Replevin against Edmund Brach and others the Defendant made Conulance as Baily to John Levison and said that long time before the taking c. one William Coup was seised of a house and eight acres of Meadow c. whereof the place is parcell in his Demesne as of Fee and did demise the same to Richard Coup for one and twenty years reserving Rent and the Lessee died and the Land came to his Wife as his Executrix who married Roger Owseley and that William Coup did levy a Fine of the Premisses to Stephen Noke and others to the use of Stephen and his Heires and after Stephen entred and outed the Termor and infeoffed John Leveson and his Heires and then the Termor re-enters claiming his Terme and for Rent arreare the Defendant made Counsans as aforesaid and it was adjudged against the Defendant because this entry and Feoffment by Noke to Leveson and the re-entry of the Termor is no Attornment and this varies from Littleberries case where the Lessor entred and made a Feoffment and the Lessee re-entred for Noke the Lessor had not any Attornment and can have no Distresse and his Feoffee cannot be in better case then he himself And if the first Feoffee makes Feoffment to B. who enfeoffs C. and the Lessee re-enters that is Attornment but to the first Feoffee and not the other for he may be misconusant of it because he was outed by the Lessor but note Iudgment was not given till Trin. 36 Eliz. Pasch 36 Eliz. in C. B. Owens Case EDward Owen brought an Action of Waste against Peerce for land in ancient Demesne the Defendant made defence and pleaded to the Iurisdiction of the Court because the land was ancient Demesne and the Defendant was ruled to plead over for it is but a personall Action and the Statute is a beneficiall Statute for the Common-wealth and by the opinion of all the Court except Walmsley does extent to ancient Demesne 40 Ed. 3.4 Ancient Demesne is a good plea in Replevin 2 H. 7.17.21 Ed. 4.3 it is no good plea in an action upon the Statute or Glocester Mich. 33 and 34 Eliz. in C. B. Rot. 2122. Sir Edward Cleeres Case SIr Edward Cleere brought a Quare Impedit against the Bishop of Norwich Edward Peacock and Robert Hinston Clerk to present to an Addowson holden in Capite Anderson A Devise of an Addowson in grosse is void because it is of annuall value whereof the King shall have the third part But Owen Beaumont and Walmsley held the contrary and so it it was adjudged See the Case of the Earle of Huntington against the Lord of Montjoy of a Devise of Liberties of Cramford which were not of any annuall value and yet the opinion of Wray and Anderson Iustices was certified to some of the Councell being Arbitrators that the Devise was not good Trin. 36 Eliz. in C. B. Rot. 2145. Brownes Case ANthony Brown brought an Action of Trespasse against Richard Pease the Case was this John Warren was seised in fee of the Mannor of Warners and of the Mannor of Cherchall and demised his Mannor of Warners to the youngest Son of Richard Foster his Cosin in fee. at which time Richard the Father had issue George Foster and John Foster And he demised his Mannor of Cherchall in haec verba I will my Mannor of Cherchall to Margery Water for her life and if she die and then any of my Cosin Fosters Sons then living then I will my foresaid Mannor of Cherchall unto him that shall have my Manner of Warners and after the Devisor died without issue and the Reversion of the Mannor of Cherchall discended to Henry Warner as Brother and Heire of the Devisor And after the said Henry Warner by Deed Inrolled did bargain and sell the Mannor of Cherchall to Anthony Browne who devised it to the Plaintiff And then George Foster dies without issue and the Mannor of Warners does discend to Iohn Foster his Brother and Heire who enters and enfeoffs the Lord Rich and after marriage the Tenant for life of the Mannor of Cherchall dies and the Plaintiff enters and the Defendant enters upon him as Servant to Iohn Foster whereupon the Plaintiff brought this Action And Iudgment was given for the Plaintiff because that the words and the intent of the Devise was that the Mannors of Warners and Cherchall should go together and therefore the Mannor of Warners was sold before the death of Margery by John Foster and after the death of Margery John can take nothing by the Devise Mich. 29 and 30 Eliz. Rot. 2325. or 2929. Hambletons Case JOhn Hambleton had issued foure Sons John the eldest Robert the second Richard the third and Thomas the fourth and devised to each of them a parcell of land to them and the Heirs Males of their body begotten and if it happen that any of their Heirs dye without issue Male of his body lawfully begotten then the Survivor to be each others Heire If these words make a Remainder or are void was the question And it was adjudged against the Plaintiff for the Court held that all those that survived were Ioynt-tenants and one Ioynt-Tenant cannot have a Trespasse against the other for by the intent of the Will it appears that the Survivors should have that part and the survivority of each other Heire each Survivor that is all that survive shall be each others Heire and so the remainder should be to every one of them 29 Eliz. Fenners Case argued before the Lord Mayor of London at Guildhall IN this Case it was adjudged that if a man Covenants that his Son then within age and infra annos nubiles before such a day shall marry the Daughter of I.S. and he does marry her accordingly and after at the age of consent he disagrees to the marriage yet is the Covenant performed for it is a marriage and such a one as the Covenantee would have untill the disagreement vide 7 H. 6.12 Dyer 143.313 369. 25 Eliz. Webbe against Potter IN an Ejectione firmae by Webbe against Potter the Case was Harris gave Land in Frank-marriage to one White and the Deed was Dedi concessi Iohan. White in liberum maritagium Iohannae filiae meae habend dictae Ioannae heredibus in perpetuum tenend de capitalibus Dominis feodi illius with Warranty to Iohn White and his Heires Periam The usuall words in Frank-marriage shall not be destroyed for the words of Frank-marriage are Liberum maritagium cum Ioanna filia mea in the Ablative case and although here it be in the Dative case it is good And of the same opinion were all the Iudges Also a Gift in Frank-marriage made after the Espousals was held good by all the Iustices 2 H. 3. Donor 199.4 Ed 3.8 Dyer 262 B. And a Gift in Frank-marriage before the Statute was a Fee-simple but now speciall taile and if it be not a Frank-marriage he shall have an Estate for life and to prove this his
Estoppell otherwise if it were by Deed. Vid. 1 H. 7.12 Mich. 32 33 Eliz. Marshes Case in B. R. Rot. 1011. MArsh and his wife brought a Writ of Errour as Executors to Nicholson to reverse an Outlawry upon an Indictment of Felony pronounc'd against the Testator Altham of Grayes-Inne The sole point was whether the Executors may have a Writ of Errour and I hold that they may for if there be no heir it is great reason that the Executors should have it for otherwise the erroneous judgement cannot be at all reverst and every one shall have a Writ of Errour that is damaged by the erroneous judgement and Executors have right to the personal estate to have Errour For if a man recovers damages in a Writ of Cosenage and the land also and dyes his heir shall have Execution for the land and the Executors Execution for the damages by the 19 Ed. 4.5 43 Eâ— 3. 13 Ed. 4.2 If a man does recover my villain by a false Verdict the heir shall have an attaint for the villany and the Executors for the damages and a Writ of Errour shall be given to him to whom the right of the thing lost doth descend as it was adjudged in the Case of Sir Arthur Henningham and he cited two presidents in the point 1 Tâ—…ity 11 H. 8. Rot. 3. where an Administrator brought a Writ of Errour to reverse a Iudgement given in an exigent Vid. 2 Rep. 41. a. Cook contr In Natura Brevium 21 M. he sayes an Executor shall have a Writ of Errour upon a Iudgement given in Debt against the Testator and the heir shall have Error to reverse Outlawry in Felony and to restore him in his blood and he said that it was part of the punishment in Felony to have the blood corrupted sic filius portat iniquitatem patris and by reason of the attainder he cannot inherit any Ancestor wherefore he having the damage it is reason that he should reverse it And although Executors shall have a Writ of Errour for Chattels personal yet they shall not have one when they are mixt with things real 5 H. 7.15.18 Ed. 4. If Writings be in a Box the heir shall have the Box because real things are more regarded than personal Nevertheless in this Case the Writ of Errour is in a real Action for the Law sayes that it is in the same nature as in original action whereupon it is brought as if Errour be brought to reverse a Iudgement given in a personal action the Writ of Errour is personal and so in like manner is it real if the first action be real 47 Ed. 3.35 35 H. 6.19 23. and although the first action be mixt yet the Law does rather respect the reality 30 H. 6. Barr. 59. where two brought an assize and one did release and there it was said that although this were a mixt action yet it shall be according to the most worthy and that is the reality and 16 Assi 14. divers Disseisors being barr'd in an assize did bring a Writ of attaint for the damages and summons and severance was suffered for damages were joyned with the reality and Stanford 184. If a man be indicted before a Coroner quod fugam fecit if he after reverse the Indictment yet he shall have his goods for de minimis non curat Lex But note that the Iustices said that the fugam fecit was the cause of forfeiture of the goods and not the Felony And as to the presidents he agreed to the Case of the 18 H. 7. for an Executor shall have a Writ of Errour to reverse Iudgement given in an exigent for there nothing but the goods are forfeit 30 H. 6. Forfeiture 31. and for the president in 11 H. 8. it cannot be proved that the Outlawry was for Felony Vid. Rep. fol. 3. 