arrear that the Remainder shall be to a Stranger that Remainder is not good Hutton said that in my opinion my Brother Atthow spoke well and so it was affirmed Bateman against Ford. AN action of the Case was brought against Ford who had called the Plaintiff Thief and that he had stollen from him a yard of Velvet and a yard of Damask The Defendant said that he said that the Plaintiff had taken and bribed from him as much mony as he had for a yard of Velvet and Damask and justifies Hitcham said that the Iustification is not good For the words that he justifies do not amount to so much as to affirm a Felony in the Plaintiff where the Plaintiff counts that the Defendant slandered him of a Felony Hutton said What difference is there when you say that I have bribed your Horse and when you say that I have robbed you of your Horse Henden one may take Goods and yet it is not felony Termino Pasc Anno 4. Car. Regis Com. Banc. Norris against Isham IN an Eject firm by Norris against Isham These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case That an Eject firm cannot be of a Mannor Because that there cannot be an Ejectment of the Services But if they do express further a quantity of acres it is sufficient It was said by Crook Iustice and not denyed That if a Lease is made of 5 acres to try a Title in an â—…eject firm And of the 3 acres he will make a lease But in the other a he will not If the livery be in the 3 acres the other 2 does not pass Part of the Evidence was That the Countess of Salisbury being seised of the Lands in Question makes a Lease of them by words of Demise Bargain and Sale to Iudge Crook for a Month to begin the 29 September habendum a datu and it was deliveted the 3 of September And the same day he bargains and sells the Reversion Davenport Because that no Entry appears by the Lessees by vertue of the Demise he submitted to the Court If there was any such Reversion in the Grantor he bring in possession And this difference was a greed That if one demises Lands for years and Grants the Reversion before Entry of the Lessée The Grant is void As it is in Saffins Case Cook 5. 12. 46. But if a man bargain and sell for years and grants the Reversion before Entry of the Lessee it is good For the Statute transfers the Possession to the use As if a man bargain and sells in fee or for life and the Deed is inrolled The Bargainee is in possession of the Frank-tenement And so it is of a Lease for years which is a Chattell And by Crook In the Court of Wards that very point was resolved Davenport Also there are words of Demise and Bargain and Sale before which the Lessee had his Election to take by which he would As Sir Rowland Heyards Case is But by Hutton and it was not denyed He should be in by the Bargain and Sale before Election For that is more for his advantage Further the Evidence was That George Earl of Salisbury made a Lease of those Lands which were a Mannor And makes a Conveyance from himself for life with divers Remainders and then to the use of the Daughter or Daughters of the said George And the heirs males of thrir bodies the remainder to the heirs of the body of the said George c. and had 3 Daughters to whom the Remainder The first dyed without Issue the 2 d. dyed having Issue male the 3 d. bargains sells all her half part and pur part to Edw. Earl of Salisbury Who now being seised of a third part of the Estate of Inheritance and of the other two parts for his life and the lives of the 3 Daughters suffers a common recovery by the name of the moyety of the Mannor And the doubt was what passed Richardson By that there is not passed but the moyety of the third part Hutton Crook and Yeiverton were on the contrary opinion and said that by that All the third part passed also Yelverton If a man be seised of the mannor of Dale and buys half for life of another in fee and makes a Feoffment of the half of the Mannor The moyety which he had in Fee shall pass And there shall be a forfeiture for no part Which was agreed by the Court. If a man be seised of the third part and grants the moyety perhaps the moyety of the third part only passes But he is seised of all Richardson There are several Estates and moyety goes to that Estate which he had in the Mannor For when I grant more than I can grant that which passes passes Crook I had the third part of a Mannor and grant the moyety of the Mannor all my third part passes But in the Bargain and Sale the words were part et pur part Which as it was passed all And also the Covenant to the Lessor The Recovery was of the half part pur part And by Hutton Crook Yelverton All was intended to be recovered And then the word Moyety carries that tresbien Richardson That Indentures of Covenant much mends the Case Another Question upon the Evidence was Whether when a Bargain and sale is made of Lands And the Bargainee before inrollment makes a Lease for years and afterwards it is enrolled If the Lease now be good Richardson and Yelverton It shall be that although it be after acknowledgement and before inrollment yet it is naught And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case That if one sells in fee and before inrollment the Bargainee bargains and sells to another And afterwards comes an Inrollment That second Bargain and sale is void And an other Question was Pasc 4. Car. Com. Banc. If one makes a Lease for years by Indenture of Lands which he had not If the Iury be estopped to find that no Lease And by Richardson If the finding that no Lease be subject to an attaint But they should find the special matter And then the Iudges would judge that a good Lease And Sergeant Barkley cited Rawlins's Case Coo. 4. 43. to that purpose Crook and Hutton against him And Crook said That it was adjudged in London in Samms case That that is not an Estoppel to the Iury. Which was affirmed by Hutton And that they may find the special matter And then the Iudges ought to find that it is not a good Lease And Hutton said That there is a difference between a special Verdict and pleading in that case For in speciall pleading and Verdict is confost by all parties That he had not any thing in the Lease And then the Iudges gave Iudgment accordingly The King against Clough IN the case of a Quare impedit by the King against Clough before Richardson shewed how the Quare
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
