the Land was entailed by the second Fine But that Exception was disallowed by the whole Court and a difference put by Anderson Where a man pleads the grant of an Advowson in gross by Tenant in tail in such case the life of the Tenant in tail ought to be averred for by his death the grant ceaseth But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant in such case such averment is not necessary So accordingly Smith Stapletons Case 15 Eliz. 431. And here it was moved if in as much as by the first Fine an estate for life was rendred to the Wife and by the second Fine in which she did not joyn an estate tail was limited unto her and now when the Husband dieth if he shall be remitted to her estate for life Co. 1 Inst 357. 2 Cro. 489. which Windham granted for that was her lawful estate and the second estate tortious But by Rhodes Periam and Anderson the Wife is at liberty to make her election which of the two estates she will have And as to the Writ to the Bishop for the Queen the Court was clear of opinion that it ought not to be granted upon this matter But all the question was if Regina inconsulta the Court would or ought to proceed And it was holden clearly by the whole Court that the tenure alledged modo forma could not be a tenure in chief for it is said that the Land was holden of the King as of the Castle of Dover in Capite LXXXVI Mich. 29 30 Eliz. In Communi Banco Intr. Pasc 28 Eliz. Rot. 602. Wast â— Cro. 40. 4â— WAst was brought by F. and his Wife agaist Pepy and counted that the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded that the said Feoffment was unto the use of himself and his Heirs in Fee c. without that that it was to the uses in the Count Vpon which they were at issue And it was found by verdict that the said Feoffment was unto the uses contained in the Count But the Iury further found that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast that is to say without impeachment of Wast And it was moved if upon this verdict the Plaintiff shall have Iudgment And Anderson and Rhodes Iustices he shall for the matter in issue is found for the Plaintiff and that is the Feoffment to the uses contained in the Count and this impunity of Wast is a forrein matter not within the charge of the Iury and therefore the traverse of it but matter of surplusage As if I plead the Feoffment of I. S. To which the other pleads that he did not enfeoff and the Iury find a conditional Feoffment the Court shall not respect the finding of the condition for it was not in issue and no advantage shall ever be had of such a liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unques seisi que Dower the Tenant pleaded that before the coverture of the Demandant one A. was seised of the Lands of which Dower is demanded in tail who made a Feoffment to a stranger and took the Demandant to Wife and took back an estate in Fee and died seised having issue inheritable Now although upon the truth of the matter she is not dowable de jure yet when the parties are at issue upon a point certain Hob. 53. Owen 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment But if the Defendant had pleaded it in bar he might have foreclosed the Demandant of her Dower Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how the Tenant who made default was but Tenant for life of the Lands in demand the reversion in Fee to himself and prayed to be received The Demandant did counter-plead the receit saying the Defendant had fee upon which issue was joyned And it was found that neither the tenant nor he which prayed to be received had any thing in the Land In that case the Court did not regard the matter which was superfluous in the verdict for they were at issue upon a point certain that is whether the Tenant was seised in Fee for it was confessed of both sides that he had an estate for life and with that matter the Iury was not charged and they are not to enquire of it and so it was found against the Demandant for which cause the Receit was granted 7 H 6. 20. The parties were at issue upon a dying seised which is found by verdict but the Iury further find that the other party made continual claim this continual claim shall not be regarded in the point of Iudgment because it was pleaded in avoidance of the descent Windh Iustice contrary Forasmuch as it appeareth unto us upon the verdict that the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue No advantage of impunity for Wast shall be taken where the same is not pleaded though found by verdict Judgment Hob. 53. Owen 91. The Plaintiff counteth of a bailment by his own hand the Defendant pleadeth that he doth not detain c. the Iury find the Detinue but upon a bailment by another hand In this case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Rhodes Periam and Anderson in the principal case were of opinion Iudgment should be given for the Plaintiff for in no case the party shall have advantage of such a Liberty of impunity of Wast if he do not plead it And the Iurors are not to meddle with any matter which is not in issue And if it be but matter of surplusage it is to no purpose And afterwards Iudgment was given for the Plaintiff LXXXVII Bracebridge and Baskerviles Case Mich. 29 30 Eliz. In Communi Banco AN Action of Debt is brought against three Executors Debt against Executors one of them pleads in Bar a Recovery against himself in the Kings Bench The other two plead plene administr Against the first plea the Plaintiff did aver covin and upon the second plea they are at issue The first issue is found for the Plaintiff and as to the other plea it was found that the Defendants have in their hands thirty pounds of the goods of their Testator not administred Note the debt in demand was one hundred pounds upon which the Plaintiff had Iudgment to recover the goods of the Testator and thereupon had execution Now the Plaintiff brought a Scire facias against the said Executors supposing that many other goods of the Testator have come unto their
hands after the Iudgment and prayed execution thereof upon which the Defendant did demur in Law. Vide 2â— H. 6. 40. 41. In debt against Executors of forty marks the Defendant pleaded that he had fully administred and it was sound that the Defendant at the day of the Writ brought had of the goods of the dead twenty marks and no more and gave damges five marks There the Plaintiff had Iudgment for the twenty marks of the goods of the dead and the five marks of their own goods And as to the other twenty marks that the Plaintiff should be amerced 33 H. 6. 24. Where Executors plead that they have nothing in their hands which is found accordingly Afterwards goods of the Testator came to the hands of the Executors Now the Plaintiff upon a surmise shall have out of the same Record a Scire facias to have execution of the said goods Scire facias to have Execution of Assets come to Executors hands after â—iens enter maynes pleaded But see 4 H. 6. 4. contrary for there it is said that upon the matter the original is determined and so no Record upon which a Scire facias can be grounded And see Fitzh abridging the Case Scire facias 25. by the verdict and the Iudgment the Original is abated Vide 7 E. 4. 9. by Moile according to 33 H. 6. and so 46 E. 3. 9. by Belknap And the Lord Anderson demanded of the Prothonotaries the manner of the entry of the Iudgments given in such Cases who said that their Entry is in this manner i. e. Quod querens recuperet that which is expresly found by the verdict but nothing of the residue for of that no mention is made at all And the Court seemed to be of opinion that where upon nothing remaining in their hands pleaded It is found that some part of the sum in demand is in the hands of the Executors there the Plaintiff upon a surmise of goods come to the hands of the Executors shall have a Scire facias 3 Cro. 272. Hob 199. 1 Cro. 318. 319 592. 8 Co. 134. contrary where upon such issue it is found fully for the Defendants that they have nothing in their hands LXXXVIII Fordleys Case Mich. 29 30 Eliz. In Communi Banco Tender pleaded 9 Co. 79. Dy. 25. a. 1 Inst 207. Post 69. 70. a. FOrdley brought debt upon an Obligation the Condition was that if the Defendant viz. the Obligor deliver unto the Plaintiff the Obligee at a such a day and place twenty pounds or ten Kine at the then choice of the Obligee c. that then c. The Court was clear of opinion that the Defendant in pleading the performance thereof ought to tender to the Plaintiff as well the twenty pounds as the ten Kine and for default thereof Iudgment was given against the Defendant See the Number Roll T. 29 Eliz. 1. part 324. vide 14 E. 4 4. b. LXXXIX Barker and Pigots Case Mich. 29 30 Eliz. In Communi Banco EDward Barker brought Debt against Rich. Pigot Executor of the Will of E. Executrix of the Will of R. The Defendant pleaded that he had fully administred the goods of his Testator E. upon which they were at issue Debt which was found for the Plaintiff And it was moved in arrest of Iudgment that here is not any issue joyned which answers to the Action for the Action is brought against the Defendant in the quality of the Executor of an Executor and the verdict extends to the Defendant but is Executor of the said E. for it is found by it that the Defendant hath fully administred the goods of his Testatrix without any enquiry of the Administration of the goods of the first Testator R. in which capacity the Defendant is charged So as here the Writ charges the Defendant in the quality of an Executor of an Executor and in respect of the first Testator and the issue and verdict doth concern the last Testator Execution must follow the nature of the Action And the whole Court was clear of opinion that although that now after verdict Fee-tail be saved and no Iudgment shall be given upon it yet here the Court shall give Iudgment as upon a Nihil dicit in which case the Execution of the Iudgment shall not fall upon the goods of the last Testator according to the verdict but shall follow the nature of the Action which was brought against the Defendant as Executor of an Executor XC Thacker and Elmers Case Mich. 29 30 Eliz. In Communi Banco THacker recovered in an Assize of Novel disseisin against Elmer certain Lands in Hackney and had execution Re-disseisin and the Judgment in it 1 Cro. 323. Elmer entred upon Thacker and ousted him and Redisseised him Thacker re-entred and afterwards brought a Redisseisin And it was moved whether Thacker against his Entry might have a Redisseisin And the opinion of the whole Court was that he might well maintain the Writ for he is not thereby to recover any Land but the Defendant of that Redisseisin being convicted shall be fined and imprisoned and render double damages Vide Book of Entries 502. the Iudgment in a Redisseisin is Quod recuperet seisinam suam of the Land. XCI Blaunchflower and Fryes Case Mich. 29 30 Eliz. In Communi Banco BLaunchflower brought debt upon a Bond against Elinor Frye as Executrix of one Andrew Frye her late Husband who pleaded Debt that this Writ was brought 9 July 27 Eliz. whereof she had notice the first of October after within which time one Lawrence had brought an Original Writ against the said Elinor as Administratrix of the said Andrew And after the bringing of the Writ the Bishop of Bath and Wels committed Administration of the goods of the said Andrew to the said Elinor which Elinor confessed the Action upon which Iudgment was given for the said Lawrence beyond which she had not goods upon which the now Plaintiff did demur in Law. And by Anderson the Recovery pleaded in bar shall not bind the Plaintiff because it appeareth unpon the plea of the Defendant that the Administration was committed after the Writ purchased which matter if the Defendant had pleaded Administration granted pendant the Writ Lawrence could not have had Iudgment to recover As where there are three Executors and debt is brought against two of them if they do not plead that matter in abatment of the Writ but plead c. or confess the Action so that the Plaintiff hath Iudgment to Recover that Recovery shall not bind a stranger who hath cause of Action against them but that he may well falsify it and yet it was said that in such Case the Defendant by the obtaining of the Letters of Administration had made the Writ good against her vid. 13 H. 4. Fitz. Executors 118. Administration committed before the Writ purchased shall abate the Writ brought against the Defendant as Executor but such Administration obtained
Close of wood called Frith-Close but as to the Park for the Defendant for that Frifth-Close was all excepted scil the wood and the soil And these words supra praemissa shall be intended such things which were demised and no other and by this Covenant Dy. 199. Hob. 173. 2 Cro. 172. Bridg. 117. the Lessee hath power to take the wood upon the other Lands although that the wood be excepted for the soile was demised and he shall not be punished in Trespass and put to his remedy by Action of Covenant against the Lessor And by Wray there is not any colour against the Plaintiff for the Frith-Close if not that the Defendant had averred that there is not any wood upon the other Lands not excepted but demised And this word Praemissa doth not extend by construction to this mentioned before being excepted but only to the things demised CLIX. Rivett and Rivetts Case Trin. 30 Eliz. In the Kings Bench. EDmund Rivett brought an Action upon the Case against Geoge Rivett and declared that where it was pretended by the Defendant that one R. made his Will and by the same devised certain Legacies to the Defendant and the Plaintiff upon that had sued in the Prerogative Court of Canterbury for to disprove the said Will And if he prosecutus fuisset he might have disproved the said Will and so defeated the Defendant of his pretended Legacies Assumpsit Owen 133 134. The Defendant in consideration that the Plaintiff ultra non procederet did promise to give to the Plaintiff one hundred pounds and averred that he had surceased his said suit And further declared that licet the Defendant ad hoc requisitusfuerit tali die anno c. It was moved in arrest of Iudgment that here is not any consideration for the Defendant hath not any means to compel the Plaintiff for to surcease his suit for there is not any cross promise set forth in the Declaration And although that he doth surcease his suit yet he may begin the same again and therefore the Plaintiff ought to have shewed in his Declaration a Release or other discharge of it as the case was 3 Eliz. reported by Bendloe A. was bound unto B. in twenty pounds and afterwards A. promised B. that in consideration the said A. should not be damnified by reason of the said Bond to give the said B. ten pounds and upon that promise B. brought an Action upon the Case and shewed that the Defendant was not damnified by reason of the said Bond. But it was adjudged that the Action was not maintainable upon that matter because that the Plaintiff did not shew in his Declaration that he had released or otherwise discharged the Defendant of the said Bond and so no consideration in the case Request Another Exception was because the request is not layed certainly but generally licet requisitus and doth not say by whom he was required or what thing to do And afterwards a Precedent was shewed Trinit 28 Eliz. rot 523. betwixt Smith and Smith An Assumpsit in consideration that the Plaintiff should not implead the Defendant upon Bond And the Plaintiff had Iudgment to recover And as to the request it ws said by Kempe that there are many Precedents that a Request generally layed is sufficient And afterwards in the principal Case Iudgment was given for the Plaintiff CXL Wheeler and Twogoods Case Trin. 30 Eliz. In the Kings Bench. WHeeler brought an Ejectione firmae against Twogood and it was found by special verdict that the Earl of Oxford was seised of the Manor of Hornely in which were divers Copy-holds And that the said Earl leased the said Manor to one Heywood for one and twenty years to begin two years after Except all casualties and profits of Courts which severally did not pass the value of six shillings eight pence And afterwards the Earl bargained and sold the Reversion to Anthony Cage And afterwards a composition was made betwixt Anthony Cage and the Lessee by which the Lessee did grant and covenant to and with the said A. Cage that he would permit the said Anthony Cage peaceably to hold the Courts and to take the profits to his own use Proviso that the said Lessee should have the Rents of the Copy-holders Free-holders And afterwards the Lessee granted over his Interest in the said Term. It was moved by Towse that by this Exception the Court Baron is not excepted nor severed from the Manor nor destroyed Covenant amounts to a grant for it is incident to the Manor and this Covenant betwixt the Lessee and Anthony Cage amounts to a grant of the Court to Anthony Cage See 44 E. 3. Fitz. Mannors de faits 144 29 E. 3. Burr 280. and see 37 H. 8. 1 E. 6. Br. Leases 60. That where I.S. Covenants concessit to I. N. that he shall have twenty acres of Land in B. for one and twenty years it is a good Lease for this word concessit is as strong as dimisit And it was moved that here the Earl leased for years to begin two years after and the Lessee being in possession doth continue it after the two years and afterwards before any entry the Lessee assignes over his Interest that the same is not a good grant but only a Right But by the whole Court the grant was holden good notwithstanding the said Exception And it was holden also that the Covenant ut supra was void for although that Anthony Cage hath authority to hold the Courts yet it ought to be in the name of the Lessee CLXI Stretton and Taylors Case Trin. 30 Eliz. In the Kings Bench. STretton did inform against Taylor upon the Statute of Vsury Information upon the Statute of Usury Retraxit by the Queens Attorney shall not bind the Informer 1 Cro. 138. 583. Qui sequitur tam pro Domina Regina quam pro seipso And the Queens Attorney entred upon it c. non vult prosequi and that was pleaded in Bar against the Informer for the whole And by Wray the same is not any Barr to the Informer But Popham the Attorney general said that by the favour of the Court he would maintain the authority of his place which his Predecessors had enjoyed for he said it cannot be found by any Record in this Court Common Pleas or the Exchequer that the Informer had proceeded where the Attorney General had made such an Entry for we have not used to do it without great consideration for if the Informer hath ceased to prosecute the Suit two or three Terms then we used to enter a Non vult prosequi For it is not reason that the Subject should be molested or attendant so long without just cause and it is not against Law that in personal Suits the act of one should prejudice the other And the Queen is the principal party in this Suit for the Replication shall be made in the name of the Queen only and not
otherwise it should be idle And afterwards Iudgment was given against the Queen CLXIII Piers and Leversuchs Case In Ejectione firmae Trin. 30 Eliz. In the Kings Bench. IT was found by special verdict that one Robert Leversuch Grand-father of the Defendant was Tenant in tail of certain Lands whereof c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff Robert Leversuch died W. his Son and Heir entred upon P. who re-entred W. demised without other words the Land to the said P. for life the remainder to Joan his Wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney therein to enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made livery to Joan. W. died Ed. his Son and Heir entred upon the Wife she re-entred and leased to the Plaintiff who upon an ouster brought the Action Heale When P. entred upon W. Leversuch the issue in tail he was a disseisor and by his death the Land descending to his Heir the entry of W. Leversuch the issue in tail was taken away 3 Cro. 222. Cook contrary P. by his entry was not a disseisor but at the Election of W. for when P. accepted such a deed from W. it appeareth that his intent was not to enter as a disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land. And Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas and it was the Case of Shipwith Grand-father Tenant in tail Father and Son The Grand-father died the Father entred and paid the Rent to the Lessor and died in possession and adjudged that it was not any descent for the paying of the Rent doth explain by what title he entred and so he shall not be a Disseisor but at the Election of another CLXIV Severn and Clerks Case Trin. 30 Eliz. In the Kings Bench. â—ts THe Case was that A. by his Deed Poll recited That whereas he was possessed of certain Lands for years of a certain Term By good and lawful conveyance he assigned the same to I. S. with divers Covenants Articles and Agreements in the said deed contained which are or ought to be performed on his part It was moved if this recital whereas he was be an Article or Agreement within the meaning of the condition of the said Obligation which was given to perform c. Gawdy conceived that it is an agreement For in such case I agree that I am possessed of it for every thing contained in the deed is an Agreement and not only that which I am bound to perform As if I recite by my deed that I am possessed of such an interest in certain Land and assign it over by the same deed and thereby covenant to perform all Agreements in the deed if I be not possessed of such Interest the covenant is broken And it was moved if that recital be within these words of the condition which are or ought to be performed on my part And some were of opinion that it is not within those words for that extends only in futurum but this recital is of a thing past or at the least present Recital 2 Cro. 281. Yyl. 206. Clench Recital of it self is nothing but being joyned and considered with the rest of the deed it is material as here for against this recital he cannot say that he hath not any thing in the Term. And at the length it was clearly resolved that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited CLXV Page and Jourdens Case Trin. 30. Eliz. In the Kings Bench. IN Trepass betwixt Page and Jourden the case was A Woman Tenant in tail took a Husband who made a Feoffment in Fee and died The Wife without any Entry made a Lease for years It was moved that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease A general entry amounts to a disseisin now the Lessor without any Entry is a Disseisor And it was resolved that by that Leasâ— the Free-hold is not reduced without an Entry CLXVI Havithlome and Harvies Case Trin. 30. Eliz. In the Kings Bench. Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin vers West HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process ad testificandum c. and doth not appear not having any impediment c. and shewed that process was served upon the Defendants Wife and sufficient charges having regard to her degree and the distance of the place c. tendred to her and yet she did not appear And it was found for the Plaintiff It was moved in arrest of Iudgment that the Declaration is not good because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process hath not shewed how damnified Also it was moved that a Feme Covert is not within the said Statute for no mention is made of a Feme Covert and therefore upon the Statute of West 2. cap. 25. If a Feme Covert fail of her Record she shall not be holden disseisseress nor imprisoned Also here the Declaration is that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband To these three Exceptions it was answered 1. That although the party be not at all damnified yet the penalty is forfeited 2. Feme Coverts are within the said Statute otherwise it should be a great mischeif for it might be that she might be the only witness And Feme Coverts if they had not been expresly excepted had been within the Statute of 4 H. 7. of Fines 3. The wife ought to appear therefore the tender ought to be to her And afterwards Iudgment was given for the Plaintiff CLXVII Dellaby and Hassels Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the Case 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant promised to give to him so much as should content him and also to give him all and every sum of money which he should expend there in his Affairs and further declared that he was contented to have twenty-pounds for his labour which the Defendant refused to pay And exception was taken to the Declaration because there is
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
