that all such recoveryes shall be void and shall be taken for fained recoveries and this may not be imagined a fained recovery where he in remainder in tail is vouched by him who is Tenant for life Jennings case Coo. 10. and such recovery as is there resolved is out of the Statute of the 14. Eliz. and is good by the Common Law and so in our case but admitting this to be within the Statute of the 11. of H. 7. yet the proviso of the same Statute had made that good for there is an express proviso that a recovery with the assent of the heir inheritable if this appear upon Record this shall not be within the Statute and in our case this is with the assent of the heir inheritable and also this appears to be of record and so the recovery is out of the danger of the Statute of the 11. H. 7. See Doctor and Student a book which was written but a litle time after the making of this Statute and Dyer 89. Vernons case and he said that the intent of the same Statute and of the proviso of the same Statute was to have issues and heirs and not termors who had only a future interest to falsifie recoveries and so he concluded that the recovery is out of the same Statute and that the proviso of the same Statute had made that good by the assent of the heir but admitting this should be against him that this recovery shall be within the Statute yet the lessee in our case shall not falsifie nor take advantage of the forfeiture by force of the same Statute but it hath been objected by Harvy that the wife in this case had only an estate for life or Tenant in tail after possibility of issue extinct and he answered that the resolution in Beamounts case Coo. 119. is contrary for it is there expresly agreed that she was Tenant in tail after the fine leavied by the issue and so was it also resolved in Pophams case 9. Eliz. but there it was doubted whether she was Tenant in tail within the 32. H. 8. who might make a lease but all agreed that she was Tenant in tail who may suffer a recovery and binde the remainder and then when the feme suffers such a recovery as in our case that recovery shall take away a term for years which was made by the issue in tail Mich. 20. Jac. C. P. in the life of his mother notwithstanding she was a joynteress within the 11. H. 7. also he said that this lease for years being made by Henry Mark-Williams the son who was heir to the estate in tail and also to the reversion in fee being made by deed indented rendring rent this shall be a lease which issued out of the estate in fee simple and not out of the estate tail and this shall be out of the estate tail by estoppel being by deed indented for an estate shall not enure partly by way of interest and this lease to begin after the death of the feme he may not take advantage of the forfeiture for though the words of the Statute are that all such recoveries shall be void yet this shall not be void without entry and he who will have benefit by this ought to be mabled to enter presently so soon as the recovery is suffered for as there ought to be a person in esse who shall take benefit of the same Statute as appears by Coo. 3. Lincoln Colledge case so there ought to be a present estate in esse at the time of the recovery for the words of the Statute are to whom the interest shall appertain but in our case the interest doth not appertain to the lessee who had only a future term and therefore he shall not take the benefit by any forfeiture within the Statute of 11. H. 7. and the rather in our case because there is a rent reserved also all this matter is found by special verdict what estate the son haâ— when he made the lease by indenture Dyer 244. Coo. 155. and Bredons case in Treports case lessee for life and he in reversion by indenture let for years this is no estoppel and it shall be said to be the lease of one and the confirmation of the other and here the lease shall be said to issue out of the reversion in fee and not out of the estate tail and he vouched a case adjudged 10. Jac. when Flemming was chief Iustice of the Kings Bench between Errington and Errington and the case was that a man conveyed land to the use of himself and his wife in tail the remainder to his right heirs and had issue a son and a daughter and he died and the son let for years to begin after the death of his Mother and he died without issue and the daughter leavied a fine and the wife who was Tenant in tail died and the question was whether this lease for years issued out of the estate tail by way of estoppel for then the Conusee shall not avoid this but it was adjudged this lease was drawn out of the reversion in fee and the Conusee of the daughter shall avoid that which is all one with our case but admit that this lease is good by estoppel out of the estate taile yet he shall not take benefit of the forfeiture within 11. H. 7. and this differs from Sir George Browns case for there the Conuser entered by vertue of a remainder and not by the estate tail which passed to him by estoppel and upon that he concluded that if this is an estate meerly by estoppel he shall not have benefit by that Pope and Reynolds before NOw the case between Pope and Reynolds which see before was moved again by Ashley for the Plantiff in the prohibition and the case was that he was owner of a Park and the Park had been time beyond memory replenished with deer till the 10th of Eliz. at which time that was disparked and that the owners had used before the disparking to pay a Buck in Summer and a Doe in winter in full satisfaction of all Tithes due to the Vicar and the Parson had libelled in the Ecclesiastical Court for Tithes in kinde and also traversed the prescription and it was found for the Plantiff in the prohibition and it had been moved in arrest of judgement that notwithstanding this prescription is found for the Plantiff yet he shall not have judgement for two causes First because gross Tithes belong to the Parson and not to the Vicar for the Vicaridge is derived out of the Parsonage to this he answered that for the most part every Vicaridge is derived out of the Parsonage but it is a meer non sequitur that this doth for the Vicarage and the Parsonage may have several patrons Fitzh 45. also a Vicarage may be time beyond memory as in our case 40. E. 3. 2. 7. and Fitz. juris utrum a Vicar may have a juris utrum and
that then his two sons shall pay them and if it happen that either of them die before his debts and legacies paid or before either of them do enter into his part that thou the other shall have all the land in fee and after the devisor died and in the life of the mother the eldest son released to the youngest all his right title Claim and demand to the land which was devised to him by his father and after the wife died and two points came in question in this case First whether this limitation is good Secondly whether the release is good and it was argued by Richardson Serjeant that this limitation of the Statute by way of devisee is good and he vouched Dyer 330. Clarks case and 4. Eliz. Goldley and Buckleys case a man devised to his son and his heirs provided that if his personal estate did not suffice to pay his debts and legacies that then his lands shall be to another and he vouched Brown and Pells case which was adjudged in Banco Regis the case was that a man had two sons William the eldest and Thomas the youngest and he devised his lands to Thomas his son and his heirs provided that if Thomas died without issue living that then William shall have the land and it was resolved that this was good to William by way of executory devise and in that case doubt was moved whether if Thomas suffer a recovery whether this shall take away the estate of William and it was holden by all the Court except Doderidg that it shall not but all agreed that this devise upon the future contingency is good and so he concluded that if the youngest son die in the life of the Mother and before the legacies are paid the land shall remain to the Plantiff according to the intent of the devisor but the other doubt is when the Plantiff did release all his right and claim to the other whether this release will extinguish this future possibility and he held that it will not and he said that he had seen the case of Lampet Coo. 10. and there the release of a possibility is penned as in our case and if any word discharge this possibility it is this word right but if the resolution of that book had not been against him he would have argued that this right was not sufficient to extinguish this future possibility but that there ought to be a more apt and proper word but he said he would not argue against books but he said that which he would insist upon was the distinguishing of possibilities for there are two manner of possibilities the one is Common and ordinary the other is more remote and forreigne And first there is a possibility which is Common and necessary and this depends upon an ordinary casualty as a lease for life the remainder to the right heirs of I. S. for it is apparant that the right heirs of I. S. may take by this and such a possibility may be released and a possibility which is remote and forreigne is as if a lease be made for life the remainder to another during the life of the lessee for life or a lease for life the remainder to the Corporation of B. those remainders are void but yet by possibility they may be good for in the first case the Tenant for life may enter into religion and in the latter case the King may make Corporations and yet because such possibilities are not usual the remainders are void see Coo. 2. Chamleys case where such a remote possibility may not be released if a man give land to one which is married and to another woman which is married and to the heirs of their two bodies ingendred this is a good estate tail for there is a common possibility that they may intermarry but if the gift be to a man and to two women who are married and to the heirs of their bodies ingendred they shall not have an estate tail executed for it is a remote and forreigne possibility and an imbrodery of estates which the law will not allow nor respect see the Rector of Chedingtons case that such a possibility as in our case may not be released for first here the mother ought to be dead before the Plantiff shall have land Secondly legacies ought to be paid Thirdly Thomas ought to be dead and till all these possibilities hap the Plantiff shall have nothing in the land and for that it is a remote possibility which is not gone by the release for as it is said when a possibility shall be gone by a release there ought to be a good foundation upon which the release may operate secondly the possibility which is released ought to be necessary and Common but in our case it is not necessary that the son shall enjoy it in the life of his mother and also the mother may in a short time pay the legacies and then neither of the sons shall have the land by which circumstances it is apparant that this is not a Common or an ordinary possibility but is a remote and forraigne expectancy which shall not be gone by this release and this differs from Lampets case for there was a possibility of a Chattel which as it may easily be created so it may easily be destroyed but in our case it is a franktenement which as that requires a greater ceremony in the creation and for that it will require a greater matter to destroy and to extinguish that and it is said in Woods case cited in Shelleys case Coo. 1. that if a man covenant with A. that if I. S. infeoffed him of the Mannor of D. that then he will stand seised to the use of him and his heirs of the Mannor of B. and the Covenantee died and the said I. S. infeoffed the Covenantor in such case the heir shall be inward and yet it is only a possibility which descends which possibility of an use may not be discharged or released and yet in that case there was a possibility which is more Common and ordinary then in our case for there was a possibility that I. S. should make the feofment and so say a good foundation upon which the release may operate and he put the case that I. shall let for so many years as I. S. shall name if I. S. name it is good and yet he held if I. S. release before the nomination that this release is meerly void because he had only a possibility and as to Digs case Coo. 1. there a power of Revocation may be released and good reason for the Covenantor who released had the bird in his own hand and for that it was no remote possibility but there it is said that if the power be limited to an estranger there the stranger may not release and he also agreed Albanies case for there the power to release was upon the death of a man only but in our case it is upon death and other
in capite and others in Soccage and he made a devise of all his fee simple lands and left only his lands in tail to descend to the heir which doth not amount to a full third part this is a good devise of all the fee simple lands and this case was also admitted that where the Lord Norrice gave land to Sir Edward Norrice his youngest son and to the heirs of the bodie of the father and then the Lord Norrice died and after Sir Edward died without issue that the son of the eldest Brother who was then dead shall take that as heir in tail and that he in this case had that by a descent from Sir Edward Norrice his Vncle which also doth clearly prove that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail The residue of Easter Term in the two and twenty year of King James Stephens and Randal IN replevin between Stephens and Randal who made Conusance as Bailiff to the Earl of Bath and he shewed that such land was parcel of such a Chantrey which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute by which the right of others was saved and pleaded all incertain and shewed that so much rent was behinde upon which he made Conusance as c. to which the Plantiff replied that the land is out of the fee and signiorie of the Earl of Bath c. and this was ruled to be no plea for he confessed so much in his avoury and this avoury is not for rent service for the signiorie is extinct by act of Parliament but this is for rent reserved by the saving of the act of Parliament and this is a rent seek and yet is destrainable for the priviledge which was before but he may traverse the tenure that at the time of the making of the Statute nor never after this was holden of the said Earl of Bath Priest and King Priest and King in an action of which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Prothonotaries and the case was that two were bound for the appearance of an other and judgement was given against the debtor now if upon the capias he come and offer his bodie and the Plantiff refuse that yet that discharges the sureties but the Prothonotaries said that notwithstanding this refusal he may take a Capias against him within the year because that at the first he might have had a fierie facias or an elegit quere of that but Winch thought that in this case he ought to have a fierie facias but if he had come upon the Capias and had no suerâ—tes and he refuse to take him and this is so entred now quere if he had not discharged him Hendon moved the Court for a prohibition to the spiritual Court and suggested that one had libeld in the spiritual Court for a legacie and the Executor shewed that he had not assets to discharge the debts of the Testator and that Court would not allow this allegation and upon this he prayed to have a prohibition and it was the opinion of the Court that no prohibition shall be granted for the legacie is a thing meerly which is determinable in the spiritual Court and no other Court may have Conusance of that and this is also a thing which doth consist meerly in the discretion of the Court and resolved that in a thing which meerly doth rest in discretion of the Court in this case no prohibition shall be granted Henry Good against Thomas Good IT was agreed in the case by the Court between Henry Good and Thomas Good that if the devisee of 500. l. sue in the Marches of Wales for this legacie that a prohibition is grantable for though the Court of the Common pleas had no power to hold plea of that yet because that the thing is only triable in the Ecclesiastical Court a prohibition may be granted to reduce that to its proper Court and though the instruction of the Court of the Marches be to hold plea of all such things wheresoever there is no remedie at the Common Law yet this is to be understood of matters of equitie and not to take the jurisdiction from the spiritual Court for in verity the King may not do that by his Letters pattents but yet the Court agreed that if the Executor do suffer a decree against him in the Court of the Marches and not come to them at the first to be releived it is now meerly in the descretion of the Court whether they will grant that or no for that is a means to lengthen suits and to make the more delay before he do recover his legacie If a Capias ut legatum issueth to the Sheriff to take the partie and to enquire what lands and Tenements he had and the Sheriff findes by inquisition that he is seised of many lands and continues possession in them and the Sheriff do out me I shall have an action of trespass John Marriots case SErjeant Crawley moved this case in arrest of judgement in the case of Iohn Marriot and he declared upon a contract to table with the Plantiff at Ashton in Northamptonshire ad tunc ibidem superse assumpsit to pay 4. s. by the week for his diet and Crawley moved that this ought to have bin tried in Northamptonshire for these words ad tunc et ibident refer to Northamptonshire which was next before and not to London Hutton said that it ought to refer to London otherwise it was idle and it is to be intended of the time and the place where the promise was made but it was said if the issue had been whether he was tabled or no this shall be tried there Giles Bray against Sir Paul Tracie GIles Bray brought an action of waste against Sir Paul Tracie and in his declaration he conveyed a good tearm to the Defendant and a reversion to himself and upon a general issue a special verdict was found to this effect that Sir Edmund Bray was seised of this land in his demeasne as of fee and he being so seised 16. Eliz. made this lease for divers years to I. S. and he being so seised of the reversion conveyed that to the use of himself for life without impeachment of waste and then to the use of Edward Bray his eldest son and to Dorothie his wife and to the heirs males of the said Edward upon the said Dorothie to be ingendred and then Edward died having issue in tail the Plantiff and then this lease was assigned to Tracie and then Dorothie died and then the waste was committed and then Edmund the Grandfather died and the question was whether in this case an action of waste will lie or no. The argument of Serjeant Harris HArris argued that the waste doth lie for the priviledge or despensation which was annexed to the
and died by whose death the Church became void the which was the first and the next avoydance after the grant and Harcourt presented Cardon and that the said Arthur Basset so being seised in fee 18. Octobris 17. Eliz. by his will in writing devised to Iohn Basset his son the first and next avoydance of the Church aforesaid which first and next avoydance hapned after the death of the said Arthur Basset and that the said Iohn Basset was possessed of the said next avoydance and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland and he being so Elect the Queen by her letters 37. of her Raign considering the smalness of the said Bishoprick that it was not able to maintain him in his episcopal dignitie ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect that he with the said Bishoprick the rectory of Tedbome in comendum ad huc recepire et fructus de c. in usus suos convertere disponere et applicare valeat et possit habendum that in Comendam for 6. years and within the 6. years he was consecrated and after the Term of the 6. years the Church became void per legis Anglie and that the Queen by her prerogative presented one Bee who was admitted instituted and inducted and the Plantiff conveyed from Iohn Basset his title by his grant of the next avoydance and shewed that the said Church became void by the death of Gee and that the vacation by the death of Gee is the next avoydance after the death of Arthur Basset by reason whereof the Plantiff presented and was disturbed and upon his decla ration Edwards the patron demurred and the Bishop claimed nothing but as ordinary and Manering pleaded and confessed the seisin of Arthur Basset and the grant to Manwood and the presentation by Harcourt of Chardon and the devise to Iohn Basset but he shewed that after the death of Arthur Basset the Acre to which the advowson is appendant descended to Thomas Basset as c. and he being so seised the Church became void by the death of Chardon who had the next avoydance after the death of Arthur Basset and that this remained void by 2. years after his death by which the Queen presented by Lapse the said Gee who was admitted c. and Thomas Basset conveyed that to Edwards and that became void by the death of Gee and that he presented the said Mannering c. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoydance after the death of Arthur Basset as the Plantiff had alleadged and upon this bar the Plantiff demurred and it was argued by the Councel of both sides on several dayes and in Michaelmas Term ensuing it was argued by the Court but because that Harvey was newly made Iustice he did not argue the case but Iustice Hutton began The argument of Justice Hutton ANd Iustice Hutton after a recital of the case said that his opinion was that the Plantiff should be barred and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop Secondly admit that he had title whether he had dispensed with that and by his dispensation he had satisfied his prerogative Thirdly admit that the King had title and that this was not satisfied with the Commendam whether the grantee had lost his turn and as to the first point it ought to be agreed that when a parson is made a Bishop that he is discharged of the Church by the Common Law and so is the 45. Edw. 3. 5. and Dyer 159. petit Broo. 116. and this is an avoydance by Cession and for any thing that I see in our books the King had not any title to present except that he himself was patâ—on but because that did not happen fully in question here I will not deliver any opinion but I will say what our antient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop and the tithe which the King had to present was by reason that the temporalities of the Bishoprick of which he was prebend was in his hands and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor who had that in presentation but our Common Law doth not warrant any such thing and then for the second point whether the King had dispenced with his prerogative and in the first place we are to know that these Commendams were at the first but to see the cure served and by the opinion of Pollard the ordinary is to see the cure served though that be charged with such rents that none would have it and for that Commendams were at the first good but now if the King had title then that began per the consecration otherwise he shall never have it and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it and hereby his grant to hold that in Commendam he had dispenced with this prerogative and if this had been granted to him for his life none will deny but that he had dispenced with his prerogative and shall never take advantage of that again afterwards and no more in this case for he is incumbent to all intents and purposes for Fitz N B. 36. he may have a Spoliation and yet in this case he is parson and Bishop and now that the King may dispence with that it is not to be doubted and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land and heir of his Tenant if he died his heir being within age and this grant was to Cantrel and it was agreed to be good and Wardship is as Royal an antient perrogative as any appertains to the Crown and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishoprick before it is void which in my opinion is Cosen German to our case out of which book I conclude the King may dispence and by the dispensation he is full parson and this is for his life for the King may not make him incumbent except it be for life like to the case of Dyer fo 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson and agreed that this shall stretch to the whole time and no better case may be put then the case of Packhurst in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich but before he was created Bishop he had a dispensation from the Arch-Bishop to retain that in Commendam for 3.
covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not
a legal signification it shall not be taken but in the better sense for the small pox but Warberton said that if one say of another that he is laid of the pox an action lyes for it is intended the french pox and Winch said that those actions of slander were known to law but of late times and for that 26. H. 8. it was thought that an action would not lye for calling another thief and in the principal case judgement was commanded to be entered quod Querens capiat nihil per brevem suum and note that I saw Hobert shew presidents to Winch in a paper which were delivered to him by the Plantiff and drawn by his Councel and he said to Winch that by those it seemed that in the Kings Bench they made a difference between for and and as had been said before and he marvailed much at that In a Capias Ulagatum before judgement the Sherif returned that I. S. and I. N. rescoused the party c. and Attoe moved that the retorn was not good for there ought to be additions by which they may be sued to the outlawry but Hobert and the Court hold this to be good without addition for no statute nor book will compel the Sheriff to give additions in this case And it was said that if the Sheriff in this case retorn that the party himself simul cum I. S. and I. N. made the rescouse that this is not good but in the principal case it was ruled that the return was good and the rescousers which were present were committed to the fleet Homan and Hull were rescousers Vpon the reading of the record the case was that an executor brought an action against one upon a promise made to the Testator in which the executor was nonsuite and 3. l. costs given against him and the Defendant bruught an action of debt upon that recovery against the executors and upon this it was demurred in law and Serjeant Towse said that there are two causes of the demurrer first whether the Defendant shall be charged as executor and is not named executor and secondly whether upon the nonsuite of an executor the Defendant shall have costs by the statute of the 23. H. 8. Hobert chief Iustice said to him you say well Note that it was said by Hobert chief Iustice that if a man dies intestate and he to whom the Administration appertaines is sued by others which pretend to be Administrators and sentence is given against the right Administrator and costs given against him the costs shall not be of the proper goods of the Administrator but of the goods of the intestate as the costs which are spent in the spiritual Court for the provate of a Testament shall be only of the goods of the Testator Hutton if the Legatee sue in the spiritual Court for a Legacy and recovers the costs which he shall recover shall not be of his own goods but of the goods of the Testator and no prohibition shall be granted for any such sentence given in the spiritual Court Hobert to the contrary for if by such means the goods of the Testator are so wasted that the debts and legacies of the Testator may not be discharged a prohibition shall be granted and in every case where the sentence in the spiritual Court crosseth the common law a prohibition lyes and he said that in the case of one Barrow in this Court it was his opinion and the opinion of the rest of the judges that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies that in this case the ordinary had not power to dispose of the rest of the goods to the children of the intestate but they shall remain to the Administrator and that by the very intention of the Statute of 21. H. 8. but Hendon said that he could shew a president of that and the Court desired that they might see that if any such president were LLewellings case VPon the reading of a Record in the case of LLewelling the condition of the obligation was that the obligor should surrender his Copihold land to the use of the obligee and he pleaded that he had surrendered that and upon that plea the Plantiff demurred and it was adjudged upon the opening of the case by Warberton and Hutton being only present in the Court that judgement shall be given for the Plantiff for the plea in barre is not good because the Defendant had not shewed when the Court of the Lord was holden Duncombe against the Vniversity of Oxford In a Qu. Impedit in which Duncombe and others were Plantiffs who were grantees of the King against the University of Oxford and the case was Hill 18. Jac. that Sir Richard weston was seised of an advowson in grosse inter alia and was convict of recusancy and a Commission issued to seise two parts of his land and goods and they seised this advowson inter alia and the King granted the advowson to the Plantiffs and the Church became void and they presented and were disturbed by the University of Oxford and their Clark upon which they brought a Qu. Impedit upon which a demurrer was joyned and Serjeant Iones argued for the Plantiff and there was two points in the case first whether an advowson in grosse is given to the King by the Statute of the 28. of Eliz. and the Statute is that the King shall seise the lands tenements hereditaments of such a recusant convict and whether by the same statute an advowson in grosse shall be seised and he held that it shall for though perchance the word lands and Tenements will not carry that being an advowson in grosse yet this word hereditament will carry it to the King by force of the Satute for it appears by dyer 350. that if the King grant an advowson by the name of an hereditament that in this case this will pass the advowson and for that Coke 10. Whistlers case the King by the grant an of hereditament grants an advowson by such words to a common person then by the same reason a common person may grant that to the King by the same words but it may be objected that because an advowson in grosse is not valuable therefore it is not given to the King and upon this doubt upon the Statute of Wills â— H. 8. the question was whether an advowson was devisable by the name de bonis et Cattallis fellon Butler and Bakers case that they are not devisable for it is not valuable but the 4th Iac. between Taverner and Gooch which case may be seen in the new book of entries that an advowson was devisable before the Statute 5. H. 7. 37. it shall be assets 9. H. 6. 55. recovery in value lyes of that but admit that this is only a thing of pleasure for the advancement of a friend yet that shall be given by the Statute to the King But the second
objection is that though it is given to the King yet it is not extendable upon the Statute by the Commissioners for answer to that see Sir Christopher Hattons case 13. Eliz. cap. 4. upon the Statute of H. 8. which saith if a man be indebted to the King all his lands and Tenements shall be extended for this and it was ruled that an advowson was extendible for the debts of the King and more is given to the King by the Statute of the third of Iaco. then was by the 28. Eliz. for by the 28. of Eliz. the King may not seise the land but upon default of payment of 20. l. by the month but by the Statute of the third Iaco. he may seise presently and no election is given to the party secondly by the Statute 28. Eliz. the seisure of the King was only in the nature of distress for the payment of money but by the Statute of 3. Iac. the King had election to seise to satisfie himself and he may refuse to be satisfied at his pleasure and so the Statute which gives this to the Vniversity doth not take away the title of the King and upon that he concluded and prayed judgement for the Plantiffs Harris Serjeant to the contrary the Statute of 3. Iaco. is the only subject of the doubt and the first branch disables the recusant to present secondly it makes the present action void thirdly after conviction the Vniversity shall present and this in verity is that upon which the doubt is founded and upon that branch he conceived that the King had concluded himself to present to the church of the recusant for he being party himself to that act of Parliament he had dismissed himself of all right and Fortescue in laudibus legum Angliae non sunt ad voluntatem principis sed ad voluntatem totius Regni id est the Statutes of England are not at the will and pleasure of the King but at the will of the whole Kingdome Doctor and Stud. agreed and 14. H. 8. Fo. 7. E. 6. Mounson and the case of Alton woods if the saving of an act of Parliament be repugnant it is void and so upon those cases he inferred that the King being party to every act of Parliament he is bound by that and had dispossessed himself of the advowson by the Statute of the 3. of Iaco. which had given that to the Vniversity and had abrogated the power of the King to seise the advowson by vertue of the act of 28. of Eliz. for otherwise this Statute which gives that to the Vniversity shall bee meerly void and Statutes which are repugnant to former lawes take them away and do not confirme them and though the Statute of the 3. of Iaco. is in the affirmative yet that hath taken away the force of the Statute of the 28. Eliz. but it may be objected that before the recusant is convict the King had but a possibility and then by the Statute of the 3. Iac. the King had not dismissed himself of that which in judgement of the law is but a meer possibility and by consequence because he had nothing at the time of the making of the Statute but a possibility he had not given that over by the same Statute to the Vniversity to this he answered that the King may well give a possibility and a future thing as 9. H. 6. 62. 24. E. 3. 24. 30. E. Eliz. Treshams case and so he concluded because that this is given to the Vniversity by act of Parliament the King being party he had dismissed himself and the 3. Iaco. repeals 28. Eliz. as to that purpose and so he prayed judgement upon the whole matter for the Defendants And it was said by Hobert chief Iustice that this is indeed a case of great weight and importance and the Court agreed that the Statute of the 3. Iacobi gave only a power to the Vniversity of Oxford and not an interest but day was given over to argue this again the next Term. Sir George Savil against Thornton SIr George Savil declared that he was seised in fee and in gross of such a Church and that he presented I. S. his Clark who died and that he presented another and was disturbed by Thornton the incumbent the Defendant pleaded that a long time before the Plantiff had any thing in that the Pryor of D. was seised of the advowson and he being seised such a day granted the next avoydance to one Golding and that the advowson and the Priory came to the hands of H. 8. by the Statute of 31. H. 8. by force of which H. 8. was seised and afterwards the church became void and the executor of Golding who was grantee of the next avoidance presented his Clark who was admitted accordingly and afterwards he died that H. 8. died seised of the advowson which discended to E. 6. and so to Queen Mary and from her to Queen Eliz. who was seised in the right of the Crown and she being so seised granted the next avoidance to one Buckley her Clark who was admitted instituted and inducted after which Queen Eliz. died and the advowson discended to King Iames and in the 7th year of his raign the Church became void and he presented the Defendant the Plantiff by way of protestation said that Queen Mary was never seised nor died seised and by protestation that Queen Eliz. was never seised so that this might discend to King Iames and for plea said that well and true it is that H. 8. was seised and died seised so that this discended to E. 6. and that E. 6. such a year of his raigne granted that to Wyat and his wife in fee who granted that to the Plantiff and that Queen Eliz. presented L. only absque hoc that E. 6. died seised upon that it was demurred in law and he shewed the cause of his demurrer first because the protestations which he had taken in his replication are not good secondly the traverse is not good And it was argued for the Defendant by Bawtry Serjeant that the replication is not good because he had taken that by protestation which is traversable see the principal case of Gresbrook and Fox and see the 22. H. 6. and then for the traverse he held that to be naught First because he had traversed that which was but a mean conveyance Secondly he had traversed that which he had confessed and avoided and thirdly he had not traversed that which he ought not to have traversed and for the first it is put regularly in our books that a mean conveyance shall not be traversed and the descent here from E. 6. is but a mean conveyance and the substance is the presentation of Queen Eliz. and that ought to be traversed 17. H. 7. 2. the Prior of Tower Hills case there it said if in Assise the Tenant plead that the Plantiff was seised who infeoffed one B. who infeoffed C. who enfeoffed the Tenant that it is no
plea for the Plantiff to say that he was seised till the Defendant disseised him absque hoc that C. enfeoffed him and for that reason he ought to traverse the feofment made by B. for the other was but a mean conveyance see Dyer 107. in Trespass the Defendant conveyed to the donee by 5. or 6. discents by dying seised of the estate taile in every of them the Plantiff confessed the intaile and conveyed to him by feofment made by the heir of the donee which was a discontinuance and took traverse to the dying seised of the same feoffor and ruled to bee evil for he ought to traverse the most antient discent 43. H. 3. 7. Secondly it is evil because he had confessed the seisin of E. 6. and the grant by the same King to Wyat and so had confessed and avoyded the seisin of the same King and then the Law will not suppose that E. 6. purchased that again and for that the traverse of his dying seised is evil when he had sufficiently confessed and avoided that before as Dyer 336. in Vernons case a discent was pleaded to the heire from his ancestor the other party said that the ancestor devised that to him absque hoc that this discended to him as son and heire and ruled to be evil for a traverse needs not when he had confessed and avoyded that before Vide 14. H. 8. Sir William Meerings case 26. H. 8. 4. by Fithzherbert but Brook in the abridgement of the same case said that if the traverse is evil then he had waved the plea before and all was evil 7. E. 4. by Littleton for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown and then the traverse being evil he had waved the former plea which was good without traverse and this seisin in the Crown is not answered but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage 20. E. 4. 5. 35. H. 6. 32. Serjeant Iones to the contrary and as to that which hath been said that the presentment is alleaged to be in jure coronae and the confessing the presentment is a plea by way of argument to which he answered that the record is not so but the seisin of the advowson is alleadged by discent to Elizabeth Queen by force of which she was seised in jure coronae and Iones argued that the traverse is good for every plea in barre ought either to be traversed and denied or confessed and avoided and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge and seisin was alleadged in the grantor of the land in fee and the Plantiff said he was seised in taile he ought to traverse that he was seised in fee and a good traverse Hill 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge and the other confessed that he was seised in fee and that a long time before he enfeoffed one I. S. there he ought to traverse that he was seised at the time of the grant see the new book of Entryes Tavener and Gooches case in a Qu. Impedit And a note by the Lord Cooke also he said that after the grant there may be an usurpation and so the dying seised in the case of an advowson in gross ought to be traversed â—e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said against the protestations he answered it ought to be traversed and for that the rest ought to be taken by protestation and in some cases the conveyance is traversable see Cromwels and Andrews case And so he concluded and prayed judgement for the Plantiff Note that he said that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester that two usurpations gaine the advowson from the King And the reason was because the King by an usurpation may gaine an advowson in him out of a Common person and if the King Vsurpe and the right patron present he is remitted Hobert by such usurpation the possession is gained from the King but not the right and note that upon the argument in the principal case by Bawtry and Iones it was ruled by Hobert Warberton and Hutton that if the Defendant do not shew better cause by such a day judgement shall be given against him and Hutton said that he had studied the case and found no doubt but that the traverse is good Winch was absent in the Chancery M. 19. Iac. C. P. IT was moved for a prohibition by Harris Serjeant to the Court of Audience because that the Plantiff was sued there for saying to one thou art a Common Quean and a base Quean and Harris said that a prohibition had been granted in this Court for saying to one that she was a piperly Queen and it was the case of Man against Hucksler and Finch said though the words are not actionable in our Law they are punishable in the spiritual Court for the word Quean in their Law implies as much as whore but Hobert said that this word Quean is not a word of any certain sense and is to all intents and purposes and individuum Vagum and so in certain see more after Note that it was said by Justice Warberton that it was adjudged in the case of one Ablaine of Lincolns Inne that if a man made a lease for years rendering rent and the lessee or a stranger promise upon good consideration to pay the rent that in this case no action upon the case will lye for it is a rent and is a real thing and Hutton Justice being only present agreed this was upon the motion of Finch Serjeant Mic. 43. Eliz. in the Kings Bench in an action upon the case he declared how he let certain land to the Defendant for years in consideration of which the Defendant promised to pay him for the farm aforesaid 20. l. and Hitcham moved that the action will not lye because it appears to be for a rent for which an action of debt lyes but by Gaudy Fenner and Clench it is not a rent but a summe in gross and for that reason because he promised to pay that in the consideration of a lease cleerly an action upon the case lyes but Sir John Walter replyed that a writ of error was brought of this case of Simcocks in the exchequer chamber and the matter in law was assigned for error and it was ruled that no action upon the case will lye for Walmsley said this was a rent for of necessity there ought to be supposed a commutation between the lessor and lessee and that the lessor demanded of the lessee how much he would give for that and then he answered 20. l. this made an entire contract and for that reason an action of debt lyes and not an action upon the case and Savil and
simple shall alwayes be supposed to have continuance if the contrary is not shewed to that he answered that is not so for the book of the 7. H. 7. 8. if in barre of assise the Tenant said that I. S. was seised and gave this is not good because he had not shewed quod fit seisitus existens dedit c. which being in a plea in barre is more strong then in a declaration to prove that a fee shall not be intended to have continuance without an express allegation and so he concluded that the declaration is naught but by Hobert Winch and Hutton it is very good notwithstanding this objection and Winch cited the 13. Eliz. in Ejectione firme where the life of the person was not cleerly alleadged but the declaration only was that the lessor was and yet is seised which was a sufficient averment of the life of the person and so the declaration is good and another exception was taken to the declaration by Hitcham Serjeant because that the Plantiff had declared that the Defendant had made conney borroughs and with the aforesaid conneys had eat up the grass where he had not alleadged any storeing of the coney borroughs before with coneys and then it is impossible they should eat up the grass to the prejudice of the Plantiff but to this it was answered by Serjeant Attoe that though the declaration as to that is naught yet the diging of the coney borroughs is to his prejudice and sufficient to maintaine the action which the Court granted and as to the matter in law Attoe argued for the Plantiff and recited the case to be that E. 3. granted to the Deane and Chapter of Windsor that they shall have free warren in the lands which yet they had not purchased and of which they were not seised at the time whether this is a good grant and shall extend to take effect after the purchase see Buckleys case and be argued that it is not a good grant and he put a difference between a warren and other priviledges which are flowers of the Crown which may be granted infuturo but a warren never was a flower of the Crown and for that reason a grant de bonis et cattallis fellon et fugitivorum may be granted and yet not be in esse at the time of the grant for it is a flower of the Crown and it is said 44. E. 3. 12. that the King may not grant a warren in other mens lands but only in the land of the grantee and upon this he concluded that this grant shall not extend to land after purchased and the rather because it is in the nature of a licence which shall be taken strictly see 21. H. 7. 1. 6. And Hobert chief Iustice said that this word demeans is derived of the French words en son manies and though the Lord of the mannor had the waste in his hands yet he had not the common and as to the confirmation by Ed. 4. they all agreed that this will confirm nothing to him but what was granted by E. 3. himself and then as to the licence pleaded that is of no effect for first the licence is pleaded to be made to one Sir Cha. Haydon and the Defendant did claime under him and this licence was made by the father which will not binde the son who had the land to which the common is appendant after the death of his father for a common may not be extinguished without deed and Hobert and all the Court agreed that the licence of the father will not binde the son and by the Court if nothing is shewed to the contrary within a week judgement shall be given for the Plantiff Davies against Turner DAvies brought a replevin against Turner and he declared of the taking in a place called the Holmes and the Defendant made conusance as bayliff to Sir George Bing for that one Clap held certain land of him by 20. s. rent and suite of Court and for the rent he avowed and alleadged seisin by the hands of Clap the Plantiff said that Chap held 40. acres of land by 9. s. rent fealty and suite of Court absque hoc that he held modo et forma and upon this it was demurred and the single point was this in auowry the Tenant alleadged c. and the question is whether he ought to traverse the tenure or the seisin and it was argued by Henden Serjeant that he ought to traverse the seisin and that the traverse of the tenure is not good and besides here is double matter for the conclusion sounds in barre of the avowry and in abatement of the avowry see a good case 18. H. 6. 6. for the falsness of the quantity of the land and the falsness of the quantity of rent the on goes in barre the other in abatement of the avowry 47. E. 3. 79. 5. H. 6. 4. and affirmed for good law And as to the second point he held the seisin to be traversable and not the tenure and first he said there was a difference between pleading in barre of avowry and in the abatement of the avowry for in barre of the avowry there the seisin is is not traversable by Frowick 21. H. 7. 73. which opinion he held for good law for it is agreed in Bucknels case Co. 9. he may not say that he held of a stranger absque hoc that the avowant was seised but otherwise it is when that goes in abatement of the avowry Secondly he said that the seisin is the principal thing and the principal thing ought to be traversed for if a man had seisin of many services seisin shall never be ayded till the Stat. of magna charta see Bucknels case Cook 9. and here the seisin is the most meterial thing and the most proper see 37. H. 6. Bro. Avowry 76. ne tiendra is no plea for a stranger to the avowry but he ought to answer to the seisin Thirdly the cause for which the seisin is traversable see a notable case per Danby 7. E. 4. 29. for the beginning of the services may be time beyond memory c. and for that reason may not be tried see 20. E. 4. 17. 22. H. 6. 3. 26. H. 6. 25. by Newton he may traverse the tenure Attoe contrary 13. H. 7. 25. to this it was answered that the number Rolle may not be found 5. H. 7. 4. 13. H. 6. 21. 21. H. 7. 22. by Frowick and Kingsmil Harvey to the contrary the case was that the Defendant made conusance as Bayliff to Sir George Bing for this that Chap held a messuage c. by certain rent and by suite of Court and the other said that he held 40. acres by 9. s. and suite of Court absque hoc that he held the messuage and the land modo et forma and he argued that it was a good traverse of the tenure and not double which was granted by Hobert and by Winch being only present and Hobert said true
of the obligation and so had disabled himself afterwards and the obligor is bound that a fine shall be leavied this is to be understood of a good and a lawfull fine and not a fine in name only and he put the case that I let for years and after Covenant to make a feofment to I. S. this lease for years is a breach of the Condition though at the time of the Covenant made the lease for years was made Iustice Winch thought the contrary for this disability is by the act of a stranger and for that the obligor may not take any certain notice of that and therefore if I am obliged to you that I. S. shall enfeoffe you of his Mannor and at the time I. S. had made a feoffement of two or three acres of the same Mannor yet if he enfeoffe you of that which he was seised at the time of the obligation this is a good performance of the Condition though that 2. or 3. acres were disjoyned from that before and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made this is sufficient upon which he concluded that the Plantiff shall not have judgement but afterward judgement was commanded to be entered for the Plantiff according to the opinion of Hobert and Hutton Hoels case HOels case upon a special verdict was to this effect a man was seised of 2. acres of land in fee and had 2. sones and he devised both the acres to his wife for life the remainder of one acre to his eldest son in fee the remainder of the other acre to his youngest son in fee upon this condition in manner and form following if either of my sonnes die before my depts and legacies are paid or before either of my sonnes enter into their part that then the longest liver shall have both parts to him and to his heires in fee and the devisor died and Hoel the Plantiff being the eldest sonne in the life of his mother released all his interest and his demand in this to his younger brother and the doubt was whether this condition was gone by this release and Attoe argued that it was gone for Littleton saith that every land may be charged one way or other see Anne Mayowes case Release Coo. 1. Albaines case power of revocation released see more of this afterwards Trin. 20. Jac. C. P. Whitgift aganist Sir Francis Barrington IN Replevin the Defendant avowed as Baliff to Sir Francis Barrington and that Whitgift the Plantiff held certaine land of Sir Francis Barrington by escuage et quendam reditum and that the said Sir Francis was seised by the hands of Whitgift his very Tenant and for homage he avowed and upon this the Plaintiff demurred first because he had avowed for homage and had not shewed how nor in what manner the homage is due whether in respect that the tenancy come to him by discent or by purchase and for that this general allegation is naught for by Hendon Serjeant all the presidents in such avowryes made mention of the title to the homage as 4. E. 4. in avowry for homage the tenure is shewed and a discent alleadged or a purchase of the land and in no book or in any president that he ever yet saw did he see such a general allegation in avowry for homage but he agreeth the book of the 44. E. 3. 42. if the avowry is upon tenant by the curtesie this general allegation is good but otherwise of a tenant in fee simple and for that he alledged the second E. 3. avowry in a replevin the Bishop avowed for homage due by the Plantiff and exception was taken because it was not shewed in whose time the death of the ancestor was whether in his own time or the time of his predecessor and ruled to be evill for his avowry being his title he ought to shew that in certaine and so in our case Hobert this case doth not prove our case for in our case prima facie it is certain to all intents and purposes and I cannot see how an avowry may be better made and Finch at the barre vouched a president in the book of entries title horse de son fee secondly where such a avowry as in our case is made and then Hendon moved that the avowrie is not good for he had shewed the tenure by homage and by escuage and rent de quo quidem redditu he was seised c. and this is also repugnant for when he said that he was seised of the rent by the hands of the Plaintiff this is a seisin of the homage as Bevils case is and then by his own shewing because the seisin of the rent is a seisin of the homage he shall not have the homage of the Plantiff Thirdly admitting this point against him and that the seisin of the rent is not seisin of the homage yet the pleading is not good for when he expresly alleadged seisin of the rent in this manner de quo quidem redditu he was seised this excluded the seisin of any other services but only of the rent which is expresly alleadged and therefore in our case he ought to have alleadged generally de quibus serviciis he was seised and to leave this to the construction of the Law and he vouched 13. H. 7. 31. Serjeant Harvy to the same intent for though perchance no good reason may be given wherefore the pleading shall be such and that the seisin of the homage ought to be expressed yet because all the presidents are so the course of pleading shall not be altered and all the presidents shew a seisin of the homage see the book of entries 597. and 598. Serjeant â—owse to the contrary the book of the 19. E. 2. Recovery 224. is that the alleadging of the seisin or escuage as in our case of tent is a sufficient avowry for homage and 29. H. 3. such an allegation of the seisin of rent was made in avowry for fealty and good Hutton if the book of the 19. E. 12. be as Towse had alleadged it is all one with our case Hobert seems the avoury is good notwithstanding this last exception for perchance he was not actually seised of the homage by the hands of the Tenant himself and then by his own shewing his avowry shall abate and he demanded of Brownlow if there were any such president of an avowry who answered no. Hobert if the continual pleading be as my brother Harvy had alleadged we will not alter the course of pleading but in my opinion in reason none may plead in better manner or form and Hutton being only present agreed and then Hobert commanded the presidents to be searched concerning that matter and Finch at the barre being of Councel with the avowant said that till the resolution in Bevils case it was a great question whether the seisin of the rent was the
seisin of the homage and therefore perchance it will be hard to finde my antient president they adjourned and at another day Hutton and Winch being only present judgement was given for the avowant against Whitgift and Hutton said that he had spoke with the other Iustices and they agreed Vpon a motion made by Towse the case was this a man made a lease for one year and so from year to year during the Will of the lessor and lessee rendring rent and the lessee died and the rent was behinde and by Winch being only present if the rent is behinde in the time of the lessee and he dies an action of debt is maintainable against his Executor in the detinâ—t only and so I conceive if that was behinde after his death he may have an action in the debt and the detinet or in the detinet only to which Brownlow agreed Secondly Winch said that when a man made a lease for a year and so from year to year at the pleasure of the parties that this is a lease for 3. years and not for two Thirdly he doubted if the lessee hold over his term so that he is tenant at sufferance what remedy the lessor had for his rent Vpon the reading of a record the case was that a Scire facias issued against the land Tenant to have execution of a judgement given against Ferdinando Earl of Darby in the 15. Eliz. and the Defendant pleaded that a long time before the said Ferdinando any thing had in the land one Edward Earl of Darby was seised of the land and being so seised 3. Mar. infeoffed I. S. to the use of the Lord Strange and his wife in tail the remainder over to the said Ferdinando and made the said Ferdinando heire to the estate taâ—le and pretended that by this meanes the land should not be liable to this judgement because it was intailed to Ferdinando and of such estate he died seised the Plantiff traversed the feofment made by Edw. Earl of Darby and the jury found that the feofment was made by Edward Earl of Darby to the same persons as the Defendant had pleaded but this was to the use of the feoffor for life the remainder over to the Lord Strange and his wife the remainder as before and whether this shall be intended the same Feofment which the Defendant had pleaded was the question because the estate for life was omitted and upon the special verdict that was the question and Attoe said that if the jury had found this feofment made to other feoffees though the estate had agreed this should be found against the Defendant and Winch Iustice said that there was such estate found as had taken away the execution or extent and the estate for life is not material but it was adjourned till another day A man Covenanted to make such assurance as shall be devised by the counsel of the Plantiff so the same assurance be made within the county of Norff. or the Citty of Norwich and the Plantiff assigned the breach and shewed that in this case his Councel devised that a fine should be leavied of the same land which was not done and it was moved by Serjeant Attoe that in this case the breach was not well laid because he had not shewed where his councel devised that the fine should be leavied In the case of a prohibition in case of a libel in the Ecclesiastical Court for the tithes of Cattles the Plantiff alleadged that those Cattle of which Tithes were demanded are for his Dairy and for the plough and Winch being only present said that the parson shall not have Tithes of such Cattle but if he bred up Cattle to sell it is otherwise secondly the Plantiff in the prohibition alleadged that time beyond memory the parishoners had paid a half peny for the Tithe of a Calf and a penny for a Cow and that upon a day limitted they use to bring this to the Church and to pay this to the Vicar and now the Vicar had libelled in the spiritual Court against them to compel them to bring it home to his house and Winch said that this is no occasion of a prohibition for they agree in the modus but vary in the place of payment and this is not matter of substance and for that reason no prohibition will lie Vpon the reading of a record the case was that the father made a feofment to the use of himself for life the remainder to his son and his wife and to the heires of the body of the son and this was for a joynture for his wife and the father died and the son also died and whether this was a good joynture was the question for all this matter was pleaded in barre of dower brought by the wife and it was ruled to be no good joynture for the feme notwithstanding that the father died in the life of his son and Hutton said if a man made a feofment to the use of himself for life the remainder to his Executors for years the remainder to his wife for a joynture this will be no good joynture within the Statute of joyntures though the feme here had the immediate franktenement In an action of debt against an Administrator who pleads outlawry in the Testator and it was moved that this was no plea for he had taken the Administration upon him Winch a man who is outlawed may not make an executor for if he meet with his goods he shall answer for them to the King and for that reason it seems to be a good plea 3. H. 6. 32. and Brownlow chief Prothonotary said that he could shew a president 27. Eliz. where this is adjudged to be no plea and Iustice Winch said to him shew that president if any such be and upon Tuesday after he shewed that and then Winch agreed Auditor Curle for words AUditor Curle brought an action upon the case and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards and that the same Statute appointed the Auditor of the same Court and shewed that the Plantiff was an Auditor of the same Court and that the Defendant such a day and at such a place said of him you have taken money for ingrossing of feodaries innuendo accompts and tunc et ibidem you are a Cozner and live by Cozning and I will prove that to be Coznage and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Finch Serjeant of the King that the Plantiff shall not have judgement upon this verdict for the first words are not actionable for the taking of money for the ingrossing of feodaries are insensible and then the inuendo will not help nor aid that also the words in the second place are not actionable because he had not said that he was a Cozning officer and so he had not expresly applied that to his office and