But by the Court it is after verdict For the Original for part cannot be applyed to this Declaration and it shall not be taken as the Original for it And then there is no Original which is aided by the Statute and so it had been frequently ruled By Harvey it was one Blackwells Case here where the Writ was bona catalla cepit and the Declaration was viz. unicum discum plumbi And that was ruled to be no Original The Wife of Cloborn against her Husband THe Wife complains against her Husband in the Spiritual Court Causa saevitiae For that he gave her a box on the ear and spat in her face and whirled her about and called her damned whore Which was not by Libel but by verbal accusation after reduced to writing The Husband denies it the Court ordered the Husband to give to his Wife 4 l. every week pro expensis litis and Alimony Barkley and Henden moved for a Prohibition The Sute is originally Causa saevitiae and as a Case that they assesse Alimony And now for a ground of a Prohibition It was said that Cloborn chastised his wife for a reasonable Cause by the Law of the Land as he might which they denyed and said that they had Iurisdiction in these matters de saevitia c. And afterwards that the wife departed and that they were reconciled again And then that reconciliation took away that saevitia before as reconciliation after elopement Richardson It was said here that the Sute was now held and without Libel but that is no ground of a Prohibition for he proceeded upon that matter reduced in Articles and we cannot grant a Prohibition if they proceed to their form For we are not Iudges of their form But if they will deny a Copy of the libell a Prohibition lies by the Statute And you you 'l say that an Husband may give reasonable chastisement to his Wife and we have nothing to do with it But only that the Husband may be bound to his good behaviour by the Common law And the sentence in causa saevitiae is a mensa thoro and we cannot examine what is Cruelty and what not And certainly the matter alleged is Cruelty For spitting in the face is punishable by the Star-chamber But if Mr. Cloborn had pleaded a Iustification and set forth a Provocation to him by the wife to give her reasonable castigation Then there would be some colour of a Prohibition Henden We have made such an Obligation as it is absolutely refused Hutton Perhaps he is in contempc and then they will not admit any Plea As if one be out-lawed at Common law be cannot bring an Action But the Plaintiff they advised to tender a Iustification and if they refused it then to move for a Prohibition Bachus and Hiltons Case HUtton cited one Bachus and Hiltons Case in the Kings Bench Where a Bill was of Lands 17 Maii and the Declaration 20 Mail which was after and so the Original before the trespass and after verdict Because it was mistaken Iudgement was stayed Mortimores Case AMhurst desired the opinion of the Court in this Case Copiholder is ousted and so the Lord disseised and the Copiholder releases all his right to the Disseisor and dies his Heir enters and brings trespass against the Disseisor who pleads his Franktenement And by the Court the Release is clearly void the Disseisor never being admitted Copiholder But they ought not to teach him how to plead And Hitcham cited a Case in which he was of Councel Two Copiholders in fee the one release to the other by Deed. And that was adjudged a good Release which was now also agreed by the Court. Earl of Mulgrave Ratcliffes Case Intratur Exchequer Chamber 18 Iac. Rot. Argued by Sergeant Atthowe D' e Mercurii post festum Sanctae Margaret 17 Edwardi 2d Iohn de Malo lacu gave to Peter de Malo lacu and the Heirs of his body the Castle and Mannor of Mulgrave by divers mean conveiances the Land came to Sr. Ralph Bigod 11 Ian. 6 H. 8. Sr. Ralph Bigot made a Feoffment to William Euer and others to the use of his last Will and died and the right of the Land together with the Entayl and the use also after the Will performed descended to Sr. Francis Bigot 10 Dec. 28 H. 8. Sir Francis Bigod made a Feoffment to Iohn and others to the use of himself and Katherine his wife and the Heirs of their bodies and they had issue Ralph Bigod and Dorothy then the Statute 16 H. 8. cap. 13. for forfeiture for treason is made and 26 Maii 29 H. 8. Sir Francis Bigod was attainted of Treason committed 7 Ian. 28 H. 8. and was executed and Katherine survived H. 8. by the special act of attainder of Sir Francis Bigod and his forfeiture is made 4 Novem. E. 6. Ralph Bigod Son of Katherine and Sir Francis was restored in blood and died without issue Dorothy maried Boger Ratcliff and they had Issue Francis Ratcliff 5 Octob. 8 Eliz. Katherine died and Francis Ratcliff died having issue Roger Ratcliff 1 Febr. 34 Eliz. Francis Ratcliff Roger Ratcliff entred 11 Aug. 33 Eliz. Office found for the Quéen 28 April 34 Eliz. The Quéen by Letters Patents granted the same to Edward Lord Sheffield and the Heirs males of his body begotten at the rate of 9. 18. 3 d. Roger Ratcliff upon the whole matter sued his Monstrare de droit in the Exchequer and had Iudgement for him and Writ of Error being brought by the Lord Sheffield to reverse the Iudgement formerly given in the Case Points 2. First whether Francis Bigod who had Estate in special tayl in possession had also any right in the antient entayl left in him at the time of his Attainder or whether it were not in abeiance in respect of the Feoffment made 21 H. 8. and whether that right did accew unto the King by the Attainder of Francis and the general Statute of 26 H. 8. cap. 13. or by the particular act of Attainder of 31 H. 8. and I am of opinion that there was a right of the old entayl remaining in him and that the King ought to have it together with that estate in special entayl in possession freed and discharged thereof as long as the Estate entayl endured In the handling of this point I shall occasionally speak of rights of Actions real given or not given to the King upon Attainder of Treason by force of Statute 26 of H. 8. or of the general Statute of 33 H. 8. for this Statute is so near of kin to that conservation of antient Rights that we must foresee that we do not in the Iudgement of this Cause prejudice the Statute ex aliqua Secondly Whether there be a Remitter in the Case after Attainder of Treason and if there be such a Remitter here when the Remitter begins and in whom whereas nothing hath as yet been distinctly said I am of opinion that there
