date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
and the one with force and the other not as if I command one to make a Disseisin and he makes a disseisin with force and allso if one enter with force to my use and after I agree he is a Disseisor with force and I am not so and those cases will answer the Books of Assises for in those cases they were present Present but in these not and so I hold that he which is present when force is made is a Disseisor with force Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces VVyndam It doth extend to them by express words and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force Then for the other matter of trebling of damages increased the Court made no doubt but that they shall be trebled and they said that so it was lately adjudged here in a case of Staffordshire 19. PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin Challenge where the Defendant made Conusance as Bayley to one Hussey and in the Attaint surmise was made that the Sherif was Cosen to Hussey and thereupon prayed Process to the Coroners and Puckering moved that no Process should issue to the Coroners for Hussey was not party to the Attaint and then this is but matter of favour and he cited 3 Hen. 7. And all the Court accorded with him that it is but matter of favour onely and no surmise to have a Writ to the Coroners but VValmisley would have put a difference between Lessee for years and a Bayley Lessee pur ans for as he pretended in the case of a Bayley it shall be a principall challenge but not in the other case but all the Court was against him and that it is no principall challenge in the one case nor in the other The last day of the Term it was moved again and the Court was of the same mind as before 20. IN a Quare impedit Adverson it was said by Anderson and agreed by all the Court that if a man make a Feoffment in Fee of a Mannor without deed and without saying with the appurtenances yet the Advowson shall pass and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor and lieth in Tenure 21. IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire Pleading an Action of Battery was brought in London and a Justification made in Somersetshire Absque hoc that he was guilty in London and the Plaintif replyed de injuria sua propriae absque tali causa and Anderson said that a man shall never plead de son tort demeasne where the matter ariseth in a Forein Country 22. AN ejectione firme was brought by Clayton against Lawson Bar. the Defendant pleaded in Bar a Recovery had in the Kings Bench against the Lessor of the Plaintif And Fenner moved that it should be no Bar no more than in Trespass Anderson I think it to be a good Bar. For this Action is as strong to bind the possession as a Writ of right is to bind the right VVyndam I think it is no Bar no more than in Trespass Anderson This is more than an Action of Trespass for in this he shall recover his Term. Rodes This case was moved the last Term and the opinion of the Court then was that it was a good Bar. Fenner True it is if it were between the parties themselves but here the Plaintif is but Lessee to him which was Barred Anderson Allthough that it be so yet he claymeth by the Lease of him which was Barred and during the Lease of the other his Lessor could have no right and what shall he have then Fenner That which is between the parties cannot be an Estoppell to the Plaintif here which is but a stranger Estoppell Anderson I know that he shall not plead it by way of Estoppell but he shall conclude Iudgement si Actio Peryam If in an Assise a Recovery in another Assise be pleaded in Bar Assise he shall not conclude by way of Estoppell but Iudgement si Actio and there he is driven to a higher Action and so here and the Law shall never have end if after a man is Barred in his Action he may bring the same Action again therefore I think it a good Bar and that he is driven to a higher Action VVyndam Lessee for years can have no higher Action Anderson Peryam If one which hath a Lease for years and no more Tenant for years disseisor of tenant in Fee simple enter upon him which hath a good title he is a disseisor of all the Feesimple Wyndam If two claim by Lease from one man and one bringeth an Ejectione Firme and is Barred what Action shall he have then Anderson None for he hath no Right VVyndam That is hard Anderson What Action shall he have which is Barred in Formdone surely none Fenner This is another case Anderson Aliquantulum incensus truly it is a plain case that he shall be Bared whereunto Peryam and Rodes agreed clearly 23. IN a praecipe quod reddat View the Tenant demanded the view and an habere facias visum issued and the Tenant came not to the Sherif to take the view it was said by the whole Court that the Sherif may retâ—urn that none came to take the view and he shall never have the view again Anderson The habere fac visum is the suit of the Tenant and then when he doth not come to take the view this is a default and then good reason to exclude him from the view Gawdy Such a retourn was never seen before and therefore it is to be noted the case was between Hoâ— and Hoo for Lands in Norfolk 24. IOhn VViseman of the Inner Temple Apportionment brought an Action of debt against Thomas VVallenger the case was this A man seised of three acres of Land in Fee makes a lease reserving xxx s of Rent and after devised the Reversion of two acres to a stranger and the third acre descended to the Heir and he brought an Action of debt for xij d. being behind and Puckering moved if they were agreed of their judgement in the case Rent extinct by the grant of part of the Reversion Anderson If a man let two Acres of Land rendring Rent and grant the Reversion of one of them all the Rent is gone as it is in Dyer and at the Common Law before the Statute of W. 3. there was no apportionment and the Statute speaketh of no such apportionment as this is Rodes Surely no Book in all the Law will warrant this apportionment Fenner Yes Sir 5 Ed. 3. If a man have a Rent of xx s and grants parcell thereof and the Tenant Attourns this is good Rodes This is another case But shew us the case which was in the Kings Bench
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
