date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
for it is a maxim Nullum tempus occurrit Regi Peryam If the Freehold be in the Alien untill office found Trespass if a trespass be committed who shall punish it for he shall have no Action Fenner That is true and so it is of a Monk if he be a disseisor Monk and yet the freehold is in him Shuttelworth And so it is of a person atteinted Atteynted person and yet before office found the freehold is not in the Queen Rodes It is Dyer 11 Eliz. fol. 283. Feoffment to use If a man enfeoffee an Alien and a Denison to his use that the Queen shall have the moity whereby it seemeth that the confirment is voyd Anderson I hold this rule for certain that in every feoffment there is feoffer and feoffee and if there be a feoffee he must of necessity take wher by I think the confirmation is good Rodes Is this case hanging in this Court Fenner No Sir Windham Wherefore then doe you move it in this Court And afterwards the question being demanded of Shuttelworth by divers Barristers he made answer Truly in my opinion it is not in the Queen before office found and therefore I think the confirmation is good Quaere 5. AN Attorney of the Common Pleas brought an action of debt against another Misdemeaner whereupon he was arrested in the Country and when he came to London the Attorney caused him to be arrested in London for the same debt and this was shewed to the Court and the Attorney called to whom Anderson said if a man be sued here for a debt and after be arrested in another Court for the same debt the penaltie is fine and imprisonment and that is both the law and the custom of this Court wherefore then have you done this surely we will send you to the Fleet for your labour Attorney I beseech you my Lord consider my estate Anderson I have well considered it and that is that you shall goe to the Fleet and therfore Warden of the Fleet take him to you Windham We will punish such gross faults in you more severely than in others because you are an Attorney here and your fault is so much the greater by how much you are skilful in the law and customs of this Court wherefore you shall goe to the Fleet. De Term. Mic. Anno xxix Eliz. 1. IN the case of Sellenger Annuity it was said by Anderson and agreed by the Court that if a man grant an Annuity out of Land and hath nothing in the Land that yet this shall be good to charge the Grantor in a Writ of Annuity and in the same case it was allso agreed by the Court that if a man grant an Annuity to a Woman who takes a Husband and after Arrerages do incur and the Wife dye so that the Annuity is determined that the Husband shall have an Action of debt for the Arrerages by the Common Law Shuttleworth This is not remedied by the Statute of Arrerages of Rents and then at the Common Law it is but a thing in Action Peryam An Annuity is more than a thing in Action Windham He may grant it over and so the opinion of the whole Court was that debt was maintenable 2. AT the same day it was said by Anderson Executor and not gainsaid that if an Executor plead ne unque administer come executor yet afterwards he may take the Administration upon him and well enough be Executor 3. IN a Replevin by Bosse against Hawtrey Triall by provise they were at Issne Termino Mic. An. 28. 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill and after in Termino Hill took an alias retournable in Termino Pasch and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent and thereupon Hawtrey which was Avowant moved the Court and prayed expedition whereupon the Court caused the Roll to be brought in and notwithstanding that it was a Roll of Mic. Term yet because it was awarded the same Term they mended the Roll and awarded the alias retournable the same Term of Hill 4. WYlgus brought an Action of Trespass against Welche quare clausum fregit Travers Welche said Trin. 28. Eliz. rot 537. that I. W. was seised and enfeoffed May and so conveyed a title to himself the Plantif replyed that A. his Auncestor was seised and so the Land descended to him Absque hoc that I. W. was seised and upon this Issue the Court was moved Anderson the seisin is not traversable but where it is materiall and therefore clearly the Traverse is not good but Fenner cited a book in 2 Edw. 6. that the Travers shall be good but he stood not much upon it Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary but the opinion of all the Court clearly was that the Travers is not good 5. A Man makes a Feoffment in Fee to the use of himself and his Wife VVast alterius eorum diutius viventis absque impeticione vasti durantibus vitis ipsorum the Husband dies if the Wife shall hold without impeachment of wast or no was moved by the Serjeants And the opinion of all the Court was that she shall not be impeached of Wast because of the severance but otherwise if it had been Joyntly 6. FUlwood brought an action upon the case against Fulwood Action upon 〈◊〉 case and declared that whereas a motion of mariage was between the Defendant and a Widow in London in consideration that the Plaintif should give his assent that the Father of those Fulwoods should convey to the Defendant all his Lands and Chattells the Defendant promised to pay the Plaintif such a sum of money as their Father should assign Ac licet that the Plaintif had given his consent and that their said Father had assigned him to pay 37. l. yet the Defendant c. and he pleaded non assumpsit and it was found for the Plaintif and now Fenner spoke in arrest of Judgement for four causes First there is no consideration for the declaration is assensum suum daret so that he is at liberty to give his assent or no and so no perfect consideration The second is ac licet the Plaintif c. and doth not say in facto that he gave his assent The third is that he doth not say that he gave his assent when the Father had those Lands and Chattells The fourth is that in consideration the conveyance should be made to the Defendant and it appeareth that it was made to the Defendant and his Wife Shuttleworth To the contrary we have alleged in deed that he gave his assent and that is as much as if he had said in consideration that he gave his assent And allthough that the conveyance be to both yet it is in tayl to them and so the inheritance given to both And therefore that
of the wife For if the Husband have an Advowson in right of his Wife and the Church become voyd and the Husband dye the Executors shall have the presentation and the Serjeant sayd that there be many Books in that point Anderson I know it well but I doubt of the Law in the case Allso I would have you to argue if this be within the Statute of Demurrers in 27 Eliz. For if this be not matter of substance then it shall goe hard with the Plaintif therefore let it be argued again another time 11. ONe Brook was Plaintif in a Replevin Copyhold the Case was such Tho. Speek was seised of a Mannor in which were Copyholds according to the Custom and the place in which the taking was supposed was a Copyhold and the sayd Tho. Speek being so seised took to wife one Anne B. and died seised after whose death the sayd A. in the time of King Edw. 6. demanded the third part of the Mannor for her Dower by the name of Cent. Messuagiorum Cent. Gardinorum tot acr terrae tot acr prati c. and was endowed accordingly of parcel of the Demesns and parcel of the services of the Copyholds and after she granted a Copyhold and if this be good was the question for if she had a Mannor the Grant was good and otherwise not And the opinion of all the Court clearly was against the Grant for when she demanded her Dower she was at liberty to demand the third part of the Mannor or the third part of Cent. Mes Cent. Gard. Cent. acr c. and when she demanded it per nomen Cent. Mes c. Mannor a corporation she could have no Mannor For a Mannor cannot be claimed except by his name of Corporation as Anderson termed it and not otherwise and then Cent. Mes and Cent. acr c. cannot be sayd a Mannor and then the Grant of a Copyhold by her which had no Mannor was utterly voyd and this was the opinion of the Court clearly Quod not a. 12. SHuttelworth shewed how one Knight was Plaintif in a Replevin Visne 〈◊〉 Ass pl. 42. and they were at issue upon a prescription for Common in Newton appendant to land in another place and the venue was of Newton onely and it was found for the Plaintif and he prayed his judgment for the tryall may be in the one place as well as in the other as in annuity where the seisin is alleged in one County Annuity and the Church in another it may be tryed in any of the Counties Anderson But we think otherwise for it ought to be of both places when the matter ariseth in both and if they had been in severall Counties Counties joyn the Counties ought to have joyned Shuttelworth So is 10 Ed. 4. fol. 10. But our case being after a verdict I think we ought to have judgement Anderson and Windham The verdictdoth not amend the matter if it be mis-tried as this case is Rodes agreed that it was a mis-triall Mis-trial and therefore evill and that mis-trialls are not helped by the Statute of Jeofayles Shuttelworth I agree to that if you say that the triall is not good Windham So we say New Venire facias Then Shuttelworth advised his Client to take a new Venire facias 13. WAkefield brought a Replevin against Costard The Lord. who avowed for damage fesaunt Comptons case and the Plaintif prescribed for Common that all the inhabitants of Dale except the Parson and infants and such a house Prescription for Common have used to have Common in the place The Avowant sayd that the house whereunto the Plaintif claimed Common was built within thirty yeares last past and if he may have Common to this new house by prescription or no was demurred in judgement in Michaelmas Term and then Shuttelworth argued for the Plaintif that he should have his Common by prescription but not of common right And Gawdy argued for the Avowant that the Plaintif shall not have Common because the prescription is against all reason that he should have Common time out of mind to that which is but of thirty years continuance And allso he excepteth the Parson and infants and such a house and by the same reason he may except all which is not good Then one of the Judges sayd that if this be good Antient inhabitants hereafter there shall be no Common for the ancient inhabitants Improvement Peryam By such a prescription he shall for ever barre the Lord from improving any Common Common entire which is no reason Anderson All Common is intire for if a man have Common to three Mesuages and he infeoffee one man of one Mesuage and another of the second and another of the third the Common is gone And by this reason allso the new house cannot have Common And now this Term Gawdy demanded of the Court if they were resolved in the poynt Anderson We are all agreed that the prescription is utterâ—y voyd for it is impossible to have Common time out of mind for a house which was built within thirty yeares and then he commanded to enter judgement if nothing were sayd to the contrary by the next day Shuttelworth We have sayd all that we can say my Lord. Anderson Then let judgment be entred against the Plaintif 14. SNagg shewed how the Earl of â—Kent had brought an action of debt against a Londoner for rent behind Grant and shewed how the Countesâ— of Derby was tenant in Dower of this land and took to husband the Earl of Kent and that Henry Earl of Derby had granted it to the Earl of Kent habendum after the death of the Countess for certain yeares and he shewed how the grant was made by the name of a reversion also Lease in reversion Grant in reversion difference and that the Tenant had attorned and alleged the death of the Countess And the Court said that the Attornment is not necessary for it is but a lease in reversion and then no rent passeth thereby Anderson If you had been privy to the case of Talboys in the Kings-bench you would not have moved this doubt Peryam It is allso the very case of Throckmorton in the Commentaries Snagge But here in my case he hath granted it by the name of the reversion allso and then the reversion will carry the rent Curia Then is your grant voyd for a man cannot grant his reversion habend after the death of another and therefore quacunque via data you shall have no rent And thereupon Snagge conticuit cum rubore 15. MOunsay was Plaintif in debt upon an obligation against Hylyard Jeofayle and the Defendant pleaded the Statute of Usury because it was made for the sale of certain Copperas and he took more than was limited by the Statute and that it was made by shift and chevisance and other matter he alleged to prove it within the Statute the
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
by Verdict tryed for the Plaintif And Gerrard pleaded in arrest of Judgement for that there is no bail entred for the bail is for Gerrat and his name is Gerrard Cook Attorney He may be known both by the one name and the other For in Norfork there is a Knight which in Common speech is called Barmeston but his right name is Barnardiston And if he by the name of Barmeston put in bail in this Court it is good being knowen by the one and other and so it seemed the Court did incline for the dangerousness of the President For otherwise every man impleaded may give a false name to his Attorney by which he will be bailed and then Plead that in arrest of Judgement but Judgement was giuen for the Plaintif 49. IN debt upon an Obligation Notice of a retorn from beyond sea the Condition was that if the Obligee retorned from beyond Sea before the 22 of Aprill and the Obligor pay to the said Obligee 200. l. before the twenty seventh of Aprill then the Obligation to be void Otherwise to stand in force Cook moved that the Obligee ought to give notice to the Obligor of his retorning from beyond Sea before the two and twentith day of Aprill or otherwise the Obligor is not bound to pay him the money For when a thing resteth in the will of another to be done and the time is uncertain when it shall be done Then notice ought to be given to him which ought to do the thing as 18 19 Eliz. 354. placiâ— 32. 17 Eliz. A man made a Lease for years And after made a new Lease to Commence after determination Forfeiture or Surrender of the first Lease with clause of Re-entry for non payment of the Rent And after the Lessor took a secret surrender of the first Lessee and after that surrender a Rent day incurred and the Rent was not paid by the second Lessee and yet adjudged that his Estate is not void because the other ought to give him notice of the Surrender Gawdy The case is not alike for 8 Edw. 4. a man ought to take notice of an Abitrement Fenner It shall be as dangerous for the Obligee if he ought to give notice as for the other to take notice 50. STafford brought an Action of Trespass against Bateman Distress for issues for of a strangers beasts Levant for taking of a Cow The Defendant said that the Land where the Trespass was supposed to be made is the Land of one Iohn Dean The which I. D. hath lost iiij l. issues to the Queen and there came a Warrant out of the Exchequer to the now Defendant being undersherif to levy the said iiij l. in the Lands of the said I. D. And because this Cow was Levant and Couchant within the said Land he took her as lawfull was for him to doe Gawdy Fenner The Sherif may not take Beasts of a stranger in the Land of him that hath lost issues to the Queen Popham By way of distress he may take Beasts of a stranger if they be Levant and Couchant upon the Land of him that hath lost issues but not to sell them and so to levy the Issues 51. ERror was brought by An. Latham Error upon a Judgement given against him in a Writ of Debt in the Common place and the Error assigned was for that the Originall Writ was purchased against him by the name of A. L. nuper de London Yeoman alias A. L. de Sherbâ—â—â— in Com. Ebor. Variance in the alias no error Yeoman And upon that the said An. L. appeared and pleaded and was condemned and after a Capias ad satisfaciend issued against him by the name of A. L. nuper de L. Yeoman alias A. L. de Shelbâ—â—â— in Com. Ebor. Yeoman and so he assigned the variance between the first Originall and the Capias ad satisfaciendum Shelbone for Sherbone but for that this variance was not in the first name but in the first Addition therefore it was adjudged no Error by the opinion of the Court. 52. LAugford and Bushy did present by turns to the Advowson of Norwinkfield Quare imp Langford presented one A. which was instituted Pasch 43 Eliz and inducted and dyed Bushy presented one C. which C. was lawfully deprived by the Bishop of Coventrey and Lichfield without giving any notice to Langford who had the next turn The Bishop made Collation and after Collation Langford sold his moity to Lee Collation before notice and Lee to the Earl of Shrewsburie The question was whether by the Collation Langford hath lost his turn The Court seemed to incline that by the Collation the turn is lost for if it had been by usurpation it had been lost without any question And yet it seemeth that upon deprivation the Patron ought to have notice Vide Statut. de 13 Eliz. 53. YElverton the Queens Serjeant demanded the opinion of the Court Devise if a man be seised of land in Fee and have two Daughters onely and deviseth his land to his Daughters in Fee if now the two Daughters shall be Joyntenants or take by descent as parceners and the opinion of the Court was that they are in by the Devise and not by descent and so they shall be in as Joyntenants and not as Parceners but otherwise it shall be if there were but one Daughter and the Father devise the land to her so if he devise the land to his Son and Heir in fee. 54. NEcton and Sharp Executors of Throward sued a Prohibition against Gennet and others Prohibition for a Legacy and the case was that one that had a Legacy devised unto him sued the now Plaintifs being Executors for the sayd Legacy in the Spiritual Court and the Executors there pleaded that the Testator in his life time made a certain Obligation sufficient in Law to J. S. the which is not yet satisfied and the Spirituall Court would not allow this Plea for which he had a Prohibition Makin Attorney of Essex sayd to me that this is the second case in question of this point but he doubted that the pleading was so vitiouâ— that the matter in Law would not come in question Executors represent the person of their Testator and therefore if a release be made by one of them Action confessed by one Executor by admittance this shall bind all and so if an Action is brought against one Executor where there be divers Executors and he admit the Writ and confess the Action this shall bind all the goods of the dead as well as if they were all named Per Hâ—rn 55. GReningham brought an Action of Debt upon an Obligation against Ewer Election The Condition was that if the said Ewer doe deliver unto the said Greningham certain Obligations which the said Ewer hath of the sayd Greninghams or else doe seale such a release as the said G. shall devise before Mich. that then c. The Defendant
case the partie shall have a consultation Popham The one of the parties is a man temporall and so was it not in your case Sic nota that by the Spirituall law the Vicar shall have Tithes of Saffron of land newly sown with Saffron albeithat before the Parson had the Tith of that land being sowen with Corn. 76. NOta that by the course of the Kings-bench a man may have Oyer of the deed after imparlance Oyer of a deed but not in the Common place Q. 77. BEckford brought an ejectione firme against Parnecote Devise before purchasâ— and the Case upon the speciall Verdict was found to be this That one Parsons was seised of certain land in A. and had issue four Daughters viz. Barbera Johan E. and Mary and made his Will in writing And by the same Will he devised all his land in Aldeworth to Barbera and Johan two of his daughters and made them two his Executors and after he purchased other land in Aldworth and a stranger was desirous to purchase this land of him newly purchased And he said that that land should goe with the residue of his land to his Executors as his other land should go After the said Testator made a Codicill and caused it to be annexed to his Will But the Codicill was of other things and mentioned nothing of this land and whether this new purchased land shall pass by the Will without new publication of the Will for this land was the question Moor I think that the land newly purchased shall pass and to prove that he said that the reason in Bretts case 340. Com. for which land newly purchased shall not pass is by reason that there is no manner of new publication but in our case there is new publication and in Trivillians case 4 M. 143. where cestui quae use made a Will And then the Statute of 27 H. 8. of uses came now this Will was comptrouled The Statute of Wills but by a new publication it may be made good and he cited 44. E. 3. 12. and 44 Ass 36. Atkinson è contra For this Will ought to be warranted by the Statute otherwise it is not good and the Statute doth not enable him which hath no land at the time of the devise to devise land and the words of the Statute manifest this which are Where any person or persons having any land holden c. So by the express words Want of apt words if he have no lands at the time of the Devise he may not Devise as appears plainly in Brets case allso it appears that words out of a Will will never make that to pass which was intended before and with that agreeth the Lord Cheney his case and the case of Downhall and Catesby lately adjudged and in this case allbeit the Testator allowed this Will after to be his Will Things not expressed in the Wil must be expressed in the publication yet this shall never make this land newly purchased to pass without express publication of this land Clinch Justice sayd it seemed to him that the land newly purchased shall pass for after that he had made his last purchase the Testator heard the Will read and by that he devised all his lands in Aldworth and then knew that the land newly purchased lay in Aldworth and upon reading of the Will he allowed it and so I think that the new purchased land shall pass as well as the other and that this allowance upon the reading is a new publication Gawdy Justice è contra For if I make my Will and by that devise all my land in Dale and after I purchase other land there and one afterwards shews me the Will and demands of me if it shall be my Will and I answer it shall I say that this land newly purchased shall not pass Hearing and allowance is a publication and in this case howbeit that the reading of the Testament or annexing of the Codicill be a new publication yet it doth not manifest the intent to be that more shall pass by that than he intended at the first and allso the new reading of the Will and the annexing of the Codicill may not properly be termed a new publication as this case is Where there it no controlment there needeth no new publication for here was not any Controlment and for that the Will needs not any new publication by which it seemeth that without any express publication for this land newly purchased this land shall not pass for the things which are found to be done are but allowances and no new publications 78. HArecourt brought a Writ of Error upon a Judgment given in the Common-place Amendment and assigned for Error for that the Judgement was that the now Defendant should recover xx l. assessed to him per Jnr. nec non x l. bassessed to him hic per Jur. where it ought to be per Cur. Yelverton prayed that it might be amended for that the Record in the Common-place was right and the Misprision which made this Error was in the Clerk which certified the Record and the opinion of the Conrt was that if it were so it should be amended and therefore they sayd they would have the Record it self brought out of the Common-place thither to be viewed whether it were so or not The Record it self shall not be sent out of the Court. Worley Clerk The Justices of the Common-place will not suffer the Record to be brought hither Popham That is no new President that the Record shall be brought hither for I have seen it done before this time But after in truth the Justices of the Common-place would not send their Record into the Kings-bench and therefore Cook the Queens Attorney prayed that it might be amended Popham It may not be amended for that I have spoken with the Justices of the Common place and they say that the Record was at the first as it was certified viz. Iur. pro. Cur. and after the Record was certified it was amended by a Clerk without any Warrant Cook Allbeit that it was so yet under Correction it is amendable for it is the misprission but of a Clerk and that of a Letter onely viz. of I. for this letter C. for the word is written Jur. short where it ought to have been Cur No amendment in â—â—int of Judgement and so amendable by the Statute of 8 Hen. 6. Curta è contra for it is parcell of the Judgement and you never saw the Judgement of the Court amended for which it cannot be amended here 79. EAst Executor of I. S. brought an Action upon the case of finding and Converting of certain goods Trover against Newman And upon not guilty pleaded the Jury found this speciall Verdict viz. That the Testator was possessed of divers goods and them lost and the Defendant found them And knowing them to be the goods of the Testator upon demand denied to deliver them And
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good
against Davy 58 15 Robbery Burnels case 59 16 Debt upon a bond to perform covenants Hannington against Richards 59 17 Action upon the statute of Hue Cry Ashpooles case 60 18 The Mayer and Commonality of Norwichs case 61 19 Debt upon a bond Lassels case 61 20 Debt upon a bond Gewen against White 62 21 Replevin Goverstones case 62 22 Action of Wast Constance Fosters case 63 23 Debt upon a bond Bret against Andrews 63 1 Devise 64 2 Redisseisin Thatcher against Elmer 64 3 Privilege of Court Powels case 64 65 4 Wager of Law Millington against Burges 65 5 Avowâ—y The Lady Roger case 65 6 Debt upon a bond to perform covenants Hanington against Richards 65 7 Avowâ—y Johns of Surries case 66 8 Debt upon a bond Raven against Stockdale 66 9 Trespas vi Armis Bloss against Halmon 66 10 Trespass Foster against Pretty 67 11 Debt upon a bond Bret against Shepheard 67 12 Replevin Colgate against Blith 67 68 69 70 13 Action for a Robbery The Hundred of Dunmows case 70 14 Assumpsit Cogan against Cogan 71 15 Trespass ejectment Cock against Baldwin 71 16 Trespass vi armis Walgrave against Somerset 72 17 Trespass vi armis Bloss against Halmon 72 18 Wast Taire against Pepiat 72 19 Debt upon a bond May against Johson 73 20 Quare impedit Sir Thomas George against the Bishop of Lincon 72 22 Debt upon a bill Goore against VVingfield 73 23 Ejectione firme Michell against Dunton 74 1 Fine Adams case 74 2 Betenham against Herleckonden 75 3 Wager of Law Bostocks case 75 76 4 Entry sur disseisin Sir Thomas Shirley against Grateway 76 5 Action for words Smith against Warner 76 6 Redisseisin Thachers case 76 7 Debt upon a bond The Earl of Kents case 76 77 8 Trespass quare clausum fregit Haires case 77 78 9 Quare impedit The Queen against the Bishop of Linc. 78 10 Trespass Harper against Spiller and Drew 78 11 Quare impedit Brokesby against the Bishop of Linc. 78 79 12 Avowry 79 13 Debt Hare against Curson 79 14 Debt against an administrator 79 80 15 Ejectione firme Cleyton against Lawsell 80 16 Debt Saundersons case 80 17 Debt Sibill against Hill 80 18 Quare impedit Kemp against the Bish of Winchester 81 19 Escape Cheny against Sir James Harington 81 20 Assumpsit Tayler against Falkam 81 21 Covenant Plane against Sams 81 82 22 Ejectment Staples against Hacke 82 23 Disseisin 82 24 Annuity 83 1 Debt upon a bond Michell against Stockwith 83 2 Debt upon a bond Weghtman against Chartman 83 3 Quare impedit The Queens case 83 84 4 An Action for words 84 5 Replevin Clothurst against Delues 84 6 Action for words Cuts case 85 7 Writ of entry Carleton against Carre 85 8 Quare impedit The Queens case 86 9 Plea to a Writ 86 10 Action for robbery The Hundred of Glocesters case 86 11 Dower 87 12 Formdon Lennard VVhites case 88 13 Formdon in discender 88 14 Error in the Exchequor-Chamber 88 15 A Writ of Error Lord Seymour against Sir John Clifton 89 16 Error Rawlins case 89 17 Â Error in an Action of Trover 89 18 A Writ of right Heydon against Smithwick 90 1 Trespass Blunt against Lyster 91 2 Recovery Mills against Hopton 91 3 Errror in the Exchequor-chamber Bedell against More 91 4 Trespass Mounson against West 92 5 Ejectment Ashby against Laver 93 6 Trespass Johnson against Astley 93 7 Error in the Exchequor-chamber Rawlins case 93 8 An assumpsit Brown against Garbery 94 9 Surrendâ—r of a Copyhold Rippings case 95 10 Resceit 96 11 Audita querela 96 12 Action on the case Mathewes case 6 13 Partition Tamworth against Tamworth 105 10 Action of debt Hughsons case 106 15 Ejectment Johnson against a Carlile 107 16 Action of Dower Hunts casa 108 17 Extent 100 18 Trespass quare clausum fregit 109 19 Speciall Verdict Devise 111 20 Retorn of a Sherif Hockenhalls case 111 21 Debt upon a bond Hooker against Gomersall 111 112 22 Quare impedit Brooksbies case 112 23 Maintenance Tysdale against John Atree 113 1 Consultation Brown against Hother 113 2 Amendment Broughton against Flood 113 3 Venue Avowry 114 4 Prohibition 114 5 Extinguishment Rotheram against Creen 114 6 Debt upon a bond Adams against Oglethorp 114 7 Speciall Verdict Eveling against Leveson 115 8 Ejectment Bacon against Snelling 115 9 Scandalum magnatum The Earl of Lincons case 115 10 Debt Willoughby against Millward 116 11 Debt Kitchin against Dixon 116 12 Rent-charge 116 13 Condition Cromwell against Andrews 116 14 Trespass Smith against Bensall 116 15 Habeas corpas VValter Ascoughes case 118 1 Price against Sands 118 2 Action for words Hugh Halls case 119 3 Administration VVilloughby against VVilloughby 119 4 Speciall Verdict Extent 120 5 Debt Overton against Sidall 120 6 Speciall Verdict Sherborn against Lewis 120 7 Disceit Russell against Vaughan 123 8 Tender of Reut Burrough against Taylor 124 9 Debt VVelcome against S. 124 10 Trespass for braking his close Nevell against Sail 124 11 Action for words Somerstailes case 125 12 Monstraus de droit 125 13 Debt upon a bond Hamond against Hatch 125 14 Debt for Rent Bow against Broom 125 15 Formdon Downall against Catesby 126 16 Action for words Palmer against Boyer 126 17 Libel for Tythes Prohibition 127 18 Latitat Bayle 127 19 Scire facias Midleton against Hall 128 20 Action for words Martin against Burling 128 21 Error Collet against Marsh 128 22 Ejectione firme Portman against Willis 129 23 Trespass Gray against Trow 129 24 Debt Thyn against Cholmeley 129 25 Action for words Parlor against S. 130 26 Action on the case Earl of Pembroke against Buckley 130 27 Action for words Lassels against Lassels 131 28 Indictment 132 29 Action on the case Peirce against Barker 132 30 Indictment Arundels case 133 31 Error in Debt Slaughton against Newcomb 133 32 Ejectione firme Bulleyn against Bulleyn 134 33 Action for words Bury against Chappel 135 34 Arraignment 135 35 A Writ of Error VVilkinsons case 136 36 Assumpsit Skelt against VVright 136 37 Debt Ford against Glaubile 136 38 Information Sir Christopher Blunts case 136 39 Condition of an Obligation 137 40 Mortgageo The Duke of Norfolk and Rowland 137 41 Action for words Redfrem against J. S. 137 42 Action for words Megs against Griffith 138 43 Action upon a Statute Revell against Hare 138 44 Error in Debt VVinch against VVarner 138 45 Assumpsit Petties against Soame 138 46 Devise of lands 139 47 Arrest by Latitat VVilliam Gerrards case 139 48 Debt upon a bond 139 49 Trespass Stafford against Bateman 140 50 Error in Debt Anne Lathams case 140 51 Quare impedit Langford against Bushy 141 52 Devise of Lands 141 53 Prohition Necton and Sharp against Gennet 141 54 Debt upon a bond Greningham against Ewer 142 55 Execution of a Writ 142 56 Action of debt VVoodcock against Heron 142 57 Action for words
Brough against Devison 143 58 Forfeiture of Copyhold 143 59 Lease for years Knevit against Poole 143 60 Prohibition Rame against Patison 145 61 Partridge against Nayler 145 62 Forfeiture 146 63 Quare impedit Lord Zouches case 146 64 Assumpsit Thornton against Kemp. 146 65 Prohibition Sherington against Fleetwood 147 66 Trust VVildgoose against VVayland 147 67 Reservation of Rent 148 68 Action for a Robbery 148 69 Outlary reversed 148 70 Fine with proclamation 148 71 Feoffment to a use 148 72 Tenure and Wardship 149 73 Devise 149 74 Prohibition Benefield against Finch 149 75 Oyer of a bond 150 76 Ejectione firme Beckford against Parnecole 150 77 Writ of Error Harecourts case 151 78 Trover Easts case 152 79 Writ of Error Wiseman against Baldwin 152 80 Assumpsit Pine against Hide 154 81 Prohibition Jacksons case 154 82 Trover and conversion 155 83 Assumpsit Chessins case 155 84 Assumpsit Dixon against Adams 156 85 Ejectione firme Ross against Ardwick 157 86 Trover Harding against Sherman 158 87 Debt upon a bond Paytons case 158 159 88 Trespass quare clausum fregit 159 89 Debt upon a bond Allen against Abraham 159 90 Account Huntly against Griffith 159 91 Scire Facias Lady Gresham against Man 160 92 Prohibition Ramsies case 161 93 Account 161 94 Indictment Hom's his case 162 95 Fine of Lands 162 96 Ejectione firme Robins against Prince 162 163 97 Scire facias Hoo against Hoo 166 98 Mackerell against Bachelor 168 99 Information Goodale against Butler 169 170 100 Scire facias Foe against Balton 170 101 Contra formam Collationis 111 102 Ejectione firme Cootes against Atkinson 171 103 Action for words Pollard against Armeshaw 172 104 Elegit Palmer against Humphrey 172 105 Covenant 173 174 106 Debt upon a bond Robinson against May 174 107 Audita querela Hobs against Tedcastle 174 175 108 Covenant Matures against Westwood 175 109 Assault and battery Sims his case 176 110 Trespass Goodale against Wyat 176 111 Ejectione firme Sayer against Hardy 179 112 Rent Walter against Walter 180 113 Debt upon an Escape 108 114 Vtlary after Judgement 108 115 Fine levied Sir Henry Jones case 181 116 Evidence Tutball against Smote 181 117 Debt Richard Thornes case 182 118 Debt Humble against Glover 182 119 Evidence Maidstone against Hall 182 120 Speciall Verdict Dickins against Marsh 182 183 121 Covenant Cole against Taunton 184 122 Grant 184 123 Error Brewster against Bewty 187 124 Trespass Pannell against Fen 185 125 Repleuin Second deliverance 185 126 Action for words Stitch against VVisedom 185 127 Accessary to Felony 185 128 Debt Thin against Chomley 186 129 Lease Harbin against Barton 185 103 Action for words Baddocks case 186 131 Debt upon a bond Staples against Hankinson 187 132 Error Boyer against Jenkins 187 133 Grant over 187 134 Ejectione firme Thomas against King 187 135 Trespass Oland against Bardwick 188 136 Error Ascough against Hollingworth 188 137 Trespass Bodeam against Smith 189 138 Name of purchase 189 139 Perjury 189 140 Obligation 190 141 De Term. Pasch Anno Elizab. Reg. xxviij 1. WAst war brought by Constance Foster Wast and another against Lessee for years in effect the case was such A man makes a Lease of certain Lands 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods the Lessee cuts down Trees and he in Reversion brings an Action of Wast and by the opinion of the Court the Lessee is not punishable in Wast for they were never let and therefore the Plaintif is driven to his Action of Trespass at the Common Law 2. THe Sherif returneth in a Writ of Right four Esquires to make the pannel Return and doth not say that there be any Knights it was sayd by the Court that he ought to return them which be and that there be no more 3. WAst was brought for digging in Land Wast and taking away Okes the Defendant pleaded in bar That the Queen by her Letters Patents under the Great Seal of England granted unto him that he might dig for Mines of Cole in the Land and prayed that it might be entred verbatim and a Grant under the Seal of the Exchequor was entred whereupon the Plaintif Demurred Now came Walmisley and would have amended it and by the opinion of the Court he cannot amend it after the Demurrer be entred Demurrer but Judgement shall be given for the Plaintif if he shew no other matter 4. A Man seised of Lands in Fee Devise and sale by Executors Deviseth to his Wife for life the Remainder to his Son in tayl and if his Son dye without issue of his body that then the Land shall be sold by his Executors and maketh two Executors and dyeth the Wife dyeth one Executor dyeth the Sonne dyeth without issue the other Executor selleth the Land and Gawdy the Queens Serjeant moved whether the sale be good or no and it seemeth to him that the sale is good and vouched the Case in 30 Hen. 8. Brook Devise 31. And now lately it was adjudged in the Kings-bench where a man did Devise his Lands in tayl and for default of such issue that the Land shall be sold by his Sonnes-in-law and dieth having five Sonnes-in-law the one dyed the others sold the Land and this was adjudged a good sale Anderson It seemeth the sale is not good for if one make a Letter of Attorney to two to make Livery and Seisin Livery if the one dye the other cannot doe it So if one grant the Office of Stewardship to two the one of them cannot hold Court alone Stewardship And if one of them may sell to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell Windham The Statute will not prove the case but it seemeth the sale to be naught And there is a difference where one giveth an interest to two and when he giveth but an authority Interest for an interest may survive but an authority cannot Authority Rodes to the same intent and cited M. 4 Eliz. fol. 219. a. 177. 210. 371. 5. BAttery Battery by Webster against Pain the Action was layd in London and in truth the Battery was committed at Uxbridge in Midlesex the Defendant pleaded that such a day and year at A. in the County of Huntington 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him and the hurt c. absque hoc that he is guilty in London Snag moved that the Traverse should not be good Anderson Will you have him to say absque hoc that he is guilty that he ought not for by the speciall matter he hath confessed the Battery and you will not deny but that if his Plea be true he hath good cause to bar the
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
6. the Priors case Note that Puckering then said privily to Shuttelworth is not the book contrary to that which he hath vouched for he vouched the Book contrary to that which Puckering had done before Shuttelworth No Sir but the record is contrary to the Book quod nota and when she granteth ex certa scientia it shall be taken beneficial for the party 1 H. 7. 13. omnia debita released to the Sherif and 29 Ed. 3. the King seised the lands of a Prior alien c. Difference per enter interest prerogative Touts droits poss per fine Fine puis disseisin ou discont alit de recovery and there is a difference between the cases put and this case for when the Queen makes a Grant all matters of interests may pass by the words but matters of prerogative as in the cases put by my brother Puckering cannot pass for they are not within the words but interests are To that which hath been sayd that he was not seised of any estate tayl this is not any argument for if he had three rights by the Fine all are gone and passed to the Conisee for if he be disseised or discontinue and then levy a Fine this is a bar but otherwise it is of a recovery Lessee purâ—ans en reversion poss diversity for that is no bar but of an estate tayl And as to the case of Saunders that lessee for years need not to make claim the case was not so but the case was of a lease inreversion and he had never entred and therefore it was but as a common or a rent but if it be a lease in possession he is bound as in Zouches case Then because the King is in possession it hath been sayd that it is no bar but this seemeth to be no reason for the Statute began with the King and the Preamble seemeth to induce it and the third saving of the Statute is by force of any gift in tayl so this is generall And because he cannot discontinue therefore can he not make a bar Non sequitur For he cannot discontinue and yet a Fine levyed is a good bar and the Statute of 32 Hen. 8. doth not impair this opinion but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case as it was agreed by all the Judges in Stowels case and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar doth not extend but to the words going before as in the case in Dyer that a man had not done any act but that c. And the Queen in this case hath not any prejudice for she shall have the rent with the reversion And as for Jacksons case that maketh for me for the question of the case there was that the remainder shall be gone and we ought not to take regard to that which is sayd indirectly in the case but the point of the Judgement is the matter and for authority it is direct in Dyer fol. 26. pl. 1. and therefore it seemeth that the entayl is barred and so the action maintainable Anderson You have well argued but for any thing that I see none of you shall have the Land Grant for the Queen is deceived in her grant and therefore the Patent is voyd and then it shall be seised into the Queens hands And therefore you had best to be advised and we will hear what can be sayd for this point at another day And note that it was sayd by the Justices 3 Costs in forcible entry that if a man recover in a Writ of forcible entry upon the Statute of 8 Hen. 6. by confession or by default he shall recover his treble costs 22 Hen. 6. 57. 13. ONe Colgate brought a Replevin against Blyth who avowed the taking Replevin and thereupon they were at Issue in Kent and the Jury found a speciall Verdict The case in effect was this Husband and Wife are seised of Lands in right of the Wife And she by Indenture in her own name agrees that a Fine shall be levyed and limits the uses by Indenture After the Husband by another Indenture agrees that a Fine shall be levied and limits other uses and afterwards a Fine is levied by them both now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity The Jury prayed the advise of the Court c. For if they be good they found for the Plantif if not then they found for the Defendant Shuttleworth Serjeant It seemeth that Judgement shall be given for the Plantif For the use limited by the Husband shall be a good limitation in Perpetuity Rent ch ou Lease per feme covert and first the Wife only cannot limit any use for her Acts are of no Validity And therefore if a Wife grant a Rent charge or make a Lease and the Grantee enter this is a Disseisin 43. Ed. 3. Deeds given by a Feme Covert are void 17. lib. Ass a VVife levies a Fine Executory Fine executory executed per feme covert sur grant render as a sole Woman and after a Scire fac Is brought to Execute this Fine the Husband shall extort the Execution and if it were a Fine Executed then it is a Disseisin to the Husband Vse quod For an use is a Declaration how the Land shall continue in Perpetuity and the Feoffees are nothing but Instruments or Organs to convey the use for the Land yields the use and not the Feoffees then when the Wife which is under the Power of her Husband Limitation per infant quaere limits an use this is void for I hold for Law if an Infant limit uses and after levy a Fine and do not Reverse it during his Nonage yet the limitation shall not bind him and so of a man non compos mentis Non compos mentis And so it was ruled in the Court of Wards where a naturall Ideot made a Declaration of uses and levied a Fine accordingly Ideot naturall that yet it shall be to the use of himself And then in our case the Limitation by the Wife cannot be good but her Will depends upon the Will of her Husband and the expressing of the use by the Husband shall be good Estate disseisin assumsit al feme For if an Estate be made to a Wife if the Husband seaven years after agree it is good and so it is of a Disseisin to a use so ofan Assumpsit to the Wife 27 Hen. 8. in Jordans case 1 Hen. 7. in Doves case and in a Praâ—cipe quod reddat the default of the Wife shall be the default of the Husband Default del feme because she is Compellable to the Will of her Husband by the Intendment of the Law 21. lib. Ass A man seised of Land in Right of his Wife makes a Feoffment in Fee
Livery per baron and would have made Livery but the Wife would not agree to the Livery yet notwithstanding the contradiction of the Wife the Livery was Adjuged good 33 Hen. 6. Husband and Wife are Plantifs in an Assise Nonsuite del feme and the Husband would Prosecute but the Wife would be Nonsuite the act of the Husband shall be accepted and the act of the Wife rejected So if the Husband will make an Attourny and the Wife wil dissavow him Attourny yet he shall be their Attourny And as I think this Limitation by the Husband shall bind the Wife in perpetuity Case per fine indentare Difference Juris clamat For if the Husband make a Lease of the wifes Land for 100 years the Wife may avoid it after his death but if after they both Levy a Fine the Lease shall be good-for ever And 11 Hen. 4. He in Reversion and one which hath nothing Levy a Fine quid juris clamat shall be brought against them both And as I conceive it it shall be counted her folly Reentry per condition that will take such a Husband as will Limit such uses For if a Wife hath an Estate in Land upon condition for not payment of Rent that the Feoffor shall reenter if she take a Husband which doth not pay the Rent whereby the Feoffor or his Heires reenter the Estate of the Wife is utterly defeated And in 4 Ed. 2. A woman Tenant takes a Husband Cessavit who ceaseth by two yeares whereby the Lord bringeth a Cessavit and recovereth the Inheritance of the Wife she shall be bound And this appeareth in Fitzh in Cui invita 21. And it shall be so if the Wife hath but a Freehold Wast as it is in 3 Ed. 3. A woman Lessee takes a Husband who maketh Wast whereby the Land is recovered and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife this is onely the sale of the Husband but if after they Levy a Fine this shall bind the Wife And for express Authority it is the case in Dyer Joynture fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands takes a Wife who hath a Jointure in his Land and he makes a Limitation of uses and after they both Levy a Fine this shall be the Limitation by the Husband because it shall be intended that the Wife consented if it doth not appear to the contrary Whereby the Declaration of the use here by the Husband shall be good to bind the Wife and therefore Judgement ought to be given for the Plantif Feâ—ner to the contrary for here the Inheritance is in the Wife and where the Husband limits further than he hath Authority there the Law shall make a Declaration of the uses for the Husband cannot Limit uses of that which he hath not 21 Ed. 3. A man takes a Wife seised of Lands in Fee Atteynder del feme and before that the Husband was intitled to be Tenant by the Curtesie the Wife was attainted of Treason Homage the Land shall be forfeit and 44 Ed. 3. He shall not make Homage Conusans before he be intitled to be Tenant by the Curtesie 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife Warranoy And in this case the Conisee is in in the per by the Wife and Warranty made to the Husband shall inure to the Wife and 18 Ed. 3. A man seised of a Mannor in right of his Wife Villain to which there is a Villain regardant the Villain Purchaseth Lands the Husband shall be seised of the Perquisite in right of his Wife And yet otherwise it is where a man is Lessee for years of a Mannor to which c. For he shall be seised of the Perquisite in his own Right Divorce 12. lib. Ass If he be Divorced his Estate is gone Lease Rent ch diversity And I agree to the case put by my Brother Shut Where the Husband makes a Lease for years and after he and his Wife levy a Fine there the Lease shall be good but if the Husband grant a Rent charge and after he and his Wife Levy a Fine I do not agree that this is good for in the first case the Conisee found one which had an Interest in the Land but not in the last Then Sir here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever Feoffee al use 28 Hen. 8. The Feoffece to use at the Common Law Limits an use to a stranger this Devesteth the first use but if he limit is to cestui que use then it is an ancient use and not new And so it is if Tenant for life and he in Reversion levy a Fine this shaâ—l be to the use of him in Reversion 2 Loyntenants And so if two Joyntenants be in Fee and they limit severall uses this shall be good according to their limitations for the Moities of either of them and for no more And if Husband and Wife levy a Fine to the use of the Husbands Sonne Fits del baron yet this is to the use of the Wife but if he be the Wifes Sonne allso then this is a good consideration and the use shall be accordingly And these cases I put to this intent that when a man limits an use which is repugnant Vse repugnant or further than he hath Authority the Law shall make a Declaration of the same use for Bracton saith Nemo potest ad alterum plus juris tranferre quam ipse habet And I take the Law if Husband and Wife levy a Fine of the Lands of the Wife and render back to the Wife in Tail Fine levie de terres del feme Oâ—e râ—eder al feme en tail and the Husband dye and the Wife discontinue that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case And I agree to that which hath been said that the Wife only cannot limit uses but because the Jury hath found for â—he Defendant if the limitation by the Husband be not good as I think it is not then Judgement shall be given for the Defendant Concessum Adjornatur 14 WIlliam Knight Eject firm as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman brought an Executione firme against W. Breâ—h of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell the Defendant pleaded not guilty and the Jury appeared at the Bar and Evidence given on both sides And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant Demurrer al evidence and thereupon the Jury were discharged And now Gawdy the Queens Serjeant
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
and the one with force and the other not as if I command one to make a Disseisin and he makes a disseisin with force and allso if one enter with force to my use and after I agree he is a Disseisor with force and I am not so and those cases will answer the Books of Assises for in those cases they were present Present but in these not and so I hold that he which is present when force is made is a Disseisor with force Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces VVyndam It doth extend to them by express words and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force Then for the other matter of trebling of damages increased the Court made no doubt but that they shall be trebled and they said that so it was lately adjudged here in a case of Staffordshire 19. PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin Challenge where the Defendant made Conusance as Bayley to one Hussey and in the Attaint surmise was made that the Sherif was Cosen to Hussey and thereupon prayed Process to the Coroners and Puckering moved that no Process should issue to the Coroners for Hussey was not party to the Attaint and then this is but matter of favour and he cited 3 Hen. 7. And all the Court accorded with him that it is but matter of favour onely and no surmise to have a Writ to the Coroners but VValmisley would have put a difference between Lessee for years and a Bayley Lessee pur ans for as he pretended in the case of a Bayley it shall be a principall challenge but not in the other case but all the Court was against him and that it is no principall challenge in the one case nor in the other The last day of the Term it was moved again and the Court was of the same mind as before 20. IN a Quare impedit Adverson it was said by Anderson and agreed by all the Court that if a man make a Feoffment in Fee of a Mannor without deed and without saying with the appurtenances yet the Advowson shall pass and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor and lieth in Tenure 21. IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire Pleading an Action of Battery was brought in London and a Justification made in Somersetshire Absque hoc that he was guilty in London and the Plaintif replyed de injuria sua propriae absque tali causa and Anderson said that a man shall never plead de son tort demeasne where the matter ariseth in a Forein Country 22. AN ejectione firme was brought by Clayton against Lawson Bar. the Defendant pleaded in Bar a Recovery had in the Kings Bench against the Lessor of the Plaintif And Fenner moved that it should be no Bar no more than in Trespass Anderson I think it to be a good Bar. For this Action is as strong to bind the possession as a Writ of right is to bind the right VVyndam I think it is no Bar no more than in Trespass Anderson This is more than an Action of Trespass for in this he shall recover his Term. Rodes This case was moved the last Term and the opinion of the Court then was that it was a good Bar. Fenner True it is if it were between the parties themselves but here the Plaintif is but Lessee to him which was Barred Anderson Allthough that it be so yet he claymeth by the Lease of him which was Barred and during the Lease of the other his Lessor could have no right and what shall he have then Fenner That which is between the parties cannot be an Estoppell to the Plaintif here which is but a stranger Estoppell Anderson I know that he shall not plead it by way of Estoppell but he shall conclude Iudgement si Actio Peryam If in an Assise a Recovery in another Assise be pleaded in Bar Assise he shall not conclude by way of Estoppell but Iudgement si Actio and there he is driven to a higher Action and so here and the Law shall never have end if after a man is Barred in his Action he may bring the same Action again therefore I think it a good Bar and that he is driven to a higher Action VVyndam Lessee for years can have no higher Action Anderson Peryam If one which hath a Lease for years and no more Tenant for years disseisor of tenant in Fee simple enter upon him which hath a good title he is a disseisor of all the Feesimple Wyndam If two claim by Lease from one man and one bringeth an Ejectione Firme and is Barred what Action shall he have then Anderson None for he hath no Right VVyndam That is hard Anderson What Action shall he have which is Barred in Formdone surely none Fenner This is another case Anderson Aliquantulum incensus truly it is a plain case that he shall be Bared whereunto Peryam and Rodes agreed clearly 23. IN a praecipe quod reddat View the Tenant demanded the view and an habere facias visum issued and the Tenant came not to the Sherif to take the view it was said by the whole Court that the Sherif may retâ—urn that none came to take the view and he shall never have the view again Anderson The habere fac visum is the suit of the Tenant and then when he doth not come to take the view this is a default and then good reason to exclude him from the view Gawdy Such a retourn was never seen before and therefore it is to be noted the case was between Hoâ— and Hoo for Lands in Norfolk 24. IOhn VViseman of the Inner Temple Apportionment brought an Action of debt against Thomas VVallenger the case was this A man seised of three acres of Land in Fee makes a lease reserving xxx s of Rent and after devised the Reversion of two acres to a stranger and the third acre descended to the Heir and he brought an Action of debt for xij d. being behind and Puckering moved if they were agreed of their judgement in the case Rent extinct by the grant of part of the Reversion Anderson If a man let two Acres of Land rendring Rent and grant the Reversion of one of them all the Rent is gone as it is in Dyer and at the Common Law before the Statute of W. 3. there was no apportionment and the Statute speaketh of no such apportionment as this is Rodes Surely no Book in all the Law will warrant this apportionment Fenner Yes Sir 5 Ed. 3. If a man have a Rent of xx s and grants parcell thereof and the Tenant Attourns this is good Rodes This is another case But shew us the case which was in the Kings Bench
charges except Rents and Services which shall be due after c. to the chief Lord And afterward he made and levyed a fine And after the Wife maried and then the Son entred and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares Walmisley It seemeth that Judgement shall be given for the Plaintif because it was not discharged at the time of the Feoffment For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age Com. fo 539. after at his full age the Son shall have it so that there it was chargable to the Entry of the Son hereafter And here allthough that it be not presently charged yet when there is a charge arise the Covenant is broken And for that in 8 Eliz. a man bargains and sells Land Rent charge future and Covenants that it shall be discharged of all charges and he had granted a Rent before to begin twenty years after when the Rent begins it shall be said a breach And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land c. And so I think Judgement shall be given for the Plaintif Fenner to the contrary and here the Term was extinct by the grant end sale and then the Feoffment void and therefore no charge and thereupon no charge at the time of the Feoffment and for that he cited 42 Ed. 3. 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed c. so here in that she took nothing by the Feoffment there was no charge at the time of the Feoffment And this possibility of a remainder doth not make an interest and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 Resceit upon Cond where Tenant for life lets the Land to one upon condition that if he dye in the life of the Lessor that it shall retourn to the Lessor c. upon such a matter he may be received and he cited for that the case of Wheler 14 Hen. â— fol. 17. and a title suspended is no title 3 Hen. 7. 12. 30 Ed. 3. Lease for life upon condition that if the Rent be behind then he shall retain the Land c. and he said that the opinion of Bâ—omley in Fulmerstons case was contrary thereunto but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso And so it seemed to him that the Plaintif shall be barred 18. THE case of Fr. Ashpool was moved again by Fenner Hue and cry and it seemed to him that the Plaintif ought to make Hue and cry for as he said it hath allwaies been the manner of pleading and allso it hath been allwaies parcell of his issue to prove Allso he argued that he should not have remedy by the Statute post occasum solis For Stamford saith expresly that if a man be robbed in the day that he shall have remedy and the day shall be said but from the rising of the Sun to the fall thereof for the words of the Statute are that the Gates of the walled Towns shall be shut ab occasu usque ad ortum solis and then if the Gates be shut and that walled Town be within a Hundred how can they make Hue and cry And the case in 3 Ed. 3. is not like to this case Fresh suit by the Hundreders for there it was enquired and found of the Dozen Anderson The fresh suit mentioned in the Statute ought to be made by the Inhabitants and not by the parties and I am of your opinion that Hue and cry was at the Common Law but what of that But look the Statute and there is no word of Hue and cry And the Statute of 28 Ed. 3. is an exposition of that Statute and there is no mention thereof but Fresh suit is there mentioned which ought to be made by the Inhabitants And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort as men may safely travell without robbing And for the night Sir wee ought to construe it as it is most reasonable and about the setting of the Sun is the common time of robbing and therefore if this shall not be intended by the Statute nothing shall be intended and allthough the walled Towns cannot persue Walled Towns may keep the waies yet they may keep the waies so that no robberies shall be committed and this is both day and night as I think And if a man be slain in the robbery so that no Hue and cry can be made I doubt not but the Country shall answer for the robbery A man is robbed slain and bound and so if he be bound And if Hue and Cry ought to be when ought it to be For if a man be bound two dayes together he had as good make no Hue and cry as make Hue and cry afterwards and yet I hope you will agree that this man shall be relieved by the Statute which case was agreed by all the Court. Peryam The day without doubt is after the Sun-set Day after Sun-set Rodes cited the case of waging Battail in an Appeal in Stamford And so by agreement of all the Justices Judgement was entred for the Plaintif but Fenner sayd privately that in his conscience it was against the Law yet notwithstanding all the Judges were clear in opinion and the Serjeants of the other part allso So that it seemed to the Judges that no Hue and Cry is necessary by the party for they all agreed that the Country ought to be kept so that no Robberies be committed And Anderson and Rodes affirmed precisely that it is not necessary and the other agreed in the reason thereof and sayd that it is not mentioned in the Statute but sayd that the waies ought to be kept so that men may travell safely or otherwise it is against the Statute 19. IN a Writ of False Judgement brought against the Mayor Tryall Sherifs Citizens and Commonalty of Norwich it was moved where the Issue shall be tryed and per Curiam it shall not be tryed there but yet the Action may be used there And in the same case it was demanded Summons if the Sherif may summon himself and the Court answered that he could not and Peryam sayd that so it hath been adjudged here many times 20. THe â—ast day of the Term the matter of Lassels was moved again and it seemed to Anderson that the Obligation is voyd in that there is an express form limited by the Statute and this varying from the form in substance is voyd for in his opinion he excludes the
Wast and the Defendant demurred in law whether such an action will lie against him or no it was for cutting down of trees And at this day Anderson rehearsed the case and said that they were all agreed that the action will lye well enough vi armis for otherwise he shall have no action for wast is not maintainable and Littleton saith that Trespass lyeth so seemeth the better opinion in 2 E. 4. 33. for otherwise this being a common case it shall be a common mischief And he commanded the Pregnotary to enter judgement for the Plaintif 18. Snagg moved to stay Judgdment in the case of Blosse Property and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods Trespass will not lie sed vide librum and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler Windam If he had imbezeled the goods it is Felony and for the case of 3 Hen. 7. it is Felony without question Property quod fuit concessum Anderson The servant hath neither generall nor speciall property in the goods Taking Embezeling and he shall have no Action of Trespass if they be taken away and therefore if he take them Difference Trespass lieth against him and if he imbezell them it is Felony wherefore he commanded to enter Judgement for the Plaintif 19. THomas Taire and Joane his Wife brought an Action of Wast against Pepyat Pas 25. Eliz. and declared how that the Defendant was seised in Fee Rot. 602. and made a Feoffment to the use of himself for life Wast and after to the use of the Mother of Joane in Fee who died and it descended to her and after the Defendant made Wast c. The Defendant pleaded that he was and yet is seised in Fee Absque hoc that he made the Feoffment in manner and form pro ut c. And the Jury found a speciall Verdict that the Defendant made a Feoffment to the use of himself for life but that was without impeachment of Wast the Remainder in Fee as before And the Plaintif prayed Judgement and the doubt was because they have found their issue and more viz. that it was was without impeachment of Wast Anderson Whether it were without impeachment of Wast or no was no part of their issue and then the Verdict for that point is void and the Plaintif shall have Judgement VVindham The doubt is for that they have found that the Defendant is not punishable and where a Verdict discloseth any thing whereby it appeareth that the Plaintif ought not to Recover Judgement thereupon ought to be given against him As in detinue the Plaintif counts upon a Bailment by himself Bailment and the Jury findeth that another Bailed to his use the Plaintif shall not Recover And a Serjeant at the Bar said that the issue is not found Anderson That which is found more than their issue is void Assise and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise â—i troâ—â— ne so it c. and the Jury found that he was Tenant but that he held jointly with another and there the Plaintif Recovered and so he shall here And at length by the opinion of all the Court Judgement was entred for the Plaintif for he might have helped the matter by pleading 16. IN debt by May against Johnson Payment the Condition was to pay a 100. l. to Cowper and his Wife and by all the Court if he plead payment to Cowper alone it sufficeth for payment to him alone sufficeth without naming the Wife 15. IN a Quare impedit by Sir Thomas Gorge Avoydance against the B. of Lincoln and Dalton Incumbent the case was that a Mannor with an advowson appendant was in the hands of the King then the Church becoms void and after the King grants the Mannor with the advowson now the question was if the Patentee shall have this presentation or the King And all the Judges held clearly that the avoydance doth not pass for it was a Chattell vested in the King and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh nat br is contrary fol. 33. 11. 22. DEbt was brought by Goore Plaintif for 200. l. Bailiwick upon such a Bill Be it known unto all men by these presents that I Ed. Wingfield of H. in the County of Midd. Esq do acknowledge my self to be indebted to William Goore in 200. l. for the payment whereof I mine Heirs and Assigns do licence the said G. to have and use the Baliwick of Dale to the use c. untill c. the Defendant pleaded in bar that the Plaintif had used the said Bailiwick and said no more nor at what place he had received the money and Suagg moved that the Plea was not good because he had not shewed the value which he ought to have done Value and the Judges were of the same opinion and they said moreover that this Plea is not good in bar of this specialty for payment is no plea upon a single Bill Licence and he might have brought his Action upon this Bill without using the Bailiwick for this Licence is no Condition 〈◊〉 De Term. Hill Anno Eliz. xxx 1. AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton Covenant and the case was this A man maketh a Lease for years rendring Bent upon Condition with a Covenant that the Lessee shall repair the Houses with other Covenants And after he deviseth the same Lands to the same Lessee for more years rendring the like Rent and under the like Covenants as in the first Lease the remainder over to another in Fee and dyeth Then the first Lease expires and the Lessee held in by force of the Devise aâ—d did not repair the Houses so that if the first Lease had been in esse Condition he had broken a Covenant now if this shall be a Condition so that he in Remainder may enter was the question Shuttleworth This is a Condition for he cannot have an Action of Covenant and then the intent was that it shall be a Condition But all the Court was against him and that the intent was not so for the words are under like Covenants which words do not make a Condition allthough they be in a Will Anderson The nature of a Covenant is 〈◊〉 to have an Action and not to enter and so all the Court held it no Condition And Perâ—â—â— said that under like Covenants were void words and therefore Judgement shall be given against you 2. PUckering the Queens Serjeant moved Fee determinable that one Adams was indebted to the Queen in a great sum which was stalled to pay yearly so much untill all werere paid And for security he levied a a fine to William Lord Burghley Lord Treasurer and others that they should
half whereby the Land was sown accordingly and that the Bore of Okely came and destroyed the Corn. Sed utrum c. And the doubt rested upon two points 1. because the Verdict saith that it conteineth sixty Acres and so shall be intended not the same place and the Court varied in opinion thereof insomuch that the sixteen Acres are found to be within the close conteining sixty Acres but for the 2 which was that they all four joyned in quare clausum fregit and it appeareth that three have nothing there Verdict shall abate the Writ but that Hare is sole seised And for that the Court held opinion that the Verdict shall abate the Writ for the Defendant cannot break their close where three of them have nothing but Hare onely Rodes A Case hath been adjudged a where Cheâ—ey brought Partition against Bury Partition who pleaded that they did not hold in Common and the Jury found that he and his Wife held in Common and yet the Verdict abated the Writ Windham You will all grant that the other three have no interest in the Land quod Walmisley concessit how then can they have quare 〈◊〉 fregit Fenner Executors shall have quare clausum fregit Executors and yet they have no interest in the Land Rodes There they have an interest for the time Anderson Here is but a bargain and no interest and then the three have no colour to bring Trespass quare elaâ—sum fregit 10. THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law Avoydance and now the Record was read and day given over to hear the Arguments but 〈◊〉 said that it is all one case with that which hath been adjudged here viz. that the Queen hath title of Lapse and doth not present but the Patron presents and after the Church becomes voyd by the death of the Incumbent that now the Queen shall not present but the Court answered Difference between Death and Privation that there the avoydance came by death but here it cometh by privation and whether this will make a diversity was the question 11. HArper brought Trespass against Spiller and Drew Estate upon not guilty pleaded a speciall Verdict was found and the case in effect was this F. gave Lands to a woman to have and to hold to her to the heirs of F. of the body of the woman ingendred what estate the woman had was the question and now the Record was read and day given over to argue it 12. SHuttleworth moved the Court Amendment and shewed that one Brokes by had brought a Quare impedit against the Bishop of Lincoln and others and the Writ was suam spectat donationem and this word 〈◊〉 was omitted and he prayed the Court that it might be amended and he cited 11 Hen. 6. 2. where it was imaginavit and it should have been imaginat fuit and 13 Hen. 7. where the teste was omitted and the Court took time of advisement and at length by the opinion of all the Justice it was amendable and then a Clerk of the Chancery came into the Court of the Common-pleas and amended it 13. IN an Avowry for an Amercement in a Leet By-law a Prescription was made for making of By-lawes and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants and not for the private commodity of any particular man as J. S. onely or the Lord onely As if a By-law be made that none shall put in his beasts into the common-field before such a day this is good but if a By-law be made that they shall not carry hay upon the lands of the Lord or break the hedges of J. S. this is not good because it doth not respect the common benefit of all And Windhaâ—â— sayd that some Books are that they shall bind no more than such as agree to them 14. HAre brought Debt against Curson for a great sum Capias utlâ—gatum and Process continued untill Capias â—tlog And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ because they doubted thereof and the Writ was delivered to the Sherif in Court and he sayd that he would doe his endeavour but Curson hath long kept his house so that he cannot come at him Peryam You may take the power of the Country with you and break his house and take him out for so it hath been adjudged here which the Court granted 15. PUckering shewed how an Action of Debt was brought against an Administrator Assetâ— who pleaded plens administraâ—it and thereupon the Jury found a speciall Verdict that certain Obligations made by the Testator to the value of a hundred pound were forfeit and the Administrator took in the said Bonds and gave his own Bond for the Debt and retained the money in his own hands besides which c. he had nothing c. and if that hundred pound shall be liable to this Action of the Plaintif they prayed the advice of the Court and by the opinion of Windham and Peryam it shall not be Assets because the property is changed in giving his own Bond for the same Payment with Proper râ—â—ds and it is as if he had payd the Debts with his own goods but if he had compounded for less Surplusage then the surplusage should have been Assets But Rodes was of a contrary opinion in the principall case forasmuch as he had payd no money but onely given his Bond for in and Anderson was absent at this day And after at another day the case was moved again by Shuttelworth and then he shewed that for part thereof the Administrator had given his Bond and for another part his promise Promise and he sayd that this is no payment but a composition and therefore no change of property Anderson For so much as he hath given his promise I think it not good because that by this promise this first debt being due by Bond is not discharged but for so much as he hath given his Bond for I hold it good enough because the first Debt is discharged thereby allthough that the Obligation be made to a stranger Estranger by the appointment of the Debtee and allso before the Debt due for by this the first Debt is gone And Windham and Peryam were of the same opinion that the Debt was discharged and that it should not be Assets in his hands but Rodes doubted thereof and it was adjorned 16. JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants Abatement and after a Verdict found for the Plaintif and before Judgement one of the Defendants died and the Writ was adjudged to stand good against the other 17. IN Debt by Saunderson Wager of Law the Defendant pleaded nil debet per legem and in truth the money was due to the Plaintif but the Plaintif was allso
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
be Fidi Rodes I know a Wife which is called Troth in English and she was called Trothia in Latin and it was good And all the Court adjudged this Writ good here 11. AN Action upon the Statute of Winch. was brought against a hundred in Gloucester Hue and 〈◊〉 and the Jury found a speciall Verdict viz. that the money was delivered to a Carrier of Bristow to be carried to London who packed it up And as he was on his journey certain Malefactors came to him in an another Hundred and there took his Horse and Pack and led him into a Wood within this Hundred against which the action is brought And if this Hundred be guilty or no they prayed the advise of the Court And all the Justices agreed that this was a robbery in the first Hundred and not in the second for upon the first taking he was robbed but if the Carrier had led the Horse himself Possession then it should be adjudged to be in his own possession and no robbery untill he came into the second Hundred and if a man have money and the Malefactors take him in one Hundred and carry him unto another Hundred and there Rifle him this shall not be a robbery in the first but onely in the second Hundred for he is allwaies in possession per totam Curiam and Judgement was given accordingly So of the purse picked in the Kings Bench and the thief taken with the manner but a key being fastened to the purse still stuck in the pocket and 2 Justices against two that the man was still in possession of his purse and so no robbery 12. WAlmisly shewed Termor how a woman brought Dower against her two daughters and another and in truth the third was but a Termer and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term for they all have made default at the grand cape and now he prayed to be received and shewed cause that the Husband made a lease for yeares and after the Lessee levied a fine to the Lessor and they granted and rendred back again to the Lessee for the same yeares rendring the same rent and the Statute of Gloucester is if the Farmour have c. that is if he may have covenant as in 19 Ed. 3. and here he may have covenant Ejectione firme and prayed to be received and shewed his plea. Shuttleworth You are at no mischief for you shall have an ejectione firme if you be ousted where she hath no cause of Dower Walmisley But we shall be put out of possession which shall be no reason Anderson I hold that a Termer may falsify by the Common law Falsify Shuttleworth But his lease is after our title of dower Lesser may plead destruction of dower Peryam although that it be after yet if he have matter which goeth in destruction of the Dower he shall falsify well enough as if she have title of Dower and five yeares pass after the fine levied And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession but here the Termer is named ideo quare And after at another day Shuttleworth moved it again Resceit of the partie to the Writ and said that the Termer shall not be received because he is named in the Writ and the Court was of the same opinion then but they said that he might plead speciall non tenure Shuttleworth first he ought to save his default for he commeth in upon the grand cape Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there Shuttleworth Then I shall have judgement against the two which made default at the grand cape Conusance Curia you had best be advised lest the Writ should abate by non tenure of parcell Cemurier Shuttleworth by my Conusance of non tenure of parcell Difference all shall abate but if I demurr upon his plea then it shall abate but for one parcell 13. LEonard White brought a Formdon in Discender and declared of a gift in tayl made to his father Estoppell who died and the land descended to the elder brother of the Demandant who also died without Issue and so conveyed to himself as heir in tayl c. The Tenant pleaded that the elder brother had Issue a Daughter who levied a fine to him and he relied upon the fine and proclamation Inducement doth 〈◊〉 make a plea double Walmisly this Plea is double the one is the Issue the other the fine Curia forasmuch as he cannot come to the one without shewing the other it shall not be double also here he relieth upon the Estopple vide 18. E. 3. 