and Iudgment was given therein whereupon the Tenant to the Assise brought a Writ of Error the 5. Eliz. in Easter Term which did abate by reason of his death and after in the time of King James the new Plaintiff brought a Writ of Error in Recordo quod coram nobis refidet which did also abate by reason of variety between the Record and the second Writ of Error whereupon Mich. 13. Jac. the said Plaintiff did purchase this new Writ of Error And the Defendants did plead in abatement of the said Writ of Error that the now Plaintiff before the purchasing of the said last Writ of Error and since the purchasing of the second Writ of Error viz. the 19th of September the 10. Jacob. did enter into the said Land and the same day and year at the place aforesaid did devise the said Tenements to one Thomas Alport Habendum from the Feast of S. John Baptist then last past for four years next ensuing by vertue of which Demise the said Thomas Alport into the said Tenements did enter and was and yet is possessed Vpon which Plea the Plaintiff demurred and the Defendants joyned And I conceive that the Plea is insufficient Yet I do agree that if he who hath cause to have a Writ of Error to reverse a Iudgment of Land does make a good Lease for years he hath suspended his Writ of Error for the Term as he does quite extinguish it by his Feoffment But here it appears that there is no Lease made for it is pleaded only that the Plaintiff did enter into the Land and it appears by the recovery that his entry was taken away by the Iudgment in the Assise whereby he gains nothing by his Entry but the Freehold and possession does remain alwaies to the Defendants being Heirs to the Recovery as appears by Litt. Warrant 158. If one be seised of Land and another who hath no right doth enter into the Land and continues possession yet doth he gain nothing thereby but the possession doth alwaies continue in him that hath right and so in the 3. Ed. 4. 2. Woolocks Case and in the Comment 233. Barkleys Case Execution is taken to be no plea in Bar to an Ejectment because it was shewed that the Lord Barkley did enter as in his Remainder and was seised in Fee untill the Lessor of the Plaintiff did eject him and did demise to the Plaintiff which is not good because it is not alledged that he disseised the Lord Barkley for otherwise he had no Estate to make the Lease and the Entry doth not imply any disseisin or doth gain any possession and 11 Edw. 4. 9. B. 12 H. 6. 43. B. And the Court did agree that the plea was insufficient But then it was moved that the Writ of Error was nought for the Writ was that Quidem Recordum processus Dom. Regina Elizabeth nuper Regina Angliae causa erroris interven venire sec and it appears by the Record that although the Recovery was removed by Writ of Error the 5. Eliz. at the Suit of the Father of the Plaintiff yet the Plaintiff did purchase a new Writ of Error Mich. 9 Jacob. and had a Scire facias against the Heirs of the Recover or who appeared Mich. 10. Jacob. and also the Writs of Habeas Corpus tales Distringas wherefore the Writ is naught for all the Recovery was not in the time of the Queen but part in her time and part in the Kings time But I conceive that it is good enough for first the Recovery and Processe is satisfied by transmitting the body of the Recovery as it is proved by the usuall form of all Writs of Error which is to certifie the Record and Processe and yet they do certifie only the Declaration and the Pleas omitting the Writs Also the Record shall be intended the principall Record and not the Writ and Proces Coke Rep. 11. Metcalfes Case the words of the Writ of Error Si judicium inde redditum sit this shall be taken to be the principall Iudgment 39 Ed. 5. 1. In a Scire facias brought by John Duke of Lancaster and Blanch his Wife to execute a Fine levied to them in the time of Ed. 2. and the Writ did recite the Fine to be levied Tenendum de nobis c. but it was adjudged good by Iudgment of Parliament and 2 R. 3. 4. Bough brought an Action of Debt against Collins who pleaded a forreign Attachment in L. by custome and did mistake the Custome and it was traversed that there was no such Custom and the major certified it so and all this was in the time of King Edw. the first and it was adjourned over to another Term before which time the King died and resumed in the time of King Richard the third and Iudgment given whereupon Collins did bring a Writ of Error which was Rex Dei gratia c. quia in Recordo processu in redditione Judicii loquela quae fuit coram nobis per breve nuper inter B. c. error c. And the question was if it was good And some said that there was no Warrant for such a Writ and some said that the Writ ought to have been speciall reciting how c. But the Masters of the Office said that in a Writ of Error before the Iustices of the Bench there is but a generall form in the Writ And after it was adjudged that the Writ of Error was good John Vandlore Plaintiff Cornelius Dribble Defendant Trinit 14 Jacob. Rot. 1062. IN an Action of Debt on a Bond of two hundred pounds made the eleventh of Febr. the 12th of King James upon condition that the Defendant shall perform the agreement of William Holliday Thomas Moulson Robert de la Bar and Humphrey Burlemacke Arbitrators elected c. to arbitrate of and for all Actions Suits Accounts and Demands had moving or depending in variance between the parties before the date of the said Obligation so that the agreement of the premisses be made and put into writing before the twentieth of March next The Defendant pleaded that there was no such Arbitrement The Plaintiff replyed that the eighteenth of March 12 Jacob. they did make an Arbitrement c. of and concerning the Premisses that the Defendant should pay the Plaintiff fifty pounds viz. twenty pounds at April next and twenty five pounds at _____ and the twentieth of July next twenty five pounds in full satisfaction and discharge of all such monies as the Plaintiff did claim or demand of the Defendant by reason of the administration of the Goods c. of John Stadsell or by any other means whatsoever And that each of the parties upon payment of the said fifty pounds shall make generall Acquittances one to the other of all Actions Debts and Demands unto the day of the making of the said Acquittances And alledged breach to be made in the payment of the said twenty five pounds the twentieth of