the very Common Law see Ouleys case 19. Eliz. in Dyer but Hutton doubted whether this bond is void by the Common Law because the Statute of the 23. H. 6. inflicts so great specialty upon the Sheriffs for extortion and after judgement was Commanded to be entred for the Defendant in the action if no other matter be shewed to the contrary before such a day In trespas quare vi et armis one such being his servant cepit et adduxit at D. in Essex the Defendant pleaded that he was a vagrant in the same Countie and he not having notice that he was servant to another he retained him and it was moved by Finch if I retain the servant of another man in the same Countie where I and his Mr. inhabit this is not justifiable though in veritie I had not notice of that and this according to the express book of the 19. Ed. 3. 47. Hobert the book may not be law for it is a hard matter to make me take notice of every servant which is retained in the same Countie and yet perchance if this retainer be upon the Statute of labourers at the Sessions this is notorious and I ought to take notice of that at my peril but it is otherwise of a private retainer for though it is within the same Countie yet being a private matter in fact the Law will not compel me to take notice of that at my peril otherwise if this be matter of record 2. H. 4. 64. and Hobert and Winch seemed to agree and then Finch moved that the Plantiff had charged the Defendant with his servant by cepit et adduxit and the Defendant excused himself and never traversed cepit et adduxit see 11. H. 4. Hutton and Hobert the receiving and the entertaining of a servant may not be said to be vi et armis Mr. Spencers case HArvy Serjeant came to the barre and demanded this question of the Court in the behalf of Mr. Spencer a man was seised of land in fee and sowed the land and devised that to I. S. and before severance he died and whether the devisee shall have the Corn or the executor of the devisor was the question and by Hobert Winch and Hutton the devisee shall have that and not the executor of the devisor and Harris said 18. Elizabeth Allens case that it was adjudged that where a man devised land which was sowed for life the remainder in fee and the devisor died and the devisee for life also died before the severance and it was adjudged that the executor of the Tenant for life shall not have that but he in remainder and Winch Iustice said that it had been adjudged that if a man devise land and after sowe that and after he dies that in this case the devisee shall have the Corn and not the executor of the devisor nota bene Dodderidge against Anthony Entred Mich. 19. Jac. Rot. 1791. ENt. Mich. 19. Jac. Rot. 1791. Peter Dodderidge brought an action of accompt against one Anthony and he declared that he deâ—ivered to the Defendant so many pieces of cloath called Bridge-water red to be sold at Bilbo in Spain and the Defendant said that he sold the same cloath at Bilbo in Spain for 40. l. 18. s. English to be paid in May next insuing the sale which was in November before and over he alledged the Custome of Merchants to be that if any Merchant had goods in the same Kingdome to be sold to another Merchant and he sell the goods to be paid at a day to come and this is done before a publick Notary and thereby a Bill signed and acknowledged to him in his name who sold the goods and that if the Merchant who so sold the goods delivered the Merchant who was owner of the goods this Bill so taken in his name this shall be a discharge to him of the goods and he averred that he sold them to a Spanish Merchant and that he took a Bill accordingly and at London offered that Bill to the Plantiff who refused that and upon this plea the Plantiff demurred Attoe argued that the plea is not good because he had not alledged that the partie who takes such a Bill may plead that and the Custome is also alledged with an if if the party sell and if he take the Bill and not with positive averment that he may so sell and may so take the Bill which being delivered to the owner of the goods shall be a discharge to the factor who sold the goods and here this custome is not good by the Common Law for if I deliver goods to another to sell and he sell them to be paid the money at a day to come this is not good for he ought by his sale to make a compleat contract and if I sell my horse for 10. l. I may retain the horse till the money is paid for till then the contract is not compleat and so in this case and here the Plantiff shall have an action of accompt upon this delivery and if he sell them otherwise or do not sell them for ready money he had gone beyond his Commission and this Custome is unreasonable that the Bill shall be taken in his name who sold the goods but perchance if the custome had been alleadged to take the Bill in the name of the owner of the goods this had been good but in our case the owner of the goods may not sue nor have any remedy for his goods except the factor will go into Spain and sue the said Bill and it is unreasonable to leave this to the pleasure of my factor whether I shall have any remedy for my goods sold and it is very unreasonable that I shall be paid with a Bill which may not be sued and here the Plantiff is a stranger to the Custome of Spain and shall not be bound by that Serjeant Harris to the contrary the Custome which is alledged is good among Merchants though it is not good according to our Common Law and so if two Merchants trade joyntly and one of them dies before severance of the goods yet his executor shall have his part and not the Survivor and so by the law of Merchants a man cannot wage his law in debt upon a simple contract by which it is apparant that the laws of Merchants differ from our laws and indeed the laws of Merchants are National laws and that this is the Custome in Spain is confessed by the demurrer and then we may not examine that by the reason of our laws and the laws of Merchants ought to be favoured for trading sake which is the life of every Kingdome and by the law of Merchants a Bill without seal is good and yet by our law it is but an escrowl and so I pray judgement for the Defendant Hobert chief Iustice when the Merchant had delivered goods to the factor to sell he had made the factor negotiator gestorum and for that
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
years notwithstanding his advancement and he resigned during the 3. years and issue there taken upon the resignation and this case proves all the partes of our case first that the King may dispence and that by his dispensation he is compleat person to resign and if he do resigne during the years the King shall not have the prerogative to present again for that was satisfied with the dispensation and also when the King came to his prerogative by subjects means he ought to take that as it falls for otherwise he loses that quite vide Bastervils case Coo. 7. and another reason is if it be not satisfied then the King shall have another which is mischievous and this being a new case such president is not to have more favour then the necessitie of the Law will require and so my opinion is that it is all one as if it had for life and there is a good case 9. Ed. 3. 20. where the King had 2. presentments vide the case but it was upon another reason but the case of 21. H. 7. 8. Frowike where the grantee of the next avoydance had judgement to recover and the incumbent resigned so that it is the second presentment yet the Plantiff shall have the effect of his judgement and he had a writ to the Bishop quere the application for I did not well heare that but in our case if the prerogative of the King was not satisfied yet it ought to appear that when he presented Gee he had no title but that was an usurpation and if the King was not satisfied then the Plantiff shall not have judgement for then Gee was an usurper and upon that declaration the Plantiff shall be barred but now for the last point admit that the King was satisfied of his prerogative by his presentation of Gee whether the Plantiff had lost his course I think he had in the first place the words of the devise are the first the next avoydance which shall hap after the death of Athur Basset now it hath been objected that the King had the first by his prerogative and therefore he shall have the second I think in this case Brook presentation 52. is a strong case where a presentation was granted to one and after to another when the first is void and ruled that the second grantee shall not have the second and so Dyer 35. it ought to be taken according to the words for otherwise he shall not have any for modus et Conventio uniunt Legem and the case of quare Impedit 152. proves something to this purpose for a man had 4. advowsons and granted the next which should hap of them to I. S. and he died and the heir assigned the wife for her Dower one Mannor to which the advowson was appendant which first became void and ruled that the Grantee shall not have that against the feme and then it was moved by Thorpe that he shall have the second but Shard said certainly never which proves that if the turn of the Grantee was taken from him by the indowment of the feme he had lost that for ever the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant that the Grantee of the third shall have the fourth when the wife is indowed of the third which case is brought to prove a case which without question is not law and that is that the King being Gardian of the Grantee of the next avoydance and he grant that in this case the heir shall have that at his full age which without question is now law for by the same reason his course may be the 20. but there are two rules from this which seem to cross this opinion one rule is that the words of the grantor shall be taken most strong against himself and the other that the Grantor shall not be received to avoid his own grant as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are compleat for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joynt Tenants for life and he in reversion grant the lands only which the husband held in this case nothing passeth for the reversion was expectant upon a lease which the husband and wife held nay I will cite one case where a man by his own Act shall avoid his own grant in a quare Impedit Elmes against Taylor where a man was seised of the Mannor to which the advowson was appendant and he granted the third next avoydance and after against his own grant he usurped and it was adjudged that by this usurpation he had gained the advowson to be appendant to his Mannor again and that the Grantee had lost his course and so the case in Dyer 283. where the Church was void and the patron granted the next avoidance tunc vacant to another and this pro hac unica vice tantum and there resolved that the grant was not good and that it should not extend to another and so in our case it shall not extend to a second another reason is if the King had a prerogative he is bound and every derivative estate under him for he shall not be in better case then the grantee for he was bound by the law of the land and for that it is equitie and it is Iustice that the estate of the grantee should be bound and so in this case like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound now if afterwards the Abbot made a lease for years or granted the next avoydance and then after they came to the King he shall avoid the grant for the interest of the Grantor was bound by Act of Parliament and see the case of the universitie of Oxford Coo. 10. where a man before he was a recusant convict he granted the next avoydance and after he became a recusant convict and then the Church became void now the grantee shall not present for his interest was bound by Act of Parliament and so he must take it and here it behoves him to take that as it is bound with the prerogative of the King and so upon all the matter he hath lost his title and he concluded that the Plantiff shall be barred The argument of Justice Winch. WInch Iustice of the same opinion but because his argument was much to the purpose of that with Hutton and the Lord Hobert therefore I will not Report that verbatim and Winch said I will speak to the last point which was moved by my brother Hutton and I hold that where he had the first granted to him now he shall have none at all for it is punctually expressed that he shall have the first and that shall not extend to the next which may be granted but I grant if two coparceners had an advowson and the eldest presented and
recovery here the Term is saved and yet for the time the lessee was seised to his own use but because that the fine was Preparatory to inable him to suffer the recovery now in this case after the recovery suffered that will look back to the first agreement of the parties and so the Statute hath saved the Term and for that reason if the Statute do save a Term which is of small account much more a freehold and so he prayed judgement for the defendant see more after The case of Hilliard and of Sanders entred Mich. 20. Jac. Rot. 1791. HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury and the Defendant avowed and shewed that Sir Ambrose Cave was seised in his demeasne as of fee of Kingsbury where the place in which c. is parcel and 14. Feb. 16. Eliz. granted a rent charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg and to the heirs of Thomas upon Alice to be ingendred the remainder to the right heirs of Thomas and Thomas had issue John and Thomas died and then Iohn his son died having issue Anne the wife of the Avowant in whose right he avowed for the rent of half a year c. 21. l. 4. s. 2. d. due at W. in Bar of which avowrie the Plantiff pleaded that true it is that Sir Ambrose Cave was seised of the Mannor c. and he made the grant according and that Sir Ambrose Cave died seised and that the said Mannor descended to Mary his daughter as daughter and heir to him who was married to one Mr. Henry Knowles and shewed that he was seised and then shewed that the 12. Iac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife Mich. 22. Jac. C. P. and the said Henry Knowles and mary his wife that for the extinguishment and final determination of the said rent that Thomas and Alice should levie a fine to Henry and Mary of the said lands and Tenements aforesaid by the name of the Maniior of Kingsbury 300. Acres of land and of divers other things but no mention was made of the rent and this fine was upon Conusance of right as that which they had c. and also they released all the right which they had in the land to Henry and to Mary and then shewed that after the death of Mary this land descended to two daughters one being now married to the Lord Willoughby the other to the Lord Paget under whom the Plantiff claimed to which the avowant said by protestation that there was no such agreement and for plea that the rent was not comprised and upon that it was demurred in Law and now Serjeant Attoe this Term argued for the Plantiff and the substance of his argument was in this manner Attoe said the case was Tenant in tail of a rent charge agreed with the Tenant of the land to extinguish that and that he would levie a fine of the land to the land Tenant which is upon Conusance of right and upon release which fine is levied accordingly whether this cuts off the tail of the rent and I hold that it will and I do not finde any opinion in all the Law against this but only the opinion of Thornton in Smith and in Stapletons case in Plowden which I do not esteem to be a binding authoritie and the case is Tenant in tail of a rent disseised the land Tenant and levied a fine with proclamation of the same fine to a stranger now said Thornton this shall not bar the issue in tail of the rent because the fine was only levied of the land and he cited this to prove another case which is Tenant in tail of land accepted a fine of a stranger as that which he had c. and he rendered to him a rent and he said that his issue may avoid that rent and this case I grant because the rent was not intailed but for the other case I openly denie that and there is much difference between those two cases for a fine levied of the land may include the rent as well as the land but it is impossible that a fine of rent should include the land and our case here is pleaded to be of the land and of the rent and a fine of the land may carry the rent inclusively because it is a fine of a thing intailed yea it is not a new thing that rent should be carried inclusively by way of extinguishment in the case of a feofment and then á fortiori in a fine which is a feofment upon Record and especially when it is levied on purpose to extinguish the rent and the Statute of fines is more strong for that is of any lands Tenements and hereditaments any wayes intailed to any person c. but this rent is an hereditament intailed to the person who levied the fine and this which is carried inclusively is within the Statute nay if a man had nothing in the land yet if it was intailed to him who levied the fine this shall bar the estate tail for ever as if Tenant in tail made a feofment to G. S. and after that he did levie a fine to a stranger of the same land that in this case the issue shall never avoid this and yet neither the Conusor nor the Conusee had any thing in the land and see for Archers case Cook 3. where the issue in tail levied a fine in the life of his ancestor and a good bar and yet there he had but a possibilitie and so was the case of Mark-williams Mich. 19. Jac. Rot. 763. C. B. where all the distinctions were made for Henry Mark-williams was heir apparant to his Mother who was Tenant in tail and he levied a fine in the life of his Mother and died without issue and then his Mother died and it was ruled that this did not bar the sister heirs because she may have that and never make mention of her brother but in our case if the rent had been granted in fee it had been no question but that a meer release will extinguish that and I think a fine with proclamation is as forcible to extinguish a rent which is intailed as a release is for a rent in fee another reason is this is a fine directly of the rent though this is by the name of land and also this is upon Conusance of right c. and also in that he released and remised to the Conusees all his right in the said land but a case out of Bendloes Reports may be objected Tenant in tail accepted a fine of the land and rendred that for life ruled the issue is not barred but first I do not allow this case to be good law but if it be good law the reason is because he accepted only a fine of the land and for that it only extends to that and not to the rent as if a man is seised
ought to maintain the award but to shew the breach for it shall be otherwise if it be found against him and then Hendon answered to the other exception that this is not for direct usury but is rather for the damage which he sustained by the forbearance of the money and yet if it were for interest it is good and then as to that which now had been agreed by my brother Bridgman that contracts and obligations for usury are good I say then by the same reason an award for that is good for whatsoever a man may contract for the same thing may be awarded if the contract will bear that and usury is not malum in se but only malum prohibitum and is good by our law and here in this case though the Arbitrator was deceived in the summe yet after the award made it is altogether certain and an implied recompence is sufficient in this case but the Court said that the casting up of the accompts did not make an award for it is not a good Calculation but the ending of the controversies that doth make the award but yet the opinion of the Court in this case was that the award was good for an Arbitrement shall not be taken absolutely upon the bare words and the Court did command the parties to come before them upon the morrow in the Treasury and as it seems this was for mediation to make an agreement for the opinion seemed to be for the Plantiff The case of Hilliard and Sanders argued by the Court. IUstice Harvey this Term did argue the case of Hilliard and Sanders which see before and after a brief recital of the case he said that his opinion was that the avowant shall not have return because that by the fine of the lands the rent is extract and I am induced to be of this opinion by two things the first is the agreement and tâ—e other is the favourable exposition of the Statute of fines to settle repose and quiet and I will first shew the efficacie of fines at the common law 21. Ed. 4. the Pryor of Binghams case it is laid for a ground and rule in law if a thing be contained in a fine either expresly or implicitly this is very good and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more then an agreement and therefore it is called in latin Concordia and then see if by any words you may pass this rent by the fine and though the word rent is not there yet if it be so infolded in the lands that is good with that it is very good and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feofment of the land the rent doth pass and wherefore not by fine then and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband yet if she do not within 5 years she shall be barred and now you see that the construction of these Statutes was alwayes to settle repose and quietness for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons case then it will be mischievous and for his opinion it was only in the way of arguing and yet I conceive he had the good opinion of the Reporter and without all question it is a case of as hard a construction as that is of Archers case where the heir who nothing had in the land in the life of his father did levie a fine this is a bar for ever and the reason is because it is of a thing which is intailed and he cited a case in Bendloes Reports where a discontinuee was disseised by Tenant in tail who levied a fine and the discontinuee entred and then proclamations passed that in this case the issue was barred truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common or a way the reason is because there is no privitie but in our case there is a privitie and by Margaret Podgers case a Coppiholder is within this Statute and in our case the rent passeth especially in regard of the agreement as in the Lord Cromwels case and he cited a case primo Jacobi between Gage and Selby in an ejectione firme where Gage was Tenant in tail and he levied a fine to I. S. in fee and after he levied another fine to the use of himself for life the remainder over and his brother brought a writ of error to reverse the first fine and ruled that he may not for the second fine had barred him of any writ of error and so I conclude the fine had extinguished the rent The argument of Justice Hutton to the contrary HUtton contrary the fine had not barred the rent in which I will consider the nature of fines at the Common Law and they were of mightie and great esteem and force as appears by the great solemnitie which is used in them as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines and he agreed that such a fine by Tenant in fee simple will pass that inclusively for by the release of all his right in the land a Signiorie is gone I agree also that a fine is but an agreement but yet it must work according to the nature of the thing as upon a writ of Measne or of right of advowson a fine may be levied and yet it is not levied of the lands but of the advowson or Signiorie and so if the writ of covenant be one thing and the agreement of another thing then it is not good and first I will prove that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied and if at the Common law a fine was levied of rent there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given that it is against reason to hold covenant of that which never was and the rent there never was before but ought to begin then and yet it is clear a man may create a rent by fine but he shall not have a writ of covenant of that when it was not in esse before and because the concord may not varie from that therefore it was not received 38. Ed. 3. 17. Knevet put the rule that a fine may not be of more then is in the writ of covenant and when a fine is properly levied of that it is by way of release Fitz. fine 100. and so I conceive here the rent doth not pass Secondly here no man may plead that any fine is levied of
that he agreed if one say of another that he was foresworn in a Court which is not a Court of record that none action will lye because the party is not punishable for that in perjury but in our case the commission issued out of the high Commission Court which Court to the examination of witnesses is in nature of a temporal Court and had been confirmed by act of Parliment and Serjeant Harvey argued to the contrary that the first words are not actionable and then the subsequent words are uncertain and yet if one say of another that he was foresworn at the Common Pleas barre the words are actionable for it shall be intended that this was upon examination in the execution of Iustice Hobert if a man is foresworn in a Court Baron before the Steward this is perjury but in our case the words are altogether uncertain for it doth not appear what authority the Commissioners had nor yet in what manner he was forsworn and Iustice Hutton said if one man say of another he was foresworn before the Bishope of S. this is not actionable but if one say of another that he was forsworn before the Bishop of S. upon examination by him by vertue of a Commission issuing out of the Chancery this is actionable and Hutton agreed to the case of the Court Baron the same Law by him if that be in a Court Leete but in the principal case Iudgement was arrested Wase against Pretty Ent. Hill 16. Jac. Rot. 1716. WAse against Pretty Ent. Hill 16. Iac. Rot. 1716. in an ejectione firme the case was that one joynt Coppiholder did release to his companion and the question was whether this is good without surrender and admittance for it was objected if this shall be good then a Coppihold shall pass without the assent of the Lord but it was resolved by Hobert Warberton and Winch Hutton being absent that the release is good and Warberton said that by Littleton if 3. Ioyntenants are and one of them release to another he to whom the release is made is in by the releasor but if there are but two then he is in by the Lord or from the first conveyance Winch if two Ioyntenants are in capite and one release to the other the King shall not have a fine for this Alienation but Hobert said that the practice is otherwise at this day but he said that when one joynt Tenant releases to another he is in by the first conveyance and in the case in question the release shall be good without surrender and admittance for the first admittance is of them and of every of them and the ability to release was from the first conveyance and admittance it seems if a Tenant in Capite alien upon condition and afterwards he enters for the condition broken he shall not pay a fine for such an alienation Hitcham Serjeant said that if land be given to two upon condition that they shall not alien and one releaseth to the other this is no breach of the condition Hobert if the King grant you his demeasnes you shall not have his Copihold Winch said that it was adjudged in this Court that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them that it was adjudged in this case that the house shall be broken down Goddard against Gilbert GOddard brought an action upon the case against Gilbert for these words thou art a thiefe and hast stolen 20 loads of my furzes and upon not guilty pleaded it was found for the Plantiff and it was moved in arrest of judgement by Hitcham that these words are not actionable for though the first words of themselves had been actionable yet when those words are coupled with other words which do extenuate them it is then otherwayes for if a man say thou art a thiefe and hast stollen my apples or my wood it shall be intended that the apples and the wood were growing and he said there is no difference to say in this case you are a thiefe and have stollen 20 loads of my furzes but it was said by Iustice Warberton that the furzes shall be intended to be cut for that is the most natural and proper signification of the words and Hobert chiefe Iustice said that it is true that it is the most proper signification of the words but yet they are furzes when they are growing as well as when they are cut down and Hobert chief Iustice said if a man say of another thou art a thief and hast stollen my corn in this case the words shall be taken in the better sence and judgement in the principal case ought to be arrested and it was the opinion of him and of Winch that there is no difference where a man said thou art a thief and hast c. and thou art a thief for c. ut supra but it was adjourned Winch Iustice said I was of counsel in the Kings Bench in a case where a man had a window in the backside of his house and another man erected a wall within a yard and half of that in his own ground and adjudged in an action upon the case that the wall shall be broken down Warberton certainly this was an antient house but Winch said that made no difference It was ruled that after imparlance in debt upon an obligation the Defendant shall be received to plead that he was alwayes ready to pay notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary Gilbert Lewings against Nicholas March. GIlbert Lewings brought an action of covenant against Nicholas March and deâ—lared that Charles Cornwallis had granted the next avoydance to the Church of D. to Thomas March and that Nicholas March was his Executor and that Nicholas March assigned this to Gilbert Lewings his executors and assignes to present to the same Church when that shall become void and covenanted that the same person who shall be so presented by him shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March or any of them or any by their procurement and after Gilbert Lewings presents I. S. and after I. W. presented an other claiming the first and next avoydance by the procurement of Charles Cornwallis and ruled that the declaration was not good for it ought to say that Charles Cornwallis granted to I. w. the next avoydance and procured him to disturbe and that by his procurement he was disturbed Athow It seems to me to be but little difference to say he disseised me by the procurement of I. S. and he commanded I. S. to disseise me and he did that accordingly at his command Sir Edward Sackvil against Earnsby VPon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby the case was that two brothers were seised of land to the eldest for life the remainder to the youngest in tail and they
like to the case of a common for a man may prescribe to have common in another mans land for this is but a reception of the profits with the mouthes of his cattle but in our case it is all one as to prescribe to have the land it self and I may not prescribe to have land it self for I may not say that I and my ancestors had used to have such land for such a prescription is void to which Hobert chief Iustice and all the Court agreed as to that point and then to prove that this is all one as to prescribe to have the land it self he said that if a man lets the profits and the herbage of land for years this is a lease of the land it self as was lately adjudged in this Court which was also granted by the Court also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage but not of common and a formedon lyes of pasturage 4. E. 4. 2. the Regist fo 177. Ejectione firme lyes of pasturage and so he concluded that upon the matter he prescribed to have the land it self but Hobert chief Iustice and all the Court to the contrary that the prescription is good for that may have a good beginning by grant for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed and by consequence if that may be good by grant it may be good by prescription and judgement was commanded to be entered for the Defendant See prescription 51. and 52. In trespass the Defendant pleaded in barre that such a one was seised of land in the right of his wife and that his wife died seised and that he was heire to her entered and gave Colour to the Plantiff the Plantiff replied that the husband and wife were joyntly seised and that the wife died after whose death the husband was seised by Survivor-shipp absque hoc that the wife died seised and Warberton and Hutton being only present the traverse is not good that the wife did not die seised but it ought to be that she did not die sole seised In trespass for the taking of goods in a place in yorkshire and the Defendant justified as servant to the Bishop of Durham and he shewed that the Bishop of Durham had a Faire and that time beyond memory he and his predecessors had used to seise the cattle that were sold if he who bought them refused to pay toll and if the thing taken was not redeemed within such a time he might sell the same And he justified in a place in Durham absque hoc that he was guilty in Yorkshire and by Warberton and Hutton this is a good traverse to the place for it is local If a Capias issued here to have the body of such a one at Westminster such a day and the Sheriff bring the body or return the writ before the day this is good by Iustice Warberton Tutter against Fryer TUtter against Fryer a rent charge was granted for years with a nomine poenae a clause of distress if that was not paid at the day and the rent was behinde the years incurred and it was moved by Athowe that though the years are incurred that he may distrain for the nomine poenae but the Court was of a contrary opinion for that depends upon the rent and the distress is gone as to both of them Duncombe c. against the Bishop of Winchester c. DUncombe and others against the Bishop of Winchester and others Defendants in a Qu Imp. and the case was that Sir Richard Weston was seised of the said Church in fee in grosse and was convicted of recusancy and a Commission issued to certain Commissioners to seise two parts of his lands and goods and they seised this advowson inter alia into the hands of the King and the King granted the advowson to the Plantiff and the Church became void and whether the King or the university of Oxford shall have that was now the question and it was appointed to be argued the next Term. Potter against Turner IN the Kings Bench Pasch 19 Iac. the case between Potter and Turner was as I conceived to this effect A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt which he owed to B. assigned the debt of 30. l. which C. owed to him and made a letter of attorney to sue in his name A. and B. acquainted C. with this agreement and C. promised to B. in consideration that he will forbear till such a day that he will pay him the money and upon this promise he brought the action against C. and he pleadded non assumpsit and it was found for the Plantiff And it moved in arrest of Iudgement that the consideration was not sufficient according to Banes case Coke 9. If executors who had not assets promise to pay a debt of the Testator this shall not binde them because they who made the promise were not chargeable but on the other side it was said by Whitwick of our house that this was a good consideration for the assignement of that debt was lawful and no maintenance at all as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in barre in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary for B. here had only an authority to sue and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consideration that he will deliver them to him he will give him so much money this is no consideration except that they are delivered accordingly for this is only an authority to deliver goods which is alwayes countermandable by me And Iudgement was entered for the Defendant vide 4. E. 4. 14. Ewer and Vaughan IT was said by Dodderidge and A. in the argument of the case between Ewer and Vaughan that it had been adjudged by all the Iustices in one Trewmans case that no writ of error lyes of a judgement given in the Stanneryes in Cornwal A Prohibition to the Admiralty MAny poor Marriners sued one Iones the Master of a ship for wages in the Admiral Court and judgement was given against Iones and now he prayed to have a prohibition and he suggested that the contract was made at London in England and so the suit was not maintainable in the Admiral Court but the prohibition was denyed because he had not sued his prohibition in due time viz. before a judgement given in the Admiral Court which in point of discretion they disallowed and also these are poor Marriners and may not be delayed of their wages so long and besides they may all joyn in a Libel in the Admiral Court but