and did not say praedict Edward Seymour And all the Justices agreed that this was amendable And so the first judgement was affirmed 18. ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench Rent suspenpended and the Case was such A man makes a lease of ten acres for ten yeares rendring rent upon a Condition the Lessee grants 5. acres thereof to a stranger for five years and after grants the residue of the years in the five acres to the Lessor And after the Lessee broke the Condition whereby the Lessor re-entred and if he may do so or if the Condition was suspended or no was the question because he accepted a future interest in parcell Future interest Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended and now this was assigned for error And all the Justices except Anderson and Peryam held that it is not suspended before he had entred by force of his lease Anderson If I make a lease as here upon Condition and waive the possession this may be suspended before his entrie Cook This is another case Peryam But the reason thereof commeth well to this case And afterwards because the said two Justices dis-assented from the rest it was adjourned over 19. ANother Writ of Error was there brought upon a judgment given in the Kings bench Trover And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices If a man lose his goods which come to the hands of another he converteth them to his own use and after the owner dye Day and place of conversion whether his Executors shall have an action of the Case for this Trover and whether he ought to shew the place and the day of the Conversion or no And the Counsellours at the bar said that he ought to shew both for so it was adjudged where an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation and it was found that he had broken the seales c. and because he did not shew the time and place of the Conversion he could never get Judgement And now the Justices were of the same opinion but yet Anderson seemed to doubt Peryam Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator and the doubt is if they shall have an Action upon the Case Manwood if a man hath another in Execution for debt and the Gaoler suffer him to escape and after the Recoverer dyes shall his Executors have an action against the Gaoler Cook No. Peryam So it seemeth But Anderson Manwood and VVindam clearly to the contrary and that they shall have debt upon this Escape Cook But not an Action upon the Case at the Common Law and here by his own shewing he might have Trespass vi armis and therefore not this action De Term. Trinitat An. Reg. Eliz. xxx 1. RAlph Heidon brought a Writ of Right against Smethwick and his Wife Droit of two parts of forty Acres of Land in Surret and they pleaded that one Ibgrave was seised and devised it to his Wife now one of the Tenants for term of her life the remainder to Benjamin Ibgrave in fee Praying ayd in an Assise which was his heir and dyed and they prayed in ayd of B. I. who came and joyned to them and thereupon they came and pleaded to the grand Assise and the first day of this term the Assise appeared and sixteen were sworn whereof four were Knights and the residue were Squires and Gentlemen and the title was all one as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part And the opinion of all the Court clearly that it is not ayded by the Statute for there is not any certainty in the Grant Name certain but if he had given it a certain name as green Acre then allthough he had mistaken the Parish yet it had been good enough Peryam The Assise may goe their way and they did so and after they being agreed came again to the Bar and the Demandant was called and did not appear whereby the Tenant prayed the Court to record the Nonsuit and it was done Curia All is one as if he had appeared Non-suits for this Non-suit is peremptory for ever the issue being joyned upon the meer droit aliter if the issue had been joyned upon any collaterall poynt 2. IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass Challenge VValmisley This Inquest you ought not to take for it is favourably made by the Sherif which is within the distress of one of the Plaintifs and shewed how the Sherif held certain lands of a Mannor now in question whereof Lister hath possession and allso hath certain lands for term of years of him and the Plaintifs moved that he ought to take one cause onely 1 Cause Curia He may allege both for the challenge is that he is within the distress and the allegations are but evidence to prove it and then the Plaintif sayd not within his distress whereupon the Court appointed Tryers and the Defendant sayd that all the Jury are favourable Tryors refused and prayed Tryers de circumstantibus Gawdy That cannot be but onely in an Assise and cited 9 Edw. 4. Curia We cannot appoint other Tryers in this case but only of the Jurors wherefore let the fourth and seventh be Tryers but you may refuse them and take others if you will and thereupon the Defendant refused the fourth whereby the third was appointed and they found the Array favourably made and therefore it was quashed 3. A Recovery was had by Arthur Mills against Sir Owen Hopton of divers lands twelve years passed Amendment and by the negligence of the Attorney Warranty of Attorney no Warrant of Attorney was entred for him and now suit was made to the Justices that it might be entered and they all consented thereunto and so it was entered incontinently but first the party made a corporall Oath that he had retained an Attorney and that this was the negligence of his Attorney 4. IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor Arbitrement and sayd that there was an Error in the Record Error not assigned which was not assigned and prayed that it might be examined allthough that it was not assigned because that it appeared in the Record which was agreed to by the Court. And then he shewed the case that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others and they Arbitrated that the Plaintif in this Writ of Error should release to the now Defendant all Actions which he might
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
6. the Priors case Note that Puckering then said privily to Shuttelworth is not the book contrary to that which he hath vouched for he vouched the Book contrary to that which Puckering had done before Shuttelworth No Sir but the record is contrary to the Book quod nota and when she granteth ex certa scientia it shall be taken beneficial for the party 1 H. 7. 13. omnia debita released to the Sherif and 29 Ed. 3. the King seised the lands of a Prior alien c. Difference per enter interest prerogative Touts droits poss per fine Fine puis disseisin ou discont alit de recovery and there is a difference between the cases put and this case for when the Queen makes a Grant all matters of interests may pass by the words but matters of prerogative as in the cases put by my brother Puckering cannot pass for they are not within the words but interests are To that which hath been sayd that he was not seised of any estate tayl this is not any argument for if he had three rights by the Fine all are gone and passed to the Conisee for if he be disseised or discontinue and then levy a Fine this is a bar but otherwise it is of a recovery Lessee purâ—ans en reversion poss diversity for that is no bar but of an estate tayl And as to the case of Saunders that lessee for years need not to make claim the case was not so but the case was of a lease inreversion and he had never entred and therefore it was but as a common or a rent but if it be a lease in possession he is