writ and it was adjudged in this Court where a man was bound by Obligation to deliver a bond and after he got a judgement upon it and then delivered the bond and holden no performance of the condition because the intent was not performed and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed whereby the Plaintiff granted that if the Defendant made a Recognisance to him that then the Writ of accompt shall be made void and he shewed how he made a Recognisance But the Plaintiff said that after the making and before deliverie of that to him Composition by Executors the Defendant took it from the Clerk and therefore was adjudged to accompt Precisely named and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes if he do license him and then disturb him the condition is broken and the common case of Executors will prove this for if an Executor have but 20 l. assets in his hands and is in debt to two men in 20. l. to either of them if he pay but 10 l. to the one and have an acquittance of him for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other for no compacting between strangers shall prejudice my right per quo c. Payment upon a mâ—rgage good to the Executorrs cleelry Gawdy I think cleerly if the payment had been intirely made to the Heir without collusion it had been good for that he is preisely named for none will deny but that if the payment had been made to the Executors it had been good but the Covin between the Heir and the Feoffor peradventure will make no payment Father enfeoff the son and for that 34. E. 1. Warrantie 88. If the father infeoff the Son to the intent that this land shall not be assets to the Sonne to bar him in a Formdone this Covin will not serve to aid him Covin by administration and 2 3 Mar. the Husband dyed intestate and administration was committed to the wife which tooke another husband and the second husband and his wife as Administrators brought an action of Debt hanging which suit the Sonne of the intestate by fraud and covin between him and a Debtor obtained other letters of Administration to him and the woman joyntly and after judgement the sonne by covin to defeat the execution released to the Debtor all demands and executions and after the Husband and
Wife sued execution and the Debtor upon this release brought an audita querela and adjudged against him because of covin but there is a third matter which makes an end of all for it is found that Sir John Pagginton entred upon Goodale and Goodale re-entred and then the Defendant entring is a Trespassor to the Plaintiff because no title is found for him to make his entrie lawfull Finner I thinke no payment ought to be made to the heir in this case no more than it shall be where a man is bound by obligation to pay a lesser sum to the Obligee his Heires or Executors there payment shall be to the Executor and not to the Heir And I think in this case Conusee by Starute grants over his estate that the payment ought to be to the Feoffee for that that he is to have the losse for by 22. E. 3. 15. E. 3. if a man have exeution by Statute and grant his estate over if the Conusor will pay the money and have the land again it shall be paid to the Grantee and not to the Conusee But I am cleer in opinion that for another cause judgement ought to be given against the Defendant for the words of the condition are sub conditione That if Sir John Pagginton pay 50. l. to the Heires Executors or Administrators of W. That the said Deed of Feoffment Liveriâ— cannot be void without a reentire and the seizin upon that given shall be void And I think it is no condition for livery of seisin may not be void without a re-entry as 15. H. 7. is but for the matter of the Covin it seems to me that if the Heir may receive the money that shall not prejudice for if he have right to have the money who hath any wrong if he give part of that to another Clinch The payment of the money to the Heire is good for when a man departeth with his estate it is in his dispose to annexe what condition he will and for that when he appointeth to the Heires Executors or Administrators payment to any of them is good And he said it was a good condition Possession a good title against all which have not a better and no fraud for the duty was due to the Heir but for the last matter that is not to be cured for when one title is found for the Defendant and it is found that the outed one that had elder possession his entry is torcious Popham I think the condition is not good for whensoever you will have an estate of inheritance to cease Estates beginning by liverie and otherwise you ought to have apt words to make it cease for an estate which beginneth by liverie may not cease by words but it is otherwise of an estate that beginneth by contract without any liverie and seisin but in the point of fraud I am of opinion with my brother Gawdy Fraudulent recoveries are void although they be by a good title For