and it shall be intended the Rent mentioned before See 21 H. 7. 30. b. Where Villa West shall be intended Villa praedict 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit and doth not shew in his Count that the same was the next Avoydance and yet the Count was holden to be good for so it shall be intended so here And he said It is not necessary that a Declaration be exactly certain in every point but if one part of it expound the other it is well enough And although the Identity of the Rent doth not appear by the word praedict yet it appeareth by other circumstances as by the days of payment c. and no other Rent can be intended And now this Exception is after Verdict and therefore favourably to be taken And afterwards Iudgment was given for the Plaintiff CCXLI. Musted and Hoppers Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumsit p 1 Cro. 149. That where he and one Atkinsal were joyntly and severally bounden by Obligation in fifty pounds to a stranger for the only Debt of the said Atkinsal which Atkinsal died and the Defendant married afterwards his Wife and so the Goods of Atkinsal came to his hands yet the Plaintiff the first day of May after which was the day of payment of the money paid five and twenty pounds for avoiding the Forfeiture of the penalty The Defendant as well in consideration of the Premisses as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum cum inde requisitus fuer And upon Non Assumpsit the Iury found the payment of the said sum and all the precedent matter And that the Defendant in consideration praemissiorum promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator It was moved in arrest of Iudgment that although here the Iury have found sufficient cause of Action yet if the Declaration be not accordingly the Plaintiff shall not have Iudgment Verdict And here the Plaintiff hath declared upon two Considerations and the Iury hath found but one scil if he peaceably enjoy the Goods of the Testator Also the Plaintiff declared of a simple promise and the Iury have found a Conditional Si gaudere potest c. And so the promise set forth in the Declaration is not found in the Verdict Gawdy was of opinion That the first consideration is good Consideration for the Plaintiff entred into Bond at the request of the Defendant and then the promise following is good But the second consideration is void scil That the Defendant shall enjoy the goods of the Testator c. as if it had been that he should enjoy his own goods And all the Iustices were clear of opinion That the Promise found by the Iury is not the promise alledged in the Declaration and so the issue is not found for the Plaintiff and so the judgment was stayed CCXLII. Creckmere and Pattersons Case Trin. 30 Eliz. In the Kings Bench. Rot. 568. Devise conditional 1 Cro. 146. 1 Roll. 410. 1 Inst 236. b. UPon a special Verdict the Case was this Robert Dookin was seised of certain Lands in Fee and having issue two Daughters devised the same to Alice his Eldest Daughter that she should pay forty pound to Ann her Sister at such a Day the money is not paid whereupon Ann entreth into the moiety of the Land And it was holden by the whole Court that the same is a good Condition and that the Entry of Ann was lawful It hath been adjudged That where a man devised his Land to his wife Proviso My will is That she shall keep my house in good Reparations that the same is a good Condition Wray A man deviseth his Lands to B. paying 40 l. to C. it is a good condition for C. hath no other remedy and a Will ought to be expounded according to the intent of the Devisor CCXLIII Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench. 1 Cro. 160. IN an Ejectione firmae upon a special Verdict the case was That W. was seised of the Land where c. and held the same by Copy c. and surrendred the same unto the use of E. for life the Remainder to Robert and A. in Fee Robert made a Lease to the Defendant E. Robert A. surrendred the said Land scil a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert and of another third part to the use of Robert for life the Remainder to E. the Remainder to Richard c. and of another third part to the use of A. and his Heirs After which Partition was made betwixt them and the Land where c. was allotted to Richard who afterwards surrendred to the use of the Plaintiff It was holden That Iudgment upon this verdict ought not to be given for the Plaintiff For the Lessee of Robert had the first possession and that Lease is to begin after the death of E. who was Tenant for life and when E. and he in the Reversion joyn in a surrender thereby the estate for life in that third part is extinct in Robert who hath the Inheritance and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common 1 Inst 200. betwixt whom Trespass doth not lye CCXLIV Bulleyn and Graunts Case Hill. 31 Eliz. In the Kings Bench. Copyhold UPon Evidence to a Iury the Case was That Henry Bulleyn the Father was seised of the Land being Copyhold and had Issue three Sons Gregory Henry andy Thomas and afterwards surrendred to the use of the last Will Devise 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life the remainder to the said Henry and the Heirs of his body begotten Joan died after admittance Henry died without Issue and afterwards the Lord granted it to Thomas and his Heirs who surrendred to the use of the Defendant then his Wife for life and afterwards died without Issue Gregory eldest Son of Henry Bulleyn entred c. Coke When the Father surrendreth to the use of his last Will thereby all passeth out of him so as nothing accrueth to the Heir nor can he have and demand any thing before admittance Wray The entry of Gregory is lawful and admittance for him is not necessary for if a Copyholder surrendereth to the use of one for life who is admitted and dieth he in the Reversion may enter without a new Admittance It was moved by Coke if this Estate limited to Henry be an Estate tail or a Fee conditional For if it be a Fee-simple conditional then there cannot be another Estate over but yet in case of a Devise an Estate may depend upon a Fee-simple precedent but not
of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Roâ—ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special maâ—ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae
Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Shâ—p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Doâ—mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes wâ—â—ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord
hold the Land discharged of the Copy-hold for her life and he put this case If the Lord of such a Manor taketh a Wife a Copy-holder for life dieth the Lord grants a Rent-charge out of the customary land and afterwards grants the said land by copy for life dieth the wife shall hold the land discharged of the Rent but the Copy-holder shall be charged and he put a difference where the Lord grants such Copy-hold in possession and where in Reversion for in the first case the Wife shall hold charged but contrary in the last And he cited the Case of one Slowman who being Lord of a Manor ut supra by his Will devised that his Executors should grant estates by Copy 2. Len 109. and died having a Wife the Executors make estates accordingly Dower discharged of a grant of Copy-hold the Wife in case of Dower shall avoid them Plowden contr the Lord of such a Mannor is bound by recognisance and afterwards a Copy-holder for life of the said Mannor dieth the Lord grants his Copy-hold de novo the said new Grantee shall hold his Copy-hold discharged of the Recognisance which Gawdy Iustice granted and by Wray if the Lord of such a Manor grants a Copy-hold for three lives takes a Wife the three lives end the Lord enters and keeps the lands for a time and afterwards grants them over again by copy and dieth the copy-holder shall hold the Land discharged of the Dower and this is a clear case for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband and by him in the case of the Earl of Northumberland 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland doth not make such an impediment as was intended in the condition there for it is by the custom and not by the act of the party And afterwards the same Term Iudgment was given for the Plaintiff that he and his Lessor should hold the lands discharged of the Dower XX. Fringe and Lewes Case Pasch 26 Eliz. In the Kings Bench. DEbt by Fringe against Lewes upon a Bond who pleaded Debt that the condition was that whereas the Defendant was Executor to one Morris Degle that if the Defendant should perform observe fulfil and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds to be distributed amongst them and also to the Church-wardens of the Parish ten pounds and to I S. three pounds and that he had distributed the said ten pounds to the Poor and that he had paid the ten pounds to the Church-wardens and as to three pounds Uncore priâ—â— a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it upon which there was a demurrer And as to the ten pounds to be distributed amongst the Poor the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed so the pleading of the first payment to the Church-wardens was sufficient without nameing of them See 42 E 3. brief 539. Scire facias out of a Recovery against Executors and the Writ was challenged because it was Scire facias Executors not naming their proper names It was holden to be no exception for Executors are as a corporation known in that they are Executors and as to the third part of the Plea scil always ready and yet is the plea is well enough for this Obligation the Condition of which being general to perform the Will c. Poph. 10â— hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request and not at the peril of the Defendant See 22 H 6. 57 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term the Court was clear of opinion and so delivered the Law to the Counsel on both sides that in this case the Legacies are to be paid upon request and not at the peril of the Executors in such manner as they were before the Obligation and afterwards Iudgment was given against the Plaintiff XXI Sir John Smith and Peazes Case Pasch 26 Eliz. In the Kings Bench. SIr John Smith brought Debt upon an Obligation against Peaze who pleaded that the Bond was upon condition to perform covenants contained in an Indenture and shewed what and that he had performed them the Plantiff assigned the breach of one covenant that where the Plaintiff had leased to the Defendant for years certain messuages by the same Indenture the Defendant by the same Indenture did covenant to repair all the said Messuages Covenant alia quam quae appunctuatae forent divelli per script dicti Johannis Smith and shewed further that the Defendant had not repaired the said Messuages to him demised as aforesaid and averred that the said house in which the breach of the covenant is assigned non fuit durante termino praedicto appunctuata divelli and upon that matter of reparation they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment that the Averment in the Replication was not sufficient for the Lease was made in November to begin the Michael after Averment and it might be that the Messuage in the not repairing of which the breach of the covenant is assigned was appointed to be pulled down scil divelli before the Term for years began and then the Defendant is not bound to repair it and then the breach of the covenant is not well assigned and so the Averment doth not answer the exception and because this clause alia quam is in the body of the Covenant it ought to be satisfied by him who pleads it scil by him who assigns the breach in the Covenant in which the exception is contained As by the Lord Dyer in his argument in the argument of Stowels Case reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use he ought to plead that Cestuy que use at the time of the Feoffment was of full age sanae memoriae c. for that is within the purview contr upon the Statute of 4 H. 7. in pleading of a Fine for that is in a clause by it self which conceit of Plowden the Lord Wray denyed to be Law for he said he that pleads the Feoffment of Cestuy que use or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor or Conusor at the time of the Feoffment or Fine levyed was of full age c. but he who comes in by such Fine 〈◊〉 21 or Feoffment shall shew the same for his own advantage And
at last after many motions it was resolved by all the Iustices Averment â—here superâ—luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
of the said Manor of Hockley seased the same to Edmund Terrel for years exceptis Reservat grossis arboribus super praemissis crescentibus existentibus Proviso Conditions that if the said Lessee his Executors or Assigns shall do any voluntary Wast in any of the Premisses before demised that then the said demise shall be void and accounted none in Law the said King and Queen after that lease grant the Reversion to the Lord Rich and his Heirs the Lessee cuts down certain great Trees which at the time of the demise were not great but little Trees but after tractu temporis became great and at the time of the cutting down were great upon whom the Lady Rich Wife and Widow of the said Lord Rich being Tenant in Dower the said Manor inter alia being assigned to her in Dower did enter for the condition broken It was moved If the exception did extend to the trees which at the time of the demise were but little trees but afterwards at the time of their cutting down were become great for if the exception do extend to such Trees then upon the matter they were not demised and if so then wast cannot be assigned in the cutting down of them and then by the cutting of them the condition is not broken But if the exception shall be construed to extend to such Trees only which were great Tempore dimissionis then those Trees in which c are demised and by the cutting down of them the condition is broken And the Lord Anderson was of opinion that the exception did extend to Trees which at any time dimissionis praedict became great Where the Tenant in Dower shall take advantage of a condition although at the time of the demise they were but little so as upon the matter such Trees were never demised and so the condition doth not extend to them otherwise it should be if the words had been modo crescentibus existentibus Another matter was moved because if the Lady Rich being Tenant in Dower and so in by the Law not by the party and so not privy nor as Assignee could enter for the condition broken And the Court was clear of opinion that because that the words of the condition are Quando dimissio praedict erit vacua c. and no clause of reentry is reserved so that privity is not requisite the Lady Rich shall take advantage of the condition 11 H. 17. Where the words of a Lease are that upon the not going to Rome that the Lease shall cease it was holden that the Grantee of the Reversion by the common Law should take advantage of such a condition contrary where the condition is conceived in words of re-entry 21 H. 7. 12. It was moved further that here is not any voluntary wast in the Lessee as to the condition Dyer 281. Owen 93. because done by a stranger and not by the Lessee himself and for that the condition is not broken only the Lessee is subject unto an Action of Wast otherwise if the Lessee had expresly commanded the Vendee to cut them down or had given to him express authority The sale was All his Woods growing c. LXXX Gill and Harewoods Case Pasch 29 Eliz. In the Common Pleas. GIll brought an Action upon the Case against Harewood and declared Assumpsit that where the Defendant was endebted to the Plaintiff in such a â—um and shewed how the Defendant in consideration that the Plaintiff per parvum tempus deferret diem solutionis c. did promise to pay And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of Iudgment that here is not any consideration for no time is limited for the forbearance but generally parvum tempus which cannot be any commodity to the Defendant for the same may be but punctum temporis c. But the exception was not allowed for the Debt in it self is a sufficient consideration LXXXI Pasch 29 Eliz. In the Common Pleas. 2 Co. 74. 5 Co. 38. 8 Co. 155. FEnner Serjeant would have drawn a Fine which was by Dedimus Potestatem and the Fine was to two and their heirs but the Court would not receive such Fine for the incertainty of the Inheritance which always in case of Fine ought to be reposed in a person certain and not left to uncertainty of the Survivor and the said Serjeant prayed presently that the said Fine be received at the peril of the Conusees but the same was denied him by the whole Court. LXXXII Mascals Case Mich. 29 30 Eliz. In Communi Banco Covenant 2 Cro. 644. MAscal leased a House to A. for years by Indenture by which A. covenanted with Mascal to repair the House Leased and that it should be lawful for Mascal his Heirs and Assigns to enter into the House to see in what plight for matter of Reparation the said House stood and if upon any such view any default should be found in the not repairing of it and thereof warning be given to A. his Executors c. Then within four months after such warning such default should be amended the House in the default of the Lessee became ruinous Mascal granted the Reversion over in Fee to one Carre who upon view of the House gave warning to A. of the default c. which is not repayred upon which Carre as Assignee of Mascal brought an Action of Covenant against A. It was moved by Fenner Serjeant that the Action did not lye because the House became ruinous before his interest in the Reversion But the opinion of the whole Court was against him for that the Action is not conceived upon the ruinous estate of the House or for the committing of Waste but for the not repayring of it within the time appointed by the Covenant after the warning so as it is not material within what time the House became ruinous but within what time the warning was given and the default of the Reparation did happen LXXXIII Mich. 29 30 Eliz. In Communi Banco Dower IN a Writ of Dower brought by a Woman of the third part of certain Lands c. The Tenant pleaded That the Lands of which Dower is demanded are of the nature of Gavel-kind and that the custom of such Land is that Dower ought to be demanded of the moity of it and not of the third part upon which the Demandant did demur And the opinion of Windham and Anderson Iustices was That such a Woman of such Land might at her pleasure demand her Dower either according to the Custom 1 Cro. 825. Poph. 133. or according to the common Law for by Anderson the common Law was before the Custom quod quaere And by Windham if the Demandant here recover her Dower according to the common Law yet if she taketh another Husband she shall lose her Dower as if she had been endowed according to the Custom Coke an Apprentice
because without summons but where summons issueth and the same is entred upon the Roll there may the vouchee at the Return appear in person or by Attorny at his Election And that was the clear opinion of all the Iustices and also of the Prothonotaries CV Keys and Steds Case Mich. 29 30 Eliz. In Communi Banco IN a Formedon by Keys against Sted the Case was the Sted and his Wife were Tenants for life Formodon 2 Len. 9. the Remainder over to a stranger in Fee and the Writ of Formedon brought against Sted only who made default after default whereupon came his Wife and prayed to be received to defend her right which was denied her by the Court for this Recovery doth not bind her and it is to no purpose for her to defend her right in that Action which cannot here be impearched Whereupon he in the Remainder came and prayed to be received and the Court at first doubted of the Receit forasmuch as if the Demandant shall have Iudgment to recover he in the Remainder might falsify the Recovery because his estate upon which he prayeth to be received doth not depend upon the estate impleaded scil a sole estate whereas his Remainder doth depend upon a joynt estate in the Husband and Wife Falsifier of Recovery not named in the Writ But at the last notwithstanding the said Exception the Receit was granted See 40 E. 3. 12. CVI. Liveseys Case Mich. 29 30 Eliz. In Communi Banco Writ of Right IN a Writ of Right against Thomas Livesey of the Mannor of D. de duabus partibus Custodiae Forrestae de C. the Tenant did demand the view and he had it and return was made and now the Writ of Habere facias visum was viewed by the Court and it was Visum Manerii duarum partium Custodiae c. And it was holden by the Court not to be a sufficient view for the Forrest it self ought to be put in view scil the whole Forrest View and not duae partes tantum as where a Rent or Common is demanded the Land out of which the Rent or Common is going ought to be put in view and there a Writ of Habere facias visum de novo issued forth CVII Germys Case Mich. 29 30 Eliz. In Communi Banco GErmy brought Debt upon a Bond against A. as Executor Debt 2 Len. 119. and the Case was That the Testator of A. by his Will did appoint certain Lands and named which should be sold by his Executors and the moneys thereof arising distributed amongst his Daughters when they have accomplished their ages of one and twenty years the Lands are sold if the moneys thereof being in the hands of the Executors until the full age of the Daughters shall be assets to pay the debts of the Testator And by the clear opinion of the whole Court Assets Post 224. the same shall not be assets for that this money is limited to a special use CVIII Mich. 29 30 Eliz. In Communi Banco IN an Action of Debt upon an Obligation the Defendant saith that the Plaintiff shall not be answered for he is out-lawed and shewed the Outlawry in certain by the name of I. S. of D. in the County of c. The Plaintiff shewed that at the time of the sute begun against I.S. upon whom the Out-lawry was pronounced the said I.S. now Plaintiff was dwelling at S. absque hoc that he was dwelling at D. Vide 21 H. 7. 13. And it was holden a good Replication to avoid the Out-lawry without a Writ of Error by Anderson 10 E. 4. 12. For if he were not dwelling at D. then he cannot be intended the same person See 39 H. 6. 1. CIX Mich. 29 30 Eliz. In Communi Banco IT was agreed by the whole Court and affirmed by the Prothonotaries That if in Account the Defendant be adjudged to account and be taken by a Capias ad computandum and set to mainprize pendent the Account before the Auditors and doth not keep his day before them that now a Capias ad computandum de novo shall issue forth against him CX Glosse and Haymans Case Mich. 29 30 Eliz. In the Common Pleas. JOan Glosse brought an Action of Trespass vi armis Trespass vi armis against a Servant for carrying away his Masters goods Owen 52. Morâ— 248. against John Hayman who pleaded the general Issue and the Iury found this special matter That the Plaintiff was a Grocer in Ipswich and there held a Shop of Grocery quod illa reposuit fiduciam in the Defendant to sell the Grocery Wares of the Plaintiff in the said Shop And further found that the said Defendant being in the said Shop in form aforesaid cepit asportavit the said Wares and did convert them c. It was moved in Arrest of Iudgment that this Action vi armis upon this matter doth not lie but rather an Action upon the Case But the Court was clear of opinion that the Action doth well lie for when the Defendant was in the Shop aforesaid the Goods and Wares did remain in the custody and possession of the Plaintiff her self And the Defendant hath not any Interest possession or other thing in them and therefore if he entermeddle with them in any other manner than by uttering of them by sale according to the authority to him committed he is a Trespassor for he hath not any authority to carry the Wares out of the Shop not sold but all his authority is within the Shop And Rodes put the Case of Littleton 25. If I deliver my Sheep to another to manure his Land or my Oxen to plow his Land and afterwards he kills them I shall have an Action of Trespass against him And afterwards Iudgment was given for the Plaintiff CXI Martin and Stedds Case Mich. 29 30 Eliz. RIchard Martin Alderman of London brought an Action upon the Case against Stedd and declared That whereas the Queen by her Letters Patents dated the 27. of August anno 24. of her Reign had granted to the Plaintiff the Office of Master of the Mint through all England to exercise the said Office secundum formam quarundam Indent betwixt the said Queen and the said Plaintiff conficiendam and that in January following the said Indenture was made by which it was agreed betwixt the said Queen and the Plaintiff that the money in posterum should be made in such manner c. according to the true Standard and declared that he had duly and lawfully made all the money according to the said Standard Yet the Defendant machinans c. had slanderously spoken and given out speeches in these words Mr. Martin hath not made the money as good and fine as the Standard by an half penny in the ounce and so he hath saved four thousand pounds It was objected against this Declaration by Walmesley Serjeant that here the Plantiff hath declared upon
And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he â—ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound
the limitation for the life of the Wife cannot extend to both And as to the Book of 24 H. 8. Br. Forfeiture 87. 3 Cro. 167 168. Tenant for life aliens in Fee to B. Habendum sibi haeredibus suis for Term of the life of the Tenant for life the same is not a forfeiture for the whole is but the limitation of the estate And afterwards it was adjudged that it was a forfeiture Gawdy continuing in his former opinion And VVray said that he had conferred with the other Iudges of their House and they all held clearly that it is a forfeiture CLXXII Toft and Tompkins Case Trin. 30 Eliz. In the Kings Bench. Rot. 528. UPon a special Verdict the case was that the Grand-father Tenant for life the Remainder to the Father in tail Discontinuance 1 Cro. 135. that the Grand-father made a Feoffment in fee to the use of himself for life the Remainder to the Father in Fee And afterwards they both came upon the Land and made a Feoffment to Tompkins the Defendant Coke There is not any discontinuance upon this matter for the Father might well wave the advantage of the forfeiture committed by the Grand-father then when the Father joyns with the Grand-father in a Feoffment the same declares that he came upon the Land without intent to enter for a forfeiture It was one Waynmans Case adjudged in the common Pleas where the Disseissee cometh upon the Land to deliver a Release to the Disseissor that the same is no Entry to revest the Land in the Disseissee Then here it is the Livery of the Tenant for life and the grant of him in the Remainder and he in the Remainder here was never seised by force of the tail and so no discontinuance Godfrey Here is a Remitter by the Entry and afterwards a discontinuance for by the Entry of both the Law shall adjudge the possession in him who hath right c. Gawdy This is a discontinuance for when the Father entreth ut supra he shall be adjudged in by the forfeiture and then he hath gained a possession and so a discontinuance for both cannot have the possession Clench The intent of him in the Remainder when he entred was to joyn with the Grand-father and when his intent appeareth that the estate of the Grand-father and his own also shall passe that doth declare that he would not enter for the forfeiture Shute agreed with Gawdy CLXXIII Broake and Doughties Case Hill. 31 Eliz. Rot. 798. Trin. 30. Eliz. In the Kings Bench. AN Action upon the Case for words Action upon the Case for words 1 Cro. 135. viz. Thou wast forsworn in the Court of Requests and I will make thee stand upon a Stage for it It was found for the Plaintiff It was moved in arrest of Iudgment that the Action will not lye for these words for he doth not say that he was there forsworn as Defendant or witness And Trin. 28 Eliz. betwixt Hern and Hex thou wast forsworn in the Court of Whitchurch And Iudgment given against the Plaintiff for the words are not Actionable and as to the residue of the words I will make thee stand upon the Stage for it they are not Actionable as it was adjudged between Rylie and Trowgood If thou hadst Iustice thou hadst stood on the Pillory and Iudgment was given against the Plaintiff Daniel contrary thou wast forsworn before my Lord chief Iustice in an Evidence these words are Actionable for that is perjury upon the matter and between Foster and Thorne T. 23 Eliz. Rot. 882. Thou wast falsly forsworn in the Star-Chamber the Plaintiff had Iudgment for it shall be intended that the Plaintiff was Defendant or a Deponent there And yet the words in the Declaration are not in the Court of Star-Chamber Wray Thou art worthy to stand upon the Pillory are not Actionable for it is but an implication but in the words in the Case at the Bar there is a vehement intendment that his Oath was in the quality of a Defendant or Deponent which Gawdy granted In the Case 28 Eliz. Thou wast forsworn in Whit-Church Court there the words are not actionable for that Court is not known to you as Iudges And it may be it is but a great House or Mansion house called Whit-church Court But here in the principal case it cannot be meant but a Court of Iustice and before the Iudges there juridice and the subsequent words sound so much I will make thee stand upon a Stage for it And afterwards Iudgment was given for the Plaintiff CLXXIV Gatefould and Penns Case Trin. 30 Eliz. In the Kings Bench. Prescription for tythes 1 Cro. 136. 3 Len. 203 265. Antea 94. GAtefould Parson of North-linne libelled against Penne in the spiritual Court for tythes in Kind of certain pastures The Defendant to have prohibition doth surmise that he is Inhabitant of South-linne and that time out of mind c. every Inhabitant of South-linne having pastures in North-linne hath paid tythes in Kind for them unto the Vicars of South-linne where he is not resident and the Vicar hath also time out of mind payed to the Parson of North-linne for the time being two pence for every acre Lewis This surmise is not sufficient to have a prohibition for upon that matter Modus Decimandi shall never come in question but only the right of tythes if they belong to the Parson of North-linne or to the Vicar of South-linne and he might have pleaded this matter in the spiritual Court because it toucheth the right of tythes as it was certified in the Case of Bashly by the Doctors of the Civil Law. Gawdy This prescription doth stand with reason for such benefit hath the Parson of North-linne if any Inhabitant there hath any Pastures in South-linne And afterwards the whole Court was against the prohibition for Modus Decimandi shall never come in debate upon this matter but who shall have the tythes the Vicar of South-linne or the Parson of North-linne and also the prescription is not reasonable CLXXV Gomersal and Bishops Case Hill. 31 Eliz. Rot. 175. Trin. 30 Eliz. In the Kings Bench. 1 Cro. 136. BIshop libelled in the Spiritual Court for tythe Hay the Plaintiff Gomersal made a surmise that there was an agreement betwixt the said parties and for the yearly sum of seven shillings to be paid by Gomersal unto Bishop Bishop faithfully promised to Gomersal that Gomersal should have the tythes of the said Land during his life And upon an Attachment upon a Prohibition Gomersal declared that for the said annual sum Bishop leased to the Plaintiff the said tythes for his life And upon the Declaration Bishop did demur in Law for the variance between the Surmise and the Declaration for in the Surmise a promise is supposed for which Gomersal might have an Action upon the Case and in the Declaration a Lease But note that the Surmise was not entred in the Roll but was recorded
and that he would name in it one B. for special Bailiff and promised the Plaintiff that if B. arrested A. by force of the said Capias and suffered him to escape That he would not sue the Plaintiff for the escape and shewed further That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who arrested A. accordingly and afterwards suffered him to escape and the Defendant notwithstanding his promise aforesaid sued the Plaintiff for the said escape And it was found for the Plaintiff It was moved in arrest of Iudgment That the promise is against the Law to prevent the punishment inflicted by the Statute of 23 H. 6. upon the Sheriff and it is meerly within the Statute and so the promise void Cooke The same is not any Bond or promise taken of the Prisoner nor of any for him and therefore it is not within the Statute as it was in Danvers Case Wray A promise is within the Statute as well as a Bond but the Statute doth not extend but where the Bond or promise is made by the Prisoner or by any for him And after Iudgment was given for the Plaintiff CLXXXI Mounson and Wests Case Hill. 30 Eliz. In the Common Pleas. IN Trespass by Mounson against West the Iury was charged and evidence given and the Iurours being retired into a house for to consider of their evidence Owen 38. Plowd 520. Co. 1 Inst 227. Dyer 37. they remained there a long time without concluding any thing and the officers of the Court who attended them seeing their delay searched the Iurours if they had any thing about them to eat upon which search it was found that some of them had figs and others pippins for which the next day the matter was moved to the Court and the Iurours were examined upon it upon Oath And two of them did confess that they had eaten figs before they had agreed of their verdict and three other of them confessed That they had Pippins but did not eat of them Where Jurors shall be fined for eating before verdict but it shall not make void the verdict and that they did it without the knowledge or Will of any of the Parties And afterwards the Court set a fine of five pound upon each of them which had eaten and upon the others who had not eaten forty shillings And they would advise if the verdict was good or not for the Iury found for the Plaintiff And afterwards at another day the matter was moved and Anderson was of opinion That notwithstanding the said Misdemeanor of the Iury the verdict was good enough for these victuals were not given to them by any of the Parties to the action nor by their means or procurement Rhodes thought the contrary because some of the Iurors had eaten and some not contrary if all of them had eaten See 14 H. 7. 1. A Iury was charged and before their verdict they did eat and drink and it was holden that upon that Misdemeanor their verdict was void for which cause a venire facias de novo was awarded And it was prayed by the Counsel of the Defendant West That the said Misdemeanor so found by examination might be entred of Record which the Court granted And afterwards at another day the matter was moved again And upon great advice and deliberation and conference with the other Iudges The verdict was holden to be good notwithstanding the Misdemeanor aforesaid See 24 E. 3 24. 15 H. 7. 1. 2 H. 7. 3. 29 H. 8. 37. and 35 H. 8. 55. where it was holden where the eating and drinking of the Iury at their own costs is but fineable but if it be at the costs of the parties the verdict is void And see Book of Entries 251. The Iurors after they went from the Bar ad seipsos of their verdict to be advised comederunt quasdam species sci raisins dates c. at their own costs as well before as after they agreed of their verdict And the Iurors were committed to prison but their verdict was good although the verdict was given against the King. CLXXXII Hunt and Gilborns Case Hill. 30 Eliz. In the Common Pleas. IN Dower brought by Hunt and his Wife against Gilborn The Defendant pleaded That the Land of which Dower is demanded Dower of Gavelkind by Custom Ante. 62 63. 1 Cro. 825. is of the nature of Gavelkind and that the custom is That in Dower of Land of such nature The Wife ought to be endowed of the moity of such Land Tenendum quam diu non maritata remanserit non aliter upon which plea in Bar the Demandants did demur in Law and the Lord Anderson was of opinion That the Custom is strongly pleaded against the Dower in the affirmative with a Negative non aliter and that is confessed by the Demurrer That Dower out of such Land ought to be so allowed and so demanded and in no other manner And by Periam If those words non aliter had not been in the Plea yet the Demandants should not have Iudgment For Dower by moiety non maritatis is as proper in case of Gavelkind as Dower of the third part of Land at the Common Law and as the descent in such case of Lands to all the Sons And afterwards Iudgment was given against the Demandants CLXXXIII The Case of the Provost and Scholars of Queens Colledge in Oxford Hill. 30. Eliz. THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital or Meason de Dieu in Southampton And they make a Lease of the Land parcel of the said Hospital to one Hazel for Term of years by the name Praepositus Socii Scholares Collegii reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that lease It was found for the Plaintiffs and it was objected in arrest of Iudgment That the word Gardianus ought to be Gardiani for the Colledge doth consist of many persons and every person is capable and it is not like unto Abbot and Covent But the whole Court was of opinion that the Exception was not good but that as well the Lease as also the Declaration was good for the Colledge is one body and as one person And so it is good enough Gardianus CLXXXIV Wooden and Hazels Case Hill. 30 Eliz. In the Common Pleas. IN an Ejectione betwixt Wooden and Hazel they were at issue upon Not Guilty and a Venire facias awarded returnable Tres Trinit And the Essoin adjudged and adjorned by the Plaintiff until Michaelmas Term Nisi Prips And at next Assises the Plaintiff not withstanding that Essoin and the adjorning of it procured a Nisi Prius by which it was found for the Plaintiff And now it was moved in Court for the stay of Iudgment because no Nisi Prius ought to issue in the Case Essoin For the Essoin was adjudged and adjorned
until Michaelmas Term by the Plaintiff himself And Leonard custos Brevium said That the words of the Statute of Westminster 2 cap. 27. Postquam aliquis posuerit se in aliquem inquisitionem ad proximum diem allocet ei esson Imports That the Essoin shall not be taken at the return of the Process against the Iury although the Iury be ready at the Bar. Anderson was of opinion That the awarding of the Nisi Prius ut supra is but a misawarding of the Process and then relieved by the Statute And afterwards the case being moved at another day 1 Cro. 367. the Court was clear of opinion That no Nisi Prius ought to issue forth in this case because that the Plaintiff himself by the adjorning of the Essoin cast by the Defendant until Michaelmas Term had barred himself of all Proceedings in the mean time But afterwards it was surmised to the Court on the Plaintiffs part that he the Defendant was not essoined for the name of the Defendant is Edward Hazel and it appeared upon the tryal that Edward Russel was essoined Amendment but no Edward Hazel and then if no Essoin no adjornment and then the Plaintiff is at large c. and may proceed c. But the Remembrance of the Clark was Edward Hazel as it ought to be and yet it was holden of no effect being in another Term And afterwards the Counsel of the Defendant prayed that the Roll in hac parte be amended according to the Remembrance of the Clark But the Court utterly denied that for no Statute gives amendment but in the affirmance of Iudgments and Verdicts and not in defeazance of Iudgments or Verdicts and afterwards it was resolved by the whole Court That Iudgment be entred for the Plaintiff CLXXXV Sir Henry Goodiers Case Hill. 32 Eliz. Intratur M. 29 30. Eliz. Rot. 2116. IN an Ejectione firmae the Case was Sir Ralph Rowlet possessed of certain Lands for years made his Will and ordained Sir Nicholas Bacon Renouncing of an Executorship Owen 44. Office of Executors 54. 1 Cro. 92. 9 Co. 37. Keeper of the great Seal of England Sir Robert Catline Lord Chief Iustice of England Iustice Southcote and Gerrard Attorney General his Executors and died And afterwards the said persons named Executors sent their Letters to the Chief Officer of the Prerogative Court as followeth Whereas our Loving friend Sir Ralph Rowlet Knight lately deceased made and ordained us Executors of his last Will and whereas our business is so great that we cannot attend the execution of the said Will Therefore we have thought good to move the bearer hereof Mr. Henry Goodier one of the Co-heirs of the said Sir Ralph to take upon him the execution of the said Will. And therefore we pray you to grant Letters of Administration in as ample manner as the justice of the cause doth require and afterwards an Entry was made in this manner in the same Court Executores Testamenti praedict executionem inde super se assumere distulerant adhuc distarent And upon that the said Goodier obtained Letters of Administration and granted a Lease to A. for years of which the said Sir Ralph Rowlet died possessed And afterwards Sir Robert Catline claiming as Executor granted the same Term to another c. and all the matter of difficulty was If this Letter written by the Executors be a sufficient Renunciation of the Executorship in Law so as the Executors cannot afterwards claim or use the said authority c. 2. If the Entry of the said Renuntiation be sufficient and effectual And it was argued by Ford one of the Doctors of the Civil Law That as well the Renunciation as the Entry of it is good and sufficient in Law so that none of the Executors could not after entermeddle And he said That in their Law there is not any certain form of Renuntiation but if the meaning and intention of the Renouncer appeareth it is sufficient without any formal Terms of Renunciation And he put many rules and Maximes in their Law to the same purpose Ego dico me nolle esse haeredem are sufficient words to such intent Non vult haeres esse quin ad aliam transferre debet haereditatem Qui semel repudiavit haereditatem non potest eam repetere Quod semel placuit post displicere non potest Variatio non permittitur in contractibus So that after the Executors have signified to the Officer of their Court their pleasure to renounce the Execution of the Will they cannot afterwards entermeddle nam interest reipublicae ut dominia rerum sint in certo And as to the Entry of the said Renunciation inter acta Curiae distulerint et adhuc distarent that was the error of the Clark. And it is Rule in our Law veritas rerum gestarum non vitiatur Errore factorum And the Lord Anderson demanded of the said Doctor how far those words haeres et haereditas did extend in their Law who answered That haereditas comprehends all Chattels as well real as personal Inheritance as well as Chattels for by their Law Haereditas nihilaliud est quam successio in universum jus quod defunctus habuit tempore mortis suae And afterwards the Court gave day to the other party to hear an Argument of their side but the case was so clear That no Professor of the Civil Law would be retained to argue to the contrary And afterwards Iudgment was given That the said Renunciation and the entry of it was sufficient CLXXXVI Littleton and Pernes Case Mich. 30 Eliz. In the Common Pleas. Debt LIttleton brought Debt upon an Obligation against Humphry Pernes who pleaded that the said Obligation was endorced with this condition for the performance of certain Articles and Covenants contained in certain Indentures by which Indentures the Plaintiff first covenanted that Edward brother of Humphry should enjoy such Land until the Feast of Michaelmas next following rendring such Rent at the end of the said Term and the said Humphry covenanted that the said Edward at the Feast aforesaid should surrender quietly and peaceably the said Lands to the Plaintiff and that the said Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have in the mean time free ingress egress c. at his will and pleasure with his servants ploughs c. And as to that Covenant the Defendant pleaded Quod permisit querentem habere intrationem exitum c. in tales terras quales tunc jacebant secundum consuetudinem patriae c. And Exception was taken to this plea because he hath not shewed in certain which Lands they were which then then did lie Frecy according to the custom of the Country which Anderson allowed of but Walmsly strongly insisted to the contrary And he confessed that where an Act is to be done according to a Covenant he who pleads the performance of it ought to
Curiam the same is no offence in the Court but it was an ill act of the Master of the Rolls For we oftentimes have persons here upon Habeas Corpus who are also arrested by Process out of the Exchequer or of the Common Pleas but we will not discharge them before they have found Sureties for their appearance c. and so the said Courts use to do reciprocally and we cannot punish the Sheriff for the Hebas Corpus was first returnable before the Latitat but the party may have an action against the Sheriff but we will speak with the Master of the Rolls c. and afterwards Baill was put in But afterwards another Exception was taken to the Return scil a custodia nostra exoneratus fuit which might be intended as to the Cause in the Chancery only and not for the Cause here for he hath not alledged that he hath not alledged That he was committed to any other in custody and for that cause day was given to the Sheriff to amend his Return CCII. Upton and Wells Case Trin. 31. Eliz. In the Kings Bench. IN an Ejectione firmae by Upton against Wells Iudgment was given for the Plaintiff and upon the habere facias possessionem The Sheriff retuned that in the Execution of the said Writ he took the Plaintiff with him and came to the house recovered and removed thereout a woman and two children which were all the persons which upon diligent search he could find in the said house and delivered to the Plaintiff peaceable possession to his thinking and afterwards departed and immediately after three other persons which were secretly lodged in the said house expulsed the Plaintiff again 2 Len. 12 13. Latch 165. upon notice of which he returned again to the said house to put the Plaintiff in full possession but the other did resist him so as without peril of his life and of them that were with him in company he could not do it And upon this Return the Court awarded a new Writ of execution for that the same was no Execution of the first Writ and also awarded an Attachment against the parties CCIII Marsh and Astreys Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 175. MArsh brought an Action upon the Case against Astrey and declared That he had procured a Writ of Entry sur disseisin against one A. and thereupon had a summons for Lands in London and delivered the said Summons to Astrey being Vnder-Sheriff of the same County virtute cujus the said Astrey summoned the said A. upon the Land but notwithstanding that did not return the said Summons Astrey pleaded Not guilty And it was tryed in London where the action was brought for the Plaintiff and it was moved by Cook in arrest of Iudgment That here is a mis-trial for this issue ought to be tryed in the County where the Land is because that the cause is local but the Exception was not allowed for the action is well layed in London and so the trial there also is good Trial. Another Exception was moved because the action ought to be against the Sheriff himself and not against the Vnder-Sheriff for the Sheriff is the Officer to the Court and all Returns are in his Name and I grant that an action for any falsity or deceit lyeth against the Vnder-Sheriff as for embesseling rasing of Writs c. but upon Non feasans as the Case is here the not Retorn of the Summons it ought to be brought against the Sheriff himself See 41 E. 3. 12. And if the Vnder-Sheriff take one in Execution and suffereth him to escape debt lyeth against the Sheriff himself Another Exception was taken because the Declaration is that the said Astrey Intendens machinans ipsum querent in actione sua praedict prosequend impedire c. did not retorn the said Summons but doth not say tunc exist Vnder-Sheriff Snag contrary If a Baily Errant of the Sheriff take one in Execution and he suffer him to escape an action lieth against the Baily himself And that was agreed in the Case of a Baily of Middlesex and Sir Richard Dyer Sheriff of Huntington and his Vnder-Sheriff who suffered a Prisoner to escape the action was brought against the Vnder-Sheriff for it may be the Sheriff himself had not notice of the matter because the Writ was delivered to the Vnder-Sheriff and he took a Fee for it and therefore it is reason that he shall be punished As if a Clerk in an Office mis-enter any thing he himself shall be punished and not the Master of the Office because he takes a fee for it But if the Retorn made by the Baily be insufficient Then the Sheriff himself shall be amerced but in the principal case it is clear That the action lieth against the Vnder-Sheriff if the party will and such was the opinion of Gawdy and Clench As to the other matter because it is not alledged in the Declaration That the Defendant was Vnder-Sheriff at the time the Declaration is good enough notwithstanding that for so are all the Presidents and if the Defendant were not Vnder-Sheriff the same shall come in of the other side See 21 E. 4. 23. And afterwards in the principal Case Iudgment was given for the Plaintiff CCIV. Hedd and Chaloners Case Trin. 31 Eliz. In the Common Pleas. 1 Cro. 176. 2 Roll. 42. 176. IN an Ejectione firmae by Hedd against Chaloner upon a Demise for years of Jane Berd It was found by especial Verdict That William Berd was seised in fee made a Feoffment to the use of himself for life afterward to the use of his two Daughters Joan Alice in fee and died and Joan entred into the Land and by Indenture by the name of Jane Berd leased the same to the Plaintiff for three years And it was further found That Joan intended in the Feoffment and Jane who leased are one and the same person Wray It hath been agreed here upon good advice and Conference with Grammarians that Joan and Jane are but one Name And Women because Joan seems to them a homely name would not be called Joan but Jane But admit that they were several Names Then he and Gawdy were of opinion it should not be good But afterwards it was said by Gawdy That this action is not grounded meerly upon the Indenture but upon the Demise and that is the substance and the Indenture is but to enforce it sci the lease 44 E. 3. 42. Another matter was moved here the remainder was limited to Joan and Alice in fee by which they are Ioint Tenants and then when one of them enters the same vests the possession in them both Then by the demise of Joan a moyety passeth only to the Plaintiff Wray Here the Term is incurred and the Plaintiff is to recover damages only and no title at all is found for the Defendant and so there is no cause but that Iudgment should be given for