bound as in Zouches case Then because the King is in possession it hath been sayd that it is no bar but this seemeth to be no reason for the Statute began with the King and the Preamble seemeth to induce it and the third saving of the Statute is by force of any gift in tayl so this is generall And because he cannot discontinue therefore can he not make a bar Non sequitur For he cannot discontinue and yet a Fine levyed is a good bar and the Statute of 32 Hen. 8. doth not impair this opinion but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case as it was agreed by all the Judges in Stowels case and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar doth not extend but to the words going before as in the case in Dyer that a man had not done any act but that c. And the Queen in this case hath not any prejudice for she shall have the rent with the reversion And as for Jacksons case that maketh for me for the question of the case there was that the remainder shall be gone and we ought not to take regard to that which is sayd indirectly in the case but the point of the Judgement is the matter and for authority it is direct in Dyer fol. 26. pl. 1. and therefore it seemeth that the entayl is barred and so the action maintainable Anderson You have well argued but for any thing that I see none of you shall have the Land Grant for the Queen is deceived in her grant and therefore the Patent is voyd and then it shall be seised into the Queens hands And therefore you had best to be advised and we will hear what can be sayd for this point at another day And note that it was sayd by the Justices 3 Costs in forcible entry that if a man recover in a Writ of forcible entry upon the Statute of 8 Hen. 6. by confession or by default he shall recover his treble costs 22 Hen. 6. 57. 13. ONe Colgate brought a Replevin against Blyth who avowed the taking Replevin and thereupon they were at Issue in Kent and the Jury found a speciall Verdict The case in effect was this Husband and Wife are seised of Lands in right of the Wife And she by Indenture in her own name agrees that a Fine shall be levyed and limits the uses by Indenture After the Husband by another Indenture agrees that a Fine shall be levied and limits other uses and afterwards a Fine is levied by them both now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity The Jury prayed the advise of the Court c. For if they be good they found for the Plantif if not then they found for the Defendant Shuttleworth Serjeant It seemeth that Judgement shall be given for the Plantif For the use limited by the Husband shall be a good limitation in Perpetuity Rent ch ou Lease per feme covert and first the Wife only cannot limit any use for her Acts are of no Validity And therefore if a Wife grant a Rent charge or make a Lease and the Grantee enter this is a Disseisin 43. Ed. 3. Deeds given by a Feme Covert are void 17. lib. Ass a VVife levies a Fine Executory Fine executory executed per feme covert sur grant render as a sole Woman and after a Scire fac Is brought to Execute this Fine the Husband shall extort the Execution and if it were a Fine Executed then it is a Disseisin to the Husband Vse quod For an use is a Declaration how the Land shall continue in Perpetuity and the Feoffees are nothing but Instruments or Organs to convey the use for the Land yields the use and not the Feoffees then when the Wife which is under the Power of her Husband Limitation per infant quaere limits an use this is void for I hold for Law if an Infant limit uses and after levy a Fine and do not Reverse it during his Nonage yet the limitation shall not bind him and so of a man non compos mentis Non compos mentis And so it was ruled in the Court of Wards where a naturall Ideot made a Declaration of uses and levied a Fine accordingly Ideot naturall that yet it shall be to the use of himself And then in our case the Limitation by the Wife cannot be good but her Will depends upon the Will of her Husband and the expressing of the use by the Husband shall be good Estate disseisin assumsit al feme For if an Estate be made to a Wife if the Husband seaven years after agree it is good and so it is of a Disseisin to a use so ofan Assumpsit to the Wife 27 Hen. 8. in Jordans case 1 Hen. 7. in Doves case and in a Praâ—cipe quod reddat the default of the Wife shall be the default of the Husband Default del feme because she is Compellable to the Will of her Husband by the Intendment of the Law 21. lib. Ass A man seised of Land in Right of his Wife makes a Feoffment in Fee
Livery per baron and would have made Livery but the Wife would not agree to the Livery yet notwithstanding the contradiction of the Wife the Livery was Adjuged good 33 Hen. 6. Husband and Wife are Plantifs in an Assise Nonsuite del feme and the Husband would Prosecute but the Wife would be Nonsuite the act of the Husband shall be accepted and the act of the Wife rejected So if the Husband will make an Attourny and the Wife wil dissavow him Attourny yet he shall be their Attourny And as I think this Limitation by the Husband shall bind the Wife in perpetuity Case per fine indentare Difference Juris clamat For if the Husband make a Lease of the wifes Land for 100 years the Wife may avoid it after his death but if after they both Levy a Fine the Lease shall be good-for ever And 11 Hen. 4. He in Reversion and one which hath nothing Levy a Fine quid juris clamat shall be brought against them both And as I conceive it it shall be counted her folly Reentry per condition that will take such a Husband as will Limit such uses For if a Wife hath an Estate in Land upon condition for not payment of Rent that the Feoffor shall reenter if she take a Husband which doth not pay the Rent whereby the Feoffor or his Heires reenter the Estate of the Wife is utterly defeated And in 4 Ed. 2. A woman Tenant takes a Husband Cessavit who ceaseth by two yeares whereby the Lord bringeth a Cessavit and recovereth the Inheritance of the Wife she shall be bound And this appeareth in Fitzh in Cui invita 21. And it shall be so if the Wife hath but a Freehold Wast as it is in 3 Ed. 3. A woman Lessee takes a Husband who maketh Wast whereby the Land is recovered and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife this is onely the sale of the Husband but if after they Levy a Fine this shall bind the Wife And for express Authority it is the case in Dyer Joynture fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands takes a Wife who hath a Jointure in his Land and he makes a Limitation of uses and after they both Levy a Fine this shall be the Limitation by the Husband because it shall be intended that the Wife consented if it doth not appear to the contrary Whereby the Declaration of the use here by the Husband shall be good to bind the Wife and therefore Judgement ought to be given for the Plantif Feâ—ner to the contrary for here the Inheritance is in the Wife