33 Eliz. Lilly against Taylor in B. R. Rot. 467. MArsh seized of the land in question did devise this to Rose Lilly for life and if she fortun'd to marry and after her decease should have any heirs of her body lawfully begotten then that heir should have the land and the heirs of the body of such heir and for default of such issue the land shall revert to Philip Marsh his son and his heirs and the question was if the husband of Rose shall be Tenant by the curtesy or not and so if Rose had estate Tail or for life onely Godfrey She hath estate but for life and he cited a Case adjudged in Benlowes Reports 40 Eliz. where lands are devised to A for life and after his decease to the male children of his body and it was adjudged that the male children have an estate Tail by purchase and nothing by descent and so A had nothing but for life Gawdy agreed for she hath but for life and when she dyes her issue shall have it Popham agreed if the words were that if she had issue that he should have it But Clench held that she had an estate in Tail executed and that her husband shall be Tenant by the curtesy Fenner The issue is as a Purchaser for the Devisor intended that Rose should not have a greater estate than for life And also it was agreed by all the Iustices that a Devise to a man and his heir shall be accounted a Foe-simple for that the word heir is collective and so is the 29 Assi where land was given to a man and to the heir of his body uno haeredi ejusdem haeredis this is an estate Tail Popham He shall be Tenant by the curtesy and he agreed that heir of the body was a good name of purchase but if a Frank-tenement be limited to his Ancestor and by the same Deed it is also limited to his heir the heir shall be in by descent But Fenner on the contrary Pasch 38 Eliz. Bolton against Bolton Rot. 882. 582. TEnant for life being impleaded doth pray in aid of him in the Reversion who joyn and lose c. and the Tenant for life brings a Writ of Errour and the Record is removed and he in the remainder brings a Writ of Errour also De Recordo quod coram vobis residet and the question was upon which Writ of Errour the Iudgement should be reverst and it was objected that if it should be reverst by the Tenant for life that he in the remainder should be restored But Gawdy Fenner and Clench contr Who held that it should be reverst at his suit who first brings the Writ as in case of Interpleader it shall be alwayes upon the first Writ And notwithstanding the removing of the Record by the Tenant for life at the next term the Court said it was at their discretion to reverse this at suit of anâ— of the parties as they pleased and because they observed some indirect practices by him in the remainder it was reverst at suit of Tenant for life Pasch 5 Jacob. Sir Henry Dimmocks Case in the
propertie To which it was answered that if the ancient stock of Sheepe were still it had been godd but it was not and therefore the grant is voyd Walmesley Although the first stock was changed yet the new stock does supply it and is in place thereof and shall be in the same condition as the other stock is and therefore the Lessor shall have propertie in it But the whole Court was against him for they said that the increase of the stock of Sheepe should be to the Lessee and the Lessor shall never have them at the end of the terme but they agreed that if the lease were of the stock with Lambs Calves and Piggs there the increase belongs to the Lessor And all the Court took this difference sc when a lease is made of dead goods and when of living for when the lease is of dead goods and any thing is added to them for reparations or otherwise the Lessor shall have this addition at the end of the terme because it belongs to the principle but in case of a stock of Cattle which hath an increase as Calves and Lambs there these things are severed from the principle and Lessor shall never have them for then the Lessor shall have the Rent and the Lessee shall have no profit Trinit 29 VViseman against Rolfe in in C. B. Rot. 1454. IN a Writ of right the Case was thus A man selfed of Land in Fee makes his will and gives to D. his wife such Land for life the remainder to T. his son and heires of his body and also gives to T. his son his Land in B. and also his Land in C. and also he gives his Land called Odyum to the seed of his son habendum all the demised premisses to his T. son and the heires males of his body The Question was it T. should have an estate in Taile in B. and C. or if the last words shall relate only to that which was last named Fenner for the Plaintiff For the last Clause is a new Clause and shall not be preferred to the first for it begins with a verbe viz. I give my Land called Odyum and therefore the limitation afterward shall be referred only to this And 10 H. 7.8 There was a grant by Dedi custodiam Parci Arbores vento prostrat The Grantee shall have the trees by this Clause and 14 Eliz. A man deviseth thus I give my Mannour of C. to my second son Item I give my Mannor of S. to my second son to have and to hold to him and to his heirs And by Dyer Welsh and Weston he had an estate but for life but Brown cont for if a Lease be made to A. B. and C. successively it is adjudged that they are Ioyntenants but if it be to them as they are named they shall have it one after the other and if a devise be to one and his heirs and after to another for life the Law will conster that the estate for life is to procede for that words of Relation in Wills shall be taken stricttly as if a devise be to A. and his heirs of his body and he does devise other land in Forma praedicta this shall be but for life Walmesley cont and said that this limitation did go to all whereof no limitation was made before for the rules of reason are uncertain and therefore such matters shall be expounded according to the best sense that may be and here the sense is most naturall to refer it to all and the word all imports this and the Case of the fourth of Elizabeth under favour accords with this viz. that the Devisee shall have Fee in both But if the Devise had been I devise D. to my son Thomas and also to him and his heirs the Mannor of S. there he shall have D. but for life And if a man devise to his 4. sons A. B. C. and D. to have to the persons last named to them and their heirs there all shall have Fee 19 Ed. 4. In a precipe of a house and an acre of land in three severall Towns and that the Defendant Ibidem ingressus est and did not say into the house and land and yet it was held good Periam and Rhodes He shall have an estate Taile in all and the relation shall be to all Anderson doubted at first but agreed afterwards and Iudgement was given accordingly 32 33 Eliz. Mathewson against Trott in C. B. Rot. 1904. UPon a speciall verduit the Case was this A man seised of land in soccage devised it to his yonger son and died seised the elder son enters and dies seised and his heir enters and the yonger son enters upon him the Question was if his entry be taken away by this descent VValmesley It is not and he compar'd this case to a title of entry for a condition broken or a Conusee of a Fine upon grant and render c. in which Cases no descent shall take away entry Anderson The Devisee hath interest presently and the land does not descend for the devise prevents the descent and the Freehold is presently in the Devisee and the Statute 32 H. 8. which gives power to Devise lands