25. Tit. Gard. per Wylly 14. A Formdon in descend by three brethren for lands in Gavelkind they were at Issue upon Assetz descended to the Demandants Assets in Gavelkind And the Jury found a speciall Verdict that the Father of the Demandant was seised of those lands and by his Testament devised them to his three sonnes now Demandants and to their heires equally to be divided And if this shall be said a descent to them or no was the question because the Law would have done as much and therefore it shall be said Assetz But all the Court held the contrary and that they shall be joynt-Tenants or Tenants in common and then they shall not be in by the descent and so no Assetz and Anderson said that if a man devise to his sonne and heir in tayl he shall not take it by descent Peryam if a man may have any more benefit by the Devise than by the descent then he shall take by the Devise Eadem lex per Curiam if he devise his lands to his two daughters and heires they shall be joynt-Tenants and no coparceners è contra if he have but one son or one daughter only 15. IN the Exchequer Chamber all the Justices of the Common Pleas and the Barons of the Exchequer Venus were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator who pleaded plenè administravit and the action was laid in Barkshire at Newbery and the Plaintif averred that the Defendant had Assetz at Westwood in the same County and the venire facias was of Newberry whereas it should have been of Westwood And this he assigned for Error And all the Court agreed una voce that it was Error and so the judgement was reversed but the Assetz being transitory might have been assigned at Newbery 17. ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him Amendment and assigned for error that the judgement was quod recuperet versus Edward Seymour
and did not say praedict Edward Seymour And all the Justices agreed that this was amendable And so the first judgement was affirmed 18. ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench Rent suspenpended and the Case was such A man makes a lease of ten acres for ten yeares rendring rent upon a Condition the Lessee grants 5. acres thereof to a stranger for five years and after grants the residue of the years in the five acres to the Lessor And after the Lessee broke the Condition whereby the Lessor re-entred and if he may do so or if the Condition was suspended or no was the question because he accepted a future interest in parcell Future interest Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended and now this was assigned for error And all the Justices except Anderson and Peryam held that it is not suspended before he had entred by force of his lease Anderson If I make a lease as here upon Condition and waive the possession this may be suspended before his entrie Cook This is another case Peryam But the reason thereof commeth well to this case And afterwards because the said two Justices dis-assented from the rest it was adjourned over 19. ANother Writ of Error was there brought upon a judgment given in the Kings bench Trover And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices If a man lose his goods which come to the hands of another he converteth them to his own use and after the owner dye Day and place of conversion whether his Executors shall have an action of the Case for this Trover and whether he ought to shew the place and the day of the Conversion or no And the Counsellours at the bar said that he ought to shew both for so it was adjudged where an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation and it was found that he had broken the seales c. and because he did not shew the time and place of the Conversion he could never get Judgement And now the Justices were of the same opinion but yet Anderson seemed to doubt Peryam Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator and the doubt is if they shall have an Action upon the Case Manwood if a man hath another in Execution for debt and the Gaoler suffer him to escape and after the Recoverer dyes shall his Executors have an action against the Gaoler Cook No. Peryam So it seemeth But Anderson Manwood and VVindam clearly to the contrary and that they shall have debt upon this Escape Cook But not an Action upon the Case at the Common Law and here by his own shewing he might have Trespass vi armis and therefore not this action De Term. Trinitat An. Reg. Eliz. xxx 1. RAlph Heidon brought a Writ of Right against Smethwick and his Wife Droit of two parts of forty Acres of Land in Surret and they pleaded that one Ibgrave was seised and devised it to his Wife now one of the Tenants for term of her life the remainder to Benjamin Ibgrave in fee Praying ayd in an Assise which was his heir and dyed and they prayed in ayd of B. I. who came and joyned to them and thereupon they came and pleaded to the grand Assise and the first day of this term the Assise appeared and sixteen were sworn whereof four were Knights and the residue were Squires and Gentlemen and the title was all one as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part And the opinion of all the Court clearly that it is not ayded by the Statute for there is not any certainty in the Grant Name certain but if he had given it a certain name as green Acre then allthough he had mistaken the Parish yet it had been good enough Peryam The Assise may goe their way and they did so and after they being agreed came again to the Bar and the Demandant was called and did not appear whereby the Tenant prayed the Court to record the Nonsuit and it was done Curia All is one as if he had appeared Non-suits for this Non-suit is peremptory for ever the issue being joyned upon the meer droit aliter if the issue had been joyned upon any collaterall poynt 2. IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass Challenge VValmisley This Inquest you ought not to take for it is favourably made by the Sherif which is within the distress of one of the Plaintifs and shewed how the Sherif held certain lands of a Mannor now in question whereof Lister hath possession and allso hath certain lands for term of years of him and the Plaintifs moved that he ought to take one cause onely 1 Cause Curia He may allege both for the challenge is that he is within the distress and the allegations are but evidence to prove it and then the Plaintif sayd not within his distress whereupon the Court appointed Tryers and the Defendant sayd that all the Jury are favourable Tryors refused and prayed Tryers de circumstantibus Gawdy That cannot be but onely in an Assise and cited 9 Edw. 4. Curia We cannot appoint other Tryers in this case but only of the Jurors wherefore let the fourth and seventh be Tryers but you may refuse them and take others if you will and thereupon the Defendant refused the fourth whereby the third was appointed and they found the Array favourably made and therefore it was quashed 3. A Recovery was had by Arthur Mills against Sir Owen Hopton of divers lands twelve years passed Amendment and by the negligence of the Attorney Warranty of Attorney no Warrant of Attorney was entred for him and now suit was made to the Justices that it might be entered and they all consented thereunto and so it was entered incontinently but first the party made a corporall Oath that he had retained an Attorney and that this was the negligence of his Attorney 4. IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor Arbitrement and sayd that there was an Error in the Record Error not assigned which was not assigned and prayed that it might be examined allthough that it was not assigned because that it appeared in the Record which was agreed to by the Court. And then he shewed the case that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others and they Arbitrated that the Plaintif in this Writ of Error should release to the now Defendant all Actions which he might
the Land should pass by this words Appurtenances For allthough that in late Books Lands shall not pass by this word Appurtenances yet this is good authority to prove that they shall pass as 7 Hen. 5. 41. T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning and here upon this devise 4. l. Rent is reserved and the antient Rent is but 45. s and if the Land should be racked it is all worth but v. l. a year and because they are held in Capite therefore by the Statute we shall have but two parts And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney Valew wich are not worth so much therefore somtime the valew is considerable in a Will and cited 4 Ed. 6. 7 Ed. 6. and so he thought the Plaintif ought to recover And at this time the Court seemed to be of the same opinion for they gave day over to the Defendant at which day if nothing were said Judgement shall be given for the Plaintif 4. GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon Survivor the case was such H. was seised in Fee and had issue Mic. 29. 30 three Sonnes Eliz. râ—t 2325. John VVilliam now Plaintif and Richard now Defendant And by his last Will devised Lands to Iohn and to the Heirs Males of his body ingendred and devised other Lands to William in like sort and other Lands to Richard in like sort And that if any of his Sonnes died without issue Male that then the Survivor shall be each others Heir Afterwards the eldest died without issue Male And if William shall have all his part alone or else he and Richard between them was demurred in Law and day was given over to argue it 5. WAlmisley shewed how an Action was brought by Berdsley against Pilkington Impounding upon the Statute of 2 3 P. Mary for driving a Distress out of the County And shewed the truth of his case that the Distress was taken in the Hundred of Offlay in Staffordshire and the City of Lichfield was sometime within this Hundred And by Letters Patents of 1 Mariae the City was made a County of it self and he which took the Distress impounded them within a pound in the County of the City of Lichfield now whether he hath incurred the penalty of the Statute or no was the question And because the Court had not a Statute Book there to see the Preamble therefore they would give no resolution Anderson The meaning of the Statute was because the Bailif of the Hundred might make deliverance Allso I think it is within the compass of the Statute because the City was a County severed before this Statute made And the Serjeants at the bar said Same Hundred that the party may drive the Distress as far as he will within the same Hundred but he ought not to drive it above three miles without the Hundred 6. IOhn Slywright exhibited an information upon the Statute Champerty for buying of Titles Pasch 30. Eliz. rot 1532. against Page and declared how Joane Wade demised to Page for 60 yeares the Defendant pleaded not guilty And now a Jury of Sussex appeared at the bar And upon Evidence it was moved â—if a man have a lawfull Title to enter into Lands Lawfull title but hath not been in Possession and he entreth and makes a Lease for yeares thereof if this be within compass of the Statute Anderson It is within the Statute for the mischief was that when a man had a Title to Land he would let it to another to have maintenance and imbracery and make contentions and Suites for remedy whereof the Statute was made For if a man have a Title he may recover according to his Title Recovery Peryam The mischief hath been truly recited and therfore it is reason to restrain such bargains But if a man Recover by Formdon or Cessavit and make a Lease this is not within compass of the Statute A pretended Right allthough that he hath not been in Possession by a year and in my opinion the Plaintif need not prove that it is a pretented Right because the Statute expoundeth what is a pretented Right viz. if he hath not been in possession And so I have delivered my opinion before this time Anderson If a man hath not been in Possession and cometh to me and saith that he will make me a Lease and demands if I will take it and I agree thereto whereby he maketh me this Lease Ignorance if I do not know that he hath not been in possession I am not within the Statute And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor whereby he might take the Lease well enough For Fleetwood cited 6 Ed. 3. if one brother maintain the other this is not within the Statute of Champerty which case the Court agreed this is for speciall cause vide statut de articulis super cartas Maintenance Champerty Difference Anderson One brother may travell for another and maintain him but if he take a Lease of him he is within the Statute of 32. Hen. 8. for this is a generall mischief and the mischief is as great if the brother take a Lease as if another take it The case quod Periam coucessit clearly but because it was the case of the Defendant the Jury found a speciall Verdict viz. that the Lands were conveyed by the Husband of Joane Wade to the use of himself and his Wife in Tail-speciall the Remainder to the Husband in generall-Tail the Remainder to the Wife in Fee and after the Husband Enfeoffed diverse men thereof and the Feoffees continued in Possession diverse years After the Husband died and then the Wife by indenture sealed and delivered of the Land made a Lease to Page which knew all this matter Knowledge from the fift day of Jenuary last past for 60 years if the Wife should live so long and that the Wife was Sister to Page the Defendant by the Mother and found the valew of the Land as if it should be sold and they prayed the advise of the Court c. And the morow after the like information being brought against the woman being Lessor the like Evidence was given and the like case found 7. FEnner moved this case to the Court. Recovery An Alien born purchaseth Lands in Tail the Remainder to a stranger in Fee The Alien suffereth a Common Recovery to his own use in Fee And after an Office is found of all this matter if the Remainder shall be to him which had it before or no was the question Anderson I think the Queen shall have a good Fee-simple Tenant sufficient to the praecipe for if there be a good Tenant to the praecipe then is the Remainder gone and you will not deny but that