fide non pro usura and that Issue was tryed in the County of Stafford and was found for the Plaintiff And it was moved in arrest of Iudgment that that Issue ought to be tryed in London where the contract was made Gawdy conceived that the tryal is well As 8 E. 3. 8. In debt upon an Obligation in London the Defendant pleaded that the Obligation was made by duresse at York the same Issue shall be tryed at York At another day the case was put more certain scil that the contract was made at W. in Stafford-shire by which it was agreed that for a Horse and two Tun of Iron the Plaintiff should have for them and the forbearing of the mony for such a small time fifty pounds whereas in truth they were but of the value of forty pounds Tryal and that the said Bond was made for the payment of the said fifty pounds Cook The Issue is well tryed for the ground of the matter is the usurious contract and those of Stafford-shire may better know it than they of London And according to this Tryal it hath been before adjudged H. 28. Eliz. rot 209. Betwixt Sybthorpe and Turner And P. 31. Eliz. rot 303. betwixt Payne and Wilkenson where the Issue was absque hoc that it was a corrupt agreement but the pleading was ut supra And afterwards Iudgment was given for the Plaintiff CCVII. The Queen and Buckberds Case Trin. 36 Eliz. In the Kings Bench. THe Queen recovered against Buckberd in a Quare Impedit Quare Impedit 1 Cro. 162. and thereupon a Writ of Error was brought and it was assigned for Error that the Queen post tempus semestre had Iudgment to recover damages for the value of the Church for half a year Cook The same is no Error as it was adjudged 7 Eliz. 236. See also 34 H. 6. 51. And these damages are not as damages but as a penalty inflicted upon the disturbance See Book of Entries 483. The King in a Quare Impedit counted to his damage of forty pounds and 484. 1000 li. and although tempus semestre transierit yet the King shall recover damages but the value of the Church for half a year for the King at all times may present in his own right for nullum tempus occurrit Regi Damages in a Quare Impedit where by King e contra At another day it was moved by Fenner Serjeant and he conceived that here the Queen is not to recover damages for she doth not present in her own right for the Incumbent had two Benefices without Qualifications therefore the first was void and the Lapse encurred and therefore the Queen did present in the right of the Crown and so is not verus Patronus 14 E. 3. Quare Impedit 54. The King shall not recover damages although he count of damages 3 H. 6. Damages 17. And as to the case of 7 Eliz. it doth not appear there that the King did present by reason of his Prerogative he shewed divers Presidents that the King shall not recover damages in such case P. 7. H. 5. rot 402. 2 H. 6. rot 316. For the Statute was intended to give damages to the very Patron and not otherwise Cook Where the King presents by Lapse he is verus Patronus hac vice as Grantee of the next Avoidance Vide T.E. 1. Quare Impedit 181. The King recovered damages in the case of a Prior. Godfrey said he had searched the Roll of 7 Eliz. and there is more reported in the Book than is in the Roll for Iudgment is given for the Presentee but as for the damages the Court would advise of it Gawdy It is clear that the Queen shall not recover double damages Where only single damages for she cannot lose her presentment quia nullum tempus occurrit and because eo quod tempus semestre transierit but she shall have single damages for they are given for the wrong and disturbance and not for the presentment and therefore the damages are well awarded Wray If the King be not within one part of the Statute as it is agreed as to the double damages it is hard that he be within the other branch Popham Attorney general The Queen ought to recover damages but only single damages but not double damages and the words of the Statute are general therefore the Queen shall have the benefit of it and of all Statutes made for the benefit of the Subjects the King shall take advantage The Statute of Gloucester gives damages in a Writ of Cosinage Aiâ— and Besail and the King brings an Action upon the seisin of his Ancestors he shall recover damages and in construction of Statutes the opinions of them which were next to the making of them is to be much respected Vide 19 E. 2. Rot. 90 19 E. 1. Rot. 255 231 136. And always the King counts to his damage c. and that should be in vain if he should not recover damages And as to the Presidents shewed to the contrary that was the default of those Clerks which the King had presented and when in a Quare Impedit the King had prevailed they contented themselves with the Incumbency without regard of the damages But if damages be not to be given yet the Iudgment to recover the presentment is not erronious And the Iudgment only as to the giving of damages shall be reversed and the Defendant in the Quare Impedit here shall not assign the same for Error because no damages are given 5 Co. 58. for it is for his advantage And always where it is found for the Queen in a Quare Impedit they enquire of the value of the Church A man shall not assign for error that which is for his advantage which should be a trivolous thing if the Queen should not recover damages Gawdy Of things transitorie the Queen may be disturbed and if she be wherefore shall she not recover damages but the doubt is if the intent of the Statute be if the party shall have single damages in any case And here in this case the Iudgment is one and entire and if it be reversed in part it shall be reversed in the whole as in Dower the Tenant pleads that he is always ready c. the Demandant shall have Iudgment to recover her Dower and a Writ shall issue forth to enquire of the damages And see also 17 E. 3. In an Assize of Darrein presentment the Plaintiff had Iudgment to have a Writ to the Bishop And the Assize was taken after for the damages And in the mean time the Defendant brought a Writ of Error and it was holden maintainable for they are several Iudgments but it is not so here for the Entry is Quod querens habeat bre Episcopo quia nescitur quae damna c. for it is one Iudgment Wray It is but one Statute and therefore it shall be construed with one construction and it should
is not of any effect but utterly void So is the grant of the presentment to the Church where the Church is void for it is a thing in action See the Lord Dyer 28 H. 6. 26. 3 Ma. Dyer 129. 11 Eliz. Dyer 283 Walmsley Serjeant put this Case Two Ioint-tenants of a Rent the one may release to the other but if the Rent be behind now the one cannot Release his Interest in the Arrearages to the other And afterwards in the Principal case Iudgment was given that the Release was void CCXXXIII Sammes and Paynes Case Mich. 30 31 Eliz. In the Common Pleas. Intr. Trin. 29 Eliz. Rot. 721. IN an Ejectione firmae the case was That the Mother being seised of certain Lands had issue two Daughters Tenant by the curtesie 1 And. 184. Goldsb 81. 82. 8 Co. 34. and by Indenture covenanted with diverse persons to stand seised to the use of Eliz. her eldest Daughter in tail upon condition that the said Eliz. should pay to her other Daughter within a year after the death of the Mother or within a year after the said other Daughter should come to the age of eighteen years 300 l. And if the said E. should fall in the payment of the sum aforesaid or should dye without issue before such payment then to the use of the said second Daughter in tail The Mother dieth E. taketh Husband hath issue afterwards dieth without issue before the day of payment And if the Husband shall be tenant by the curtesie or not was the Question And by the Court cleerly he shall be For as to the condition of payment of the said Sum the same is not determined for she died without issue before the day of payment scil before the second Daughter came of the age of eighteen years as to that there is no condition broken as to the point of dying without issue The same is not a condition but rather a Limitation of the Estate and the same is no more than what the Law saith and the estate tail in Elizabeth is spent and determined by the dying without issue and doth not cease or is cut off by any Limitation and afterwards Iudgment was given for the Tenant by the curtesie And by Anderson If a Feoffment be made to the use of I. S. and his heirs until I. D. hath done such a thing and then unto the use of I. D. and his heirs the thing is done and I. S. dieth his wife shall be endowed CCXXXIV Bowry and Popes Case Mich. 30 31 Eliz. In the Common Pleas. 1 Roll. 676. Plow Queries vers finem BOwry brought an Action upon the Case against Pope and declared that in the time of E. 6. the Dean and Chapter of Westminster leased two houses in Saint Martins in London to Mason for sixty years The which Mason leased one of the said Houses to one A. and covenanted by the Indenture of Lease with the said A. that it should be lawful for the said A. his Executors and assigns to make a window in the shop of the house so to him assigned and afterwards in the time of Queen Mary a window was made accordingly where no window was there before And afterwards A. assigned the said house to the Plaintiff And now Pope having a house adjoining had erected a new building super solum ipsius Pope ex opposito the said new Window Nusance so as the New Window is thereby stopped The Defendant pleaded Not guilty and it was found for the Plaintiff and it was moved for the Defendant in arrest of Iudgment that here upon the Declaration appeareth no cause of action for the window in the stopping of which the wrong is assigned appears upon the Plaintiffs own shewing to be of late erected scil in the time of Queen Mary The stopping of which by any act upon my own Land was holden lawful and justifiable by the whole Court. But if it were an antient window time out of memory c. there the light or benefit of it ought not to be impaired by any Act whatsoever and such was the opinion of the whole Court. But if the case had been That the house soil upon which Pope had erected the said building had been under the estate of Mason who covenanted as abovesaid Then Pope could not have justified the nusance which was granted by the whole Court. CCXXXV Lee and Maddoxes Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Mich. 29 30 Eliz. Rot. 1737. Covenant WIlliam Lee brought a Writ of Covenant against Richard Maddox Isabel his Wife and declared That one Errington the first husband of the said Isabel was endebted to the Plaintiff in 20 l. and that one Georgy Ashley was also endebted to the said Errington in the like sum of 20 l. And also that the said Errington made and constituted the said Isabel his Executrix and died and afterwards the said Isabel by Indenture dum ipsa sola fuit reciting that whereas her said late husband was endebted to the Plaintiff in the sum aforesaid and whereas the said George Ashley was also endebted unto her said late Husband in the like sum Now for the better satisfaction of the Plaintiff for his said Debt she appointed and constituted the Plaintiff atturnatum suum irrevocabilem ad petendum levandum recuperand recipiend ad usum suum proprium in nomine dict Isabellae de dicto Georgio the said twenty pounds And the said Isabel covenanted quod ipsa ad requis dict quer de tempore in tempus adjuvaret manu teneret quamlibet omnes sectam sectas quam vel quas dictus querens commensaret prosequeretur in nomine dictae Isabellae against the said George to the use of the Plaintiff Non existendo Non-suit voluntarie or making any Discontinuance Release Revocations Anglice Countermand without the assent of the Plaintiff And declared further that the Plaintiff had brought a Suit against the said George for the said Debt and shewed all in certain And that the said Isabel depending the said Suit Countermand had taken to Husband the Defendant without the assent of the Plaintiff And if by this Marriage the said Suit be countermanded was the Question And first it seemed to the Court that the Declaration was insufficient Request because there is not any request surmised in the Declaration for the words of the Covenant are Quod ipsa ad requisitionem c. So as it seemed to the Iustices that the Plaintiff ought to have notified to Isabel that he had commenced such Suit otherwise the Action will not lye And also the Court was of opinion that here is not any Countermand for by the taking of the Husband the Writ is not abated but only abateable and therefore the Plaintiff ought to have shewed 1 Roll. 781. that by the taking of the Husband the Writ by Iudgment was abated otherwise it is not any Countermand and
issues the Iury might have assessed the damages severally scil for each issue several damages but here is but one issue and it was the folly of the Defendant that he would not demur in Law upon the Declaration for one part scil the not performance of the Award and traverse the other part scil The suing of the Execution or the Assumpsit of it And in our case it may be that the Iury did assess the damages for the suing of the Execution without any regard had to the performance of the Award And note that the verdict for assessing of the Damages was in these Terms scil Et assidunt damna occasione non performationis Assumpsionis praedict c. And Cook who was of Councel in this Case put this Case The late Earl of Lincoln Admiral of England brought his Action of Scandalis Magnatum and declared That the Defendant exhibited in the Star-chamber against him a Bill of Complaint containing diverse great and infamous slanders viz. That the said Earl was a great and outragious oppressour and used outragious oppression and violence against the Defendant and all the Country also The Defendant pleaded Not guilty and found for the Plaintiff and assessed damages and it was moved in stay of Iudgment first That the Plaintiff had declared upon matter of slander for part for which an Action lyeth and for part not For the oppression supposed to be made to himself no Action lieth because every subject may complain for wrong done unto him and although he cannot prove the wrong an Action will not lye But as for the oppression done to others by the supposal of the Bill an Action lieth for what is that to him he hath not to do with it for he is not pars gravata But because the Iury assessed Damages entirement the Iudgment was arrested for the cause aforesaid And afterwards in the principal case the last day of this term Iudgment was staied CCXXXIX Palmer and Thorps Case Hill. 31. Eliz. In the Kings Bench. BEtwixt Palmer and Thorpe the Case was this 1 Cro. 152 A man demised his Manour of M. for thirty two years and the day after let the same Manour for forty years to begin from Michaelmas after the date of the first Lease and the Tenant attorned And by Cook the same is a good grant although to begin at a day to come for it is but a Chattel and so was the opinion of Wray Chief Iustice for a Lease for years may expect its commencement as a man seised of a Rent in Fee grants the same for twenty years from Mich. following and good for no estate passeth presently but only an Interest See 28 H. 8. 26. Dyer CCXL Sir Anthony Shirley and Albanyes Case Hill. 31 Eliz. In the Kings Bench. Rot. 668. IN an Action upon the Case upon Assumpsit by Sir Anthony Shirley against Albany Assumpsit 1 Cro. 150. The Plaintiff declared That he was seised of the Manor of Whittington for the term of his life the Reversion to the Earl of Arrundel in Fee and so seised surrendered all his Estate to the said Earl who afterwards by his Deed granted a Rent-charge of 40 l. per annum out of the said Mannor to him and afterwards conveyed the Manor to the Defendant in Fee. And afterwards 27 Maii 22. Eliz. upon a Communication betwixt the Plaintiff and the Defendant concerning the said Rent the Defendant did promise to the Plaintiff that if the Plaintiff would shew unto the Defendant any Deed by which it might appear that he ought to pay to the Plaintiff such a Rent he would pay that which is due and that which should be due from time to time And further declared that 27 April 27 Eliz. he shewed unto the Defendant a Deed by which it appeared that such a Rent was granted and due And for eighty pounds due for the two last years he brought the Action The Defendant pleaded that after the said promise and before the shewing of the said Deed scil 14 Jan. 22 Eliz. the Plaintiff entred into the said Land and leased the same for three years The Plaintiff Replicando said that 1 Decem. 27 Eliz. the Defendant did re-enter upon which they were at Issue and it was found for the Plaintiff It was moved by Glanvil Serjeant that by the entry the Promise was suspended and being a personal thing once suspended it is always extinct Wray The Action is brought for the Arrerages due the two last years and so at the time of his re-entry the Plaintiff had not cause of Action and therefore it could not be suspended Suspension of Rent Ante. 110. Gawdy When the Plaintiff sheweth the Deed the Defendant is chargable to arrerages due before and after the promise wherefore if the entry maketh a suspending of the Rent the suspension doth continue but I conceive here is not any suspension for this promise is a meer collateral thing and so not discharged by the entry into the Land for it is not issuing out of the Land. But if the Plaintiff before the Deed shewed had released all Actions the same had been a good Bar and I conceive that the Deed was not shewed in time for it ought to be shewn before any arrerages due after the promise but here it is shewn five years after But that was not denied by all ther other Iustices Another exception was taken that where the promise was that if the Plaintiff shewed any Deed by which it might appear that the Defendant should be charged with the said Rent and the Declaration is by which it might appear that the Plaintiff ought to have the Rent c. so as the Declaration doth not agree in the whole See 1 Ma. 143. in Browning and Bestons Case the Condition of the Lease was if the Rent should be arrear not paid by two Months after the Feast c. and the Rejoynder was by the space of two months c. And the pleading holden insufficient for per duos menses doth not affirm directly post duos menses but by Implication and Argument And here it was holden that the Condition was a good consideration Another exception was taken because the promise is layed All the Rent ad tunc debitum aut deinceps debend It was holden that this word ad tunc doth refer to the time of the shewing of the Deed and not to the promise And as to the last exception but one it was resolved that the Declaration notwithstanding the same was good enough scil ostendit factum per quod apparet quod redditus praedict solvi deberet in forma praedict Another exception was taken because here no breach of the promise is alledged for it is pleaded thath eight pounds de annuali redditu arrer fuer but it is not said de redditu praedict 8 l. ergo it may be another Rent and then the promise as to this Rent is not broken Wray Although the word praedict be wanting yet the Declaration is well enough
appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Banâ—o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant Sâ—y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry
And after four and twenty years after the death of the said Sir Anthony the said Edward entred into the Land to him devised by the said Devise and leased the same to the Plaintiff Descent where tokes away entire c. And it was moved here if this dying seised of Henry of the Lands in Hertford and descent to his Heir should take away the Entry of Edward the Devisee And by Anderson cleerly If here upon the whole matter be a descent in the Case then the Entry of Edward the Devisee is taken away although that the Devisee at the time of the descent had not any Action or other remedy for it shall be accounted his folly that he would not enter and prevent the descent But VVindham Periam and VValmesly Iustices 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen 96. were of a contrary opinion For a Devisee by a Devise hath but a Title of Entry which shall not be bound by any Descent as Entry for Mortmain for Condition broken And after long deliberation they all agreed that there was not any Descent in the Case for by the Devise and death of the Devisor the Frank-tenement in Law and the Fee was vested in the Devisee Edward And then when the Queen seised and leased the same during the Nonage of Henry and the Lessee entred he did wrong to Edward and by his Entry had gained a tortions Estate in fee although he could not be said properly a Disseisor nor an Abator And afterwards when Henry after his full age when by his Indenture he leased without any special Entry ut supra and by colour thereof the Lessee entred now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee and then the paying of the Rent to Henry nor the walking of Henry upon the Land without any special claim did not gain any Seisin to him and so he was never seised of the Land and could never dye seised and then no Descent and then the Entry of Edward was lawful and the Lease by him made to the Plaintiff was good And so Iudgment was given for the Plaintiff CCXCIV. Greenwood and Weldens Case Mich. 32 33 Eliz. In the Common Bench. Replevin IN a Replevin between Greenwood and VVelden The Defendant made Conusans as Bayliff to John Cornwallis shewed how that seven acres of Land called Pilles is locus in quo and at the time of the taking were holden of the said Cornwallis by certain Rent and other Services And for Rent arrear he made Conusans as Bayliff to Cornwallis The Plaintiff pleaded out of the Fee of Cornwallis upon which they were at Issue And it was found that the Plaintiff is seised of seven acres called Pilles hoden of Cornwallis ut supra But the Iury say That locus in quo doth contain two acres which is called Pilles and these two acres are and then were holden of Agmondesham of the Middle-Temple And if upon the whole matter videbitur Curiae c. And by the opinion of the whole Court out of his Fee upon that matter is not found for although it be found that the two acres be holden of Agmondesham yet it may be that they are within the Fee of Cornwallis for it may be that Cornwallis is Lord Paramount and Agmondesham Mesne and then within the Fee of Cornwallis And therefore for the incertainty of the Verdict a Venire facias de novo was awarded CCXCV. Bishop and Harecourts Case Mich. 32 33. Eliz. In the Common Bench. Assumpsit 1 Cro. 210. IN an Action upon the Case The Plaintiff declared that the 5 Junij 30 Eliz. the Defend in consideration that the Plaintiff the same day and year sold and delivered to the Defend a Horse did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing and shewed that the Term began 7 Junij after And upon Non assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgment That it appeareth upon the Declaration that the Plaintiff hath not cause of Action for the Trinity Term intended is not yet come for the day of the Assumpsit is the fifth of June and the fourth day was the first day of the said Term scil the day of Essoins and the seventh day 4. die post and then the promise being made at the day aforesaid after the Commencement of the said Term the same is not the Term intended but the Plaintiff must expect the performance of the promise until a year after And of that opinion was Anderson but the three other Iustices were strongly against him to the contrary for by common intendment amongst the people the Term shall not begin until 4. die post and so it is set down usually in the Almanack And afterwards Iudgment was given for the Plaintiff CCICVI Mich. 32 33. Eliz. In the Common-Bench COoper Serjeant came to the Bar and shewed that A. Tenant in tail the Remainder over to B. in Fee. Co. 2 Inst 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs and for assurance made a Feoffment in Fee and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs And note that by the Indenture of Bargain and Sale A. covenanted to make such further Assurance within seven days as the said I. S. or his Heirs or their Council should devise And shewed that before any further assurance was made the said I. S. died his Son and Heir being within age And now by advise of Council and of the Friends of the Infant it was devised that for such further assurance and cutting off the Remainder a common Recovery should be suffered in which the said Infant should be Tenant to the Praecipe and should vouch the Vendor Common Recovery suffered by an Infant by his Guardian and because that the said Term of seven years is almost expired and that the said Recovery is intended to be unto the use of the said Infant and his Heirs it was prayed that such a Recovery might be received and allowed And two Presidents in such Case were shewed in the time of this Queen one the Case of the Earl of Shrewsbury and the other one VVisemans Case But the Iustices were very doubtful what to do But at last upon good assurance of people of good Credit that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery and upon consideration had of the two Presidents and upon Affidavit made by two Witnesses that the said intended Recovery was to the use of the Infant the Recovery was received and allowed CCICVII Cottons Case Mich. 32
of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the