and where the Husband limits further than he hath Authority there the Law shall make a Declaration of the uses for the Husband cannot Limit uses of that which he hath not 21 Ed. 3. A man takes a Wife seised of Lands in Fee Atteynder del feme and before that the Husband was intitled to be Tenant by the Curtesie the Wife was attainted of Treason Homage the Land shall be forfeit and 44 Ed. 3. He shall not make Homage Conusans before he be intitled to be Tenant by the Curtesie 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife Warranoy And in this case the Conisee is in in the per by the Wife and Warranty made to the Husband shall inure to the Wife and 18 Ed. 3. A man seised of a Mannor in right of his Wife Villain to which there is a Villain regardant the Villain Purchaseth Lands the Husband shall be seised of the Perquisite in right of his Wife And yet otherwise it is where a man is Lessee for years of a Mannor to which c. For he shall be seised of the Perquisite in his own Right Divorce 12. lib. Ass If he be Divorced his Estate is gone Lease Rent ch diversity And I agree to the case put by my Brother Shut Where the Husband makes a Lease for years and after he and his Wife levy a Fine there the Lease shall be good but if the Husband grant a Rent charge and after he and his Wife Levy a Fine I do not agree that this is good for in the first case the Conisee found one which had an Interest in the Land but not in the last Then Sir here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever Feoffee al use 28 Hen. 8. The Feoffece to use at the Common Law Limits an use to a stranger this Devesteth the first use but if he limit is to cestui que use then it is an ancient use and not new And so it is if Tenant for life and he in Reversion levy a Fine this shaâ—l be to the use of him in Reversion 2 Loyntenants And so if two Joyntenants be in Fee and they limit severall uses this shall be good according to their limitations for the Moities of either of them and for no more And if Husband and Wife levy a Fine to the use of the Husbands Sonne Fits del baron yet this is to the use of the Wife but if he be the Wifes Sonne allso then this is a good consideration and the use shall be accordingly And these cases I put to this intent that when a man limits an use which is repugnant Vse repugnant or further than he hath Authority the Law shall make a Declaration of the same use for Bracton saith Nemo potest ad alterum plus juris tranferre quam ipse habet And I take the Law if Husband and Wife levy a Fine of the Lands of the Wife and render back to the Wife in Tail Fine levie de terres del feme Oâ—e râ—eder al feme en tail and the Husband dye and the Wife discontinue that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case And I agree to that which hath been said that the Wife only cannot limit uses but because the Jury hath found for â—he Defendant if the limitation by the Husband be not good as I think it is not then Judgement shall be given for the Defendant Concessum Adjornatur 14 WIlliam Knight Eject firm as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman brought an Executione firme against W. Breâ—h of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell the Defendant pleaded not guilty and the Jury appeared at the Bar and Evidence given on both sides And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant Demurrer al evidence and thereupon the Jury were discharged And now Gawdy the Queens Serjeant
for it is a maxim Nullum tempus occurrit Regi Peryam If the Freehold be in the Alien untill office found Trespass if a trespass be committed who shall punish it for he shall have no Action Fenner That is true and so it is of a Monk if he be a disseisor Monk and yet the freehold is in him Shuttelworth And so it is of a person atteinted Atteynted person and yet before office found the freehold is not in the Queen Rodes It is Dyer 11 Eliz. fol. 283. Feoffment to use If a man enfeoffee an Alien and a Denison to his use that the Queen shall have the moity whereby it seemeth that the confirment is voyd Anderson I hold this rule for certain that in every feoffment there is feoffer and feoffee and if there be a feoffee he must of necessity take wher by I think the confirmation is good Rodes Is this case hanging in this Court Fenner No Sir Windham Wherefore then doe you move it in this Court And afterwards the question being demanded of Shuttelworth by divers Barristers he made answer Truly in my opinion it is not in the Queen before office found and therefore I think the confirmation is good Quaere 5. AN Attorney of the Common Pleas brought an action of debt against another Misdemeaner whereupon he was arrested in the Country and when he came to London the Attorney caused him to be arrested in London for the same debt and this was shewed to the Court and the Attorney called to whom Anderson said if a man be sued here for a debt and after be arrested in another Court for the same debt the penaltie is fine and imprisonment and that is both the law and the custom of this Court wherefore then have you done this surely we will send you to the Fleet for your labour Attorney I beseech you my Lord consider my estate Anderson I have well considered it and that is that you shall goe to the Fleet and therfore Warden of the Fleet take him to you Windham We will punish such gross faults in you more severely than in others because you are an Attorney here and your fault is so much the greater by how much you are skilful in the law and customs of this Court wherefore you shall goe to the Fleet. De Term. Mic. Anno xxix Eliz. 1. IN the case of Sellenger Annuity it was said by Anderson and agreed by the Court that if a man grant an Annuity out of Land and hath nothing in the Land that yet this shall be good to charge the Grantor in a Writ of Annuity and in the same case it was allso agreed by the Court that if a man grant an Annuity to a Woman who takes a Husband and after Arrerages do incur and the Wife dye so that the Annuity is determined that the Husband shall have an Action of debt for the Arrerages by the Common Law Shuttleworth This is not remedied by the Statute of Arrerages of Rents and then at the Common Law it is but a thing in Action Peryam An Annuity is more than a thing in Action Windham He may grant it over and so the opinion of the whole Court was that debt was maintenable 2. AT the same day it was said by Anderson Executor and not gainsaid that if an Executor plead ne unque administer come executor yet afterwards he may take the Administration upon him and well enough be Executor 3. IN a Replevin by Bosse against Hawtrey Triall by provise they were at Issne Termino Mic. An. 28. 