fraud in our law is not favoured albeit the partie have right for if he that hath right is of covin with one to disseise him that is in possession to the intent that he will recover against him now this recoverie albeit he hath right will doe no good to him but the last makes all without question and so judgement was given for the Plaintiff 112. SAyer brought an Eejectione firme against Hardy A Lease determinable made good for the insensibility of words and a speciall verdict was found to wit that a Lease was made to a widow for 40. yeers sub hac tamen conditione quod si ipsa tam diu sola fuerit inhabitabit in the same house the woman continued sole all her life and dwelt all her time in the said house and dyed within the term the question was whether the term be determined or not and whether the words make a condition or limitation Morgan It is no condition and cited Colthursts case but if it were a condition here is no breach alleged for the death is the Act of God which no man may resist and the Act of God may not prejudice any man Bromly I think the word makes a Limitation and not a Condition and he tited the Lord Barkly's case Gawdie If a Lease be made to a feme sole if she so long live sole and continue unmarried now if she dye the Lease is determined Differences between conditions and limitations and per Litl If an Abbot make a lease for 40. yeers if he so long be Abbot if he after be deposed or dye the lease is determined So is it of a lease made by the Husband if he so long continue Husband of such a woman but in this case the words are insensible and for that it is neither condition nor Limitation vide 3. E. 6. Dyer 65. 66. Popham Clinch It is neither Condition nor limitation but if this word si had been omitted it would have been a condition Or if the words sub conditioâ—â— quod had been omitted it would have been a limitation And if I make a Lease for 40. yeers if the Lessee dwell upon the thing let during the term there if the Lesse dye the Lease is determined for that the point of limitation goeth to all the term but if it be a lease for 40. yeers if the Lessee dwell upon that during his life there if he dye the Lease continueth So they all concluded that the terme yet continueth per quod judicium intretur pro quer 113. IN the case between Walter and Walter for 20. l. per annum to be paid to a Justice of Wales for the Office of the Clerk of Fines Assumpsit in consideration of an Office sold For a Justice of Wales may by Prescription take notice of Fines of Land lying in certain Shires in Wales and this 20 l. per annum was to be payd by the Servant to the Master for the sayd Office for the Clerks Fee was v. s iiij d. of every Fine The Action for not paying the xx l. Mistrâ—all was brought and tried in comitatu Gloucest And therefore Mr. Attorney said it was mis-tryed for properly it ought to be tryed in one of the three Shires in Wales John Walter I think the Tryall good for 30 Eliz. there was a Case in this Court between Beveridge and Conney Reveridge against Conney And the case was that a Lease was made in the County of Northampton of lands in the County of Cambridge and the Lessee was bound by Obligation to pay his rent in the County of Northhampton The Defendant pleaded payment in the County of Cambridge and this was found in the County of Northampton Gawdy This is a good Case let us see the Record Walter You shall Sir But the Court seemed to incline against Walter Cook said that in this case the Assumption is voyd per le Statute de 5 Ed. 6. cap. 16. For it is not
say they shall take that as Legatees and not as Executors in respect of the 100. l. which they are to have to then proper use 126. NOta Second deliverance if a man have Judgement to have Retorn upon a Nonfuit in a Replevin and the Plaintif bring a second Deliverance this is a Supersede as of the Retorn yet the Defendant in the first Replevin shall have a Writ to enquire of the damages which shall not beestaid by the second Deliverance but if he have Iudgement in the second Deliverance then shall be retorn Irreplevisable and shall recover damages 127. STitch against Wisdom Thoughts are not to be uttered an Action upon the case was brought for words viz he did better than many an honest man did For there is many a truer and honester man hang'd and there was a Robery committed whereof I think him to be one and I verily think him to be an Horse-stealer and upon non Cul. pleaded It was found for the Plaintif and pleaded in arrest of Judgement for that it is not expresly affirmed that the Plaintif was one of the Robbers neither that he was a Horse-stealer precisely but that he thought him to be one and thought is free for every man and no slander but this notwithstanding Judgement was given for the Plaintif for thoughts tending to slander may not be uttered 128. NOta per Gawdy Felony That a man may be accessary to the stealing of his own goods As if he confederate