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the ter-Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
173. Judicium And after many arguments in this Case Hillar 20 Jacob. the Court agreed that the Demise was good and Iudgment was given for the Plaintiff Periman against Pierce and Margaret his Wife TEnant in Socage had issue by his first Wife Joan Elizabeth and Agnes and Alice and Elizabeth by his second Wife Katherine Mary William and Joan by his third Wife and by his Will did Devise his Land to Joan the younger for her life rendering 13 s. 4 d. Rent to William the remainder to William in Tayl the remainder to Elizabeth and Mary for life the remainder propinquo sanguinitatis of the Devisor for ever William dyes without issue Joan the younger dyes without issue Elizabeth had issue William Stokes and dyes Mary had issue William Pierce and dyes Joan the elder dyes having issue John Periman and William Periman Agnes and Alice dye without issue John Periman had issue John Periman the Lessor and dyes Elizabeth and Mary dye Katherine dyes without issue Elizabeth had issue George Dean and John Dean Elizabeth deviseth her Land to John Dean and his Heirs and dyes John Dean hath issue John Dean and dyes the Lessor enters and makes a Lease to the Plaintiff who enters and is ejected by the Defendants by commandment of the said John Dean the son upon which the Plaintiff brought an Ejectment And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land or at least for part thereof And therefore in the first place I conceive that when William the son dyed without issue the remainder in fee did vest in John Perriman who was the eldest son of Joan the elder who was the eldest daughter of the Devisor for although the Devisor had many daughters yet his intent appeared in the Will to a single person and not to divers also it appears that he doth not intend that this remainder should vest in William his son for he deviseth to him a Rent during the life of Joan the younger and afterwards an Estate Tail cannot be in Joan the younger or any of her issues because that an express Estate for life is limited to her nor in Elizabeth or Mary for he deviseth a remainder to them for life nor in any other of his daughters for then he would have named them either by their proper names or as his daughters and not by such circumlocution as is pretended in this Case Also the words of Remainder in fee cannot extend to those daughters for they are proximae consanguinitatis which does clearly exclude his own sons and daughters for they cannot properly be termed to be of consanguinity of the blood of the father as it is said in Sir William Herberts Case Cooks Rep. 3. that filius est pars patris and this is proved by the usual pleading of a Descent for if the Plea be by any except son or daughter the form is to say That the Land descends to him as Cosin and Heir and shall shew how but if by the son or daughter then to plead as before And 30 Assis 47. Land was devised to one for life the remainder to another for life the remainder propinquioribus haeredibus de sanguine puerorum of the Devisor there it is agreed that the sons and daughters are excluded by that Devise And so here in this Case neither William the son nor any of the daughters of the Devisor can take any thing by this Devise for they cannot be said de Consanguinitate de sanguine of the Devisor but the Issues of the Children of the Devisor are comprized within these words And then I conceive that the limitation being in the singular number viz. proximo consanguinitat all the issues of those Children shall not take but one onely and that as I conceive shall be the eldest son of the eldest daughter of the Devisor which was John Periman father of the Lessor of the Plaintiff as in the 20 H. 6. 23. In an Account supposing the Defendant to be his Receivor from the Feast of St. Michael it shall be taken to be the principal Feast of St. Michael the Archangel and not the Feast of St. Michael in Monte Teneb And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name scil of J. S. If J. S. be named generally in a Writ Recovery or Deed it shall be intended the father for that he is most worthy And so Pladwels Case in this Court Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues and Land be given to one for life the remainder to the eldest issue of the woman the eldest legal issue shall take and not the bastard although he be the eldest issue for general words shall always be taken in the most worthy sence And so here the Devisor did dispose of his Estate to Joan the younger rendering Rent to William his son the remainder to William in Tail the remainder to two of his daughters scil to Elizabeth and Mary for life the remainder proxim consanguin c. in fee By which words it is apparent that the Devisor intended that for the default of the issues of William and after the death of Elizabeth and Mary the Estate should remain to one who was next of blood to him and that is John Periman the eldest son of his eldest daughter But admitting that all the issues of the daughters shall be in equal degree to take by this remainder as well as the eldest son of Joan the eldest daughter yet I conceive that those daughters who had an Estate devised to them by Will are excluded Cooks 8 Rep. 95. B. Always the intention of the Devisor expressed in his Will is the best Expositor and Director of his words and therefore if Land be devised to one in perpetuum this shall pass a fee although it be otherwise in a Grant So if one deviseth Land to another to dispose of or sell at his pleasure this is a fee to the Devisee Litt. 133. 19 H. 8 9. B. And so in our Case the intent of the Devisor appears to dispose of his Land among his Children and their issues as in Trin. 38 Eliz. Ewre and Heydons Case Heydon was seised of a Messuage in D and of three houses and certain Land in Watford did devise his Messuage in D and all his Land in Watford it was judged the houses in Watford did not pass in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error Edmund Meskin against John Hickford Administrator of Henry Machin IN an Audita Querela because that the 11 Ed. 1. it was Enacted That in regard that Merchants which heretofore had lent their goods to divers persons were fallen into poverty because they had not such speedy remedy provided for them for the Recovery of their Debts Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis
Common tâ—â—ne and the Term to another and dies and the Executor payes the Rent or suffers the Devisee of the Common to put in his Cattell this is no assent as to the Term for the Term is one thing and the profit out of it is another thing but there in the principall Case the assent of the Executor of the Devise to occupy the Land was a sufficient assent to the Remainder of the Term because the occupation of the Land and the Land it self is all one and Comment 541. the same agreed and that the first assent doth go to all And it is no assent to the Term neither can it be taken by Implication to be any assent to the Devise of the Rent for every Act that does enure to another Act by Implication ought to be such as of necessity ought to enure to the other Act which cannot be taken to be otherwise and therefore 2 R. 2. Attornment the 8th A Woman grants a Reversion to which a Rent was incident and afterwards marries the Grantee to whom the Tenant payes the Rent this is no Attornment for it is indifferent whether he payes the Rent to him as Grantee or in right of his Wife Dyer 302. Vivors Case que recover Rents of severall Tenants as Bayly and then they be granted to him and after the Grant they be paid to him this is no Attornment for they may be paid to him as he is Baily as well as he is Grantee But if the Lessee do surrender to him in the Reversion then it is a good Attornment for a Surrender cannot be to any but to him that hath the Reversion And so in our Case it is cleer that the assent to the Legacy of the Land it self is not any expresse assent to the Rent nor any implyed assent for there may be an assent to the one and not to the other and where the Wife had assented to the Devise of the Term she hath utterly dismist her self of the Term as Executor notwithstanding the assent to the Rent but having once assented to the Devise of the Term she hath no more to do with it and therefore in such Case the Legatee of the Rent ought to sue in the Court Christian for his remedy against the Executor in the same manner as if a Term were devised to one and the Executor will not assent to it but sells the Term to another And in this case if the Testator were indebted after this assent to the Devisee of the Term the Term cannot be put in execution for this Debt but the assent of the Wife is in her a Devastavit 21 Ed. 4. 21. 37 H. 6. 30 2 H 6. 16. Also here is no Rent devised out of this house for the Devise is Ex omnibus aliis terris suis which word all excludes all the Lands wherof any mention was made before And Coke Rep 1. Mildmayes Case There Sir H.S. did covenant for a Ioynture for his life and for the advancement of his Issue Male if he had any and for advancement of his three Daughters and for continuance of his Land in his blood to be seised to the use of himself for life and then of part to the use of his Wife for her life with other remainders to his Issues Males and Females Proviso that it should be lawfull for him to limit any part to any person for life or years for payment of Debts or Legacies preferment of his Servants or other reasonable considerations And then he did limit the part of one of his Daughters to another for the term of a thousand years and this was adjudged a void limitation and one principall reason was because that the word other cannot comprehend any consideration mentioned in the Indenture before the Proviso and the advancement of his Daughter was mentioned before Object 2 But it may be objected that other Lands shall be understood such as shall be demised after her marriage and so will not relate to the house whereof there was mention made before Answer That this Obligation is against the recited resolution for it may as well be said in this Case that other considerations shall be other then what are mentioned in the said Proviso but it was resolved that other shall exclude all considerations mentioned before the said Indenture and so he excludes in this case all mention before in this Writ And this Case was argued at the Bench Pasch 14. Jac. And all the Iustices did agree that all the exceptions taken by the Counsell of the Defendant as well to the matter as to the pleading to be of no force saving the principall point sc If the Rent shall be determined by the death of the Wife or not and herein the Court was divided viz. Haughton and Crook held that it was determined but Coke and Doderidge on the contrary Et sic pendet c. Hillar 12. Iac. Iohn Harry and Lewis Howell against Grace Harry IN a Writ of Errour brought to reverse a Judgment given in a Writ of Dower brought by the said Grace of the endowment of Richard Harry her Husband And the Error assigned was because the demand amongst other things was De tertia parte de uno Horreo uno pomario and the Tenants pleaded Ne unques accouple in legall matrimony which was certified against them whereupon Judgment was given against them whereupon the Demandant did surmise that her husband died seised and so prayed her Dower with damages Et petit breve tam de habere facias seisinam quam de inquirendo de damnis and the Writ of Error was purchased before the return of the said Writ or any Judgment given thereupon And I conceive that it is Error for the Demand ought to be as certain and formall as a Writ for the Writ of Dower being generall De libero tenemento the Demand ought to make it certain and therefore it is of the same nature as the Writ is 8. Ass 29. 13. Ass 2. 13. Ed. 3. br 265. A Chappell or an Hospitall shall not be named but by the name of a Messuage and 8 H. 6. 3. Praecipe quod reddat does not lye of a Cottage and Cokes 11. Rep. Serbes Case in an Ejectione firmae of a Close called Dumote Close containing three acres adjudged insufficient for the name and quantity will not serve without the quality and certainty ought to be comprised in the Court because the possession is to be recovered And it was adjudged that the Error would not lye Loyde against Bethell HUmphrey Loyde brought a Writ of Error in the Kings Bench against Bechell and others to reverse a Recovery had at Cardiff in the County of Flynt by Nicholas John ap Robert Loyde to whom the Defendants are Heires against John ap De ap Robert Loyde for the now Plaintiff of Land in the County of Flynt which Assise did begin in the time of Queen Mary and did continue untill the Reign of Queen Elizabeth the third year