if they sue here they must bring their actions several for they may not joyn here in an action and therefore it is good discretion in the Court to deny the prohibition Pastons case it was said by Hobert that a Coppiholder may hedge and inclose but not where it was never inclosed before and agreed by him and Warberton that a Coppiholder may dig for Marle without any danger of forfeiture but he ought to lay the said Marle upon the same Coppihold land and not upon other land and this was upon the motion of Hendon Serjeant In a case which concerned the Lady Mollineux and Fulgam the case was in an Ejectione firme that the Iury found the defendant guilty of 10. acres and the judgement was entered of 20. acres and upon that the defendant brought a writ of error in B. R. and now the Plantiff prayed that this might be amended and Finch argued that this ought to be amended and he cited a case Pasch 8. Iac. Rot. 525. Iohn Chilley was Plantiff in debt and recovered and the judgement was that the aforesaid Henry Chilley should recover c. and upon that error was brought in the exchequer chamber and that was assigned for error and yet after Pasch the 9th Iac. this judgement was amended in the Kings Bench and Iohn inserted for Henry and diminution was alleadged and the first judgement was affirmed in the exchequer chamber and he cited a case M. 8. Iac. Rot. 1823. in C. B. dower was brought of 4. Gardens and judgement was given to recover in 3. and upon this error was brought and yet this judgement was afterwards amended and he cited a case Pasch 17. Iac. between Sherley and Underhil in a Qu. Impedit where it was amended after error brought and he vouched one Masons case 12. Iac. in an action upon the case against the husband and the wife for words which were spoke by the wife and judgement was given against them and that the wife capiatur where it should be husband and wife Capiantur and yet this was afterwards amended Hendon contrary after error is assigned it may not be amended in point of substance and the case of Chilley may be good Law for the misnaming only et praedictus Henricus where was no Henricus before could not have other signification or intendment then Iohn who was named before in the record Warberton and Hutton the misnameing Henry for Iohn is matter of substance cleerly and then Hendon said that now the judgement shall not be amended because the prayer of the Plantiff to have that amended came too late because it is after error brought and diminution alleadged and the record certified and then both the parties are concluded but if only a writ of error was brought and no diminution was alleadged that then the judgement may be amended and he said that he had not found in any book where any amendment was after diminution alleadged as here and he cited 22. E. 3. 46. in dower it was assigned for error that no warrant of Atturney was entered for the Defendant and ruled that this may not be assigned for error aâ—ter a scire facias sued see 4. E. 4. 32. but Hobert chief Iustice said that it shall be a brave case that our judgements shall be made good or bad at the pleasure of Clarks and we shall not be able to amend them to which Warberton also agreed And day was given over to speak to that again and after in the same Term this judgement was amended per Curiam Action of debt upon a bond and the Condition was to save the obligee harmless of a nomine poenae against Mary Moore and he pleaded that he had saved him harmless and per Curiam this is not good for if he will plead in the affirmative as here he ought to shew how he had saved harmeless but if he had pleaded in the Negative as he might well then non damnificatus is a good plea generally Harrington against Harrington in accompt HArrington brought an action of accompt against Harrington and declared of the receipt of moneys by the hands of a stranger and the Defendant pleaded in barre a gift of the same money afterwards by the Plantiff to him and it was argued by Towse that this was no plea in barre of an accompt but it is a good discharge before Auditoâ—s and he cited 28. H. 6. 7. Hendon to the contrary and said the opinion of Brian chief Iustice 21. E. 4. is that he may plead that in barre of accompt and Warberton Iustice being only present agreed for by the gift it is his own moneyes and herefore he may plead that in barre It was said by Warberton that if an Advowson is holden of the King and the Tenant alien without licence that the King may not seise that without office which was granted by Hobert and by Winch only present and in the same case by Warberton that a scire facias issuing against the Alienee will not intitle the King but ought to be an office found and it was also said in the same case by Serjeant Iones that the ordinary shall have 28. dayes to examine the ability of one who is presented by the canon Law and the same Canon Law is that the Patron shall not present another during the 28. dayes Goddard against Gilbert GOddard brought an action upon the case against Gilbert thou art a thief and hast stolen 20. load of my furzes and upon non culpabilis pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham for where words may be taken in a double sense one actionable and another not actionable they shall all times be taken in the better sense and in our case to take furzes may be fellony and it may be not fellony for if they are growing they are not fellony and it shall be intended that they were growing rather then cut down and no man will presume that any will take 20. loads of furzes with a fellonius intent because the carriadge of them is visible to all the world for it shall not be intended that he carried those in the night and so he prayed that the Plantiff may be barred Attoe Serjeant contrary words which implies a double signification shall be taken in the worser sense which tends most to the disgrace of the party for they shall be supposed to be spoken in malice and so with a purpose to defame the party and he cited a case Trin. 2. Iac. B. R. Rot. 663. Kellam against Monest thou art a thief and hast stolen my corn and adjudge to be actionable Hobert Warberton and Winch contrary for words shall be taken in the better sense and not in a strained sense to punish the party which spake them as if one say to another I wonder you will eat or drink with him for he hath the pox now every one that heareth that will suppose that he means the french pox and yet in
Kingsmil agreed to this In evidence to the Iury in a replevin brought by I. S. against one Bennet for the taking of beasts and the Defendant made Conusance and he said that Mr. Potts was seised of 6. acres of land and granted a rent charge out of that to one William Pots his son in taile and for rent behinde he avowed and the issue was that the rent did not pass by the grant and Hobert said that in this case the avowant ought to prove that the grantor was seised of 6. acres or more and not of 4. or 5. acres if he will maintain his issue in this case Action upon the case for words he innuendo the Plantiff stole the Tobacco out of his Mrs. shop Finch moved the declaration was not good because he had not averred that there was a communication concerning him before and where the person is incertaine there the innuendo is void Hobert and Winch held that to be good but then Hobert moved that the declaration was not good because he said the Tobacco in his Mrs. shop and had not averred that there was Tobacco there to which also Winch agreed but if he had said that he had stolen Tobacco out of his Mrs. shop such declaration without any averment is good but here the words the had altered the sense and so there ought to be an averment and Winch said that if he had said that he had stole 2 or 3 pound of Tobacco out of his Mrs. house this had been good without any averment for the certainty appears and it was adjourned Trin. 19. Jac. Sir George Stripping in Wast SIir George Stripping brought an action of waste and an estrepment was awarded to the Sheriff of Kent to prohibit him to make waste and the Sheriff returned the writ executed accordingly and now there was an affidavit made to the Court that since the estrepment he had cut down certaine Willowes which grew upon the bank of the River by which a bank fell down and a meadow adjoyning was overflowed and upon this affidavit Davies moved for an attachment against the Defendant for it appears by this affidavit that waste is committed for the cutting of willowes in this case is waste because that they support the bank as if they grew neer a house Hobert and Winch being only present that this is a waste in law but yet no attachment shall be awarded because that this appears only by affidavit and is only the collection of the party and this doth not appear by pleading or by the recorâ— of the Sheriff and Brownlow said that in this case he ought to have a Pond which was granted Maior against two Bayliffs ACtion of false imprisonment was brought by Major against 2 Bayliffs of a corporation who pleaded not guilty and at the nisi prius the Plantiffe was nonsuite and now Serjeant Richardson moved upon the Statute of cap. 5. 7. Iac. for double costs and that upon the very words of the Statute and the question was whether the costs ought to be taxed by this Court or by the Iustices of Assize Hobert said that upon the nonsuite the Iustices of Assize might have commanded the Iury to have taxed the single costs and then the same judge might have doubled them and that within the words of the Stat. but if the judge grants this then upon his certificate the double costs shall be assessed for otherwise the party shall be without any remedy and Brownlow ch Prothonotary agreed with that as to the certificate that this Court shall assesse the Costs and Brownlow had a president according Mich. 19. Jac. Grice against Lee. GRice against Lee in an action upon the case and the Plantiff declared that he being long time before and still is seised in fâ—e of certain messages and lands in Layton Buzard in the County of Bedford and that to these messuages he had a common appendant time beyond memory c. in 600 acres of waste called Layton Heath and had common in 600 acres of wood in Layton aforesaid and that the Defendant had made certaine conney borroughs and which the aforesaid couneys where he had not made any mention of any conneys before eat up the grass and that the Defendant had inclosed the said wood by which the Plantiff had lost the profits and the Defendant as to the digging of the heath for coneys said that E. 3. granted to the Dean and Cannons of Windsor that they and their successors haberent in omnibus terris dominicalibus liberam Warrennam sibi tunc et successor et in posterum conferendam And that the 20. E. 4. the Duke of Suffolk and his wife granted to them the said Mannor of Layton whereof the said Heath is parcel and said that 22. E. 4. it was enacted by Parliament that all charters made by King E. 3. to the Deane and Canons of Windsor shall be good and that the said Deane and Cannons of Windsor being so seised of the Mannor of Layton and of the Heath in the 3. H. 7. erected a free warren and that by mean conveyance the said D. and C. conveyed that to the Defendant and so justified the making of the said coney borroughs by vertue of the charter of E. 3. and as to the 600. acres of wood he justified by the licence of the father of the Plantiff who then was seised of the common and upon these pleas in barre the Plantiff demurred and Serjeant Richardson took exception because that it is not expressy alleadged that hee was seised of the house and land to which the common is appendant at the time of the making of the conney borroughs for he only said that a long time before the erection of the conney borroughs and yet he is seised which immplies that he was seised before and after but not at the time of the warren made and for this he cited the Book of entries where waste was brought and he counted of a lease for life to the Defendant and a grant of the revertion and an attornment of the Tenant and that the Defendant had made waste and ruled to be evil because he had not alleadged that this was after the attornement and so in Stradlings and Morgans case and he cited a judgement 5. Iac in C. B. Adkinson brought an action of trespass against I. S. and declared quod per multos Annos jam preteritos he had exercised marchandize and that the Defendant such a day said of him that he was a Bankrupt and it was adjudged that the declaration was evil because he had not alleadged that he exercised marchandize at the time of the speaking of the words and he said that the cause of the judgement was entered upon the roll and the same case he could shew to the Court and Hobert desired to sâ—e that for he doubted much of the law of the same case to which Winch and Hutton agreed and Richardson said that as to that which may be said that a fee
it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
within the Statute and â—hirdly he had not shewed what time he was received that so it might appeare that he was an apprentice but for half a year and such a retainer is not within the Statute fourthly the conclusion of the information is contrary to the form of the Statute yet this doth not aide the imperfection of the information for such information only extends to matter of circumstance and not to matter of substance Finch Serjeant contrary that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial is within the Statute of the 5th of Eliz. for the same branch is general there being no person who departs c. and an apprentice is a person which departs secondly the clause of the Statute is be it enacted that none of the forementioned retained persons c. and an apprentice is a person which is in a special manner named before Mich. 19. Jac. and therefore he is within the express words of the same branch Thirdly the form of the testimonial proves that for it is I. W. servant to such c. and an apprentice is such a servant Hobert chief Iustice said that it was never the intent of the Statute to make an infant who is an apprentice to be within the danger of the same Statute for an infant at the age of 14. years may be bound to be an apprentice and the punishment which is given by the same Statute is that such person shall be whipt as a Rogue which plainly proves the Statute intends only those who are of full age and if other construction shall be made perchance that the sonne of a gentleman may be punished as a Rogue by such departure and he held that if an apprentice depart with his Mrs. goods delivered to him that in this case he is not within the Statute of the 21. H 8. as another servant is and Serjeant Finch said that there is an express exception and if that had not been that an apprentice had been within the danger of the law but Hobert said that he doubted much whether an apprentice had been within that Statute though the Proviso had not been made but this proves that the makers of the Statute thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law and for that reason the proviso of the Statute was made Winch said to which Hutton agreed that when the Defendant had pleaded nihil debet and this was found for the Plantâ—ff yet he may move in arrest of judgement if the matter be not within the Statute adjurned In a replevin the Defendant said that he hâ—d property in the beasts absque hoc that the property was to the Plantiff and so prayed judgement of the writ and it was found for the Plantiff and now Harvey Serjeant moved in arrest of judgment for in no book is found such a traverse as this that the Plantiff had not property but only that the property was to the Defendant and secondly the conclusion of the plea is not good for he ought to conclude to the writ and not to the action Hobert 6. H. 7. is that an action of detinue affirmes the property at the time of the action but a repleviant the time of the taking and two men may have such property in the same thing that every of them may have a replevin and Hutton said that when the Defendant in the replevin claimed property he ought to conclude to the action and Hendon Serjeant being only at the barre and not of councell in the case said that the book of entries is that he shall traverse the property of the Plantiff as in the principal case Hutton Iustice said that this was never seen by him but they all agreed that this being after verdict judgement shall be given for the Plantiff Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650. TRehern against Claybrook in a debt upon a lease for yeares the jury gave a special verdict to this effect that Iohn Trehern Grandfather of the Plantiff was seised of land in fee and let this for forty yeers rendring rent for which the action is brought and that he devised the reversion to the Plantiff in catle the remainder to Leonard Trehern in taile with divers remainders over and with provises in the same will that for the raising of a stock for the Plantiff and for him in remainder his will was that one Griffith and Anne his wife being daughter of the devisor should have the profits and rent of the said land to their own use until the time that the Plantiff and the said Leonard Trehern accomplish the age of 21. years provided alwayes and upon this condition that the said Griffith and his wife within 3 moneths of his decease enter into bond to the overseers of his will in such a summe and in such a penalty as shall be thought fit by the said overseers and this bond to be made by their advice and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid then the overseers shall have the rents and the profits c. and the jury found over that he made two executors and 3. who were overseers and that the 3. October 16. Iac. died and that within 3. weeks after the death of the devisor the executor read the will to the overseers but they found that the overseers did not remember that and if upon all the matter Griffith and Anne his wife had not performed the condition was the question and that if not the reversion was in the Plantiff And the point in law upon the verdict was whether Griffith and Anne his wife ought of their perils to tender the bond within 3. moneths or whether the overseers ought to make the first act and to tender the bond and the penalty for them to seal and Towse Serjeant argued that Anne and Griffith her husband ought to tender the bond at their peril for he said that the condition did precede the estate and therefore if they will have the benefit of the devise then he ought to tender the obligation and vouched Corbets case and 18. Eliz. the devise of land upon condition to pay money he ought to pay that at his perill Attoe Serjeant contrary and yet he agreed that if the condition was to precede the estate then the law was as Towse had said but here he said the estate precedes the condition for all the profits are devised to Griffith and to Anne his wife during the minority of the Plantiff by which it is apparent the estate is presently in the devisees and by consequence the estate precedes the condition and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation and to limit the condition or whether the overseers ought to make this first they being the parties instrusted by the Will
doth not lye for for it is not averred that there was any fellony committed also Iustice Hutton held that in this case the declaration is not good because it is not expresly alleadged with an eo quod that the Plantiff stole the Vetches but only an indictment preferred containing such a matter and Iustice Winch said that the framing of an indictment in a Court of record is not any cause of an action for it is a proceeding in an ordinary Course of justice and for that reason ought not to be punished by an action upon the case for that will deterre and scare men from the just prosecutions in the ordinary way of justice Hobert chief Iustice was of a contrary opinion and yet he said that it is true that the ordinary Course of justice ought not by any means to be hopped or hindred and as that may not be obstructed so neither may the good name of a man in any thing which concerns his life be taken away and impeached without good cause for Courts of justice were not erected to be stages to take away the good name or fame of any man and therefore by the common law if two do maliciously conspire to judict a man without cause though the indictment it self be good and legally drawn yet a writ of conspiracy lies against those which caused this indictment to be preferred and it is as great a slander to preferre a Bill of indictment to the grand jury and to give this in evidence to them as it is to declare that in an ale house and as to the declaration he held that to be good without any averment of an indictment indeed and the indictment in writing and the preferring that to the grand jury containes the scandal and I am of opinion that an action upon the case lyes well see more after Easter 20. Jac. C. P. Hill against Waldron Easter 20. Jac. C. P. HIll against Waldron in an action of debt upon an obligation the condition was that I. S. shall levy a fine to the obligee before such a day of such land the Defendant pleaded that the obligee had not sued forth any writ of covenant the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation and upon this the Defendant demurred and in this case two points were moved first when I am obliged that I. S. who is a stranger shall levy a fine to the obligee whether in this case the obligee is bound to sue a writ of covenant and it was argued by Serjeant Harvy that not yet he agreed that if the condition was that the obligor shall levy a fine to the obligee in this case the obligee ought to do the first act viz. to sue a writ of covenant as Palmers case Cooke 5. but otherwise when the fine is levied by a third person for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me yet I have forfited my obligation and so here he ought to leavy a fine at his perill and at his own costs or at the costs of the obligor But admitting that the obligee ought to sue a writ of covenant because it appears by the replication that before the obligation made I. S. had made a feofment over and that the feoffee did continue possession at the time when the fine was to be leavied and therefore the obligee needs not to sue forth any writ of covenant because he who is to leavy the fine had disabled himself to perform that and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made Serjeant Hendon to the contrary for he argued that the obligation is not forfeit except the obligee sue a writ of covenant and there is no difference between this case and when the obligor himself was to leavy a fine for the obligor had not undertaken for the whole fine but only that I. S. shall acknowledge a fine and if the obligor shall be compelled at his perill to sue a writ of covenant then you will construe the condition to extend to an unlawfull act for it shall be maintenance in him to sue forth a writ of covenant he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle the condition of the obligation was that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ and it was holden a good plea and for the second point he held that the obligee ought to sue this writ of Covenant though that I. S. had dismissed himself of the land for the words are general that I. S. shall leavy a fine and this he ought to do though no estate pass by the fine for a fine upon release shall be a good performance of the Condition but otherwise if it had been to make a feofment in fee for a man cannot make a feofment except he be seised of the land at the time as 31. E. 3. debt 164. a man was obliged to present the obligee to such a Church and the obligee took a wife by which he had disabled himself to be a person yet the obligor ought to present him for otherwise he shall forfeit his obligation and so in this case Hobert and Hutton as to the first point held the barre to be good and that the obligee ought to sue forth the writ of Covenant for Hobert said he ought to do that for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant and for that reason if I am bound to compel you to come upon such land to take a feofment I am not bound that the other make a livery of seisin but if the case was that I was obliged to you that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril though that I. N. will not sue a writ of Covenant Hutton according but Winch doubted of the case and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant because that I. S. had made a feofment of the land before and so had disabled himself at the time of the obligation for now it is impossible to leavy a good fine for if he should enter into the land and put out the feoffee this were not good within the condition and Hutton said it ought to be agreed that if I. S. had made a feofment after the time of the making
son and his wife and upon a demurrer the question was whether this Covenant did raise a present use to the Son and to his wife or whether this only rests in Covenant and Harris Serjeant argued that no present use will arise by this Covenant for first all other Covenants in the indenture are in the future for the words are that the lands shall remain and come c. and therefore till the death of the Covenantor the fee simple is in him and no use will arise for it shall be in the election of the Covenantor what estate he will make to his Son for he himself shall interpret his intent and the difference in our books is when the words are in the present tense and when in the future and for this he cited 22. H. 7. by Iustice Rede if a man Covenant that land shall discend remain or revert he said this did not give any present interest because the wors are in the future and it is in the election of the Covenantor how and in what manner the land shall pass and there he put the case that if I give my horse or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other because the words are in the present tense but if the words are that I will give a horse or a Cow there the Donor had election which he shall have because the words are in the future the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son that immediately after his death his son shall enjoy the use of his land of inheritance according to the course as then they stood and the question was whether the see simple was presently out of the Covenantor and the opinion was that it was not because it was but a Covenant and did not change the fee simple and so is Dyer 96. Sir Thomas Seymor promised and Covenanted by indenture in consideration that the Covenantee had granted land to him that he would leavy a fine to Wimbish and Pennoy of other lands which fine should be to Sir Thomas Seymor for life the remainder to the Covenantee in taile and no fine was levied and the question was whether any use was raised by this Covenant to the Covenantee and the opinion of the book is that not because it is in the future and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration that the Lord Henry his brother was to marry the Lady Wiltshire he Covenanted with Bray and with others that the Mannors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord and after the Duke granted to the Lord Henry and his wife for their lives and it was argued whether this second grant is good or no for if it is then the first Covenant will not work to raise an use to the feme and the book left that as a quere and if it be then he argued that in the principal case no present use is raised but that this rests meerly in Covenant and so he prayed judgement for the Plantiff Serjeant Hendon to the contrary for he thought this will raise a present use and that this was the intent of the parties that this should raise a present use for the intent was to advance them first during their lives with the rent and after the death of the Covenantor and his wife with the land it self and therefore of necessity this will raise a present use for a bare action of Covenant may not be any advancement at all and the rather here because they who take benefit of this are strangers to the Covenant and not Preston himself for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant and therefore he said the intentions of the parties was to raise an use for otherwise there shall be no advancement at all And further the words in the indenture are Covenant and grant and if no use is raised then this word grant is idle and every word shall be so expounded that they may take effect and the word Covenant is insufficient of it self to pass an estate in land or to have any estate in signification other then to a meer Covenant and to be obligatory as is put Co. 2. Cromwels case Tirrels case there vouched a lease for years provided and it is Covenanâ—ed and agreed there the Covenant is a condition and also a Covenant and 8. Ass 1. 12. it is agreed that if I Covenant that an other shall have my land for 7. years this a good lease of the land it self and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly and in our case this word Covenant and grant is also sufficient to raise an use and to give an interest in the land it self and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee that then no use will arise but it shall rest only in Covenant Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son that the said Lady would convey to her son by a recovery and that after 6. moneths the said Sir Anthony shall make an estate to his Mother for life and there it is doubted whether the use is changed within the 6. moneths and it was holden that it was not Mich. 20. Jac. C.P. for then it is impossible that the Covenants should be performed and in that case it is in the power of the Covenantor to make an act that the Covenants shall not be performed and therefore Covenants will not raise an use but in our case no act of the Covenantor may hinder that this use shall arise and therefore good and for that the difference is Dyer 296. which is entered 11. Eliz. the Roll of which I have seen the father upon the marriage of his son promised to the friends of his wife that after his death his son shall have his land to him and his heirs and the book is ruled that this did not change the use and the reason was this Covenant was by words and not in writing but it was not doubted if this Covenant had been by writing but that the Covenant will raise an use which is all one with our case and so was Callard and Callards case 37. Eliz. stand forth Eustace reserving to my wife and my self I give to thee and thy heires and there it was doubted whether any use will arise to the son and ruled that not because this was by words only but it was also agreed that if these words had been by writing they had been sufficient to raise an use to the son and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son with the daughter of the other that he would retain his land for life and that