himself from all rights as concerning himself yet the Donor shall by force of this Statute which at the Common law he could not And if the Donor will release all his right in the Land to the Donee after a discontinuance by Feoffment his release though it will extinguish no right to the very Land yet it will extinguish Rents which proves that the Donee by his Feoffment cannot dismiss himself of all his right but that by the Statute of West his alienation is disabled as to that but that the Donor may avow for the Rent But wheresoever Tenant in tayl suffers a Recovery or levies a Fine the Rents together with the entayl ceases And the answer as to that is imperfect to resemble it to the Case of tenant in see simple doth alien and yet the Lord may avow upon him for the Cases have no resemblance for as Littleton well distinguisheth when Tenant in fee hath departed with his whole Estate he is no more Tenant to the Lord to avow upon though the Lord if he Will may avow upon him for the arrerages and if the Lord after future alienation release to him all his rights in the Land the Release is void to release the Rents and Services in all which it differs materially from the other Case and it is an equall proportion of the Law That when the Lord aliens his signory the Tenant is to he acquainted that all Arrearages may be paid that he may have no after-reckonings for after notice and the Arrerages paid the avowrie vanisheth Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him thereby allowing a right to remain in him against his Feoffment The Case is more difficult because during the Feoffor there can be no motion of that right neither by the Feoffor who hath hard himself nor his Issue because his Right is not yet come yet let me put this Case upon the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice If Tenant in tayl Iointress make a Feoffment the person to whom the land doth belong after her death may enter and hold it according to his right Now till such Entry there is a discontinuance but when the Issue enters he is an Heir intayl et quasi eins per discent But now generally when Tenant in tayl hath made a Feoffment and dies the Heir shall bring a Formedon in the Discender and shall count that descendere debet from that Ancestor that made the discontinuance performam doni and therefore the Writ saith discendit jus it is as much devenit jus It is true that regularly a Feoffment bars all former rights and future rights yet respect to be had to Estrangers Albanies Case 2 Rep. Archers Case 1 Rep. 66. 9 H. 7. And therefore in Archers Case Lands were demised to one fore life remainder to his first Heir male Tenant for life made a Feoffment in fee and died his next Heir was barred of his right for ever by the Feoffment A man seised of Land by right of his Wife makes a feoffment in fee and then the Estate is made back to the Wife she is thereby remitted and her Husband shall never be Tenant by the Courtesie and therefore well resolved if Tenant in tayl discontinue and levy fine with Proclamations is no bar to the Estate tayl Now this Case is irregular because it standeth by Act of Parliament which is able to make the same Act good to one purpose or person and void or voidable to another as the Statute of Ecclesiastical persons and binds the party but is void or voidable against the Successors and shall nevertheless when they enter be in by succession And that there is still a right remaining in the Tenant in tayl appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly and therefore note Cuppledikes Case If Tenant in tayl with divers remainders over make a Feoffment and Feoffee vouch not the Feoffee Tenant in tayl in possession but the first in Remainder by the Statute the Feoffees are not bound but are remitted and Maunsells Case there is cited where one recovery is a bar to 3 several Intayls with double voucher And this is called jus extinguendi which he could not extinguish and discharge if not in him and in his power and therefore there is no cause to frame Abeyances needless and in vain but the Law allows not nor admits not but in Cases of necessity as in the vacancy of Bishops Parsons and other Ecclesiastical persons or the like Remainders to right Heirs upon Freehold abeyances are not allowed but where the original Estate required them or where the consequences of Estates and Cases do require them As for the first in Case of single Corporations Bishops Deans and Parsons which must dye and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living Or Secondly in Case of congruity as if a man gives a Warranty and die his Heir in ventre sa mere may not be vouched but if there be Heir he may be vouched and a Vouchee may take and plead a Release quasi tenens or may lease a Fine to the Defendant of the Land in Question But for Estates that of their own nature and origination creation are perfect and intire as this Estate entayl is the Law permits not vain affected abeyance or fictions by the voluntary Act of the party as this to no good which should preserve a right to serve the Heir and to defraud the King which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession Vses being but a kind of abeyance and shift to kéep the profits to the use and defraud the King and Lords of their Escheats and them that had a right to know against whom to bring their Actions Littleton was confounded in himself when he made an abeyance of totum statum suum and yet made an Estate for life which is condemned in Walsinghams Case by the Iudges Again though fictions take place amongst common person the King is not bound by fictions and therefore the King is not bound by his remainders by recompence feigned upon a common recovery warrant collateral binds not the King but warranty with real and actual Assets nor the King is not bound by Estoppels of his own recitall certa scientia as it is in Altenwoods Case And I hold plainly that as the Land in possession is distinctly and literally given to the King so the right is as literally directly and plainly given to the King by discharge of that ancient right whereof formerly it was bound for when the Statute saith that the King should have the Lands saving the right of all persons other than the Offenders and their Heirs and such as claim to their use it is plain that the eye of the Statute was not