was moved in arrest of Iudgment that it appeareth upon the Plaintiffs own shewing that the Plaintiff hath the Free-hold and therefore he ought to have an Assize but the same was not allowed and therefore the Plaintiff had Iudgment CCCXXXIV Kensam and Redings Case Trin. 33. Eliz. In the Kings Bench. THe Case was Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands Pastures Woods Vnder-woods and Hereditaments parcel or appertaining to the said Site exceptis omnibus grossis arboribus boscis maremio and further in the said Letters Patents there was a Proviso that the Lessee should have sufficient House-boot and Hedge-boot c. And if notwithstanding the said Exception the Lessee should have the Vnderwoods was the question And it was argued that the Lessee should have subbois i. e. Vnderwoods for that is granted by express words and the exception extends only grossis arboribus for this word grossis in the exception extends to all that which follows Gawdy Iustice If it were in the case of a common person it is clear that upon such matter the Vnderwoods are not excepted 7 E. 6. Dyer 79. A Lease is made of a Mannor except Timber and great Woods the Vnderwoods shall pass Fenner Iustice The Proviso that the Lessee should have House-boot shews the Queens intent that the Vnder-woods should not pass Wray If this word bois in the exception should not extend to Vnder-woods it should be vain and signifie nothing which should be hard in the Case of the Queen CCCXXXV Trin. 33. Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony and the conversion of it Trover and Conversion 1 Cro. 97. 201 555 693. The Defendant pleaded that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed which of them should have it and pleaded further that A. and B. were not yet agreed who of them should have it for which cause he kept it absque hoc that he converted it to his own use upon which the Plaintiff did demur in Law It was moved that the Conversion is never traversable Wray Generally Conversion is not traversable but upon such special matter as is here Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn now the Conversion is traversable see the same case 4 E. 6. Br. Action upon the Case 113. so here Fenner agreed with Wray CCCXXXVI The Bishop of Lincoln and Cowpers Case Mich. 33. Eliz. In the Kings Bench. Prohibition THe Bishop of Lincoln sued a Prohibition against Cowper who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes 1 Cro. 216. Post 331 332. And the Bishop did suggest that he and all his Predecessors had been seised of the said Manor and that as long as it was in their possessions had been discharged of Tithes and shewed that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee and afterwards was re-granted to the Bishop and his Successors It was moved That the Prescription was not good because de non decimando And admit that the Prescription be good that same is interrupted by the seisin of the Duke of Somerset and although that the Manor be re-assured to the Bishop of Lincoln yet the Prescription is not revived as Homage Ancestrel if it be once in a Forrain Seisin although it be re-assured yet it is not revived But by Wray Gawdy and Fenner The Prescription is good in the Case of a Spiritual person but not in the case of a common person And they all were clear of opinion that the Prescription is not gon by this Interruption for Tithes are not issuing out of the Lands neither can Vnity of possession extinguish them neither are they extinguished by a release of all right of Land c. See for this Case Co. 11. part of his Reports in the Case of Pridle and Napper CCCXXXVII Dethick King of Arms Case 33. Eliz. In the Kings Bench. Indictment 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment WIlliam Dethick against Garter King of Arms was indicted upon the Statute of 5 E. 6. for striking in the Church-yard For that the said Dethick in Pauls Church-yard in London struck I.S. It was moved If Cathedral Churches be within the meaning of the Statute The Court was clear of opinion that they were And afterwards the Defendant pleaded that before the Indictment found he was created and crowned by the Letters Patents of the Queen which he shewed chief and principal King of Arms and it was granted by the said Letters Patents that he should be called Garter and that that name is not in the Indictment and demanded Iudgment The Kings Attorney by Replication said That by the Law of Arms and Heraldry every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms by the Arms before the Earl Marshal of England or his Deputy and before him are to go four Officers of Arms whereof the one is to bear his Patent another a Collar of Esses the third a Coronet of Brass double guilt fourthly a Cup of Wine and his Patent shall be read before the Earl Marshal and afterwards his Coronet shall be set upon his Head and the Collar of Esses about his neck and afterwards the Wine poured upon his Head And that the Defendant had not received these Ceremonies for which cause he is not King of Arms nor to be called upon to which the Defendant did demur in Law. Broughton argued for the Defendant and he took Exception to the Replication because it is pleaded there that secundum legem Heraldorum Garter upon his Creation ought to receive c. of which Law this Court cannot have Conusance and therefore the Replication ought to be scil Secundum legem Angliae If in Appeal the Defendant wage Battel although that belongs unto Arms and Heraldry yet it shall be pleaded according to the Law of the Land and shall not speak of the Law of Arms. So if an Infant be made a Knight and he be to plead in discharge of his Wardship he shall plead according to the Law of the Land and yet the degree of a Knight belongs to the Law of Arms 11 E. 3. Dower against the Earl of Richmond who was also Duke of Britain who pleaded to the Writ That he was Duke of Britain and not so named in the Writ but the Court did not regard it for they cannot have knowledge of it so not here of the Law of Heraldry Also this Court cannot write to the Heralds to certifie it as they may to the Marshal of the King or to the Bishop But we have sufficiently
magnitudine sufficienti essendi maremium and that the place where they growed was neither Orchard nor Garden It was said by the Court That by the Custom the Copyholder could not cut down such Trees but the Lord might and that the cutting down of such Trees which were not Wast the Copy-holder might justifie without punishment but because by the Verdict it did not appear that the Trees for which the Action was brought were Timber in facto but only de magnitudine effendi maremium the Plaintiff had Iudgment CCCLXVI The Lord Staffords Case Mich. 25 26. Eliz. In the Common Pleas. Extent UPon Recovery in debt against the Lord Stafford certain Lands of the Lord were extended by Elegit The Queen because the Lord Stafford was endebted unto her by Prerogative ousted the Tenant by Elegit Fleetwood Serjeant moved the Court in the behalf of him who recovered and surmised to the Court that the Queen was satisfied and therefore prayed a Re-extent but the Court would not grant it because they were not certain of the matter but advised the party to sue a Scire facia against the said Lord Stafford to know and shew cause why a Re-extent should not issue forth the Queen being satisfied c. CCCLXVII Gibbs and Rowlies Case Mich. 25 26. Eliz. In the Kings Bench. Tithes SYmon Gibbs Parson of Beddington Libelled in the Spiritual Court against Rowlie for Tithe Milk Rowlie upon surmise of a Prescription de modo Decimandi obtained a Prohibition which was against Symon Gibbs Rectorem Ecclesiae parochial de Nether Beddington and the parties were at Issue upon the Prescription Prohibition and it was found for Rowlie Egerton Solicitor moved against the Prohibition because the Libel is against Gibbs Rectorem Ecclesiae paroch de Beddington and the Prohibition was de Nether Beddington and it was not averred that Beddington in the Libel and Nether Beddington is unum idem non diversa It was said by the Court That upon the matter there is not any Prohibition against Rectorem Ecclesiae de Beddington only and therefore said to the Plaintiffs Counsel let the Parson proceed in the Spiritual Court at his peril CCCLXVIII Russell and Handfords Case Mich. 25 26. Eliz. In the Kings Bench. RUssell brought an Action upon the Case against Handford and declared Quod cum quoddam molendinum ab entiquo fuit erectum upon such a River Nusance de quo one Thomas Russell whose Heir the Plaintiff is was seised in his Demesn as of Fee and dyed thereof seised after whose death the same descended to the Plaintiff by force of which the Plaintiff was seised in his Demesn as of Fee and so seised The Defendant upon the same River had levyed a new Mill per quod cursus aquae praedict coarctatus est and upon Not guilty It was found for the Plaintiff It was moved in Arrest of Iudgment That it is not layed in the Declaration that his Mill had been a Mill time out of mind c. And then if it be not an ancient Mill time out of mind Words of Prescription c. it was lawful for the Defendant to erect a new Mill And it was said That these words ab antiquo are not fit or significant words to set forth a Prescription but the words A tempore cujus contrarii memoria hominum non existit are the usual words for such a purpose See the Book of Entries 10 11. See 11 H. 4. 200. If I have a Mill and another levies another Mill there and the Miller hinders the Water to run to my Mill or doth any such Nusance Roll. 140. an Action lyeth without any Prescription as it seems by the Book in 22 H. 6. 14. The Plaintiff declared That he was Lord of such a Town and that he and all his Predecessors Priors of N. Lords of the same Town have had within the same Town four Mills time out of mind c. And that no other person had any Mill in the said Town but the Plaintiff and his Predecessors the said four Mills and that all the Tenants of the Plaintiff within the same Town and all other Resiants there c. ought and time out of mind c. had used to grind at the said Mills of the Plaintiff and that the Defendant one of the Tenants of the Plaintiff had erected and set up a Horse Mill within the said Town and there the Resiants grinded c. And it was holden That peradventure upon such matter an Action lyeth because the Defendant being one of the Tenants of the Plaintiff is bound by the Custom and Prescription so as he hath offended against the privity of the Custom and Prescription And as to the Case in question It was the opinion of all the Iustices Hob. 189. Ante 168. 1 Cro. 415. That if the Mill whereof the Plaintiff hath declared be not an ancient Mill that this Action doth not lye upon the matter eo quod cursus aquae coarctatur But yet at last it was holden by the Court to be good enough notwithstanding the Exception Another Exception was taken to the Declaration because that here is set forth the seisin of the Father of the Plaintiff and the Descent to the Plaintiff by force of which he was seised in his Demesn c. without shewing that after the death of the Father that he entred into the said Mill Seisin in fact and in Law. c. so as no seisin in fact is alleadged but only a seisin in Law and if the Plaintiff was not seised in fact he cannot punish this personal wrong but the Exception was disallowed for such a seisin in Law is sufficient for the maintenance of this Action And afterwards the Plaintiff had Iudgment to recover his Damages See for the Action it self contained in the Declaration 8 Eliz. Dyer 248. CCCLXIX Cleypools Case Mich. 26. Eliz. In the Exchequer Informations upon the Statute of 5 Eliz. of Tillage INformation in the Exchequer against Cleypool upon the Statute of Tillage 5 Eliz. setting forth That the Defendant hath converted three hundred Acres of arable Lands of Tillage to pasture and the same conversion hath continued from 15 Eliz. unto the two and twentieth of Eliz The Defendant as to the Conversion pleaded Not guilty and as to the Continuance the general Pardon by Parliament 23 Eliz. upon which the Attorney general did demur in Law. It was argued That that pardon did not extend to the continuance of the said Conversion And first the Barons were clear of opinion That if A. be seised of Arable Lands and converts the same to pasture and so converted leaseth it to B. who continues it in pasture as he found it he shall be charged by that Statute And it is not any good Construction where the Exception in the pardon is excepting the converting of any Land from Tillage to Pasture made done committed or permitted that the Conversion excepted
Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to
firmae against Leonard Lovelace and upon not guilty pleaded it was found for the Plaintiff It was moved for the Defendant in arrest of Iudgment That the Declaration was not good because the granting of Letters of Administration is set forth in this manner viz. Administratio commissa fuit Querenti per Willielmum Lewen Vicarium generalem in spiritualibus Epi. Roff. without averring that at the time of the granting of the Letters of Administration the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium But as to that it was said by the whole Court That the Vicar general in Spiritualibus amounts to a Chancellor for in truth the Chancellor is Vicar general to the Bishop Another Exception was because the Declaration is not Epi. Roff. loci illius Ordinarii but that was not allowed for all the presidents and course of the Court is That by way of Declaration such allegation needs not but by way of Bar it is necessary Another Exception was taken because the Plaintiff hath declared of an Ejectment and also quod bona catalla ibidem invent cepit c. And here in the Verdict the damages as well for the Ejectment as for the Goods and Chattels are entirely taxed It was adjorned CCCCXXXVI Greeves Case Mich. 32 Eliz. In the Common Pleas. IN a Replevin Replevin the Defendant made Conusans as Bayliff to one Greeves and Rockwood c. and said That A. was seised of the Lands and 6 Eliz. enfeoffed certain persons in fee to the use of his last Will by which he willed that his Feoffees should stand seised of the said Lands Devises Poph. 188. until the said Greeves had levied of the profits of the said Lands the sum of one hundred pounds It was objected against this Conusans that here is no devise for A. at the time of the devise had not any Feoffees but the Exception was disallowed by the Court And they cited the case of 15 Eliz. Dyer 323. Lingens case A. made a Feoffment in fee to his use and afterwards devised that his Feoffees should be seised to the use of his Daughter that the same was a good devise of the Land. See 29 H. 8. Br. Devises 48. CCCCXXXVII Kempton and Coopers Case Mich. 31 32 Eliz. In the Common Pleas. IN Trespass for breaking of his Close the Defendant pleaded Bar. 3 Len. 194. that before this he had brought an Ejectione firmae against the now Plaintiff and recovered and had Execution c. Iudgment if Action c. And by Periam Windham and Anderson Iustices the same is a good Bar and the conclusion of the Plea is also good Iudgment if Action without relying upon the Estoppel CCCCXXXVIII Leigh and Okeley and Christmass Case Mich. 32 Eliz. In the Kings Bench. OLiphe Leigh Fermor of the Queen of a Wood called Meerherst Wood in Warplesden in the County of Surrey brought an Action of Trespass against Henry Okeley and Robert Christmass for breaking of the said Wood and therein entring and cutting down of two hundred loads of Wood and carrying away the same c. The Defendants pleaded That before the time in which the Trespass was supposed c. That King H. 8. was seised of the Manor of Warplesden Custom whereof the said Wood was parcel of which Manor a Close called Withybod containing eleven Acres eidem bosco adjacent was parcel and that the said Wood is and time out of mind c. was closed and separated with Hedges and Ditches from the said eleven Acres which said Hedges and Ditches per totum tempus praedict fuerunt adhuc sunt praedict bosco spectant pertinent And that the said eleven Acres are and time out of mind weâ—â— customary Lands parcel of the Manor aforesaid and demised and demisable in Fee-simple And that the said King H. 8. at a Court holden 38 H. 8. by his Steward demised the said eleven Acres by copy to John Goring and his Heirs and that within the said Manor there is this Custom That every Copyholder Tenant of the said eleven Acres c. hath used and accustomed per se vel servientes suos per eorum praecept succidere capere asportare subboscum in praedict bosco in quo c. pro reparatione praedictarum sepium defensionum inter praedict boscum in quo c. and the said eleven Acres c. quandocunque eaedem sepes defensiones in decasu extiterint and shewed further That at the time of the Trespass c. the said Hedges and Fences were in decay and so justified Vpon which the Plaintiff did demur in Law. It was argued by Godfrey That the Prescription is not good for it appeareth that this customary Land is contigue adjacens to the said Wood i. where the Trespass was done And of common Right the making of the Hedge doth appertain to the Owner of the Wood And the Prescription is no more but to take Wood in the Lands of another adjoyning to my Land to make the Hedges of the same Land in which the Wood groweth which cannot be a good Prescription for it sounds in charge and not to the profit of him who Prescribes Which see 22 E. 3. Prescription 40. Trespass against an Abbot because where the Plaintiff was Farmor of the King of his Hundred of D. and by reason thereof he might make Attachment and distrain for the Debts of the King within the said Hundred and where for a certain debt of the King he distrained the Beasts of one A. and the Abbot made Rescous to which the Abbot said That he was Lord of the Manor of D. within which Manor there was this custom c. That if any Distress be taken within the said Manor that the same should be put into the Pound of the said Abbot of the same Manor and not driven out of the Manor and there ought the Distress to remain three days so that if the party would agree within the three days that then he should have his Beasts and he said That the Plaintiff would have driven the said Beasts out of the said Manor and that he would not suffer him upon which there was a demurrer because it is not any profit to the Abbot but a charge to keep the Beasts of another Also he said That the King shall not be bound by such a custom as another person shall whereupon Iudgment was given for the Plaintiff So here in the principal case There shall be no damage to the Defendant if the Wood be not fenced for if his Cattel escape into the Wood he may justifie it because it is in default of the Plaintiffs inclosure And if the Beasts of the Plaintiff escape into the Lands of the Defendant he may take them Damage Feasant for the cause aforesaid 21 H. 7. 20. A Custom is pleaded That if any Tenants of the Manor shall take the Cattel of any one Damage Feasant and shall therefore distrain them that
Iustice It was a great offence in the Plaintiff but the same ought to be punished according to Law but the Constable cannot imprison a Subject at his pleasure but according to Law i. to stay him and bring him before a Iustice of the Peace to be there examined Wray If the Defendant had pleaded that he stayed the Plaintiff upon that matter to have brought him before a Iustice of Peace it had been a good Plea. Fennor The justification had been good if the Defendant had pleaded that the Plaintiff refused to carry away the Child so all the Iustices were of opinion against the Plea but they would not give Iudgment by reason of the ill Example but they left the parties to compound the matter CCCCLXIII Cole and Walles Case Pasch 33 Eliz. In the Kings Bench. Ejectione Custodiae lieth not upon a Copy-hold Estate 1 Cro. 224. IN an Ejectione Custodiae the Plaintiff declared that A. was seised of the Manor of D. within which Manor are diverse Copyholds of Inheritance and that the Custom of the Manor is that if any Copy-holder of Inheritance of the said Manor dieth his heir within the age of 14 years that then the Lord of the Manor might grant the custody of his Body and Lands to whom he pleased and shewed that one Clevertie a Copyholder of Inheritance of the said Manor died his son and heir within the age of 14 years Hob. 215. Dyer 302 303. upon which the Lord of the Manor committed the custody of his Body and Lands to the Plaintiff and the Defendant did eject him and upon Not guilty it was found for the Plaintiff It was moved in arrest of Iudgment That this Action would not lye upon a Copyhold estate Quod tota Curia concessit and yet it was said that an Ejectione firmae lieth upon a demise of Copy-hold Land by Lease of a Copyholder himself but not upon a demise by the Lord of the Copyhold Quod fuit concessum and afterwards the Case was moved on the Plaintiffs side and it was said That this was but an Action upon the Case in the nature of an Ejectione firmae and this interest is not granted by Copy but entred only into the Court Roll so it is not an interest by Copy but by the Common Law for the words are Quod Dominus commisit custodiam c. and doth not say in Curia and afterwards Iudgment was given for the Plaintiff CCCCLXIV Bond and Bailes Case Trin. 33 Eliz. In the Kings Bench. Judgment upon a Bond where satisfied before a Statute â— Len. 37â— Roll. 926. BOnd brought a Scire facias against Bailes Administrator of one T. B. upon a Recovery had against the Intestate in Action of Debt The Defendant pleaded That before the said Iudgment given the Testator did acknowledge a Statute Staple to one C. and that the Son was not paid in the life of the Testator nor after and that they have not in their hands any goods of the Intestate beyond what will satisfie the said Statute upon which there was a demurrer in Law. And Coke argued That the Bar is not good for here is not pleaded any Execution upon the Statute and then the Iudgment the Statute being of things of as high nature that of which Execution is sued shall be first served and if this Action had been brought upon a Bond the Plea had not been good for although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Bonds yet that it is to be intended when a Scire facias is to be sued upon it otherwise not And 4 H. 6. 8. in a Scire facias upon a Iudgment fully administred at the day of the Writ brought is a good Plea by which it appeareth That if the Executors had paid the Debt upon the Obligation before the Writ brought it had been good See 12 E. 3. Executors 73. in a Scire facias upon a Iudgment in Debt given against the Testator Enquiry shall be what goods the Executors had the day of the Scire facias and he said it was moved by Anderson 20 Eliz. in this Court. In Debt upon a Bond against Executors the Defendant pleaded that the Testator was indebted by Iudgment to A. and that they had not more than to satisfie the same and it was holden no plea if not that he pleaded further that a Scire facias was sued upon it Wray said The same is not Law and there is a difference when the Iudgment is given against the Testator himself and where against the Executors for where Iudgments are given against Executors the Iudgment which was given before shall be first executed but if two Iudgments be given against the Testator he who first sues Execution against the Executors shall be first satisfied because they are things of equal nature and before Suit it is in the election of the Executor which of them he will pay See 9 E. 4. 12. As if two men have Tallies out of the Exchequer he which first offers his Tally to the Officer shall be first paid but before that it is in the choice of the Officer which of them shall be first satisfied and therefore 19 H. 6. If the Lease enrolled be lost the Enrolment is not of any effect and Pasch 20 Eliz. our very case was moved in the Common Pleas in a Scire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied Ultra quae c. and it was holden no Plea for a Statute is but a private and pocket Record as they called it and 32 Eliz. betwixt Conny and Barham the same Plea was pleaded and holden no Plea. Also if this Plea should be allowed Conny and Barhams Case great mischiefs would follow for then no Debts should be satisfied by the Executors for it might be that the Statute was made for performance of Covenants which Covenants perhaps shall never be broken and afterwards Iudgment was given for the Plaintiff CCCCLXV Crew and Bails Case Trin. 32 Eliz. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in the Common Pleas Error 1 Cro. 216. in a Bill of priviledge brought by an Attorney of the said Court upon an Obligation and upon the said Iudgment issued forth process of Execution upon which the Defendant was Outlawed and the Error was assigned in this That upon that Iudgment process of Outlawry doth not lie for Capias is not in the original Action Priviledge and so was the opinion of the whole Court being upon a Bill of priviledge and the Outlawry was reversed and the Error was assigned in the first Iudgment because there were not fifteen days betwixt the Teste of the Venire facias and the return of it but that was not allowed for it is helped by the Statute of 18 Eliz. cap. 14. CCCCLXVI Wade and Presthalls Case Trin. 30 Eliz. In the Kings