with an other to steal goods from his Bayly to the intent to charge his Baily this is Felony 129. THynn brought Debt against Cholmley for 300. l. Arrerages of a nomine poenae Nomine poene against an Assignee And declared of a Lease for years made by him to one Ager rendring Rent and if default of payment be made of the said Rent at any day Trin. 36. E. rot 842. in which it ought to be paid Quod tunc toties the said Ager his Executors and Assignes shall pay iij. s iiij d. pro quolibet die donec praedictus reddit so behind shall be satisfied And shewed how the Rent was behind and not paid by the space of two years but did not shew that he demanded the Rent Jackson The sum demanded is by computation more than should be true But it seems that the Plaintif intends to have every iij. s iiij d. doubled for every day that the Rent is behind And if that be his intent then he demands too little Demand for in 2 years that will be infinite Gawdy He shall have but iij. s iiij d. for every day Fenner I think that he ought to make a demand of the Rent Or otherwise he shall not have the nomine poene Gawdy Nay truly no more than in Debt upon an Obligation and he cited 21 Hen. 6 21. Edw. 4. 22. Edw. 4. Fenner Not like for in debt upon an Obligation it is a duty but otherwise of Rent and it was agreed that it lies against the Assigne in this case 130. HArbin against Barton A Jointenants Lease to begin after his death The case was that two Jointenants for life the one made a Lease for 80 years to begin after his death and after died And whether the Lease is good against the Survivor or not is the question Gawdy said that the Lease was good and cited 2 Eliz. 187. Popham Fenner è contra After this Lease was adjudged a good Lease by all the Judges of England for every Jointenant hath interest during his life and the life of his companion Ewdalls case For it was Ewdalls and Paramores case 31. Eliz. Where a Lease was made to the Father during his life and the life of two of his Sons The Father assigned over and adjudged to continue after the death of the Father The like between Gutter Locrofts and between Orwin and others 131. Baddock against Ja. S. and declared in an Action upon the case for words Insufficient declar for words quod in praesentia diversorum leigiorum dixit de praefat quer haec verba Anglicana viz. Thy Father praedictum quer innuendo is a thief for he stole my sheep The Defendant justified the words and at the Assisâ—s it was found for the Plaintif and exception was taken in arrest of Judgement For that it is not shewed in the Declaration Substance Form in a Declaration that the words were spoken to the son of the Plaintif Gawdy I think it is good for that the Defendant hath Justified the words spoken of the Plaintif tota Cur. è contra But if the Declaration be uncertain in form yet the bar may make it good But if the Declaration want substance as in this case it doth there the bar cannot make it good 132. RObert Sharples and Grace his Wife Debt brought Debt upon an Obligation against N. Hankinson the Obligation boar date xiij die Octobris An. xxxj Eliz. The Condition was if N. H. did pay viij l. of lawfull money c. in the year of our Lord God 1599. At or upon the 13th day of October which shall next ensue the date herof The Defendant pleaded that the day of payment was not come Gawdy I think the day of payment is the 13th day of October next after the date of the Obligation And that these words in the year of our Lord God 1599. are meerly â—oid Fenner Justice I think that the payment shall be in the year of our Lord 1599. For when a certainty appears allbeit afterwards an incertainty come yet that shall not hurt the certainty but the first certainty shall stand and the incertainty shall be void And in this case the An. Do. 1599. is sufficicient certainty and therfore the subsequent words are void Popham I think that the payment shall be the 13 day of October prox post An. Dom. 1599. For the words are that the Obliger shall pay viij l. of lawfull money of England in the year of our Lord God 1599. And if the payment shall be before this time none may know but by the spirit of Prophecie what money shall be current in England that year before the year come and it is impossible to pay that before and if I am bound to enfeoff before Easter Impossible condition void him that comes first to Pauls upon Michaelmas day next this is void because it is impossible 133. BOyer brings a Writ of Error against Jenkings Teste of the Venire mistaken and the Error assigned was for that the suit was commenced 35 Eliz. And the Venire fac to try this issue bore Teste 33 Eliz. Gawdie a Venire fac which bears Teste 33 Eliz. cannot possible be to try an issue in 35 Eliz. which is two years after and therefore here is no venire fac and so holpen by the Statute of 18 Eliz. after Verdict Tunfield This very case was Yorks case adjudged in this Court that it was not holpen by