But if a man be indebted to me and after I am Outlawed and then the King releaseth this debt Release of the King of the debt of one outlawed and then I bring a Writ of Error and reverse this Outlary I shall be restored to my action again And here he hath shewen to us a peece of cunning for when he pleads the Outlary in us he hath pleaded the Record specially for otherwise we would have sayd Speciall pleading nul tiel record and then it being reversed it should have been certified for us as there is a case in Dyer Then here allthough that be in by a new presentation yet all the words of our Writ are true in this Scire facias but I grant that Executors shall have a Qnare impedit for a disturbance done to their Testator Executors shal have a Quare impedit Anderson The case in Dyer is thus reported That I when I was the Queens Serjeant and Gerrard now Master of the Rolls then being Attorney of the Queen were of opinion that the Clerk of another shall not be removed and concerning that matter I held then as I doe still that in some cases the Clerk shall not be removed and in some cases he shall for if he come in under the title of the Plaintif Title peramont and since the same then he shall be removed but if he come in by title Paramont he shall not be removed and here for that this is done hanging the Writ it seemeth that he shall be removed For if a man bring a Praecipe and hanging the Writ the Tenant alien yet the recovery is good against him Tenant in a Praecipe aliens and shall allso bind every one under him Peryam That point is clear enough but the question is if by the Outlary the Plaintif hath forfeited his presentation to the Queen For if it be so then this is a new title for the Queen Anderson What reason is there in that when it was an apparent practise of the Defendant to resign for otherwise she could not have presented Plenarty the Church being full before Peryam The practise is not good without doubt but what is the Law Anderson The Law is that the Defendant by his resignation shall never extort the Plaintif from his execution Peryam The point is if by the Outlary the Queen have a new title by reason of the Plaintif and I doubt much thereof if by the judgement she shall have the presentation Anderson I am resolved that there is not any colour in the case but what say you Rodes Truly I hold that the Plaintif shall remove the Clerk Windham And in my opinion it is clear enough that by the reversall of the Outlary the Plaintif shall have his presentation Reversal Anderson Then let Judgement be entred for the Plaintif Peryam In the name of God if you be agreed against me 10. A Writ of Partition was brought by Henry Tannworth Partition and Christian Tannworth against John Tannworth their elder brother for lands in Hawlesteed alias Elsted in Leicester-shire because that Halsteed is parcel of the Soak of Rothelay wherein there is such a custom Members of a Mannâ—r that the lands shall equally descend to all the heirs males and in giving of evidence Walmisley sayd that the members of a Mannor are other Towns in which the Mannor extends and Puckering sayd Soak quid that at this day the Queen may make a Soak For it is nothing else but a Precinct to which divers Mannors come to doe suit and as a great Leet containing divers other Courts and the Evidence was strong for the Tenant for he shewed by plain proof that this was never parcell of the Soak allthough that it was within the ancient Demeasne of Rothelay Domesday as it was proved by the Book of Domesday which was there shewen and a Clerk of the Exchequer read it for other Clerks could not and he sayd and so sayd the Serjeants and the Tenant delivered to Anderson and Peryam an ancient Book of the time of Ed. 2. for their remembrance wherein in 4 Ed. 2. in a nuper obiit it is sayd that if the Lands which have been departible and departed come into the Lords hands by Escheat they shall not be departible in his hands Partible lands Escheat vel in manibus alicujus alius perquisitoris non possunt partiri And he sayd that such was the opinion of Sir Thomas Bromley the last Lord Chancellor upon hearing of the matter there whereby when the Jury came to give their Verdict the Plaintif was Non-suit 11. SHuttelworth shewed how Robert Hughson brought an Action of Debt against B. Office of the Court. as Administrator of F. and declared upon a simple contract made by the Intestate Pasch 30 El. rot 421. and the Defendant pleaded plene administravit and it was found by Verdict against him And now in arrest of Judgement the Defendant alleged that the Action is not maintainable against him upon a simple contract And Shuttelworth thought that now he is past that advantage because he did not shew it in pelading and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question Rodes It appeareth to us judicially that no action will lie upon a simple contract against Executors or Administrators wherefore then ought the Plaintif to have Judgement Shuttelworth Because by his Plea he took upon him notice of the contract and by 46 Ed. 3. where the Administrator was privy to the retainer of a servant he was charged by a simple contract Rodes Here he did not take notice and in 15 Edw. 4. The Court ex officio abated the Writ Shuttelworth This is by Littleton onely Rodes The case is ruled and Littleton gave Judgement so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper A common Ianholder if he be not named Hospitator allthough he plead in bar yet we ex officio ought to abate the VVrit Peryam If he be no Hosteler the Action lyeth not against him And if an Action of Debt be brought and doe not shew the place of the Obligation if the other plead a release this is good enough Shuttelworth So is 18 Edw. 4. A Deâ—d not shewed in Court 6 Hen. 7. Rodes If a man bring an Action and the Defendant plead in bar by Deed and do not shew the Deed and the other pleads in bar and doth not except thereunto but they were at Issue this is Error for we ex officio ought to have adjudged it evill and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case Then Shuttelworth sayd privily to his Client I doubt we shall doe no good by our Action Anderson being then in the Star-chamber After at another day Anderson rehearsed the case and sayd
Muskets and Callivers delivered into the Tower for which money Walton took a Debenter from the Queen in the name of a stranger and afterwards dyed and made Leveson Executor who procured the stranger to release and surrender the former Debenter to the Queen and took a new Debenter for the same hundred pound to himself this was adjudged no Assets nor devastavâ—t in the hands of the Executor Leveson upon a speciall Verdict but otherwise it should have been if the first Debenter had been taken in VValtons own name for then it had been a devastavit by the Executor 9. BAcon Plaintif against Selling in an Ejectione firme Assets de judgement the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39. Trin. 39 Eliz. rot 1345. so that it appeared to the Court that the Plaintif brought his Action before he had an interest in the Land and by all the Court a Rule was given for stay of Judgement after a Verdict but afterwards the Plaintif came and shewed that after Improlance he filed a new originall 10. HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words Scandalum magnatum viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged Warrant c. And the Earl recovered great damages by Verdict and now it was spoken in arrest of Judgement that the words were not sufficient to maintain the Action because it was not averred that the Earl knew the Warrant to be forged and of the same mind was the Court at this time 11. WIlloughby brought an Action of Debt against Milward Debt and declared that the Defendant bought Timber of him for ten pound solvend modo forma sequenti viz. five pound ad festum Pasch proxime sequentem and saith nothing when the other five pound should be payed and the Plaintif recovered the whole ten pound by Verdict and now it was spoken in arrest of Judgement for the cause aforesaid but yet by all the Court it was good enough for the Law intendeth the other part of the money to be due presently if no certain day of payment bee alleged 12. KItchin brought an Action of Debt against Dixson Debt Executor of Craven Mich. 36 37 El. rot 1028. or 1021. the Defendant pleaded ne unques Executor and the Jury found a speciall Verdict viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson and they found likewise that this Deed was to defraud Creditors against the form of the Statute and that the Defendant by colour of this Deed did take the Goods after the death of Craven and if this Deed vvas good then they found for the Defendant if not then they found the Defendant was Executor of his own wrong and so for the Plaintif and by all the Court Judgement was given for the Plaintif 13. IT was sayd by Drew arguendo That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires Rent charge the residue may be apportioned and the Land shall remain chargeable still for that residue but if he release in one Acre parcell of the Land charged then all the Rent is gone 14. IT was said by Glanvile in the argument of the case between Cromwell and Andrews Provisâ— that a Proviso in a conveiance to be performed on the part of the Lessee implies a re-entry allthough there be no speciall words of re-entry but otherwise it is when it ariseth on the part of the Lessor and Vouched bendlowes case where there was a Covenant going between the Habendum and Proviso But where the Proviso standeth substantively as where I grant a Rent charge Proviso that he shall not charge my person Condition this is no Condition but a Qualification Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas if the grant be not made before the first Feast which shall next happen the Condition is broken and he put a difference where the Condition must be performed by none but himself and where it may as well be performed by his Executors as himself And Drew said then that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer there ought the Feoffor to make a request otherwise if it be to enfeoff another 15. SMith against Bonsall Common in effect the case was such In an Action of Trespass the Defendant pleaded his Freehold Hil. 39. Eliz. rot 1753. and the Plaintif replyed that A. was seised of a Yard-land to which he had Common of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land and of the Moity thereof did enfeoff the Plaintif the question was whether this Common may be apportioned or else it be extinct alltogether In the argument whereof Drew said that Common sans number cannot be granted over because if it should be granted to a rich man he may surcharge the Common then and leave none for the rest of the Commoners so of estovers uncertain for so the Grantee may burn all the Wood quod Walmisley concessit and he vouched 17 Eliz. in Dyer that a Commoner may purchase parcell of the Land out of which his Common is issuing Purchase after that it be improved by the Lord and not extinguish his Common thereby And he said that if parcell of the Common be inclosed Inclosure a Commoner ought to make but one gap to put in Cattell but Anderson said that he may make as many gapes as he will And it was said by Anderson and Beamont Appendant may be apportioned that Common appendant cannot be for all manner of Cattell but onely for such â—attell as compass the Land and that such Common may be apportioned into twenty parts Append. quid as any Common certain may be Walmisley Owen If my Land to which I claim Common belonging can yield me stover to find a hundred Cattell in Winter then shall I have Common in Summer for a hundred Cattell in the Land out of which I claim Common and so for more or fewer proporitionably which they did expound to be the meaning of pertinen Moity of a Mannor levan and cuban Walmisley If I grant away the moity of my Mannor we shall both keep Courts so if I be disseised of a Moity or that the Moity be in Execution by elegit and we shall both have Common and in apportionment of Common respect ought allwaies to be had to the quality of the Land unto wâ—ich it is alloted Copiholder And a Copyholder may prescribe for Common in the Lords Land within the same Mannor by usitatum fuit but if he claim any other Common he must lay the prescription in the Lord. De Term. Hill An Reg. Eliz. xliii 1. WAlter Ascough prisoner
de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei every one will agree that this is voyd but if a further addition be made to the Corporation the Lease is true Addition superfluous shall not hurt allbeit that it be varying as if the Lease had been Minister Dei omnipotentis the addition of this word omnipotent shall not hurt sic de similibus And allbeit that it be not agreeing in words yet if it agree in common understanding Common understanding it is good but if in common understanding the grant may not be taken according to the Foundation if it be not wrested to an unexpected understanding there it is not good and if the Foundation had been in English words Minister of God of the poor house of Donington and the Lease by name of Minister of the poor house of God of Donington every one will agree that this is palpable variance and the Lease not good And I doubt of the case of Everwick for there the Prior beatâ—â— Mariae brought an action by name of Prior beatâ—â— Mariae extramures civitatis Ebor and if this case were now to be adjudged that would be variance as the case of Bristoll Prior beatae Maria de Bristoll made a Lease by name of Prior beatae Maria juxta Bristoll and this Lease was adjudged voyd but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance for it had been but an explanation which will never hurt and for that the Court was so divided in opinion that is to say two against two and the case concerned a poor house They moved the parties to comprimise 8. RUswell brought disceipt against Vaughan Disceipt and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that and sold the profits of the sayd Advowson to the Plaintif pro quadam pecunia summa And it was pleaded in arrest of Judgement for that the Plaintif did not aver ubi revera the Defendant had no title non allocatur 9. THe case was that the Queen made a Lease for years Burrough versus Taylor rendring rent at the receipt of her Exchequer or to the hands of her Baylif upon condition that if the rent be not payd that the estate shall cease Payment of rent the reversion being granted away by the Queen after the Queen granted over the reversion and whether the rent shall be now tendered upon the land or at the receipt of the Exchequer or to the person of the Assignee of the reversion was the question and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land or otherwise he shall not re-enter for the condition broken that for two causes the one for that that when the reversion was in the Queen Election the Lessee had election to pay it at the receipt of the Exchequer or to the hands of the Queens Baylif and when the Queen had granted over the reversion the election of the Lessee is tolled by which now the rent shall ensue the nature of other rents reserved by common persons The common receipt of the Exchequer and those are payable upon the lands another reason is every rent reserved by the Queen is of common right payable at the receipt of the Exchequer or to the Baylifs of the Queen without words appointing at what place it shall be payd for these are the usuall receipts of the Queen and so the words which appoint that to be payd at the receipt of the Excheq â—r to the hands of the Baylif of the Queen are idle words for that the Law appointeth so much of common right ex praerogativa Regis but when the reversion is transferred into the hands of a common person No prerogative can be granted over there this Prerogative ceaseth for it cannot be granted to a common person and by consequence the rent shall be payd upon the Land 10. THomas VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome recuperet No amendment in point of judgement and for that Error was brought and Serjeant Heale moved that the Record might be mended for that it was the mis-entring of the Clerk but adjudged to the contrary for the Judgement is the act of the Court and not of the Clerk 11. EDmund Nevell brought an Action of Trespass against J. Sayle Abuttals and declared Quare clausum fregit in quodam loco vocato Claveringfield abuttan super quoddam molend in tenura J. S. Opinio Curiae If the Plaintif do not prove his Buttals he is gone And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged and howbeit that there be a way between the Close and the Mill yet the Buttall is good 12. RIchard Somerstailes brought an Action upon the case for slanderous words Slanderous words that is to say R. S. is a very bad fellow for he made J. S. drunken in the night and consened him of an hundred Marks and upon not guilty pleaded it was found for the Plaintif and Judgment was stayed for the words are not sufficient to maintain an Action 13. IF the Heir of the Morgagee is in Ward Mortgage and the Morgager payeth the mony his entry is not lawfull upon the King but shall be put to monstrans de droit per Popham chief Justice 14. HAmond brought Debt upon an Obligation against Hatch Award of paâ—t onely and the Condition was That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant for and concerning the matters contained in 9 severall Articles bearing date the day of these presents So that the same be given up under the hand and seal of c. And the Arbitrator made an award of 7 of the sayd Articles omitting the other two and whether the Obligor ought to perform this Award was the question Man I think he ought to perform the Award for that he is bound by Obligation to perform it and to prove that he cited 5 Edw. 4. 19 Hen. 6. 17 Edw. 4. Gawdy The words of the Condition are so that the same Award be given up in writing before such a day and that shall have reference to all the Articles for the Submission was conditionall as 14 Elizab. And after Judgement was given quod quer nihil capiat per billam 15. How against Broom and others A Man leased a House and a Close rendring rent and the Lessor entered into the house and pulled that down and after
say no more now this is no Condition And here all the sense comes in after the words of Covenant and these words are the words of Sir M. B. And for that it seemeth no Condition for if the words had been And it is provided by Sir M. B. there it is clear no Condition But if in a Lease for yeares be words and the Lessee do provide that if the Rent be behind that then the Lessor shall re-enter there I agree that this makes a Conditon And in the case put by my Brother Williams a Lease made provisum est quod non licebit to the Lessor to grant over upon pain of forfeiture there is a good Condition But otherwise it shall be if sub poena forisfacturae were omitted Fenner I think it is a a Condition for all the words put together explain the meaning of the parties as if he had said upon Condition And the Lessee doth Covenant and grant and none will deny but that this is a Conditidition Clinch seemed that it is no Conditon for the words may not be used as a Covenant and allso as a Condition As where a grant is by Deed by words of Dedi concessi confirmavi the Deed may be used as a Grant or confirmation at the Election of the party But it cannot be used in both sorts Popham I think that the Proviso as it is here placed will make a Condition and yet I will agree that a Proviso shall be sometimes taken for a Condition and sometimes for Explanation and sometimes for a Covenant and sometimes for an Exception and sometimes for a Reservation and it is taken for a Condition As if a man Lease Land provided that the Lessee shall not Alien without the Assent of the Lessor sub poena forisfactura here it is a Condition and if I have two Mannors both of them named Dale and I Lease to you my Mannor of Dale Provided that you shall have my Mannor of Dale in the Occupation of I. S. here this Proviso is an Explanation what Mannor you shall have and if a man Lease a house and the Lessee Covenanteth that he will that maintain Provided allwaies that the Lessor is contented to find great Timber here this is a Covenant and if I Lease to you my Messuage in Dale provided that I will have a Chamber my self here this is an Exception of the Chamber and if I make a Lease rendring Rent at such a Feast as I. S. shall name Provided that the Feast of St. Michael shall be one here this Proviso is taken for a Reservation and in our case if the words had been provided allwaies that the Donees shall cut down no Trees and the Lessee doth Covenant he will not fell any here every one will agree that it is a Condition and allso a Covenant And in this case in my opinion this tant amounts Serjeant Williams and Cook Attorney for the Plaintif Atkinson and Tanfield for the Defendant 28. LAssels the Father Sâ—ander brought an Action upon the case against Lassels the Son for words viz. he quendam Thomam Lassels fratrem ejusdem Def. innuend stole a Mare and you innuend querent knowing the same conveyed her into the Fenns to my Brother B. his house Clinch and Gawdy seemed the Action maintainable Fenner econtra 29. A Man was indicted for stealing of a hat and a band and other such things Indictment And the Prisoner said that he was before that time indicted for goods stolen the same day and time and acquitted Gawdy said he may not be severally indicted for goods stolen at one time As if a man steal a dozen of silver spones he may not be indicted for two in one Indictment and for other two in another sic de singulis Clinch accord Fenner Yes truly for it was the case of Thomas Cobham the which was indicted for goods taken in two shipps and acquitted and after condemned for other goods taken at the same time 30. PEarce brought an Action upon the case against Barker Prescription by a Copy-holder and delared how within the Mannor of Dale time out of mind there had been divers Copyholders and during the same time there hath been a usage within the said Mannor That every Copyholder for every Acre of Land shall have Common in such a Wast of the Lords for two Beasts And shewed how the Plaintif is possessed of twenty Acres and by reason of those ought to have Common for forty Beastâ— And there hath the Defendant being Lessee for years of the same Mannor one Conigray within the same Wast by which the Conies have so digged the ground that his Beasts cannot have Common as they were wont to have Fenner A Copyholder may not prescribe but in right of his Lord but now the Lord pro tempore is party to the action and whether this will alter the case or not I doubt Glanvile Albeit the Copyholder may not prescribe but in right of his Lord yet by way of usage as this case is it hath been adjudged that he may make his title 31. A Ruudell was heretofore arraigned upon an Indictment of willfull Murder for the death of one Parker Indictment and was found not guilty of Murder but guilty of Manslaughter for which he pleaded the generall pardon de 35 El. And the Queens Attorney alleged That in the sayd generall pardon there is an exception of all persons being in prison by the commandement of one of the Privy-counsell and said that the sayd Arundell was committed by the Lord Chamberlain for suspition of the sayd Felony and for the same in prison at the time of the Parliament Commitment and so a person exempted To which it was sayd by the Defendant that long time before the sayd Parliament and after the sayd commitment by the Lord Chamberlain there went out of this Court a Corpus eum causa by force of which he was sent into this Court with the cause of his commitment and was for the sayd offence committed by this Court to the Marshalsey and there was remaining at the time of the Parliament by force of the commitment of this Court and it seemed by the better opinion of the Court if a man be committed by a Privy-counsellor and removed by Habeas corpus and committed by this Court he shall be now sayd imprisoned by commitment of this Court and not of the Privy-counsellor 32. STaugnton brings a Writ of Error against Newcomb upon a Judgement given in Debt in the Common-place Error and the first Error assigned was for that the originall Writ was xx l. and all the mean Process were so likewise but when the Defendant appeared to the Exigent the entry was quod defendens obtulit se in placitâ— debitâ— decem librarum where it ought to be xxl. Dodderidge I think it shall be amended for it is the misprision of the Clerk and to prove that he cited 37 Hen. 6. 44. Ed. 3. 18. But upon
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain copyhold-Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
as primo Mar. 100 is Then if the Sherif inquire of one term and sell another as our case is the term sold was never found by our Inquisition and for that the sale not good quod Fenner concessit yet the Lord Popham sayd that if it had been found by the Inquistion generally that he is possessed of such land for term of divers years adhuc ventur which they have prised to such a sum this had been good insomuch as they have not any means to come to the knowledge of the certainty of the term But when by Inquiry a Term in particular is found Que estate refers as well to the estate as to the person they may not vary from that and sell another and he sayd that these words Cujus statum Henrici Fry shall be referred as well to the state precedent found as to the person of Fry And so is the common intendment in pleading of a que estate And he said to Mr. Tanfield that if he had taken any note of their first opinions that he should raze that out of his Book again and after the parties agreed in Court that Hauger should give to Fry 200 Marks more for his term and then Fry should make assurance to him of the term for confirmation of the sale 106. NOta per Cook Attorney Generall Difference between Feoffmenâ— to an use and covenant to raise an use If a man Covenant in consideration of naturall love to his son to stand seised of certain Land to the use of himself for life the Remainder to the same son in Fee with a Proviso that it shall be lawfull for himself to make Leases for 21 years or three lives Now he may not make such Leases notwithstanding this Proviso being by way of Covenant to raise the use And so it hath been resolved Contra Peradventure if it were by way of Feoffment to uses After Mr. Walter said that now lately in one Sharingtons case it was adjudged in this Court upon a Writ of Error That if a man Covenant with his Eldest son in consideration of naturall love A proviso with speciall limitaâ—n good to stand seised to the use of himself for life the remainder to his Eldest Son in tail with Proviso that he himself might make Leases to his second son or to any other of his kindred for 21 years or 3 lives and he made Leases to him accordingly this was holden good for they to whom the Leases are made are within the consideration to wit of the blood and for that the use may well rise to maintain those Leases But if the Proviso had been to make Leases to any man howbeit that after he made Leases by force of that to his second son These Leases are void for they are not within the consideration of the Covenant by Intendment of Law at the first for the Law at the beginning adjudged the Proviso meerly void quod nota 107. RObinson brought Debt upon an Obligation against May Counterbond the Condition was that the Defendant should discharge or save harmless the Plaintif of an Obligation for which the Plaintif as surety with the now Defendant was bound to I. S. The Defendant by way of bar pleaded Vsury that the Obligation made to I. S. by him and the Plaintif was upon a corrupt and usurious bargain and pleaded the Statute of Usury and concluded sic non daâ—â—ificatus It was moved at the bar that this was no plea for the Condition is that the Defendant shall discharge or save harmless c. And the Plaintif was impleaded by I. S. for that debt and hath paid the condemnation Tanfield Contra For if this shall not be allowed for a good plea the Statute of usury will be utterly defeated For by a compact between the surety and the Usurer the surety shall pay the usurer and the surety by that counterbond shall have double recompence against the Principall which will be mischievous But the whole Court held the plea not good sed quare 108. HObbs sued an Audita querela in the Kings Bench against Tedcastle Audita querela for a speciall bail and upon a demurer the case was recited by Moor of the Temple to be this Tedcastle sued a bill of debt in this Court against one Hallaway in Custodia Marescali which found bail the said Hobbs and an another which entred bail according to the common course of bail And after Hallaway was condemned in the said Action and then the said Hallaway died without paying the condemnation or rendring his body to Prison for which a scire facias was sued against the bail and upon two nihils retorned Execution was awarded against them Whereupon they sued this Audita querela supposing that the death of Hallaway hath discharged the bail Moor argued for the Plaintif that the bail ought to be discharged upon the matter for Hallaway had Election to discharge the bail by paying the condemnation or rendring of his body to Prison Now by the Act of God it becomes impossible to perform the one to wit to yield his body to prison And therefore the Law will discharge him of the other and by consequence his bail And that he proved by Arundells case 9 Eliz. 262. 6. 7 Eliz. 231. Sir Edw. Walgraves case Popham Quemodo constat here but that there was convenient time after the Judgement to perform the one or the other Kemp Secondary The course is allwaies here after Judgement to award a Capias against the Defendant and if upon that he do not render himself or pay the condemnation then to sue Execution against the bail and not before but here there was never any Capias awarded against Hallaway the Defendant in his life time Popham Gawdy Fenner This seemeth very reasonable not to sue Execution against the bail untill a default be retorned against the Principall and the recognisance of the bail which is that the Principall shall yield himself c. is intended to be upon Process awarded against him But no Process was awarded against him in his life and now it is impossible that he should yield himself to Prison being dead Iudgement and therefore the bail is discharged And so they awarded Judgement for the Plaintif in the Audita querela 109. MAtures brought an Action of Covenant against Westwood And the case was such Covenant for an assignee of a reversion for years Adams Lessee for 20 years made a Lease for 10 years of the same Land to Bowes by indenture whereby Bowes did Covenant at the end of his Term of ten years to avoid and to leave peaceable possession to Adams his Executors or Assignes Adams granted over his Reversion to Matures the now Plaintif The question is if the Plaintif by the Statute of 32 Hen. 8. cap 34. as Assignee may maintain an Action of Covenant for his Covenant broken or not Nota that this case was moved divers times And first it was moved if
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the