does make a Title in the Devisee as a Title of entry for condition of Mortmaine and the Devisee shall not have an ex gravi querela upon this Statute but he must enter Walmesley The Devisee hath not a Freehold presently for if it were so the Devisee at the Common Law ought not to sue an Ex gravi Querela but certainly if the freehold be in the Devisee his entry is taken away And afterwards Iudgment was given by Anderson that descent does not take away the entry of the Devisee but delivered no reason for it Hillar 33 Eliz. Mosgrave against Agden Rot. 2529. IN an action of the Case on a Trover and conversion of six barrells of Butter The count was that they came to the hands of the Defendant and after the trover they were impared and decayed ratione negligentis custodiae And the Court held cleerly that the action would not lie for he who finds goods is not bound to preserve them from putrefaction but it was agreed that if the goods were used and by usage made worse the action would lie 44 Eliz. Ayer against Joyner in C. B. Rot. 2529. IN a second Deliverance it was said by the Court that if Lessee for years does assign over his terme and yet continues possession that he hath but a naked possession and no interest nor estate but the estate and interest does remain in the grantee so that he may grant it over And Walmesley said that if the Lessee makes waste the Lessor may have an action of waste against him and there is a casâ— that if a man makes a Lease and the Lessee waves the possession and a stranger commits waste the Lessor shall have an action of waste against the Lessee but the principall question
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
5 H. 7.9 And afterwards vide Mich. 37 38 Eliz. It was adjudged that this was good enough in an Ejectione firmae for there the damages are the principall but otherwise in a Precipe for there ought to be a certainty but in an Assise of Novel Disseisin it is good enough but afterwards Mich. 38 39 Eliz. the case was debated in the Exchequer Chamber by Writ of Error and the Iudgment was reversed Hil. 36 Eliz. in B. R. Rot. 34. Walters Case LOve brought an Action of Debt against Wotton who pleaded the Statute of Vsury in Bar and by reason of Mispleader it was awarded by the Court that the parties should plead De novo and this Award was entred in this manner viz. Et quia placitum illud in modo forma placitat est sufficiens in lege the Court awarded that the parties should replead and hereupon they pleaded and Iudgment for the Plaintiff and the Defendant brought a Writ of Error in the Exchequer Chamber which was certified accordingly And there Gawdy moved that the Record in this point might be amended and to have the Record certified de novo into the Exchequer Chamber for that the first Award is repugnant in it self for it is awarded that they shall replead because the Plea est sufficiens whereas it ought to be that they shall replead because est minus sufficiens as the paper books are and the opinion of the Court was that it could not be amended because that the fault is in the Iudgement it self which is the act of the Court and therefore cannot be amended Glanvill It is no Error in the Iudgment for the Iudgment is only that they shall replead but the Error is in the Iudgment to the Iudgment and may be well amended and of the same opinion was Popham Mich. 36 and 37 Eliz. in B. R. Rot. 579. Bartwrights Case BArtwright brought an Action of Debt upon a Bond against Harris the Condition was that if the Defendant did acquit discharge and save harmlesse the Plaintiff against an Obligation in which he and the Defendant were bound to I.S. in 601 l. that then the Obligation should be void The Defendant said that Bartwright was sued on this Obligation by I. S. and upon default I.S. had Iudgment to recover and that the Defendant before execution did deliver to the Plaintiff the 601 l. and hereupon the Plaintiff demurred Humbert It is no plea for he confesseth that the Plaintiff was not yet taken in execution yet inasmuch as he may be taken therefore his body goods and lands are liable to the execution and he hath not acquitted nor saved him harmlesse against the Bond of I.S. vide Dyer 186. And the Plaintiff had Iudgment c. Mich. 36 and 37 Eliz. in B. R. Rot. 25. Greyes Case GRey brought an action of Trespasse against Bartholmew the Case was A man did purchase divers Fishes viz. Carpes Tenches Trouts c. and put them into his Pond for store and then died The question was whether the Heire or the Executors should have the Fish Popham The Heire shall have the Deer in the Park and by the same reason the Fish Clench If the Fish be stolne it is Felony so that it appears there is a property in them vide 18 Ed. 4. 10 Ed. 4.14 22 Ass 98. that stealing of Tench out of a Pool is Felony by which it seems they are but Chattels Popham the Book is so and so is the Law but that is of stealing Fish out of a Trunk or some narrow place where they are put to be taken at will and pleasure but otherwise it is where they are put into a Pond Fenner He which hath the water shall have the Fish And Popham ex assensu curiae gave Iudgment for the Heire And in the principall case the Executors did take the Fish with Nets and the Heire brought a Trespasse and adjudged maintainable See what Chattels Executors shall have and what not in 21 H. 7.26 10 H. 7.6 30. an account will lye for Fish in a Fish-pond so in the 5 R. 2. Waste 97. an Action of waste did lye against Guardian in Chivalry for taking Fish out of a Pool by the Statute of Magna Charta but quaere if it lies against a Termor or Guardian in Soâ—age upon an Account for Fish 36 Eliz. in B. R. Rot. 767. Leighs Case LEigh brought an Ejectione firmae for a Chamber against Shaw the Case was A Lease was made of the Rectory of Chingford in Essex and of the Glebe excepting the Parsonage house saving and allowing to the Lessee a Chamber over the Parlor next the Church It was adjudged that the Lease of the Chamber was good for as well as a man by his exception may except part of a thing so as it shall be intended that it was never let or granted so in this case when he saies except the Parsonage house saving and allowing to the Lessee a Chamber this saving makes the Chamber as it were excepted out of it as if it had been leased so a saving out of a saving is as much as there had been no saving at all and then this Chamber not being excepted out of the Lease shall passe clearly by the Lease of the Rectory And Iudgment was given for the Plaintiff 37 Eliz. in B. R. Rot. 242. Wrights Case WRight brought a Writ of Error against the Mayor and Comminalty of Wickombe to reverse a Fine levied by his Ancestor of twenty acres of Land the Defendants in abatement of the Writ of Error did plead that the Plaintiff after the death of his Ancestor did disseise the Defendants of the Land and made a Feoffment to a stranger Iudgment c. The Plaintiff replied that they did re-enter upon him without that that he did enfeoff a stranger modo forma The Iury found that there was a Fine of twenty acres and that the Plaintiff being Disseisor of all made a Feoffment of six of the acres to a stranger Et si supra totam materiam c. And it was objected that the Record was intire and the Error is a Chose in Action and not a Chose in Droit and therefore cannot be divided but if it were a Chose in Droit it is otherwise as if a Disseisee of twenty acres releaseth all his right in five acres this doth extinguish all his right in the five acres so upon a Feoffment of parcell yet the right remaineth as to the remnant But of a Chose in Action which is meerly entire no apportionment can be as in the 31 Eliz. in the Kings Bench between Charnock and Wrothesley the case was Husband and Wife levied a Fine of the Wives Land and after because the Wife was within age they sued a Writ of Error to reverse the Fine The question was If this should be reversed as to the Wise onely or against the Husband according to the opinion of Belknap in the 50 Ed. 3. And after long debate it was resolved