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
Rent 5 R. 2. Annuity 21. Debitum Judex non leperat Then when it does not appear that the Action lyes for the 15. s. for the half year and the Iury assessed Damages intirely it is voyd as 10 Rep. 130. Osborns Case And it appears that by his computation of time it is not a year and an half from the time of the Assumpsit made Richardson said That it is not secundum ratum for then he might divide the Rent and no day is limited for the payment of it for if a Lease be made for two years or at will paying annually at Michaelmas 30. s. and the Lease is determined after half of the year although that it be by the Lessee himself he cannot make any Rent But Yelverton said that that is not a Rent but a collaterall sum And debt does not lye for that And in the Declaration it is said Quod permisit ipsum reentrare and does not say what time which was nought by all but Hutton And it ought to be also that he did de facto re-enter Hutton said There being it is said So long as you shall occupy the Land you shall pay annually c. That he may demand half of the year But the whole Court against him and so Pro hoc tempore judgement was stayed Grange and his Wife against Dixon A Lease was made by Baron and Feme and another Feme and the Lessee Covenants by the same Indenture to find sufficient mans meat and horse meat to the Baron and Feme and to the other Feme or to their Servants at their coming to London at his house in Southwark The Baron and Feme dye and the other Feme takes an husband The Opinion of the Iustices was that he was not bound to find sustenance for the husband but only for the wife or for her servants and not for both at one and the same time because the Covenant was in the disjunctive But it was doubted if he shall find them Victualls for one meal only at their coming or for all the time of their staying there Johnson against Williams and Uxor IT wad said If an Obligation be made by a Feme sole and afterwards she takes an husband and an Action of debt be brought upon that Obligation against the Baron and Feme and they deny the Deed the Baron shall be taken for the Fine as well as the wife for the wife had nothing whereof to pay the Fine And so in Trespasse against Baron and Feme dum sola fuit and they are both found guilty both shall be taken for the Fine which the Prothonotaryes agreed Jeakill against Linne IN a Writ of Covenant the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale by which the Defendant Covenanted to pay him the Rent the which he had not payed And the Defendant said that before any day of payment of the said Rent incurred one A. Ordinary of the same place sequestred the said Parsonage for non payment of the first fruits Iudgement If an Action c. And by the Court that is not a Plea for he does not shew that any Act was done by the Plaintiff himself in his default Nor he does not confesse and avoid the interest of the Lessor as to say that the Lessor was a disseisor and made a Lease to him after that the disseisee re-entred and so he might confesse and avoid the Lease notwithstanding the Deed indented But he cannot say that the Lessor had nothing at the time of the Lease made And if the Defendant had been bound in an Obligation for the payment of the said Rent in debt brought upon that that should not have been a Plea for he had bound himself to pay the said Rent And the occupation is not materiall where the Lease is for years or for life But otherwise of a Lease at will Davies against Fortescue IF a man it was said be seised of a Mannor whereof there are divers Copy-holders admittable for life or for years and he Leases the Mannor to another for term of life the Lessor may make a Demise by Copy in reversion to commence after the death of the first Copy-holders and that is good enough But the custome of some Mannors is to the contrary and that is allowed Doyly an Infants Case A Man seised of Lands makes a Feoffment in Fee by Deed indented rendring a Rent with a clause of Distresse and afterwards he is bound in a Statute and the day is incurred Vpon which an Execution is awarded to the Conusee and upon the Extent the Sheriff returns that the party was dead and that he had extended the said Rent And the heir of the Conusor being within age because the Rent was extended during his nonage brought an Audita querela and Hutton said That it is maintainable enough because there is an Exception in the Writ of Extent That if Land be descended to any Infant that the Sheriff shall surcease to extend And although that Writ issued against the party himself who made the Conisance yet when it appears by the return of the Sheriff that he is dead the Infant shall be aided by an Audita querela or otherwise the Extent shall be void which is made upon the possession of the Infant Jeffryes Case IN a Formedon the Plaintiff counts of a gift to his Father and to his heirs of his body ingendred during the life of I. S. and makes the descent to him during the life of I. S. And Yelverton seemed that the Writ is good enough for a Tayle may be made so determinable as well as a Fee simple And if a man Warrant Lands to the Feoffee and his heirs against him and his heirs during the life of I. S. That he had a Fee simple in the Warranty determinable upon the life of I. S. So here Warberlyes Case IN a Writ De valore maritagii it was moved by Henden If the Lord shall recover his Damages according to the value of the Land held of him only or according to all his Lands held also of others And Hutton and Crook said that the value of the Marriage shall be accounted as well in respect of the lands held of him as of other lands held of other Lords by Posteriority or in Soccage for there the woman by the Marriage to him shall be more advanced And the better the advancement is the better is the Marriage of the heir and the person more to be esteemed Norbery against Watkins ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided so that they shall have part and portion alike If by that they have a Ioynt-tenancy or a Tenancy in common was the Question because there was an Act to be done for making the division And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants But Harvey said That upon such a gift made to them if the