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill and after in Termino Hill took an alias retournable in Termino Pasch and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent and thereupon Hawtrey which was Avowant moved the Court and prayed expedition whereupon the Court caused the Roll to be brought in and notwithstanding that it was a Roll of Mic. Term yet because it was awarded the same Term they mended the Roll and awarded the alias retournable the same Term of Hill 4. WYlgus brought an Action of Trespass against Welche quare clausum fregit Travers Welche said Trin. 28. Eliz. rot 537. that I. W. was seised and enfeoffed May and so conveyed a title to himself the Plantif replyed that A. his Auncestor was seised and so the Land descended to him Absque hoc that I. W. was seised and upon this Issue the Court was moved Anderson the seisin is not traversable but where it is materiall and therefore clearly the Traverse is not good but Fenner cited a book in 2 Edw. 6. that the Travers shall be good but he stood not much upon it Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary but the opinion of all the Court clearly was that the Travers is not good 5. A Man makes a Feoffment in Fee to the use of himself and his Wife VVast alterius eorum diutius viventis absque impeticione vasti durantibus vitis ipsorum the Husband dies if the Wife shall hold without impeachment of wast or no was moved by the Serjeants And the opinion of all the Court was that she shall not be impeached of Wast because of the severance but otherwise if it had been Joyntly 6. FUlwood brought an action upon the case against Fulwood Action upon 〈◊〉 case and declared that whereas a motion of mariage was between the Defendant and a Widow in London in consideration that the Plaintif should give his assent that the Father of those Fulwoods should convey to the Defendant all his Lands and Chattells the Defendant promised to pay the Plaintif such a sum of money as their Father should assign Ac licet that the Plaintif had given his consent and that their said Father had assigned him to pay 37. l. yet the Defendant c. and he pleaded non assumpsit and it was found for the Plaintif and now Fenner spoke in arrest of Judgement for four causes First there is no consideration for the declaration is assensum suum daret so that he is at liberty to give his assent or no and so no perfect consideration The second is ac licet the Plaintif c. and doth not say in facto that he gave his assent The third is that he doth not say that he gave his assent when the Father had those Lands and Chattells The fourth is that in consideration the conveyance should be made to the Defendant and it appeareth that it was made to the Defendant and his Wife Shuttleworth To the contrary we have alleged in deed that he gave his assent and that is as much as if he had said in consideration that he gave his assent And allthough that the conveyance be to both yet it is in tayl to them and so the inheritance given to both And therefore that
which you allege is against you And the Wife of the Defendant being in Court was very importunate whereupon the Court moved an agreement and the Plaintif was content upon condition that the Defendant would enter into bond but the Defendant seemed unwilling by his silence Anderson Wee have made stay to the intent to do the Defendant good and he will not be content when more than reason is offered him wherefore let Judgement be entred for the Plaintif 7. IN a replevin by Gybson against Platlesse Revocation of a VVill. the Defendant made Conusance as Baylif to Anne Wingfield and the Issue was whether the Land descended to Anne Wingfield Norfolk Trin. as Daughter and Heir to I. W. and upon evidence this was the case 28 Eliz. rot 2â—30 The said I. W. was seised of the Lands in question and divers other Lands and by his last VVill devised all his Lands and Tenements to Anthony Wingfield of London Goldsmith in Fee and after and before his death he made a Feoffment in Fee of the same Lands which he had devised to the same A. W. and when he sealed the Feoffment he demanded will not this hurt my Will and it was answered again that it would not and he said if this will not hurt my Will I will seal it and then he sealed it and a Letter of Attorny to make livery and in some of the Lands the Attorney made livery but not of the Lands now in question and after the Testator died now if the Devisee shall have the Lands or no was the question for if this Feoffment be Revocation of the Will then the Devise is void And it was said by the Counsell of Anne VVingfield that it is a Revocation For if the Testator had said that this shall not be his Will then it had been a plain Revocation quod fuit concessum per Curiam and then the making of the Feoffment is as much to say as that the Will shall not stand but it was answered by the Court that it appeared that the mind of the Testator was that his Will should stand and when he made the Feoffment this was a Revocation in Law and if no Feoffment had been made there had been no Revocation in Law and there is no Revocation in deed for he said if this will not hurt my Will I will seal it and allthough that the Attorney made livery in part Feofâ—ent perfect in part so that the Feoffment was perfect in part yet for the Lands in question whereof no livery was made the Will shall stand Will. for a Will may be effectuall for Part and for Part it may be revoked and the Court told the Jury that this was their opinion and thereupon the Jury found accordingly that the Land did not descend to A. VV. quod nota And Fenner who was of Counsell with the Plaintif before the coming again of the Jury to the Bar said to the Counsell of the Defendant that the Law was clear against them Allso he said to divers Barresters afterward privately that in the case of Serjeant Jeofres it was adjudged that where one had made his Will and after one of his friends came unto him and demanded of the Testator if he had made his Wil and he answered no. And he demanded again will you make your Will and he answered no and yet this was adjudged no Revocation 8. ONe Lea of Essex Privelege was sued in an Action of Battery in the Common pleas Battery and upon non culp pleaded it appeared upon the evidence that the Defendant and others had thrown daggers at the Plaintif and grievously hurt and maimed him in outragious manner and Peryam said to the Jury that they ought to consider that the Plaintif was put in fear of his life and had one of his hands maimed and what damage he had susteyned by his Mayhem and that they ought to give damage as well for the fear and assault as for the Mayhem and when the Jury was gone from the Bar the Defendant caused the Plaintif to be arrested in the Kings Bench for a battery done to him by the Plaintif before and this was shewed to the Court and thereupon they sent for Lea and were grievosly offended with him for they said that when a man is sued here Privelege de Court. he ought safely to come and go by the privilege of this place without vexation elsewhere And Lea pleaded that he was ignorant of the Law but the Court answered that ignorantia juris non excusat and therefore they said that they would punish him and discharge the other Then the Plaintif said that he had put in bayl to the arrest and the Court answered if you had not done so we would have discharged you but now we cannot but they commanded Lea to release his arrest or otherwise he should smart for it Fine and Lea was well content to do so Anderson yet you shall pay a fine here allso for otherwise we shall be perjured wherefore because you are ignorant you shall be fined at vj. s and Lea payed the vj. s incontinently and went for to release his arrest Rodes You have escaped well therefore let this be a warning 9. BEtween Smyth and Lane the case was such Copyhold Mith. 27. 