in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
a County of it self but because it was made a County since the Teste of the Writ the Writ was adjudged to be good 3. These Ter-tenants are estopped to plead Non-tenure because that they with the residue at first did plead that John Chatterton was Tenant of parcel of the Land by which Plea they have taken upon themselves to be Tenants of the Land and therefore they cannot afterwards plead Non-tenure 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ and the Writ abated whereupon the Writ did abate and a new Writ brought for Jornies Accompts against I. S. he shall not plead Ioyntenancy with the other because he hath admitted himself sole Tenant by the first Writ 33 H. 6. 3. In a Formedon against the Husband who pleaded Ioyntenancy with his wife for which the writ a bated and a new writ was purchased against the husband and wife who pleaded non-tenure and adjudged a good plea for the benefit of the wife but if the last writ had been against the husband only he could not have pleaded non-tenure 22 H. 6. 54. B. In a Praecipe quod reddat the Tenant pleaded Non-tenure the Demandant said that before he brought another Writ against the Tenant and I. S. who made default for which a Grand Cape was awarded upon which I. S. made default and the now Tenant said that he was sole Tenant and waged his Law of Non-summons which the Demandant did acknowledge whereupon the writ abated and this Writ purchased by Jornies Accounts and there it is argued if he shall have advantage of this because the first Writ did abate by his own default but it was agreed that if he could have such advantage the Tenant shall be estopped to plead Non-tenure and adjudged that the Tenant shall answer 42 Ed. 3. 16. In a Praecipe quod reddat one took the severall Tenancy on his part and the other of the other part and they were estopped because that a former proces was against them and others and they took the entire Tenancy upon them without that that the others had any thing and did gage their Law of Non-summons wherefore the first writ did abate and this writ purchased by Journies Accounts And so in our Case when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne they have taken the Tenancy upon them and therefore they cannot afterwards plead Non-tenure And now the Writ being maintainable notwithstanding these exceptions Part. 2 it is to be considered whether there be any error in the Recovery or not And I conceive clearly that the appearance of the Wife within age by Attorney is Error for by the Rule of the Common Law in every Praecipe quod reddat whereby Land is demanded if the Tenant appear he ought to appear either in person or by one lawfully authorized by him and that is the reason that if Iudgment be given against one upon an appearance by the Attorney where the Attorney had no Warrant to appear that this is Error untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader but if the Iudgment be given upon default or demurrer or upon a Verdict and no Warranty by him who recovered this is not Warranted by the Statute Dyer 93. 20 Eliz. Dyer 363. and the reason is because that the Land or thing in demand is lost or gained by one who had no Warranty and then the Rule of Law is that an Infant shall not appeare by Attorney and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another and so therefore it is there said that he cannot appear by an Attorney 22 H. 6. 31. b. There by Newton if an Infant sue by an Attorney it is Error And the Law in this case stands with great reason for the Warrant of Attorney is made by the Infant which although it be sufficient when it is of full age yet it shall be dangerous to permit Infants to lose their Land by their Attorney while they have not discretion enough to choose such who shall be faithfull to them and therefore the Law hath made better provision for them to wit that they shall appear by their Gardian admitted and allowed by the Court so that in regard of the imbecility of the Infant the Court makes choyce of a sufficient trusty person to plead and defend their cause Nat. Br. 27 H. 1. an Infant shall sue by his next friend but if he be Defendant in any Action he shall make defence by his Guardian and not by his next of kin and the Court does assigne a Guardian for an Infant who is Defendant and that is commonly one of the Officers of the Court and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service The Defendant pleaded that he was free c. and as to the losing of the Service that he was not retained and found for the Plaintiff and severall damages viz. for the taking of nine and twenty pounds and for the losing of the Service twenty shillings And it was argued neither Iudgment should be entred because the Retainer was not found And after Markham moved that the Plaintiffs being within age did appear by their Attorney and did declare that all the proces continued by the Attorney whereas it ought to have been by their Guardian so that all was Error And Newton said that if it were so there was good reason to have a Writ of Error and after the Plaintiffs released the twenty shillings and had Iudgment of the other So that an Attorney being alwaies made by the party ought to be therefore made by one of ability to give such Authority which ability cannot be in an Infant for all Authorities made by an Infant â—re utterly void And that the appearance of an Infant by Attorney in any Action is Error does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b. Object But it may be objected that the Husband in this case is of full age and therefore he may make an Attorney for himself and his Wife Answer But I answer that the Law is not so for the Rule of Law is that the Husband cannot give away or lose the Inheritants of his Wife but it must be given or lost by her her self and by her own act and therefore if the Inheritance in this case being to the Wife she is the principle and only to be taken notice of and she ought to appear in such manner as the Law hath appointed in regard of her nonage 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife the Husband did appear by an Attorney and the Wife by her Guardian and upon suggestion that she was of full age the Guardian was hidden to bring her into Court to see whether she were