not claimed to hold at Will for he hath done contrary for he hath made Copies By all the Iustices if Tenant at will or for years or at sufferance make a Lease for years this is a Disseisin and a Tenant at will doth thereby gaine a Freehold and thereby doth claim a greater Estate then he ought and so it is in this case 2. Admitting him to be Tenant at sufferance the question is if he may grant Copies and if whether they be good and it seems he may for no trespasse lies against him because he is Dominus pro tempore and it is not like a Copy made by an Abator or Disseisor for it hath been adjudged that Copies made by them are void but in this case his act of making Copies agrees with the Custome as in Grisbrooks case If an Administrator sells Goods and paies debts with the money and after he who is Executor proves the Will he shall never avoid this sale for that it was done according to the Will which the Executors were compelled to do So in the 12 H. 6. If a Baily cuts Trees and repaires an ancient Pale this is good and 6 R. 2. if he paies quit-rents it is good Coke He comes in by right and therefore is Tenant at sufferance and like this case is Dyer 35 H. 8.57 Lord Zouches case where Cestuy que use for life the remainder over in taile made a Lease for the terme of the life of the Lessee and dies and the Lessee continues his Estate And the opinions of the Iustices of both Benches were that he is but Tenant at sufferance Popham If a Mannor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet the Copies of Surrender made by such Devisee are good but contrary where new or voluntary Copies are made by him 7 Eliz. and in the Lord Arundells case a Feoffment in fee was made of a Mannor upon condition the Feoffee upon Condition grants voluntary Copies those are good Atkins on the contrary And he made a difference between a Tenant at will and a Tenant at sufferance for a Tenant at will shall have aid but so shall not the other as in the 2 H. 4. and a Release to one is good to the other not c. and when he holds over he doth assume an Interest which shall not be thought wrongfull for he is neither Abator nor Disseisor and therefore Dominus and therefore the Copies made by him are good 4 H. 7.3 Tenant at sufferance may justifie for Damage-feasant And all the Iustices held for the Plaintiff and that he that made the Copy was but Tenant at sufferance and not Disseisor and that he had no Fee And the Iudgment was to be entred unlesse the Defendant shewed better matter Trin 28 Eliz. Rot. 329. Smiths Case SMith assumed upon himselfe that when I. N was indebted to I.D. in an Obligation of forty pounds that if I.D. would not implead the said I.N. that then if the money were not paid at such a day that then he viz. the said Smith would pay the money Vpon which Assumpsit after the day I.D. brought his Action on the case and did set forth in his Declaration that he did not implead I.N. and it was moved by Kingsmill that he could not have this Action untill I.N. be dead for so long as he lives I.D. hath time to implead him As if a man promiseth another that he will be named in his Action that he hath against a third person and if the third person payes not the money at such a day then he will he cannot sue unlesse he shewes he hath discharged the other of the Obligation Clench It is implied that he will never implead him Shuttleworth Iustice not so for if hereafter he sue him contrary to his promise then the other who made the Assumpsit shall have his Action on the case and recover to the value of the sunâ—m in the Bond. And after the case was moved again and the Plaintiff brought the Obligation in Court and thereupon the Obligation was entred so that now the Plaintiff could not implead I. N in posterum for which Iudgment was entred for the Plaintiff 29 Eliz. Cosens Case COsen the Father had issue three Sons John George and Thomas John the eldest died in the life-time of his Father his Wife Enseint with a Daughter the Father makes a Devise in these words That if it shall please God to take to his mercy my Son Richard before he shall have issue of his body so that my Lands shall descend to my Son George before he shall be of the age of one and twenty years then my Overseers shall haue my Land untill George come to the age of one and twenty years If Richard who is yet living had an Estate in taile by these words was the question And all the Iustices agreed that it was a plain implication to make an Estate-taile in Richard the second Son 13 H. 7.17 29 Eliz. in C. B. Warrens Case WIlliam Warren brought an Action of Debt for forty pounds and in his Declaration confessed satisfaction of twenty pounds and hereupon a Writ of Error was brought in the Kings Bench and the Iudgment reversed For by his Declaration he had abated his owne Writ and he ought to have Iudgment according to his Writ and not to his Count. And Error was brought upon the Outlawry for if the first Record was reversed the Outlawry thereupon is reversed 4 and 5 Phil. Mar. BEnlowes Serieant moved this case a man seised of Lands and Teâ—ements in London devises them by these words I will and bequeath unto my Wife Alice my livelyhood in London for terme of her life By this Will the lands in London passe to the Wife by this word Livelyhood Nota for Brook Iustice said that it was in ancient time used in divers places of this Realm and had been taken for an Inheritance To which Dyer agreed Case of Slander BRook said that if a man speak many slanderous words of another he who is slandred may have an Action on the case for any one of these words and may omit the others But if a man write many slanderous things of another in a Letter to a friend an action upon the case will not lye for it shall not be intended that it is done to the intent to have it published Mich. 1 and 2 Eliz. N. Arch-bishop of York and I.B. Executors of the last Will and Testament of Thomas Duke of Norfolk did bring a Writ of Ravishment de Guard and then he was deprived by his own consent The question is if the Writ shall abate Benlowes It shall abate for if a Dean and Parson of a Church bring an Action for such a Custome and then resigne the Writ shall abate because it is their own Act. Dyer The Writ shall not abate for the Action is not brought in their own persons but in their Testators and
that it was enacted by the Major of London and common Councel that if any Citizen takes the Son of an Alien to be his Apprentice that the Covenants and Obligations shall be void and he shewed that he was the Son of an Alien and became an Apprentice to the Plaintiff who is a Citizen and made the Covenants with him for his Apprentiship And demanded Iudgment And it was held no Bar for notwithstanding the Act the Covenant is good for it is the Act of the Defendant although the Act of the Common Councell be against it but the said Act may inflict punishment on any Citizen that breakes it And Iudgment was given for the Plaintiff Trin. 41 Eliz. in B. R. Knotts against Everstead LEssee for life the remainder for life the remainder in taile he in the reversion who had the fee does enter and enfooffs the Lessee for years and adjudged that by this Feoffment Nihil operatur Popham said that he who hath a term cannot license another that hath nothing in the land to make a Feoffment for he who hath the Freehold wants nothing but possession to make a good Livery but in this case he who makes the Livery had not the Freehold and therefore the license is void But Tanfeild said that if Lessee for life gives leave to a stranger to make Livery it is void but if he consent that the stranger shall make a Feoffment it shall amount to a Disseisin and the Feoffment is good Which was denied by the Court. And Clench said if a Lessee for ten years makes a Lease for one year to him in reversion there he in the reversion who hath the land for a year may make a Feoffment to the Lessee for ten years and it is good Trin. 41 Eliz. Moyle against Mayle MOyle brought an Action of Waste against Mayle and declared that he had leased to him a Mannor and a Warren and that he had destroyed a Cony-borough and subverted it and assigned otherwastes in cutting down certain Thornes Williams The Action of waste will well lye and said that a Warren consisted or two things of a place of Game and of liberty and to prove that a waste did lye for a liberty he cited the Statute of Magna Charta Cap. 5. in which a Warren is intended also the Statute of Marlebridge cap. 24. and the Statute Articuli super Chartas cap. 18. by which Statutes it is evident that a waste does lie for Warrens and a Warren is more then a liberty for a Writ lies Quare warrenam suam intravit and by the 12 H. 8. if Lessee of a Warren does break the Pale it is a waste also if Lessee of a Pigeon-house stop the holes so that the Pigeons cannot build a waste doth lye as it hath been adjudged Also if Lessee of a Hop yard ploweth it up and sowes Graine there it is waste as it hath been adjudged Also the breaking a Weare is waste and so of the Banks of a Fish-pond so that the water and fish run out To all which cases the Court agreed except to the principal For the Court held it was not waste to destroy Cony-boroughs for wast will not lye for Conies because a man hath not inheritance in them and a man can have no property in them but only possession and although by a speciall Law Keepers are to preserve the land they keep in the same plight they found it yet thiâ— does