E. 4. 44. A Writ of Annuity is brought against a Prior and it appeared That the Prior and his Successors have used to pay the Annuity as Parson of D. and not as Priors which Parsonage was appointed to the said Priory time out of mind and in the Writ the Defendant was named Prior only and not Parson and therefore the Writ was abated See 14 E. 4. 4. 10 H. 7. 5. In an Action of Wast So Bracebridges Case 14 Eliz. Plowd 420. The Case put by Catiline If the Parson Patron and Ordinary make a Lease for years and afterwards the Lessee becomes there Incumbent the Term is not extinct for he hath the Term in his own Right and the inheritance in the Right of his Church which see 30 H. 8. Dyer 43. A Parson purchaseth and after leaseth his Parsonage he himself shall pay Tithes notwithstanding this Vnity and as to the reason of the other side That if such discharge of Tithes be not intended by the Statute but only a Discharge in Law the Statute should be in vain the same is not so for if the Abbot had been discharged by way of Release of Composition for the Monastery being dissolved the Appropriation had been good if it had not been supported by the Statute and then the Release and Composition of no force and the King should not take advantage of it but by this Statute and as to Whartons Case before cited the same cannot be Law for it hath been holden upon the Statute of 18 Eliz. of Confirmations That if an Infant maketh a Lease to the King the same is not made good by the Statute for the said Statute extends to imperfections in circumstances and not in substance And although the Lease be not good yet because the matter of the surmise is naught although our Bar be naught a Consultation ought to be granted also our Lease is well pleaded and if such defect be in it as hath been objected the same ought to come in by Plea on the other side and it is not like Heydons Case for there it was found by special Verdict not to Cromwells Case where such defect was in the Declaration and so no ground of Action as to the Traverse it is good enough as if special Bastardy be pleaded against one born before the marriage and so Bastard the other party shall traverse generally the Bastardy and not the special matter but for the principal matter i. this unity of possession divers rules have been 5 Eliz. in the Common Pleas the Case was An Abbot had a Manor within the Parish of D. and a Composition was made betwixt the Parson of D. and the said Abbot that the Parson should have yearly certain Loads of Wood out of thirty Acres of the said Manor for and in recompence of all the Tithes of Wood there afterwards the Parsonage was appropriated to the said Abbot and afterwards the house was dissolved and the Manor granted to one and the Rectory to another and it was holden That the portion of the Tithes was removed for he had them scil The Manor and the Tithes in several Rights And Manwood Chief Baron and Periam Iustice to whom a Case depending in the Chancery was referred concerning the discharge of Tithes by unity of possession delivered their opinions That such an Vnity is not any discharge within the said Statute It was adjorned CCCCLXVIII Hoskins and Stupers Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumpsit That whereas the Plaintiff had sold to the Defendant 1000 couple of Newland Fishes to the use of the Defendant and in consideration that he should ship and should bring and carry the adventure of them from Bristol in portum of Saint Lucar and should carry back again the value of the said Fish to London or Bristoll secundum usum Mercatorum The Defendant did promise that upon the arrival of the said Fish in portum of St. Lucar he would give to the Plaintiff 112 l. and said that he arrived with the said Fish ad portum of St. Lucar and that afterwards he arrived with goods of the value of the said Fish ad portum of London secundum usum Mercatorum It was holden by all the Iudges that in portum and ad portum is all one Exposition of words as the Statute of Wast is Quod vicecomes accedat ad locum vastatum yet he ought to enter into the Land So the Writ of accedas ad Curiam in plena Curia recordari facias c. Another Exception was because he declared That he returned with goods to the value and doth not say whose goods they were but the Exception was not allowed for these words secundum usum mercatorum imply that they were the goods of the Defendant Quod fuit concessum per Curiam and afterwards Iudgment was given for the Plaintiff CCCCLXIX Walgrave and Agurs Case Trin. 32 Eliz. In the Kings Bench. SIr William Walgrave brought an Action upon the Case against Agur upon these words spoken by the Defendant to a servant of the Plaintiff Action for scandalous words 1 Cro. 191. It is well known that I am a true subject but thou innuendo the said servant servest no true subject and thine own conscience may accuse thee thereof It was moved in arrest of Iudgment That these words are not actionable for no slander comes to the Plaintiff thereby for perhaps the Party served no man but the Queen and if the words may receive such sense Sâ—vage and Cooks Case which is no pregnant proof of infamy they are not actionable as in the Case betwixt Savage and Cook These words Thou art not the Queens friend are not actionable for it might be they were spoken in respect of some ordinary misdemeanours as in not payment of Subsidies or the like Also it is not averred that the party to whom the words were spoken was the Plaintiffs servant Coke Where a man is touched in the duty of his Office or in the course of life an Action lieth although that otherwise the words are not actionable and here is set forth in the Declaration That the Plaintiff at the time of the speaking of the said words was a Iustice of Peace and Sheriff of Suffolk and Captain of a Troop of 120 Horse to attend the Preservation of the Queens person So in respect of place and dignity in the Commonwealth as 2 H. 8. The Bishop of Winchester brought an action upon the Statute of Scandal Magnatum upon these words My Lord of Winchester sent for me and imprisoned me until I made a Release to J. S. and in respect of his Place and Dignity the words were holden actionable and 9 Eliz. Dyer In an action upon the Case by the Lord Aburgaveney against Wheeler My Lord of Aburgaveney sent for us and put some of us into the Coal-house and some into the Stocks and me into a place in his house called Little
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
Eliz. In the Common Pleas. Debt KYnter brought debt upon an Obligation the condition was that whereas the Plaintiff had bought of the Defendant a Ship if then the Defendant shall enjoy the said Ship with all the furniture belonging to the same without being disturbed for the said Ship or any furniture appertaining to it that then c. and the Case was that after the sale of the said Ship a stranger sued the Plaintiff for certain monies due for certain Ballast bought by the Defendant for the same Ship and put into the said Ship before the sale of it and in the said suit the Plaintiff obtained a Iudgment and Execution and thereupon the said Ship was seised and all the matter was if Ballast be furniture of a Ship or not And it was moved by Serjeant Gawdy that it was for Ballast is as necessary to a Ship as a Sail but the Court was against him for somtimes a Ship may sail without Ballast for it may be laden with such Merchandizes which are convenient Ballast in themselves as Coals Wheat c. Periam at the first doubted of it and by him if I be bound upon condition ut supra I am bound to deliver the Guns being in it at the time of the sale but yet he conceived that the Plaintiff should be barred because he had not specially shewed that at the time of the sale the Ballast was in the Ship. LX. Pendleton and Gunstons Case Mich. 28 29 Eliz. In the Common Pleas. PEndleton informed against Gunston upon the Statute of 13 Eliz. Cap. 5. for that where the said Pendleton had before brought a plaint of Debt against I.S. in the Guild-Hall of Norwich upon which issued out of the said Court an Attachment against the said I.S. by which the Sheriff of Norw being ready by virtue of the said process to attach the said I. S. by his goods there the now Defendant in disturbance of the said process and the execution of it did publish and shew to the Sheriff a conveyance by which he claimed the said goods as conveyed to him by the said I. S c. and averred the fraud c. and it was moved by Serjeant Snagg that the matter of which the Defendant is charged is not within the said Statute because the avowing of the said conveyance doth not go in delay of the execution for no Iudgment is given but only in delay of process but the Court was clear of opinion to the contrary and that by reason of the Statute and the words of it scil delay hinder or defraud Creditors of their just and lawful Actions sutes c. for here is a delay for want of serving the said Attachment the Appearance of I.S. to the sute of the Plaintiff is delayed which mischief is within the remedy of the said Statute And Periam and Rhodes Iustices conceived that such avowing of such conveyance where no sute is depending is within the said Statute which Anderson doubted See the pleading of this Case reported in the second Book of Entries 207 208. 30 Eliz. per quod secta impedita fult c. LXI Mich. 28 29 Eliz. In the Common Pleas. FEnner Serjeant moved this Case 4 Len. Alien Purchasor An Alien purchaseth Lands in Fee The Queen confirms it to the Alien Office is found if the confirmation shall bind the Queen and it seemed to some that it should for by the Lord Anderson Confirmation when an Alien is enfeoffed he receiveth by the Livery the Fee-simple of which he shall be seised until Office be found and a Praecipe quod reddat lyeth against him And by Fenner an Alien and Denizen Ioynt-tenants are disseised they both shall joyn in Assize vide 11 H. 4. 26. and by him the Kings Nief being an Inheritrix takes a Husband and hath issue Office is found the Husband shall be Tenant by the Curtesy which see 33 E. 3. Traverse 36. It was argued of the other side that the estate of the Alien is so feeble that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be enfeoffed to another use and if he be such use is void for there is not a sufficient seisin in the Alien to carry an use And it hath been adjudged in the Case of one Forcet that where an Alien and the said Forcet were Ioynt-purchasors and the Alien died Forcer had not the whole by the Survivor but that upon an Office found the Queen should have the moyety See Dyer 11 Eliz. 283. LXII Sir Roger Lewknor and Fords Case Mich. 28 29 Eliz. In the Common Pleas. 1 Cro. 17. Co. 5. Rep. 12. b. SIr Roger Lewknor seised of the Manor of Wallingford leased the same to A. for years and died after which it was Enacted by Parliament That the said Manor should from henceforth be deemed and reputed in the Heirs of the body of the said Sir Roger begotten upon Eliz. his Wife the said Sir Roger having three Daughters only without any other issue The Daughters married Husbands and had issue A. assigned his enterest in the said Manor to B. C. and D. and also to one Shelley B.C. and D. assigned their interest to one Sponer one of the Defendants and Shelly assigned his fourth part to Ford another of the Defendants excepting the Woods and Vnderwoods Wast is committed one of the Daughters having issue dieth living her Husband the two surviving Sisters and their Husbands the Term being expired brought a Writ of Wast leaving out the Husband of the third Sister who was Tenant by the Curtesy against Shelley and Sponer who Tenuerunt Shuttleworth Serjeant took Exception to the Writ scil praedictus Rogerus cujus haeredes ipsae funt which shall be intended Heirs general and by the Declaration it appeareth that the Daughters have to them by Act of Parliament an especial inheritance as Heirs in special tail and that by a special conveyance and therefore the Plaintiffs ought to have brought a special Writ according to their Case as where Cestuy que use maketh a lease for years by the Statute of 1 R. 3. and the Lessee committeth Wast now the Feoffees ought to have a special Writ of Wast according to their Case 26 H. 8. 6. but that exception was disallowed and the case cited out of 6 H. 8. is upon another reason for in such case the estate of the Lessee for years is created by the said Statute Another Exception was taken to the Writ for the Writ is tenuerunt which shall be intended prima facie conjunctim tenuerunt and in the Declaration it appeareth that one of the Defendants is assignee of three parts of the Lands demised and the other Defendant of the fourth part and so separatim tenuerunt but that Exception was also disallowed because originally it was one and intirely demised interest and estate and so it remaineth as to the Plaintiffs although it be devised by the Lessee himself
Tanfield contrary I confess that the Father ought to have the marriage of his Son and Heir so long as he is sub potestate patris but here the Father hath committed all his interest power and authority in his Son to the Defendant his Master with whom he hath bound his Son Apprentice for seven years during which term the Father hath not any thing to do with his Son or his Marriage Wray The Action Quare filium haeredem c. is not given to the Father because his marriage belongs to him but because of the Education and such was the opinion of Clench Iustice and the marriage doth not belong properly to the Father For if the Son marrieth himself without the leave of the Father there is not any remedy for the Father And afterwards Iudgment was given against the Plaintiff LXIV Bullers Case Pasch 29 Eliz. In the Common Pleas. â—â—â—â—evin EDmund Buller brought a Replevin against two who make Conusans as Baylies to A. for rent arrear reserved upon a lease for life To which the Plaintiff in Bar of the Conusans pleaded that two strangers had right of Entry in the place where 2 Len. 196. c. and that the said two Defendants by their Commandment entred c. and took the Cattle of which the Replevin is brought damage feasant absque hoc that they took them as Baylies to the said A. and upon that Traverse the Defendants did demur in Law. 2 Len. 216. Post 327. Shuttleworth Serjeant the Traverse is not good for by that means the intent of the party shall be put in issue which no Iury can try but only in Case of Recaption See 7 H. 4. 101. by Gascoign If the Bayly upon the distress shews the cause and reason of it he cannot afterwards vary from it but the other party may trice him by Traverse but if he distrain generally without shewing cause then he is at large to shew what cause he will and the other party shall answer to it â— Co. 7â— And it was said by the Court that when a Bayly distreins he ought if he be required to shew the cause of his distress but if he be not required then he is not tied to do it Anderson We were all agreed in the Case betwixt Lowin and Hordin that the Traverse as it is here was well taken The Number Roll of that Case is M. 28 29 Eliz. 2494. LXV Hudson and Leighs Case Pasch 29 Eliz. In the Kings Bench. HUdson recovered against Leigh in an Action of Battery for which a Capias pro fine issued against Leigh and also a Capias ad Satisfaciendum returnable the same Term at one and the same Return Process As to the Capias pro fine the Sheriff returned Cepi and as to the Capias ad Satisfaciendum non est inventus And for this contrariety of the Return the Court was of opinion that the Sheriff should be amerced but it was moved by the Council of the Sheriff Return of the Sheriff that the awarding of the Capias pro fine was meerly void for the Fine is pardoned by the Parliament And it is also Enacted That all process awarded upon such Fines shall be void and then the Capias pro fine being void it matters not how or in what manner it be returned for the Court shall not respect such process nor any return of it and then the Court not having resepect to that Return there is not any contrariety for the Capias ad Satisfaciendum only is returned and not the Capias pro fine And at another day it was moved again the Battery was supposed Junij 1586. and Iudgment given the thirteenth of February the same year upon which issued Capias pro fine Escape 5 Co. â—â— and before the Return thereof the Parliament ended which pardoned such Fines and made all process thereupon void And it was said by the Court that if the Sheriff in such Case takes the party by a Capias pro fine now upon that taking he is in Execution for the party and if the Sheriff let him go at large he shall answer for the escape And in that case the Capias pro fine was well awarded and the Court ought to regard it and the Defendant lawfully taken by virtue of it and also in execution for the party in Iudgment of Law and afterward when the Parliament came and Enacted ut supra although the process be made void thereby the same ought to be meant as to the interest of the King in the Fine and the vexation of the Subject by it but not as to the Execution of the party but the Sheriff shall answer for that Execution And it was also holden by the Court that if the Plaintiff sueth an Elegit then upon the Capias pro fine executed the Defendant shall not be adjudged in Execution for the party for he hath made his Election of another manner of Execution scil of the Land and he shall never resort to an Execution of the body 13 H 7. 12. And as our case is there was an Elegit obtained but it was not on Record nor any Record made of it and therefore the election of the Execution remained to the Plaintiff And as to the point aforesaid that such process shall be void as to the King only not as to the party See now 5 Ja. C. 6. part 79. Sir Edward Phittons Case LXVI Potter and Stedals Case Pasch 29 Eliz. In the Common Pleas. IN Trepass by Samuel Potter against Stedal the Case was Trespass Tenant for life of Land leased parcel thereof to hold at Will and being in possession of the residue levyed a Fine of the whole the Lessor entred into the Land which was let at will in point of forfeiture in the name of the whole it was holden the same is a good entry for the whole Ante 56. But if the Disseisor leaseth for years part of the Land whereof the disseisin was committed Entry 1 Inst 252. and the disseisee afterwards entreth into the Land which continueth in the possession of the Disseisor in the name of the whole the same Entry shall not extend to the Land leased for here the Lessee is in by title but in the other Case not for when Tenant for life leaseth it at will and afterwards levies a Fine the same is a determination of the Will. 16 Eliz. Dyer 377. 1. In the same plea it was holden that if there be lessee for life the remainder for life the remainder in fee Lessee for life in possession levyeth a Fine Sur Conusans de droit c. to his own use upon that Fine a Fee-simple accrues LXVII Leigh and Hanmers Case Pasch 29 Eliz. In the Common Pleas. Debt upon a Recognizance THomas Leigh Esquire brought an Action of Debt upon a Recognizance in the nature of a Statute Staple against John Hanmer Esquire before the Mayor and Aldermen
as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 Andâ— 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs
and damages and in an Action upon the Case brought upon that promise the Plaintiff was barred for here is not any consideration for they bailed the Servant of their own head without the request of the Master and the matter which is alledgged for consideration is executed before the Assumpsit and the promise was not before the enlargment and the said bailment was not at the instance Claytons Rep. 45. 1 Cro. 756. or request of the Master And the Case of one Hudson was cited adjudged in the Kings Bench The Defendant in consideration that he was Administrator and natural Son of the Intestate and that the goods of his Father have come to his hands promiseth to pay the debt to the Plaintiff And in an Action upon the Case upon that promise the Defendant pleaded he made no such promise and it was found that no goods came to the hands of the Defendant And it was holden that the consideration that he was Administrator and Son to the Testator was not of any force to maintain the Action and afterwards in the principal Case the Iudgment was affirmed And it was moved by Coke that Iudgment should not be given against the Executor of his own goods if he had not goods of the Testator for the charge doth not extend beyond the consideration i. e. That the goods of the Testator came to the hands of the Defendant But Wray Iustice was of opinion that Iudgment shall be of his proper goods as in Case of confession Kemp Secondary if the Action be brought upon Assumpsit of the Testator Iudgment shall be of the goods of the Testator but of the promise of the Executor of his own goods but the Original Iudgment which is now affirmed was general CXXII Savel and Woods Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 71. 3 Len. 203. 265. Post 128. THe Case was That a Parson did Libel in the spiritual Court against a Parishoner for Tythes of such Lands within his Parish the Defendant came into the Kings Bench and surmised and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place And it was argued by Coke that that could not be for a Parish Clark is not a person corporate nor hath succession But if he had prescribed that they had used to pay it to the Parish Clark to the use of the Parson it had been good Also he ought to shew that the Parson ought of right to find the Parish Clark c. And he cited the Case of Bushie the Parson of Pancras who libelled in the Spiritual Court for Tithes The Defendant to have a prohibition did prescribe that he and all those c. had time out of mind c. used to pay to the Vicar c. and at last a Consultation was awarded because it was triable in the Ecclesiastical Court for both parties as well Vicar as Parson are spiritual persons and the modus decimandi is not in question but cui solvend And at another day it was agreed by the Iustices that of common right the Parson is not tied to find the Parish Clark for then he should be said the Parsons Clark and not the Parish Clark But if the Parson be tied to find such a Clark Challenge and such a sum hath been used to be paid to the Parish Clark in discharge of the Person the same had been a good prescription and so by way of composition and by Clench Tythes are to be paid to spiritual Persons but a Parish-Clark is a Lay-person And afterwards the Court granted a Consultation CXXIII Higham and Reynolds Case Hill. 30 Eliz. In the Kings Bench. IN an Action of Trespass the Plaintiff declared that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie because that the Free-hold of the house 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass c. upon which the Plaintiff did demur in Law because the Defendant did not traverse without that that he was guilty before or after And the opinion of Wray was that the traverse taken was well enough because the Free-hold shall be intended to continue c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray But they all agreed that where the Defendant doth justifie by reason of his Free-hold at the day supposed in the Declaration there the traverse before is good enough And afterwards Iudgment was given against the Defendant CXXIV Knight and Footmans Case Hill. 30 Eliz. In the Kings Bench. IN Trespass by Knight against Footman the Case upon the pleading was that one Margaret had issue two Sons Richard and Thomas Surrender of Copy-hold Land. and surrendred to the use of Richard for life and afterwards to the use of Thomas in Fee they both Thomas being within age surrender to the use of one Robert â—ap John in Fee who is admitted Richard dieth Co 1 Inst 248. Thomas dieth having issue A. who is also admitted and enters into the Land and if his entry be lawful or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question And Wray was clear of opinion that it was And if a man seised of Copy-hold Land in the right of his Wife or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee the same doth not make any discontinuance but that the issue in tail and the Wife may respectively enter 1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case when Audley who afterwards was made Chancellor of England was made Serjeant and afterwards it was adjudged that the entry of the Enfant was lawful CXXV Sir Wollaston Dixies Case Mich. 29 Eliz. In the Exchequer AN Information was in the Exchequer against Sir Wollaston Dixie upon the Statute of Vsury upon not guilty pleaded Information upon the Statute of 13. Eliz of Usury The Informeâ— gave in evidence an usurious Contract upon a bargain of Wares The opinion of the Court was that the Information being exhibited for the loan of money that the Evidence was not pursuing nor leading to the Issue And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty And it was moved in arrest of Iudgment that the Evidence did not maintain the Information nor prove the Issue ex parte Querentis and it was said there are three things within the Statute i. three words i. bargain loan and cheivizance and these three are several things and therefore if the Information be conceived upon loan and the Informer giveth in Evidence a corrupt
be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be