one of them dyed before partition yet their heirs should hold severally according to the intent of the Will for otherwise the Surviver should hold place which against the will of the Devisor Northens Case A Man seised of a Mannor having all the Goods of Felons de se within the same Mannor and makes a Lease for years of parcell of the same Mannor to a man and afterwards makes another Lease of the same Lands to commence after the determination surrender or forfeiture of the first Lease The first Lessée was a Felo de se the Lord Lessor of the Mannor enters into the lands Leased as forfeit and the second Lessée ousts him and it séemed to Crook that the Entry was lawfull enough Harvey said That the Lessor to whom the Frank-Tenement belonged entring into the land the Frank-Tenement drowned the lesser Estate and the Lease for years is extinct in the Frank-Tenement And it was said That therefore the first Lease extinguisht But if before that the Lord had aliened the Mannor saving to him the liberty and after had entred for the Forfeiture the second Lessée could not enter for it is not any determination of the first Lease Crook said That if the Lessor infeoffed the first Lessée of the Mannor that is a determination of the first Lease and the second Lessée may enter The Bishop of Winchester against Markham THomas Bishop of Winchester brought an Action upon the Statute of West 1 cap. 4. de scandalis magnatum against Markham for that he preferred a slanderous Bill against him before the President of the Councel surmising that he was a covetous and malicious Bishop And the Opinion of the Court was That the words were sufficient to maintain the Action A man seised of a Mannor held in Chivalry devises two parts of it to two men in severalty and all the Remnant he devises to his heirs in Tayle the remainder over in Fée Hutton said It seems to me that the devise is voyd for the third part to the heir for he might devise the two parts by his Testament and he had done all that he could doe by the Statute and then the devise of the third part is out of the warranty of the Statute for it is not reason that by the limitation of the third part the which he could not doe that the devise of the residue which was one time good shall be defeated which Harvey granted but Crook to the contrary for although the two parts were devised by the premisses of the Testament and the third part in the end of it yet in operation of Law the one part is not before the other but the will is intire and took effect in all its parts at one and the same time by the death of the Devisor By which it seemed for the benefit of him in the remainder that he shall take the third part devised to him for if a man seised of three Acres of land held in Chivalry and devises them severally to three severall persons in Fee the heir shall have the third part of every of the three Acres and not the Acre last devised which Hutton granted So also for the benefit of a third person he ought to be judged in the third part as a Purchaser and not of an Estate by descent and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder there he might choose to be in of the Estate limited by the Devise or as heir Hutton I doubt of that for the Book is not agreed 3 H. 6. Wilkinsons Case THe Baron seised of lands makes a Feoffment upon condition to enfeoff him and his wife for life the remainder over to a stranger in Fee Atthow demanded if the Feoffee shall be bound to make the Feoffment before request made by the Baron Hutton and Crook thought that a request ought to be made by the husband And because the particular Estate which is the foundation of the remainder limited to the stranger ought to be made to the husband who is party to the condition and it is his will to take the Estate for life or refuse it and the Feme is at his will But if the Baron dyes then it behooves him to make the Feoffment to the wife without request because she is a stranger to the condition by Act in Law And so where she dyes also before the Feoffment the Estate ought to be made to him to whom the remainder is limited without any request Yelverton But if the condition was to re-enfeoffe the Feoffor and a stranger there it behoves the Feoffee to tender the Feoffment to the stranger for he had not notice of the condition and he ought to be party to all the Estate And by the Livery made to him the Feoffor shall take well enough Waterton against Loadman VVaterton makes a Feoffee to the use of Loadman in Fee to the use of another in Tayle the remainder to his right heirs in Fee Cestui que use in Tayle dyes the first Feoffees enter for to recontinue the use Crook said That when Tenant in Tayle in use makes a Feoffment nothing passes but for his own life For it had been agreed where cestui que use pur vie makes a Feoffment in Fee for it was not a Forfeiture of his Estate because nothing passed but for his life then when the Feoffee dyes during the life of cestui que use in Tayle that cannot be any descent of the Fee but as an Estate for life the which determines by the death of cestui que use in Tayle And all the Iustices were of the same Opinion for the descent was when he had not any Title of entry for by the Feoffment he had a Title during the life of cestui que use in Tayle Wherefore during his life they could not enter nor make continuall claim But if the descent had been after the death of cestui que use in Tayl then otherwise it shall be for they had a Title to enter before the descent and by their laches they are told of that Hutton seemed That the Feoffees cannot enter in that case for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl for by the Feoffment the Estate of the Fee simple which was to their right heirs passes clearly and it is lawfully in the Feoffee Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate where they shall be seised of a Fee simple also and so there shall be two Estate of Fee simple of the same land which is inconvenient But the Iustices said That cestui que use in Tayl had no other remedy unless by the Entry of the Feoffees Harris against Marre A Man seised of certain lands in Fee makes a Feoffment in Fee to his use and afterwards makes his will by which he devises That
the Feoffees shall make an Estate of the same lands to all his Sons except H. And if all his Sons dye without issue that then the remainder shall be to an Estranger Hutton said That because H. was not excepted in the last clause that he had an Estate Tayl. The Maior and Commonalty of Winchesters Case THe Bishop of Winchester grants to the Maior and Commonalty of the same City That they might Edifie in the vacant places of the same City and inhabit there And that Grant was confirmed by the Dean and Chapter and the Opinion of Hutton was That notwithstanding that Grant the soil is to the Bishop and by consequence the Houses Quia quioquid plantatur solo cedit solo And that grant does not enure but as a Covenant or Licence and not otherwise One Tomkins Case IT was said by the way That if a man be in Execution for the Debt of another man in the Fleet the King cannot take him into his Protection into his Wars out of Prison untill the Debt be paid because that he is in Execution for the said Debt and the letting him out of Prison is to let him out of the Execution which the Law will not suffer But if he was in Execution in the Fleet or other Prison for the Debt of the King there he may discharge him and take him into his Protection or into his wars for he may well discharge his own Debt Skore and Randalls Case THe Case was thus A Lease was made to Robert Chichester for 99 years to him his Executors Assigns or Administrators if Robert Chichester or John Bellew or James Bellew or any of them shall so long live yielding and paying therefore yearly and every year unto the said Randall his Heirs and Assigns the sum of 40. s. at the four most usuall Feasts and also yielding at or upon the death of Chichester Bellew or Bellew his or their best Beast in the name of an Herriot or 40. s. c. Provided that if Bellew or Bellew dye in the life of Chichester no Herriot to be paid after their deaths A Distress is taken upon Skore the Assign of Chichester for his own Beast Ashly The Question is whether his or their refer to Chichester Bellew or Bellew only or may refer to Executors and Assigns of Chichester the Lessée And so whether the Beasts of the Assignée may be taken for an Herriot And it séemed to him not for that that a Reservation ought to be taken strictly 27 H. 8. Comment 171. 21 H. 8. Dyer 45. So that if the words are words of Reservation or of Declaration which he will favour they shall not be extended further than the words c. Bing contrary And he conceived that the Lessee or his Executors before Assignment ought to pay the Herriot and afterwards the Assignee for he who took the benefit ought to sustein the burthen Sic transit res cum onere and none took the benefit but the Assignee or his Executors And that is so strange an intendment that in the Habend it is not named who shall yield or pay but it is intended he who had the land and that Herriot comes in in the render of the Rent and render does suppose a Prender And it is coupled with the reservation of Rent and it may be granted that the Tenant shall pay the Rent And then it immediately followes And also his or their best c. which then ought to be the Beast of him in possession Secondly The other Exposition should be impossible to be performed for none shall be charged but those that are either privy in contract or Estate and the Executors of Chichester are not privy to any and Bellewes are the persons only named by the limitation of the Estate and not any wayes privy It may be said that the Tenant shall pay the Beast of Chichester and so his Beast But no man may give the Beast of another And if it be said That he may buy him then the Property should be altered and it would be his own Beast Yielding his or their Beast It cannot be intended that Bellew or Bellew might yield but the Lease is granted to him his Executors or Assigns then his or their Lessee or their Executors or Assigns And you cannot have a forraign intendment of Bellew or Bellew Then the Exposition is good that the Herriot ought to goe with the Estate Hutton That Reservation is not of a thing that agrees with the Rent but it is of a collaterall matter and it is of a thing against common right and for that it ought to be taken strictly and to be the Beast of him that dyed for if it had been Yielding the best Beast of a stranger it had been good but thâ—…e is Election of the Herriot or of 40. s. Then by Assignment one part is become impossible for the Assignee cannot pay the Beast of Chichester but the Fourty shillings he may pay And because the Distress may be taken for the 40. s. therefore the Avowry is naught Richardson If Chichester dye Tenant then his Beast shall be paid And his Executors if the interest come to them shall cause that it be paid for Chichester made the Contract and that goes to his Executors but not to the Assigns And for the 40. s. that is demandable against the Executors of Chichester Yelverton The case is doubtfull but I incline that the Avowry is not good for the words in the Reservation of the Heriot are speciall If it had been said And also yielding after his and their death his or their best Beast There it would be the Beast of the Lessee his Executors or Assigns But also he had sever'd it from the Rent and had taken out of the course of the Estate for otherwise it concurred and went with the Rent But also he had made it collaterall for it is to be paid after the death of the stranger For his or their cannot be carried but to the persons named by the limitation And the Proviso explains that that it should not be payed after the death of the Assignee But if it had been rendring the best Beast after the death of the stranger It should be payed by him that had the Inheritance But he held for the 40. s. that the Executors shall not pay it Perryman against Bowden PErryman brought a Replevin against Bowden and Brown who made a Recognisance in the name of Bedle. And the Case was thus A rent is granted payable at Michaelmas and the Annunciation And if it be in arrear by 40 daies after any day of payment upon the demand at such a place he might distrain And it is not shewed that he demanded it And for that a demurrer Atthowe it is not requisite to shew a demand for the distress it self is a demand And it was adjudged in this Court If a Rent be granted and that he may without demand distreyn and good without demand And the words if it be
30 l. by the year to the use of Richard and Anne Daughter of the Bishop after mariage for their lives Which Lands and Tenements to the value of 30 l. per annum shall be appointed and limitted out by meets and bounds and put in writing before Hillary Term next and delivered to the use of Edward Thomas and Walter Thomas for their lives which were Vncles of Richard if Richard and Anne had Issue male When the Survivor of them dyes without Issue male or if all the Issue male dye without Issue male Then the use to Edward and Thomas to cease Also there be two Conditions the one Precedent the other Subsequent And the precedent Condition makes that a contingent Remainder But Atthow would have that settled without Issue born to Richard c. But if all their Issues dye before the Survivor It can never be setled For the words scil at the death of the Survivor c And then before the contingency happen it cannot be setled If the contingency had been void at the time of the limitations I agree it should be void Now if the particular Estate be contingent all that depends upon it is contingent also And Edward and Walter took nothing but after the death of the Survivor of Richard and Anne without Issue And then it is as in the Case of Cook 10. 85. A Feoffment to the use of A. for life and after the death of B. to the use of C. and his Heirs That Remainder is contingent Because that B. ought to dye in the life of A. or the Remainder shall never vest So also to Richard and Anne for their lives and after their deaths without Issue to Edward and Walter And if they ever take an Estate it ought to be after their deaths c. Secondly For the uses of the Residue To the use of Richard for life and if he dye living A. without Issue male ingendred of the body of A. Then to A. for life that is contingent then of the residue after the death of Richard to the use of Edward Walter if Richard had not issue of Anne at the time of his death Whether it vests after his death see before c. That is contingent also And it is contingent whether he will dye without Issue male As if a Feoffement be made to the use of one for life and if he had no Heir of his body to another in fee that is contingent during the life And he had not but an Estate for life by that limitation and then that is destroyed by the Fine also And now if nothing was in Edward nothing can be setled in his Son And then those contigent Remainders being destroyed there is a good estate in the Purchasors and this special verdict was not found for any doubt but for the intricacy of the Indenture And therefore he prayed Iudgement for the Defendant Harvey against Fitton HArvy the Administrator of Edward Fitton brought an Action of debt upon an Obligation of 200 l. against Edward Fitton and declares of Letters of Administration committed to him by the Archbishop of Canterby c. The Defendant says That the Intestate became possessed of Goods in Chester within the County of York And before the purchase of the Writ and after the death of the Intestate I. S. Chancelor of Chester committed Administration to Richard Fitton of all the goods c. And that he released to him and upon that de murs Bramston He doth not shew what person that Chancellor was or how he had that Authority to grant Administration quod fuit concessum per Cur. That for that it was naught And it was agreed that the Prerogative of Canterbury does not extend to York Dame Buttons Case DAme Button was Administratrix of Goods and Chattels of her Husband And the Sisters of the Husband would compell her in the Prerogative Court to make Distribution And after sentence given prays a Prohibition and divers causes were alleged But Richardson rejected all unlesse it was upon the Statute 21 H. 8. And upon that Statute he said that upon conference with the Iudges He conceived that it was in the discretion of the Court to grant a Prohibition in such Cases or not c. Hutton said That a Prohibition in such cases ought to be granted For he said if Sisters may come in for portions by Distributions where Cousins cannot And Sisters have not any colour to have Distribution For although that the Statute of Magna Charta cap. 18. extend a pueris Yet not All Freres or Sisters And the Ordinary although heretofore would compell an Executor to make Distribution yet now they never meddle with an Executor And hath not an Administrator the same power as an Executor And in Isabel Towers Case a Prohibition was granted For when they have executed their Authority one time lawfully they cannot make a Distribution Harvy to the same intent The Ordinary had not such a power upon the Goods of any especially where Administration is granted For then they have put the Property in the Administrator to pay debts c. And there may be a sleeping debt which by that means shall never be satisfied For if the Ordinary might grant Administration and afterwards make Distribution His Authority is not warranted and he does and undoes and so mocks the Statute In Flames Case it was said that if they are not permitted to make Distribution They will compell it before Administration shall be granted But they have not any such power for he ought to commit Administration if it be demanded And it was so in one Clarks case In which the whole Court was of opinion But Yelverton would not shew his op'nion in the power of the Ordinary But he consented to a Prohibition without other cause Iohn Owens Case Mich. 3. Car. Com. Banc. IOhn Owen lived apart from his wife And upon petition of the Wife to the Iustices of Assise for maintenance they refer'd it to the Bishop of Bangor who ordered that he should pay to his Wife 10 l. per annum which was afterwards confirmed by decree in the Councel of Marches of Wales And because that Iohn Owen disobeyed that Decree and did not pay the 10 l. per annum the Councel sent a Messenger to apprehend his body and caused his Goods and the profits of his Lands to be sequestred And Henden prayed a Prohibition for that that Alimony was not within their instructions Richardson demanded of him if they could grant Prohibitions If they meddle with a thing which belongs to Ecclesiastical power where they themselves have power Harvey was of the same opinion For this Court should preserve other Courts in order Yelverton said For the sequestration of the Lands they could not do that Richardson They have not any power to sell the goods The Ecclesiasticall Court is the proper Court for Alimony And if the person will not obey they cannot but excommunicate him And by Yelverton when that comes to them
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
If I grant to a man that if he mary my Daughter he shall have my Mannor of Dale for years the mariage ought to be before he shall have any thing in the Mannor But if it had been that he should have had my Mannor for 7 years if he mary my Daughter Then the mariage is conditional subsequent that if he does not mary I shall have my Mannor again 10 E. 3. 44. The Abbot of Bosneys The difference is there put by Brerewood Trin. 4 Car. Com. Banc. 36. H. 6. An Annuity granted untill he was promoted to a benefice That is conditional from the Defeasance But if it was that the Grantée did such an Act that he should have an Annuity And ex vi termini there is a perfect Estate before the if and the former if is well explained by the last That if there be not issue male then the Estate shall cease 10 Rep. 41. A Condition in its nature is not to precede an Estate As if the Lands be given to a woman for years si tam diu vixerit 35 Assise plo 14. The Case in point of a Remainder which comes to our Case and conteyns both the parts of that difference As it is in Colthursts and Binshams Case The Prior and Covent of Bath leases Land for life the Remainder to W. Si ipse inhabitare et residens esse velit infra praedict terram And if it shall happen that the said W. should mary before H. Then the Remainder to P. And the Question is whether it is a Condition precedent or subsequent Resolved that the second is precedent For that that the Si precedes and for that makes the Estate contingent But for the other Si after the Estate limited Si ipse inhabitare vellet They were the very words of Mountague Chief Iustice It cannot be denyed but that it is subsequent and then goes in Defeasance and the other ought to shew the non-performance of it And that Case is more strong than our Case is For that Estate is by way of Livery not by use For in Case of Livery there he ought to have a time to do the thing And our Case then he should have for life determinable upon the Si c. And that construction of Vses shall be clear by the intent which appears that there ought to be a present Estate Where uses are by Indenture if by one construction the Intent is frustrate and if by another upheld That ought to be taken ut res magis valeat c. The Lord Sturtons Case Where a Lease was made of a Mannor to two Hubbards to have to them and to two others for their lives the first two dye And it was ruled that it was good but to the first two for their lives and not for the lives of the four Because they shall take but in point of Estate See more after Termino Trin. 4 Car. Com. Banc. The King against the Bishop of Canterbury THe King brought a Quare impedit against the Bishop of Canterbury Sir John Hall and Richard Clark for the Church of Marleborough in Northamptonshire And declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6 Iac. by Indenture he covenanted to stand seised to the use of himself and his wife for their lives and to the Heirs of Richard White And after White presents one Boynton and dies and his wife maries with Sir Iohn Hall The first of Iune 6th Iacob by Deed grants proximam advocationem to two to this intent that he might receive of such a Parson that he presented all mony as should be agréed betwéen Grantor and Grantee And that this was done Boynton lying in extremis And then the 26 Ian. 16 Iacob there was a corrupt agreement between Sir Iohn Hall and one of the Grantees That for 200 l. to be paid by the Clark Blundell That the other Grantee should present him And the first of February Blundell pays Sir Richard the mony and the second day he was presented instituted and inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sir Iohn Hall makes a Title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alleged and not answers whether the mony was paid or not But that he is Parson imparsonee of the presentment of But 16 Iacob after such an agreement scil 17 Feb. he was presented by the Letters Patents of the King to this Church and never answers to the Symony And it was held by the Court to be naught and only pleaded to hinder the Execution before the Iustices of Assise If the Tryal went against the Patron Upon a Prohibition ONe libells against another in the Spiritual Court for the tithe of two pecks of Apples and for feeding the Cattel upon the Ground And the Defendant for the Apples answered That there were two Pecks only growing in his Orchard and that they were stollen and never came to his use and for the Cattel that they were antient Milch-beasts and that they growing old were dry And that for a month they depastured with other Heyfars and that after they put them in a Meadow out of which the Hay was carried And afterwards he fed them with hay in his House Atthowe Because that the Answers were not admitted prayed a Prohibition Hutton If Appples are upon the Trees and taken by a Stranger shall the Parson be hindred of his tithe Yelverton If I suffer one to pull my Apples the Parson shall have tithes But if they be taken by Persons not known the Parson shall not have tithes of them Which was granted For they are not tithable before plucking And for that if he suffer them to hang so long by negligence after the time that they are imbessed By Yelverton he shall pay tithes For the second matter it was agreed by the Court and for the depasturing in the Meadow and for the Hay with which they were fedd afterwards tithe shall not be paid Because that the Parson had tithes of them before But if the Question is for the tithes when he went with the other Heyfars By Crook that is no cause to excuse the tithe Harvey If I have ten Milch-kine which I purpose to reserve for Calves and they are dry The Parson shall not have tithe for their Pasture But if I sell them by which it appears I kept them for fatting There tithes shall be paid Hutton agreed That although that there was so small time yet when they went with the Heyfars he shall pay tithes for them Goddard and Tilers Case GOddard against Tiler in a Prohibition Tiler sued for tithes of Milk and Calves upon which modus decimandi surmised A Prohibition was granted viz. That every Inhabitant should pay 4 d. for every Cow and 2 d. for every Calf which they proved that there was never tithe paid in specie But
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without