not bind every Lessee of land Walmsley The subversion of Cony-boroughs is not waste and it was usuall to have a waste against those who made holes in land but not against those who stop them up because therby the land is made better And it was said that to dig for stones was a waste unlesse in an ancient Quarry although the Lessee fill it up againe And Walmsley said that in Lancashire it is waste to dig Marle unlesse it be imployed upon the land And said it was not waste to cut thornes unlesse they be in a Wood stubbed and digged up by the roots but if they grow upon the land then they may be stubbed and it is no waste But to cut down Thorne-trees that have stood sixty or a hundred years it is waste Hil. 32 Eliz. in B. R. Sir George Farmer against Brook IN an Action of the Case the Plaintiff claimeth such a Custome in the Town of B. that he and his Ancestors had a bake-house within the Town to bake white bread and houshold-bread and that he had served all the Town with bread that no other could use the Trade without his license and that the Defendant had used the Trade without his license upon which the Defendant demuâ—'d Morgan This is a good Prescription and it is reason that a Prescription should bind a stranger vide 11 H. 6.13 A. prescribed to have a Market and that none should sel but in a Stall which A. had made and was to pay for the Stall and held there a good Prescription And the Arch-bishop of Yorks Case in the Register 186. is a good case A man prescribed that he had a Mill and he found a horse to carry the Corn thither and that therfore they ought to grind there and because they did not he brough his Action on the case Buckley contra It cannot be intended to have any commencement by any Tenure 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny adjudged not good and the case of the Arch-bishop was good because he had it ratione dominii tenuri And adjudged the principall case that the action will not lye 23 Eliz. in C. B. Farrington against Charnock KIng Henry the 8 granted Turbariam suam in D. at Farrington rendring rent sur 21. years and then the Lessee imployed part of it in arable land and relinquisht part of it in Turbary and then Q. Mary grants Totam illam TurbariaÌ„ before demised to Farrington and adjudged that that passed only which was Turbary and the other part that was converted into Tillage did not passe Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother and the Error assigned was that there was no warrant of Attorney of the Record And it was agreed by the Bar and Bench and adjudged error But the great point was if the Plaintiff could have a writ of Error The Case was Henry the Father had Henry his Son and three Daughters by one Venter and the Plaintiff by another Venter and died seised of the land intailed to him and the Heirs Males of his body Henry enters and makes a Feoffment the Feoffee is impleaded and voucheth Henry who looseth by default in the recovery and dies without issue and whether the Daughters which are Heirs generall or the Plaintiff which is Heir in tail shall have the Error Gawdy and Baker for the Defendant who said
that the Plaintiff could not have the Error but the Daughters who were the Heirs to Henry for an Action alwaies discends according to the right of land and it seems that the Heir in Burrow English shall have Error or Attaint and not the Heir at the Common Law which was agreed by all on both sides but it was said that this varies much from the present case for two reasons One because he came in as Vouchee which is to recover a Fee-simple and he shall render a Fee-simple in value which is discendable to the Heirs at the Common Law Secondly he hath no Estate-tail Bromley Solicitor and Plowden contra and laid this ground that in all cases where a recovery is had against one by erroneous processe or false verdict he which is grieved shall have redresse of it although he be not party or privy to the first Iudgment and therefore at the Common Law if a Recovery be had against Tenant for life he in the Reversion shall have Error of Attaint after his death and now by the Statute of R 2. in his life so in a Precipe if the Tenant vouches and the Vouchee looseth by default the Tenant shall have Error for the Iudgment was against him and he looseth his term and in the 44 Ed 4.6 in a Trespasse of Battery against two one pleads and it is found against him and the plea of the other not determined damages by the principall Verdict is given against them both which if they be excessive the other shall have an Attaint And Bromley said there could not be a case put but where he that hath the losse by the recovery should have also the remedy and Baker cited 9. H. 7.24.6 that if a Recovery be had against a man that hath land on the part of the Mother and he dies without issue the Heir of the part of the Father shall have the Error But Bromley and Plowden denied this case and that 3 H 4.9 it was adjudged to the contrary And Wray said to Baker that he ought not much to rely on that case for it was not Law and said that if Tenant for life makes a Feoffment and a Recovery is had against the Feoffee the first Lessor shall not avoid this Bromley there is no use for he may enter by forfeiture but in our case of whatsoever estate it be at the time of the recovery the right of the Estate-tail is bound and therefore it is reason that the Heir in tail shall avoid it Jeffrey of the same opinion and cited 17. Ass A Conusor makes a Feoffment and then execution is sued against the Feoffee by erroneous processe the Feoffee shall have the Writ of Error although he be not party to the first Record but the reason is because of his interest in the land And Bromley and Plowden said further that notwithstanding the Feoffee recovers against the Vouchee and the Vouchee recover over the land yet this recovery shall go to the Estate-tail And Iudgment was given for the Plaintiff Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry and after an Execution is sued against him at the suit of a common person and he is taken by force thereof and after he takes a Habeas Corpus out of the Kings Bench and Coke prayed that he might be discharged of this execution for where a man is attaint of Felony he hath neither Goods nor Lands and his body is at the Kings disposall and so is not subject to the execution of a common person 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary For although he be attaint of Felony yet may he be in execution for his own offence shall not aid him and so was it in Crofs case in the Common Pleas where a man being attaint of Felony was taken in execution at the suit of a common person and he escaped out of Prison and an escape was brought against the Sheriffs of London and a Recovery against him And at last by advise of the Court because he was indebted to many persons and to discharge himself from his Creditors intended to have a pardon for his life and so deceive them therefore he was committed to the Marshalsey upon this execution Trin. 42 Eliz. Malloy against Jennings Rot. 1037. IN a Replevin the Case was A man seised of land in fee is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff and then the Recognizance is forfeit and the Conuzee sues out a Scire facias against the Conuzor before the Deed was inrolled and had Iudgment to have Execution And the question was if the Bargainor was a sufficient Tenant against whom the Execution was sued Williams Serjeant The Bargainor was Tenant at the time of the Scire facias before inrolement and although it was inrolled after shall have relation to the first livery to prevent any grant or charge And if an Action be brought against an Executor as in his own wrong and the Suit depending he takes Letters of Administration this shall not abate the Writ So in our case the Bargainor was seised of the land when the Scrie facias was brought and if a man makes a Lease for life rendring Rent and then the Lessor bargains and sells the Reversion and before the Inrolement the Rent is behind and the Bargainer demands the Rent which was not paid and then the Deed is inrolled yet he cannot enter for the forfeiture which I have seen adjudged in the 28 H. 8. Dyer Disseisee of one acre makes a Release to the Disseisor of all his lands and delivers it as an Escroll to be delivered to the Disseisor and then he disseiseth him of another acre and then the Deed is delivered to the Disseisor yet the right in the second acre shall not passe And he much rolled on Sir Richard Brochets case 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seised the first day of May and it hapned that one Corbet had sold him land by Indenture the 24. day of April but the Deed was not inrolled untill the 24. day of May after And the question was if the Conuzor was bound to convey these lands or not and adjudged that he was not for inasmuch as the Deed was not inrolled the ffrst day of May he was not seised and great mischief would ensue if the Law should be otherwise for no man will know against whom to bring his Action for a Bargain and Sale before Inrolement may be done secretly Herne Serjeant The Bargainee is seised before Inrolement and by the Statute of 5 Eliz. which wills that none shall convert land used to tillage unlesse he puts other land to tillage within six months yet none will say that it is a breach of the Statute although Pasture be presently converted to tillage and he cited Chilburns cafe 6 Eliz. Dyer 229. that proves that