disproof of the second And as to this I conceive that it is a Rule infallible in the exposition of Deeds that when two clauses are contained in a Deed the one contradicting the other the first shall be good and the last voyd 2 Ed. 2. Feoffments and Deeds 94. One gave Land to R. with A. his daughter in Frank-marriage habendum to R. and his Heirs with warranty to him and his Heirs they dyed and their Son brought a Mortdancestor and because the first clause was in Frank-marriage and the other in Fee the Iustices doubted to which of them they should have regard and at last adjudged that when there were several or two clauses in a Deed repugnant or of divers natures that more regard ought to be taken to the first then to the last But otherwise in Wills for there the last part of a Will shall controul the first as if one first doth devise Land to A. and after devise this to another and it is to both in fee yet the last devise shall stand 19 Ed. 3. Tayl 1. In a Writ of Ad Terminum qui praeteriit the Tenant pleaded a Gift in Frank-marriage to his Father and Mother by Deed which was thus that is to say habendum to them for their lives and resolved that the Gift in Frank-marriage being first that it is good and the Habendum being contrary is voyd and there the same rule is given where two clauses are contained in a Deed and the one is contrary to the other And in Tracy and Throgmortons Case Comment 153. It is a ground in Law that if the Habendum in a Deed be contrary to the Estate given by the premisses the Habendum shall be voyd as if a Grant be made to one and to his Heirs Habendum for life the Habendum is voyd 13 H. 7. 23. and 24. and Dyer 272. A Termor does grant his term to another Habendum after the death of the Grantor adjudged that the Habendum is voyd And 2 Ed. 4. If one release all his right in B. acre which he purchased of I. S. and in truth he did not purchase it of I. S. but of another or else had it by descent yet is the release good for the first clause shall stand and the other shall be voyd And Dyer 292. b. One having a Close called Callis lying in Hurst in the County of Wilts does make a Lease of his Close called Callis in the County of Berks and adjudged that it shall pass for the first words shall be and the other shall be voyd And Dyer 32 H. 847. 6. a Lease was made for life without impeachment of waste and if it happen him to make waste that then it shall be lawful for the Lessor to enter Shelley conceived there that the condition was voyd because it was repugnant to the former Grant but some conceived that the Grant shall be intended that he shall not be punished by action Whereupon I collect that if the condition in the last clause cannot agree with the first the last is voyd and so Dyer 56. 6. If I release to A. all actions which I. S. hath against him the Release is good and the words viz. which I. S. hath against him are voyd for by words subsequent a Deed may be qualified and abridged but not destroyed And as to the third manner of exposition viz. to construe all the words of the limitation as well the first as the last to be voyd There is a Rule in Law that when words in a Deed Plea or Record are so repugnant that the true sence thereof cannot be known to the Court what is to be judged or construed upon them that all shall be taken to be voyd as appears by divers Books 33 H. 6. 26. In an action on the Case wherein the Writ was that whereas the Plaintiff had a way by reason of his tenure the Defendant had levyed a Wall whereby his way was stopped and there Prisot said that the Writ was not good for the repugnancy and 9 H. 7. 3. a. One pleaded Null tiel Record hoc paratus est verificare per idem Recordum this was adjudged insufficient because the Plea is repugnant viz. the first part which is not a Record and the last that there is such a Record and Dyer 70. 5 Edw. 6. And so here if these two limitations in the begining of this Lease are so repugnant one to the other that they cannot consist together then both shall be adjudged voyd and then there being no certain time put for the beginning of the Lease the Lease shall begin presently as in 3 Ed. 6. 6. A man made a Lease for years to commence after the end of a Lease made to I. S. and in truth I. S. had no Lease the Lease shall begin presently And as to the fourth manner of exposition I conceive that these ambiguous words shall be construed if it may be that all may be good as to a reasonable exposition and that is that the 56 years shall begin from the 20 Decemb. 1 Eliz. but the Lease does not take effect in possession until the end of the other Lease for terminus annorum hath two significations scil one the time or number of the years and the other the Estate or interest of the term and therefore if one does grant his term the Estate does pass thereby and this diversity is taken and explained the 35 H. 8. 6. and in Cooks 1 Rep. Cheddingtons Case So that I conceive that the first words in the Habendum here ought to be applyed and referred to the time or number of years according to the first definition of the term and the last shall be applyed to the last definition and shall be taken onely as words explanatory put in for better caution by the Bishop to avoyd contention between the Lessees viz. That the last Lessee shall not meddle with the possession until the end of the first term and by this construction and no other may all the words agree together Dyer 9 Eliz. 261. 6. Abbot and Covent did make two Leases of two parcels of Land to two persons 1531. for 31 years and after the successor 1535. reciting both the Leases did make a new Lease to the other in these words Noveritis nos praedict Abb. c. dictis 31 annis finitis complet concessise to the Lessee the said Land holden from the day of the making of these presents termin praedict finitis until the end and term of 31 years from thence next following And the Iustices of the Common Bench held that it shall commence to take effect in possession at the end of the former term and not before and from the day of the making of these presents is but a declaring of the first sentence which is obscure to some intents and if it were not so exprest the Lessee shall have but a Lease for four years which was not the intent of the parties as it should seem but the