after his death it shall remain to his son and his wife in fee and the book is that this Covenant will raise an use also if this Covenant and agreement will not amount to raise an use then it is not to any use or purpose at all and by consequence the consideration of the marriage is void also and an action of Covenant will very well lye without any such consideration of marriage and so he concluded and prayed judgement for the Defendant adjourned Mich. 20. Jac. C. P. Johnson against Norway IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground and the Defendant pleaded that 14. H. 7. Roger Le Strange and Anne his wife were seised of the Mannor of D. and one Giles Sherington Abbot of C. was seised of an acre of land in fee and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid and that the 22. H. 7. the Abbot and all the Monks died by which the said land escheated to Roger c. and the Mannor discended to his son and heire after his death who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee and that Hobert 12. Eliz. infeoffed one Wright of the Mannor of which the said acre is parcel and so justified by a conveyance from Wright to the Defendant the Plantiff replied by protestation that the Abbot was not eligible and for plea he said that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel and upon this the Defendant demurred generally And Serjeant Attoe argued for the Plantiff that the Plea of the Defendant is evil and then though the replication of the Plantiff is not good yet the Plantiff shall have judgement and he cited Turners case Hobert it is true Cook 8. if the replication be meerly void then it is as you had said but if the replication be the title of the Plantiff and that be insufficient there the Plantiff shall not have judgement though the plea in barre was evil Attoe agreed that if it appear by the Plantiffs own shewing that he had no cause of action and that he had no title he shall not have judgement but here he had made a good title by the lease of the said acre of land and though our traverse is evil and sounds in doubleness yet the Defendant had demurred generally and so he had lost the advantage of the doubleness or of the negative pregnant for if a maâ— plead double matter this is only matter of form and not of substance and therefore after verdict it is good as hath been adjudged but he proceeded in his argument and he said that the barre of the Defendant is not good for by his own shewing this acre of land is not parcel of the Mannor for by the dissolution of the Monastery by the death of all the Monks the land shall go to the founders and donors and not to escheat to the Lord of which that is holden as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee and the Abbot and all his Monks do die the annuity or the rent is extinct and shall not escheat see the Deane of Norwiches case Coo. 3. agreed that by the death of the Abbot and his Covent the corporation is dissolved and then the possession shall go to the founders and shall not escheat to the Lord of the Mannor of which the Land was holden and he said that this point is proved cleerly by the Statute of the 27. H. 8. and 31. H. 8. of Monasteries in which Statutes there is an express saving to all persons except to the donors and to their heires and no mention is made of the saving of the right of those of whom the land was holden and that proves cleerly that if the makers of the Statute had thought that the land had escheated to the Lords they would have excepted them in the saving of the act as they had excepted the Donors and Founders for if otherwise the lands and possessions shall escheat to the Lords of which the land was holden they are within the saving of the Statute and then it will follow that after the death of all the Monks as at this day that the Lords shall have the land by escheat which the Sages of the Law never dreamt of who made that Statute that any thing may accrew to the Lord and therefore they provided only for the title of the Donors and Founders which is an argument that they thought that upon the dissolution of the Monesteries that the lands shall go to the Founders and the same he thought concerning a corporation at this day as of Suttons Hospital c. and so he concluded that because in the barre of the Defendant he claimed to hold from the Lord to whom he supposed the land to escheat and did not claim c. by his own shewing the barre is not good and though our replication and traverse is not good yet the Plantiff shall have judgement But admitting that the barre is good yet the replication and traverse is good and then judgement shall be given for the Plantiff and the case is the Defendant pleaded a feofment of the Man 12. Eliz. to Wright after that he had shewed the escheat of an acre the Plantiff replied that the 10th Eliz. the Feofor infeoffed C. of the acre of land absque hoc that he was infeoffed of the Mannor of which the acre is parcel and Attoe argued that the traverse is good and he alleadged 38. H. 6. 49. the same traverse and here when the Defendant had pleaded that the acre escheated and had alleadged a Feofment of the Mannor and had not expresly alleadged a Feofment of the acre the Plantiff may traverse that which is not expresly alleadged because this destroyes the very title of the Defendant and he cited for that 34. H. 6. 15. a writ of priviledge in trespass as a Servant to an auditor of the exchequer the Plantiff replied that he was servant to him in husbandry absque hoc that he was his servant to waite and attend upon him in his office and it was holden a good traverse and yet that was not expresly alleadged by the Defendant Hobert chief Iustice said that the traverse is not good for by the Feofment which was made the 12th Eliz. he had confessed and avoyded the Feofment which was made 10th Eliz. and so there needed no traverse and therefore he said the great doubt of the case will be upon the barre of the Defendant whether by the death of the Abbot and the Monks the land escheat to the Lords of whom that was holden or whether that shall go to the Donors and to the Founders and he thought that the land shall escheat to which
had said that he took money for ingrossing of Feodaries which is desceit without question that had been actionable but there may not be Couzning without desceit And he cited Boxes case where one said of an Attorney that he was a maintainer of suits and a Champerter action lies for it shall be taken to be a scandal to him in his profession for though an Attorney may maintain suites yet he ought not to be a Champerter and he further said that he who will maintain an action for words ought to be scandalized in his publick profession and he cited a case which was in the Kings Bench Brad against Hay and the Plantiff declared that he was Bailiff to such a one and that he had the buying and the selling of his Corn and that the Defendant said of him that he sold by false measures and adjudged that no action lies for it is not a scandal to him in his publick profession and so 36. Eliz. one said of a Merchant that he kept a false debt book and because he may be a Merchant without a debt book it was ruled that an action doth not lie but if he had said of him that he deceived men by buying and selling these words had been actionable and he said that two things are required to every publick profession science and fidelity and when a man who hath a publick profession is scandalized in either of those an action of the case lies and cited Palmers case of Lincolns Inne he being a Lawyer 't was said to him by one that he had as much Law as a Iackan-apes and adjudged to be actionable for it is a scandal to him in his profession and so Sir Miles Fleetwoods case where he who is Plantiff in this action was Defendant in that he being receiver of the Court of Wards one said to him Mr. deceiver hath Couzned the King and hath dealt falsly with him and adjudged that an action upon the case lies and yet he did not shew wherein he had Couzned him or dealt deceitfully with him but yet because it appears to the Court that he might deal deceitfully and Couzen the King therefore actionable and he cited Birchleys case you have dealt corruptly an action lies and yet he did not shew wherein he had dealt corruptly and here he had said he was a Couzner by the receipt of money which is an express scandal to him in his office Winch accordingly to every office of trust is a condition in Law annexed that he deal honestly and justly and he cited Wingates case in the Kings Bench one said to another is Wingate your Attorney and the other said that he was and the other replied take heed and follow him well for else he will make you throw your purse over your bosome and it was adjudged that an action lies for it is a scandal to him in his profession and it shall be taken as much as if he had said he will make you spend all the money in your purse if you look not the better to him and so applied this to the principal case and in this case judgement was commanded to be entered for the Plantiff in the action if no other cause be shewed before such a day An action upon the case was brought for these words the Plantiff did load a ship of my Fathers with Barley and did steal and Couzned 7. quarters thereof in measure and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement that the word Cozned being joyned with the word stole had taken away the force of that and made it but Cozning but Hutton contrary and that it shall be understood that he stole 7. quarters in measure and quantity and Winch seemed to agree and it was adjourned and an other day awarded that an action lies Godfrey Wade Alias Mack-Williams case GOdfrey Wade and others in an ejectione firme and the case upon a special verdict was to this effect Henry Mack-Williams the father was seised of land and being so seised he conveyed that to the use of himself for life the remainder to his wife for life the remainder to the heires of their two bodies engendred the remainder to the heires of the bodie of Mack-Williams the Feoffor and the remainder to his right heirs in fee and he had a son by his wife named Henry and 5. daughters and he died and afterwards the son in the life of his Mother by deed indented leased to White-Head for 31. years rendring rent and afterwards he leavies a fine to the use of himself and his heirs in fee and died and after whose death the Mother suffered a recovery within six moneths in which 4. of their husbands were vouched and the recovery was to the use of the feme for life the remainder to every one of the daughters in fee and the sole doubt was whether the lease made by Henry the son is defeated by this recovery and it was argued by Harvey Serjeant that the lease shall stand good notwithstanding this recovery suffered by the Mother for he said that Henry Mark-Williams being issue in tail and also being heire to the remainder in fee who made this lease by indenture in this case this lease issues as well out of the estate taile as out of the reversion in fee and the fine leavied in the life of his Mother binds and bars the estate taile at the time of the fine and then the lease being drawn out of the reversion in fee which discended to the daughters after the death of their brother this reversion shall be charged with the lease and the recovery had not destroyed that and this case will differ from Capels case for it is agreed if tenant in tail bee the remainder in fee and he in remainder in fee granted a rent charge and after Tenant in tail suffer a recovery by this the rent is destroyed for there he who suffered the recovery was Tenant in tail in possession but in our case when the son had leavied a fine in the life of his Mother by this fine the tail is destroyed and the Mother is become Tenant in tail after possibility of issue extinct which is only an estate for life in quantity and then though she suffers a recovery yet this doth not destroy the lease made by Tenant in tail when there was also a fine leavied to confirm that Secondly he argued that when the issue in tail in the life of his Mother made a lease for yeares by indenture and then leavied a fine and died and then the Mother being Tenant in tail and joyntress within the Statute of 11. H. 7. as in our case she is and she suffers a recovery and vouches the daughters in reversion and lessee for years enters after the death of the feme by force of 11. H. 7. for lessee for years is a person who may enter within the express words of that Statute which gives entrie to any person
who hath an interest and see for that Coo. 3. Lincoln Colledge case and Dyer 148. Thirdly he held that though it should be so that lessee for years may not enter by force of the Statute of the 11. H. 7. yet he may falsifie a recovery by the Statute of the 21. H. 8. which enables lessee for years to falsifie as well as lessee for life and it appears by the verdict that the sole intent of this recovery was to defeat the lease for years for this was suffered within 6. moneths after the death of Henry Mark-Williams the son and also the recovery was to the very same uses which they were before and therefore the lessee may falsifie the recovery it is true in Capels case the lessee of him in remainder may not falsifie a recovery suffered by Tenant in tail though it was suffered of purpose to defeat the lease for years but in our case the lease for years doth not enure by vertue of the estate tail for that is bound by the fine but this issues out of the reversion in fee and for that reason the lessee shall falsifie this recovery in an ejectione firme or in an avowry and he cited Kings case Hill 37. Eliz. B. R. Rot. 293. Tenant in tail infeoffed his son and after he disseâ—sed him and afterward leavied a fine of that with Proclamations the son entered upon the Conusee and made a feofment and the Proclamations passed and the feoffee of the son let for years and then the father and the son died and the issue in tail brought a formedon and recovered and it was agreed that lessee for years may falsifie this recovery and he said that he had seen a Note in Iustice Manwoods Study that it was agreed in his Circuit that lessee for years to begin at a day to come may falsifie a recovery and so be concluded his argument Hendon Serjeant to the contrary and he divided the case in three points First when Tenant in tail had issue a son and a daughter or two sons and the eldest son in the life of his father who is Tenant in tail levies a fine and dies without issue whether this shall binde the youngest son and he thought that it should not and yet he agreed that an estate tail may be barred by a fine though he who leauied the fine was not seised at the time of the estate tail and this by the very words of the Statute of the 32. H. 8. see the case of fines Coo. 3 and Grants case vouched Lampets case and so is the case of Hunt and King 37. Eliz. cited by my brother Harvey and so he agreed cleerly if the son who leavies the fine survives the father who was Tenant in tail that then in this case this binds the estate tail for ever and the reason is upon the very words of the Statute of 32. H. 8. or any was intailed to the Ancestor of the issue in tail and in this case when the issue doth survive the Ancestor and dies this shall binde the issue because it was intailed to him who leavied the fine who was his Ancestor for he may not make any Conveyance to the estate tail except he make mention of him who leavied the fine because that he survived the father who was Tenant in tail but when he who leavies the fine dies in the life of his father viz. the eldest son then the youngest son may convey an estate taile to him without making mention of his eldest brother and this appears by the 46. E. 3. 9. 4. H. 6. 10. 11. H. 7. 6. see the case of Buckner Coo. 8. from which cases he inferred that if the youngest brother may have an action at the Common Law without making mention of his eldest brother then such a construction shall be made of this word Ancestor in the Statute of 32. H. 8. that it shall be taken for such an Ancestor by whom the issue in tail claimes and for no other Ancestor and for this he put the case if land be given to a man and to his heirs females begotten of his body and he had issue a son and a daughter and the son leavied a fine and died this shall barre the estate tail for the cause aforesaid and for authorities in this kinde he cited the reports of Dallison of Eliz. printed at the end of Ashles Tables in Stamfords case in the end of the same case where the very difference is agreed Mich. 29. Jac. C. P. where the eldest son dies in the life of the father and where not and Hobert demanded of him by what warrant those reports of Dallison came in print And then Hendon cited the opinion of some of the judges in the case of Zouch and Banfield and see Coo. 3. the case of fines according to this difference and he said that Sir George Browns case will warrant that in the very letter of it for there it is said that no issue inheritable by force of the tail may enter after the fine by which he inferred that if he is such an issue that is not inheritable he is out of the Statute and so he concluded the first point that the fine being leavied by the eldest son in the life of his Mother that shall not barre the estate tail Secondly he argued that as this case is the feme is not within the Statute of the 11 H. 7. because that at the time when she suffered a recovery she was seised of an estate in general tail by force of the remainder which was limitted to her and her husband and to the heirs of their two bodies ingendred which took effect in the feme at the time of the death of the husband and this being an estate in tail of the purchase of the huband which took effect in remainder this may not be a joynture within the Statute of of the 27. H. 8. and then if she be not a joynteress within that Statute though this estate was of the purchase and of the acquisition of her husband yet this is out of the danger of the Statute of the 11. H. 7. for the words are any woman who had any estate in dower or in tail joynt with her husband of the purchase and of the acquisition of the husband which words of the purchase of the husband had relation to Tenant in dower or to a woman who was a joyntress and was not the intent of the Statute to make such a remainder to be within the danger of the Statute when the husband himself in his life may dock this by a recovery and therefore it is not within the Statute And as to the Third point he argued that admitting that she was a joyntress within the Statute of the 27. H. 8. yet when the feme suffers a recovery with the assent of him in remainder in fee this recovery is out of the body of the Statute of 11. H. 7. any which shall discontinue or release with warranty and
also he said that in some parts the Vicar shall have Tithe Corn and hay and not the Parson and so he concluded this to be a good prescription by the Common Law and then for the second point he argued that though the Park is disparked yet the modus decimandi continued and he vouched Beddingfields and Fields case P. 38. Eliz. B. R. prescribed to pay 10. s. for a Park this modus had a continuance notwithstanding the disparking and 18. Iac. upon a motion a prohibition was granted in such a case Hendon to the contrary and yet for the first point he agreed that a prescription to pay Tithes to the Vicar was good for here it appeares that the Vicarage is as antient as the Parsonage both being time beyond memory and it was the opinion of all this Court when the case was first opened and so he said he would not insist upon that but agree the Law to be against him but then for the second point he held the modus to be gone by the disparking for the prescription is annexed to the Park and not to the land for the prescription is to pay a Buck and a Doe for all manner of Tiths of that Park and then the prescription is in some sort annexed to that meerly as land but quatenus a Park and for this he held if a man will prescribe to pay 10. s. for the Tithes of such land and it is given in evidence to be a Park this will not maintain the issue for a Park is deceivable one way or other and so are of several natures and so Coo. 4. Lutterels case a tenure to cover the hall of the Lord if the hall is thrown down the tenure is gone and here when the Park is destroyed the modus is also destroyed but it hath been objected here that the prescription is general and therefore though the Park was disparked yet the modus had continued to this he answered that this prescription shall have such construction as a grant shall have and though it is general yet it is sub modo subject to this limitation that this alwayes continue and remain a Park and it was resolved 43. Eliz. that the Commoner may not grant over his Common except he grant over his Tenement for they may not be severed and so indeed is Nevils case in the Commentaries a man prescribed to have estovers to burn in his house if the owner destroy the house the estovers are gone for the prescription is annexed to the house and so in our case the prescription is annexed to the Park and not to the land for 18. H. 6. 21. a Park may not be without the grant of the King and the Common Law saith if a man prescribe to have Tithes in a Vineyard if the Vineyard be converted to another use the Tithes are gone for it is said tantum est prescriptio quantum est possessio and vouched Coneys case 14. Caro. who prescribed to be discharged of paying Tithes for a meadow and afterwards this was converted to arrable and the opinion of the Court was that the prescription is gone and the rather in our case because it is by the act of the party himself that the Park is destroyed yet he agreed the principal case in Lutterels case Coo. 4. for there a new will is only a translation of the old and no destruction of the thing which was before but in our case the Park it self is destroyed by the act of the party himself and therefore the prescription which was annexed to this is gone forever Also this prescription is against Common right and therefore shall be taken strictly as Teringhams case Coo. 4. a man had Common appurtenant in another mans land and he purchased parcel of the same land the Common is gone because this Common is against Common right but otherwise of a Common appendant and he cited Wilds case Coo. 8. according to our case that a prescription to pay a Buck and a Doe for the Tithes of a Park is against Common right for though Tithes are not due Iure divino yet they are due jure humano Communi and therefore the prescription is not founded in Law and it shall not be intended to the Park when that is destroyed and converted to arrable as if a man made a feofment of land with warranty and afterwards the land is improved and made of greater value then that was at the time of the feofment if in this case the feoffee is evicted and lease that and recovery in value upon the warranty he shall recover in this case only the value that this was at the time of the feofment made and not according to the value that the land is of at this day by the improvement 32. E. 3. Entry 81. and in our case it shall be intended that by composition at the first this prescription had beginning and the composition only extended to the Park and not to a new thing and for that reason the prescription is gone in this case and he cited a case in this Court M. 10. Iac. Rot. 1223. in a prohibition between Roux C. D. the Plantiff suggested that such land was parcel of a Park as in our case and that the owner had used to pay the shoulder of every Doe which was killed and 2. s. annually for all Tithes the Defendant pleaded that this was disparked and the first opinion of the Court was that the Defendant ought to plead in certain how that was disparked secondly this was doubted whether the modus as to the 2. s. was gone in regard that the shoulder of the Doe is gone by the disparking out of which he collected that the modus is annexed to the Park and not to the land and so he concluded and prayed a consultation Winch said to him the prescription is found against you and therefore you ought to have demurred Hendon if the prescription is gone the Plantiff shall not have a prohibition and at another day judgement was commanded to be entered for the Plantiff judgement if no other matter is shewed by such a day Hobert and Winch being only present The Bishop of Glocester against Wood. IN a Trover and conversion brought by the Bishop of Glocester against Wood upon a special verdict the case in effect was that the predecessor of the now Bishop was seised of the Mannor of D. and he let 20. acres of that to A. and B. during the lives of 3. of their Children rendring 27. s. renâ— per annum and also paying and delivering to the Bishop and to his successors two of the best beasts upon the death of every one of the Cestuy que vies and over the jury found that after the lease of the 20. acres the same predecessor let all the Mannor rendring the antient rent to Wood the Defendant and after one of the Cestui que vies died and he seised two of the Cattle for a herriot and whether this appertained to Wood
answered that if it is meerly Collateral then it shall not go to the successor of the Bishop but to his executors as if the lessee had covenanted or obliged himself to pay this Herriot to the successor he may not have benefit of this obligation but the executor of the Bishop who was lessor shall have that and so he said that the argument made by Hendon is against him for if it be meerly Collateral then this shall not go to the successor and though the lessee of the Mannor may not have it the Plantiff shall not have a Trover and Conversion as he said before but he held this good by way of reservation for modus conventio vincunt legem and as to that which hath been said that the Herriot is to be paid upon the death of a stranger and not upon the death of the lessee himself to this he answered that this is nothing for the payment shall be out of the beasts of the lessee and not out of the beasts of a stranger and so he concluded and prayed judgement for the Defendant Rives case SAlmon avowed for a rent charge and he shewed that Sir Robert Rives had a rent charge granted to him and he further shewed a discent of that to the son and heir of Sir Robert and shewed that the rent was behinde unpaid to him viz. to his son and heir and he avowed as Bailiff to the son and exception was taken to the avowry because it is not expresly alleadged in whose time the rent was due whether in the time of the father or in the time of the son for if it is behinde in the time of the father the son may not distrain for that but it was resolved that the avowry was very good for in asmuch that he had shewed that the rent was not paid to the son this implied the rent was due to the son and not to the father An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him and the Defendant would have pleaded the death of the Testator between the verdict and the judgement per Curiam he was not suffered for he may not plead this in a Scire Facias but the Defendant is put to his writ of error In Trespass for beasts taken in London and the Defendant justified to taking as a distress upon a lease of land in Kent and the Plantiff replied that the Defendant sold the beasts in London and so not a good plea to bring the Trial out of Kent and to have that tried in London which note Batterseys case AN action upon the case was brought against one Hordecre upon an assumpsit and he declared that the Defendant had arrested one Battersey by vertue of a Commission of Rebellion out of the Cinque ports and that the Plantiff keeping a Common Inne the Defendant brought the said Battersey to his Inne and requested the Plantiff to keep him a day and a night and promised in consideration there upon that he would save him harmless and he shewed that he kept the prisoner accordingly and that the said Battersey brought an action of false imprisonment against him and recovered against him upon which the action accrewed and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed that the said Battersey was lawfully arrested and imprisoned and then if a man will without cause arrest a man and promise in this case no action will lie for it is no consideration because that the imprisonment is unlawful but Hobert chief Iustice Hutton and Winch contrary for be the imprisonment lawful or not lawful he might not take notice of that as if I request another man to enter into another mans ground and in my name to drive out the beasts and impound them and promise to save him harmless this is a good assumpsit and yet the act is Tortious but by Hutton where the act appears in it self to be unlawful there it is otherwise as if I request you to beat another and promise to save you harmless this assumpsit is not good for the act appears in it self to be unlawful but otherwise it is as in our case when the act stands indifferent but Hobert said it may be there is a difference between a publick officer and a private man for if the Sheriff arrest a man unlawfully and promise as before this is a good assumpsit but perchance otherwise of a private man as here but in the principal case the Defendant had pleaded non assumpsit and this implies a Lawful imprisonment for otherwise the Defendant might have given the unlawful imprisonment in evidence and judgement was commanded to be entered for the Plantiff Claworthy against Mitchel CLaworthy against Mitchel in a replevin the Defendant avowed for a rent and shewed that his father was seised and let for years rendring rent and he died and that the reversion descended to him and for rent behinde he avowed in barre of which avowry the Plantiff said that the father devised the reversion to another and the other maintained his avowry and traversed the devise and it was found that the devise was only of two parties and not of the third part for in very truth the land was holden by Knights service and all this was found by special verdict and for whom the jury had found was the question and it was argued by Hendon that this verdict is found for the avowant and he vouched 32. H. 8. Brook issue 8. in a precipe quod reddat if the issue be whether A. and B. infeoffed the Tenant and it is found that A. infeoffed him but not that A. and B. infeoffed him the issue is found against the Tenant see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land and upon non demisit pleaded it is found quod demisit all except one parcel this is found for the Plantiff and â—rin 15. Iac. Rot. 2022. Allen against Soper in a replevin for a horse and avowed for damage fesant and the Defendant claimed Common for his beasts Levant and Couchant upon his land and some in this case were found Levant and Couchant and others not and it was found against the Plantiff and he said in this case when the Defendant had alleadged a devise of all the land and upon this issue is joyned and it is found that part is devised and not all this is found against the Plantiff because the issue is joyned upon a particular and a special point whether all was devised or no and yet he agreed that upon a general issue as in trespass in 20. acres of land and the Defendant is found guilty but only in one yet the Plantiff shall have judgement but not where the issue is joyned upon a particular point as here but admitting that the Plantiff shall have judgement yet the avowant shall have return
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
contingencies by which these remote possibilities shall not be released Hoes case Coo. 5. there a release of all actions and demands to the Bailee made this void and in the case of Brown and Pell which was remembred before it was the opinion of all the Court against Judge Doderidge that where the devise was to the son in fee and if he died without issue living that then his eldest brother shall have that if in this case the second son suffer a recovery yet this had not destroyed the possibility which the eldest brother had to have the land and if a common recovery which is matter of record and the common assurance of the realm will not take away this possibility a fortiori a release which is but matter of fact and so he concluded and prayed judgement for the Plantiff Bawtry to the contrary and he said that if this remainder shall be good then the inconvenience which the judges had alwayes endeavoured to take way shall be on foot again as in the case of Chamley and Corbets of springing uses for if it shall be lawful for a man to limit a fee upon a Collateral condition or limitation then there shall be a perpetuitie and for this if any litteral construction shall be made upon such conveyances this will introduce dangerous events to inheritances and for that he held that limitation to the Plantiff to be meerly void for when the land is devised in fee this devisee by this had an absolute estate in fee and it shall be strange to give this to another though this be by way of devise for though the will of every man shall be supplied by the intent of the devisor yet his intent ought to stand with the rules of the law and otherwise his intent shall revert and for that he cited 29. H. 8. a man made two executors provided that one of them shall not administer here the intent did plainly appear and yet because the intent is contrary to the power which the law gives to every executor therefore it is void and it is put for a bare rule in Corbets case that such a conveyance which a man may not make in his life time by act executed he may not make by his Will but a man may not make such a conveyance by act executed in his life time for as it is said in Colthirsts case if a man let for life the remainder for life upon condition that if the first lessee do such a thing that then the land shall remain over to a stranger this remainder is void for when the land is given before this second limitation is meerly void and also the case is put that if a man give lands in fee upon condition the remainder over this remainder is void for the other had an estate in fee before by which it is apparant that when an estate is one time lawfully vested in any certain person there no limitation may give that to a stranger by any act executed in his life at the common law and then it shall not be good by way of devise 28. H. 8. Dyer a term was devised for years the remainder over and it was adjudged by Baldwin and by Shelley that the remainder in that case is void for when the devisor had given his term he may not limit this remainder over though this be by way of devise and this may be good law notwithstanding Lampets case for there the lease was devised and not the land and for that reason may be a difference and he vouched the case which was remembred by Richardson 29. H. 8. 33. and then as to the second point he held that the release was good admitting the first point to be against him for if the eldest son had any right by this release then this word right in the release will destroy and extinguish that and this possibility is not remote and forraigne for the condition or limitation is annexed to the estate and is not a subsequent condition which creates an estate and this depends upon an ordinary casualty which is common to all men and the payment of debts and of legacies is incident and common to every executor and as for Albanies case Coo. 1. the case was that a man had a power to revoke uses upon the death of a stranger without issue and resolved that this power may be released and yet his power depended upon two contingencies death and death without issue and the case is also there put if A. infeoffe B. upon condition that if B. Survive C. and then if A. and his heirs pay to B. 10. l. that then he shall enter in this case there are many contingencies involved in one conveyance and yet it is there said that these contingencies may be released and in Lampets case Coo. 10. there are six reasons wherefore such a contingencie may be released and our case is within all the reasons which are there mentioned for the words in the release as have been remembred by my brother Richardson are all one with our case and the first reason is because this is a Chattel which as it may be easily created so it may be easily destroyed to this he gave answer that this remainder of a Term was an interest to him who released and so in our it is an interest of a remainder to the Plantiff and for that the release is good Secondly it is a maxime in Law that every land may be charged one wayes or another and we are within this reason also for if this estate be in the Plantiff then this may be released Thirdly the foundation of every act ought to be regarded for Grants case there vouched destroyes the possibility with a fine by reason of the original act the fourth reason there remembred is because that if the devisee had been dead his Executor shall have the interest the same reason in our case if the Plantiff had been dead before the remainder or the contingencie hap yet his heir shall have that See Shelleys case the fifth reason is the legacie was in present though this was to take effect in futuro and so in our case the Will is in present though the state is to take effect in futuro and sixthly it shall be against reason to establish such a perpetuity of a Chattel and so in our case it shall be against reason to establish a perpetuity of a franktenement and the release is very well penued for it is of all his title right and claim to the reversion and remainder which the father devised to the Plantiff and so the release is not general but this is a particular and special release of that which was devised to him by his father and Hoes case Coo. 5. is not like to our case for first there the duty was altogether incertain and secondly the condition there did precede the duty but in our case the condition is annexed to the estate and so he concluded and