this very cause prescribed as we do in this case so they may prescribe in a way or other thing of easement or pleasure 7 Ed. 4.26 a. 15 Ed. 4.29 a. Anderson There is no question but Parishioners may justify their going over any bodies land in their Perambulation Warberton Parishioners shall not prescribe in an easement as in â—y way to the Church Owen The books make a difference between things of interest as in common for in such things Parishioners cannot prescribe and things of easement as a waste for in such things a man may prescribe Anderson It is plain that Parishioners cannot prescribe for none may prescribe but those that have perpetuall continuance and therefore Tenant for years or for life or Parishioners cannot prescribe but must be aided by custome Walmsley of the said opinion for there is no descent or succession in Parishioners And Iudgment was given for the Plaintiff Trin. 37 Eliz. in B. R. Norton and Sharp against Gennet Rot. 178. A Prohibition was sued by the Plaintiffe as Executors to I.S. who surmised that the Defendant sued them in the Court Christian for a Legacy of 200 l. and that the Testator had goods but to the vale of 350 l. and set forth how he was Keeper of the Prison of Ludgate that he was bound to A. and M. Sheriffs of London to discharge and save harmlesse the same Sheriffs from all escapes which bond was to the value of a 1000 l. And shewed that one Holmes was taken by a Capias utlegatum at the suit of a stranger and how the Testator suffered him to escape whereupon an action of debt was brought against the Sheriffs and a Iudgment whereby the Obligation made to them by their Testator is forfeit and pleaded riens intermaines and because the Court Christian would not allow this plea they prayed a Prohibition upon which Coke Attorney-generall demurred And it was agreed by Gawdy Iustice Coke and Tanfeild that if the Bond to the Sheriff be not forfeit then is the Surmise good and the Legacy shall be paid But Fenner said to Coke Quomodo probas Who answered The difference is when a bond is made by the Testator for payment of money in a Suit at the Court Christian for a Legacy such a bond is a good plea although the bond be not forfeit as in the 9 Ed. 4.12 13. for the Condition of the Bond is part of the Bond and a duty but otherwise it is where the Condition is collaterall for the performance of Covenants but in our case the Condition is not broken as is supposed for the Capias utlegatum issued the 25 of Eliz. and so the Arrest meerly void for every Capias ought to be returned the next term after the Teste 21 H. 7.16.6 8 Ed. 4.4 6. Sed alii contra But after a Consultation was moved for if a Recovery was afterwards had against the Executors And it was answered that it was not the course to make a Bond to the party but to the Court But Fenner said that it such course be allowed no Legacy would be paid And Iudgment was given that a Consultation should be awarded if the Legatee would enter into a Bond to the Executor to make restitution if c. or otherwise not Hil. 38 Eliz. in B. R. Haddon against Arrowsmith IN an Ejectment the case was The Queen being Lady of the Mannor of Winterburne in the County of Berks by her Steward did license a Copyholder for life to make a Lease for three years if he should so long live the Copyholder did make a Lease generally to the plaintiff for three years who being ejected brought this Action Stephen The Action will not lye because the Copyholder hath not pursued his licence for license or authority must be pursued very strictly as well in form as substance 10 H. 7. license to enfeoff by Deed or license to impark 300. acres he cannot enfeoff by paroll or impark but 100. acres and it was resolved the last Terme in the Exchequer that if the King license his Tenant to alien he cannot alien to one in tail the remainder to the Donor in fee And so in our case where he makes a Lease for 3. years absolutely he hath not performed his license Gawdy contra for when his license is to make a Lease for yeares if he so long live these words If he so long live are but Surplusage for the Law saies that if Copyholder for life makes a Lease for years and dies the Lease is determined and therfore the clause in the License is no more then the Law saies and so is void Quod suit concessum per totam curiam Fenner The Condition in the License is meerly void for the Lord gives nothing by the License but only doth dispence with the forfeiture and the Lessee is in by the Copyholder and not by the Lord for the Lord cannot condition with him in his License Clench The Lord may license on Condition as where the Lord doth licence his Copyholder on condition that the Lessee shall repair the house or shall not cut Trees for otherwise the Copyholder may cut them and the Lord hath no remedy for his License is a dispensation of the forfeiture Popham contra A Condition to a License is void as a License to make a Lease for years on condition that he pay 20 l. the second year this is void for the reason given by my brother Fenner for the license does not give a right but only executes it as a Livery or Attornment but a Limitation to such License is good as license to alien for two years he cannot alien for three but in our case the Condition the Limitation made by the Lord is void and the difference is between a Copyholder in fee and a Copyholder for life for if the Lord doth license his Copyholder in fee to make a Lease for three years if he so long live and he makes a Lease absolutely this is no forfeiture for this Lease shall be a good interest against the Heir of the Copyholder but otherwise of a Copyholder for life And Iudgment was given for the Plaintiff Pasch 38 Eliz. in C. B. Bishop of Rochesters Case THe Bishop of Rochester brought a Writ of Annuity against the Deane and Chapter of Rochester and declared of an Annuity by Prescription from the Prior of S. Andrewes of Rochester which Priory was dissolved the 28 H. 8. 31 H. 8. their possessions were committed by the King to the Dean Chapter of Rochest Anderson The Annuity does not remain for an Annuity chargeth the party and not the possession and therfore when the Corporation is dissolved which is the person the Annuity is gone Walmesley But in 2 H. 6 9. it is said there If a Priory be charged with an Annuity the Annuity shall continue although it be charged to an Abby Anderson That is true for there the Corporation is changed only but here it is
nupserit ignobili desinit esse nobilis Brookes There is a difference where a noble woman marries a noble man of less noble degree than she is and when she marries one that is not at all noble for in the first case the shall hold the dignity of her second husband but in the last case she shall retain her antient dignity And so it was observed where the Marquis of Dorâ—eâ— had two daughters the elder was married to the Lord Audley and the youngest to a Gentleman and the eldest took place alwayes as wife to a Baron but the youngest kept her place as a Marquisses daughter Dyer I was a Counsel in the Case of the Lady Powes already mentioned and she would by no means lose her dignity and an Herauld was brought into Court that said she had such dignity although it was held clearly on the contrary by our Law by Montague and Hales and the Writ did abate Stanford A noble man loseth his honour by his own act as by attaint and so hath the woman here by taking such husband and the nobility of such woman is lost also by attainder Brookes said That he knew where the sons of a Duke and Marquiz had a trespass brought against them for hunting a Park by the name of Squires and it was good wherefore it was said to Benlows that he must plead to the Writ Pasch 4 5 Ph. Mary in C. B. A Feme sole having the custody of the land and body of an Infant took husband and she and her husband did tender convenient marriage to the Infant which he refused and married himself elsewhere and at his full age entred into the land if it be necessary that both shall joyn in a Writ of forfeiture