5 Rep. fol. 64. 2. In regard of the quality and therefore it is much debated in Wagons Case if the penalty of 5 l. were reasonable or not but here no certain penalty is set down but left to the discretion of any of the Shoomakers of Exeter and that is against the course of all Laws for when a Law is made it is necessary that the penalty thereof should be known to the end men might not offend But admitting this Order to be good yet have not the Defendants pursued the same in the taking of this Distress and that for two Reasons They have distrained before their time for the Order is That if any refuse to pay the sum assessed that then upon due proof thereof they may distrain c. and then they plead that the refusal of the Plaintiff to pay the same was duly proved before the Master and Wardens which is insufficient for when it is said upon due proof this is intended upon proof by Verdict as in 10 Ed. 4. 11. On a Bond with condition that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor c. this proof must be by Verdict but if it be to be proved before J. S. there it is sufficient to produce witnesses that will testifie the same and so in the fourth and fifth of Queen Mary where Buckland was bound to the Lord Ewers to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord and he pleaded that he produced W. and A. before the said Lord and that they proved that he did not ow the said Debt and agreed to be no good Plea because he did not shew how the proof was made before the said Lord. So that this Plea is utterly insufficient 1. Because no such proof can be made before the Master and Wardens as is intended by the Order 2. Because the Defendants have not shewn how the proof was made so that the Court might judg whether it were sufficient or not and so in 22 Ed. 4. 40. the Lord Lisles Case upon a Bond that if the Defendant shewed sufficent discharge of a Rent c. who pleaded that he did offer to shew a sufficient discharge and agreed to be no Plea for he ought to shew what discharge that the Court might judg thereof So in the ninth Report Case of the Abbot of Strata Marcella fol. 34. in a Quo Warranto the Defendant pleaded that the Abbot had and used divers liberties which he could not have without a Charter and resolved no Plea unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties The Order is That upon refusal to pay the penalty and upon proof thereof the Master c. may enter into the House Booth Shop Ware-house or Cellar of the Offendor and there to distrain any of his goods c. And the Defendants have not averred that these goods were taken in any of the said places but onely at the City of Exeter Judgment And at last it was adjudged that the Plea was not good A TABLE OF THE PRINCIPAL MATTERS Contained in this BOOK Action and what words bear Action ACtion brought by a Master for beating his servant not good without saying per quod servitium amisit 48 Where no particular averment need to be in a Declaration for scandalous words 60 Thou and Waterman did kill thy Masters Cook good action ib. Grant to one against whom an action lies not to sue him within a year not good 117 Advowson The nature of it and how and in what manner to be granted 95 96 Affinity and Consanguinity Who shall be taken to be proximus Consanguinieus in a Devise 15 Appearance Where to be in person and where by Attorney 73 74 Where the Husband shall appeare alone and where with his Wife 74 Arbitrement Where the Arbitrement in part shal be a good award for that part although the agreement be to end all controversies 90 91 Authority and Licence To revoke how to be performed 21 Authorities and Licenses strictly to be performed 114 115 License not to be assigned over ib. Ayd Who shall have ayd of the King 87 88 89 Baron and Feme WHere the Husband shall appear alone his Wife being within age and where she shall appear by her Guardian with her husband 74 75 Vid. Appearance Buying and selling Things sold and warranted by the Vendor to be good In what cases good 127 Diversity between things necessary and not necessary as to the warranting of them 128 By-Law How a Custom to make By-Laws to restrain a legal Trade or Art shal be good and how not 140 141 Common WHat priviledge the Owner of the soil hath in a Common and what priviledge the Commoner hath 5 10 Vid. Prescription Remedy for him that is disturbed of his Common 10 Commoner may distraine damage feasant ib. Prescription to hunt and kill Conies in a Common not good 11 Prescription of Common in a Forest Vid. Prescription Condition and Limitation WHat time shall be limited in Law to make an estate upon Condition 41 Conspiracy Where Jurors cannot be said to be guilty of Conspiracy Vid. Jury Conspiracy cannot be where the Indictment is insufficient 132 Copyhold What shall be taken to imply an admittance 82 Copyholder necessary to be admitted and what estate he hath without admittance 82 83 Where the estate surrendred remains until admittance 84 Court and Processe in Courts Records of a Court the effectuall proofs of the Law of things tried in that Court 21 Presidents and Costome of a Court makes a Law in that Court ib. Devises Testator and Executor c. WHere words of limitation comming after the estate in a Devise shall abridge the estate devised 1 2 3 Devise to a man and his heirs quod si contingat c. where those words shall make a limited fee or estate Tail or other estate 3 Where the Act of the Executor shal not be said to be the Act of the Testator 47 Where an Executor shall not have choice to take as a Devisee 54 Where the assent of the Executor to the devise of the Land shall not be accounted any Execution as to the Devise of the Rent out of the same Land and where otherwise 55 Where a perpetual charge devised to be paid out of Land shall make the party that is to pay the same tenant in fee-simple 85 How far the intent of the Devisor shall be admitted and how largely observed 85 105 106 135 Dower Certainty ought to be in the demand of Dower as wel as in the writ 56 Ecclesiastical Persons WHere the confirmation of the Patron and Ordinary of a charge made by the Incumbent is good and where not 95 Leases made by the Incumbent and confirmed by Patrons or others where good and where not ib. Leases made by the Incumbent which are void and what are voidable and
been granted with a fee of five marks from time to time by the Bishop grantor and his Predecessors to whom they pleased Cooks 9 Rep. Earl of Shrewsburies Case The Earl of Rutland was made Steward of a Mannor for life without any words to make a Deputy yet it was resolved that he might make a Deputy because it was not convenient for him to exercise such an Office So if an Office doth descend to an Infant he must of necessity make a Deputy And so if a Bishop be seised of a Mannor he may ordain a Steward of the said Mannor and may grant to the Steward a fee for the execution of the said Office according to the resolution in the said Case of the Bishop of Chester Object But it may be objected that here is a greater Fee granted then was before viz. Pasture for two Horses and therefore the Grant is not good to bind the Successor Respons And I do agree that the Grant of the said Pasture is void yet that shall not at all prejudice the Grant of the said Office with the ancient Fee for they are severall and distinct Grants so that the one viz. The Grant of the Office with the ancient Fee is good by the Law against the Successor and the other void against the Successor but it cannot hurt the grant of the Office and ancient Fee no more then if a Bishop should grant an old Office with an ancient fee and also a new Office which was never granted before and all this by one Deed of Grant and this is duely confirmed although this be void against the Successor as to the new Office yet it is good for the ancient Office and the ancient see for although these fees are contained in one Deed yet are they severall and distinct so that one may be good and the other void 33. H. 8. Dyer 48. One seised of a Mannor to which a Villain was reguardant did grant one acre and also the Villain the Villain did pass in gross and the reason there given is because there be severall Gifts contained in one Deed. Also the Averment of the Plaintiff is insufficient viz. That the pasture was never granted by any of the Predecessors of the Grantor so that it may be that they were granted by himself being Bishop many times before the said Statute and then the Successor may well grant it and in the said case of the Bishop of Salisbury it is averred that the Grant was not by the Bishop Grantor nor any of his Predecessors William Whitton Clerk Plaintiff Sir Richard Weston Defendant in an Action of Debt The Case THe Pryor of S. Johns of Jerusalem did hold certain Lands discharged of Tythes by reason of their order Quandiu propriis manibus excolebant the Statute of 31. of H. 8. for discharging of Tythes is made the 32. of H. 8. it was enacted that the King should have to him his Heirs and Successors all the Lands Priviledges and Hereditaments of the said Pryory the King dies and the Lands by Mesne descents doe come to Queen Elizabeth who grants the Land to Sir Henry Weston Grandfather to the Defendant who died seised and the same descended to Sir Richard Weston Father to the Defendant and so from him to the Defendant And If the Land should be held discharged of Tythes as the Pryor held it was the question And I conceive that the Defendant shall hold the land discharged of Tythes in the same manner as the Pryor held the same For the argument of which two things are to be considered 1. Whether the King or his Patentee shall have the same priviledge which the Pryor had by the Statute of the 32. H. 8. or not 2. Admitting that they shall not have this priviledge by generall words of this Statute then Whether they be discharged by the clause of the Statute of 31. of H. 8. of Monasteries or not And I conceive that by each of these Statutes or at least by one of them the King and his Patentees shall hold this Land discharged of Tithes Quamdiu propriis manibus c. And as to the first point I conceive that the Statute of the 32. of H. 8. hath sufficient words to give this priviledge to the King for it gives to the King not only all their Mannors Lands and Tenements but also all their Priviledges belonging to them or to their Religion or Order and this discharge of Tythes is a Priviledge belonging to their Religion or Order for whereas Pope Pascall did order that no Monk or religious Order should pay Tithes afterwards Pope Adrian did grant this priviledge Solis Hierosolimariis Hospitulariis Cistersiensibus Templaribus and did take away that priviledge from all other Orders And I conceive it will not be denied but that the Pryor himself hath this priviledge and if he had it then it will follow that the King and his Patentee hath it also for all their priviledges are given to the King But it may be objected Object that these priviledges are given in respect only of their Order and the Order bring gone the priviledge is gone also I do agree that all personall priviledges concerning their Order are gone by reason of their dissolution Respons but such priviledges as concern the Land and will make the Land most profitable to the King are remaining and are given to the King for the intent of the Statute was to give it to the King in as ample and beneficiall manner and with all such priviledges concerning the Land as they themselves had And although Tythes are not issuing out of the Land nor shall be extended for unity of possession of the land as in the 42. Ed. 3.13 Where a Pryor having Tythes did purchase the Land and made a Feoffment yet shall he have the Tythes and so if a Parson makes a Lease for yeares of his Glebe-land yet he shall have Tythes thereof yet the priviledge to hold the Land discharged of Tythes is a priviledge concerning the land and is not like to the case of the appropriation of a Rectory to the Templars which was disappropriate by the dissolution of their Order for the reason there is because the appropriation was made to a body corporate which body being dissolved it is impossible they should retain the same and no body else can have it without a new appropriation or an Act of Parliament and for Appropriations to Abbeys c. the clause in the 31. of H. 8. was necessary for otherwise the Patentees of the King being Lay-people and not capable of an Appropriation they cannot have it but by speciall provision by Act of Parliament but any man may hold Land discharged of Tythes But it may be again objected that in the same Parliament an Act was made to revive temporall Liberties Priviledges and Franchises Object 2 of Monasteries and therefore all those had been lost if it had not been for this Statute and Sprituall priviledges are not revived by