his son and to Elizabeth Preston and to the heirs of John and so the Defendant claimed by vertue of a lease for 1000. years made by Iohn Buckley and the Plantiff demanded Dyer of the Indenture which was read to this effect that Andrew Buckley by the said Indenture covenanted with Preston that in consideration of a marriage between his son and the daughter of Preston that he will grant a rent charge of 6. l. 13. s. out of his land at Weymouth and at Melcombe Regis payable at 4. usual feasts and he Covenanted for him and his heirs that he would convey the land in Melcombe Regis and Wike Regis to such persons as Preston should appoint provided that the said Andrew Buckley and his wife may injoy that during their lives without impeachment of waste and covenanted that immediately after their deaths the lands shall immediately remain come and be to the said Iohn Buckley and Elizabeth his wife and that the advowson of Bradway shall remain come and be to the said Iohn Buckley and Elizabeth his wife and upon all the matter the question was whether by this last covenant an use will arise of the advowson in Bradway to Iohn Buckley for if an use is raised to him then this lease made by him is good and by consequence the title of the Defendants is good to present to this advowson and if not then the fee alwayes remained in Andrew Buckley the Grandfather and by devise discends did come to Andrew Buckley the Husband of the Plantiff and thâ—n the quare Impedit is maintainable And Hutton began his argument he argued that no use will arise to Iohn Buckley by this Indenture for when a man will raise an use by way of covenant there are 4. necessary things which ought to concur First is a sufficient consideration as of blood or marriage or other Collateral considerations as if I covenant with you that when you infeoffe me of certain land I will stand seised to the use of you and your heirs this is good but if the consideration be for money then this ought to be inrolled or otherwise no use will arise the second point is there ought to be a deed to testifie this agreement for otherwise no use will arise as was resolved 38. Eliz. in Collard and Collards case Thirdly he who covenants ought to be seised of the laâ—d at the time of the covenant as was resolved 37. Eliz. in Yelvertons case a man covenanted to stand seised to the use of his son of such lands as he should afterwards purchase and it was holden void because he was not seised at the time of the covenant and lastly the uses must agree with the rules of the Common law Cook 1. and he cited Chudleys case a man covenanted to stand seised to the use of one for years the remainder to the right heirs of I. S. this remainder is void though this is by way of covenant and use for the free-hold may not be in abeyance and so if I will at this day bargain and sell my lands in fee they shall not pass without the word heirs for it was not the intention of the said Statute to raise uses in such mannor contrary to the rules of the Common law or uses which are uncertain and in our case the intent was that no present use shall arise for out of the same land is granted a rent charge to Iohn Buckley and Eliz. his wife by which it appears plainly that it was not their intent that any present use should arise by the delivery of the indenture and if the use do not arise presently upon the delivery of the Indenture it shall never arise at all also the intent appears for it is that the land shall remain free from incumberances and this sounds only in covenant and for this reason the covenants shall be of the same nature and lastly the covenant is that the land shall remain and be and this is altogether incertaine and for this no use will arise because this failes of words as if I covenant to leave my lanâ— to my son after my death this will not raise an use to my son no more then if I covenant with the friends of my wife that after my death she shall have my goods this will not make my wife to be Executor and he vouched 21 H. 7. 17. 34. H. 8. 59. the Lord Borroughs case Dyer 355. 166. 324. and so be concluded that judgement ought to be given for the Plantiff Iustice Winch argued to the same purpose and he said the first part of the covenant contains that there shall be a marriage before such a day if the parties shall agree and the second part is a covenant that the feme shall have 6. l. 13. s. for her joynture and if this covenant executed an use of the land presently then this destroyes the joynture which was not the intention of the parties Thirdly there is another covenant to convey Coppihold land and if this covenant do raise an use then it will follow that Iohn Buckley shall have the land though the marriage do take effect and besides the covenant doth create an use presently or not at all and then when this use is to be raised by this covenant which contains in that nothing but future and Executory matter this will not create a present use and he cited the books which were vouched at the barre and by Hutton and so he concluded that this covenant will not raise an use presently to Iohn Buckley and that judgement ought to be given for the Plantiff And at another day the case was argued by Hobert chief Iustice for the Plantiff and that no use will arise by this covenant and he said if I will covenant to make assurance of my land to my son or to a stranger this covenant is meerly nugatorie and will not raise an use but on the contrary if I will covenant to stand seised to the use of my son though there is also a covenant to make further assurance yet this will raise a present use for the covenant is declaratory and not obligatory and so is Dyer 235. and there was no word to assure the land or to stand seised to uses but only that the land shall come remain and be in tail or in fee and there was no word to assure the land and this case is agreeable to the case of 21. H. 7. 18. by Rede that no use will arise and the reason is plain because the covenantor had election in which manner he shall have that whether by discent or in any other manner for if I covenant that my land shall descend to my son after my death no use will arise by this covenant and he put the case in Chudleys case that if a man covenant that after his death his son shall have his land in tall it is said that the son shall have an estate executed by the Statute of 27. H. 8. and the
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
Infant was not bound by this Covenant at the Common Law and no Collateral covenant shall be maintainable upon the Statute for this being against an Infant it shall be taken strictly as a custome that one shall infeoffe yet that custome will not warrant him to lease and release and as to that which had been said that it is incident to every retainer to serve truly and faithfully that is very true and an action upon the case lies upon a covenant in law but not upon the covenant in fact he ought to have Collateral securitie which was also confessed by Hutton and he said moreover that the retainer is for the benefit of the Infant that he learn his Trade but the covenant here is for his disadvantage and for the advantage of his Mr. and for that reason it is void as if an Infant had covenanted to pay 10. l. for the learning of his Trade when his time was up Winch Iustice contrary to that last point for he thought the covenant to be incident to the retainer and good though he is an Infant as an Infant who levyes a fine is also inabled to make an indenture to lead the uses and note that Hutton and Hobert said also that the barre of the Defendant is good viz. the pleading of the want of the certificate and for that reason the replication of the Plantiff that he had 40. s. per annum is evil and though the rejoynder of the Defendant is evil and a departure yet it appears that the Plantiff had not any cause of action and for the covenant they said that they two are strong in their opinions and upon that Winch agreed also that judgement shall be given against the Plantiff and Attoe moved the Court what remedy the Plantiff may have for the loss is 500. l. and per totam â—uriam he shall not have an action of accompt for that lies not against an Infant being an apprentice Coo. 11. 89. and the Court said that as to the retainer and the damage it is no more then if an Infant had been retained by word and there is not any remedy but an action upon the case and Attoe said that they had thought to have brought an action of Trover and conversion and he doubted whether that will lie and after the Court said to him you had best to bring an action upon your case and it was afterwards ordered by Arbitrement Oxford and his wife against Goldington IN a Prohibition for Oxford and his wife against Goldington to the Court of Audience for they are sued there for a legacie devised to the Plantiff by one George Cotton and this is as they are Administrators to one William Cotton who was executor of the said George for that he libelled against the Plantiffs in the Prohibition in the Court of Audience and had shewed that they had goods of the first Testator and a Prohibition was awarded and Finch moved for a consultation and he said if by the spiritual Law an Executor wasts the goods of the Testator and after dies intestate that in this case his Administrator shall answer that viz. the debts and the legacies of the first Testator and Doctor Pope who was present in the Court said that the Law was so and so he said the Common Law was that is the Statute of 31. E. 3. which gives the same remedy against an Administrator as against an Executor if the Executor die intestate for it is the interest of the first Testator upon which the Administrator shall be committed to the next of the Kin and if none will take that upon them then the Administration of the Executor ought and ought to take several letters of Administration for that and if no letters of administration is taken and yet he meet with the goods he shall be charged as an Executor of his own wrong and if no goods be of the first Testators then it is no reason that he should be charged and the Statute of 31. E. 3. gives no remedy per Curiam but against the immediate Administrator and if the case be as you have alledged then the Legatee or the debtee is at no damage or mischief for he may sue the Administrator of the first Testator if he had goods or any other who had goods as Executor of his own wrong and if none will take letters nor yet meddle with the goods then the debtee or the Legatee may take letters of Administration himself and so no consultation was awarded but the Prohibition stood Avis against Gennie and others ONe Avis brought an action of Trespass of his close broken against Gennie and two others and the writ was general but in the the declaration he affirmed that to be in Ayring half a Rood and in digging another half Rood and after in his new assignement shewed that to be a Sellion containing by estimation and acre and it was found for the Plantiff and damages assessed to 20. s. and now it was moved in arrest of judgement by Attoe because the new assignement is more large then the declaration and the opinion of the Court was that because this was but an action of Trespas where damages only is to be recovered that this is very good but otherwise it is perthance if that had been in an ejectione firme Brigs case BRigs brought a Prohibition against another and alledged that the Dean and Chapter of D. was seised of the Mannor and the Defendant being Vicar sued to have Tithe in Court Christian and shewed that time beyond memory c. they had held that discharged of Tithes for them and their Tenants and that they let that to the Plantiff and it was moved by Hendon Serjeant that the Dean and the Chapter are a bodie Politique and temporal which are not capable of this prescription in non decimando Coo. 2. the Bishop of Winchesters case Hobert said that the Dean and Chapter are a bodie spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for Winch said he may be a lay man and for that the Plantiff ought to averre that he is a spiritual person Hutton confessed that the Dean may be a lay man as was the Dean of Durham by special licence and dispensation of a King but that is rare and a special case and is not common and general and therefore not to be brought as an example which was also granted by Hobert chief Iustice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted Anne Summers case in Dower A Writ of Dower was brought by Anne Summers against the Tenant of the land and he pleaded a fine with proclamations levyed by her husband 14. Iac. in which year the husband died and the wife had not claimed within the Statute
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
Leonard Barley Plantiff and Foster Defendant it was agreed without scruple by Winch and Hutton Iustices only present in the Court that if a man infeoff another to the use of A. for life and after his death to the use of his daughter till B. pay her a 100. l. and then to other uses c. to the use of B. I. in this case the daughter had not any remedy for the 100. l. if B. will not pay that except he make a new promise and then upon that she shall have an action upon the case upon which if shee recover and have satisfaction the use will arise to B. but otherwise not though she have judgement to recover that and whether this same is discharged is triable by the record of the recovery John Theaker's case NOte that one Iohn Theaker was seised of certain lands and died in Ianuary last and his wife was married to one Duncombe within a week after and one Alphonsus Theaker entered into the land as Cozen and heir to Iohn Theaker deceased and the wife of Iohn Theaker who was dead gave out words that she was with child by her first husband and upon that Alphonsus Theaker had a writ de ventre inspiciendo directed to the Sheriff of London to inquire by 21. Knights and 12 women in the presence of the Knights whether she was with child or no and the Sheriff executed that and returned that they thought that she should be brought to bed within 20. weeks and upon that it was prayed that the Court would award according to Bracton that she may be taken into custody and that she may have divers women of fashion which may attend her daily till she is delivered that no deceit may be contrived against Alphonsus to deceive him but the Court would not agree to that though there was a president urged Hill 39. Eliz. Rot. 1200. Sir Percival Willoughby and the Lady Willoughby his brothers wife in this Court but the Court awarded that she should not be taken and detained from her husband but that a writ should issue to the Sheriff of Surrey whither the woman was now removed to return divers sufficient women which may resort to her daily till she is delivered which was done accordingly Fosters case FOster brought an action of debt of 300. l. against C. upon 2. obligations dated 20. December to pay him 150. l. c. and averred he had not paid that and did not say nor any part of that and Bing took exception to that in arrest of judgement because he had not averred that he had not paid any part of that and perchance he had paid part but not all but Hutton said that it is very good though this be upon several bonds and it any be paid it ought to come of the other part to shew that Woolsey was outlawed at the suit of Iones in an action of debt upon an obligation and the Capias ut legatum was taken out of the Court of the common pleas where he was outlawed in Trinity Term 21. Iac. and in December following Woolsey was warned to be at the Town of Shrewsbury to chuse Burgesses and before the day a binding process did issue out of the Marshes of Wales against Woolsey after Iones had delivered the Capias ut lagatum to the Sheriff to take Woolsey and the same morning that the election was Woolsey was taken upon the Capias ut lagatum but he was suffered to go and to give his voice in the election and then the Baileys of the Marches of Wales arrested him upon the process and because the Bailiffs of the Sheriff would not suffer the Bailiffs of the Marches to take him away from them there was gathered a great riotous companie on both sides but the Bailiffs of the Sheriff took him away and they and all them who took their parts were sued in the Marches for the withstanding their Bailiffs and upon this Harris moved for a Prohibition and the Court c. Winch and Iones said that if he is outlawed bona fide it shall be granted for the Bailiffs of the Sheriff had lawfully arrested him and it is lawful for them to keep him and for others to assist them and Winch said that if the persons which stood by had refused to help them this had been also sinable and it was said that the suffering him to go to the election was not any signe of a fraudulent arrest nay if the partie himself had consented to a fraudulent arrest upon a Capias ut lagatum this had not been punishable though they had known that there had been binding Process out against him because the arrest the detainer was lawful and agreed in the principal case that a Prohibition shall be granted and it was said that the other side are punishable because they did not aide the Sheriff for the officers of the other side were the cause of the Riot Sir Michael Wharton and Sir Edward Hide IT was agreed without scruple between Sir Michael Wharton and Sir Edward Hide that if a man in an avoury convey a good estate for years to two and one release to another that is not good without the shewing of a deed in that case Michael Bone and the Bishop of Norwich IT was agreed between Michael Bone and the Bishop of Norwich in trespas that by the lease of a Grange and all houses and buildings thereupon and belonging or let heretofore to one Edward Garrard that in this case if it may not be proved that the Tithes were not let to Garrard then they will not pass by this lease for it is not possible that Tithes shall pass as appurtenances to a grange because that they are of several natures except as Winch said that the Grange is the Gleab for if it is then the Rectory may pass by this name William Trist and Cawtrel at the suit of Heath WIlliam Trist and Cawtrel were bound in an obligation of 40. l. to one Heath who brought an action of debt upon that and recovered at the assizes and now it was moved in arrest of judgement that this was a mistrial for the venire facias was between Heath and Iohn Trist and the Sheriff returned that to be between Heath and William Trist and for this variance he shall not have judgement in the Case Hutton said in the case between Mankleton and Allen. MAnkleton and Allen that is a man had goods taken from him which taking he supposeth to be fellony but it is not and he complains to a Iustice of peace of that who commits the offender and bindes the other to prosecute and he accordingly preferred a Bill at the Sessions and the other is acquitted and the opinion of Hutton in this case was that this is not punishable by an action upon the case in the prosecuter for that shall never be maintained without apparant malice in the prosecutor Blunt and his wife against Hutchinson BLunt and his wife brought a quare Impedit
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
reversion for life of the Grandfather is no dispensation to the estate of the lessee for though the action was suspended during his life yet now it is on foot again and in many cases an estate may be dispunishable of waste and yet by matter ex post facto this shall be punishable viz. where the first privitie of the estate was determined as in case a lease for years be without impeachment of waste and then the lessor releases to the lessee c. the first privity is gone and he is now punishable in an action of waste and here in our case there was no absolute dispensation but only for the time and yet perchance though the estate is subject to waste in the creation yet if the lessor will afterwards by his deed grant that this shall be dispunishable this may priviledge him but here is no such matter in the case at the bar and of this opinion was the Court and Winch said that there was no difference where the Franke tenement is intercedent for if this be not punishable yet the particular estate shall not participate of that priviledge of him in the remainder and Iones Iustice said if the particular estate had been extracted and drawn out of that estate for life in that case that had been dispunishable but it was agreed by Hendon Serjeant that the Plantiff in his declaration had declared of a waste after the estate for life was determined and they found that this was made in the time of him in reversion for life and so differed but the Court was of opinion that this was nothing to the purpose for it is only a variance from the time and not from the matter for it is not material whether this was before his death or after his death because in both cases this is punishable but day was given over to shew other causes Portington and Beamount IT was argued clearly in the case between Portington and Beamount that if the Court of the Councel of York which is a Court of equitie do decree against a maxime in law as against a joynt Tenant who had that by Survivorship that the heir of his companion shall have the Moietie that in this case a prohibition shall be granted except that during the lives of the parties it was agreed that there shall not be any Survivorship and then they hold plea upon that equitie and then good In Dower it was agreed clearly that if the Tenant shew that before the husband any thing had in the land A. was seised of the same land in fee and leâ— that for years rendring rent and granted the reversion to the husband of the Plantiff who died seised of the said reversion and so demanded judgement if the demandant shall have Dower c. this is no plea in bar of Dower but proves she had title of Dower but this saves the lease for years and she shall have judgement only of the reversion and of the rent and also she doth save to the Tenant damages and the demandant shall be indowed of the reversion Summers against Dugs SUmmers brought an action upon the case upon a promise against Dugs and he shewed in his declaration that the Defendant was rector of the Rectorie of D. and that he and all his predecessors had used to have all manner of Tithes and said that he the Plantiff occupied 100. acres of land in the same parish and shewed that the Defendant promised to the Plantiff that in consideration that he would plant his lands with Hops and so make the Tithes to be the better the Defendant promised to the Plantiff to allow him towards every acre which he shall so plant 40. s. towards the charge in planting them and he shewed that he planted an acre at the request of the Defendant and so upon the promise brought the action and now it was moved whether this was a good consideration to ground an action because the Tithes are not bettered by the planting of that with Hops but by the growing of them and the increase of them and he had not averred that the Tithes were of better value then they were before and it was also moved that he may not have an action for the Rood c. but this afterwards was referred to Arbitrement but the Court said if the Plantiff had shewed in his declaration that he might have made more benefit of that by other means then that by the planting of it with Hops the Tithes also being bettered then it had been more cleare Philip Holman against Tuke PHillip Holman was executor of George Holman and he brought an action of debt against George Tuke and declared upon a lease made by himself by the name of Philip Holman executor of the Testament of George Holman deceased of such land and the said land was delivered to him in execution of a Statute by extent which Statute was made to this Testator and this lease was for years if the Plantiff should so long continue seised by force of the Statute and it was rendring 100. l. per annum and for 3. years rent behinde he brought his action in the debet and in the detinet and also in the declaration he averred that he did continue seised so long by vertue of the extent and Serjeant Bing demurred in law because he said the action ought to be brought in the detinet only because he had brought the action as executor but Hendon and the Court c. Iones and Hutton to the contrary because the lease was made by himself and Hutton said in the case there is difference between a personal contract and real and it was said that an executor shall never be forced to bring his action in the detinet only where he need not name himself to be an executor which note well It was agreed in a case by Hobert that where a man brought an action de parco facto and declared upon the breach of a pound and also of the taking out of beasts and the Defendant as to the taking out of the beasts pleaded not guilty and as to the breaking of the pound he said that he was Lord of the Soil upon which the pound stood and thaâ— he brake of the Lock and put a lock of his own and Hobert said in this case that he ought to plead the general issue for in verity this is not any broach of the pound except the beast come out of it and Iones Iustice was of an opinion that if he put out the beasts he may not have this action because the freehold was in him but he ought to have a special action upon the case Entred in Easter Term in the 19th year of King James Rot. 1672. Ellen Goldingham against Sir John Saunds ELlen Goldingham brought an action of Dower against Sir Iohn Saunds to be indowed of the third part of the Mannor of Goldingham and he vouched the son to warranty as son and heir to Christopher Goldingham husband of
because this is for Merchants and the Statute was made for their securitie and by intendment they are men of forraign imployment and so have the less occasion to know the Law and these Statutes of traffick are to be cherished and not be pared to the verie quick and we all agree that every substantial matter ought to be pursued but not circumstances and then the question is whether this be substance or circumstance and we also agreed that there ought to be a time certain when the money shall be paid and that is either an actual time or a legal time and for the material points that ought to be acknowledged before an officer and in the Statute of Acton Burnel this word Maior is in that and no other principal officer and yet there is no doubt but that this may be taken before another who is a principal officer of a corporation though he be not a Maior Secondly this ought to be also before the Clark Thirdly it ought to contain words obligatorie Fourthly there ought to be a person bound Fifthly this ought to contain a summe but it may be a doubt if an action of debt will lie for that Sixthly it ought to be under the seal of the partie Seventhly it ought to be under the seal of the King Eightly the inrolments is also necessarie and this Statute is such a remedy as the Common Law never gave to the King himself so all assurances in this kind are to be made to the Merchants and certainly in our case the day is not so material but the time which the law will take notice of for the ignorance of the Maior must not make any Statute void and I do not grant the case that if this was to pay 10. l. after the death of S. P. this will not make that void but if the Statute be to pay at several dayes then then it is a quere in law whether it be payable till all the dayes of payment be past as of a bond and for the writ it is but to proportion our actions according and to do after this way or manner and so upon the whole matter I conclude that the Statute is good and that the audita querela doth not lie and judgement per Curiam was commanded to be entered against the Plantiff The case of Giles Bray was moved again in arrest of judgement and Hendon said that the Plantiff had declared of a waste made after the death of the said Edmund Bray the Grandfather which was to his disinheritance c. and the Iury did finde the original lease and assignment and they found that the waste was made before such a day which was before the death of the Grandfather and now he said that because it is found generally that before the death of the Grandfather the waste was made and this was found precisely and it is not found precisely that at the time of the waste made he was termor in possession and that is not good for it may be that he made that before the assignment and then it is not punishable of waste and if the waste was made in the life of the Grandfather he ought so to have declared for otherwise it was not immediately to his disinheritance nay the Grandfather might have during his life released or confirmed to the Tenant and so have determined the waste and then he in reversion shall not recover like to the case where an Abbot declares of the waste against the lessee of his predecessor and declares of waste generally this is not good for if this was made in the time of his predecessor then he may not punish that and so in our case perchance the Grandfather had released and then he in reversion may not recover but as to the first exception the Court seemed that because the Plantiff shewed expresly that he was possessed by vertue of the lease and he being so possessed made waste the finding of the jury shall be agreeable to that and so this exception was over ruled and for the other the rule of the Court was that whether this waste was committed in the time of the Grandfather or after his death this waste was to his disinheritance and the Grandfather by his release might not by any means discharge that waste for he may not transfer that priviledge and so the judgement was given for the Plantiff The residue of Trinity Term 22. Jac. C. P. NOw the case of Sir Robert Napper and Sir Thomas Earsefield was moved again in which the Plantiff assigned the breach because that after Sir Thomas and his wife did live asunder the land was not open nor subject to distress of Sir Robert Napper and upon the opening of this to the Court the Court conceived that this rent was granted to be paid immediately and to distrain for that but afterwards there is a clause that it shall not begin in point of payment till Sir Thomas and his wife did live asunder and then it shall be paid the first day which was limited after and Crawley Serjeant said that the intent was that it should begin presently and that it should be subject to distress and therefore to make that an entire covenant is against the very intentions of the parties for covenants in nature are several also if they shall be construed otherwise the partie shall be without the remedy which was intended S. a distress but the Lord Hobert and Winch were of opinion that if Sir Thomas Earsefield had received his estate truly that he had but a reversion expectant upon a term for years and then had made such a grant and such covenants then in this case the covenant had not been broken and then the meaning would be that he should not have any rent till he had one to grant but it doth not appear here and therefore is a difference and the covenant is broken and Winch said that the intent was that the wife shall have that for her maintenance when they did live asunder so that then it shall be paid to the use of his wife for this was in trust for her and for that reason they ought to be several covenants of necessitie for the state of the Mother of Sir Thomas Earsfield did not appear in those indentures and then he ought to take that as it is at this time and the appearing of that now is not material and if any other construction shall be made then the parties to the indentures shall be deframed Hutton of the same opinion that they are several covenants in the intent and meaning of the parties and they are of several natures for the first covenant is in the affirmative the second is in the Negative and the third is in the affirmative and it is all one as if the word covenant had been to every clause in express words for he did not say that this should be alwayes open and lyable to distress according to this estate for then it had been but
one covenant and it had been otherwise for if no estate had appeared he shall not be chargable in law nor perchance he would not deal with him and we ought not to take notice of any thing but that which is upon record nay his own plea proves that they are several covenants for to the negative covenant he pleads negatively and to the other he pleads in the affirmative and so the very intent proves them to be several covenants and Hobert of the same opinion that it shall be taken as a present grant to charge the present possession and so judgement was commanded to be entred for the Plan. Entred Easter Term 18. Jac. C. P. THe case of Goldingham and of Saunds was new moved again by Serjeant Winch and he prayed a writ of seisin against Saunds and the doubt was whether the first judgement being absolute with a cestat executio was good or whether this ought to be conditional and I conceive that in our books there are those differences in this point if the Tenant do vouch in a forraign Countie then without any more the demandant shall have judgement against the Tenant presently 17. Ed. 3. 50. 13. H. 4. judgement 224. because the demandant shall not recover Cook 9. but onely in the same Countie and the reason is clear in Anne Beddingfields case because the original may not extend to another Countie but if the voucher be in the same Countie then in some cases it shall be against the vouchee and in some cases it shall be against the Tenant and if the vouchee will come and render Dower then the judgement shall be conditional against him c. if he had in value and if he had not then against the Tenant and the other against the vouchee and so is Dyer fo 202. and Grayes case was a conditional judgement against the vouchee and so is the case 18. Ed. 3. fo 56. out of which books I note that in some cases the vouchee shall have judgement against him and the judgement in that case shall be conditional and so if the vouchee make default then the judgement shall be conditional against him 4. Ed. 3. 35. the old print 2. H. 4. 7. but if the case be that the demandant is delayed in his execution by the vouchee then he shall recover against the Tenant as if vouchee be in the ward of the King Dyer 326. and so in the case of a Common person as is 17. Ed. 3. by the Reporter who also cites a judgement given in the time of the same King though the opinion of the book is against that but then it hath been said that this is mischievous for then the Tenant shall loose his warranty I answer no more then when he is vouched in the ward of a Common person and over this the Law doth provide a remedie for him See 27. H. 8. cap. 10. 32. H. 8. cap. 5. as the Act of H. 8. if the feme be evict of the Dower by a title which is paramount then she may have a scire facias against the Tenant and if the vouchee had not assets in this case then the Tenant shall have execution against them as they hap and so is the judgement in Dyer 202. and there was a judgement in this Court 38. Eliz. Marie Ashburnham brought a writ of Dower against Skinner who vouched the heir of the husband as in this case and they were at issue upon assets in the same Countie and the same judgement as here and it was found by verdict for the vouchee and after the judgement and before the voucher was determined a writ of error was brought and affirmed and our case here is as strong as this and so I pray a writ of seisin for the demandant Serjeant Hendon to the contrary the question is whether this ought to be a conditional judgement or whether this may be absolute with a cesset executio as the case was here and I shall lay this foundation that it is in the election of the feme when the heir is vouched in the same Countie whether she will have the same against the Tenant or vouchee but for the case of 17. Ed. 3. that is but a quere of the Reporter which I do not value for the book it self was otherwise that it ought to be conditional because it is in the election of the feme to have that against either and for Dyer 202. there the question is whether the judgement shall be presently or stay and expect till the issue is tried between the vouchee and the Tenant but no question whether this shall be conditional or no and the reason is when he is vouched in the same Countie if he had assets then she had not election for there it shall be onely against the vouchee if that be found by verdict or confessal and this is for the benefit of the purchasor and also for the benefit of the demandant in Dower for the warranty in the antient time was the Common assurance of the realm and for that reason if the judgement may be against the heir it shall never be against the Purchasor and also it is for the benefit of the feme who is demandant in Dower for if she be indowed against the Tenant and afterwards she be evicted she shall not have a scire facias but if it was against the heir then she shall have a scire facias to have in recompence and so is 16. Ed. 3. Iudgement 3. that if in Dower the heir is vouched and made default the judgement shall be against him out of which I do conclude that the judgement ought of necessitie to be conditional for by this the State of the feme and of the Tenant is preserved for if the feme shall have that against the heir then she saves her warranty in Law and therefore if the judgement at the first may be absolute then you take away all advantages from the feme and the purchaser if it hap that it shall be against vouchee and for that reason it is not good for it is unalterable and it is a principle in out Law that the feme shall recover against the heir if he be vouched in the same Countie if he had assets and not against the Tenant 6. H. 3. Dower 16. the demandant shall recover immediately against the vouchee when he was vouched as heir and so is 18. Ed. 3. recovery in value 16. et 31. Ed. 3. vouch 30. there the judgement was against the vouchee though he had nothing by descent at the day of the writ purchased there is a writ in the register which recites such a recovery voucher and judgement conditional and so is the 34. H. 6. expresly and for that to say that the judgement may be absolute is to make all those books erroneous and the case of Dower differs from all other cases of vouchers for if land discend in tail it is sufficient assets for the feme to