demanded by the name of a house And afterwards the Writ was awarded good but a special Iudgment was given ita quod querens recuperet Messuagium praedict viz. so many feet in length and so many in breadth according to that which was found by the Verdict CCXI. Degory and Roes Case Trin. 31 Eliz. In the Common Pleas. Debt DEgory brought Debt upon an Obligation against Roe as heir to his Ancestor The defendant pleaded That his Ancestor by his deed did covenant with Sir W. Winter and A. Marsh to stand seised to the use of himself for life and afterwards to the use of the Defendant and his heirs and so he had nothing by descent The Plaintiff replicando said non convenit and it was found by special verdict That such a deed of Covenant was made by the Ancestor of the Defendant but the first use was limited to the Covenantor and his wife for their Lives c. And that he delivered the same to I. S. as his deed to the use of the said Sir W. VVinter and the said Marsh if the said Sir W. VVinter would agree to the same and take the charge of it upon him and if he will not agree That then it should not be his deed and further found That Sir W. Winter died before any agreement and it was moved by Periam If the same be presently the Deed of the Ancestor or if it do not take effect till the condition be performed sci until Sir W. Winter hath agreed to it See 14. H. 8. 17 18 19 20 23. And by Walmesly Deeds when to take effect The same is not the Deed of the Ancestor until Sir William hath agreed But by Anderson and Periam although Sir William Winter doth not agree to it yet it is the deed of Roe for although a deed be upon condition ut supra yet because he delivered it as his deed and the Condition is subsequent to it It shall be taken for his deed and the condition after shall be void because repugnant For although that in Estates limited to men the estate may be precedent and the condition subsequent the not performance of the condition may destroy the estate for the estate is always subject to the condition yet it is not so in Deeds for being once the deed of the party it can never cease to be his deed after it is once delivered as his deed Owen Although the same be the deed of the party yet it is not well pleaded he conceived the issue is found against him for the Covenant is pleaded to stand seised unto the use of himself for life the Remainder over To which the Plaintiff Replicando saith non convenit so as the Issue is if any such Deed of Covenant was and the Iury find That the Covenant was to stand seised to the use of himself and his wife c. so as it is not such a Deed as the Defendant hath pleaded for other estates are limitted by it and therefore it shall not be intended the same Deed. Periam The same is not material for the substance of the Plea is Nothing by descent c. and it was adjourned CCXII. The Scholars of All-souls in Oxford and Tamworths Case Trin. 31 Eliz. In the Common Pleas. IN a Writ of Night by the Colledge of All-souls in Oxford against Tamworth Writ of Right 1 Cro. 232. the Writ was Quod clamat tenere de nobis in liberam puram et perpetuam Elemosinam And exeception was taken to it because it ought to be in liberam Eleemosinam sans pura perpetua also it ought to be Eleemosina with a Double e and not Elemosina with a single e but the exception was not allowed For as to the first Exception it is but surplusage and as to the other It is the common course Another exception was taken to the Writ because the words are quod clamat esse jus haereditatem suam without saying in jure Collegii Anderson The Writ is good enough If a Parson plead that he is seised he shall say in jure Ecclesiae for he hath two capacities and without such words here shall be intended seised in his own Right But if an Abbot plead that he was seised there needs not such words for he hath no other capacity so of Dean and Chapter Mayor and Comminalty And afterwards the Writ was awarded good and that the Tenant should answer over c. See Book Entries 236 237. It was also moved If the Colledge shall count of its seisin within 30 years because that the Corporation never dies and then if he count of its own possession the same is without limitation And it was holden that if the Guardian of the Colledge which now is was ever seised he ought to count upon a seisin within thirty years But upon the seisin of his Predecessor he ought to count of a seisin within 60 years as another common person for the change of the Teste of such a seisin is as the dying seised and descent of a common person CCXIII. The Lord Buckhurst and the Bishop of Winchesters Case Trin. 31 Eliz. In Communi Banco Quare Impedit THe Lord Buckhurst brought a Quare Impedit against the Bishop of Winc. and counted that he was seised of the Manor of D. to which the Advowson was appendant and that the said Church became void and that he presented Maurice Sackvil his Clark. The Defendant pleaded that he was seised of the said Advowson as in gross and presented one Maurice Sackvil absque hoc that the Advowson was appendant It was moved that the Defendant ought to traverse the Presentment and not the Appendancy especially as the cause is here where they both present one and the same person To which it was said that that doth not appear for the Defendant hath pleaded that he presented Maurice Sackvil but doth not say praedict Maurice Sackvil so as it may be he is not the same person but another See 10 H. 7. 27. The Traverse is well taken contrary where the Plaintiff declares of an Advowson in gross and that he to the same presented and the Defendant pleadeth that he is seised of such a Manor to which the Advowson is appendant c. without that that the Advowson is in gross there he shall traverse the presentment for the presentment shall make it in gross See 13 H. 8. 12. CCXIV. Jennings and Winches Case Trin. 32 Eliz. In the Common Pleas. Assumpsit IN an Action upon the Case by Jennings against Winch. The Plaintiff declared upon an Assumpsit by the Defendant 1 Maii. 32. Eliz. and counted upon a Mutuatus for twenty shillings and an Indebitatus for four pounds The Defendant pleaded that he being endebted to the Plaintiff in five pounds and W. S. in another five pounds they became bounden to the Plaintiff in twenty pounds for the payment of ten pounds in satisfaction of the said sum of five pounds and
Charters of Corporations there is always such a clause per tale nomen implacitare implacitari acquirere c. possint and without their Name they are but a Trunk but contrary in the case of particular persons Land is given primogenito filio J. S. It is a good gift although there be no Name of Baptism Lands given omnibus filiis J. S. is a good name of purchase and if a man be bound in an obligation by a wrong or false Name and in an action brought upon the same if it appeareth upon evidence that he was the same person which sealed and delivered it the same is sufficient and the Bond shall bind him But contrary in the case of a Corporation and we cannot give any thing to a Corporation by circumstances inducing or implying their true name As Land given to the first Hospital which the Queen shall found Ante. 161 162. although that it sufficiently appear That such a one was the Hospital which the Queen first founded yet the gift is void And he denied That the four things remembred before are necessarily required in the Name of a Corporation for if the Queen will found a Corporation as an Hospital by the Name of Utopia the same is well enough without any respect of persons place Founder c. set forth in the Charter And also other things besides the said four things are sometimes necessary in a Corporation As if the Queen will found an Hospital by the Name Quod fundavimus ad roga Christ Hatton Cancel Angliae all the same ought to be expressed in every grant made by or to the said Hospital So Quod fundavimus ad relevandum pauperes and sometimes the number of the persons incorporated if it be in the Charter it ought to be used in all acts made by or to them As Master and sir Chaplains so as the said four things recited before are not so necessary in the Name of a Corporation but so far forth as they are parcel of the Name given to them in the Charter of the Corporation And in our case 1. The place de le Savoy is part of their name set down in the Charter of their Corporation and therefore the same ought to be precisely followed And he relyed much upon the argument of Cook in noting material variances betwixt de le Savoy and vocat le Savoy as de signifies part vocat the whole de signifies the place de facto vocat implyes reputation only There is a place near unto Whitehal called Scotland because that the Kings of Scotland when they came to our Parliament used there to reside as the Lord Treasurer affirmed There is also a place in England called Normandy and another called Callais and also a place here in Westminster called Jerusalem but these Scotland c. but by Reputation so as what difference is betwixt the very Scotland and Scotland here c. such and so much difference is there betwixt the Hospital de le Savoy and the Hospital vocat the Savoy And as to that which hath been objected by Atkinson That that word de signifies as well the whole as part as a Rent granted percipiend de Manerio de D. I confess that this word de hath many significations so that we ought not only to consider what de signifyes of it self but rather to observe what goes before what follows for as saith Hillary intelligentia verborum ex causa dicendi sumenda est And this word de is a material word in the Name of a man therefore also in the name of a Corporation 26 H. 6. 31. Assise by I. de S. and it was found for him and afterwards the Tenant in the Assise brought attaint and in the rehersal of the Assise in the writ of attaint he was named I.S. leaving out de and for that cause the Writ did abate 28 E. 3. 92. Debt brought by the Executor of John Holbech where the Testament was John de Holbech and for want of this word de in the Writ it was abated by Award And in a Praecipe quod reddat against Mich. de Triage he cast a Protection for Michael Triage leaving out de and for such variance the Protection was disallowed and a Petit cape awarded And although the Iudges in their private knowledge know well enough That the Hospital de le Savoy and the Hospital vocat the Savoy be all one yet in point of Iudgment they ought not otherwise receive information but out of the Record and therefore if sufficient matter be not within the Record to inform the Iudges of the Identity of the said two Hospitals their private knowledge shall not avail And he cited the cause of the Lord Conniers where the Parties being at issue and the Iury charged for the trial of it It was found by special verdict That a fine was levyed of the Lands in Question c. but nothing found of the Proclamations whereas in truth the Proclamations were as well given in evidence as the fine But found Quod finis levatus fuit prout per recordum finis ipsius in evidenciis ostensum plenius apparet Now in that case although that the Iustices knew well enough That the Proclamations were expressly given in evidence yet because it did not appear unto them as Iudges out of the Record They would not give Iudgment according to the truth of matter but according to the Record for they cannot take notice if the Proclamations be in the Chirographers Office or not But after it appeared unto them That that defect was but a slip of the Clerk they commanded the Record to be brought before them and the Proclamation to be inserted in the verdict and then gave Iudgment according to the verdict reformed as aforesaid And as to the Case of Martin Colledge cited before he said he was of Councel in it and he knew That the Iudgment there was not given for the cause alledged by Cook but because that this word Scholars was left out in the Lease And he held that if in the principal Case the Lease had been That the Master and Chaplains of the house called the Hospital of the Savoy c. it had been well enough for there is de le Savoy See a good case 36 H. 6. fitz Brief 485. by Danby a Corporation cannot be Tenants of Lands but according to their Corporation and their foundation and their very Name nor they cannot be impleaded nor take Lands by a wrong Name nor purchase nor dispose of their possessions but by their true Name And afterwards the matter was compounded by the mediation of Friends and Fanshaw had the Lease for a certain sum of mony See now Cook 10 Report The Case of the Mayor and Burgesses of Lyn Regis See also Cook 11. Report 18. Doctor Arays Case to this purpose CCXXIX Huson and Webbs Case Mich. 30 31 Eliz. In the Common Pleas. RObert Huson brought an action of Debt against Anne Webb Debt lieth not against
their no cause of Action CCXXXVI Salway and Lusons Case Mich. 30 31 Eliz. In the Common Pleas. MAtthew Salway brought a Writ of Right against Luson Writ of Right 2 Len. 36. and the Writ was Messuag 200. acr jampnor bruerae And exception was taken to the Writ because jampnor bruerae are counted together where they ought to be distinguished severally As so many acr jampnor and so many acr bruer although it were objected on the part of the demandant in the maintenance of the Writ that in the Register the Writ of Right is reditu unius librae of Cloves and Mace together Abatement of a Writ without distinction or severance And it was said that in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because this word Pomarium was put in the Writ for in the Register there is no such Writ because the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353 In a Writ of Entre sur disseisin mille acr jampnor bruer But this exception was not allowed for it may be that jampnor bruer are so promiscuous that they cannot be distinguished Vide 16 H. 7. 8. 9. The respect the Iustices had to the Register was such as they changed their opinions and conformed the same to the Register Another exception was taken to the Writ because thereby the Demandant doth demand Duas partes Custodiae del Hay in the Forrest of C. And the Court was of opinion that the Writ ought to be Officium Custodiae duarum partium de Hay c. and not Duas partes Custodiae As Advocationem duarum partium Ecclesiae And not Duas partes Ecclesiae Another Exception because the Writ was duas partes c. in tribus dividend where it should be Divis for Dividend is not in any Writ but only in a Writ of Partition And by Windham the parts of this Office are divided in Right which the Court granted Another Exception was taken because that in the Writ it is not set down in what Town the Forrest of C. is so as the Court doth not know from whence the Visne should come For no Venire shall be de vicineto Forestae as de vicineto Hundredi 1 Cro. 200. Manerii And the same was holden to be a material Exception Another Exception was taken Visne because a Writ of Right doth not lye of an Office for at the Common Law an Assise did not lye of it but now it doth by the Statute of West 2. Cap. 25. for it was not Liberum ten but the party grieved was put to his Quod permittat And of this opinion was the whole Court. CCXXXVII Smith and Lanes Case Mich. 30 31 Eliz. In the Common Pleas. THe Queen was seised of a Manor whereof Bl. acr was holden by Copy in Fee the Queen leased Bl. acr to B. for one and twenty years who assigned the same to the Copyholder who accepted of it The Queen granted Bl. acr to C. in Fee Copyholder determined by acceptance of a Lease 2 Co. 16 17. the term expired C. entred and his entry was holden to be congeable for by acceptance of the sam Term the Customary Estate was determined as if the Copy-holder had accepted it immediatly from the Queen It was also holden by the Court that a Lease for years under the Seal of the Exchequer may be pleaded and that without making mention of the Commission by which the Court of Exchequer is authorized to make such Leases And so are all the Presidents as well in this Court as in the Court of Exchequer And whereas the Court was upon the point of giving their Iudgment It was objected by Shuttleworth Serjeant That here is pleaded a Bargain and Sale of Land without saying pro quadam pecuniae summa And he stood much upon the Exception and the Court also doubted of it and demanded of the Prothonotaries what is their form of pleading Bargain and Sale and consideration of it And by Nelson cheif Prothonotary these words Pro quadam pecuniae summa ought to be in the pleading Scot Prothonotary contrary Anderson conceived it was either way good but Pro quadam pecuniae summa is the best And so Leonard Custos Brevium conceived And the opinion of the Iustices was that a Bargain and Sale for dives Causes and Considerations is not good without a sum of money 1 Co. Mildmays Case And by Windham Bargain and Sale Pro quadam pecuniae summa although no money be paid is good enough for the payment or not payment is not traversable And by Periam If Pro quadam pecuniae summa be not in the Indenture of Bargain and Sale yet the payment thereof is averrable And for this Exception the Iudgment was stayed CCXXXVIII Bedel and Moores Case Mich. 30 31 Eliz. In the Exchequer Chamber Action upon the Case for not performing an Award BEdel brought an Action upon the Case against Moore in the Kings-Bench and declared That the Defendant did assume to perform the Award of J.S. and assumed also that he would not sue Execution upon a Iudgment which he had obtained against the Plaintiff in an Action of Account c. And shewed further that the Award was made c. which Award in Law was utterly void and that the Defendant had not performed the said Award and also that he had sued Execution against the Plaintiff 10 Co. 131. 5 Co. 108. The Defendant pleaded Non-assumpsit and it was found for the Plaintiff and Iudgment given accordingly Vpon which Moore brought a Writ of Error in the Exchequer-chamber upon the Statute of 27 Eliz. And assigned Error Error because the Plaintiff had declared upon two Breaches whereas for one of them there was not any cause of Action for the Award is void in Law then no breach could be assigned in that and then when the Iury hath assessed Damages intirement for both breaches whereas for one there was not any cause of Action by the Law the Verdict was void then the Iudgment given upon it reversable for it is not reason that the Plaintiff have Damages for such matter for which the Law doth not give an Action And if the Iury had assessed damages severally viz. For the not performance of the Award so much Damages and for the suing forth Execution so much then the Iudgment had been good and the damages assessed for the not performance c. void Manwood Chief Baron The verdict is well enough for here the whole Assumpsit is put in issue and there is but one issue upon the whole Assumpsit but if several issues had been joined upon these several points of the Assumpsit and both had been found for the Plaintiff and damages assessed entirely for both breaches then was the Iudgment reversable for being several
as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by
upon a Deed. Hutt 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it and the occupation of the Land after the death of her Husband hath made it the Lease of the Husband only CCLXXV Rockwood and Rockwoods Case Mich. 31 32 Eliz. In the Common Pleas. Assumpsit 1 Cro. 163. IN an Action upon the case the case was this The Father of the Plaintiff and Defendant being sick and in danger of death and incending to make his Will In the presence of both his Sons the Plaintiff and Defendant declared his meaning to be To devise to the Plaintiff his younger Son a Rent of 4 l. per annum for the term of his life out of his Lands and the Defendant being the eldest Son the intention of his Father being to charge the Land with the said Rent offered to his Father and Brother That if the Father would forbear to charge the Land with the said Rent he promised he would pay the 4 l. yearly to his Brother during the life of his Brother according to the intention of his said Father Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother who answered he would whereupon the Father relying upon the promise of his said eldest Son forbore to devise the said Rent c. so as the Land descended to the Eldest Son discharged of the Rent and the opinion of the whole Court in this case was clear that upon the whole matter the action did well lye CCLXXVI Petty and Trivilians Case Mich. 31 32 Eliz. In the Common Pleas. Livery of seisin HUmphrey Petty brought Second Deliverance against William Trivilian and upon especial verdict the case was That A. was seised of certain Land and Leased the same for years and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee C. and D. conjunctim vel divisim in omnia singula terras et Tenementa intrate et seisinam inde c. secundum formam Chartae c. Lessee for years by himself makes Livery and seisin in one part of the Land and C. in another part and D. by himself in another part It was first agreed by the Iustices that by that Livery by Lessee for years his Interest and Term is not determined for whatsoever he doth he doth it as an Officer or Servant to the Lessor Secondly It was agreed That these several Liveries were good and warranted by the Letter of Attorney especially by reason of these words In omnia singula c. So as all of them and every of them might enter and make Livery in any and every part And so it was adjudged CCLXXVII Rigden and Palmers Case Mich. 31 32 Eliz. In the Common Pleas. RIgden brought a Replevin against Palmer who avowed for damage feasant in his Freehold The Plaintiff said Replevin That long time before that Palmer had any thing he himself was seised until by A. B. and C disseissed against whom he brought an Assise and recovered Avowry and the estate of the Plaintiff was mean between the Assise and the recovery in it The Defendant said That long time before the Plaintiff had any thing One Griffith was seised and did enfeoff him absque hoc that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands at the time of the Recovery Walmsley Iustice was of opinion That the Bar unto the Avowry was not good for that the Plaintiff hath not alledged That A.B. and C. Ter-Tenants tempore recuperationis and that ought to be shewed in every recovery where it is pleaded And then when the Defendant traverseth that which is not alledged it is not good Windham contrary For the Assise might be brought against others as well as the Tenants as against disseisors But other real actions ought to be brought against the Ter-Tenants only and therefore it needs not to shew that they were Ter-Tenants at the time of the Recovery and also the traverse here is well enough Another Exception was taken because the Avowry is That the place in which conteineth an 100 Acres of Land The Plaintiff in bar of the Avowry saith that the place in which c. conteins 35 Acres c. but that Exception was not allowed for it is but matter of form is helped by the Statute of 27 Eliz. Another Exception was taken as to the hundred of Cattel and doth not shew in certain if they were Ewes Sty 71. 264. or Lambs or how many of each which also was dissallowed for the Sheriff upon Returno habendo may enquire what cattel they were in certain and so by such means the Avowry shall be reduced to certainty CCLXXVIII RUssell and Prats Case Mich. 31 32 Eliz. In the Exchequer Chamber RUsell brought an action upon the case against Prat and declared That certain goods of the Testator casually came to the Defendants hands and upon matter in Law Iudgment was given for the Plaintiff sed quia nescitur quae damna Error c. Ideo a writ of Enquiry of Damages issued and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note That the Iudgment was given before the said Statute but the Writ of Enquiry of Damages was retorned after the said Statute Writ of Enquiry of Damages the said Statute doth not extend but to Iudgments given after the making of it And it was moved That the said Iudgment is not to be examined here but by the clear opinion of Anderson Manwood Windham Walmesley Gent and Clark Iustices of the Common Pleas and Barons of the Exchequer the Writ of Error lyeth here by the Statute 1 Cro. 235. for in an action of Trespass as this case is full judgment is not given until the Writ of damages be retorned And if before the Retorn of it any of the parties dieth the Writ shall abate and the first Iudgâ—ent which is given before Award of the Writ is not properly a Iudgment but rather a Rule and order and so in a Writ of accompt where Iudgment is given that the Defendant computet cum querente he shall not have Error upon that matter for it is not a full Iudgment See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass scil That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given And also it was holden by all the said Iustices and Barons That an Executor shall have an action upon the case de bonis testatoris casually come to the hands and possession of another Action de bonis Testatoris and by him converted to his own use in the life of the Testator and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris
and made partition of the Demeans only but the Services of the Free-holders and Copy-holders did remain in Common One of the Daughters took Husband the Husband and the Wife make a Lease of the moyety of the Manor to the Plaintiff for years by word rendring Rent the Lessee entred into the Demeans allotted to the Wife of the Lessor Partition The Husband died and the Wife brought an Action of Wast Anderson By the partition the Demeans are now become in gross and severed from the Manor And if partition be made of a Manor so as the Demeans be allotted to one Sister and the Services to the other now the Mannor is dissolved yet if the other Sister dieth without issue and her part descendeth to the other now it is become a Manor again which Windham and Periam granted 6 Co. 64. See 12. H. 4. 271. And Anderson was of opinion that the moyety of the Demeans did not pass by the words of the moyety of the Manor as if one seised of a Manor maketh a Feoffment in Fee of part of the Demeans and afterwards re-purchaseth them and then makes a Feoffment of the whole Manor the Demeans repurchased will not pass thereby for they were once severed from the Manor and not re-united by the purchase Periam Although that in truth it is not a Manor nor any part of a Manor yet if it hath beeen reputed the moyety of the Manor it shall pass by such name which Anderson grant ed but it is not like to our Case Periam This is an ancient partition as appeareth by the Verdict ten years past and also it hath been reputed the moyety of the Manor therefore it shall pass Windham concessit Periam The intent of the Grantor is the best Interpreter of these words without relying strictly upon the words Anderson If we shall take the intents of men for Law we shall fall into many confusions in our proceedings but the Law is to judge of the meanings of men by their words Ever in the constructions of Wills the intent of the Testators have not had further favour than the words have given leave As to the other point It was argued by Walmsley that the Lease made by the Husband and Wife without Deed was void See 1 Ma. Dyer 91. And if the Wife after the death of her Husband accepts the Rent upon such a Lease reserved it shall not bind her for the consent of the Wife ought to be at the beginning of it which cannot be without Deed. Anderson conceived that the Lease is not meerly void See 15 Eliz. Smith Stapletons Case Plowd 431. Periam The matter is clear for although the Plaintiff declares generally of a Lease made by the Husband Wife yet the Iury hath found that it was by Indenture and that is pursuant enough And if the Husband and Wife make a Feoffment of the Wives Land it is the Feoffment of doth of them which Walmesley granted It was adjorned CCLXXXIV Smalwood amd others against the Bishop of Lichfeild and others Quare Impedit Trin. 31 Eliz. In the Common Pleas. HUmphrey Smalwood Richard Say and Thomas Say Executors of VVilliam Say Quare Impedit 1 Cro. 241. brought a Quare Impedit against the Bishop of Coventry and Lichfeild and M. Incumbent quod permittat praesentare ad Archidiaconatum de Derby which was void Et ad praesentationem Testatoris in vita sua nunc in retardationem executionis Testamenti did belong to the Executors Exception was taken because these words In retardationem executionis Testament could not be applied to a disturbance in the life of the Testator Windham There is not any Writ in the Register of Quare Impedit upon a disturbance made to the Testator Anderson What then therefore no remedy because no Writ according to his special matter 25 E. 3. 25. Goods are taken out of the possession of the Testator upon which the Executors brought Trespass In retardationem executionis Testamenti Writ abated for it ought to be where the Executors themselves were possessed Periam The Advowson it self is valuable not the presentment therefore it cannot be said in retardationem Periam Before the Statute of 4 E. 3. 73. In Case were damages were only to be recovered the Action moritur cum persona but where the thing it self was to be recovered there the Action accrued to the Executors Anderson 7 H. 4. 73. Ejectione firmae of an Ejectment made unto the Testator was maintained by the Executors be equity of the Statute of 4 E. 3 cap. 6. And by the opinion of the whole Court the Executors might have a Quare Impedit upon a disturbance made to the Presentment It was objected also that a Quare Impedit doth not lye of an Archdeaconry-ship for it is not local nor any Indenture made of it but is only a matter of function but it was not allowed for â—iii Archdeacon hath Locum in Coro And by the Statute a Quare Impedit lyeth of a Chappel and by the equity of it of a Prebend c. See the Statute of West 2. Quare Impedit of a Chappel Prebend c. It was moved if the Executors had presented after the death of the Testator whether the Archdeacon ought to receive the Clark of the Testator or of the Executors and the opinion of the Court was That the Bishop should have election therein And afterwards Iudgment was given that the Writ should abate for the disturbance to the Testator cannot be supposed new matter In retardationem executionis Testamenti But yet it was agreed that the Executors might have their special Writ upon their Case for the said disturbance Trin. 31 Eliz. In Communi Banco IN an Action brought against one as Executor who pleaded that he refused upon which the parties were at Issue The Bishop did certifie 1 Cro. 81. 3â—â— 2 Len. 180. quod non recusavit whereas in truth he had refused before the Commissary Tenner Serjeant moved to have the advice of the Court upon that matter and argued that the Court ought to write to the Commissary Which was denyed by the whole Court for he is not the Officer unto the Court to that purpose but the Bishop himself is the Officer And the party cannot aver against the Certificate of the Bishop no more than against the Retorn of the Sheriff The Court was also of opinion that the only remedy for the Defendant was by Action upon the Case against the Bishop for his false Certificate But it was moved That the Issue joyned upon the refusal ought to be tryed by Iury and not by the Certificate of the Bishop and so was the opinion of Windham and Walmesley Periam Where the Issue is whether the Executor did refuse before such a day or after there the tryal shall be by Iury contrary where the Issue is upon refusal generally because the refusal is before him as a Iudge as also is Resignation CCLXXXVII Sutton and Holloway and Dickons Case
covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25â— that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her
hoc that he was indebted to the Plaintiff antea vel post the said day aliquo modo upon which the Plaintiff did demur It was argued that the Traverse was not good for the consideration in Assumpsit is not traversable because it is but conveyance and amounts to the general Issue as in debt upon the sale of a Horse it is no Plea for the Defendant to say that no such Horse was sold to him Patridge If the conveyance be the ground of the Suit it is traversable an Action upon the Case against an Hostler it is a good Plea that he is not an Hostler 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case the Plaintiff declared that whereas the Defendant habuit ex deliberatione of the Plaintiff certain goods the said Defendant in consideration of ten shillings Assumpsit eidem querenti promisit salvo Custodire c. Non habuit ex deliberatione is a good Plea. Godfrey The Defendant doth not answer the point of our Action which is the Assumpsit but only by way of Argument 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff and his Confreers by their Deed under their Common Seal the Plaintiff Replicando saith That at the time of the making of the Lease there was no such Colledge and it was holden no Plea for it is no answer but by Argument Gawdy Iustice In all cases where the Defendant may wage his Law there the conveyance is traversable Wray The cause of the Action is the Assumpsit therefore the consideration is not traversable for it is not the point with which the Plaintiff is charged And it is common here that the Declaration in such Action upon the Case Traverse in consideration of divers sums of money without any more certainty is good which should not be good if the consideration were traversable but the consideration is to be given in Evidence and it is also common that in an Action upon the Case in Trover and Conversion the Trover is not traversable for the Conversion is the point of the Action Fenner Iustice The debt here is no cause of the Action but only the Assumpsit In debt upon Arbitrament the Arbitrament is traversable So in debt for Rent upon a Demise the Demise is traversable Antea 189. for the Arbitrament and Demise is the cause and ground of the Action At another day it was moved again and Gawdy mutata opinione said that consideration Executory is traversable As where one in consideration that he may marry my Daughter or of service promiseth to pay the same consideration is traversable contrary of a Consideration executed And afterwards Iudgment was given for the Plaintiff CCCXLI Estons Case Trin. 33 Eliz. In the Court of Wards ESton was seised of Lands in Fee holden of the King in chief 1 Cro. 243. and took a Wife seised of other Lands holden in Socage they have Inne and the Husband dieth and afterwards the Wife dieth Owen Serjeant conceived That the Queen should not have the Wardship of the Land of the Wife or the primer seisin of it And if the Husband had survived his Wife being Tenant by the Curtesie the Queen should not have Primer seisin of it after his decease Wray If the Father be seised of Lands holden in Soccage and the Mother of Lands holded in Knights service and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all Anderson denied that and he conceived That the opinion of Stamford is not Law and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief and the Mother of other and the Father dieth and afterwards the Mother dieth both shall be in ward And it was said That if there be Grandfather Father and Son and the Father dieth seised of Lands holden in Socage and afterwards the Grandfather dieth seised of Lands in Knights service the Lands in Socage shall not be in ward Anderson held strongly That the Queen should have Primer seisin of the Lands of the Mother Wray contrary Quaere CCCXLII Ellis Hartops Case Trin. 33 Eliz. In the Court of Wards ELlis Hartop was seised of divers Lands whereof part was holden of the King in Knights service and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother and his wife and afterwards to the use of the said T. and his Heirs males T. died in the life of the Devisor and afterwards a Son is born First it was agreed that a Devise might be to the use of another Then when Cesty que use dyeth in the life of the Devisor the Devisee shall take it and when a Son is born it shall go to him But if the use be void then the Devisee shall have it to his own use for every devise doth imply a consideration Coke was of opinion That the Son takes by descent when Cestuy que use to whom Land is devised doth refuse the use the Devisee cannot take it for he shall not have it to his own use for if the use be void the devise is also void And the use is void for Cestuy que use died in the life of the Devisor which see Bret and Rygdens case A man seised of three Acres bargains and sells one of them without shewing which and that before the Statute of 27 H. 8. The Bargainee dyeth before Election no Election descends to the Heir for then he should be a Purchasor And by Wray and Anderson The devise is void and it is all one with Brett and Rigdens case And by Anderson a man deviseth Lands to the use of one which use by possibility is good and by possibility not good If afterwards Cestuy que use cannot take the Devise shall be to the use of the Devisor and his Heirs CCCLXIII Weston and Garmons Case Trin. 33. Eliz. In the Kings Bench. Assize 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W And shewed that John Vaughan and Amy his Wife who before was the wife of one Weston and Mother of Sir Henry Weston the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan and Miles Whitney Complainants and the said John Vaughan and Amy his Wife and Francis their Son Deforceants of the said two Manors inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages three hundred Acres of Lands two hundred Acres of Meadow cum pertinentiis in the said Towns by which Fine the said Deforceants did acknowledge the right of the said Manors and Tenements to be
293 306 362 383 387 409 436 Construction of them 16 42 To Executors to sell 38 42 78 254 To an use 342 Diminution 28 Distress 16 64 78 315 338 Discontinuance of suit 142 Discontinuance of Lands and Estate 150 157 172 Distent 154 163 Where it takes away Entry 293 Disseisin 163 Dower 48 71 118 119 187 233 383 Of Gavelkind 83 182 431 Dutchy Lands 307 The Kings prerogative in them 15 E. EJectione firmae 331 Not of a Tenement 265 Ejectione Custodiae lieth not of a Copihold estate 463 Elegit 65 247 Election 36 52 67 92 289 342 360 Enrolment 10 Endowment 13 Enfant 156 297 Entry 46 66 79 163 165 427 446 For forfeiture 345 Enquiry of damages 197 278 Escape 165 145 203 321 274 Estates 150 219 221 297 288 311 Vested shall not be divested 345 Essoin 184 Estoppell 122 220 224 286 437 Error 12 28 52 71 137 207 228 238 245 246 260 452 By Executors to reverse an Attainder of their Testator 452 278 317 327 328 343 346 363 397 402 412 415 445 365 By Journeys accounts 28 Upon Outlawry 37 Upon Recovery in Assize 69 In assessing damages 71 For want of Averment 121 Upon a common Recovery 181 To reverse a Fine by an Enfant 445 Evidence 70 192 215 414 Exchange 386 Executors 78 311 459 Where they shall have Error or other Actions 459 Where charged of their own goods 87 121 153 Renunciation of them 185 Have action de bonis testatoris 278 Execution 65 202 247 460 200 313 378 Where joynt where several 392 Against a person attainted where not 466 Exception 158 160 79 Extortion 114 327 Extent 366 Extinguishment 15 135 250 56 Exposition of words and sentences 240 326 439 468 Of the word De and vocat 22â— Of the word Term 306 Of the word Uterque 326 Of the Statute of 32 and 33 H. 8. 358 Of the Statute of 21 H. cap. 19. 413 Examination who is to be examined upon the Statute of 27 Eliz. of Huy and Cry 456 F. FAlse imprisonment 462 Feoffments and faits 31 171 172 204 256 288 Per nomen 343 Upon condition 361 Feme covert 166 Fine upon Jurors 181 For Alienation without License 11 50 113 Not paid by Non compos mentis 11 Not payable upon settlement by Parliament 113 Post Fines 338 Fines levied 51 66 81 85 102 187 188 297 330 Where shall not bind a Feme covert 386 Reversed 157 445 Where shall be a breach of Condition 409 Levied by Prescription 265 By Tenant in tail in Remainder 361 Formedon 105 154 Forgery of false Deeds 192 Forfeiture 51 66 84 139 171 297 254 400 Founder and Foundation 49 Fresh Suits 72 Fugitives 12 G. GUardian in socage 454 Gavelkind 154 450 Grants 205 433 380 Of Executors of omnia bona sua 351 Grants of the King 12 33 36 49 162 179 237 280 334 338 451 467 Grants insufficient in point of Limitation shall not be supplied with subsequent words 14 H. HAbendum 13 73 446 Habeas Corpus 93 94 460 I. INtrusion 12 46 49 223 Indictments 9 146 337 363 404 Upon the Statute of 8 H. 6. 461 Upon the Statute of 23. of Recusancy 321 326 322 Upon the Statute of News 390 Informations 162 Upon Statute 1 Eliz. 405 Upon Statute of 23 Eliz. cap. 6. 60 Upon the Statute of Usury 125 161 Upon the Statute of Maintenance 231 291 Upon the Statute of 5 Eliz. for Tillage 319 Joynture 44 205 Joynder in Action 402 439 445 Issue 89 169 192 241 Judgment 89 428 In the Kings Court not defeated by particular customs 35 Where satisfied before a Statute 464 Jurors receiving mony doth not make the Verdict void 21 Fined for eating 181 Justification 462 K. KIng not bound to demand Rent 16 L. LEases 44 46 165 198 205 239 274 286 308 316 320 332 391 425 446 454 By Bishops 77 By Guardian of a Colledge 183 Within the Statute of 13 Eliz. 427 Leet 33 Letter of Attorney 427 Livery of Seisin 10 48 276 287 349 427 Doth prevent Enrolment 10 Libel in spiritual Court 13 127 151 174 175 M. MArriage 67 235 In right and possession 67 Mannor 33 289 Misnosmer 25 49 183 204 298 In Indictments 337 Where material where not 228 Mittimus 200 Monstrans de droit 279 Monstrans de faits 427 N. NOn-residency 129 Non-suit 142 Notice 39 139 141 Nusance 234 318 O. OBligation 129 132 164 192 214 281 Office of Marshal of the King 451 Of Herald 337 Of Marshal of the Kings Bench 451 Office Trove 27 50 85 223 Outlawry 84 280 108 148 190 Lies not upon a Judgment upon a Bill of Priviledge 465 P. PArtition 33 68 136 283 Payment where not good to the Wife 450 Post Fines 338 Plaint 415 Plenarty no Plea against the King 307 Pleadings 21 84 102 167 169 176 186 211 274 339 407 430 449 Non cepit where good 47 Nul tiel Record 85 114 Where Recovery is no Bar 90 Wherein Pleading must make a Title 58 Non damnificatus 95 General and particular ib. Good to common intent 102 Of a Fine ib. Amounts to the general Issue 251 Of Nonest factum 257 453 Out of his Fee 294 Fully administred 434 In disability where not allowed 466 Property 54 Primer seisin 85 341 Protection 93 258 Priviledge 365 Of Exceptions from Juries 287 Of London 384 Plurality 442 Prerogative 11 15 Prescription 14 100 102 143 147 199 249 299 315 336 Words of it 318 In a Stranger not Tenant 14 To erect Herdels 14 147 Where it shall not bind the King 438 For Common 100 To be a Justice of Peace 143 To levy a Fine not good 265 To distrain for Amerciaments 327 To Repair 438 by taking Wood in the Lands of another Man ib. Presentation 50 58 84 207 Repealed by the King 218 Passeth not by a Grant of Bona Catalla 28 By the Bishop who Collates shall not put the King out of possession 307 Praemunire 399 Proof 349 Process 65 Prohibition 123 127 174 175 176 177 208 255 325 336 376 367 318 325 388 411 442 467 Q. QUare Impedit 39 50 58 84 85 190 277 213 232 278 280 284 307 312 284 289 455 Causes of Refusal when good c. contr 39 312 R. RAzure of Deeds 381 Ravishment of Ward 152 Refusal of the Bishop 312 Remitter 40 48 85 118 172 Remainder 134 256 266 336 Upon a Contingent 330 Remitter 48 Redisseisin 90 Receipt 105 Retainer 153 320 Return of the Sheriff 65 200 201 202 312 459 Relation 11 355 Of matter of Record 257 Of a Judgment 264 Of an Execution 423 Rents 187 198 209 280 362 441 Reserved upon a Lease of Dutchy Lands 15 To be paid without demand ib. Charge parcel of a Manor 18 Cannot issue out of a Right 205 Charge out of Copyholds 8 Suspended by Entry 110 240 How to be demanded and when severally 271 425 In esse to some purposes and suspended to others 467 Reputation 18 33 49 Replication 56 102 194 Reversion 362 Cannot pass without Deed 429 Reservation 25 446 Restitution 461 Request 167 303 389 Repleader 102 114 Replevin 33 54 56 64 294 Revocation 113 Recovery 30 In Assise where a Bar 30 Vouchee must appear in person 101 Common Recovery by an Infant 296 S. SAles 225 Seals 12 310 Seisin 271 356 In Fact and in Law 318 Seisure 12 84 119 Scire facias 58 84 187 402 Where for the King è contr 84 Against Executors 84 Upon Audita Querela 195 Summons and Severance 445 Stewards of Manors and Courts 309 294 444 Statutes Construction of them 44 Where they ought to be pleaded where not 427 Supersedeas 189 Sur cui in vita 210 Surrenders 378 385 420 226 454 By the Steward out of Court 309 Vide Copyholds Amounts to an Attornment 408 Of one Termor to another not good 420 By Attorney not good 45 T. TAil 297 Tenant by the Curtesie 233 Tender 88 95 Upon a Mortgage 43 Upon an Award 55 Where it is no Revocation of uses 113 Toll 315 Traverse 12 49 53 56 58 64 68 102 207 213 277 304 331 340 429 467 Where the descent where the dying seised 429 Trespass Vi armis 110 Trover and Conversion 304 305 335 Not against a Feme Covert 433 Tithes 13 25 122 174 175 177 208 325 336 367 380 411 467 In London 25 Become Lay Chattels 29 Jurisdiction of them 76 Claimed by Prescription ib. Discharged by Unity 467 Trial 67 116 148 203 206 255 285 310 413 V. VAriance 175 228 33â—â— Verdict 86 118 181 426 View 30 106 59 Usurpation 58 84 307 Uses 188 288 330 What it is 279 And Declaration of them ib. Not rise out of an Use 10 Not out of a Possibility 279 Contingent raised 31 Void for want of Consideration 279 Limitation of them ib. Raised by Covenant and by Feoffment do differ ib. Suspended yet the Land devised 345 Contingent shall bind the Execution of an Estate in possession 345 Executed to the Possession 409 W. WAger of Law 119 229 282 VVardship 347 VVarning 82 VVills 155 311 VVitherâ—â—m 302 VVarrant of Attorney 246 VVarranty 252 VVast 62 79 86 220 282 359 By Cestuy que use 409 VVrit To the Bishop 84 85 278 289 Of right 212 236 the manner of proceeding in it 419 Of Enquiry of damages 278 FINIS
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
The last words of the Limitation do not distinguish or disjoyn it but respect the estate precedent And by Clench Iustice If the use limited to Ambrose shall depend only upon the Limitation of his death the same should be void for then he should not he in esse to take But the other Iustices were of a contrary opinion and that the use is good 7 H. 4. Gawdy Although that here be three things yet but two times for the words are not or at such of the said days or times as shall first happen for that would alter the case But here these words ought to be intended as if they were spoken before in the Limitation of the estate to the Daughters and cannot divide the former Limitation and he said that if by reason that the Limitation upon the death which is certain it shall vest in Ambrose presently then if after the other Limitation shall fall then his Remainder which vested in him upon the said certain Limitation should be devested and should now accrue to him upon the other Limitation which should be absurd and inconvenient c. It was adjorned CCCXXXI Thomas and Wards Case Trin. 32. Eliz. In the Kings Bench. IN Ejectione firmae by Thomas against Ward Ejectione firme 1 Cro. 102. upon a Lease made to him of the Manor of Middleton Cheney by one Chambers the Defendant pleaded that long time before the Lessor of the Plaintiff had any thing the Bishop of Rochester was seised and leased the same to the Defendant the Plaintiff by Replication said that the said Lease was upon condition viz. The Lessee by the Indenture of the said Lease did covenant that he would not put out or disturb any of the Tenants inhabiting within the said Manor out of their Tenancies doing their duties according to the custom of the said Manor and shewed that the Defendant had put out one Ann Green a Tenant dwelling there upon a Tenement parcel of the said Manor late in the possession and occupation of the said Ann and that the Bishop had re-entred for the condition so broken and made a lease to the Lessor of the Plaintiff upon which Replication the Defendant hath demurred in Law Tanfeild argued for the Defendant that the Bishop had no cause to re-enter for there is not any condition in the Case but only a Covenant for it comes in only on the part of the Lessee and they are words of Covenant only whereas every condition ought to be the words of the Lessor and the Bishop hath sufficient remedy by Action of Covenant But if the words had been indifferent and absolute without depending on the Lessor or Lessee then it had been otherwise as 3 E. 6. Dyer 65. Non licebit to the Lessee dare concedere vel vendere statum vel terminum without the Licence of the Lessor under pain of forfeiture the same is a good condition but here it is meerly a Covenant and it cannot be both Haughton Although the words sound in Covenant and be the words of the Lessee yet the Lease being made by Indenture the same is the Deed of both and every word in it is spoken by both parties and although that he may have an Action of Covenant yet he cannot thereby overthrow the Lease as by Entry by condition broken and yet by the words it seems the meaning of the Indenture was that by the breach of this Covenant the estate should be defeated for so are the words sub poena forisfactur And here by way of Action he cannot have the benefit of the whole Covenant and therefore he shall have it by way of condition And see the case betwixt Browning and Beston Plow 132. If it happen the Rent to be behind that then the Lessee Covenants that although the Rent be not demanded that the said Lease should be utterly extinct void and of no effect and 24 Eliz. there was a case betwixt Hill and Lockham where by the Indenture of Lease the Lessee Covenanted to grind all his Corn at the Mill of the Lessor and afterward in the end of the said Indenture the Lessee covenanted to perform all the Covenants sub poeâ—a sorisfactur and by the opinion of the whole Court the same was a condition And see 21 H. 6. 51. where in an Obligation where A was bound to B. the condition is written in this manner Praedict B. vult concedit That if the said A. doth stand to the Arbitrament of such a one that then c. the same is a good condition although they are the words of the Obligee and the Deed of the Obligor and so here is a good condition And such was the opinion of Wray and Gawdy and Fenner did not contradict it Wherefore Tanfeild said Admit here it is a condition yet here is not any breach of it sufficiently set forth for the breach is assigned because he had put out a woman unam tenentem inhabitantem out of certain Lands parcel of the said Manor late in the possession and occupation of the said woman and that might be that she was but Tenant at Will and the Covenant doth refer only to Copy-holders And it may be also that she had disseised one of the Tenants of the Manor in which case the putting out of such a Tenant being in by wrong is no breach of condition Also it is not averred in facto that Ann was Tenant of any part of the Mannor Also the Replication is That the said Defendant had ousted the said Ann where she had done her duty fecit debitum suum before the Ouster and that might be that she had done her duty once but not after and therefore he ought to have said that she had done her duty always before her putting out and this word duly being single is too general for it may be understood of curtesie where the words in the Indenture are Doing their duty according to the custom of the Manor And also it might be that Ann Green was Tenant and Inhabitant but was not put out of the Land which was parcel of the Manor And Wray said that these Exceptions were incurable And therefore Iudgment was given against the Plaintiff CCCXXXII Harvy and Thomas Case Mich. 31 32 Eliz. Rot. 414. In the Kings Bench. THe Case was Leases 1 Cro. 216. Husband and Wife seised of Lands in the Right of the Wife the Husband alone makes a Lease by word for years Afterwards the Husband and Wife levy a Fine and after the Wife and Husband both dye It was holden clearly by the whole Court that the Conusee should avoid the Lease CCCXXXIII Sly and Mordants Case Trin. 32. Eliz. Rot. 314 In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 191. 2 Len. 103. 3 Len. 174. Dy. 250. 1 Cro. 198 199. that whereas he was seised of certain Lands the Defendant had stopped a Water-course by which his Land was drowned and found for the Plaintiff It