28. Eliz. Rot. 1858. Radford A. was a Copyholder in Fee according to the custom of a Mannor whereof the Queen was Lady And she by her Letters Patents let the Copy hold to B. for years and he granted his Term to the Copyholder if by this the Copyhold be determined or no was the doubt And it was agreed by the Court and all the Serjeants 28 H. 8. 30. b. that if the Lease had been made immediately from the Queen to the Copyholder then it had been a plain determination but some put a diversity because the Patentee was not Lord of the Mannor Peryam I think the Copyhold is not gone for when the Copyholder hath an interest in possession and the other in the Freehold and the Patentee grants his interest to the Copyholder what surrender can this be Anderson I will not have it a surrender but I will have his interest to be determined For when he is a Copyholder this is by Custom and when the Land is left this is by the Common Law and when this is granted to the Copyholder surely he shall not have both For he cannot have a Copyhold in the Land and have the Land also wherefore in my opinion the Copyhold is gone Peryam Peradventure by the grant to the Patentee the Rent shall pass if there be any but it shall be hard to make it a determination of the Copyhold for they are two distinct and two severall interests Anderson By the grant made to the Patentee the Rent shall not pass for he hath no Reversion adjornatur 10. A Quare impedit was brought by Specot and his wife against the Bishop of Exeter
possession of the land 11. BRet Plaintif against Shepheard Apparaâ—ce the Condition of the Obligation was to appear at his Suit in the Kings-bench and upon Condition performed pleaded Triall by the Record the issue was found for the Plaintif And now he spake in arrest of judgement for that the triall ought to have been by the Record and not by the Country And so was the opinion of the Court But Radford Pregnotary said that the triall was good enough for it may be that he appeared there and yet there is no Record made thereof to whom it was answered that then it is no appearance if it be not recorded and Radford replied suppose that there is not any such suit there how then can it be recorded but the rule of the Court was ut supra for then the Obligation seemeth to be single 13. THe case of Calgate against Blyth was now again argued by Fletewood for the Plaintif And first he said that the limitation by the Wife is not good for which he took this ground that alwaies when a man shall gain a fee simple by matter of conclusion of Record that he shall be seised to his own use And here the Husband had a fee by conclusion by the fine and therefore his limitation good only Carill And there upon he put a case reported by Carill who was a grave man Fine levied and very learned in the law That if Husband and Wife levy a fine to B. who rendereth to them again for life the reversion shall remain in the Conisor to his own use Also he put another case put by Baldwin in the time of H. 8. Grant of all Estate that a man seised in right of his Wife grants totum statum suum to another the grantee shall have it no longer than during the life of the Husband if his Wife overlive him but if she have issue by him then he shall have it during the life of the Husband absolutely Fine And if two tenants in common inâ—eoff B. Feâ—ffâ—â—ent in see to their use they are then tenants in common of this use Diffâ—â—â—nâ—â— per Tenants â—n common but if they levy a fine to B. to their use then they are Joyntenants And in Queen Maries time a parson of a Church by licence of his patron and ordinary levied fi Parson levies a Fâ—e a fine of a portion of his Rectory and it was adjudged that it shall be to his own use in his naturall capacity Bishops the same law is if a Bishop levy a fine and he cited 1â— H. 4. 1. the first case and so he prayed judgment for the plaintif Anderson chief justice rehearsed the case and first he said that the Wife without her Husband cannot limit the use without doubt And here the case is no more but whether the husband may limit the use without the privity of his Wife and I think it a strong case that he cannot Notice of a use If Husband and Wife have an use and they grant it over to one who hath notice of the Use this shall be to the use of the Wife again What a use is and he defined an Use to be an intent and trust to convey lands and cited 6. H. 7. and that when the interest of the inheritance is in the Wife Fine if Husband and Wife levy a fine this shall be to to the use of the Wife for the use ariseth out of them which give the land and not by the Conises or Feoffees for they neither grant nor give the use Feoffment by he Husband alone and then it shal be to the use of the Wife again But if the Husband alone make a Feoffment this shall be to his own use and the Wife after his death shall be driven to her action And if the wife had been privy or assenting to the limitation Assent without naming although she had not been named yet it should be a good limitation but the Jury have found that she was not privy And a case was here adjudged Indenture after a fine levied that where a fine was levied and the limitation made after by Indenture that this shall be to the use of the Indenture if there be no other against it but in this case it is found expresly by the Jury that shee never agreed which doth impugn that which otherwise should be intended then now the case is no otherwise but that a fine is levyed and no use is limited but if the fine had been levied Silence is an agreemâ—ni the Husband only limited the use and nothing els had been done against it then it should have been to the use limited by the Husband because it should have been intended that the Wife had consented thereunto and so I think judgment shal be given against the Plaintif Windham I am of the same opinion and it seemeth that their difference and disagreement in the limitation is the cause that both the limitations are void First let us see who hath auctority to limit the use surely the principall owner of the land hath the principall auctority to limit the use and here the Wife is the principall owner What a use is and therefore hath chief power to dispose of the use And Sr. the use is the chief profit and commodity of the land and cannot be severed from the land no more than the shadow from the body and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use and not the use to the possession for the use is the principall for by the common law by bargain sale enrolled the land shall pass without livery Bargain and sale for this was a contract for the use and then the law shall make the land to pass The Law erects the use and whithersoever the use is now carried the land and possession shall follow but when the Law carrieth the use it is to the owner and proprietary of the Land The mothers heir For if a man seised of Lands on the part of his Mother levy a fine thereof the use shall pass according as the land shall because the law carrieth the use And here the Wife cannot limit the use without her Husband and therefore that is void but yet it is good to this intent to shew her disagreement Silence Consent And if the Husband limit the use and she doth not disagree the law intendeth that she consenteth thereunto because she hath joined in the fine Sale in London by Husband and Wife And therefore in London sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent or if she do not disagree And although that she shall not be examined concerning the use yet the Law will not have her defrauded of her land by joyning in the fine without her consent to the use for by that meanes
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
be Fidi Rodes I know a Wife which is called Troth in English and she was called Trothia in Latin and it was good And all the Court adjudged this Writ good here 11. AN Action upon the Statute of Winch. was brought against a hundred in Gloucester Hue and 〈◊〉 and the Jury found a speciall Verdict viz. that the money was delivered to a Carrier of Bristow to be carried to London who packed it up And as he was on his journey certain Malefactors came to him in an another Hundred and there took his Horse and Pack and led him into a Wood within this Hundred against which the action is brought And if this Hundred be guilty or no they prayed the advise of the Court And all the Justices agreed that this was a robbery in the first Hundred and not in the second for upon the first taking he was robbed but if the Carrier had led the Horse himself Possession then it should be adjudged to be in his own possession and no robbery untill he came into the second Hundred and if a man have money and the Malefactors take him in one Hundred and carry him unto another Hundred and there Rifle him this shall not be a robbery in the first but onely in the second Hundred for he is allwaies in possession per totam Curiam and Judgement was given accordingly So of the purse picked in the Kings Bench and the thief taken with the manner but a key being fastened to the purse still stuck in the pocket and 2 Justices against two that the man was still in possession of his purse and so no robbery 12. WAlmisly shewed Termor how a woman brought Dower against her two daughters and another and in truth the third was but a Termer and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term for they all have made default at the grand cape and now he prayed to be received and shewed cause that the Husband made a lease for yeares and after the Lessee levied a fine to the Lessor and they granted and rendred back again to the Lessee for the same yeares rendring the same rent and the Statute of Gloucester is if the Farmour have c. that is if he may have covenant as in 19 Ed. 3. and here he may have covenant Ejectione firme and prayed to be received and shewed his plea. Shuttleworth You are at no mischief for you shall have an ejectione firme if you be ousted where she hath no cause of Dower Walmisley But we shall be put out of possession which shall be no reason Anderson I hold that a Termer may falsify by the Common law Falsify Shuttleworth But his lease is after our title of dower Lesser may plead destruction of dower Peryam although that it be after yet if he have matter which goeth in destruction of the Dower he shall falsify well enough as if she have title of Dower and five yeares pass after the fine levied And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession but here the Termer is named ideo quare And after at another day Shuttleworth moved it again Resceit of the partie to the Writ and said that the Termer shall not be received because he is named in the Writ and the Court was of the same opinion then but they said that he might plead speciall non tenure Shuttleworth first he ought to save his default for he commeth in upon the grand cape Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there Shuttleworth Then I shall have judgement against the two which made default at the grand cape Conusance Curia you had best be advised lest the Writ should abate by non tenure of parcell Cemurier Shuttleworth by my Conusance of non tenure of parcell Difference all shall abate but if I demurr upon his plea then it shall abate but for one parcell 13. LEonard White brought a Formdon in Discender and declared of a gift in tayl made to his father Estoppell who died and the land descended to the elder brother of the Demandant who also died without Issue and so conveyed to himself as heir in tayl c. The Tenant pleaded that the elder brother had Issue a Daughter who levied a fine to him and he relied upon the fine and proclamation Inducement doth 〈◊〉 make a plea double Walmisly this Plea is double the one is the Issue the other the fine Curia forasmuch as he cannot come to the one without shewing the other it shall not be double also here he relieth upon the Estopple vide 18. E. 3. 25. Tit. Gard. per Wylly 14. A Formdon in descend by three brethren for lands in Gavelkind they were at Issue upon Assetz descended to the Demandants Assets in Gavelkind And the Jury found a speciall Verdict that the Father of the Demandant was seised of those lands and by his Testament devised them to his three sonnes now Demandants and to their heires equally to be divided And if this shall be said a descent to them or no was the question because the Law would have done as much and therefore it shall be said Assetz But all the Court held the contrary and that they shall be joynt-Tenants or Tenants in common and then they shall not be in by the descent and so no Assetz and Anderson said that if a man devise to his sonne and heir in tayl he shall not take it by descent Peryam if a man may have any more benefit by the Devise than by the descent then he shall take by the Devise Eadem lex per Curiam if he devise his lands to his two daughters and heires they shall be joynt-Tenants and no coparceners è contra if he have but one son or one daughter only 15. IN the Exchequer Chamber all the Justices of the Common Pleas and the Barons of the Exchequer Venus were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator who pleaded plenè administravit and the action was laid in Barkshire at Newbery and the Plaintif averred that the Defendant had Assetz at Westwood in the same County and the venire facias was of Newberry whereas it should have been of Westwood And this he assigned for Error And all the Court agreed una voce that it was Error and so the judgement was reversed but the Assetz being transitory might have been assigned at Newbery 17. ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him Amendment and assigned for error that the judgement was quod recuperet versus Edward Seymour
beasts shall not discharge him for the payment of Tythes for other beasts and Tythes shall not be payd for beasts fed for the occupation of the house of the owner No tyths for things spent in the house but if a man feed to sell there shall Tyths be payd for those for with the first people live which manure the land of which the Tythes are payd for so is Fitzh Nat. brev 53. Q. to be intended 67. WIldgoose versus Wayland in Cancellar Notice of trust This question arose If A. be seised upon trust and confidence to the use of B. and his Heirs and A. selleth the land to one that hath notice of the trust to whose use shall the Vendee be seised Also it was moved if before the sale one come to the Vendee say to him take heed how ye buy such land for A. hath nothing in that but upon trust to the use of B. and another comes to the Vendee and saith to him It is not as he is informed for A. is seised of this land absolutely by which the Vendee buyeth the land if this first Caveat given to him ut supra be a sufficient notice of the trust or not And the Lord Keeper sayd it is not for flying-reports are many times fables and not truth and if it should be admitted for a sufficient notice then the Inheritance of every man might easily be slandered Notice of Forgery Cook It was holden in Bothes case in the Starchamber that if a man sayd to another take heed how you publish such a Writing for it is forged and notwithstanding the party doth publish it this is a sufficient notice to the publisher that the Deed was forged And upon that the Lord Popham at the same time put this case Notice of Felony If one say to me take heed how you entertain or receive A. B. for he hath committed such a Felony and I giving no credit to the report receive the party where in truth he had committed the Felony now I am accessary to this Felony To which the Lord Keeper answered that he would not draw blood upon such an opinion 68. IF a man make a Lease reserving Rent to the Lessor Reservation of Rent if he say no more the Rent shall goe but to the Lessor but if it be reserved generally and doe not say to whom it shall goe as well to the Heir of the Lessor as to the Lessor himself Per Gawdy 69. IT was sayd by Fell Hue and Cry an Attorney of the Kings-bench that it hath been adjudged in the same Court that an Action upon the Statute of Hue and Cry against Inhabitants of any Hundred will never lye by Bill but ought to be sued by Writ and the reason is for that the Action is brought against Inhabitants which are a multitude and for that may not be in custodia Marescalli as another private person may 70. A Judgement was had in an Action of Debt of 80 l. And the Plaintif had a Fieri facias Capias after a Fieri sacias executed for parcell and the Sherif levyed 20 l. of the goods of the Defendant and retorned that of Record but non constat by the Record whether the Plaintif had received the 20 l. or not and the Plaintif took forth a Cap. ad satisfaciend for the whole Execution being 80 l. and upon that the Defendant was Utlawed and now he brought a Writ of Error to reverse that Utlary which was reversed for that it did appear upon Record that execution was made by Fieri fac of 20 l. of the 80 l. and therefore the Cap. ad satisfaciend should have been but 60 l. 71. IF the Husband sell his land by Fine Claim of Dower with Proclamations and live five years and after dye his Wife being sole of full age of sound memory out of prison and within the four Seas and doe not make any demand or claim of her Dower within five years after the death of her Husband she shall be barred 72. A Feofment was made before the Statute of 27. to the use of a Man and Woman unmarried Moities in Tail and of the Heires of their two bodies begotten and after they intermarried and after marriage the Husband bargained and sold all the land in fee to one of his Feoffees and died without issue and after the Statute of 27 was made the Wife claymed the whole by Survivor as Tenant in tayl after possibility of issue extinct And by the opinion of all the Court without argument she can have but the Moity because the Husband and Wife had Moities as Joyntenants by reason of the Joyntenancy made before marriage And yet by the Court as to the issue in tail if any had beeen he shall have a Formdon of the whole 73. IF Land be holden of a Subject Tenure and Wardship extinct and the Tenant sells the land by Fine with Proclamations to I. S. in tail the Remainder to her Majesty in fee The Tenant in tail dyes his Issue within age The Opinion of the Court was that the Issue shall not be in ward to the Subject if the Queen do not assent to her Remainder for that the tenure and services are gone and extinct by the Fee simple to the Queen which may hold of none And so the issue in tail shall be in ward to none 74. IF a man have goods to the value of 100l and is indebted in 20l. and he deviseth and bequeatheth to his Wife by his Testament the moity of all his goods to be equally divided between her and his Executors Legacy of a moity of all his goods and make his Executors and dieth And the Executors pay the 20l. yet the Wife shall have the moity of the whole estate viz. 50l without any defalcation so that the Executors have Assets besides 75. IN a Prohibition and the Case was this Benefield against Feek Tithe of Saffron the Farmor of a Parsonage sued in he Spirituall Court for Tithes of Saffron against a Vicar The Vicar pleaded that time out of memory of man the Vicar and his predecessors have had the Tithe of all Saffron growing within the parish A Prohibition for the Plaâ—ntif in the Spirituall Court upon his own lihell The Plaintif pleaded that the land where the Saffron was growing this year by the space of 40 yeares next before had been sown with Corn whereof the Parson and his predecessors have had the Tithe And the Spirituall Court would not allow this Plea For which the partie prayed a Prohibition Tanfield The right of the Tithe commeth in question between the Parson and Vicar Howbeit that the Farmor be made partie to the suit and for that the right of Tithes being in question between two Spirituall men Suit between persons spirituall This Court hath no Jurisdiction And this very point was adjudged 30. Eliz. inter Hunt and Bush in this Court that in such
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the