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
he was seised in fee and that he had power to alien that and this was to encourage the Purchasers and for the form he needs not aver that this was in the hands of Anne Parker for he had confessed that in the bar that he came lawfully to that and besides the Covenant is broken though he never was seised and so I conceive that the Plantiff shall have judgement Winch to the same intent it is true if it had been all but one Covenant then if it had been no question this had not been broken but I think they are several Covenants like to the case of Sir Robert Napper lately adjudged also the first two Covenants are in the affirmative and the other in the Negative and for that they ought to be answered with several pleas and these kinde of assurances are the Common assurances and therefore they ought to be interpreted favourably for the Purchasers and Iohn was not deceived in these Covenants for they brought down upon the deed an estate in fee and it is also agreed if the word Covenant and grant had been divers times added to the several clauses then they had been several Covenants and now it is all one word and made those to be several Covenants and words of relation never will controul that which is certainly put down before and so he concluded in this case the Plantiff shall have judgement to recover Hobert chief Iustice to the contrary every deed ought to be construed according to the intention of the parties and the intents ought to be adjudged of the several parts of the deed as a general issue out of the evidence and intent ought to be picked out of every part and not out of one Word only and here Peter joyned with his father to strengthen the assurance and Iohn had not only his own estate but the estate of Proud and it is plain he never meant to intangle himself with other Conveyances then those which he and Proud had made and I hold this to be no independent Covenant and it is all bound with one clause S. for any Act or Acts made by them c. and it is confessed if these words had been placed in the forefront that then they should relate to all and it is as clear as if they were and the first reson is that the intent appears only to undertake for himself because he should but have part of the land and for that he was to warrant his evidence and to that end he was to deliver to him his title at large in the said indenture and here he had made the Plantiff privie to every several conveyance of that to inform the Purchaser of it and will you also intangle him with a covenant you might have taken notice of his title and it appears to be the very intents of the parties that you should take notice of the title and inform your selves concerning the same Secondly this is a sentence which may be taken both wayes and I say it is agreed that if it had begun with these words notwithstanding any Act or Acts c. that then it shall be all construed by this and I never saw any difference I grant they are several Covenants in point of fact but not in point of obligation for there are not several words of binding nay I say if he had released this last he had released all but it hath been said that one is in the negative and the other is in the affirmative but I do not value that and it hath been said that this is the Common assurance of the Realm and if other construction shall be made then no man shall be sure of his own we had given him leave to say that no reversion nor remainder is in the King by any Act by him made and the King may not have any reversion and he seised in fee also this clause standing indifferent whether this shall be referred to all or not and then the question is how the Court will adjudge of that for my part I take it that this may stand with the intent of all the parties of the deed but take that as you take it that this destroyes all for if he is absolutely seised in fee what matter is where the reversion is and yet if the reversion was in the Crown and not by his Act you confess that may not charge him which is expresly against the first Covenant if this be distinct by it self but take that indifferently and all the parties will stand together Nappers case hath no affinity with this for questionless there were several Covenants for in that indenture it did not appear what estate Sir Thomas Eearsfield had and for that reason nothing might be collected out of that but he had a present estate but in our case all is contained in the bodie of the indenture and Nokes case is a strong case and stronger then the case at the bar is for thereupon construction of all the parties of the deeds the special warrantie controuls the general warranty and the reason is no man will take an express special warranty when the intent is that he shall have a general warranty there was a case lately ajudged between the Earl of Clanrickard and his wife against the Countess of Leicester where the Lady pleaded that she was Tenant in Dower where in veritie she had the revesion in fee expectant upon a Term for life and they conveyed all the estate the Lady had in Dower and then they covenanted that they would convey all their estate to the Lord of Leicester and his heirs during the life of his wife and then Covenanted that they would convey all their estate to the Earl of Leicester and his heirs for ever in the aforesaid land and it was resolved that though such Covenant will raise an use to the partie who ought to have that and so the reversion will pass if there had been no more words now it was but during the life of the Lady for that third part for the Covenant was but to strengthen an estate and not to convey it and so he concluded that the Plantiff should be hard and after it was said by the Court that this case was not of weight to be brought into the Exchequer Chamber and therefore the Court advised that the parties would agree quere for the residue in the Exchequer Chamber concerning that Entred Hill 18. Jac the case of Comendams Richard Woodley against the Bishop of Exeter and Mannering RIchard Woodley brought a quare Impedit against the Bishop of Exeter and Mannering who was Parson of the said Church and he declared that Arthur Basset was seised of an acre of land to which the said Advowson was appendant in his demeasne as of fee and that he the 13. Octobris 13. Eliz. granted the next advowson to one William Manwood who was then incumbent in the said Church who by his will 20. November made one Harcourt his executor
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
the year and afterwards the money not being paid Hickman sued forth a Capias ad satisfaciendum against Sir William Fish directed to the Sheriff of Bedfordshire for 210. l. and now upon a habeas Corpus Sir William Fish was brought to the bar and Serjeant Crawley moved for a supersedeas for him because the writ emanavit improvide c. and by the Court it is a cause to discharge him of the execution for the Capias ought to have issued for 200. l. only and he ought to have sued a scire facias though this was after the year because the Proces was not continued but they said withall it was in their discretion whether they will grant a supersedeas for they may put the Defendant to his writ of error It was ruled that if an action of debt was brought and the venire facias to trie the issue is in placito debiti and so is the habeas Corpus and the Pannel but in the Iury Roll of the nisi prius at the latter end of the jurata there it is placito transgressionis and agreed in this case this is amendable or in this case it is good without amendment Wen against Moore THomas Crew Serjeant did move in arrest of judgement where one Wen brought an Action upon the case against Moore and upon non assumpsit it was found for the Plantiff and he said that the Colloquium was laid to be at Bourn in the Countie of Lincoln and the venire facias was de Vicineto de Born without the letter u. and for that reason that they are several Towns therefore error for if the entire Town is omitted the trial is insufficient but the Court held this to be very good without amendment and shall be intended to be the same Town It was moved in arrest of judgement by Serjeant Finch that where one had brought an Action upon the case against one and shewed that the Defendant in consideration of 12. d. given to him by the Plantiff he assumed and promised that if the Plantiff may prove that he cut quandam arborem upon the land of Sir Francis Vain tunc crescent that he would give to him 10. l. and this being proved by the Plantiff it was now moved in arrest of judgement that quandam arborem is an individual tree and it ought to be aliquam arborem and another cause was alledged because it was not shewed that this was upon the land of Sir Francis Vain then growing but only he had said growing and that may be for perchance he purchased the land afterwards and before the Action brought and so it might be growing though not tunc crescent at the time of the promise but the Court c. Winch Hutton and Harvey seemed that the declaration was good for they said there is no question if quandam had been out this had been good for it is the singular number and he that certain or be that incertain yet by the verdict it is made certain that this is a tree and also those words tunc crescent do refer to the time when the tree was feld and not to the promise Holman against Sir Thomas Pope and Elizabeth his wife SErjeant Hendon moved in a case where an Action was brought by one Holman against Sir Thomas Pope and Elizabeth his wife as daughter and heir to Sir Thomas Watson and pending the writ Pope died and he moved that the writ ought not to abate because it is brought against her as daughter and heir where the land is assets in which the husband had nothing like to the case of an Executrix who brings her action in her own name and the name of her husband and pending the writ the husband dies the writ shall not abate but Justice Harvey said this case of Executors was adjudged against him and Hobert chief Justice was of opinion that the writ shall not abate but day was given over in that case Sir Thomas Holbeach against Sambeach IN the case between Sir Thomas Holbeach and Sambeach in a replevin where a demurrer was joyned the case was this one being Tenant for life and he in remainder in tail joyned in a grant of a rent in fee out of that and then they joyned in the levying of a fine to a stranger and his heirs and in this case it was said that the estate of the grantee of the rent which before was determinable is now made absolute and a judgement was also cited to be in that case lately adjudged to which the Court seemed to agree and they said if this be the point they will give judgement presently Crompton against Philpot. HEndon Serjeant moved in arrest of judgement in a case for Philpot a crier of this Court where one Crompton had recovered 40. l. damages against him in an action upon the case for words spoken against Crompton c. he innuendo the Plantiff stole a ring and had been hanged for that but for me and it was said in the first place that it doth not expresly appear that the words were spoken of the Plantiff himself neither is this introduced by any precedent Colloquium as it ought for otherwise the innuendo will not aide it but in veritie the declaration was that the words were spoken de eodem Richardo innuendo c. and also he said that the words are not actionable because that no value is exprest but it was ruled if that were but petie Larcenie the action lies but the Court gave no absolute opinion in the case for they were willing to compound for the poor man The residue of Michaelmas Term in the two and twentieth year of King James Brown and Ware against Barker BRown and Ware brought an action agaist Barker and they declared that whereas there was a suit depending between the Plantiffs and other Coppiholders of such a mannor in the Chancery against Brook their Lord and that one Woolsey was there Clark and that he for his fees and for the procuring of a decree had disbursed 14. l. and that there being a Communication between the Plantiff and the Defendant concerning the same he being a Coppiholder of the same Mannor that in consideration that they would pay to Woolsey 14. l. he would pay to the Plantiffs 40. s. upon request and the Plantiff shewed that they had paid the 14. l. and that the Defendant had not paid the 40. s. Licet postea saepius requisitus fuisset and upon non assumpsit pleaded it was found for the Plantiffs and now it was moved in arrest of judgement by Crook Serjeant First because he is a stranger to the suit for he had not alledged that the Defendant was a partie and then it is no consideration but this was over-ruled because they paid the 14. l. upon his request the second exception was that this postea saepius requisitus was not sufficient in this case because that he ought to express the certaintie when and the place where the request was made
after the promise and the 14. l. paid and he said there is a difference where a thing is a present dutie and where it is a dutie upon request or upon any Collateral Act there the request is traversable otherwise when it is a dutie upon a contract or upon an obligation there Licet saepius c. is sufficient and according to this it was adjudged Hill 18. Iac. Rot. 1894. debt upon an arbitrement between one Prideaux and Walcot for the payment of 340. l. upon request and it was alledged there that he had not paid that Licet saepius requisitus and it was adjudged that in this case it was not sufficient because it was not a dutie presently but upon the request and the place where the request was made ought to be put in certain and he cited another case H. 16. Iac. between Hill and Moor adjudged in this point of assumpsit as in our case for where it becomes to be a debt payable upon request there ought to be alledged a time and place of the request and so H. 30. Eliz. one Welborns case where a man promised to pay so much money for costs of a suit when he should be requested to pay that and there after verdict judgement was arrested and Hobert said that the request is part of the cause of the Action and for that it ought to be set down precisely and there ought to be a promise broken and such a promise upon which an issue may be taken Bubles case IT was argued in the case of Buble who was Administrator during the minoritie of an Infant that the Court of the Marches of Wales have no Authoritie to force such an Administrator to accompt before them but only the Ecclesiastical Court and if they intermeddle in any such thing this Court may grant a Prohibition The great case of Cooper and of Edgar in Ejectione firme I In Ejectione firme between Cooper and Edgar for diverse lands in Norfolk upon a lease made by Downey and his wife for 5. years and upon the general issue the jury gave a special verdict to this effect that one Henry Foyne was seised ofland in his demeasne as of fee and 9. April 34. Eliz. infeoffed Iustice Windham and others to the use of Anne his wife for life the remainder to him and his right heirs in fee and then Henry died and that the reversion discended to Robert Foyne as son and heir to Henry and he being so seised of the reversion 11. Iun. 10. Iac. by indenture made between Robert and Anne his Mother who was Tenant for life it was agreed that Robert should levie a fine of that in Trinity Term and this fine was to be to the use of Anne and her heirs for ever if Robert did not pay or cause to be paid to Anne 10. l. upon the first of September next and if he pay then it shall be to other uses S. to the use of the same Anne for life of that part of which she was seised and of the residue to the use of Robert and his heirs and they found over that the fine was levied to the same uses the same term and they found over that Robert died at the age of 20. years and a 11. moneths and this was before the first of September and it was found that one Anne and Elizabeth under whom the Plantiff did claim were sisters and heirs to Robert and that they had not any notice of the use nor of the indenture and that they did not pay the money upon the first of September but that afterwards they entred and made the lease c. and the Defendant claimed under Anne who is now the Lady Cesar and now if upon all the matter the Defendant be guilty was the question And Crawley Serjeant argued for the Plantiff and the substance of his argument was in this mannor and first he said that he conceived the points to be upon the special verdict either to concern the antient estate or the new estate of the Lady Cesar and here we are also to consider whether the uses are well created and stand good by the indenture and by the fine without the help of the special verdict and first I will not dispute when an Infant levies a fine and dies before the reversal of that whether his heir may avoid that and this is ruled in Cooks Reports 10. H. 7. 16. that this may not be because that this trial ought to be by inspection which now may not be when he is deed but that which I will insist upon in the first place is this when an infant made an indenture to declare the uses of a subseqent fine and he doth after that at another time levie a fine generally without expressing of any use in the fine whether he may any wise enter and avoid the uses of the same fine or whether the law of necessity doth adjudge the fine to be to the same uses without the help of any Averment and I hold that he may avoid those uses which do stand upon this difference that it is incongruous to reason that if the law admits a man to be of abilitie to levie a fine then at the same instant or after he may declare the uses because it it is intended that he is of full age and if this had been a fine with grant and render in which there is alwayes an use expressed as 26. H. 8. 2 that the grant of an Infant is absolutely void but I do agree the case in Beckwiths case of a feme Covert Cook 2. or of a man of nonsane memory that their declaration of that subsequent use is good because that the fine which is levied by them is a perpetual Bar and conclusion and by such means there disposal doth conclude them for ever but it is otherwise of an infant for he may avoid the fine by error during the minoritie and the opinion of the book of 46. Ed. 3. 34. is that if an infant do alien a rent he may bring a dum fuit infra aetatem which seems to infer that the grant of an infant is not absoluely void I answer that is but the admission of the Court and 15. 7. 4. if an infant made a deed and at full age he inrolled that this is a conclusion for him to denie that for this inrolment is an affirmance of that and the reason of that is because this is an affirmance of the same thing but here the fine and the uses are distinct and for that they are voidable and for the other point the derdict had found that the fine was levied to the uses aforesaid whether that had established the uses and made them unavoidable so long as the fine is in force and I hold that it had not for it is no more then ad usus supra dictos and it had not bettered the uses for they had no reference to aide the uses like to the case of the Earl of Leicester
had two sons and he do Covenant in consideration of natural affection that if the eldest return from Rome by such a day that then he will stand seised to his use and if he do not return then he will stand seised to the use of the youngest son now if in this case the eldest die before the day so that it is become impossible that he should return yet that will not hinder the raising of the use to the youngest son and so in Dyer 331. the limitter may not have any estate against his own limitation of his uses for this is his own fact and so in our case it is his own default to make such a limitation and now for the fourth point whether any notice is requisite to the heirs and first I agree that in many cases a man shall not lose a thing except he had notice but there are two exceptions from this rule upon which I will put some cases and then I will applie them and first the ordinary may present by laps and he needs not to give notice for it s supposed in law that the ordinary will in 6. moneths see whether the cure is served or no nay if the patron was a Purchasor and a stranger present he had lost his inheritance and yet no notice ought to be given and the 12. H. 7. if the Tenant of the Lord do die without heir and a stranger do enter and Abates and dies seised now the Lord had lost the benefit of the escheat and yet perchance he had no notice of that and so was the opinion of Dyer and Welch 4. Eliz. that if two Copartners make partition in this case the Lord ought to take notice at his peril and secondly when one is bound to take notice at his peril as in Westby's case Cook 3. the new Sheriff ought to take notice of the Execution upon the prisoners when he takes them and so is the first of H. 7. 4. a man being bound to perform an arbitrement he ought to take notice of that at his peril but in our case here is a presumption in law that he had notice for he had the land from his ancestor and in the same degree and so the law doth intend that he had notice of the conditions and if he had not it is the default of his Ancestor that he had not left his deeds with him Secondly the heir is privie to the condition this doth descend to him and therefore he ought to take notice of that and put the case that an Action of debt is brought against the heir upon the obligation of his father and he pleads he had nothing by discent and it is found that he had a reversion expectant upon a Term for life of which he had not notice of yet that will not excuse for the law intends that he had notice and that he shall be charged as if it were his own debt and also the deed after the death of his Ancestor doth appertain to him and if the deeds are kept from him he may have an action for them and besides here no man is bound to give him notice for if it should be given it ought to be given to the heir or to the Executors for they may both save the land by the performance of the condition nay if there be 20. Coheirs there ought to be notice given to them all because they are to lose their inheritance by that and it is not like to the case which was adjudged where there are two obligors to make such an assurance as the obligee shall devise there a devise to one is sufficient because this concerns a personal thing but otherwise when this doth concern an inheritance as here but I relie upon the reason of the first forming of the deed if I am not bound to give notice at the time of the making of the deed I shall not be bound to give notice by any matter ex post facto and yet I do agree that in many cases where a thing is certain at the first and doth refer to some future agreement that in such cases there ought to be notice given to the partie as Hill 12. Iac. in this Court Rot. 109. where a promise was made upon a consideration Trin. 22. Jac. C. P. that the other will with draw his suit which he had in the Exchequer that then he will give to him so much when he came into Somersetshire and adjudged that the partie ought to give notice when he came in to Somersetshire but in our case every thing is certain at the time of the making of the deed 38. Assises 7. if a feofment is made upon condition to regrant to the feoffor and his heirs if in this case the feoffor do die he is not bound to regrant to his heirs without a request another reason is who shall give notice to the Lady that Foyn is dead she is bound to take notice of that at her peril and also if the Lady had died who shall give notice to the Executors that they may attend to receive the money for if they do not attend this is a peremptory refusal and for that reason it is equitie that if no notice is to be given of one side then there shall be none given of the other side and so I conceive that there doth not need any notice and now for the last point c. of the estate for life whether if no fee do arise whether she had lost her estate for life and first this is no Forfeiture for here he in reversion is partie but it is said that this is extinct but let us examine if this had been before the Statute of uses no more use will result then was before and for the estate for life that is saved and it was resolved Trin. 5. Iac. that if Tenant for life grant his estate by fine to another and yet he doth express no use that it shall be to the use of the partie because that the Law intends that by this it is disburthened of the danger of waste but in our case the estate of the Conusee is saved by the Statute of the 27. H. 8. for this saves all rights titles possessions c. of those who shall be seised to any use and so was it adjudged in Cheny and Oxenbridge his case that the Term for years was saved but the doubt in that case was not whether a Term was saved which he had to his own use but that which he had to the use of his wife and adjudged that this was saved and 32. Eliz. it was ruled in the Chancery between Tates and Willers that if he in reversion do infeof lessee for years and two others there it was ruled that the Term was saved and so it was adjudged Trin. 17. Iac. Rot. 246. Francis Priors case that where the lessee for years is and he in reversion levies a fine to the lessee to the intent that he suffer a
of 3. acres and he accepts a rent of two of them which render of them all this is void for one acre and lastly by a feofment of land by warranty a rent is discharged 21. H. 7. and here I conceive that the replication to the bar of the avowrie is not good for his plea is that the rent in this case is not comprised and that is a point in law whether it is comprised or no for if we do take issue upon that we shall draw the trial here from the Court to the jury in the Countie which is not good and so upon all the matter I pray judgement for the Plantiff in the replication The argument of Davenport Serjeant DAvenport Serjeant to the contrary and he said the case is as hath been recited and the question is whether the rent so granted in tail is by this agreement of the parties and by the fine of the land whether it hath extinguished the rent and I hold this conveyance which only passeth the rent by implication is no bar to the issue in tail within the Statute of fines for where it is said that a fine was levied of the rent by the name of the land and made no mention of the rent this will not carry the rent and yet I agree this fine to be a feofment upon record and to be a bar against the parties who levied that but not against the issue if this had been before the Statute of fines it is no question this had been no bar against the issue for it is the express book 13. Ed. 3. avowrie 12. and 26. H. 7. 4. Tenant in tail of a rent made a feofment in fee of the rent with warrantie and there it is said that the warrantie did not extend to issue quoad the rent but now our case is upon the Statute of 32. H. 8. which saith that a fine shall be a bar of my lands Tenements and hereditaments any way intailed but yet I conceive that this requires that the fine be levied expresly of that and not by way of conveyance and so the case of Smith and Stapleton by Thornton who said that this was granted to him to be law which must needs be meant it was granted by the Court or by the Councel of the other side and the reason of that is because it ought to be levied of that expresly and there it is said if Tenant intail of an advowson do levie a fine of the nomination that shall not bar the issue and yet in effect that is the advowson and because it is not levied of that expresly it is not good and then for the precedent agreement that is indeed that the fine shall be for the extinguishment of the rent and what then will that prove that the fine was levied of the rent and here the writ of Covenant was not brought of the rent and yet I agree that agreements which do lead uses of fines will qualifie them against the very nature of the fine as the case of the Lord Cromwel and Puttenham in Dyer but I do not hold the agreement will extend over the nature of the fine and therefore this being a rent in gross it may pass by the name of land and the averment here is contrary to that which doth appear upon the Record and then not comprised is a good plea but this shall not be tried by the Countrie but by the Record as 12. H. 7. 16. for it is only to inform the Court that the partie had mistaken the Law and shall be tried by the Court and not by a jury in the Countrie as Attoe said and so upon the whole matter of the case I conclude my argument and pray judgement for the Avowant see after Hill 22. Iac. The residue of Michaelmas Term in the two and twentieth year of King James Ralph Holt and Rand against Robert Holt. RAlph Holt and Rand were joyntly and severally bound in an Obligation to Robert Holt and he took out Proces against them by several Praecipes and he had two several judgements and took out two several Executions against them of one Test S. a fieri facias against Rand and a Capias ad satisfaciendum against Holt and the question was whether the writs were well awarded and whether when one is Executed the other is discharged and Serjeant Crew urged 15. H. 7. 15. if after a Capias executed Sir Gilbert Dabenhams case he may not have a scire facias against the same partie and he cited a case to be adjudged in the 13. year of King James between Crawley and one Lidcat where two joynt obligors and the obligee did sue them and had two several judgements against them and he took an elegit against one and a Capias against the other and he who was taken upon the Capias brought his audita querela by which he was discharged of the execution for in so much that he had taken an elegit against one he is concluded to take any Process against the other as well as against him who had the elegit sued against him and so is Cook 1. 31. and yet some books are if the fieri facias is served for part he may have a Capias for the residue and so is the 18. Ed. 4. and â—0 Ed 4. 3. but here the fieri facias was executed for all and for that no Capias ad satisfaciendum shall issue in this case but Waller one of the Prothonotaries câ—â—ed a case in this manner that if a noble man and another be bound in an obligation as before and the obligee had such a judgement as here in this case he may have an elegit against the noble man because that the first Process against him is by summons and distress and he may have a Capias against the other or a fieri facias but Hutton denied this case and said that he shall have the same execution against both for as this ought to be one satisfaction quo ad ec sati factionem so this ought to be one for the manner also and though in this case that the Capias was not well awarded and Harvey Iustice agreed to that Methol against Peck MEthol brought an action upon the case against Peck upon an assumption and he declared that in consideratâ—on that the Plantiff would pay unto one Plaford 52. l. to the use of Peck such a day c. Peck promised to redeliver his bond in which he was bound in the said summe when he should be requâ—sted to that and he said that he paid the 52. l. to the use of Peck and that the said Defendant had not delivered the said obligation licet saepius postea requisitus fuisset and upon the issue of non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed the day and the place of the request but the Court c. Hobert Hutton and Harvey were of opinion that judgement