13. H. 4. 17. B. If one makes a Feoffment in Fee rendring Rent upon condition to re-enter for non-payment and dies the Rent being arrear the Heir cannot demand the Rent or enter for non-payment because that the Rent is not due to him and as he cannot dispence with the Condition for acceptance of the Rent so cannot he enter for non-payment thereof And I argued this Case again on Fryday being the first day of Trinity Term 14. Jac. 31. Maii at which day Daston did also argue for the Defendant but the Court did not then give any direct Opinion but seemed to incline very much for the Plaintiff And Hil. 14. Jac. the case was argued by Chilborne Serjeant for the Plaintiff and Davenport for the Defendant at which time all did agree that the Lease continued But Davenp took exceptions to the replication For he said that the marriage of Jane with Rob. Hawkins is alledged to be 21. of No. 39. Eli. and the death of William Agborrow her first Husband the 20. of Febr. 39. Eliz which is after the marriage but that was held not materiall for it is said that William Agborrow died the twentieth of Febr. 39. Elizab. and that atferwards viz. the one and twentieth of Novemb. 39. Eliz. Jane did marry Thomas Hawkins so that the afterward is sufficient Trin. 37. Eliz. Rot. 206. Butler against Wallis In a Trespasse the Defendant justified by vertue of an Extent upon a Statute and did shew the Extent and that the 28. of Febr. a Liberate was awarded by vertue whereof the Sheriff the 27. of Octob. delivered the land to him c. yet adjudged sufficient for when he said Virtute brevis the mistake of the day afterward is not materiall And at last in the said Term of S. Hillary Judgment all the Court agreed that the Lease continued good against the Survivor and cannot be avoided by him and that the acception to the pleading was not materiall And thereupon Iudgment was given for the Plaintiff Rot. 668. Pasch 11. Jacob. Between Thomas Palmer Knight Plaintiff Richard Greenwill and Edward Greenwill Executors of John Greenwill Defendants IN an Action of Debt on a Bond of fifty pound entred into by the Testators the 20. of Novemb. 5. Jac. The Defendant demanded Oyer of the Bond and Condition which was that if the Testator his Heires Executors and Assignes did perform all the Covenants comprised in certain Indentures bearing date with the Obligation made between the Plaintiff on the one part and the Testator of the other part that the Obligation shall be void And the Defendant pleaded that the Plaintiff by the said Indenture did let to the Testator a House and the moyety of his land amounting to about thirty Rods of land in Pollicote to have c. from Michaelmas last past for seven years rendring twenty pounds Rent and shewed that the Testator did covenant by the same Indenture for him his Executors and Assignes with the Plaintiff his Heires and Assignes within two years after the beginning of the said Lease to deliver or cause to be delivered to the Plaintiff or his Assigns a Map or Plot made in distinct manner by men of skill as well of all the land in little Pollicot as was then in his occupation and in the occupation of Thomas Cocker and John Crooke parcell of the Demise of the Plaintiff in Pollicot aforesaid as of all the land in the occupation of the Testator by a lease of Lincoln Colledge in Pollicot aforesaid which are all the Covenants c. And pleaded that the Testator in his life time and the Defendants after his death had performed all the Covenants c. Replication The Plaintiff replied that the Testator within two years after the beginning of the Lease did not deliver or cause to be delivered to the Plaintiff or his Assignes a Map or Plot made in distinct manner by Surveyors and men of skill of all the land in little Pollicot aforesaid in his occupation and in the occupation of the said Thomas Cocker and John Crooke parcell of the aforesaid Demise of the Plaintiff in Pollicot aforesaid Secundum formam effectum Indenturae praedict Vpon which Replication the Defendants demurred in Law And I conceive Iudgment ought to be given for them against the Plaintiff First the Plaintiff replies that the Testator did not deliver the Plot and it may be that it was delivered by the Defendants who were his Executors which is a good performance of the Covenant and if so then the Plaintiff has no cause of action and where the matter is left doubtfull in the Replication it shall be taken most strongly by the Plaintiff who pleads it And in the Comment 104. a. Fulmerstone against Steward If a man be bound to pay twenty pounds about Christmas it is no plea for him to say he hath paid it but he must shew when or otherwise it shall be intended that he paid it after the Feast and before the Suit And so in a Dum fuit infra aetatem if the Tenant do plead a Release of the Demandant it is no plea without saying that he was of full age for the plea shall be taken most strong against himself and that is that it was made when he was within age and 3. H. 7. 2. If the Defendant in a Trespasse does plead a release it is not sufficient without shewing that it was made after the Trespasse for otherwise it shall be taken to be done before And 26. H. 8. Pleading 147. If in a Praecipe quod reddat the Tenant does plead Warranty collaterall of the Ancestor of the Demandant and he replies that he entred and so does avoid the Warranty it is not good without saying that he entred in the life of the Ancestor for otherwise it shâ—ll be intended that he entred after the descent of the Warranty and in Dyer 89. and 96. The Plaintiff in an Ejectment declared on a Lease for years to begin at Michaelmas after the death of Thomas Boydon and M. his Wife and set forth that they died and he entred and adjudged insufficient for it might be that he entred after this death and before Michaelmas and Dyer 28. H 8. 27. A Covenant that the Lessee and his Assigns shall pay all Rents pleading that the Lessee hath paid them is not sufficient because the Assignes are omitted In his Occupation are words uncertain sc whether they shall be referred to the Plaintiff who iâ— last named or to the Testator 7 H. 7. 7. Ed. 6. Dyer 84 a. In a Trespasse brought by the Husband and Wife for breaking their Close bona sua capt and pleaded of a Trespasse made to the Woman Dum sola fuit for which the Writ abated The Plaintiff ought to shew that â—ome land was in the possession of Kocker and Crooke for otherwise it is impossible that a Map should be made thereof 12. H. 7. 8. a. 6. H. 7. 6. a. If I am bound to
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4