upon the marriage or that the husband alone shall have it was the question Brown Justice Both shall joyn and so is it ruled in a Book Dyer contr The husband alone shall have this Writ for he may discharge it or release it and by the 5 Ed. 3.14 6. the husband alone may have a Writ of Trespass and if the wife have an advouson and a stranger present the husband alone shall have a Quare impedit and the same Law is where the woman hath a Rent and the husband distreyns and Rescous is made the husband alone shall have a Rescous Prideaux The Wardship of a Ward and Land is a thing real and the Survivor shall have it and not the Executors of the Baron and if an Action be accrued before marriage as if a Bond be made to her before marriage she shall joyn with her husband in the Action upon the Bond but if a right to an Action does accrew after marriage there she shall not joyn as here the right of the husband does not accrew untill marriage for the Action is not in respect of the Wardship but of the tender and refusal and his marriage elsewhere all which do accrew after the Coverture Stanford If a man bring a Quare impedit for an Advowson which he hath in right of his wife and hath Iudgement to recover and dyes the wife shall present and not the Executors of the husband so if he recover in a Trespass the wife shall have execution for the damages Prideaux If a Lease be made to a woman and a Rent reserved â—…mine poenae and she takes husband and the Rent is behind both shall joyn in the Action for the pain Dyer This Action is grounded upon a real Covenant Stanford Damages recovered in a Trespass are not real yet the wife shall have them if the husband dye before Execution Dyer The Trespass is done to the inheritance of the wife and therefore she shall have damages and in 43 Ed. 1. Statham The husband alone brought a ravishment of a Ward for a Ward he had in right of his wife and the Writ held to be good but there it is said that otherwise it is in right of a Ward and if they joyn in a Writ of ravishment of Ward and recover and the husband dye before Execution his Executors shall have Execution and not the wife but it is said there Quaere and at last it was agreed that the Action should be allowed but the surest way is to have bosh joyn Pasch 6 Eliz. Powtrells Case in C. B. IN an Ejectment the case was a woman-tenant in Tail did make a Lease for 31 years and took husband and had issue the wife dyes and the husband is tenant by the curtesy and surrenders to the heir who puts out the Lessee who brings this Action Dyer I doubt whether this surrender be good for tenant by the curtesy is but in reversion and hath nothing in possession and it is dubious how he can surrender Weston and Brown He may surrender for a term or franktenement may be surrendred to him that hath the estate in reversion or remainder if it be not a mean estate as tenant for life the remainder for life the remainder in fee the first tenant for life cannot surrender to him that hath the fee. But the great point of the Case was if the issue could avoyd the Lease during the life of the tenant by curtesy and the Court held he could not for the tenant is in as a purchaser And by Walsh and Carus If tenant by the curtesy grants over his estate and then enters into religion the Grantee shall have his estate during the tenants natural life Quod omnes concesserunt and it was said also that if the heir had been impleaded during the life of the tenant by curtesy he shall not have his age quod fuit concessum Mich. 14 15 Eliz. Tottenham against Bedingfield IN an Account the Defendant pleaded he was never his Baily for to render account Gawdy prayed the opinion of the Court if the Action would lye for otherwise he would not trouble the Court. The Case was the Plaintiff had a Lease of a Parsonage and the Defendant being no Lessee nor claiming any interest takes the Tithes being set forth and carries them away if the Plaintiff could have this Action was the question Manwood It will not lye for an account lyes where there is privity but wrongs are alwayes without privity but I agree that it one receive my rents I shall have an account against him for by my consent afterwards I do make a privity for although that he hath received the Rent he hath not done wrong to me inasmuch as it is not my money untill it be paid to me but otherwise it is where a man disseiseth me of land for that is meerly a wrong and so is it in this case for when the Tithes were set forth by the Parishioners the Law sayes they are in the possession of the Parson and therefore when the Defendant took them away he does it wrongfully and therefore no account will lye against him and so was it adjudged in Londâ—… in the Case of one Monax who under colour of a
the attainder and she granted it to Bones and all actions demands and a scire facias was issued out in the name of the Queen And the principall case was adjourned but the Patentee had express words to sue in the name of the Queen although it was not so pleaded 43 Eliz. Pelling against Langden in B. R. Rot. 438. IN a trespass for breaking his Close and killing 100 Conies The Defendant justified because he had common time out of mind and because the Conies were damage Feasant in the place where he killed them The Plaintiff demurr'd and judgment given for the Plaintiff for Conies are beasts of Warren and profitable as Deer and are not to be compar'd to Foxes and vermine which may be kill'd but the Owner of the soil may keep Conies where the Common is aswell as other cattle also he may make Fish-ponds in the Common and the Commoner cannot destroy them Cook 5. Rep. 104. 22 H. 6.59 so it was adjudgâ—d Trinit 43 Eliz. Gresham against Ragge in B. R. Rot. 1295. IN trepass for entring into a house The Defendant pleaded that the Plaintiff was indebted to the Defendant in 100 l. and that he by the permission of the Plaintiffs servant the doores being open did enter to demand his debt Vpon which the Plaintiff demurred And adjudged for the Plaintiff For the servant of the Plaintiff could not licence any to enter into the house of his Mr. also a man cannot enter into anothers house to demand money unless the debtor be within the house Gawdy If it had been averred that the Plaintiff had been then in the house the Plea had been good Hillar 44. Eliz. Streetman against Eversley in B. R. IN an ejectment the Case was a Lessee for 80. years upon condition that if the Lessee his Executors or Assignes did not repairo the house within six weeks after warning that the Lease should be void the Lessee made a Lease for ten years who suffered J.S. to occupie the house and then the Lessor came to the said occupation of the house and at the house gave notice and said that the house was defective in reparations and did shew in what and so gave warning to have it repaired and after for default of reparations he entred and the Defendant as servant to the Lessee re-entred And his entry adjudged lawfull for notice given to J.S. who was but an Occupier of the house and not Lessee or Assignee of any interest of the terme was not sufficient but it ought to be to the person interessed in the terme who is liable to reparations Vid. Cooks 6. Rep. Greens case Also the notice at the house is not sufficient but it ought to be to the person of the Lessee and Popham agreed to this Trinit 1 Jacobi Shopland against Radlen in C. B. Rot. 853. IN a Replevin the question was when a Guardian in socage holds a Court in his own name and does grant Copies in reversion if this be a good Grant or not and adjudged to be good against the Heir Walmesley Dominus pro tempore of a Mannour may hold a Court and make a Grant of Copyholds but this is to be understood of perfect Lords which a Guardian is not but onely ad commodum haereâ—is and is rather a servant to the Lord than Dominus pro tempore and he cannot be called Dominus because he can neither grant nor forfeit his estate and hath nothing to do to meddle in the Mannour but to account for the profits and a Writ of Ward does not lye for the land but onely for the body Gawdy chief Justice Warburton and Daniel Justices to the contrary Who held that a Guardian in socage is Dominus pro tempore and that he hath interest in the land and may make a Lease thereof for years Commentar 293. and may avow in his own name 29 Ed. 3. Avowry 298. But a Guardian in socage cannot present to an Advowson because he cannot be accountable But Daniel Iustice said that the Guardian may present where the heir is not of years of discretion and a Guardian in socage shall have a Trespass and a ravishment of Ward 24 Ed. 3.52 and he hath the Ward by reason of looking to him and therefore he hath interest sufficient to keep Court and admit Copyholders who are not in by him but by the custome But a Bailiff of a Mannour hath no interest and therefore cannot make Grants and Copies but a Guardian hath interest provisione legis although it be such interest as cannot be forfeit and the heir cannot be at any prejudice for he shall have an account made to him of such Fines for the heir himself cannot grant them and the Law cannot compell the Guardian to occupy them neither can the Court be held in the name of the heir but the Guardian and therefore he may grant Copies And if a Guardian in socage hath such interest that he can make a Lease for years and his Lessee shall maintain an Ejectment a fâ—r â—…oti he may grant Copies Neither is it any argument at all to say that a Guardian in socage hath no interest because he cannot grant or forfeit his estase for the reason is because these things are annexed to his person And after Mich. 3 Jacob. it was adjudged that the Grant was good and shall binde the heir Vid. Keloway 46.6 37 Eliz. Brown against Hercey in C. B. Rot. 620. IT was found by office that J.S. who held the Mannour of D. of the King did dye without heir whereupon W.S. as heir to him did traverse the said Office and hereupon was at issue with the Queen if he were heir or not and depending this suit he made a Feoffment in Fee with a Letter of Attorney to make Livery and after it was found for him against the Queen and Iudgement given against the Queen but before the Writ of Amoveas manum the Attorney made Livery and adjudged good for it cannot be said that the heir at the time of the Feoffment had nothing or that the Queen at the time of the Livery was in possession for by the Iudgement given the possession of the Queen was utterly defeated and possession in the party before any amoveas manum sued out for that serves but to compell the Eschaetor to avoyd the possession it he hold the land after Iudgement Vid. Stanford praerogat 78. 10 Ass 2. 10 Ed. 3. and the difference is where the King is seized by title and where without title for when the King is seized by title and his title is determined he ought to make Livery to him that hath right but when he is seized without title and he who hath right hath Iudgement against him he may enter without Livery 5 Ed. 5. Quare impedit 34. But it was here said by Owen Iustice that if a man makes a Feoffment of White-acre with a Letter of Attorney to make Livery and then he purchase White-acre this is
was peritus in legibus Angliae and that he was retained to he of Councel and adjudged no good plea for he should alledge that he was Student for a certain time and was elected by the Benchers to be a Barrester And Iudgement was given for the Plaintiff Michaelm 41 42 Eliz. Swan against Gateland Rot. 3267 or 3667. IN a ravishment of Ward the Plaintiff demurred that T. B. was seized of land in socage and dyed and J B his son is of the age of two years and that the Guardianship belongs to him because he is next friend 〈◊〉 parâ—… maâ—…s J.B. viz. the brother of E.B. the infants mother The Defendant pleaded that E.B. the infants mother was his mother also and that he was begotten by one Gateland on the said E.B. and the said Gatelaâ—e dyed and the said E.B. did marry the said T.B. and had issue the infant and so concluded quod erat propinquior am cus absque hoc that the Plaintiff is propinquior amicus and upon this was a Demurr Hern for the Plaintiff The question is whether the uncle shall be Guardian in socage or the brother of the half blood and he said the uncle should have the Wardship because there is a more natural affection between the uncle and the infant than between the infant and the brother of the half blood and if there be not love he cannot be the procheme amy although in judgement of Law he be the next of kin 31 Ed. 3. Gawdy 157. In a Writ of Ward the Plaintiff declared that he was next of kin of the Plaintiff the mother of the infant and it was pleaded against him that the infants mother was alive but he replyed that the mother had made a Charter of Feoffment to the disherison of the infant and that she was attaint of Treason And in 15 Eliz. the brother who claimed the Wardship of his younger brother was also within age and therefore it was ruled that the uncle should have the Wardship because alterum â—…quâ—r regeâ—… qui seâ—psum nequit And 5 Ed. 6. the brother of the half blood is next of kin to whom administration shall be given before the mother for the Statute of 27 H. 8.15 sayes that the next of kin shall have it and the brother of the half blood is the next of â—in but Guardianship shall be given by the Law to the nearest friend and that is the uncle Williams contr For although the brother be but oâ— the half blood yet he shall have the Wardship for the brother is the next of kin to whom the inheritance cannot descend and the 31 Ed. 1. does not gainsay this for the mother was denyed the Wardship because she was attaint of Treason for the Law will not suffer that the infant shall be in Ward to any who may be suspected to do wrong to the infants land or to his person and therefore he shall not be in Ward to any that may inherit him for there is a suspicion that he may kill the infant And 5 Ed. 6. Brook Administration 47. it is agreed that the brother of the half blood is next of kin and that is the cause of the nearness of love and it cannot be intended that there should not be love between persons so nearly allyed And 30 Assi 47. a remainder was limited propinquioribus de sanguine and there it is agreed that the brother is next of blood Warburton contr The uncle shall have the Wardship for two causes for there is not such natural love between two brothers of the half blood as is between the uncle and the infant of the whole blood Also the Statute sayes that he shall be in custody parentum haeredis and therefore he ought to be in custody of those who are of most antient degree who are the parents but one brother cannot be parent to the other Walmesley contr For the brother is the procheine amy and so hath it been ruled in the time of the Lord Dyer in 7 Eliz. in C. B. for he ought to be in Ward to him that is next of blood and most remote in succession And the 5 Ed. 6. proves that he is next of kin and such nearness must needs procure love and although it sometimes happens that there is not such love yet this cannot alter the Law that alwayes intends amity and although the Statute of Mariebirdge speaks of parents that is intended of such as are of full age and of sound memory for if he be not then some other that is the next of kin shall have the Wardship and he told Warburton that he would shew him a report of such a Case where it was ruled accordingly before the Lord Dyer Hillar 43 Eliz. Peck against Charnell in C. B. Rot. 1703. IN an Ejectment upon a special Verdict the Case was this John Burly seized in Fee of land doth devise it to his wife for life the remainder to William Burly in tail the remainder to his next heir-heir-male being of his sirname in Fee and dyes and then his wife does intermarry with William Burly who had the remainder in Tail and then they levyed a Fine come ceo c. to J.S. and by the same Fine J.S. rendred to the wife for life the remainder to the husband in Fee and then a common recovery was had against the husband and wife and that was to the uses contained in the Fine then the wife dyes and the husband dyes without issue and the right heir male of the sirname of the Devisor enters and makes a Lease to the Plaintiff who being outed by the Lessee of William Burly brought the Action Williams Here are two points first if this be a discontinuance â—y the wife secondly if the recovery barrs him in the remainder And as to the first point when woman tenant for life and he in the remainder in Tail being her husband do joyn in a Fine this shall not be a discontinuance of the estate Tail for by Littleton discontinuance cannot be by way of grant although it be in case of a Fine but ought to be by Livery And as to the second point Knivetons Case Bâ— 252. is express in the point that notwithstanding the common recovery yet the entry of him in the remainder is legal for as to the point of recovery a base Fee doth pass to the Conusee of the Fine which is rendred back again to the woman for life and her husband in Fee and by the Common Law there was no remedy for him in the reversion against a recovery had against Tenant for life 7 H. 7.12 5 Ed. 4.2 untill the Statute of Westminster the 2. which gives to him a Writ of ad terminum qui praeteriit and by the Statute of the 23 of H. 8. he may enter but now the question is whether this recovery will bar him in the remainder of his entry because the recovery was of another estate and not against his Tenant for life But I conceive