to be good for though that shall be void for the interest yet it shall be good for the residue and then the non payment is a breach of the condition for where an award is made for a thing against the law and for another which doth stand with the law this is good for one and void for the others so here Secondly this award is not for interest but rather for the damage for the forbearance of the money but admit that this were for direct usury yet that is not void my brother Bridgman had cited a case where an assumpsit for usury was void I know well what the judgement was for I was of Councel in the case and much was said in that against usury and Glanvil was cited Lib. 9. cap. 14. which said that an usurer did forfeit his goods but that is to be intended of such who live by the common oppression of the people and there was not any precedent found where a contract for usury was void Noy the 26. Ed. 3. 24. debt is brought for money given for usury and admitted and the Statute of the 13. Eliz. and 37. H. 8. which were made against usury shall be frivolous if such contract shall be meerly void for they made only such contracts to be void as were made for above 10. in the 100. and so I pray judgement for the Plantiff An action upon the case was brought for calling one thief and the other did justifie the words and said that he was possessed of a Heifer which was privately taken from him and that upon search he found that in the possession of the Plantiff with his ears cut off and marked with the Mark of the Plantiff and it was ruled that this was not a good justification for the matter is not sufficient but he ought to have expresly averred that the Heifer was stole from him and accordingly it was adjudged Hill 22. Jac. C. P. Hillary Term in the two and twentieth year of King James in the Common Pleas. THe residue of the case between Cooper and Edgar and now this Term Serjeant Crook argued the case for the Plantiff and after a recital of the case he said that the general question is whether the Lady Cesar had any estate by this fine or whether the old estate for life remains for if she had the one or the other then it shall be against the Plantiff and he said the points which I will insist upon are four First whether these words do make a precedent or a subsequent condition for if the uses do not arise till there be a failing of the payment then it is on my side but if the uses do arise before then indeed it is against me and I hold that no use will arise till there is a default in payment in which I will observe that the words are all in one period and one sentence and till the first of September the use wil remain in Robert Foyne for here the same is voluntarie and it is without any consideration and then what doth the Law say till the condition was performed the use was in him and his heirs the grand doubt is whether si here made a precedent or a subsequent condition and I hold that si is alwayes a note of a precedent condition if it may stand with the law and with the intentions of the parties but if it doth cross either of those then that is a subsequent condition and yet I agree if si is annexed to an estate which passeth by liverie then this is a subsequent condition and the same if it be annexed to a grant which is executed but if it is annexed to a grant which is executory then that is a note of a precedent condition and so is Bracton lib. 2. fol. 190. where there is an example and the placing that first or last is not material and in the case of an use which is executory as this is there till the if is performed nothing will pass Plowden 172. nay the case of 14. H. 8. by Brooks and by Brundwel if I covenant that another shall have my land when he marries my daughter no use will arise till he marrie her and the case of Colthirst proves my difference both the wayes for the lease was made to Henry and his wife for life the remainder to William si ipse inhabitaret c. and if he die in the life of Henry or his wife that then it shall remain to Peter there the first si is a precedent condition for if he do not die in the life of them then Peter shall take nothing by that and to this purpose there is a notable case 13. H. 6. 7. where a man made two his executors and if they did refuse to administer then he made two others within 3. moneths after his death and ruled that in the mean time they are not executors and yet si was placed in the subsequent place there and there was a case H. 33. Eliz. between Iennings and Cawman where a man made his will and devised his lands to his son for 3. years and afterwards appointed that if his wife whom he made Executrix did not suffer him to injoy that for 3. years that the son shall be executor and the question was whether the feme was executor in the mean time and there Anderson said that this was a precedent condition but the other Iustices were against him because it was a thing of continuance and there they agreed the case of Colthirst that the word si ipse inhabitaret are a subsequent condition because it is a thing of continuance which may be infringed and broken every year and there was a case in this Court 29. Eliz. Rot. 854. between Iohnson and Castle where a man devised his term to his youngest son if he lived to the age of 25. years and did pay to his eldest brother so much money and agreed no estate passeth till the age of 25. years and payment of the money and the reason was that a devise executory may depend upon a precedent condition and so here the use is executory and nothing passeth till there is a failing of the payment like to the case of the 15. H. 7. where a grant is made upon condition that if the Grantee perform such a thing he shall have such an Annuitie there nothing doth pass presently and so 21. Ed. 3. 29. where a man was bound in an obligation not to infeoff when he came to the house of Ancestor c. vide the case and here in our case because the condition is that if he do not pay that then she shall have it to her and her heirs therefore it is a precedent condition and if the use had been limited to him if he marrie his daughter such a day in the mean time no use will arise because the limitation is to him upon a thing not executed and this being all in one sentence no use will arise in the
mean time the second point is whether the heir of Robert Foyne may pay that or is bound to perform that then the law dispenceth with that for it is limited if Robert do not pay and so it is personall to him like to the case in Plowden when a thing is reserved to be made by the person of a man no other man may perform that neither the heir nor yet the Executor as in Dyer 66. 8. H. 4. 19. 21. Ed. 3. 29. where the heir is not named he is not charged and 10. Ed. 4 12. 11. Ed. 3. 16. and so in this case because it is personally limited to Robert Foyn and ergo if he do die there the law will not compel the heir and that is the reason of Littletons case fol. 76. for there though the father Morgaged and the son is not named in the condition yet because he had an interest in the condition he may perform that and so the case fol. 77. the feoffee of the feoffee may perform that though it is annexed to the first feoffee only and this is for the salvation and safety of his estate and in the first case being in A. Morgage the law said that the heir shall not be prejudiced but when it is a voluntarie Act and in point of discretion to the father there the son may not perform that and here the law had prevented the father in the point of election ergo it is discharged and it is like to the case of the Countess of Arundel where a thing is annexed to the person of a man no other may perform it and so here the heir may not perform that for it is discharged by the death of Robert Thirdly admit that he may perform that then the question is whether default of notice may not excuse and here the Lady was a partie to this condition in the indenture and here the ignorance of the fact may excuse and when the law doth put a man upon a necessitie there it will excuse him as 44. Ed. 3. 61. and 50. Ed. 3. 39. and so the Law will not impose a necessitie of notice upon him The residue of the case of Cooper and Edgar by Serjeant Crook BVt Crook said that he being heir is bound to take notice but for answer to that I will cite you one express case Francis case Cook 8. for there the heir was not bound to take notice of the proviso in the feofment without notice given to him of it Winch that case directly complies with our case and so Farmers case Cook 3. lessee for years in possession levies a fine that doth not bar the reversioner because he continued in possession at the same time and he had not notice of that and here if the Ancestor had not died seised there had been some colour that he might have had notice and this differs from Littletons case where the heir may pay the Morgage that in that case he ought to take notice at his peril because he did not die seised Corbets case and see 4. Coo. 8. where land is given to executors to take the profits there resolved that default of notice doth not hurt them but they shall hold against the heir now for that last point whether the estate for life is saved by the Statute of the 27. H. 8. or whether it is gone by the acceptance of the fine and I think it is gone and yet I agree if it had been lessee for years it had been within the saving of the Statute because he is but a conduit pipe to convey that but in our case when it is by limitation of the use then it will not be saved because that it is by her own provision that the use is so limited to her and so the law will not aid that and by the common Law it is an express determination of the estate 1. H. 7. also the cases of Tenant for years being within the saving of the Statute doth in no sort help this case for it may well stand with the estate but out of the freehold the uses do arise and besides the law will not provide for him who had not provided for himself as 5. H. 7. 7. if a man made a gift intaile rendring rent the Law will not raise any other tenure and it is a rule in law that a man shall not take an estate by implication where he had expresly limited an estate to himself and to that purpose there was a good case Hill 13. Eliz. between Richmond and Bowcher where a lease was made rendring rent to the lessor his executors and his assigns and there the lessor died and it was ruled in that case that the Executors nor the assignes shall not have that nor the heir for it was not reserved to him and in 16. Iac. one Farmers case where such a lessee for years took a feofment with an intent to suffer a recovery but he continued in possession two terms after before he suffered the recovery and yet it was adjudged the Term for years was saved but here he being Tenant of the freehold this may not stand with the limitation of the uses and so I pray judgement for the Plantiff The argument of Davenport Serjeant DAvenport to the contrary after a Recital of the case said that he thought this to be a subsequent condition for here are two uses limited and so there is two conditions for the first if if he do not pay this is subsequent and the estate doth proceed but the other is precedent and the estate is subsequent and the sole difference when if makes a precedent and when a subsequent condition is upon the words for in this case words make the case and if the estate is limited first and then the condition seems annexed in words to determine that in that case it is a subsequent but if the Act is first appointed to be made and then the estate is limited by express words there the estate will not begin till the tunc is performed and so is the very difference 14. H. 8. 22. and there the principal case is adjudged to be subsequent and upon that difference is 15. H. 7. and Coo. 7. where the estate is first limited and then the condition is after that and the meaning of the parties was that the Lady shall have the fee if the other will not redeem that and I desired to be tried by no other cases then those which my brother Crook had cited Mary Portingtons case si is a proper word to determine an estate and then the estate ought to be before and for the difference between things executed and things Executory under favour that is no difference but that is as the words are placed and I denie the case of Executors put by my brother Crook and so I say it is a present estate but it is defeasable after by payment but now for the second point whether it was discharged by the death of Robert or whether
the heir may pay that and I think that its impossible to avoid Mr. Littleton and my brothers difference of Morgage is no difference and Littleton saith that the heir may perform that because he hath an interest in the condition and the reason is not because he is charged and so the case of the feoffee may perform that and yet in both cases it is annexed as personally as it may be and Sect. 337. no mention is made of the Morgage but it s in this case if the condition had been that a stranger should pay that then this is meerly personal and so is Hill 28. Eliz. between Waltham and Ashworth if an heir is bound to perform a condition then a stranger may not perform that but any who had an interest as Gardian in Soccage or Chivalry and here by reason of the interest of the heir by the non-payment he had broken the condition for this is an hereditarie condition or limitation by which the heir had an interest now for the third point whether he is bound not having notice and I do conceive that because the notice is ancestrel and he was partie to that and so there was an original notice upon the agreement which is also hereditarie and discends to the heir and that shall force him to take notice of that at his perill but if it had been collateral to the father there I grant that will not binde the son without express notice as in Francis case for there was not any Act by which the father was bound to take notice and I desire no better case then Sir Andrew Corbets case Fourthly the estate for life is not drowned by the common law neither by the Statute for it is grounded upon the Condition and so there is not any Surrender in the case and when an agreement is that such a fine shall be levied now that shall be understood to be meant only of the reversion and he cited Sharingtons case where Tenant for life levied a fine upon conusance of right to him in reversion to the use of others there because it might not appear to be otherwise the estate of the Conusee was saved and Farmers case where a lease was made to Farmer for years rendring rent and after he bargained and sold the reversion for 41. years and then made an indenture between the lessor and the lessee and one of the bargainees that the recovery shall be suffered to the use of them and their heirs and adjudged the reversion for years was saved and so I pray judgement for the Defendant The argument of Serjeant Finch Pasch 1. Carol. ANd the following Term the case was argued by Henage Finch Serjeant of the King for the Plantiff and he said the first point is whether this made a precedent or a subsequent condition in which there had been much Logick used and it had been said that it is a rule in law that when a state is first limited and there are words of condition to devest that in that case there is a subsequent condition which ground I will not denie but I denie that here the estate is first limited for though that seems to be in words yet it is not in the intents of the parties but here first I will note an ordinary difference in our books that proviso and sub conditione are notes of a subsequent condition si of a precedent condition as appears by Mr. Littleton and the reason of this difference is because proviso and sub conditione make a full proposition and so doth not the word si and I compare that with Henry Finches case where aut and alibi never begin a sentence and so si never made an entire proposition but the proposition is that the fine shall be to the use of the Lady if Robert do not pay which is an Hypothetical proposition knit with a copulative conjunction and then the antecedent ought to be si for all doth depend upon that but it hath been objected that this is not an antecedent for it is put in the last place but I say put that where you will si will rule the sentence and will have a construction in the first place S. if Foyn do not pay 10. s. the first of September then that shall be to the use of the Lady and her heirs and there are many cases where si being so transposed will make a precedent condition 1. H. 4. 4. where the Iudges will receive the Attorney of the vouchee if his Master will consent there he is no Attorney till he do assent 3. H. 6. 71. per Martin a man made another his Executor if he will be bound to I. S. in that case before he is bound to I. S. he may not maintain an action as an Executor and so by those authorities 7. Ed. 3. 41. 14. H. 8. Whistlers case and Dyer 159. now for the second point whether by the death of Foyn the condition is discharged and I hold that it hath discharged that and I hold Littletons case where a day is limited and where not will aid me and I conceive that in many cases where Acts are not judicially annexed to the person of a man yet they may be discharged by the death of the parties if they are Colateral Acts and put the case that the use had been so limited that if I. S. do not pay so much money before c. now if I. S. do die before the day it is no question but that the condition is discharged and also if it had been limitted in this manner if Foyn do not pay this to a stranger ther by death also it is discharged and the difference I conceive is when the money is to be paid as a duty and where as a penaltie and this difference I learn of Mr. Plowden in the argument of Sir Thomas Treshams case reported by the Lord Cook and also by the Lord Dyer and by Dyer it is said that such a summe of money to be paid to the feoffes is not my duty and therefore I say this Colateral Act is meerly discharged by the death of Foyn and Littleton seems to implie so much for in all the cases of Morgages he saith that the Executor or heir may pay that but when he comes to such a feofment made to the feoffee to pay money on his part he said that if he alien the land the partie himself or the vendee may pay that but not the heirs nor Executors of the feoffees and there was a case 18th Eliz. in this Court A. levied a fine to B. and his heirs upon condition that if he pay so much to the son of A. when he comes to the age of 18. years then to the use of B. and if not to A. and his heirs and the son died before the day and the opinion was that B. shall have that now for the last point whether the estate for life is gone and I hold that it is and here he agreement of
the parties hinders the operation of the law and that law will not provide for him that provides not for himself and the Lady her self was partie to the limiting of the uses and she covenanted that she will be seised by vertue of the fine and under the condition in the indenture and so it is a plain Surrender of her former estate and so I pray judgement for the Plantiff The argument of Serjeant Hendon to the contrary HEndon contrary there are 3. points First whether this be a precedent or a subsequent condition and I conceive it is subsequent and here the indentures being but to declare the uses of the fine and not to create any use ergo it shall be guided by the intents of the parties appearing in them and so is the Earl of Rutlands case Cook 5. and Dyer 357. and Shelleys case and the meaning of the parties was not to raise any use to Robert but only a possibilitie to reduce that by the performance of the condition and first it is here said that the Conusee shall be seised to the uses hereafter expressed and under the conditions and then the use ought to preceed the condition for no man may stand seised under the condition except the condition is subsequent to the use to arise Secondly when is the use to arise to Robert surely when he payes 10. s. and then in the mean time the use is to the Lady and her heirs for tunc had here relation to when as it is said in Boles case Cook 3. and in Grants case cited in Loves case Cook 10. and 17. Ed. 3. 1. all which cases prove that tâ—en had relation to when and before this when he had nothing and this doth appear to be the agreement of the parties and now for the words themselves I take it that they make a subsequent condition and so it is here limited in intention and for that in matter also and it is said in Colthirsts case in Plowden that if the estate doth first pass reducible upon condition then it is subsequent and here it is limited to the Conusee and his heirs if the Conusor do not pay but here it hath been said is inversio verborum and the consequent is placed before the Antecedent and this hath been proved by Logick I never knew cases in law to be expounded by Logical and Grammatical learning but by the intentions of the parties and here I conceive that the estate is vâ—sted in the Conusee by the fine and so the condition is subsequent but admit it is Executory and I say concerning that there are these differences that if the state of the thing granted is executory and that the condition of the thing granted is Executory and the condition is to remain with the estate so long as the estate doth remain the condition is precedent 28. E. 3. 2 4. 3. 1. H. 6. 32. but if the condition be but one time to be executed and that not contained with the estate then it is subsequent 10. Eliz. Dyer Calthorps case but here our estate is executed for it is expresly limited to the Lady Cesar and her heirs which takes away all implied uses so that no implied use shall result in the mean time and so 75. Assises land given to a man and to his heirs if he have heirs of his body now this if is subsequent and so I conceive that it is not a condition simply but a conditional limitation for it appears by Mr. Littleton because it is no otherwise expressed and another reason is because the condition is annexed to the future time ergo that is subsequent and yet I grant there is a difference betwixt such an estate conditional annexed to an interest and where it is is annexed to an authoritie it may be precedent but for an interest it is subsequent as is the case of Bracton lib. 2. fo 3. and now for the second point whether the heir may and ought to perform that and I do conceive that he is and it is not annexed to the person because it is real and doth arise with the land Secondly yet the law doth expect who ought to have performed that but it is the performance it self which the law doth respect 4. E. 3. 2. such condition real which doth arise with the land and in such a case no notice is in that case requisite and the last point is whether the estate for life is gone and I hold that it is saved by the common law of England for the fine only is as the grant of the reversion by the explanation of the indenture and then there is no surrender in the case but when the condition is performed the estate for life doth remain and so was it resolved in Mr. Mansors case and yet I agree that a litle matter will make a surrender and Mr. Ruds case where lessee for years of an advowson was presented by the Patron that was a surrender but the Statute of the 27th of H. the Eighth at the end saved that though it is to her own use for the words of the saving are to every person and their heirs which hereafter shall be seised to any use all such former rights c. possession c. as they might have had to their own use in any lands whereof they be seised to any other use whatsoever and so upon the whole matter I do conceive that judgement ought to be given for the Defendant The residue of the case of Gibson and Ferrers NOw the case of Gibson and Ferrers which see before was argued again by Serjeant Bridgman and he said as before the award is not good for the interest and yet he now agreed that covenants bonds and contracts for usury are good in law but yet it may not be awarded 17. Ed. 4. 5. if a man do submit to Arbitrators they may not award that he and his wife shall levie a fine but if the partie himself do promise that this is good and shall binde the wife to perform that and besides he said that here is an award made only of one side and nothing is allowed to Ferrers and so not good 9. Ed. 4. 29. 29. H. 6. 22. and I pray that the Plantiff may be barred Hendon to the contrary and he argued if an award be good in any part though it be not in that which is assigned for breach yet it is good upon such plea of nullum fecerit arbitrium and the other shews an award and assignes the breach in this case the breach is not traversable for it is of the form and not of the substance of the action but to that the Court did presently answer that the cause of the action is the breach of the award and this he ought to make apparent to the Court for otherwise he shall not have any action and though the breach is not traversable yet it is of the substance of the action for upon such plea pleaded he not only
this rent for this is forced in by the name of land which is absurd and contrary and here is not any fine levied directly of the rent nor any Silver of the King paid for that but only by the judgement of consequence and now for the Statutes of fines whether it is a fine within these Statutes and I hold that it is not and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass and the issue had accepted that he is remitted and the same law is if Tenant in taile of such a rent and he acknowledge such a fine with proclamations and the proclamations pass now if his issue had accepted the rent before the proclamations passed he is remitted and now for the Statute of 32. H. 8. that is not taken by equitie because it is a Statute of explanation which regularly may not be inlarged and so appears in Butler and Bakers case and now for the agreement it self that is not any thing for this is by a contrary name which may not be good like to the case of the Lord Cromwel for there was an agreement to raise a rent by fine but here is an agreement to pass a rent by another name and will any man say that if a man agree to levie a fine of rent by the name of an advowson that this will pass the rent and I think that the case of Thornton is good law and so is also the case which is put after that of the advowson and yet I agree if Tenant in tail do accept a fine with render to another for years that shall bar him because that doth not work a discontinuance but otherwise where it is for life and so in my opinion the rent remains and the avowant shall have judgement The argument of the Lord chief Justice Hobert HObert to the contrary the short question is whether the rent is extinct by the fine of the land and I hold that it is and it is agreed it is a bar against the parties themselves though not against the issue and that being granted I see no second reason wherefore the issue shall not be barred and first I am of opinion that this plea of not comprised it is not good because this fine doth work by way of release but it was said at the bar that things ought to pass litterally in a fine which I denie and also every informalitie of a fine which is cause to reject that is not a cause to frustrate that when that is levied and the words of the Statute are of any lands Tenements or hereditaments any wise intailed and if there be any word in the conveyance which will carry that it is sufficient and it shall be put upon the construction of the law and as to that that the fine shall be according to the writ of covenant but I say if there be no writ of covenant then there is no departure but it was said that the Silver of the King was not paid which I also denie for it was paid inclusively and the words of the Statute are of any thing any wise intailed and Tenant in taile had as great power to pass that by fine as Tenant in fee simple and for the case of Thornton I know he was a learned man but let it suffice that he was so esteemed but for his opinion I do utterly denie that and I do denie the case put by my brother Hutton of the Piscary for I hold if a man had a Piscary in another mans land and levies a fine of that by the name of land this will pass the Piscary clearly and so the same if a man have an office appertaining to land intailed and a fine is levied of that by the name of the land this shall bar the issue and I denie that Statutes of explanation shall alwayes be taken litterally for it is impossible that an Act of Parlâ—ament should provide for every inconvenience which happens and so the case of Godfrey and Wade adjudged that the fine of the youngest son may not bar the eldest and yet within the words the eldest was heir to him but this word heir shall be expounded as his heir and so we use to expound the Statute of 4. H. 7. which is an original Statute and bindes parties and privies and here the eldest brother is not privie for he claimes before him and so I conclude that the rent is gone and judgement was given accordingly Sir Robert Hitcham against Brooks SIr Robert Hitcham Serjeant of the King brought an action upon the case against Brooks and set forth in his declaration that he was one of his Majesties Serjeants at law and that the Defendant spoke these words of him I doubt not but to prove he innuendo Sir Robert Hitcham hath spoken treason and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hendon first because it is not a direct affirmation that he spake treason but he doubts not but to prove that like to Penticosts case which was adjudged here where one Baker said of him I will prove that Penticost was perjured and no action will lie because he did not directly affirm that he was perjured Secondly because he had not shewed when he spoke those words and perchance it was in his infancie or lunacie or before the general pardons Thirdly here is not any allegation of any conference had of the King before and the speach of Treason is not Treason but when there is an intent to commit that and words shall be taken in the best sence as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury and Sir Thomas Stanhop one laid to Sir Thomas Stanhop that the Earl is a subject nay said Sir Thomas that is his grief and adjudged those words are not actionable and yet the words might be taken as if he had repined to have a Soveraign but the words were taken in the best sence Finch to the contrary this is more then a bare affirmation for he said he doubted not but to prove that asmuch as if he had said I am sure of that and Mich. 16. Iac. Sidnams case where one said I think in my conscience that if Sir Iohn Sidnam might have his will he would kill the King and all his good subjects and adjudged upon a writ of error brought of that the words are actionable and so in Whorewoods case so sure as you beleeve that God rules the world and that the King rules the Kingdome so sure did Whoorwood steal such goods and adjudged to be actionable and yet perchance the partie to whom he spake did not beleeve either of them and so Woods case 18. Iac. I will call him in question for killing of a man I will pawn my shirt but I will hang him and so here and prayed judgement for the Plantiff Ashley Serjeant contray words which may be taken
if one be named in the venire facias Gregory is returned George there needs not amendment if it be in a Tales otherwise in a principal pannel 66 Action for words he is as arrant a Thief as any is in England the Plantiff needs not aver that there are Thieves in England for the difference is when the words relate to a particular place and when to an intire Realm and so when it is tied to one kinde of fellonie 70 89 Action upon the case where it lieth for a malitious prosecution at the Sessions 73 An action by the Obligee for the Obligor saying he had forged the bond but if he had said to another that he was a forger and had forged false writings no action lies 76 Action upon the case upon a contract in London to Table with the Plantiff at A. in N. and he then and there assumed to pay 4. s. by the week where the action must be brought 78 An action upon a promise against a Parson in consideration that the Plantiff would better his Tithes by Planting hops that he would allow him 40. s. an acre for his charge if that be a good consideration 80 Action upon the case where it lieth against an Attorney for convinous pleading 90 Action by an Attorney for saying he had forged writings and deserved to lose his ears lieth not 90 91 An action against a Sheriff whethâ—r it lies in the Countie where the return of the extent was made or where the land lies 100 Averment against the Sheriffs return where good and where not 100 Amendment where the venire facias habeas Corpus and the pannel agree but the Jury Rolâ— differs 101 Action of the case upon a promise 101 Action for saying the Plantiff stole a ring and had been hanged but for me lieth 102 Action upon a promise where the time and place of the request ought to be expressed 102 103 112 113 Aâ—bitrators amongst other things award interest mony whether good for all or part 114 120 Action by Serjeant Hitcham for saying I doubt not but to prove Sir Robert Hitcham hath spoken Treason 123 124 B A Bail where he is not liable to the judgement until default be in the principal or if the principal die 61 62 C A Commission to 4. or 2. of them and one refuseth the other sit the 4th may be a witness 45 Condition to save harmless he plead in the affirmative he must show how 9 A Coppiholder releaseth to his Companion it is good without admittance 3 A Coppiholder where he may inclose or dig for Marle and where not 8 A Covenant to injoy without the let of the Grantors c. or by their procurement 4 A Custome for a Coppiholder to cut trees at his pleasure is void 1 If Tenant in antient Demesne devise his lands the Devisee shall have fee 1 Covenant See fine Costs where they shall be given against an Administrator 11 A Condition to surrender coppihold he pleads he did it not good because he shewed not when the Court was holden 11 A Commission to seise for recusancie they seise an advowson the Kâ—ng grants to I. S. who presents and is disturbed by the Universitie of Oxford to whom the presentation belongs 11 12 13 Costs upon a Nonsuit at a nisi prius whether assessible by the Court or by the Judge of Assize 16 Common claimed to 600 acres and certain Messuages and lands and that he was disturbed by digging common Borrowes and doth not say he was seised at the timâ— much good matter 16 17 Custome of Merchants in Bills of Exchange varietie of good matter 24 Condition to free the nâ—xt avoidance from incumbrance the Grantors heir presents if that be a breach 25 Custome to have a widdowes estate and the husband is attainted if it holds 27 Condition that I. S. shall levie a fine to the Obligee who sued not a writ of Covenant the Plantiff replies that before c. I. S. had made a feofment of c. whether the Obligee must sue a writ of Covenant 29 30 A Condition contingent where extract by release 30 31 54 55 56 Covenant to make assurance by advice so that it be within Norfolk or Citie of N. a fine is advised not good because not shewed where it should be levied 32 33 Covenant not to alien an advowson without assent the Plantiff saith he had aliened c. good although he had not said by deed 34 Covenant where it raiseth a present use and where not 35 36 37 59 60 Custome touching Marchants and nationall lawes 52 Church shall be repaired by him who hath land there though he be no inhabitant but not lyable for the ornaments thereof 53 Coppiholder what act by him will make forfeiture 62 Covenant by a draper against his apprentice for defrauding him the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here 63 64 If a Coppiholder sels his land to a Lessee of the Mannor it is good 67 Condition in a Will where nothing vesteth till it be performed 69 Costs not to be paid where the Plantiff mistakes his action 69 Covenant brought by an Executor the Defendant pleads giving of an horse in full satisfaction which the Testator accepted 76 A Court of equitie if it doth decree against a maxime in law as benefit of Survivorship a prohibition lieth 79 Covenant that he was seized of a good estate in fee and had good authoritie to sell and that no reversion was in the King c. 91 92 93 Condition where it shall be precedent and where subsequent 105 106 107 108 c. 115 116 c Costs not discharged although the offence be pardoned 125 Commendam See King D IN dept after imparlance alwayes ready is a good Plea 4 Distress gone as to the nomine Paenae if the rent be expired 7 A Declaration where it shall be mended in matter of substance 20 Damages where good in part especially after verdict 27 28 Debt against an Administrator who pleads outlawrie in the intestate no good Plea 33 58 A man soweth land and deviseth to I. S and dies before severance whether the devisee or Executor shall have the Corn 51 A Devise for years if an entrie by him must be pleaded 53 Declaration see new assignment Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated and this writ now brought was by Journeys accompts 66 Debt for rent must be brought by a privie in estate only where the land lies otherwise of a Privie in estate and contract 69 Debt upon a bond the Plantiff saith he had not paid the money and did not say nor any part thereof good for that must come of the other part to shew 72 Debt upon a bond to perform an award the Defendant
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest