Livery per baron and would have made Livery but the Wife would not agree to the Livery yet notwithstanding the contradiction of the Wife the Livery was Adjuged good 33 Hen. 6. Husband and Wife are Plantifs in an Assise Nonsuite del feme and the Husband would Prosecute but the Wife would be Nonsuite the act of the Husband shall be accepted and the act of the Wife rejected So if the Husband will make an Attourny and the Wife wil dissavow him Attourny yet he shall be their Attourny And as I think this Limitation by the Husband shall bind the Wife in perpetuity Case per fine indentare Difference Juris clamat For if the Husband make a Lease of the wifes Land for 100 years the Wife may avoid it after his death but if after they both Levy a Fine the Lease shall be good-for ever And 11 Hen. 4. He in Reversion and one which hath nothing Levy a Fine quid juris clamat shall be brought against them both And as I conceive it it shall be counted her folly Reentry per condition that will take such a Husband as will Limit such uses For if a Wife hath an Estate in Land upon condition for not payment of Rent that the Feoffor shall reenter if she take a Husband which doth not pay the Rent whereby the Feoffor or his Heires reenter the Estate of the Wife is utterly defeated And in 4 Ed. 2. A woman Tenant takes a Husband Cessavit who ceaseth by two yeares whereby the Lord bringeth a Cessavit and recovereth the Inheritance of the Wife she shall be bound And this appeareth in Fitzh in Cui invita 21. And it shall be so if the Wife hath but a Freehold Wast as it is in 3 Ed. 3. A woman Lessee takes a Husband who maketh Wast whereby the Land is recovered and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife this is onely the sale of the Husband but if after they Levy a Fine this shall bind the Wife And for express Authority it is the case in Dyer Joynture fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands takes a Wife who hath a Jointure in his Land and he makes a Limitation of uses and after they both Levy a Fine this shall be the Limitation by the Husband because it shall be intended that the Wife consented if it doth not appear to the contrary Whereby the Declaration of the use here by the Husband shall be good to bind the Wife and therefore Judgement ought to be given for the Plantif Feâ—ner to the contrary for here the Inheritance is in the Wife and where the Husband limits further than he hath Authority there the Law shall make a Declaration of the uses for the Husband cannot Limit uses of that which he hath not 21 Ed. 3. A man takes a Wife seised of Lands in Fee Atteynder del feme and before that the Husband was intitled to be Tenant by the Curtesie the Wife was attainted of Treason Homage the Land shall be forfeit and 44 Ed. 3. He shall not make Homage Conusans before he be intitled to be Tenant by the Curtesie 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife Warranoy And in this case the Conisee is in in the per by the Wife and Warranty made to the Husband shall inure to the Wife and 18 Ed. 3. A man seised of a Mannor in right of his Wife Villain to which there is a Villain regardant the Villain Purchaseth Lands the Husband shall be seised of the Perquisite in right of his Wife And yet otherwise it is where a man is Lessee for years of a Mannor to which c. For he shall be seised of the Perquisite in his own Right Divorce 12. lib. Ass If he be Divorced his Estate is gone Lease Rent ch diversity And I agree to the case put by my Brother Shut Where the Husband makes a Lease for years and after he and his Wife levy a Fine there the Lease shall be good but if the Husband grant a Rent charge and after he and his Wife Levy a Fine I do not agree that this is good for in the first case the Conisee found one which had an Interest in the Land but not in the last Then Sir here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever Feoffee al use 28 Hen. 8. The Feoffece to use at the Common Law Limits an use to a stranger this Devesteth the first use but if he limit is to cestui que use then it is an ancient use and not new And so it is if Tenant for life and he in Reversion levy a Fine this shaâ—l be to the use of him in Reversion 2 Loyntenants And so if two Joyntenants be in Fee and they limit severall uses this shall be good according to their limitations for the Moities of either of them and for no more And if Husband and Wife levy a Fine to the use of the Husbands Sonne Fits del baron yet this is to the use of the Wife but if he be the Wifes Sonne allso then this is a good consideration and the use shall be accordingly And these cases I put to this intent that when a man limits an use which is repugnant Vse repugnant or further than he hath Authority the Law shall make a Declaration of the same use for Bracton saith Nemo potest ad alterum plus juris tranferre quam ipse habet And I take the Law if Husband and Wife levy a Fine of the Lands of the Wife and render back to the Wife in Tail Fine levie de terres del feme Oâ—e râ—eder al feme en tail and the Husband dye and the Wife discontinue that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case And I agree to that which hath been said that the Wife only cannot limit uses but because the Jury hath found for â—he Defendant if the limitation by the Husband be not good as I think it is not then Judgement shall be given for the Defendant Concessum Adjornatur 14 WIlliam Knight Eject firm as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman brought an Executione firme against W. Breâ—h of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell the Defendant pleaded not guilty and the Jury appeared at the Bar and Evidence given on both sides And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant Demurrer al evidence and thereupon the Jury were discharged And now Gawdy the Queens Serjeant
still for in 31 Edw. 3. an advowson descended to three persons and the youngest is in ward to the King and he granted it to Queen Philip his Wife Advoson to 3 parceners and she granted it over to the Earl of Arundell who granted it to the eldest parcener the Church became voyd the King had the presentation for when the King was possessed of the wardship of the youngest he was intitled to present for all and when he granted the ward over this did not devest the title of the two eldest which was vested in him before and 37 Hen. 6. the Grant of the King upon a false suggestion is voyd False suggestion and in Littleton he shall have account against Executors and yet the Law is clear Account that an Action of Account will not lie against Executors so for all those Reasons Judgment shall be given for the Plaintif Several reserâ—ations Fenner to the contrary And first I agree that they are severall reservations and so is the case which hath been remembred in 8 Ed. 3. A Lease was made of eight Acres of land reserving eight shillings of rent viz. for every Acre 12 d. thiâ— is severall and to that which hath been sayd that the condition is a proviso I deny that for a proviso Provisio quid sit as me seemeth either is in the affirmative that a thing shall be done or in the negative that it shall not be done but here it is neither directly affirmative nor negative and therefore they have found it without commission Agreement but I confess that agreement extends to rent 22 Hen. 6. 14 Hen. 8. then the Jury which was of Mtdlesex have found the four usuall Feasts in London viz. St Johns c. and this as it seemeth they cannot doe because it is a thing in another County especially they being but an Inquest of Office Further they have found that 37 s was behind at one Feast and this is impossible for then the entire rent should amount to 7 l. And further the Lessors have purchased the reversion before the return of the Inquisition and Commission and then the Queen cannot be intitled because she hath not the Freehold for it hath been adjudged here that if a man fell his lands and afterwards makes livery thereof and after inrolls the sale this shall not have relation to the date of the deed because it takes effect by the livery which was before the inrolment And 8. Edw. 3. Feoffment puis atteynder A man attainted of Treason makes a feoffment of his land after he is restored yet he shall not have the land yet if he had not made the feoffment he should have been restored to the land with the mean profits Then if the King grants the reversion if he shall have the condition remaining and I think not for the King hath it by express words of the Statute as the Prior had it and if the Prior had granted parcell of the reversion De percell de Reversion the entire condition had been gone and the King shall be in the same case for Cessavit is given by the Statute of Westminster 2. cap. 21. eodem modo as in the Statute of Gloucester cap. 4. This doth not ly of an estate tayl no more than a Cessavit by the Statute of Glouc. 8 Ed. 2. And so I think Judgement shall be given for the Defendant De Term. Trinitat Anno xxviij Eliz. Reg. 1. ROdâ—s Justice Judgement shall be given for the Plaintif First I agree that they are severall rents and yet this question doth not goe to the overthrow of the Action in proof whereof both great reason and authority is copious For if the Lessor had entred into parcel this had not suspended the entire rent or if the reversion of parcel thereof were granted this shall carry no more than that which is granted so it was held by the Justices when it was granted to Cordall Parcel entred into And 2 Hâ—n 6. if I reserve an entire rent and the Lessee will pay but parcell c. 17 Ed. 3. fol. 52. by Sharde 11 Ed. 3. lib. Ass If I make a Lease of two Acres reserving for the one Acre x. s to me and to mine heirs and for the other Acre x. s generally And Dyer fol. 308. b. Lib. Ass pl. 23. If three Coparceners be and rent be reserved for equality of partition but one Scire fac shall be brought for it is brought but upon one record 1. Scire fac and Littleton pl. 316. but one action of debt for Tenants in common but severall Avowries so I hold that they be severall rents in this case and yet but one condition And for that let us see if by grant of parcel the entire condition be gone In the case of a common person it is all gone as it was adjudged here in Hill last where a man makes a Lease for years reserving xx l. for rent Sum in gross and rent reserved upon cond and allso a sum in gross of xxvl was to be paid to the same Lessor upon condition if the rent or sum in gross were behind then a re-entry to be made Afterwards the Lessor took an Estate back again of parcell of the term the sum in gross was not payd and it was adjudged that he shall not take advantage by the condition for when he took an estate back again the rent was suspended and then for the sum in gross he shall not re-enter because the condition was entire Cond entire but all though that the case of a common person be so yet the Princses case differs for she shall have her Prerogative and for the Preheminence which the Queen shall have I referre you to the argument of Iustice Weston in the case of the Lord Barkley Coment And that the Queen shall have her Prerogative in a condition I will remember the case of the Abesse of Sion 38 Hen. 6. 21 Hen. 7. the King may make a feoffment in fee upon condition that the Feoffee shall not alien Feoffment in fee upon cond reservation and 2 Hen. 7. 35 H. 6. he may reserve a rent to a stranger and 21 Eliz. the Queen grants her debt to another and he in reasonable time will not prosecute the Queen may take it again gain Grâ—â—t of a debt and may sue And allso Cranmers case where King Hen. 8. gave lands to the use of him for life and after to the use of his Executors for twenty yeares Rent charge after atteynder after he was attainted the Queen shall have this rent as a rent charge and yet she had the reversion before And in reason it seemeth the Queen may apportion her condition for if this condition by the grant to Cordall shall be avoyded four principles shall be overthrown for it is a principle That the King shall not be deceived in his grant 2.
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
and the one with force and the other not as if I command one to make a Disseisin and he makes a disseisin with force and allso if one enter with force to my use and after I agree he is a Disseisor with force and I am not so and those cases will answer the Books of Assises for in those cases they were present Present but in these not and so I hold that he which is present when force is made is a Disseisor with force Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces VVyndam It doth extend to them by express words and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force Then for the other matter of trebling of damages increased the Court made no doubt but that they shall be trebled and they said that so it was lately adjudged here in a case of Staffordshire 19. PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin Challenge where the Defendant made Conusance as Bayley to one Hussey and in the Attaint surmise was made that the Sherif was Cosen to Hussey and thereupon prayed Process to the Coroners and Puckering moved that no Process should issue to the Coroners for Hussey was not party to the Attaint and then this is but matter of favour and he cited 3 Hen. 7. And all the Court accorded with him that it is but matter of favour onely and no surmise to have a Writ to the Coroners but VValmisley would have put a difference between Lessee for years and a Bayley Lessee pur ans for as he pretended in the case of a Bayley it shall be a principall challenge but not in the other case but all the Court was against him and that it is no principall challenge in the one case nor in the other The last day of the Term it was moved again and the Court was of the same mind as before 20. IN a Quare impedit Adverson it was said by Anderson and agreed by all the Court that if a man make a Feoffment in Fee of a Mannor without deed and without saying with the appurtenances yet the Advowson shall pass and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor and lieth in Tenure 21. IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire Pleading an Action of Battery was brought in London and a Justification made in Somersetshire Absque hoc that he was guilty in London and the Plaintif replyed de injuria sua propriae absque tali causa and Anderson said that a man shall never plead de son tort demeasne where the matter ariseth in a Forein Country 22. AN ejectione firme was brought by Clayton against Lawson Bar. the Defendant pleaded in Bar a Recovery had in the Kings Bench against the Lessor of the Plaintif And Fenner moved that it should be no Bar no more than in Trespass Anderson I think it to be a good Bar. For this Action is as strong to bind the possession as a Writ of right is to bind the right VVyndam I think it is no Bar no more than in Trespass Anderson This is more than an Action of Trespass for in this he shall recover his Term. Rodes This case was moved the last Term and the opinion of the Court then was that it was a good Bar. Fenner True it is if it were between the parties themselves but here the Plaintif is but Lessee to him which was Barred Anderson Allthough that it be so yet he claymeth by the Lease of him which was Barred and during the Lease of the other his Lessor could have no right and what shall he have then Fenner That which is between the parties cannot be an Estoppell to the Plaintif here which is but a stranger Estoppell Anderson I know that he shall not plead it by way of Estoppell but he shall conclude Iudgement si Actio Peryam If in an Assise a Recovery in another Assise be pleaded in Bar Assise he shall not conclude by way of Estoppell but Iudgement si Actio and there he is driven to a higher Action and so here and the Law shall never have end if after a man is Barred in his Action he may bring the same Action again therefore I think it a good Bar and that he is driven to a higher Action VVyndam Lessee for years can have no higher Action Anderson Peryam If one which hath a Lease for years and no more Tenant for years disseisor of tenant in Fee simple enter upon him which hath a good title he is a disseisor of all the Feesimple Wyndam If two claim by Lease from one man and one bringeth an Ejectione Firme and is Barred what Action shall he have then Anderson None for he hath no Right VVyndam That is hard Anderson What Action shall he have which is Barred in Formdone surely none Fenner This is another case Anderson Aliquantulum incensus truly it is a plain case that he shall be Bared whereunto Peryam and Rodes agreed clearly 23. IN a praecipe quod reddat View the Tenant demanded the view and an habere facias visum issued and the Tenant came not to the Sherif to take the view it was said by the whole Court that the Sherif may retâ—urn that none came to take the view and he shall never have the view again Anderson The habere fac visum is the suit of the Tenant and then when he doth not come to take the view this is a default and then good reason to exclude him from the view Gawdy Such a retourn was never seen before and therefore it is to be noted the case was between Hoâ— and Hoo for Lands in Norfolk 24. IOhn VViseman of the Inner Temple Apportionment brought an Action of debt against Thomas VVallenger the case was this A man seised of three acres of Land in Fee makes a lease reserving xxx s of Rent and after devised the Reversion of two acres to a stranger and the third acre descended to the Heir and he brought an Action of debt for xij d. being behind and Puckering moved if they were agreed of their judgement in the case Rent extinct by the grant of part of the Reversion Anderson If a man let two Acres of Land rendring Rent and grant the Reversion of one of them all the Rent is gone as it is in Dyer and at the Common Law before the Statute of W. 3. there was no apportionment and the Statute speaketh of no such apportionment as this is Rodes Surely no Book in all the Law will warrant this apportionment Fenner Yes Sir 5 Ed. 3. If a man have a Rent of xx s and grants parcell thereof and the Tenant Attourns this is good Rodes This is another case But shew us the case which was in the Kings Bench
charges except Rents and Services which shall be due after c. to the chief Lord And afterward he made and levyed a fine And after the Wife maried and then the Son entred and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares Walmisley It seemeth that Judgement shall be given for the Plaintif because it was not discharged at the time of the Feoffment For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age Com. fo 539. after at his full age the Son shall have it so that there it was chargable to the Entry of the Son hereafter And here allthough that it be not presently charged yet when there is a charge arise the Covenant is broken And for that in 8 Eliz. a man bargains and sells Land Rent charge future and Covenants that it shall be discharged of all charges and he had granted a Rent before to begin twenty years after when the Rent begins it shall be said a breach And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land c. And so I think Judgement shall be given for the Plaintif Fenner to the contrary and here the Term was extinct by the grant end sale and then the Feoffment void and therefore no charge and thereupon no charge at the time of the Feoffment and for that he cited 42 Ed. 3. 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed c. so here in that she took nothing by the Feoffment there was no charge at the time of the Feoffment And this possibility of a remainder doth not make an interest and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 Resceit upon Cond where Tenant for life lets the Land to one upon condition that if he dye in the life of the Lessor that it shall retourn to the Lessor c. upon such a matter he may be received and he cited for that the case of Wheler 14 Hen. â— fol. 17. and a title suspended is no title 3 Hen. 7. 12. 30 Ed. 3. Lease for life upon condition that if the Rent be behind then he shall retain the Land c. and he said that the opinion of Bâ—omley in Fulmerstons case was contrary thereunto but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso And so it seemed to him that the Plaintif shall be barred 18. THE case of Fr. Ashpool was moved again by Fenner Hue and cry and it seemed to him that the Plaintif ought to make Hue and cry for as he said it hath allwaies been the manner of pleading and allso it hath been allwaies parcell of his issue to prove Allso he argued that he should not have remedy by the Statute post occasum solis For Stamford saith expresly that if a man be robbed in the day that he shall have remedy and the day shall be said but from the rising of the Sun to the fall thereof for the words of the Statute are that the Gates of the walled Towns shall be shut ab occasu usque ad ortum solis and then if the Gates be shut and that walled Town be within a Hundred how can they make Hue and cry And the case in 3 Ed. 3. is not like to this case Fresh suit by the Hundreders for there it was enquired and found of the Dozen Anderson The fresh suit mentioned in the Statute ought to be made by the Inhabitants and not by the parties and I am of your opinion that Hue and cry was at the Common Law but what of that But look the Statute and there is no word of Hue and cry And the Statute of 28 Ed. 3. is an exposition of that Statute and there is no mention thereof but Fresh suit is there mentioned which ought to be made by the Inhabitants And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort as men may safely travell without robbing And for the night Sir wee ought to construe it as it is most reasonable and about the setting of the Sun is the common time of robbing and therefore if this shall not be intended by the Statute nothing shall be intended and allthough the walled Towns cannot persue Walled Towns may keep the waies yet they may keep the waies so that no robberies shall be committed and this is both day and night as I think And if a man be slain in the robbery so that no Hue and cry can be made I doubt not but the Country shall answer for the robbery A man is robbed slain and bound and so if he be bound And if Hue and Cry ought to be when ought it to be For if a man be bound two dayes together he had as good make no Hue and cry as make Hue and cry afterwards and yet I hope you will agree that this man shall be relieved by the Statute which case was agreed by all the Court. Peryam The day without doubt is after the Sun-set Day after Sun-set Rodes cited the case of waging Battail in an Appeal in Stamford And so by agreement of all the Justices Judgement was entred for the Plaintif but Fenner sayd privately that in his conscience it was against the Law yet notwithstanding all the Judges were clear in opinion and the Serjeants of the other part allso So that it seemed to the Judges that no Hue and Cry is necessary by the party for they all agreed that the Country ought to be kept so that no Robberies be committed And Anderson and Rodes affirmed precisely that it is not necessary and the other agreed in the reason thereof and sayd that it is not mentioned in the Statute but sayd that the waies ought to be kept so that men may travell safely or otherwise it is against the Statute 19. IN a Writ of False Judgement brought against the Mayor Tryall Sherifs Citizens and Commonalty of Norwich it was moved where the Issue shall be tryed and per Curiam it shall not be tryed there but yet the Action may be used there And in the same case it was demanded Summons if the Sherif may summon himself and the Court answered that he could not and Peryam sayd that so it hath been adjudged here many times 20. THe â—ast day of the Term the matter of Lassels was moved again and it seemed to Anderson that the Obligation is voyd in that there is an express form limited by the Statute and this varying from the form in substance is voyd for in his opinion he excludes the
Wast and the Defendant demurred in law whether such an action will lie against him or no it was for cutting down of trees And at this day Anderson rehearsed the case and said that they were all agreed that the action will lye well enough vi armis for otherwise he shall have no action for wast is not maintainable and Littleton saith that Trespass lyeth so seemeth the better opinion in 2 E. 4. 33. for otherwise this being a common case it shall be a common mischief And he commanded the Pregnotary to enter judgement for the Plaintif 18. Snagg moved to stay Judgdment in the case of Blosse Property and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods Trespass will not lie sed vide librum and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler Windam If he had imbezeled the goods it is Felony and for the case of 3 Hen. 7. it is Felony without question Property quod fuit concessum Anderson The servant hath neither generall nor speciall property in the goods Taking Embezeling and he shall have no Action of Trespass if they be taken away and therefore if he take them Difference Trespass lieth against him and if he imbezell them it is Felony wherefore he commanded to enter Judgement for the Plaintif 19. THomas Taire and Joane his Wife brought an Action of Wast against Pepyat Pas 25. Eliz. and declared how that the Defendant was seised in Fee Rot. 602. and made a Feoffment to the use of himself for life Wast and after to the use of the Mother of Joane in Fee who died and it descended to her and after the Defendant made Wast c. The Defendant pleaded that he was and yet is seised in Fee Absque hoc that he made the Feoffment in manner and form pro ut c. And the Jury found a speciall Verdict that the Defendant made a Feoffment to the use of himself for life but that was without impeachment of Wast the Remainder in Fee as before And the Plaintif prayed Judgement and the doubt was because they have found their issue and more viz. that it was was without impeachment of Wast Anderson Whether it were without impeachment of Wast or no was no part of their issue and then the Verdict for that point is void and the Plaintif shall have Judgement VVindham The doubt is for that they have found that the Defendant is not punishable and where a Verdict discloseth any thing whereby it appeareth that the Plaintif ought not to Recover Judgement thereupon ought to be given against him As in detinue the Plaintif counts upon a Bailment by himself Bailment and the Jury findeth that another Bailed to his use the Plaintif shall not Recover And a Serjeant at the Bar said that the issue is not found Anderson That which is found more than their issue is void Assise and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise â—i troâ—â— ne so it c. and the Jury found that he was Tenant but that he held jointly with another and there the Plaintif Recovered and so he shall here And at length by the opinion of all the Court Judgement was entred for the Plaintif for he might have helped the matter by pleading 16. IN debt by May against Johnson Payment the Condition was to pay a 100. l. to Cowper and his Wife and by all the Court if he plead payment to Cowper alone it sufficeth for payment to him alone sufficeth without naming the Wife 15. IN a Quare impedit by Sir Thomas Gorge Avoydance against the B. of Lincoln and Dalton Incumbent the case was that a Mannor with an advowson appendant was in the hands of the King then the Church becoms void and after the King grants the Mannor with the advowson now the question was if the Patentee shall have this presentation or the King And all the Judges held clearly that the avoydance doth not pass for it was a Chattell vested in the King and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh nat br is contrary fol. 33. 11. 22. DEbt was brought by Goore Plaintif for 200. l. Bailiwick upon such a Bill Be it known unto all men by these presents that I Ed. Wingfield of H. in the County of Midd. Esq do acknowledge my self to be indebted to William Goore in 200. l. for the payment whereof I mine Heirs and Assigns do licence the said G. to have and use the Baliwick of Dale to the use c. untill c. the Defendant pleaded in bar that the Plaintif had used the said Bailiwick and said no more nor at what place he had received the money and Suagg moved that the Plea was not good because he had not shewed the value which he ought to have done Value and the Judges were of the same opinion and they said moreover that this Plea is not good in bar of this specialty for payment is no plea upon a single Bill Licence and he might have brought his Action upon this Bill without using the Bailiwick for this Licence is no Condition 〈◊〉 De Term. Hill Anno Eliz. xxx 1. AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton Covenant and the case was this A man maketh a Lease for years rendring Bent upon Condition with a Covenant that the Lessee shall repair the Houses with other Covenants And after he deviseth the same Lands to the same Lessee for more years rendring the like Rent and under the like Covenants as in the first Lease the remainder over to another in Fee and dyeth Then the first Lease expires and the Lessee held in by force of the Devise aâ—d did not repair the Houses so that if the first Lease had been in esse Condition he had broken a Covenant now if this shall be a Condition so that he in Remainder may enter was the question Shuttleworth This is a Condition for he cannot have an Action of Covenant and then the intent was that it shall be a Condition But all the Court was against him and that the intent was not so for the words are under like Covenants which words do not make a Condition allthough they be in a Will Anderson The nature of a Covenant is 〈◊〉 to have an Action and not to enter and so all the Court held it no Condition And Perâ—â—â— said that under like Covenants were void words and therefore Judgement shall be given against you 2. PUckering the Queens Serjeant moved Fee determinable that one Adams was indebted to the Queen in a great sum which was stalled to pay yearly so much untill all werere paid And for security he levied a a fine to William Lord Burghley Lord Treasurer and others that they should
pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance Gawdie The Obligation is void for in so much as the Obligee hath not tendred to him any acquittance therefore he hath tolled from him the election whereof he shall not take advantage Fenner è contra for the election is not in the Partie for the making â—o the acquittance resteth in the will of the Obligee and so the Obligor hath no election Popham was of the same opinion 56. IF a Sheriff doe execute his Writ the same day that the Writ is retornable Execution of a writ done the day of the retorn it is a good execution per Yelverton and he cited these cases A Judgement given in a quare impedit 18. Eliz. and the Writ of dammages was executed the same day that it was retornable and this matter pleaded in arrest of judgement and notwithstanding the partie had judgment and if a capias ad satisfaciendum goe forth and the Sheriff take the Partie the same day that the Writ is retornable and send him into the Court who will say that this is not a good execution 57. WOodcock brought an Action of Debt against Heru Assets Executor of I. S. The Defendant pleaded that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing And if this Plea be good or not is the question Fenner The Plea is good without question Gawdie I have heard divers learned men doubt of that for if the Testator were bound in a Statute to perform Covenants which are not yet broken and it may be they will never be broken and then he shall never be chargeable by this Statute and yet he shall never be compelled to pay any debts which will be a great inconvenience And again I think there will be a greater mischief of the other part for put the case if the Executors doe pay this debt and the Statute is broken after he shall be chargeable by a devastavit of his own proper goods the which will be a greater inconvenience 58. BRough against Dennyson brought an Action for words Slander viz. Thou hast stoln by the high-way side Popham The words are not actionable for it may be taken that he stole upon a man suddenly as the common proverb is that he stole upon me innuendo that he came to me unawares And when a man creepeth up a hedge the common phrase is he stole up the hedge Fenner When the words may have a good construction you shall never construe them to an evill sense And it may be intended he stole a stick under a hedge and these words are not so slanderous that they are actionable 59. A Copy-holder was not upon his Land to pay his rent Forfeiture of a copy-hrld when the Lord was there to demand it And whether this were a forfeiture or not was the question Fenner It is no forfeiture if there were not an express denyall for the non-payment here is but negligence the which is not so hainous an injurie as a willfull denyal for it may be that the Copy-holder being upon the Land hath no money in his purse and therefore it shall be a very hard construction to make it a forfeiture But if he make many such defaults it may be it shall be deemed a forfeiture Popham If this shall not be a forfeiture there will grow great danger to the Lord and the Copy-holders estate was of small account in ancient time and now the strength that they have obtained is but conditionally to wit pay their rent and doing their sevices and if they fail of any of these the Condition is broken and it seemeth cleer if the rent be payable at our Lady day Demand after the day and the Lord doth not come then but after the day to demand the rent there is no forfeiture 60. THe Case was that there was Lessee for life Sir Henry Knevit against Poole interest of Corn. the Remainder for life and the first Lessee for life made a lease for years and this Lessee was put out of possession by a stranger and the stranger sowed the Land and the first Lessee for life dyed and he in remainder for life entred into the Land and leased it to Sir Henry Knevit and who should have the corn was the question Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder shall have the corn for the reason for which a man which hath an uncertain estate shall have the corn is for that he hath manured the land and for that it is reason that he that laboureth should reap the fruit but he said that the stranger that sowed the land shall not have the corn Lease of ground sowed because his estate begun by wrong for if a man make a lease for life of ground sowed and before severance the Lessee dyed now his Executor shall not have the corn Assignment after sowing concess per Popham cont per Gawdy for that they came not of the manurance of their Testator so it is if the Lessee for life sowe the land and assign over his interest and dye now the Assigne shall not have the corn cansa qua supra and for this reason in our case neither the Executors of the first Tenant for life nor the Lessee of the first Tenant for life shall have the corn here for that it comes not by their manurance and the stranger which sowed them he shall not have them Vncertainty necessarie unnecessary difference for albeit he manured the land and howbeit his estate was defeasable upon an uncertainty yet he was a wrong doer and the incertainty of his estate came by his own wrong for which the law will never give any favour to him and for that when he in remainder for life entreth it seemeth that he shall have the corn for he hath right to the possession and the corn are growing upon the soile and by consequence are belonging to the owner of the soile but it hath been said that here there was no trespasse done to him in remainder and for that he shall never have the corn Sir as to that I say if an Abator after the death of the Ancestor enter and sowe the land Abator soweth and after the right heire enter in this case the heire shall have the corn and yet no trespasse was made to him and it hath been adjudged in this Court where a man devised land sowed to one for life and after his decease the remainder to another for life and the first Tenant entred and dyed before severance and he in remainder entred that there he in remainder shall have the corn and by consequence the same Law shall be in our case Godfrey è contra and he argued that the Lessee for yeers Devise of land sowne of the first Lessee for life
Wife sued execution and the Debtor upon this release brought an audita querela and adjudged against him because of covin but there is a third matter which makes an end of all for it is found that Sir John Pagginton entred upon Goodale and Goodale re-entred and then the Defendant entring is a Trespassor to the Plaintiff because no title is found for him to make his entrie lawfull Finner I thinke no payment ought to be made to the heir in this case no more than it shall be where a man is bound by obligation to pay a lesser sum to the Obligee his Heires or Executors there payment shall be to the Executor and not to the Heir And I think in this case Conusee by Starute grants over his estate that the payment ought to be to the Feoffee for that that he is to have the losse for by 22. E. 3. 15. E. 3. if a man have exeution by Statute and grant his estate over if the Conusor will pay the money and have the land again it shall be paid to the Grantee and not to the Conusee But I am cleer in opinion that for another cause judgement ought to be given against the Defendant for the words of the condition are sub conditione That if Sir John Pagginton pay 50. l. to the Heires Executors or Administrators of W. That the said Deed of Feoffment Liveriâ— cannot be void without a reentire and the seizin upon that given shall be void And I think it is no condition for livery of seisin may not be void without a re-entry as 15. H. 7. is but for the matter of the Covin it seems to me that if the Heir may receive the money that shall not prejudice for if he have right to have the money who hath any wrong if he give part of that to another Clinch The payment of the money to the Heire is good for when a man departeth with his estate it is in his dispose to annexe what condition he will and for that when he appointeth to the Heires Executors or Administrators payment to any of them is good And he said it was a good condition Possession a good title against all which have not a better and no fraud for the duty was due to the Heir but for the last matter that is not to be cured for when one title is found for the Defendant and it is found that the outed one that had elder possession his entry is torcious Popham I think the condition is not good for whensoever you will have an estate of inheritance to cease Estates beginning by liverie and otherwise you ought to have apt words to make it cease for an estate which beginneth by liverie may not cease by words but it is otherwise of an estate that beginneth by contract without any liverie and seisin but in the point of fraud I am of opinion with my brother Gawdy Fraudulent recoveries are void although they be by a good title For fraud in our law is not favoured albeit the partie have right for if he that hath right is of covin with one to disseise him that is in possession to the intent that he will recover against him now this recoverie albeit he hath right will doe no good to him but the last makes all without question and so judgement was given for the Plaintiff 112. SAyer brought an Eejectione firme against Hardy A Lease determinable made good for the insensibility of words and a speciall verdict was found to wit that a Lease was made to a widow for 40. yeers sub hac tamen conditione quod si ipsa tam diu sola fuerit inhabitabit in the same house the woman continued sole all her life and dwelt all her time in the said house and dyed within the term the question was whether the term be determined or not and whether the words make a condition or limitation Morgan It is no condition and cited Colthursts case but if it were a condition here is no breach alleged for the death is the Act of God which no man may resist and the Act of God may not prejudice any man Bromly I think the word makes a Limitation and not a Condition and he tited the Lord Barkly's case Gawdie If a Lease be made to a feme sole if she so long live sole and continue unmarried now if she dye the Lease is determined Differences between conditions and limitations and per Litl If an Abbot make a lease for 40. yeers if he so long be Abbot if he after be deposed or dye the lease is determined So is it of a lease made by the Husband if he so long continue Husband of such a woman but in this case the words are insensible and for that it is neither condition nor Limitation vide 3. E. 6. Dyer 65. 66. Popham Clinch It is neither Condition nor limitation but if this word si had been omitted it would have been a condition Or if the words sub conditioâ—â— quod had been omitted it would have been a limitation And if I make a Lease for 40. yeers if the Lessee dwell upon the thing let during the term there if the Lesse dye the Lease is determined for that the point of limitation goeth to all the term but if it be a lease for 40. yeers if the Lessee dwell upon that during his life there if he dye the Lease continueth So they all concluded that the terme yet continueth per quod judicium intretur pro quer 113. IN the case between Walter and Walter for 20. l. per annum to be paid to a Justice of Wales for the Office of the Clerk of Fines Assumpsit in consideration of an Office sold For a Justice of Wales may by Prescription take notice of Fines of Land lying in certain Shires in Wales and this 20 l. per annum was to be payd by the Servant to the Master for the sayd Office for the Clerks Fee was v. s iiij d. of every Fine The Action for not paying the xx l. Mistrâ—all was brought and tried in comitatu Gloucest And therefore Mr. Attorney said it was mis-tryed for properly it ought to be tryed in one of the three Shires in Wales John Walter I think the Tryall good for 30 Eliz. there was a Case in this Court between Beveridge and Conney Reveridge against Conney And the case was that a Lease was made in the County of Northampton of lands in the County of Cambridge and the Lessee was bound by Obligation to pay his rent in the County of Northhampton The Defendant pleaded payment in the County of Cambridge and this was found in the County of Northampton Gawdy This is a good Case let us see the Record Walter You shall Sir But the Court seemed to incline against Walter Cook said that in this case the Assumption is voyd per le Statute de 5 Ed. 6. cap. 16. For it is not
Brough against Devison 143 58 Forfeiture of Copyhold 143 59 Lease for years Knevit against Poole 143 60 Prohibition Rame against Patison 145 61 Partridge against Nayler 145 62 Forfeiture 146 63 Quare impedit Lord Zouches case 146 64 Assumpsit Thornton against Kemp. 146 65 Prohibition Sherington against Fleetwood 147 66 Trust VVildgoose against VVayland 147 67 Reservation of Rent 148 68 Action for a Robbery 148 69 Outlary reversed 148 70 Fine with proclamation 148 71 Feoffment to a use 148 72 Tenure and Wardship 149 73 Devise 149 74 Prohibition Benefield against Finch 149 75 Oyer of a bond 150 76 Ejectione firme Beckford against Parnecole 150 77 Writ of Error Harecourts case 151 78 Trover Easts case 152 79 Writ of Error Wiseman against Baldwin 152 80 Assumpsit Pine against Hide 154 81 Prohibition Jacksons case 154 82 Trover and conversion 155 83 Assumpsit Chessins case 155 84 Assumpsit Dixon against Adams 156 85 Ejectione firme Ross against Ardwick 157 86 Trover Harding against Sherman 158 87 Debt upon a bond Paytons case 158 159 88 Trespass quare clausum fregit 159 89 Debt upon a bond Allen against Abraham 159 90 Account Huntly against Griffith 159 91 Scire Facias Lady Gresham against Man 160 92 Prohibition Ramsies case 161 93 Account 161 94 Indictment Hom's his case 162 95 Fine of Lands 162 96 Ejectione firme Robins against Prince 162 163 97 Scire facias Hoo against Hoo 166 98 Mackerell against Bachelor 168 99 Information Goodale against Butler 169 170 100 Scire facias Foe against Balton 170 101 Contra formam Collationis 111 102 Ejectione firme Cootes against Atkinson 171 103 Action for words Pollard against Armeshaw 172 104 Elegit Palmer against Humphrey 172 105 Covenant 173 174 106 Debt upon a bond Robinson against May 174 107 Audita querela Hobs against Tedcastle 174 175 108 Covenant Matures against Westwood 175 109 Assault and battery Sims his case 176 110 Trespass Goodale against Wyat 176 111 Ejectione firme Sayer against Hardy 179 112 Rent Walter against Walter 180 113 Debt upon an Escape 108 114 Vtlary after Judgement 108 115 Fine levied Sir Henry Jones case 181 116 Evidence Tutball against Smote 181 117 Debt Richard Thornes case 182 118 Debt Humble against Glover 182 119 Evidence Maidstone against Hall 182 120 Speciall Verdict Dickins against Marsh 182 183 121 Covenant Cole against Taunton 184 122 Grant 184 123 Error Brewster against Bewty 187 124 Trespass Pannell against Fen 185 125 Repleuin Second deliverance 185 126 Action for words Stitch against VVisedom 185 127 Accessary to Felony 185 128 Debt Thin against Chomley 186 129 Lease Harbin against Barton 185 103 Action for words Baddocks case 186 131 Debt upon a bond Staples against Hankinson 187 132 Error Boyer against Jenkins 187 133 Grant over 187 134 Ejectione firme Thomas against King 187 135 Trespass Oland against Bardwick 188 136 Error Ascough against Hollingworth 188 137 Trespass Bodeam against Smith 189 138 Name of purchase 189 139 Perjury 189 140 Obligation 190 141 De Term. Pasch Anno Elizab. Reg. xxviij 1. WAst war brought by Constance Foster Wast and another against Lessee for years in effect the case was such A man makes a Lease of certain Lands 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods the Lessee cuts down Trees and he in Reversion brings an Action of Wast and by the opinion of the Court the Lessee is not punishable in Wast for they were never let and therefore the Plaintif is driven to his Action of Trespass at the Common Law 2. THe Sherif returneth in a Writ of Right four Esquires to make the pannel Return and doth not say that there be any Knights it was sayd by the Court that he ought to return them which be and that there be no more 3. WAst was brought for digging in Land Wast and taking away Okes the Defendant pleaded in bar That the Queen by her Letters Patents under the Great Seal of England granted unto him that he might dig for Mines of Cole in the Land and prayed that it might be entred verbatim and a Grant under the Seal of the Exchequor was entred whereupon the Plaintif Demurred Now came Walmisley and would have amended it and by the opinion of the Court he cannot amend it after the Demurrer be entred Demurrer but Judgement shall be given for the Plaintif if he shew no other matter 4. A Man seised of Lands in Fee Devise and sale by Executors Deviseth to his Wife for life the Remainder to his Son in tayl and if his Son dye without issue of his body that then the Land shall be sold by his Executors and maketh two Executors and dyeth the Wife dyeth one Executor dyeth the Sonne dyeth without issue the other Executor selleth the Land and Gawdy the Queens Serjeant moved whether the sale be good or no and it seemeth to him that the sale is good and vouched the Case in 30 Hen. 8. Brook Devise 31. And now lately it was adjudged in the Kings-bench where a man did Devise his Lands in tayl and for default of such issue that the Land shall be sold by his Sonnes-in-law and dieth having five Sonnes-in-law the one dyed the others sold the Land and this was adjudged a good sale Anderson It seemeth the sale is not good for if one make a Letter of Attorney to two to make Livery and Seisin Livery if the one dye the other cannot doe it So if one grant the Office of Stewardship to two the one of them cannot hold Court alone Stewardship And if one of them may sell to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell Windham The Statute will not prove the case but it seemeth the sale to be naught And there is a difference where one giveth an interest to two and when he giveth but an authority Interest for an interest may survive but an authority cannot Authority Rodes to the same intent and cited M. 4 Eliz. fol. 219. a. 177. 210. 371. 5. BAttery Battery by Webster against Pain the Action was layd in London and in truth the Battery was committed at Uxbridge in Midlesex the Defendant pleaded that such a day and year at A. in the County of Huntington 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him and the hurt c. absque hoc that he is guilty in London Snag moved that the Traverse should not be good Anderson Will you have him to say absque hoc that he is guilty that he ought not for by the speciall matter he hath confessed the Battery and you will not deny but that if his Plea be true he hath good cause to bar the
came to the Bar and demanded Judgement for the Plantif The case and rehersed the case in this sort The Prior of St Johns of Jerusalem in England by deed Indented A. 29 H. 8. Devised a Mesuage called the high House 13 Cotages one Stable and 14 Gardens for 59 yeares to one Cordaâ—l rendring 5. l. 6. s 11. d. viz. For the 13 Cotages iij. l. And for the high house xiiij s and for the Stable xx s and for c. And if it happen the Rent to be behind by three months then the Prior to reenter after by an act of Parliament An. 31. Hen. 8. the Priory was given to the King and hee Vested in actuall Possession thereof with all Conditions and Covenants c. as the Lessor had Afterwards the King 29. Sept. An. 36. by Letters Patents gave the Stâ—ble to the same Cordall and one H. Audley in Fee and the Reversion of the other Parcells descended to the Queen which now is whereupon 8 die Maii An. 23. Issued a Commission out of the Exchequer to enquire si praedict Cordall assign sui perimplevissent performassent omnes conventiones promissiones fact reservat super praedict Indent dimissionis praemissis fact c. And the Commission was retourn'd in Michaelmas Term after and it was found that the four usuall Terms in London are the Feasts of St. Michael the Birth of our Lord the Annunciation and the Birth of St. John Baptist for the Rent was to be paid ad quatuor terminos Anni infra Civitatem London usuales Vsuales terminos And further by the same Iury being a Iury of Middlesex it was found that 37. s 5. d. ob Part and Parcell of the said Rent were behind not paid by three Months next after Michaelmas last past before the taking of the said Inquisition Cordall made Burnell his Executor and died Burnell granted all the Term to Brech the Defendant Afterwards the Queen 5 Augusts An. 23. which was before the return of the Inquisition and before any Entry or Seisure made by her or by any other to her use granted the high House to Sir John Fortescue and Thekston in Fee and they entred upon Berch and made the Lease to the Plantif for three yeares c. And first it is to be considered if they be severall Rents in this case or no Severall Rents because he saith viz. For the high house 14. s c. For that I take the Law to be very strong Coâ—cessum per Fenner Rodes that they be severall Rents for allthough that he saith first requiring 5. l. 6. s xj d. which is an entire summe yet when he saith afterwards for the high House so much and for the Stable so much c. This maketh a severance and for that I will remember the case in Dyer fo 308 Feoffment per deux so I hold the Law if a Feoffment be made by two rendring xx l. a year viz. x. l. to the one and x. l. to the other these are severall Reservations but because I hold the Law clear in this point I will speak no more to it Another matter is when the Commission issueth to enquire of all Covenants and Promises conteined in the Indenture to be performed by Cordall Conc. per Rodes Lease sur condicion en un proviso if the finding by the Jury be conteined within these words Covenants and Promises c. And I think they be for if a man make a Lease to one for years and if it happen the said Rent to be behind that then it shall be lawfull to the Lessor to reenter as I think this is a Proviso for the Rent so the case in 22 Hen. 6. A Lease was made for years Rent an agreement rendring Rent the Lessee is bound to perform all covenants and agreements if he do not pay the rent the obligation is forfeit Coâ—cess per Fenner for the payment of the rent is an agreement So in this case the proviso doth extend to the payment of the rent And as for the exception which was taken viz. That the Jury find that 37 s of the rent was behind and doe not say expresly for the house which is now in question I hold that a vain exception for when they have found that more was behind than that which was now in question allthough that it be in generality yet it is good for the particularity and for that matter I could remember many cases but I will not doubt of a matter as I think without doubt But for the condition which is the great matter of the case First the condition is vested in the King by the express words of the Statute and Condition as I think grant of parcell shall not extinguish the whole condition In the case of a common person the condition shall be utterly gone and so are our Books otherwise peradventure I would doubt of that allso but because the Book is so in Dyer 14 Eliz. fol. 309. I will speak no more of it but the case of the King differs from a common person Rent charge to the King rent seck for as he is the Head and supreme Governour of the Commonwealth so he is the superior in Prerogatives and Preheminences 13 Ed. 3. 14 Ed. 3. A rent charge granted to the King he shall distrein for it in all the lands of the Grantor and 8 Hen. 5. if a rent seck cometh to the King he shall distrein for it and yet it is called seck because no distress is incident thereto And there the principall case was of a Fieri facias No demand by the King 2 Hen. 7. the King shall not demand his rent But it hath been sayd that because conditions go to the destruction and determination of estates Cond strictly taken that therefore they shall be tâ—ken strictly to which I agree but not in the case of the King as in Bro. Apportionment 23. 168. and so are the presidents in the Exchequer if a man be bound in a Statute Merchant and after the Conisor enfeoffes the King of parcel of the land Conisor enfeoffes le Roy. and enfeoffes a stranger of another parcell and afterwards the Statute is forfeit to the King by atttainder the King shall have execution against the other feoffee And in many other cases the King is privileged especially in things entire For if there be two Coparceners and one be in ward to the King Entire presentation he shall have the entire presentation of all And in this case I think that before the condition shall be destroyed that the Patent made to Cordall shall be voyd for it is not ex certa scientia merâ— motâ— but it is generall and it was not the intent of the King to take away the intire condition And allthough the King grants the reversion yet the condition which was once vested in the King as I think remains in him
Item that when concourse and equality of titles come together 4 Principles for the King that King shall be preferred 3. Item in entire things he shall have all 4. Item that his grant shall not extend to severall intents or purposes For the first if the King be deceived in the operation of the Law his grant shall be voyd as where he grants to a man and his heirs males Release several this shall be voyd 6 Hen. 7. release of all demands 11 H. 7. 10. release of all action and yet in those cases there is matter of interest and not prerogative and yet nothlng passeth if she be deceived For the concourse of title 4 Ed. 6. a man makes a feoffment in fee upon condition that the feoffee shall not commit treason after the feoffee commits treason the King shall have the land Treason 44 Ed. 3. per Thorp tenant of the King c. he shall have the rent again And for the case of the Lady Hales in the Comentaries where lands descend to a villain For entireties 44 Ed. 3. the King and others give lands to a Monastery the King shall be sole Founder The. King sole founder 19 Hen. 6. he shall have the intire obligation where the one obligee is outlawed Obligation and in 11 Hen. 7. 2 R. 3. two are indebted to the King Release to the oblige and he releaseth to one of them then his grant shall not inure to two purposes Baggâ—ts Ass And so if the King give lands to his villain this shall be no enfranchisment to him So for all those reasons I hold the condition may well enough be apportioned Villâ—in Then for the third matter when the commission issueth to enquire of all covenants and provisoes if the condition be within those words and for that point I think that the Plaintif shall recover for allthough it be not within the words yet the commission is generall after but yet I hold that is within the words 21 Hen. 7. fol. 37. per Fineux If I let land for term of years rendring c. I shall have debt or covenant at my election and Dokerayes case 27 Hen. 8. Proviso is a condition and so it was held here in the case of the Lord Cromwell and Andrews Then when the Jury found that 37 s 5 d. ob were behind if this office be good or no and in my conscience that which is good shall be taken for the Queen and the rest shall be voyd for offices between party and party may be voyd for uncertainty as the case is in Dyer 3 4 Eliz. Office in Beverley c. fol. 209. Or they may be avoyded for falsity Proviso is a condition 1 M. Culpepper fol. 100. b. Or for insufficiency as in my Lord of Leicesters case in the Comentaries Offices voyd but this is only for the Queen and therefore shall be taken favourably and therefore I will â—ompare it to a verdict where surplusage is found 3 Hen. 6. Plene administravit Superplusage in a â—erdict and the Jury found that they have more than Assets 47 Ed. 3. the Jury found that he which prayed to be received had nothing in the land where the issue was joyned whether the particular tenant had a fee. And 39 Hen. 6. 9. surplusage in an Inquisition 5 Hen. 5. fol. 2. Resceit Cobhams case where they found a Divorce in Kent c. Inquisition Allso Sir Offices may be good for that which is certain and voyd for that which is uncertain and good for the King and not for a subject Strenes case in 15 Edw. 4. 14 El. Office found after the death of the tenant by the curtefie 29 H. 8. Br. tit Office devant Escheetr 58. Dyer And if a commission be awarded and the lury say that dâ— quo tenetur ignorant then a melius inquirend shall goe forth but if they say per quae servicia ignorant then nothing shall be done but it shall be intended Knights service and so is the experience of the Exchequer And here they have found that more was behind ergo they have found that so much was behind Quia omne majus continet in se minus Then if this be within the Statute of 18 H. 6. c. 16. And it seemeth that it is not for that Statute as I think is but an exposition of 8 H. 6. and that speaketh of Leases by Treasurer and Chancellor and for that see the case of the Duke of Suffolk 3 4 Ph. Mar. Dyer fol. 145. And so I think for all these causes judgement shall be given for the Plaintif Peryam Justice to the contrary For the first matter I agree that they be several rents for the viz. here doth expound the matter and when the viz. may stand with the premises Videliceâ— then it is good and otherwise not and for that the case in 17 lib. Ass which hath been vouched Difference between an annuity and a rent charge and disseisin of one is not disseisin of the other rent And there is a plain difference between an annuity and a rent service because for an annuity it is the book in 29 Edw. 3. fol. 51. 29. lib. Ass 3 Parceners and rent reserved for equality of partition c. vouched by Rodes but if I grant you xl s out of my Mannor viz. x s out of parcel in the tenure of A. and x s out of another parcell Rent limited out of an intire mannor this is voyd for first there was a grant out of the entire Mannor 9 lib. Ass yet this is one lease but one reversion but one condition the condition is entire and that is wel proved by the express words of the condition totaliter reentrare and this proved by Winters case in 14 El. and Rawlins case adjudged Totaliter where the sum in gross was behind Dyer the case vouched by Rodes Cond is undevidable 33 Hen. 8. in a common persons case it cannot be divided neither by title nor by the act of the party If surrender be made of parcell Surrender of parcel the rent shall be apportioned but the condition is utterly gone Dyer But peradventure it will be objected that in 17 Eliz. the condition there was divided where he aliened parcell with the consent of the Lessor and the other parcell without consent and in that the Lessor entred for the condition broken Cond â—pportioned I grant this case and yet this doth not prove that a condition may be apportioned for the reason in that case is when he made such a condition the condition extended but to that which he aliened without license and to no more and so I hold the Law where a lease is made of twenty Acres with condition Eviction c. and parcell is evicted And warranty at the Common Law cannot be divided for if two Coparceners were who
which you allege is against you And the Wife of the Defendant being in Court was very importunate whereupon the Court moved an agreement and the Plaintif was content upon condition that the Defendant would enter into bond but the Defendant seemed unwilling by his silence Anderson Wee have made stay to the intent to do the Defendant good and he will not be content when more than reason is offered him wherefore let Judgement be entred for the Plaintif 7. IN a replevin by Gybson against Platlesse Revocation of a VVill. the Defendant made Conusance as Baylif to Anne Wingfield and the Issue was whether the Land descended to Anne Wingfield Norfolk Trin. as Daughter and Heir to I. W. and upon evidence this was the case 28 Eliz. rot 2â—30 The said I. W. was seised of the Lands in question and divers other Lands and by his last VVill devised all his Lands and Tenements to Anthony Wingfield of London Goldsmith in Fee and after and before his death he made a Feoffment in Fee of the same Lands which he had devised to the same A. W. and when he sealed the Feoffment he demanded will not this hurt my Will and it was answered again that it would not and he said if this will not hurt my Will I will seal it and then he sealed it and a Letter of Attorny to make livery and in some of the Lands the Attorney made livery but not of the Lands now in question and after the Testator died now if the Devisee shall have the Lands or no was the question for if this Feoffment be Revocation of the Will then the Devise is void And it was said by the Counsell of Anne VVingfield that it is a Revocation For if the Testator had said that this shall not be his Will then it had been a plain Revocation quod fuit concessum per Curiam and then the making of the Feoffment is as much to say as that the Will shall not stand but it was answered by the Court that it appeared that the mind of the Testator was that his Will should stand and when he made the Feoffment this was a Revocation in Law and if no Feoffment had been made there had been no Revocation in Law and there is no Revocation in deed for he said if this will not hurt my Will I will seal it and allthough that the Attorney made livery in part Feofâ—ent perfect in part so that the Feoffment was perfect in part yet for the Lands in question whereof no livery was made the Will shall stand Will. for a Will may be effectuall for Part and for Part it may be revoked and the Court told the Jury that this was their opinion and thereupon the Jury found accordingly that the Land did not descend to A. VV. quod nota And Fenner who was of Counsell with the Plaintif before the coming again of the Jury to the Bar said to the Counsell of the Defendant that the Law was clear against them Allso he said to divers Barresters afterward privately that in the case of Serjeant Jeofres it was adjudged that where one had made his Will and after one of his friends came unto him and demanded of the Testator if he had made his Wil and he answered no. And he demanded again will you make your Will and he answered no and yet this was adjudged no Revocation 8. ONe Lea of Essex Privelege was sued in an Action of Battery in the Common pleas Battery and upon non culp pleaded it appeared upon the evidence that the Defendant and others had thrown daggers at the Plaintif and grievously hurt and maimed him in outragious manner and Peryam said to the Jury that they ought to consider that the Plaintif was put in fear of his life and had one of his hands maimed and what damage he had susteyned by his Mayhem and that they ought to give damage as well for the fear and assault as for the Mayhem and when the Jury was gone from the Bar the Defendant caused the Plaintif to be arrested in the Kings Bench for a battery done to him by the Plaintif before and this was shewed to the Court and thereupon they sent for Lea and were grievosly offended with him for they said that when a man is sued here Privelege de Court. he ought safely to come and go by the privilege of this place without vexation elsewhere And Lea pleaded that he was ignorant of the Law but the Court answered that ignorantia juris non excusat and therefore they said that they would punish him and discharge the other Then the Plaintif said that he had put in bayl to the arrest and the Court answered if you had not done so we would have discharged you but now we cannot but they commanded Lea to release his arrest or otherwise he should smart for it Fine and Lea was well content to do so Anderson yet you shall pay a fine here allso for otherwise we shall be perjured wherefore because you are ignorant you shall be fined at vj. s and Lea payed the vj. s incontinently and went for to release his arrest Rodes You have escaped well therefore let this be a warning 9. BEtween Smyth and Lane the case was such Copyhold Mith. 27. 28. Eliz. Rot. 1858. Radford A. was a Copyholder in Fee according to the custom of a Mannor whereof the Queen was Lady And she by her Letters Patents let the Copy hold to B. for years and he granted his Term to the Copyholder if by this the Copyhold be determined or no was the doubt And it was agreed by the Court and all the Serjeants 28 H. 8. 30. b. that if the Lease had been made immediately from the Queen to the Copyholder then it had been a plain determination but some put a diversity because the Patentee was not Lord of the Mannor Peryam I think the Copyhold is not gone for when the Copyholder hath an interest in possession and the other in the Freehold and the Patentee grants his interest to the Copyholder what surrender can this be Anderson I will not have it a surrender but I will have his interest to be determined For when he is a Copyholder this is by Custom and when the Land is left this is by the Common Law and when this is granted to the Copyholder surely he shall not have both For he cannot have a Copyhold in the Land and have the Land also wherefore in my opinion the Copyhold is gone Peryam Peradventure by the grant to the Patentee the Rent shall pass if there be any but it shall be hard to make it a determination of the Copyhold for they are two distinct and two severall interests Anderson By the grant made to the Patentee the Rent shall not pass for he hath no Reversion adjornatur 10. A Quare impedit was brought by Specot and his wife against the Bishop of Exeter
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
the Land should pass by this words Appurtenances For allthough that in late Books Lands shall not pass by this word Appurtenances yet this is good authority to prove that they shall pass as 7 Hen. 5. 41. T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning and here upon this devise 4. l. Rent is reserved and the antient Rent is but 45. s and if the Land should be racked it is all worth but v. l. a year and because they are held in Capite therefore by the Statute we shall have but two parts And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney Valew wich are not worth so much therefore somtime the valew is considerable in a Will and cited 4 Ed. 6. 7 Ed. 6. and so he thought the Plaintif ought to recover And at this time the Court seemed to be of the same opinion for they gave day over to the Defendant at which day if nothing were said Judgement shall be given for the Plaintif 4. GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon Survivor the case was such H. was seised in Fee and had issue Mic. 29. 30 three Sonnes Eliz. râ—t 2325. John VVilliam now Plaintif and Richard now Defendant And by his last Will devised Lands to Iohn and to the Heirs Males of his body ingendred and devised other Lands to William in like sort and other Lands to Richard in like sort And that if any of his Sonnes died without issue Male that then the Survivor shall be each others Heir Afterwards the eldest died without issue Male And if William shall have all his part alone or else he and Richard between them was demurred in Law and day was given over to argue it 5. WAlmisley shewed how an Action was brought by Berdsley against Pilkington Impounding upon the Statute of 2 3 P. Mary for driving a Distress out of the County And shewed the truth of his case that the Distress was taken in the Hundred of Offlay in Staffordshire and the City of Lichfield was sometime within this Hundred And by Letters Patents of 1 Mariae the City was made a County of it self and he which took the Distress impounded them within a pound in the County of the City of Lichfield now whether he hath incurred the penalty of the Statute or no was the question And because the Court had not a Statute Book there to see the Preamble therefore they would give no resolution Anderson The meaning of the Statute was because the Bailif of the Hundred might make deliverance Allso I think it is within the compass of the Statute because the City was a County severed before this Statute made And the Serjeants at the bar said Same Hundred that the party may drive the Distress as far as he will within the same Hundred but he ought not to drive it above three miles without the Hundred 6. IOhn Slywright exhibited an information upon the Statute Champerty for buying of Titles Pasch 30. Eliz. rot 1532. against Page and declared how Joane Wade demised to Page for 60 yeares the Defendant pleaded not guilty And now a Jury of Sussex appeared at the bar And upon Evidence it was moved â—if a man have a lawfull Title to enter into Lands Lawfull title but hath not been in Possession and he entreth and makes a Lease for yeares thereof if this be within compass of the Statute Anderson It is within the Statute for the mischief was that when a man had a Title to Land he would let it to another to have maintenance and imbracery and make contentions and Suites for remedy whereof the Statute was made For if a man have a Title he may recover according to his Title Recovery Peryam The mischief hath been truly recited and therfore it is reason to restrain such bargains But if a man Recover by Formdon or Cessavit and make a Lease this is not within compass of the Statute A pretended Right allthough that he hath not been in Possession by a year and in my opinion the Plaintif need not prove that it is a pretented Right because the Statute expoundeth what is a pretented Right viz. if he hath not been in possession And so I have delivered my opinion before this time Anderson If a man hath not been in Possession and cometh to me and saith that he will make me a Lease and demands if I will take it and I agree thereto whereby he maketh me this Lease Ignorance if I do not know that he hath not been in possession I am not within the Statute And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor whereby he might take the Lease well enough For Fleetwood cited 6 Ed. 3. if one brother maintain the other this is not within the Statute of Champerty which case the Court agreed this is for speciall cause vide statut de articulis super cartas Maintenance Champerty Difference Anderson One brother may travell for another and maintain him but if he take a Lease of him he is within the Statute of 32. Hen. 8. for this is a generall mischief and the mischief is as great if the brother take a Lease as if another take it The case quod Periam coucessit clearly but because it was the case of the Defendant the Jury found a speciall Verdict viz. that the Lands were conveyed by the Husband of Joane Wade to the use of himself and his Wife in Tail-speciall the Remainder to the Husband in generall-Tail the Remainder to the Wife in Fee and after the Husband Enfeoffed diverse men thereof and the Feoffees continued in Possession diverse years After the Husband died and then the Wife by indenture sealed and delivered of the Land made a Lease to Page which knew all this matter Knowledge from the fift day of Jenuary last past for 60 years if the Wife should live so long and that the Wife was Sister to Page the Defendant by the Mother and found the valew of the Land as if it should be sold and they prayed the advise of the Court c. And the morow after the like information being brought against the woman being Lessor the like Evidence was given and the like case found 7. FEnner moved this case to the Court. Recovery An Alien born purchaseth Lands in Tail the Remainder to a stranger in Fee The Alien suffereth a Common Recovery to his own use in Fee And after an Office is found of all this matter if the Remainder shall be to him which had it before or no was the question Anderson I think the Queen shall have a good Fee-simple Tenant sufficient to the praecipe for if there be a good Tenant to the praecipe then is the Remainder gone and you will not deny but that
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
Muskets and Callivers delivered into the Tower for which money Walton took a Debenter from the Queen in the name of a stranger and afterwards dyed and made Leveson Executor who procured the stranger to release and surrender the former Debenter to the Queen and took a new Debenter for the same hundred pound to himself this was adjudged no Assets nor devastavâ—t in the hands of the Executor Leveson upon a speciall Verdict but otherwise it should have been if the first Debenter had been taken in VValtons own name for then it had been a devastavit by the Executor 9. BAcon Plaintif against Selling in an Ejectione firme Assets de judgement the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39. Trin. 39 Eliz. rot 1345. so that it appeared to the Court that the Plaintif brought his Action before he had an interest in the Land and by all the Court a Rule was given for stay of Judgement after a Verdict but afterwards the Plaintif came and shewed that after Improlance he filed a new originall 10. HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words Scandalum magnatum viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged Warrant c. And the Earl recovered great damages by Verdict and now it was spoken in arrest of Judgement that the words were not sufficient to maintain the Action because it was not averred that the Earl knew the Warrant to be forged and of the same mind was the Court at this time 11. WIlloughby brought an Action of Debt against Milward Debt and declared that the Defendant bought Timber of him for ten pound solvend modo forma sequenti viz. five pound ad festum Pasch proxime sequentem and saith nothing when the other five pound should be payed and the Plaintif recovered the whole ten pound by Verdict and now it was spoken in arrest of Judgement for the cause aforesaid but yet by all the Court it was good enough for the Law intendeth the other part of the money to be due presently if no certain day of payment bee alleged 12. KItchin brought an Action of Debt against Dixson Debt Executor of Craven Mich. 36 37 El. rot 1028. or 1021. the Defendant pleaded ne unques Executor and the Jury found a speciall Verdict viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson and they found likewise that this Deed was to defraud Creditors against the form of the Statute and that the Defendant by colour of this Deed did take the Goods after the death of Craven and if this Deed vvas good then they found for the Defendant if not then they found the Defendant was Executor of his own wrong and so for the Plaintif and by all the Court Judgement was given for the Plaintif 13. IT was sayd by Drew arguendo That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires Rent charge the residue may be apportioned and the Land shall remain chargeable still for that residue but if he release in one Acre parcell of the Land charged then all the Rent is gone 14. IT was said by Glanvile in the argument of the case between Cromwell and Andrews Provisâ— that a Proviso in a conveiance to be performed on the part of the Lessee implies a re-entry allthough there be no speciall words of re-entry but otherwise it is when it ariseth on the part of the Lessor and Vouched bendlowes case where there was a Covenant going between the Habendum and Proviso But where the Proviso standeth substantively as where I grant a Rent charge Proviso that he shall not charge my person Condition this is no Condition but a Qualification Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas if the grant be not made before the first Feast which shall next happen the Condition is broken and he put a difference where the Condition must be performed by none but himself and where it may as well be performed by his Executors as himself And Drew said then that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer there ought the Feoffor to make a request otherwise if it be to enfeoff another 15. SMith against Bonsall Common in effect the case was such In an Action of Trespass the Defendant pleaded his Freehold Hil. 39. Eliz. rot 1753. and the Plaintif replyed that A. was seised of a yard-Yard-land to which he had Common of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land and of the Moity thereof did enfeoff the Plaintif the question was whether this Common may be apportioned or else it be extinct alltogether In the argument whereof Drew said that Common sans number cannot be granted over because if it should be granted to a rich man he may surcharge the Common then and leave none for the rest of the Commoners so of estovers uncertain for so the Grantee may burn all the Wood quod Walmisley concessit and he vouched 17 Eliz. in Dyer that a Commoner may purchase parcell of the Land out of which his Common is issuing Purchase after that it be improved by the Lord and not extinguish his Common thereby And he said that if parcell of the Common be inclosed Inclosure a Commoner ought to make but one gap to put in Cattell but Anderson said that he may make as many gapes as he will And it was said by Anderson and Beamont Appendant may be apportioned that Common appendant cannot be for all manner of Cattell but onely for such â—attell as compass the Land and that such Common may be apportioned into twenty parts Append. quid as any Common certain may be Walmisley Owen If my Land to which I claim Common belonging can yield me stover to find a hundred Cattell in Winter then shall I have Common in Summer for a hundred Cattell in the Land out of which I claim Common and so for more or fewer proporitionably which they did expound to be the meaning of pertinen Moity of a Mannor levan and cuban Walmisley If I grant away the moity of my Mannor we shall both keep Courts so if I be disseised of a Moity or that the Moity be in Execution by elegit and we shall both have Common and in apportionment of Common respect ought allwaies to be had to the quality of the Land unto wâ—ich it is alloted Copiholder And a Copyholder may prescribe for Common in the Lords Land within the same Mannor by usitatum fuit but if he claim any other Common he must lay the prescription in the Lord. De Term. Hill An Reg. Eliz. xliii 1. WAlter Ascough prisoner
Statute of 18 Eliz. cap. 11. c. appoints that the Ordinary after complaint made and sentence given against any such incumbent whereby he ought or shall lose one years profits of his Benefice shall grant Sequestration to one of the inhabitants of the same Parish as he shall think meet And upon default there in by the Ordinary that it may and shall be lawfull to every Parishoner where the Benefice is to retein and keep his or their tithes and likewise for the Church-wardens to enter and take the profits of the Glebe lands and other Rents and duties of every such Benefice to be imployed to the use of the poor and he shewed how that the Parson made a Covenant and a Bond that he would permit I. S. to take the profits of his Benefice for a year And whether this were such a Lease for which the Parson ought to forfeit the profits ut super he prayed the opinion of the Court and it seemed to them it is not the reason seemeth to be because he doth not aver him to be absent above 80 daies in the same year 83. PEr Popham If a man find my horse Conversion and after ride him and then delivers the horse unto me and I bring an Action of Trover for the Conversion It is no plea that you have delivered the horse to me before the Action brought for you ought to answer to the Conversion 84. CHesson brought an assumpsit against D. K. Abatement of debt and declared that where I. S. was indebted to him in 64l The Defendant in consideration that the Plaintif would abate 10l parcell of the said Debt and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael and the Plaintiff in facto saith that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue per quod actio accrevit The Defendant pleaded in Barre That after the said day given and before Michaelmas scil tali die the Plaintiff entred a plaint in London for the Debt aforesaid of 64. l. Arrest before the day given for payment and then caused the said I. S. to be arrested and demanded judgement si actio Tanfield The Declaration is sufficient for you have delared that you have abated part of the debt but you have not shewed how that was defaulked and therefore not good for we may take issue upon that if we will and if a man be bound in an Obligation to discharge me of certaine rent it is no plea for him to say that he hath me discharged without shewing how for that that I may take issue upon thaâ— Also to the second matter the Plaintiff ought not onely to give day of payment but also to forbeare to molest I. S. untill the day be come Cook to the contrary And as to the first poiut it seemeth that the discharge ought to be upon the entring into bond Bond for parcell of a contract for if a man make a Contract for 10. l. and after enter into bond for 5 l. parcell of that all the Contract is gone as appears per 3. H. 4. And as to the second point I think the promise is broken by the Defendant for that he did not enter into Bond the next day after the assumption made Gawdie I doubt whether the Declaration be good or not for it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for it may not be intended a defaulking in Law but of a defaulking indeed and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act himselfe And 17. Eliz. A man was bound to allow ratifie and confirm a term for yeers And it is no Plea to say that he hath that confirmed But he ought to shew how because every Confirmation must be by Deed but if the Declaration were good then perchance the Barre would not be good And howbeit that Mr. Attorney hath said that there is a breach for not entring into Bond yet the Plaintiff may not sue Every discharge to be by writing if he have not performed his promise Fenner It will be hard to make the Declaration good for when one promiseth to defaulk his debt this shall be intended a lawfull discharge which cannot be otherwise than by writing and per 20. E. 3. Accompt If a man be bound to acknowledge a Statute For the intent must also be performed and he doth acknowledge the same but yet keeps the same in his own hands this is no performance And as to the second point when one promiseth in confideration of one thing to doe another there ought to be performance of the first as if a man be bound to make a new Pale Disturbance of the consideration as 9. Edw. 4. 20. 15. Edw. 4. 2. 3. is having the old pale for his labour there if the old pale be taken from him he is not bound to make the new pale Popham I am of the same opinion 85. DIxon brought an Action upon the case against Adams Assumpâ—it in consideration that a man will voluntarily do that act which otherwise he should have been compelled to doc and declared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉 for the said I. S. in the said suit and the said Adams recovered in the said suit and after sued forth a Scire facias against the said Dixon being bail whereupon the said Adams in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation in which the said I. S. was bound unto him and upon which the first action was brought and the judgement thereupon had and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant Sed â—radictus defend promissionem assumptionem suas minime curans hath not assigned over to the Plantiff the said Obligation and Judgement per quod act accrevit and Judgement was given for the Plaintiff for the consideration was holden good 86. ROsse brought an Ejectione firme against Thomas Ardwick Limitation and the case was such that one Norwood was seised in see and leased to one Nicholas Ardwick and his Assignes for his own life and for the lives of Thomas Andrew and John Ardwick and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will and
dyed and if the estate of Tho. was determined by the death of Nich. was the question Johnson There are two points in the case the first if by this word Assignee an Occupant shall have the land and I think he shall not And the second point is when a lease is made to one and his Assignees for his own life and the lives of two others if now his own life confound the other two lives for that that it is greater to the Lessee than the other two lives and he said the Lessee hath no estate but for his own life and when he dyed the state is determined and to prove that he cited the opinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie without impeachment of Wast the remainder to him for his own life that now he is punishable of Wast for that that when the remainder is limited unto him for his own life Wast against the surviving Joyntenant this drowneth the estate pur auter vie which was in him before And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast and one of them purchase the Fee simple and dye now his heir shall have Wast against the Survivor And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane Cook è contra And the case is no more but that a lease is made to one and his Assignes for his own life Remainder for years to the tenant for life and for the lives of two others and I think that all may stand together for a man may have an estate for his own life the remainder for yeares and both may stand together in him simul semel for that that albeit that the Lessee may not have that during his own life yet he may dispose of that and by that means shall have the benefit and so in this case and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant and the inconveniencies shall be exceeding many in this case if the estate doth not endure for all their lifes for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years and usually Tenants in tayl make such leases as these be and for that the generality of the case ought greatly to be regarded and there was a case adjudged in the Common place between Chambers and Gostock Chambers against Gostock where a lease was made to two for their lives and the life of a stranger and one of the Lessees dyed and the Survivor granted the land for his life and the life of the stranger Burdels case and it was no forfeiture and allso it was Burdels case in the Common-place 32 Eliz. where a lease was to him for his own life and the lives of two others and a good lease for all their lives Occupant And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor Gawdy The cases put by Mr. Johnson are not like to the case in question The greater estate preceding the less both may stand and I will agree them for here the greater estate precedeth the lesser I hold that a lease made to one for his life the remainder to him for anothers life is good for he may it grant over and so I think in this case that so long as any of the lives remain living that the estate remains Fenner I am of the same opinion for I think that the state pur auter vies is in the party to dispose at his pleasure so Judgment was given for the Defendant 87. HArding brought an Action of Trover of goods against Shâ—rman Visne and declared of a Trover at D. in the County of Hunt The Defendant pleaded that he bought the goods of one I. S. at Roiston in the County of Hertford in open Market and demanded Judgement The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Huntington by fraud and Covin And after bought them again at Roiston as the Defendant supposeth the Defendant rejoines that he bought the same goods bona fide at Roiston Absque hoc that he bought them by fraud apud D. in Com. Hunt Glanvile pleaded in arrest of Judgement that the Visne ought to be of both Counties Gawdy seemeth to agree but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties therefore Gawdy gave Judgement for the Plaintif for by this speciall Traverse the buying at Roiston shall not come in question 88. PAyton being High-Sherif Keep harmless brought Debt upon an Obligation against his under-Sherif and the Condition was to perform all Covenants in a pair of Indentures conteined and one Covenant was that the under-sherif shall keep all the Prisoners committed to him untill they be delivered by the Law and allso to save Mr. Payton harmless of all escapes made by the said Prisoners And the Defendant pleaded performance of all Covenants Godfry The Plea is not good for one part is in the Affirmative and the other in the Negative By which the Defendant ought to plead that the Plaintif non fuit damnifieatus and so was the opinion of the Court by which day was given to the Deâ—endant to amend his plea. 89. A Man brought an Action of Trespass for entring into an house and breaking of his close in Dale Variance between the declaration and the new assignment or the title of the Plaintif The Defendant said that the said house and close in which the Trespass is supposed to be done conteins twenty Acres and is at the time of the Trespass supposed was his Freehold And the Plaintif replyed quod locus clausa in quo supponitur transgressio est anum messuagium and makes him a Title to it To which the Defendant pleaded non Cul. And it was found for the Plaintif and for that that the Plaintif by his Replication made to him Title but to a messuage and doth not maintain his Declaration which was for the messuage and the close therefore it was awarded quod querens nihil capiat per Billam sed quare if this do not amount to a discontinuance of the close onely and so helped by the Verdict 90. THomas Allen brought a Writ of Debt against William Abraham upon an Obligation bearing date in October Counterbond for an Obligation allready forfeited The Condition was that whereas the sayd Thomas Allen at the request of the above bounden William Abraham standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May the which May was before the
date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
as primo Mar. 100 is Then if the Sherif inquire of one term and sell another as our case is the term sold was never found by our Inquisition and for that the sale not good quod Fenner concessit yet the Lord Popham sayd that if it had been found by the Inquistion generally that he is possessed of such land for term of divers years adhuc ventur which they have prised to such a sum this had been good insomuch as they have not any means to come to the knowledge of the certainty of the term But when by Inquiry a Term in particular is found Que estate refers as well to the estate as to the person they may not vary from that and sell another and he sayd that these words Cujus statum Henrici Fry shall be referred as well to the state precedent found as to the person of Fry And so is the common intendment in pleading of a que estate And he said to Mr. Tanfield that if he had taken any note of their first opinions that he should raze that out of his Book again and after the parties agreed in Court that Hauger should give to Fry 200 Marks more for his term and then Fry should make assurance to him of the term for confirmation of the sale 106. NOta per Cook Attorney Generall Difference between Feoffmenâ— to an use and covenant to raise an use If a man Covenant in consideration of naturall love to his son to stand seised of certain Land to the use of himself for life the Remainder to the same son in Fee with a Proviso that it shall be lawfull for himself to make Leases for 21 years or three lives Now he may not make such Leases notwithstanding this Proviso being by way of Covenant to raise the use And so it hath been resolved Contra Peradventure if it were by way of Feoffment to uses After Mr. Walter said that now lately in one Sharingtons case it was adjudged in this Court upon a Writ of Error That if a man Covenant with his Eldest son in consideration of naturall love A proviso with speciall limitaâ—n good to stand seised to the use of himself for life the remainder to his Eldest Son in tail with Proviso that he himself might make Leases to his second son or to any other of his kindred for 21 years or 3 lives and he made Leases to him accordingly this was holden good for they to whom the Leases are made are within the consideration to wit of the blood and for that the use may well rise to maintain those Leases But if the Proviso had been to make Leases to any man howbeit that after he made Leases by force of that to his second son These Leases are void for they are not within the consideration of the Covenant by Intendment of Law at the first for the Law at the beginning adjudged the Proviso meerly void quod nota 107. RObinson brought Debt upon an Obligation against May Counterbond the Condition was that the Defendant should discharge or save harmless the Plaintif of an Obligation for which the Plaintif as surety with the now Defendant was bound to I. S. The Defendant by way of bar pleaded Vsury that the Obligation made to I. S. by him and the Plaintif was upon a corrupt and usurious bargain and pleaded the Statute of Usury and concluded sic non daâ—â—ificatus It was moved at the bar that this was no plea for the Condition is that the Defendant shall discharge or save harmless c. And the Plaintif was impleaded by I. S. for that debt and hath paid the condemnation Tanfield Contra For if this shall not be allowed for a good plea the Statute of usury will be utterly defeated For by a compact between the surety and the Usurer the surety shall pay the usurer and the surety by that counterbond shall have double recompence against the Principall which will be mischievous But the whole Court held the plea not good sed quare 108. HObbs sued an Audita querela in the Kings Bench against Tedcastle Audita querela for a speciall bail and upon a demurer the case was recited by Moor of the Temple to be this Tedcastle sued a bill of debt in this Court against one Hallaway in Custodia Marescali which found bail the said Hobbs and an another which entred bail according to the common course of bail And after Hallaway was condemned in the said Action and then the said Hallaway died without paying the condemnation or rendring his body to Prison for which a scire facias was sued against the bail and upon two nihils retorned Execution was awarded against them Whereupon they sued this Audita querela supposing that the death of Hallaway hath discharged the bail Moor argued for the Plaintif that the bail ought to be discharged upon the matter for Hallaway had Election to discharge the bail by paying the condemnation or rendring of his body to Prison Now by the Act of God it becomes impossible to perform the one to wit to yield his body to prison And therefore the Law will discharge him of the other and by consequence his bail And that he proved by Arundells case 9 Eliz. 262. 6. 7 Eliz. 231. Sir Edw. Walgraves case Popham Quemodo constat here but that there was convenient time after the Judgement to perform the one or the other Kemp Secondary The course is allwaies here after Judgement to award a Capias against the Defendant and if upon that he do not render himself or pay the condemnation then to sue Execution against the bail and not before but here there was never any Capias awarded against Hallaway the Defendant in his life time Popham Gawdy Fenner This seemeth very reasonable not to sue Execution against the bail untill a default be retorned against the Principall and the recognisance of the bail which is that the Principall shall yield himself c. is intended to be upon Process awarded against him But no Process was awarded against him in his life and now it is impossible that he should yield himself to Prison being dead Iudgement and therefore the bail is discharged And so they awarded Judgement for the Plaintif in the Audita querela 109. MAtures brought an Action of Covenant against Westwood And the case was such Covenant for an assignee of a reversion for years Adams Lessee for 20 years made a Lease for 10 years of the same Land to Bowes by indenture whereby Bowes did Covenant at the end of his Term of ten years to avoid and to leave peaceable possession to Adams his Executors or Assignes Adams granted over his Reversion to Matures the now Plaintif The question is if the Plaintif by the Statute of 32 Hen. 8. cap 34. as Assignee may maintain an Action of Covenant for his Covenant broken or not Nota that this case was moved divers times And first it was moved if
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good
REPORTS Of that Learned and Judicious Clerk J. Gouldsborough Esq Sometimes one of the Protonotaries of the Court of COMMON PLEAS OR His Collection of choice Cases and matters agitated in all the Courts at Westminster in the latter yeares of the Reign of Queen Elizabeth With Learned arguments at the Barr and on the Bench and the grave Resolutions and Judgements thereupon of the Chief Justices ANDERSON and POPHAM and the rest of the Judges of those times Never before Published And now Printed by his Original Copy With short Notes in the Margent of the chief matters therein contained with the yeare Terme and Number Roll of many of the Cases And Two Exact Tables viz. A Briefer of the Names of the severall Cases with the Nature of the Actions on which they are founded and a Lâ—rger of all the remarkable things contained in the whole Book By W. S. of the Inner Temple Esq Ubi est nulla Lex ibi est nulla transgressio Sed ubi lex est nullum ibi abundat Iniquitas LONDON Printed by W. W. for Charles Adams and are to be sold at his Shop at the Signe of the Marygold over against Fetter Lane in Fleetstreet Anno Dom. 1653. TO THE Studious and Ingenious READER TWO things usually make new Books famous the Name of the Authour and the Approbation of the Judicious neither of these are here wanting for thou seest that this Book as part of its Title challengeth the Name of that Learned and Judicious Clerk John Gouldsborough A Name so well known even in this our Age that I should but trifle away time in multiplying words to tell thee what he was and to inlarge upon his worth and allso discover too much mine own weakness by endeavouring to prove so known a Truth that it is by all allready taken for grantld For the second I am assured that the Copy hath been communicated to the view of many knowing men in the profession of the Common Law whose unanimous consent in a fair Testimony of the excellency thereof hath been not only a chief cause of the now making it publique but allso of heigthning the Publishers hopes that this Book will be perused with as much content and received with as generall an Applause as any thing of the like nature that these latter yeares have afforded And that his great care and hazard in this his Edition may receive thy candid construction and himself reap if not a fruitfull yet at least a saving return for his better encouragement to adventure further hereafter in this kind for thine and the publique good For thy further satisfaction know that thou hast not here a spurious deformed Brat falsly fathered upon the name of a dead man too too usuall a trick played by the subtile Gamesters of this Serpentine Age but thou hast presented to thee though I cannot say the Issue of the Learned Gouldsborough's own Brain yet I dare say the Work of his own Hand and that which were he living he would not blush to own A Work I say not roughly drawn and cast by in neglected Sheets till time should give leave for the perfecting thereof but carefully transcribed by himself in a fair Manuscript destined as it should seem either for the Press and publique view or to be preserved as a pretious Jewell to be privately made use of in succeeding Ages That this is true there want not many living Testimonies of persons of worth who doe and have very good reason to know his Hand-writing that if need required might be produced to say as much I shall adde but one thing more and that in brief is this As the Authour was very careful in Transcribing and Correcting his Copy that he might leave it fair and entire to Posterity so hath the Publisher spared neither pains nor cost in the Printing thereof that the Book may not come foul and imperfect to the hands of thee it 's courteous and ingenious Reader W. S. A Table of the Names of the severall Cases with the Nature of the Actions on which they are founded  pag. pl. Wast COnstance Fosters case 1 1 Return of a Writ 1 2 Wast 1 3 Devise 2 4 Battery Webster against Payn 2 5 Trespass Nelsons case 3 6 Quare impedit Moores case 3 7 Dower Tristram Ascough and Eulalia his wife 4 8 Quid juris clamat Justice Windham against the Lady Gresham 4 9 Verdict in an Ejectione firme 5 10 Avowry Capel against Capel 5 11 Trespass Baintons case 6 12 Replevin Colgate against Blith 12 13 Ejectione firme Knight against Brech 15 1 Writ of Right Heydon against Ibgrave 23 2 Debt upon the Stat. of Winchester Tyrrels case 24 3 Quare impedit Mores case 24 4 Action on the Case for words 25 5 Trespass Leonards case 25 6 Scire facias Owens case 26 7 Dower 27 8 Arrest of Judgement in an Action for words 28 1 Partition by word 28 2 Debt for Rent 29 3 Lands purchased by an Alien 29 4 Misdemeanours of an Attorney 30 5 Annuity Sellengers case 29 1 Plea by an Executor 31 2 Râ—plevin Boss against Huntley 31 3 Trespass VVilgus against VVelch 31 4 Ejectione firme 31 5 Action upon the case Fulwood against Fulwood 32 6 Replevin Gibson against Platless 32 7 Battery Lees case 33 8 Copyhold Smith against Lane 34 9 Quare impedit Specot against the Bishop of Exeter 35 10 Replevin Brooks case 37 11 Replevin Knights case 37 12 Replevin Wakefield against Cossard 38 13 Debt The Earl of Kents case 39 14 Debt Mounsay against Hylyard 39 15 Debt The Purveyors case 39 16 Trespass Justice Anderson against VVild 40 17 Error in debt Sir Wolstan Dixy against Spencer 40 18 Attaint Husseys case 42 19 Quare impedit 42 10 Pleading in Battery 43 21 Ejectione firme Clayton against Rawson 43 22 View Hoo against Hoo 44 23 Debt Wiseman against VVallinger 44 24 Quare impedit Beverley against Cornwall 44 25 Quare impedit Gerrards case 45 26 Debt Bingham against Squire 45 27 Lords Chancellors solemnity 46 1 Quare impedit The Queens case 46 2 Ejectione firme Kent against King 47 3 Ejectione firme Hurlestones case 47 4 Assumpsit 47 5 Action on the case VVhorwood against Gibbons 48 6 for words Action for words 48 7 Action upon a promise Bodyes case 49 8 Assault and Battery 49 9 Action of covenant 49 10 Debt upon a bond Sir Will. Druries case 50 11 Estrepment 50 12 Perjury 51 13 Conspiracy Hurlstone against Glascour 51 14 Quare impedit Specots case 52 1 Replevin Board against Henley 52 2 Quare impedit The Queen against Lee 53 3 Kimptons case 53 4 Estopple 53 5 Debt upon a bond Hasels case 54 6 Trover and Conversion 54 7 Vtlary Beverleys case 55 8 Hue and Cry Comberfords case 55 9 Hue and Cry Ashpools case 55 10 Action for words Normans case 56 11 Debt upon a bond Hayles case 57 12 Attornment Moore against Hills 57 13 Wager of Law 57 14 Prohibition Pierce
against Davy 58 15 Robbery Burnels case 59 16 Debt upon a bond to perform covenants Hannington against Richards 59 17 Action upon the statute of Hue Cry Ashpooles case 60 18 The Mayer and Commonality of Norwichs case 61 19 Debt upon a bond Lassels case 61 20 Debt upon a bond Gewen against White 62 21 Replevin Goverstones case 62 22 Action of Wast Constance Fosters case 63 23 Debt upon a bond Bret against Andrews 63 1 Devise 64 2 Redisseisin Thatcher against Elmer 64 3 Privilege of Court Powels case 64 65 4 Wager of Law Millington against Burges 65 5 Avowâ—y The Lady Roger case 65 6 Debt upon a bond to perform covenants Hanington against Richards 65 7 Avowâ—y Johns of Surries case 66 8 Debt upon a bond Raven against Stockdale 66 9 Trespas vi Armis Bloss against Halmon 66 10 Trespass Foster against Pretty 67 11 Debt upon a bond Bret against Shepheard 67 12 Replevin Colgate against Blith 67 68 69 70 13 Action for a Robbery The Hundred of Dunmows case 70 14 Assumpsit Cogan against Cogan 71 15 Trespass ejectment Cock against Baldwin 71 16 Trespass vi armis Walgrave against Somerset 72 17 Trespass vi armis Bloss against Halmon 72 18 Wast Taire against Pepiat 72 19 Debt upon a bond May against Johson 73 20 Quare impedit Sir Thomas George against the Bishop of Lincon 72 22 Debt upon a bill Goore against VVingfield 73 23 Ejectione firme Michell against Dunton 74 1 Fine Adams case 74 2 Betenham against Herleckonden 75 3 Wager of Law Bostocks case 75 76 4 Entry sur disseisin Sir Thomas Shirley against Grateway 76 5 Action for words Smith against Warner 76 6 Redisseisin Thachers case 76 7 Debt upon a bond The Earl of Kents case 76 77 8 Trespass quare clausum fregit Haires case 77 78 9 Quare impedit The Queen against the Bishop of Linc. 78 10 Trespass Harper against Spiller and Drew 78 11 Quare impedit Brokesby against the Bishop of Linc. 78 79 12 Avowry 79 13 Debt Hare against Curson 79 14 Debt against an administrator 79 80 15 Ejectione firme Cleyton against Lawsell 80 16 Debt Saundersons case 80 17 Debt Sibill against Hill 80 18 Quare impedit Kemp against the Bish of Winchester 81 19 Escape Cheny against Sir James Harington 81 20 Assumpsit Tayler against Falkam 81 21 Covenant Plane against Sams 81 82 22 Ejectment Staples against Hacke 82 23 Disseisin 82 24 Annuity 83 1 Debt upon a bond Michell against Stockwith 83 2 Debt upon a bond Weghtman against Chartman 83 3 Quare impedit The Queens case 83 84 4 An Action for words 84 5 Replevin Clothurst against Delues 84 6 Action for words Cuts case 85 7 Writ of entry Carleton against Carre 85 8 Quare impedit The Queens case 86 9 Plea to a Writ 86 10 Action for robbery The Hundred of Glocesters case 86 11 Dower 87 12 Formdon Lennard VVhites case 88 13 Formdon in discender 88 14 Error in the Exchequor-Chamber 88 15 A Writ of Error Lord Seymour against Sir John Clifton 89 16 Error Rawlins case 89 17 Â Error in an Action of Trover 89 18 A Writ of right Heydon against Smithwick 90 1 Trespass Blunt against Lyster 91 2 Recovery Mills against Hopton 91 3 Errror in the Exchequor-chamber Bedell against More 91 4 Trespass Mounson against West 92 5 Ejectment Ashby against Laver 93 6 Trespass Johnson against Astley 93 7 Error in the Exchequor-chamber Rawlins case 93 8 An assumpsit Brown against Garbery 94 9 Surrendâ—r of a Copyhold Rippings case 95 10 Resceit 96 11 Audita querela 96 12 Action on the case Mathewes case 6 13 Partition Tamworth against Tamworth 105 10 Action of debt Hughsons case 106 15 Ejectment Johnson against a Carlile 107 16 Action of Dower Hunts casa 108 17 Extent 100 18 Trespass quare clausum fregit 109 19 Speciall Verdict Devise 111 20 Retorn of a Sherif Hockenhalls case 111 21 Debt upon a bond Hooker against Gomersall 111 112 22 Quare impedit Brooksbies case 112 23 Maintenance Tysdale against John Atree 113 1 Consultation Brown against Hother 113 2 Amendment Broughton against Flood 113 3 Venue Avowry 114 4 Prohibition 114 5 Extinguishment Rotheram against Creen 114 6 Debt upon a bond Adams against Oglethorp 114 7 Speciall Verdict Eveling against Leveson 115 8 Ejectment Bacon against Snelling 115 9 Scandalum magnatum The Earl of Lincons case 115 10 Debt Willoughby against Millward 116 11 Debt Kitchin against Dixon 116 12 Rent-charge 116 13 Condition Cromwell against Andrews 116 14 Trespass Smith against Bensall 116 15 Habeas corpas VValter Ascoughes case 118 1 Price against Sands 118 2 Action for words Hugh Halls case 119 3 Administration VVilloughby against VVilloughby 119 4 Speciall Verdict Extent 120 5 Debt Overton against Sidall 120 6 Speciall Verdict Sherborn against Lewis 120 7 Disceit Russell against Vaughan 123 8 Tender of Reut Burrough against Taylor 124 9 Debt VVelcome against S. 124 10 Trespass for braking his close Nevell against Sail 124 11 Action for words Somerstailes case 125 12 Monstraus de droit 125 13 Debt upon a bond Hamond against Hatch 125 14 Debt for Rent Bow against Broom 125 15 Formdon Downall against Catesby 126 16 Action for words Palmer against Boyer 126 17 Libel for Tythes Prohibition 127 18 Latitat Bayle 127 19 Scire facias Midleton against Hall 128 20 Action for words Martin against Burling 128 21 Error Collet against Marsh 128 22 Ejectione firme Portman against Willis 129 23 Trespass Gray against Trow 129 24 Debt Thyn against Cholmeley 129 25 Action for words Parlor against S. 130 26 Action on the case Earl of Pembroke against Buckley 130 27 Action for words Lassels against Lassels 131 28 Indictment 132 29 Action on the case Peirce against Barker 132 30 Indictment Arundels case 133 31 Error in Debt Slaughton against Newcomb 133 32 Ejectione firme Bulleyn against Bulleyn 134 33 Action for words Bury against Chappel 135 34 Arraignment 135 35 A Writ of Error VVilkinsons case 136 36 Assumpsit Skelt against VVright 136 37 Debt Ford against Glaubile 136 38 Information Sir Christopher Blunts case 136 39 Condition of an Obligation 137 40 Mortgageo The Duke of Norfolk and Rowland 137 41 Action for words Redfrem against J. S. 137 42 Action for words Megs against Griffith 138 43 Action upon a Statute Revell against Hare 138 44 Error in Debt VVinch against VVarner 138 45 Assumpsit Petties against Soame 138 46 Devise of lands 139 47 Arrest by Latitat VVilliam Gerrards case 139 48 Debt upon a bond 139 49 Trespass Stafford against Bateman 140 50 Error in Debt Anne Lathams case 140 51 Quare impedit Langford against Bushy 141 52 Devise of Lands 141 53 Prohition Necton and Sharp against Gennet 141 54 Debt upon a bond Greningham against Ewer 142 55 Execution of a Writ 142 56 Action of debt VVoodcock against Heron 142 57 Action for words
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
Priority which is not corporall neither ought it to be put in view in Assise and 21 Hen. 6. a. Tenant of the Land shall Attorn upon the grant of a rent charge and 33 Ed. 3. Priority shall hold place when the remainder falleth and not when it is granted 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then Sir when the foundation out of which the rent is issuing is gone the rent is allso gone and therefore let us see what authority Tenant in tayl hath in the remainder At the Common Law there was no Formdone in descender or remainder and the Statute of W. 2. cap. 1. provides but for two persons viz. he in reversion and the issues but Formdone in remainder is taken by the equity 50 Ed. 3. If Tenant for life be the remainder in tayl to another the remainder in fee to the Tenant for life and he makes wast Wast Bargain de remain Tenant in remainder shall punish him and Fitzh nat br fol. 193. a. Cui in vita by a wife which was Tenant in tayl upon the alienation of her husband And I think that if he in remainder bargain his remainder that it is voyd and he cannot grant to another that he shall dig in the soyl for by 2 Hen. 7. he in reversion cannot doe so 12 Ed. 4. Recovery suffered shall bind the issue 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Tenant for life Nul attaint pur tenant in rem then in this case he in remainder cannot enter and the Grantee shall not be in a better estate than his Grantor and then if he shall never enter frustra est illa potentia qua nunquam reducitur in actum The reason for the grant is good for when Tenant in tayl dyeth without issue he in remainder shall be in by the first gift in proof whereof is 33 Hen. 6. he in remainder shall be in ward Ward and in 11 Hen. 4. in Formdone in descender Formdone he shall say that the possession was given to his father Prebendary And a Prebendary cannot charge before induction Ioyntenants But if two Jointenants be and the one charge all and the other disclaimeth the charge is good from the beginning And the Recoverer here is not under the charge for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened yet is he a meer stranger and in by another title 10 Ed. 3. If two Jointenants be Charge per Ioyntenant and the one charge this is good conditionally that he which chargeth shall survive And if Tenant pur auter vie charge and die occupans shall hold it discharged So in this case for he is not in of this possession Moreover there is a mischief if this charge be good for then the Land may be charged by two severall persons at once which shall not be suffered but yet if cestui que use charge and the Feoffees charge both are good for the one is by the Common Law Charge per cest que use Feoffees 28 Ed. 3. 10. b. and the other by the Statute Law So if Lessee for years charge and he in reversion charge and after Lessee for years surrender but this is in severall respects and I put this case for Law Ch. per lessee per enreversion that if he in the remainder bind himself in a Statute Merchant Stat. Merch. per test en rem ne charge le poss this shall not charge the possession And if in this case he will grant the rent over none ought to Attorn and therefore voyd and Littleton saith that he in remainder shall not falsifie No attornment Falsifying and 26 Hen. 8. the Grantee of lessee for years shall not falsifie for the nature of falsifying is properly to find a fault wherefore it should not be good and what fault can he find in this case surely none Successor lie per confession 4 Hen. 7. 1. a. 20 Hen. 6. Abbot confesseth an Action the Successor is bound And further it is within the Statute of 27 El. for fraudulent deeds and we need not to plead the covin for the Statute is generall Fraudulent faits and vouched Wimbish case in the Comentaries and so the Replevin is maintainable And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea and allege the Covin Et adjornatur untill Michaelmas Term following because there were so many Demurrers hanging to be argued in Trinity Term next But afterwards judgement was given against the Rent charge 12. KIng Hen. 8. gave certain lands to Sir Edward Bainton Trespass Knight and to the heirs males of his body engendred who had issue Andrew and Edward and dyed Andrew afterwards convenanted with the Lord Admirall Thomas Seymer that he would convey an Estate of those Lands to himself for life the remainder to the Lord Seymer in Fee and in like manner the Lord Seymer convenanted to convey an Estate of other Lands to himself for life the remainder to Andrew Bainton in Fee Afterwards Andrew Bainton levyed a Fine and executed the estate according to the covenant on his part Afterwards the Lord Seymer before performance of the covenant on his part was attainted of High Treason and all his Lands forfeited to King Edward the sixth who dyed without issue and the Lands descended to Queen Mary to whom Andrew Bainton sued by Petition and shewed how she had those Lands to the disinherison of him and his heirs and Queen Mary by her Letters Patents ex certa scientia ex merâ— motu c. granted to Bainton all those Lands and Tenements which he had covenanted to convey to the Lord Seymer and all reversions thereof in as ample manner as she had them Et ulterius ex uberiori gratia sua she granted all reversions claims and demands qua ad manus suas devenerunt ratione c. aut in manibus suis existunt aut existere deberent Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee and dyed without issue then Edward Bainton entred and Segar brought his Action of Trepass Puckering It seemeth that the entry of Edward Bainton is congeable and so the Action not maintainable First let us see what passeth by this Grant of Queen Mary to Andrew Bainton and then whether a Fine levyed by Tenant in tayl the reversion being in the Queen be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations and therefore but a discontinuance and remains but as at the Common Law At the Common Law before the Statute of Dâ—nis conditionalibus a Fine levyed was a bar to all men for all Inheritances were Fee simples then by that Statute it was ordained Quod neque per factum neque feofamentum of the Tenant
in tayl the issue should be barred After which Statute as I intend the Law was such that when Tenant in tayl levied a Fine of such a thing as he might discontinue and the Fine executed in possession allthough the words of the Statute were Ipso jure sit nullus yet the issue was put to his Formdone but if it were a Fine Executory then by the death of the Tenant in tayl the issue was remitted and the Fine voyd But now by the Statute of 4 Hen. 7. the Law is made otherwise and for that here it is to be granted that he cannot discontinue the estate tayl because the reversion is in the King as it was now lately adjudged in the Exchequer in the case of Gillebrand ergo here the estate doth not pass to the Feoffees by the first Fine when he took an estate again to himself for life the remainder to the Lord Seymer in Fee but a Fee simple determinable then when the Lord Seymer was attainted Queen Mary had such an estate as the Lord Seymer had which was a Fee determinable and she had another Fee absolute in jure Coronae After when he sued by Petition he did not shew to the Queen what estate he had nor what estate the Queen had but that it was to the disinherision of him and his heirs then the Queen grants reversionem inde adeo plene libere integre as she had it or as it came to her by the Act of Parliament And I think when the Queen gives by generall words she doth not give any special Prerogative And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla c. and 9 Eliz. 268. in Dyer the case of the Dutchy of Cornwall 8 Hen. 6. the King pardons all Felonies this is no pardon of the Outlawry and especially when the Queen hath two interests it shall be construed beneficially for the Queen as 9 Edw. 4. Grant of an Office where the Grantee was no denison see there Baggots Assise and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion upon the life of one of them And further the case in Dyer where Queen Mary grants in Manerium de Bedminster in Com. Somerset 5. 13 El. fol. 306. a. Then Sir the Patent is that the Queen intendens dare congruum remedium in praemissis c. and when he iueth to the Queen by Petition Petition certain all titles ought to be in the Petition 3 Hen. 7. 1 H. 7. a Latin case the case of the corody and this is in nature of a Petition therfore ought to be certain then the Patent is Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratione actus Parliamenti c. aut in manibus suis existunt vel existere deberent c. and they are not to be expounded so largely as to make the reversion to pass for if those words ratione c. were before admanus suas c. or after in manibus suis existunt then it cannot be intended but the reversion shall not pass to Bainton Now when in manibus suis existunt come after these words References ratione c. for references are to be intended according to the meaning of the parties Devise 29 lib. Ass 14 Eliz. Dyer Devise of all Acres except a Lease for 30 years And those words aut existere deberent ought to have some relation ergo it ought to be intended quae in manibus suis existunt ratione attincturae c. and this will not make any grant of the reversion For the meaning of the Queen was because Bainton had no recompense of the other Lands No use to give him these for no use was in him by the covenant of Seymer as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Seymer For the other matters I think that A. Baynton is not Tenant in tayl by the grant again but admit him so yet he cannot discontinue neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine things which are not touched doe not pass as Commons Rents Wayes Claim per lessee purâ—ans alit postea si soit en post c. Br. Fines 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case 21 Eliz. that Lessee for yeares need not to make claim within five years and vouched the opinion of Br. tit Fines 121. accordingly that the issue shall not be barred And as the King is privileged so are his possessions allthough that afterwards they come into a subjects hands Generall restraint And where one hath a special Grant allthough a general Restraint come after if he doe not speak specially of this the Grant shall be good in many cases as 19 Hen. 6. fol. 62. the Parson of Edingtons case Br. Patents 16. and the case of the Abbot of Waltham 21 Ed. 4. fol. 44. Br. tit Exemption 9. in 19 Hen. 8. it was doubted if the issue of a common person should be barred ergo the issue in tayl the reversion being in the King is not barred And the Statute of 32 Hen. 8. is generall as well for those which were of the gift of the King as others and therefore afterwards there was another Statute made which excepted those which were of the gift of the King as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception if it were a bar before by the Statute of 4 H. 7. And for authority I have a report delivered me by a Sage antient in the Law that in 16 17 El. in Jacksons case where Lands were given in tayl the remainder to the King in fee the Tenâ—nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court Difference per enter rem reversion in le Roy. this was a bar but the Court then sayd that otherwise it should be if the reversion were in the King as our case is wherefore seeing there is neither discontinuance nor bar in the case his entry is congeable and the Action not maintainable Walmisley to the contrary I will agree that it is not any discontinuance yet he may admit him out of possession if he will as in 18 Edw. 3. Where Tenant in tail the Reversion in the King makes a Lease for life and hath two Daughters and died and Lessee for life was impleaded and upon his default the two daughters prayed to be received and so they were and as me seemeth the Petition made by him to the Queen shall not prejudice or hinder the Grant ex mero motuâ— and vouched 3 H. 7. fol.
6. the Priors case Note that Puckering then said privily to Shuttelworth is not the book contrary to that which he hath vouched for he vouched the Book contrary to that which Puckering had done before Shuttelworth No Sir but the record is contrary to the Book quod nota and when she granteth ex certa scientia it shall be taken beneficial for the party 1 H. 7. 13. omnia debita released to the Sherif and 29 Ed. 3. the King seised the lands of a Prior alien c. Difference per enter interest prerogative Touts droits poss per fine Fine puis disseisin ou discont alit de recovery and there is a difference between the cases put and this case for when the Queen makes a Grant all matters of interests may pass by the words but matters of prerogative as in the cases put by my brother Puckering cannot pass for they are not within the words but interests are To that which hath been sayd that he was not seised of any estate tayl this is not any argument for if he had three rights by the Fine all are gone and passed to the Conisee for if he be disseised or discontinue and then levy a Fine this is a bar but otherwise it is of a recovery Lessee purâ—ans en reversion poss diversity for that is no bar but of an estate tayl And as to the case of Saunders that lessee for years need not to make claim the case was not so but the case was of a lease inreversion and he had never entred and therefore it was but as a common or a rent but if it be a lease in possession he is bound as in Zouches case Then because the King is in possession it hath been sayd that it is no bar but this seemeth to be no reason for the Statute began with the King and the Preamble seemeth to induce it and the third saving of the Statute is by force of any gift in tayl so this is generall And because he cannot discontinue therefore can he not make a bar Non sequitur For he cannot discontinue and yet a Fine levyed is a good bar and the Statute of 32 Hen. 8. doth not impair this opinion but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case as it was agreed by all the Judges in Stowels case and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar doth not extend but to the words going before as in the case in Dyer that a man had not done any act but that c. And the Queen in this case hath not any prejudice for she shall have the rent with the reversion And as for Jacksons case that maketh for me for the question of the case there was that the remainder shall be gone and we ought not to take regard to that which is sayd indirectly in the case but the point of the Judgement is the matter and for authority it is direct in Dyer fol. 26. pl. 1. and therefore it seemeth that the entayl is barred and so the action maintainable Anderson You have well argued but for any thing that I see none of you shall have the Land Grant for the Queen is deceived in her grant and therefore the Patent is voyd and then it shall be seised into the Queens hands And therefore you had best to be advised and we will hear what can be sayd for this point at another day And note that it was sayd by the Justices 3 Costs in forcible entry that if a man recover in a Writ of forcible entry upon the Statute of 8 Hen. 6. by confession or by default he shall recover his treble costs 22 Hen. 6. 57. 13. ONe Colgate brought a Replevin against Blyth who avowed the taking Replevin and thereupon they were at Issue in Kent and the Jury found a speciall Verdict The case in effect was this Husband and Wife are seised of Lands in right of the Wife And she by Indenture in her own name agrees that a Fine shall be levyed and limits the uses by Indenture After the Husband by another Indenture agrees that a Fine shall be levied and limits other uses and afterwards a Fine is levied by them both now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity The Jury prayed the advise of the Court c. For if they be good they found for the Plantif if not then they found for the Defendant Shuttleworth Serjeant It seemeth that Judgement shall be given for the Plantif For the use limited by the Husband shall be a good limitation in Perpetuity Rent ch ou Lease per feme covert and first the Wife only cannot limit any use for her Acts are of no Validity And therefore if a Wife grant a Rent charge or make a Lease and the Grantee enter this is a Disseisin 43. Ed. 3. Deeds given by a Feme Covert are void 17. lib. Ass a VVife levies a Fine Executory Fine executory executed per feme covert sur grant render as a sole Woman and after a Scire fac Is brought to Execute this Fine the Husband shall extort the Execution and if it were a Fine Executed then it is a Disseisin to the Husband Vse quod For an use is a Declaration how the Land shall continue in Perpetuity and the Feoffees are nothing but Instruments or Organs to convey the use for the Land yields the use and not the Feoffees then when the Wife which is under the Power of her Husband Limitation per infant quaere limits an use this is void for I hold for Law if an Infant limit uses and after levy a Fine and do not Reverse it during his Nonage yet the limitation shall not bind him and so of a man non compos mentis Non compos mentis And so it was ruled in the Court of Wards where a naturall Ideot made a Declaration of uses and levied a Fine accordingly Ideot naturall that yet it shall be to the use of himself And then in our case the Limitation by the Wife cannot be good but her Will depends upon the Will of her Husband and the expressing of the use by the Husband shall be good Estate disseisin assumsit al feme For if an Estate be made to a Wife if the Husband seaven years after agree it is good and so it is of a Disseisin to a use so ofan Assumpsit to the Wife 27 Hen. 8. in Jordans case 1 Hen. 7. in Doves case and in a Praâ—cipe quod reddat the default of the Wife shall be the default of the Husband Default del feme because she is Compellable to the Will of her Husband by the Intendment of the Law 21. lib. Ass A man seised of Land in Right of his Wife makes a Feoffment in Fee
had warranty to detain Garrâ—nty and they made partition the one could not vouch without the other Vâ—uâ—her and therefore she should pray in ayd and then both to vouch Paramount and so the Statute which giveth pâ—â—tition between Joyntenants saveth their warranty otherwise it were gone And so if two Joyntenants make a lease for years reserving rent upon condition Partition of a 〈◊〉 and after they make partition as they well may having the reversion and the freehold in them I hold the Law clearly that the one nor the other shall enter for the condition broken Then in the case of the King I hold the Law that it shall not be apportioned and yet I agree that the King shall have his Preâ—â—gatives for his present lands and goods Prerogative but he shall never have Prerogative when wrong shall be done to any man Rent charge appâ—rtioned If the King have a Rent chage and after Purchase parcell of the Land charged it shall be apportioned 21 Hen. 7. he may well condition that his Feoffee shall not alien for in those cases there is no prejudice to others but all those cases run upon other grounds And in Bartlets case the King is bound by the Statute of donis conditionalibus for it was a wrong that the Donee at the Common Law should alien the inheritance And this case as me seemeth is not within the concourse of Title Câ—â—â—â—urse of â—itle as my Brother Rodes hath argued neither is the King deceived as hath been said For when the King enters he shall be seised in pristino statu suo Dyer and this is a principall reason in Winters case 16 Eliz. a person makes a Lease reserving Rent upon condition that if it be behind lawfully demanded that then he shall re-enâ—er Deâ—and after the reversion cometh to the King he shall not maâ—â— demand I agree well thereto the reason is because the demand is a thing which goeth to the person of the King Then Sir the Statute is that the King shall have it as the Prior had it which is meant of the estate and not of the person of the King Then Sir it is impossible that the King should have the land as the Prior had it ut in pristino statu suo if he doe not utterly defeat the grant made to Cordall then here the condition is gone The Kings grant against the Law is voyd but not by any grant as it hath been moved but by the operation of the Law And 49 Ed. 3. the King grants that lands shall be devisable it is voyd because it is against the Law and it is against the Law that a condition should be apportioned ergo the King shall not apportion it But admit this question against me then let us see what title the Queen hath by this commission First the commission is to enquire if Cordall his Assigns and Farmers have performed all covenants and provisoes contained in the Indenture Proviso as for that I hold the law clear that they have auâ—hority by those words to enquire of the condicion but for other reasons I think the Commission void For the Commission is to enquire per bonos legales homines de Com. nostre Mâ—dd and it doth not appear here that the Jurors were of Middlesex and therefore the inquisition is not good Further Severall spespecial finding they have found a thing in another County and this they cannot find but I hold that the Jury in one County may find the generall issue in another County Allso I hold that when the party cannot plead that which is the great matter of the Action they may find it in an another County because the party cannot pleade it as in 9 Ed. 2. in debt against Executors c. And for these reasons I hold judgement is to be given for the Defendant 2. RIchard Heydon Misre-cital in Letters Patentt Gentleman demands against Benjamin Ibgrave Gentleman the third part of 40. Acres of Land with the appurtenances in three parts to be divided in Sarrot in the County of Hartford as his right and Inheritance and to hold of our Lady the Queen in Capite and Laies the Esples in the time of Ed. the sixth and that such is his Right he offers himself c. And the aforesaid Benjamin put himself upon the great Assise whether it be his right or no c. And now the Assise made by the four Knights appeared at the Bar Challenge Snagg Serjeant for the Plantif we challenge A. B. for that c. Nelson chief Prothonotary all the Court you cannot challenge because it was made by the four Knights and the Assise is now at the Bar. Snagg well Sir then we will give evidence Anderson for whom are you Snagg for the Plantif Anderson then you shall not give evidence first for the Tenant affirms that he hath more right Evidence and that ought to be first proved Rodes and all the Court So it was here rul'd five years ago in Nowells case and thereupon Puckering gave evidence for the Tenant that it was Parcell of the Mannor of Sarrot which Mannor the Tenant hath and this was granted by the Counsell of the Defendant And in conclusion upon the evidence given the Defendant would have had the Tenant to have Demurred upon his evidence and discharge the Inquest but the Tenant would not in effect this was the doubt K. H. 8. by his Letters Patents gave among other things all the Lands which were in the Tenure of one Whyton and demised to Johnson in the Parish of Watford And it was true that the Lands were in the Tenure of Whyton but not demised to Johnson Misre-citall and allso they were not in the Parish of Watford if this shall be helped by the Statute of Misrecitall and not Recitall is the question and the party did not aver that the intent of the King was to pass this Parcell now in question to the Patentee and the opinion of all the Court was that it is not within the Statute clearly but they said to the Jury that they may find all this matter if they will or otherwise say what they will And thereupon after they were agreed they came again to the Bar and then all the Court told them that yet they might give a speciall Verdict The Jury said we are all agreed that the Tenant hath more right to hold these Lands as he now holdeth then the Demandant as he demands them Anderson then are you discharged and as I think you have done well So they gave their Verdict according to the opinion of the Court for the Statute of Misrecitall and yet Peryam was well content to have them give a speciall Verdict and the Demandant was demanded who appeared and thereupon Judgement finall was given for ever against him 3. ONe Tirrell brought an Action of Debt against a Hundred in Essex Hâ—e and Cry for
for it is a maxim Nullum tempus occurrit Regi Peryam If the Freehold be in the Alien untill office found Trespass if a trespass be committed who shall punish it for he shall have no Action Fenner That is true and so it is of a Monk if he be a disseisor Monk and yet the freehold is in him Shuttelworth And so it is of a person atteinted Atteynted person and yet before office found the freehold is not in the Queen Rodes It is Dyer 11 Eliz. fol. 283. Feoffment to use If a man enfeoffee an Alien and a Denison to his use that the Queen shall have the moity whereby it seemeth that the confirment is voyd Anderson I hold this rule for certain that in every feoffment there is feoffer and feoffee and if there be a feoffee he must of necessity take wher by I think the confirmation is good Rodes Is this case hanging in this Court Fenner No Sir Windham Wherefore then doe you move it in this Court And afterwards the question being demanded of Shuttelworth by divers Barristers he made answer Truly in my opinion it is not in the Queen before office found and therefore I think the confirmation is good Quaere 5. AN Attorney of the Common Pleas brought an action of debt against another Misdemeaner whereupon he was arrested in the Country and when he came to London the Attorney caused him to be arrested in London for the same debt and this was shewed to the Court and the Attorney called to whom Anderson said if a man be sued here for a debt and after be arrested in another Court for the same debt the penaltie is fine and imprisonment and that is both the law and the custom of this Court wherefore then have you done this surely we will send you to the Fleet for your labour Attorney I beseech you my Lord consider my estate Anderson I have well considered it and that is that you shall goe to the Fleet and therfore Warden of the Fleet take him to you Windham We will punish such gross faults in you more severely than in others because you are an Attorney here and your fault is so much the greater by how much you are skilful in the law and customs of this Court wherefore you shall goe to the Fleet. De Term. Mic. Anno xxix Eliz. 1. IN the case of Sellenger Annuity it was said by Anderson and agreed by the Court that if a man grant an Annuity out of Land and hath nothing in the Land that yet this shall be good to charge the Grantor in a Writ of Annuity and in the same case it was allso agreed by the Court that if a man grant an Annuity to a Woman who takes a Husband and after Arrerages do incur and the Wife dye so that the Annuity is determined that the Husband shall have an Action of debt for the Arrerages by the Common Law Shuttleworth This is not remedied by the Statute of Arrerages of Rents and then at the Common Law it is but a thing in Action Peryam An Annuity is more than a thing in Action Windham He may grant it over and so the opinion of the whole Court was that debt was maintenable 2. AT the same day it was said by Anderson Executor and not gainsaid that if an Executor plead ne unque administer come executor yet afterwards he may take the Administration upon him and well enough be Executor 3. IN a Replevin by Bosse against Hawtrey Triall by provise they were at Issne Termino Mic. An. 28. 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill and after in Termino Hill took an alias retournable in Termino Pasch and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent and thereupon Hawtrey which was Avowant moved the Court and prayed expedition whereupon the Court caused the Roll to be brought in and notwithstanding that it was a Roll of Mic. Term yet because it was awarded the same Term they mended the Roll and awarded the alias retournable the same Term of Hill 4. WYlgus brought an Action of Trespass against Welche quare clausum fregit Travers Welche said Trin. 28. Eliz. rot 537. that I. W. was seised and enfeoffed May and so conveyed a title to himself the Plantif replyed that A. his Auncestor was seised and so the Land descended to him Absque hoc that I. W. was seised and upon this Issue the Court was moved Anderson the seisin is not traversable but where it is materiall and therefore clearly the Traverse is not good but Fenner cited a book in 2 Edw. 6. that the Travers shall be good but he stood not much upon it Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary but the opinion of all the Court clearly was that the Travers is not good 5. A Man makes a Feoffment in Fee to the use of himself and his Wife VVast alterius eorum diutius viventis absque impeticione vasti durantibus vitis ipsorum the Husband dies if the Wife shall hold without impeachment of wast or no was moved by the Serjeants And the opinion of all the Court was that she shall not be impeached of Wast because of the severance but otherwise if it had been Joyntly 6. FUlwood brought an action upon the case against Fulwood Action upon 〈◊〉 case and declared that whereas a motion of mariage was between the Defendant and a Widow in London in consideration that the Plaintif should give his assent that the Father of those Fulwoods should convey to the Defendant all his Lands and Chattells the Defendant promised to pay the Plaintif such a sum of money as their Father should assign Ac licet that the Plaintif had given his consent and that their said Father had assigned him to pay 37. l. yet the Defendant c. and he pleaded non assumpsit and it was found for the Plaintif and now Fenner spoke in arrest of Judgement for four causes First there is no consideration for the declaration is assensum suum daret so that he is at liberty to give his assent or no and so no perfect consideration The second is ac licet the Plaintif c. and doth not say in facto that he gave his assent The third is that he doth not say that he gave his assent when the Father had those Lands and Chattells The fourth is that in consideration the conveyance should be made to the Defendant and it appeareth that it was made to the Defendant and his Wife Shuttleworth To the contrary we have alleged in deed that he gave his assent and that is as much as if he had said in consideration that he gave his assent And allthough that the conveyance be to both yet it is in tayl to them and so the inheritance given to both And therefore that
he did not plead a sufficient Plea this shall be trued by the Record and how can that be when it is not entred of Record But the Court sayd further that it was hard that he should have the forfeiture and sayd that there was great negligence and oversight in the matter Peryam You may plead all this matter specially and how by his assent the Plea was waved and peradventure his assent if any thing will help you 12. PArtition was brought between Coparceners Estrepment and hanging the Writ the Tenant made Wast and Gawdy moved the Court for a Writ of Estrepment Peryam Where you are to disprove the interest of the Tenant Estrepment will lye but here you confess an equall interest in him how then can you have it Whereunto VVindham agreed and after it was shewen how they were Tenants in common whereby his motion was at an end 13. NOte that in the Starchamber this Perjury Term it was over-â—uled by the Lords that if in an Action at the Common Law a man wage his Law allthough that he make a false Oath yet he shall not therefore be impeached by Bill in the Starchamber and the reason was because it is as strong as a Tryall And the Lord Chancellor demanded of the Judges if he were discharged of the debt by waging of his Law and they answered yea But 〈…〉 said that it was the folly of the Plaintif because that he may 〈◊〉 his Action into an Action of the case upon an Assumpsit whâ—â— in 〈◊〉 Defendant cannot wage his Law 14. AT another day in the Starchamber between Hurlestom and Glaseour Conspiracy it was over-ruled by the Lords that if a Jury at the Common Law give their verdict Perjury allthough that they make a false Oath yet they shall not therefore be impeached by Bill in the Star-chamber But if any collaterall corruption be alleged in them as that they took Money or Bribes a Bill shall lye thereof well enough And allso in the same case it was ruled that where Glaseour had brought a Bill of Conspirary against Harlestone and others and divers of the Jury for that they had indicted him of Perjury that before the Indictment be traversed or otherwise avoyded by Error he cannot have a Bill of Conspiracy because this shall quash the tryal at the Common Law and shall prevent it And allso before a man be acquitted a Writ of Conspiracy doth not lye for him by the Law De Term. Trinitat Anno xxix Eliz. Reg. 1. THe Quare impedit brought by Specot and his Wife was moved again by Gawdy Quare imp and it seemed to him that because the Bishop did not shew in what thing he was a Schismatick the Plea was therefore uncertain and so insufficient and he cited 33 Edw. 3. 2. 9 Eliz. Dyer 254 b. Anderson If he had certainly shewed in what thing he was Schismaticus inveteratus ut ea occasione inidoneus sit inhabilis c. This had been a good Plea without doubt but as it is here sure it is no Plea for it is even as if he had sayd that he was criminosus whereunto all the other Judges agreed Anderson All that I doubt is whether this be helped by the Statute of Demurrers 27 Eliz. For otherwise the Plea is insufficient without doubt Gawdy The Statute helpeth onely matters of form and this is the substance of his Plea that he is a Schismatick Anderson Allthough it be the substance of his Plea yet it is but form to plead it certainly And if one demur generally to a double Plea Double plea. it is not good at this day and so here And so was the opinion of Peryam and the other Justices by their silence seemed to agree thereunto yet they gave day to the Serjeants to argue this matter And Peryam sayd that he would help the Plaintif in the best sort that the Law would suffer him for the Bishops are grown so presumptuous at this day that they will make question of all the patronages in the Realm and if it be against their pleasure none shall have his Presentation And allso now Anderson was agreed that the Action was well brought in the name of the Husband and Wife allthough he had once moved to the contrary Allso in this case it was moved Demurrer is a confession but of things sufficiently alleged that by the Demurrer it shall be confessed that the Plaintif Clerk was a Schismatick Whereunto Anderson said that if a thing be sufficiently alleged it is confessed by the Demurrer but otherwise not 2. A Replevin was brought by Brode against Hendy Replevin of his own wrong the Defendant made Conusance as Baylif to the Queen for Rent behind wherunto the Plaintif sayd De son tort demeasne sans tiel cause and the Court was moved whether this be a good Plea and by the opinion of three Judges it is no Plea in a Replevin Anderson absente but in Trespass it is good notwithstanding that it was objected at the Bar that there is a diversity in our books taken that when the Action is brought against the Baylif there it shall be a good Plea but not against the Master But the Court over-ruled it for in a Replevin he ought to make a title 3. THe Queen brought a Quare impedit against the Bishop and Themas Leigh Incumbent Discontinuance and they both pleaded severally speciall Pleaâ— and so it depended whereupon Fenner shewed the Court that the Queen did not prosecute the Suit but let it depend still and therefore he prayed that she might be called Nonsuit But all the Court The Queen cannot be Nonsuit and the Pregnotaries said that the Queen cannot be Nonsuit Fenner Shall we then which are Defendants always be delayd Peryam After a year passed you may have it discontinued but she shall not be Nonsuit And in the case of a common person the Plaintif may discontinue it within a year but the Defendant cannot discontinue it untill after a year 4. WAlmisley moved for Judgement in the case of Kimpton Common extinct by purchase Rodes We have given Judgement allready Walmisley No Sir I have not heard of it Peryam What is the case Rodes The case is this a man was seised of a 140 acres of land and had Common appurtenant to them in 46 acres of land and the 46 acres of land were in the occupation of severall men viz. two in the occupation of A. and the rest in the occupation of B. and he which had Common purchased the sayd two acres now if this entire Common be extinct or no so that they which were Tenants of the residue of the 46. acres shall take advantage thereby was the question And all the Justices sayd that they were agreed of this case long agoe For allthough that the acres be severall and in severall occupations yet the Common concerning that is intire and so by purchase of parcell it is extinct
Rodes Surely I have noted my book that Judgement is given and so I supposed that it had been 5. SHuttelworth moved that whether a Lease is made to a man oâ— his own Land by Deed indented Estopple this is an Estopple whereto the Court agreed But VVindham and Peryam sayd if the Lease be made for life by Indenture Livâ—ry that yet this shall be no Estopple because the Lease takes effect by the Livery and not by the Deed but Rodes did not fully assent to that Anderson was absent in the Staâ—â— chamber 6. DEbt was brought by Lassels upon an Obligation Hill 1â— Eliz. tot 1 511. with condition that if the Defendant did personally appear in the Kings-bench such day Stat. 23 Hen. 6 that then c. the Defendant pleaded the Statute of 23 H. 6. said that he was taken by the Plaintif being Sherif then by force of a Latitat and that the Bond was not made according to the Statute For being made for his deliverance this word personally was inserted in the condition more than is in the Statute And it seemed by three Justices Anderson absente that if it were in such an Action where a man may appear by Attourney that then it shall be voyd but now the question is whether the party ought to appear in proper person by force of a Latitat or no And some said yea and some said no. And the Plaintif shewed a Judgement given in the Kings bench for Sackford against Cutt. where Cutt. was taken by a Latitat and made such an Obligation as this is for his deliverance Sackford being Ballivus sanct Etheldredâ—e in Suff. and adjudged for the Plaintif that the Obligation was good And this was in the Kings-bench Mic. 27 28 Eliz. Rot. 575. but Peryam doubted of that judgement for peradventure he might appear by Attourney Ideo quare for that was the reason of the judgement given in the Kings-bench as it was sayd because he could not appear but in proper person 7. AN Action of Trover was brought for Goods Jeofayle and the Defendant pleaded a bargain and sale in open Market thereupon they were at issue and found for the Plaintif and now the Defendant spake in arrest of judgement because the Plaintif had shewed no place of conversion No place of conversion yet notwithstanding by the opinion of the Court the Plaintif shall have his judgement by the Statute Peryam If in Debt upon an Obligation he doe not shew the place 36 El. rot 266. yet if the Defendant plead a collaterall bar as a release or such like judgement shall be given for the Plaintif notwithstanding by the Statute if it be found for him by Verdict 8. THe case of Beverley was moved again at this day Utlary how the Queen had brought a Scire facias against him to shew wherefore she should not have the Presentation Walmisley It seemeth that she shall not have the Presentation for allthough we have recovered our Presentation Disseiser outlawed yet before execution we have but a right As if a man be disseised and after outlawed he shall not forfeit the profits of the land And allso she hath brought a Scire facias and this will not lie except for him which is party or privy Peryam After that you have recovered it is a chattle and then forfeited by the Utlary Anderson The judgment that he shall recover doth not remove the Incumbent and as long as he remains Incumbent the Plaintif hath nothing but a right Then Peryam sayd to Walmisley argue to that point whether he hath but a right or no but for the other point that she shall not have a Scire facias for want of privity that is no reason Recoverer in debt outlawed for in many cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and after am Outlawed Recovery in quare impedit shall the Queen have this debt Windham If I recover in a Quare impedit and dye who shall have the presentation my Executor or my Heir Sed nemo respondit Curia It is a new and a rare case and therefore it is good to be advised VValmisley Whatshall we in the mean time plead in bar to the Scire facias Curia Demur in Law if you hold the matter insufficient VValmisley Sowe will 9. ONe Combford was robbed within the Hundred of Offlay in Stafford-shire Hue Cry and he and his servant pursued the Felons into another County and there one of the Felons was taken and the Hundreds did nothing And now Puckering moved that he might have an Action against the Hundred Plaintif a Hundreder allthough that he himself was resiant within the same Hundred Hue and Cry by strangers but the opinion of the Court was against him for they sayd that if a stranger make Hue and Cry so that the Felons be taken the Hundreds are discharged Another question he moved because that but one of the Felons was taken Quaâ—re But quâ—re what was sayd to that for I heard not 10. FRancis Ashpool brought an Action against the Hundred of Evenger in Hampshire Hue Cry for that he was robbed there And the Jury found a speciall Verdict viz. that he was robbed after the setting of the Sun per diurnam lucem and that afterwards the same night he came to Andever which is in another Hundred and there gave notice of the robbery and the morning following the men of Andever came into the Hundred of Evenger and there made Hue and cry about ten a clock in the morning and that there were many Towns nearer to the place where he was robbed than Andever was and allso within the same Hundred of Evenger and that the Melafacters escaped and they prayed the advise of the Court. Now this matter rested on two points Robbery after Sunset the first was if he which is robbed after the Sun-set shall have the benefit of the Statute and the other was if he had made Hue and cry accordingly Hue and cry or whether any Hue and cry be needfull And Walmisley argued that he which is robbed after the Sun-set shall be helped by the Statute for they are bound to keep watches in their Towns to take night-walkers And to the second he said that the Statute doth not speak of any Hue and cry but only recens insecutio and that ought to be done by the Hundreders Shuttleworth to the contrary No distcess and that it ought to be in the day and cited Stamf. fol. 35. and after the Sun-set it cannot be said to be day For the Lord cannot then distreyn for his Rent per 11 Hen. 7. 4. nor demand Rent for he is not bound to be there after the Sun-set and he vouched Fitz. titulo core 302. but at this time the Judges seemed to hold for the Plaintif Anderson The Countries are bound by the Statute to
party from his advantage given him by the Statute But all the other Justices held opinion against him for they sayd that a man ought to appear in proper person upon a Latitat which Anderson denyed and sayd that the Latitats are not but of threescore yeares continuance which the other day Peryam had affirmed and he seemed to mislike with the Latitats And the Serjeant moved for their resolution in the case Anderson All my Brethren are of opinion against me wherefore take your judgement accordingly And so judgement was entred for the Plaintif 21. GAwon brought Debt upon an Obligation against White Traverse with condition that if the Defendant suffer the Plaintif his Tenants and Farmers to enjoy such a Common that then c. And the Defendant pleaded conditions performed and the Plaintif assigned for breach that he did not suffer A. B. his Tenant to enjoy c. Absque hoc that he performed the condition And it was sayd by the Court that this Traverse was not good no more than if one be bound to perform the covenants in an Indenture and the Defendant pleads that he hath performed all generally if the Plaintif assign his breach he shall not say further Absque that the Defendant hath performed the covenants for so much he had sayd before But Walmisley would have put a difference between the cases because in the one there were divers covenants to be performed but not so here Anderson If a man plead a Plea which is sufficient of it self and take a traverse allso you will grant that this Plea is not good quod fuit concessum and this Plea had been sufficient of it self onely quod fuit concessum ergo the traverse was not good without question Et sic opinio totius Curiae 22. GOverstone brought a Replevin against B. Rent charge who avowed the taking for a Rent charge granted to him by the Duke of Suffolk And this was the case The Duke was seised of three parts of a Mannor and granted a Rent charge to the Avowant And one Pole was seised of the fourth part and Hatcher purchased the Dukes three parts and the part of Pole allso and demised a fourth part to the Plaintif but the Serjeants could not agree whether it was Poles fourth part or otherwise the fourth part generally and as it seemed to the Court if it were the fourth part of Pole then the Avowry is not maintainable but otherwise if it were the fourth part generally And after in Michaelmas Term the case was rehearsed again and it was that he demised eandem quartam partem to hold at will And all the Justices agreed that it shall be discharged because it was never charged allthough once he might have distreined in all the Mannor Vnion of possession for that then there was no fourth part for all was alike in the hands of the purchaser but now when the fourth part is in the hands of a stranger it is no reason that it shall be charged Walmisley But the Tenant at will hath nothing but the profits by the way of taking Tenant at wil. and not any land but if Hatcher had made a Feoffment then I agree that it shall be discharged â—eryam And as well shall Tenant at will take the profits in his own right as long as the will doth continue wherefore judgement was given for the Plaintif 23. LEssee for years Wast the reversion in fee to Constance Foster and the Lessee granted over all his term and interest to A. B. Pasch 18 El. reserving and excepting all trees growing in and upon the premisses Rot. 420. the Lessee makes wast and destruction in the trees and C. F. brought Wast against the assignee and if this action will lye or no was the question wherein it was disputed whether this exception and reservation made by the Lessee be good or no for if the reservation be voyd then the action will lye well against the Assignee and thereupon these cases were put to shew both what interest the Lessor and Lessee have in the Trees viz. 33 Hen. 8. 2 Hen. 7. 42 Ed. 3. 21 Hen. 6. 46. 27 Hen. 6. Wast in Slatham 2 Eliz. fol. Danseyes case 7 Hen. 6. 12 Ed. 4. but to prove the reservation voyd Fenner took this ground That thing which a man cannot grant he cannot reserve and the Lessee cannot grant the Trees ergo he cannot reserve them And afterwards judgment was given for the Plaintif for default of pleading on the part of the Defendant but for the matter in Law two Judges were against the other two so that they could not agree De Term. Mic. An. Reg. Eliz. xxix xxx 1. AN action of Debt was brought by Bret against Andrews upon an Obligation indorced with condition to stand to the arbitrement of A. B. Request who did arbitrate that the Defendant should pay to the Plaintif xxâ—l and appointed no certain day of payment and the Defendant in pleading confessed the arbitrement but he sayd further that the Plaintif did never require him to pay it and thereupon the Plaintif demurred in Law and upon reading of the Record the Court held clearly that it was no plea because the Defendant at his peril ought to make payment within convenient time and the Plaintif needeth not to make any request And Anderson commanded to enter judgment accordingly 2. FEnner moved this case Possibility of Interest a man deviseth lands to his Wife for term of her life and if she live untill his sonne come to the age of 24 yeares that then he shall have the lands and if she dye before he come to that age that then I. S. shall have it untill his sonne come to that age and dyed then I. S. dyed before the wife and after she dyed before the sonne came to 24 years if the Executors of I. S. shall have the land untill the sonne come to that age or no was the question And the opinion of all the Court was that they shall not have it because their Testator had never any interest vested in him Fenner But here was a possiblity of an interest Curia But that is not sufficient Rodes cited the case of Bret and Rigden in the Commentaries Grant Anderson If I grant you that if you pay me xxl. at Easter then you shall have an Annuity of xl s to you and your heirs if you dye before Easter now your Heir shall never have it and so in this case 3. THatcher recovered in an Assise of Novel disseisin against Elmer for Lands in Hackney in Middlesex Redisseisin and after Elmer re-disseised him and Thatcher re-entred and Elmer disseised him again And Fleetwood moved the Court if Thatcher may have re-disseisin because that after action accrued to him he had re-entred Anderson What is the Judgement in this Action Judgement Surely it is not that he shall recover any land but double damages and that the
Defendant shall be taken and shall make a Fine wherefore forasmuch as he shall recover no land the entry into the land cannot purge the offence and wrong which is made punishable by the Statute and so was the opinion of the whole Court And the Court then held opinion likewise that if a man be disseised and after re-enters and is disseised again Assise that he ought to have an Assise of the last entry and not of the first 27 Ass pl. 42. 4. ONe Powell was sued in the Common-Pleas Privilege and as he was coming to Westminster he was arrested in London and thereupon had a common Writ of Privilege surmising that he was coming to retain Counsell and Walmisley prayed that he might be examined whether he did so or no but the Court would not Walmisley It is no reason that if he be going about other matters he should have the privilege of this place Curia A hundred Writs have been allowed without any examination Walmisley In 10 Hen. 6. 4 Hen. 7. such an examination was made Anderson But that was not de rigore Juris and all the Court refused utterly to examine him But Walmisley sayd privily that it was against the Law 5. DOrothy Millington brought Debt against J. Burges for 9 l. and declared that he bought certain Oad Wager of Law and the truth of the case was this Oad was sold to him upon condition that if she did not prove it to be good and sufficient then he should pay nothing for it and all this was disclosed by the Defendant upon his Wager of Law Detinue Windham If the case be so then you may wage your Law and it was sayd that she must have detinue for the Oad 6. IN an Avowry made by the Lady Rogers Title in avowry it was sayd by the Court Anderson absente that it is sufficient for the Avowant to plead his Freehold but if the Plaintif will traverse the same he ought to make himself a title Nelson Pronotary so are all our Presidents Peryam It is not sufficient to make it of his own seisin but he must make it Paramount his own seisin 7. WAlmisley moved for Judgement in the case of Richard Hanington for the Plaintif For he sayd that it was not clearly discharged because of the possibility of the charge ensuing allthough the charge were not then presently executed in proof whereof he sayd that it is not all gone by the acceptance of the Feoffment and then it is a bargain for a Lease for years is a bargain for there he hath quid pro quo Allso it is a Title as in Nichols case in the Commentaries And then allthough he had nothing which he could release because it was casuall whether it shall happen or no yet now when it happens it is a charge ab initio and thereupon he cited 9 H. 6. where one which had nothing but a possibility may maintain And so where a man makes a Feoffment and covenants that it shall be discharged as here and afterwards his Wife recovers her Dower the Covenant is broken and yet it was but a possibility And 8 Eliz. where a man covenants that it shall be discharged and he had granted a Rent charge to begin twenty years after this was not discharged Fenner argued to the contrary for the reasons moved by him before Peryam Here allthough it be no charge at the time of the Feoffment yet it is not discharged for if it were discharged then it shall never be charged afterwards And so was the opinion of all the Court Anderson absente and after at the end of the Term when Anderson was present they were all agreed that it was an incumbrance and not discharged of the incumbrance and therefore they gave Judgement for the Plaintif 8. IN Avowry by Johns of Surrey Esquire Tenure it was sayd by Anderson for Law that if a man before the Statute of quia emptores terrarum makes a gift and reserveth to himself upon every alienation the value of the Land by a year this shall be adjudged according to the value of the Land at the time of the tenure and not that whereunto it is enhauâ—ced at this day for a tenure ought to be certain when it is made 9. â—Aven brought Debt upon an Obligation against Stockdale who pleaded non est factum Statute 23 H. 6 and the Jury in Norfolk found this specially Verdict that the Defendant was sued by the Plaintif and made a Bond to the Plaintif endorced with Condition that if the sayd S. did personally appear in the Queens Majesties Court called the Kings bench and then and there make answer to such matter as the Plaintif should object against him the sayd Plaintif giving him warning that then c. And the Plaintif was neither Sherif nor Sherifs Officer for the pretence of the Defendant was to avoyd it by the Statute of 23 Hen. 6. And now the Plaintif prayed Judgement Anderson The case is no more than this A man is bound to another to appear at his suit in the Kings-bench and doth not so if this Obligation shall be avoyded and I see no colour to avoyd it for it is not within the Statute and all the Judges agreed clearly that it is not within the Statute and therefore they gave Judgement for the Plaintif 10. BLosse brought Trespass vi armis against Halmon for taking of his Goods Possession the Defendant pleaded not guilty and the Jury found a speciall Verdict that the Plaintif at the time of the Trespass supposed was of the Mystery of the Grocers and that the Defendant was his servant and put in trust to sell res mercandisas detempore in tempus in shopa sua existen and he took those goods and carried them away c. and they prayed the advise of the Court The doubt was because the action was vi armis whereas the Defendant had the custody or if this shall be called a custody Shuttleworth for the Plaintif and he cited the case in Littleton fol. 15. if I deliver my sheep to compost your land Sheep and you kill them I shall have trespass whereto the Justices agreed and held clearly that he shall have this action well enough Auctority Peryam he hath but an auctority only and not any custody or possession v. 2. E. 4. 22. 2 E4 8. 22 E. 4. 5. 13 E. 4. 9. Tenant at will ought not to cut down trees nor abate 3. H. 7. 12. 21 H. 7. 14. the case of Butler 11. TRespass by Foster against Pretty and his wife Title who justified that I was seised and made a lease to them for yeares c. the Plaintif replied de son tort demeasne Absque hoc that he leased c. Peryam Will you take a Traverse and not make your self a title Curia without question you ought to make your self a title otherwise it is if the Defendant claym a Common or such like and no
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
half whereby the Land was sown accordingly and that the Bore of Okely came and destroyed the Corn. Sed utrum c. And the doubt rested upon two points 1. because the Verdict saith that it conteineth sixty Acres and so shall be intended not the same place and the Court varied in opinion thereof insomuch that the sixteen Acres are found to be within the close conteining sixty Acres but for the 2 which was that they all four joyned in quare clausum fregit and it appeareth that three have nothing there Verdict shall abate the Writ but that Hare is sole seised And for that the Court held opinion that the Verdict shall abate the Writ for the Defendant cannot break their close where three of them have nothing but Hare onely Rodes A Case hath been adjudged a where Cheâ—ey brought Partition against Bury Partition who pleaded that they did not hold in Common and the Jury found that he and his Wife held in Common and yet the Verdict abated the Writ Windham You will all grant that the other three have no interest in the Land quod Walmisley concessit how then can they have quare 〈◊〉 fregit Fenner Executors shall have quare clausum fregit Executors and yet they have no interest in the Land Rodes There they have an interest for the time Anderson Here is but a bargain and no interest and then the three have no colour to bring Trespass quare elaâ—sum fregit 10. THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law Avoydance and now the Record was read and day given over to hear the Arguments but 〈◊〉 said that it is all one case with that which hath been adjudged here viz. that the Queen hath title of Lapse and doth not present but the Patron presents and after the Church becomes voyd by the death of the Incumbent that now the Queen shall not present but the Court answered Difference between Death and Privation that there the avoydance came by death but here it cometh by privation and whether this will make a diversity was the question 11. HArper brought Trespass against Spiller and Drew Estate upon not guilty pleaded a speciall Verdict was found and the case in effect was this F. gave Lands to a woman to have and to hold to her to the heirs of F. of the body of the woman ingendred what estate the woman had was the question and now the Record was read and day given over to argue it 12. SHuttleworth moved the Court Amendment and shewed that one Brokes by had brought a Quare impedit against the Bishop of Lincoln and others and the Writ was suam spectat donationem and this word 〈◊〉 was omitted and he prayed the Court that it might be amended and he cited 11 Hen. 6. 2. where it was imaginavit and it should have been imaginat fuit and 13 Hen. 7. where the teste was omitted and the Court took time of advisement and at length by the opinion of all the Justice it was amendable and then a Clerk of the Chancery came into the Court of the Common-pleas and amended it 13. IN an Avowry for an Amercement in a Leet By-law a Prescription was made for making of By-lawes and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants and not for the private commodity of any particular man as J. S. onely or the Lord onely As if a By-law be made that none shall put in his beasts into the common-field before such a day this is good but if a By-law be made that they shall not carry hay upon the lands of the Lord or break the hedges of J. S. this is not good because it doth not respect the common benefit of all And Windhaâ—â— sayd that some Books are that they shall bind no more than such as agree to them 14. HAre brought Debt against Curson for a great sum Capias utlâ—gatum and Process continued untill Capias â—tlog And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ because they doubted thereof and the Writ was delivered to the Sherif in Court and he sayd that he would doe his endeavour but Curson hath long kept his house so that he cannot come at him Peryam You may take the power of the Country with you and break his house and take him out for so it hath been adjudged here which the Court granted 15. PUckering shewed how an Action of Debt was brought against an Administrator Assetâ— who pleaded plens administraâ—it and thereupon the Jury found a speciall Verdict that certain Obligations made by the Testator to the value of a hundred pound were forfeit and the Administrator took in the said Bonds and gave his own Bond for the Debt and retained the money in his own hands besides which c. he had nothing c. and if that hundred pound shall be liable to this Action of the Plaintif they prayed the advice of the Court and by the opinion of Windham and Peryam it shall not be Assets because the property is changed in giving his own Bond for the same Payment with Proper râ—â—ds and it is as if he had payd the Debts with his own goods but if he had compounded for less Surplusage then the surplusage should have been Assets But Rodes was of a contrary opinion in the principall case forasmuch as he had payd no money but onely given his Bond for in and Anderson was absent at this day And after at another day the case was moved again by Shuttelworth and then he shewed that for part thereof the Administrator had given his Bond and for another part his promise Promise and he sayd that this is no payment but a composition and therefore no change of property Anderson For so much as he hath given his promise I think it not good because that by this promise this first debt being due by Bond is not discharged but for so much as he hath given his Bond for I hold it good enough because the first Debt is discharged thereby allthough that the Obligation be made to a stranger Estranger by the appointment of the Debtee and allso before the Debt due for by this the first Debt is gone And Windham and Peryam were of the same opinion that the Debt was discharged and that it should not be Assets in his hands but Rodes doubted thereof and it was adjorned 16. JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants Abatement and after a Verdict found for the Plaintif and before Judgement one of the Defendants died and the Writ was adjudged to stand good against the other 17. IN Debt by Saunderson Wager of Law the Defendant pleaded nil debet per legem and in truth the money was due to the Plaintif but the Plaintif was allso
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
have against him untill the 24 of June then next following which was half a year after and because he had not performed this an action upon an Assumpsit was brought and Judgement given for the Plaintif and all the Justices agreed that this was Error because that this thing arbitrated was out of the submission and so voyd for they have no authority to arbitrate that which is not submitted unto them Submission and the submission is onely of things passed and not to come but because that the Defendant had not heard of this Error before therefore they gave him day Afterwards the case was moved again and Anderson sayd that damages recovered doe not lye in arbitrement Damages recovered Peryam Amongst other things they will lye well enough quod Anderson non negavit But they all sayd that they may well assume upon consideration and an Action will be maintainable for it 5. THomas Mounson Esquire Term extinguished sonne and heir apparent to Sir Iohn Mounson Knight brought an Action of Trespass against VVest who pleaded not guilty and upon Evidence it appeared that Sir Iohn Mounson had an estate for years the Remainder in tayl to the Plaintif with divers Remainders over and the Lessee made a Feoffment to divers and a Letter of Attorney to others with commission to enter into the lands and to seal the Feoffment and deliver it in his name to the use of the sayd Thomas and his heirs and another by commandement or Letter of Attorney of the sayd Thomas entred in his name And the Court held this a good Feoffment notwithstanding that both the Lessee and the Attorney were disseisors Disseisors for it is good between the Feoffor and the Feoffee for they sayd that by the Feoffment to the use of him in the remainder and his heirs if he in remainder enter he is remitted and the estate for years is gone implicatively Freehold joyned to the term Morgage for Peryam sayd that in all cases where the Freehold cometh to the term there the term is extinguished And therefore if a man morgage his reversion to the Lessee for years and after perform the condition yet the Lease for years is utterly extinguished And the Evidence on both parts was very long and the chief matter was whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas by which Devise lands were conveighed to him by William Mounson his Father whose heir at the Common Law Sir John Mounson is viz. the Sonne of Roberts eldest brother and the Deed was shewed by VVest and it was perished with Mice all the Seal and part of every side but yet by the last Will of the sayd VVilliam Mounson and by divers other proofs it was evident that the Deed was good and but little in effect was shewed to prove the Deed forged Misdemenour yet the Jury went together and tarryed there all night and in the mean time some of them had victualls with them for one had Cheese and another had Pruens another had Pippins and another had an Orange but he which had the Orange swore that he brought it onely for the smell and therefore he was excused and he which had Pruens had given half a Pruen to one of his companions which eat it and he which had Cheese had eat thereof therefore all those which had victuals Fine and imprisonment were fined at 40 s and they which had eaten at 5 l. every of them and all committed to the Fleet but because they were agreed therefore the Verdict was taken and the Verdict was given for the Plaintif viz. that the Deed was forged by Justice Mounson and the Verdict taken de bene esse and all this matter commanded to be entred for the Justices doubted whether it were a good Verdict This matter was moved divers Terms afterwards and at the last adjudged a good Verdict 6. IN an Ejectione firme by Ashby against Laver for Lands in Westminster Countermand it was sayd by all the Justices to the Jury that if a man hath a Lease and disposeth of it by his will and after surrenders it and takes a new Lease and after dyeth that the Devisee shall not have this last Lease because this was a plain countermand of his Will 7. IN Trespass by Johnson against Astley it was said by the Justices to the Jury that if there were a Chauntery in reputation allthough it be none in right as if it be gone by disseisin yet the Queen shall have the Lands 8. AT Serjeants-Inne in Fleet-street Rent suspended the Justices of the Common Pleas and Barons of the Exchequer were assembled for divers Errors in the Kings-bench and the case of Rawlins was moved again and Anderson and Peryam retained their former opinions and Peryam sayd that he would differ from all the cases of collaterall conditions Feoffment upon condition which may be put for he sayd that if a man make a Feoffment in fee of 20 Acres of land upon condition that if he pay to the Feoffee xx l. at Easter that then it shall be lawfull for him to re-enter allthough that he be re-enfeoffed of 10 Acres yet he ought to perform the condition because it is collaterall But Cook the famous Utter-barrister sayd Truly it hath been adjudged to the contrary and I was privy to it for when he took as high an estate again as he had before by that the condition is confounded and the case of the Corody in 20 Ed. 4. will prove this case Rodes I see no diversity Peryam It is collaterall there but so it is not here but afterwards those two Judges changed their opinions and so the first Judgement was affirmed 9. BRown recovered against Garbrey in an Assumpsit Consideration and thereupon Garbrey brought a Writ of Error and assigned for Error that there was no Consideration for the Declaration was that whereas there was a communication between Brown and a woman for Mariage between them that the Father of Brown had promised to the Wife that if she would marry his Son he would make a Feoffment of his land to the use of himself for life and after to the use of them two in tayl the remainder c. and that Garbrey assured to the Wife in consideratione praemissorum that if the Father did not doe so then he would give the Wife a hundred pound ac licet the Father did not give to them in tayl secund agreament praedict yet Garbrey refused c. And Cook moved that this should be no Consideration for the communication of Mariage was not by him but between strangers to him but if the Father had assumed in consideration of Mariage then that should have been good against the Father but against Garbrey it is â—o otherwise than as if one promise to you to Enteoff you and I say that if he doe not so then I will give you a hundred pound this is
the Declaration ought to agree with the Writ 14. A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster Administrators in an Action upon the case brought against one as Administrator And did not shew by whom the Administration was committed which he ought to have done by 32 Hen. 6. 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant And whether this were a good consideration was another doubt and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid And at this day it was held that when an Action is brought against an Administrator it need not be shewed but in an Action brought by them clearly they ought to shew it And for the other matter whether the Plaintif needed to aver that they had Assets besides the Debts c. it was said that this ought to come and be shewn on the other part And for that Woodwards case in the Commentaries was cited And the next morning Puckering shewed that he had a report of a Judgement given in the Kings Bench that it is not necessary to shew that they had Assets besides the Debts and Legacies c. And therefore he prayed that the Judgement may be affirmed And so it was for Rodes had seen the report of Puckering according to his saying and testified the same whereby Judgement was here given against the Administrator Anderson being in the Starchamber 15. IT was agreed by all the Justices Herriot that for a Herrioâ— service the Lord cannot distrein out of his Fee no more than for a Rent but he may seise a Herriot Custom out of his Fee 16. A Man was outlawed Vtlary and the Sherif retourned the Proclamation tali die omnes singulas proclam fieri feci And did not shew that such a day he made the first and such a day the second c. and this was assigned for Error and prayed that the Utlary night be reversed and so it was 17. FLeetwood shewed that this case came in pleading Rent-service A man had a Rent service payable at the Feast of St. Michael And on Michaelmas day he died about ten of the clock in the morning now he demanded whether his Heir or his Executor shall have the Rent Anderson Hath he not all the day to pay it and upon condition to pay such a sum he may tender it any time before Sun-set Peryam But if the party accept the payment in the morning it is good Curia If it be a case in this Court you ought to demur as your case is and not to be thus Politick 18. A Writ of Error was brought upon a Judgement in the Kings Bench Abatement and one of the parties died hanging the Writ And the Court held this to be an abatement of the Writ and that he ought to purchase a new Writ De Term. Mic. Anno Reg. Eliz. xxx xxxj 1. AFormdon was brought against Haselwood and Haselwood Abatement and the one took the Tenancy of the one Moity Dier 3. 4. Phil. Mar. 134. Absque hoc that the other had any thing therein and pleaded in abatement of the Writ and the other took the Tenancy of the other Moity and vouched Shut Shall I maintain my Writ or answer to the Bar of the other Tota Curia You must needsmaintain your Writ Anderson Where the pleading is such as your Writ cannot be good there it is a ground that you ought to maintain your Writ Praecipe quod reddat but if a praecipe quod reddat be brought against two and the one plead Nontenure and the other accepts the entire Tenancy Absque hoc c. and doth plead in Bar there you may answer to the Bar because there peradventure the Writ is good notwithstanding As if a Writ be brought against the Feoffor and Feoffee upon condition or Morgagor and Morgagee and so there is a diversity 2. IN a Quare impedit brought by the Queen against the Archbishop the disturber Vtlary and the Incumbent the disturber pleaded that long time before he had any thing in the Advowson by whose Utlary the Queen is intitled King Ed. 4. was seised of the Honor of Haststings and granted it to the Lord Hastings in Fee and further granted omnia bona catalla omnium teneutium ejusdem honoris sive manerii residentium non residentium qui forent utlagati c. and so conveyes the Honor by descent to the now Lord Hastings and did not aver that he which was Utlawed Averment was a Tenant of the Honor. Curia It is not good without doubt for otherwise he is not within compass of the Grant and therefore a day was given by which if the Defendant did not shew better matter the Queen should have Judgement 3. IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford Devise and other Defendants Glocester And upon not guilty pleaded Hit 30. Eliz. rot 188. the Jury found a speciall Verdict viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell and of divers other Tenements within the same Parish and within a place known in the same Parish which is neither Town nor Hamlet called Ebney in which Samford had a Tenement which hath Lands time out of mind perteining thereunto lying as well in Ebney as in Stone-house which Tenement is in the Tenure of one Bucher by Copy of Court-roll according to the custom of the Mannor Afterwards William Samford deviseth to his Brother after the death of Bucher all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney Now the question was whether the Lands in Stone-house perteining thereunto shall pass or no And the famous Cook argued that it should pass for this word Tenement referreth to his dwelling which is in Ebney and not to the place where the Lands lie And therefore he said that words ought to have relation ut ne impediatur sententia sed ut res magis valeat quam pereat Quare impedit and he cited 4 Ed. 3 in a Quare impedit quod permittat praesentare ad ecclesiam de Mourton Majorem and the Defendant demanded Judgement of the Writ for false latin because of Majorem and yet it was adjudged good for it shall be referred to ecclesiam and he cited 19 Ed. 3. 3 Ed. 4. Allso it passeth by this word appurtenances for there was such a Chambridgshire case here within this Twelve-month where a man gave instructions to another to make his Will in this form I will that B. shall have my House with all my Lands thereto apperteining And the other made it in these words I devise to B. my house with the Appurtenances and it was adjudged that
Will shall be good Rodes If a man make his Will and after do become non compos mentis and then live three or four years after Long life maketh difference it is no reason that such a Will shall be good and he cited 3 Edw. 3. it in Northt for this case Gawdy If the Proviso in the Statute of Wills had not been then every Will made by a Feme-Covert should have been good Tota Curia That is nothing so for allthough the Proviso had not been Reasonable construction yet the Statute should have had a reasonable construction But for the principall case the Court was not yet resolved After at another day Gawdy moved the case again and held strongly that by taking of a Husband this is not Countermanded and cited 2 R. 2. and then during the Coverture she hath sâ—bmitted her Will to her Huâ—band For by 3 Ed. 3. it in Roteland she cannot devise to her Husband whereby he concluded that the VVill is good Shuttleworth to the contrary because she hath no ability at the time when it should take perfection and every Will ought to have three things Inception Progression and Consummation And he cited Bret. and Rigdens case Anderson I am of my first opinion that this VVill is not good for I think this Countermand by the Wife is sufficient â—â—uâ—termand by one not of found mind and if non compos mentis say that he doth revoke his Will this is a sufficient Countermand And whereas it hath been said that a Feme-Covert hath no VVill Sir that is not so for she hath a Will in many cases Wills of feâ—e 〈◊〉 as if she be Executrix she may make a gift c. So if I be bound to do such an Act if such a Feme-Covert will consent in this case if the Husband onely consent it is not sufficient but the Wife ought to assent allso And if this Will shall be good then this mischief will ensue that after a Will is once made the partie shall have no power to controll it Controlement therefore I think the Will is not good Wyndham I am of the same opinion For a Will is not perfect untill after the death of the Devisor No countermand and when she is disabled at the time of her death the Law saith that such a Will is void But I think that a Feme-Covert cannot Countermand her Will for the same reason which doth disable her to make a Will doth allso disable her to Countermand that which is made before for by 3 Edw. 3. Consummation which was cited before she cannot devise to her Husband and by the same reason she cannot Countermand that which is devised to her Husband but because the Wife was not a person able at the time of the Consummation thereof therefore it is not good Marâ—iage no countermand Peryam to the same intent First the Mariage is not any Countermand and for the case in 2 R. 2 I think it good Law And I have allwaies taken this diversity that if a woman grant the Reversion after Tenant for years Reversion and before Attornment had she take a Husband that this is a Countermand but if that it be a Reversion after Tenant for life then it is no Countermand For in the first case his Title of Tenant by the Curtesie begun by the intermariage Allthough that it was not consummate before issue had And it seemeth a clear case that a Feme-Covert cannot Countermand a Will for she cannot make a Will And whereas it hath been said by my Lord that a woman hath a will Will by customâ— or by some by-matter true it is but that is either by custom or by reason of some by-matter as in the cases put But VVills ought to take effect at the time of the death and if then she be disabled it is not good for it is not consummate before as if there be Husband and VVife and the Husband be seised of Lands in Fee and levy a Fine thereof and then dye and after the levying of the Fine five yeares pass yet she shall not be Barred but if after the death of the Husband five yeares pass she is barred by a Fine because her title was not conmsumate untill after the death of the Husband whereby c. Rodes to the same intent for if I devise the Mannor of Dale as it is iu the Com. for c. and then have nothing in it but afterwards purchase it Perfection now it shall pass which proveth that the perfection of a Will is at the time of the death and in 39 H. 6. a man devised lands and before his death was disseised Disseisin after Will nothing passed by the Will because it was no Will untill death and here in our case because she was disabled at the time of her death it is void Anderson Then let judgement be entred accordingly 17. A Proclamation was directed to the Sherif of Cheshire against John Hockenhall Proclamation and the Writ was retorned Tale die ad comitat meum tent in le Shirehall c. Dyer fol. 206. proclamationem feci ac eodem die ad generalem Sessionem c. proclamationem feci c. And now this matter was pleaded in avoidance of the Utlary to reverse it because those proclamations were made one day whereas the Writ was tribus seperalibus diebus c. And the Sherif was amerced to forty shillings for his evill retorn And at another day he was amerced to other forty shillings because he had retorned divers Writs in Secretary hand Secretary hand And commandment was then given to the Custos brevium to receive no Writs retorned in Secretary hand for the Court said that writing in Secretary hand would be so worn in a dozen yeares that no man can read it 18. HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd â—â—perdict Common intendment Hen. Gooderd de London Tayler Trin. 30. Eliz. And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper dicti H. G de Lond. Rot. 2â—03 Barber Chirurgeon whereupon the Plaintif demurred And the Defendant did not aver that the said G. Tayler G. Barber Chirurgeon was allone person and they also omitted this word praedictum And whether this were good or no was the doubt And it seemed to the Justices that it was not good although it was alleged that it shall be intended all one person and then if a plea in bar be good to common intent it is good enough And therupon John Pastons case was cited in 21 H. 7. Where it was Westmonasteriuâ— doth not say praedictum Common intent what it is yet it shall be intended the same VVestm mentioned before Whereunto the Court answered that here by common intent he shall not be intended the same person but
de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei every one will agree that this is voyd but if a further addition be made to the Corporation the Lease is true Addition superfluous shall not hurt allbeit that it be varying as if the Lease had been Minister Dei omnipotentis the addition of this word omnipotent shall not hurt sic de similibus And allbeit that it be not agreeing in words yet if it agree in common understanding Common understanding it is good but if in common understanding the grant may not be taken according to the Foundation if it be not wrested to an unexpected understanding there it is not good and if the Foundation had been in English words Minister of God of the poor house of Donington and the Lease by name of Minister of the poor house of God of Donington every one will agree that this is palpable variance and the Lease not good And I doubt of the case of Everwick for there the Prior beatâ—â— Mariae brought an action by name of Prior beatâ—â— Mariae extramures civitatis Ebor and if this case were now to be adjudged that would be variance as the case of Bristoll Prior beatae Maria de Bristoll made a Lease by name of Prior beatae Maria juxta Bristoll and this Lease was adjudged voyd but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance for it had been but an explanation which will never hurt and for that the Court was so divided in opinion that is to say two against two and the case concerned a poor house They moved the parties to comprimise 8. RUswell brought disceipt against Vaughan Disceipt and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that and sold the profits of the sayd Advowson to the Plaintif pro quadam pecunia summa And it was pleaded in arrest of Judgement for that the Plaintif did not aver ubi revera the Defendant had no title non allocatur 9. THe case was that the Queen made a Lease for years Burrough versus Taylor rendring rent at the receipt of her Exchequer or to the hands of her Baylif upon condition that if the rent be not payd that the estate shall cease Payment of rent the reversion being granted away by the Queen after the Queen granted over the reversion and whether the rent shall be now tendered upon the land or at the receipt of the Exchequer or to the person of the Assignee of the reversion was the question and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land or otherwise he shall not re-enter for the condition broken that for two causes the one for that that when the reversion was in the Queen Election the Lessee had election to pay it at the receipt of the Exchequer or to the hands of the Queens Baylif and when the Queen had granted over the reversion the election of the Lessee is tolled by which now the rent shall ensue the nature of other rents reserved by common persons The common receipt of the Exchequer and those are payable upon the lands another reason is every rent reserved by the Queen is of common right payable at the receipt of the Exchequer or to the Baylifs of the Queen without words appointing at what place it shall be payd for these are the usuall receipts of the Queen and so the words which appoint that to be payd at the receipt of the Excheq â—r to the hands of the Baylif of the Queen are idle words for that the Law appointeth so much of common right ex praerogativa Regis but when the reversion is transferred into the hands of a common person No prerogative can be granted over there this Prerogative ceaseth for it cannot be granted to a common person and by consequence the rent shall be payd upon the Land 10. THomas VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome recuperet No amendment in point of judgement and for that Error was brought and Serjeant Heale moved that the Record might be mended for that it was the mis-entring of the Clerk but adjudged to the contrary for the Judgement is the act of the Court and not of the Clerk 11. EDmund Nevell brought an Action of Trespass against J. Sayle Abuttals and declared Quare clausum fregit in quodam loco vocato Claveringfield abuttan super quoddam molend in tenura J. S. Opinio Curiae If the Plaintif do not prove his Buttals he is gone And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged and howbeit that there be a way between the Close and the Mill yet the Buttall is good 12. RIchard Somerstailes brought an Action upon the case for slanderous words Slanderous words that is to say R. S. is a very bad fellow for he made J. S. drunken in the night and consened him of an hundred Marks and upon not guilty pleaded it was found for the Plaintif and Judgment was stayed for the words are not sufficient to maintain an Action 13. IF the Heir of the Morgagee is in Ward Mortgage and the Morgager payeth the mony his entry is not lawfull upon the King but shall be put to monstrans de droit per Popham chief Justice 14. HAmond brought Debt upon an Obligation against Hatch Award of paâ—t onely and the Condition was That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant for and concerning the matters contained in 9 severall Articles bearing date the day of these presents So that the same be given up under the hand and seal of c. And the Arbitrator made an award of 7 of the sayd Articles omitting the other two and whether the Obligor ought to perform this Award was the question Man I think he ought to perform the Award for that he is bound by Obligation to perform it and to prove that he cited 5 Edw. 4. 19 Hen. 6. 17 Edw. 4. Gawdy The words of the Condition are so that the same Award be given up in writing before such a day and that shall have reference to all the Articles for the Submission was conditionall as 14 Elizab. And after Judgement was given quod quer nihil capiat per billam 15. How against Broom and others A Man leased a House and a Close rendring rent and the Lessor entered into the house and pulled that down and after
say no more now this is no Condition And here all the sense comes in after the words of Covenant and these words are the words of Sir M. B. And for that it seemeth no Condition for if the words had been And it is provided by Sir M. B. there it is clear no Condition But if in a Lease for yeares be words and the Lessee do provide that if the Rent be behind that then the Lessor shall re-enter there I agree that this makes a Conditon And in the case put by my Brother Williams a Lease made provisum est quod non licebit to the Lessor to grant over upon pain of forfeiture there is a good Condition But otherwise it shall be if sub poena forisfacturae were omitted Fenner I think it is a a Condition for all the words put together explain the meaning of the parties as if he had said upon Condition And the Lessee doth Covenant and grant and none will deny but that this is a Conditidition Clinch seemed that it is no Conditon for the words may not be used as a Covenant and allso as a Condition As where a grant is by Deed by words of Dedi concessi confirmavi the Deed may be used as a Grant or confirmation at the Election of the party But it cannot be used in both sorts Popham I think that the Proviso as it is here placed will make a Condition and yet I will agree that a Proviso shall be sometimes taken for a Condition and sometimes for Explanation and sometimes for a Covenant and sometimes for an Exception and sometimes for a Reservation and it is taken for a Condition As if a man Lease Land provided that the Lessee shall not Alien without the Assent of the Lessor sub poena forisfactura here it is a Condition and if I have two Mannors both of them named Dale and I Lease to you my Mannor of Dale Provided that you shall have my Mannor of Dale in the Occupation of I. S. here this Proviso is an Explanation what Mannor you shall have and if a man Lease a house and the Lessee Covenanteth that he will that maintain Provided allwaies that the Lessor is contented to find great Timber here this is a Covenant and if I Lease to you my Messuage in Dale provided that I will have a Chamber my self here this is an Exception of the Chamber and if I make a Lease rendring Rent at such a Feast as I. S. shall name Provided that the Feast of St. Michael shall be one here this Proviso is taken for a Reservation and in our case if the words had been provided allwaies that the Donees shall cut down no Trees and the Lessee doth Covenant he will not fell any here every one will agree that it is a Condition and allso a Covenant And in this case in my opinion this tant amounts Serjeant Williams and Cook Attorney for the Plaintif Atkinson and Tanfield for the Defendant 28. LAssels the Father Sâ—ander brought an Action upon the case against Lassels the Son for words viz. he quendam Thomam Lassels fratrem ejusdem Def. innuend stole a Mare and you innuend querent knowing the same conveyed her into the Fenns to my Brother B. his house Clinch and Gawdy seemed the Action maintainable Fenner econtra 29. A Man was indicted for stealing of a hat and a band and other such things Indictment And the Prisoner said that he was before that time indicted for goods stolen the same day and time and acquitted Gawdy said he may not be severally indicted for goods stolen at one time As if a man steal a dozen of silver spones he may not be indicted for two in one Indictment and for other two in another sic de singulis Clinch accord Fenner Yes truly for it was the case of Thomas Cobham the which was indicted for goods taken in two shipps and acquitted and after condemned for other goods taken at the same time 30. PEarce brought an Action upon the case against Barker Prescription by a Copy-holder and delared how within the Mannor of Dale time out of mind there had been divers Copyholders and during the same time there hath been a usage within the said Mannor That every Copyholder for every Acre of Land shall have Common in such a Wast of the Lords for two Beasts And shewed how the Plaintif is possessed of twenty Acres and by reason of those ought to have Common for forty Beastâ— And there hath the Defendant being Lessee for years of the same Mannor one Conigray within the same Wast by which the Conies have so digged the ground that his Beasts cannot have Common as they were wont to have Fenner A Copyholder may not prescribe but in right of his Lord but now the Lord pro tempore is party to the action and whether this will alter the case or not I doubt Glanvile Albeit the Copyholder may not prescribe but in right of his Lord yet by way of usage as this case is it hath been adjudged that he may make his title 31. A Ruudell was heretofore arraigned upon an Indictment of willfull Murder for the death of one Parker Indictment and was found not guilty of Murder but guilty of Manslaughter for which he pleaded the generall pardon de 35 El. And the Queens Attorney alleged That in the sayd generall pardon there is an exception of all persons being in prison by the commandement of one of the Privy-counsell and said that the sayd Arundell was committed by the Lord Chamberlain for suspition of the sayd Felony and for the same in prison at the time of the Parliament Commitment and so a person exempted To which it was sayd by the Defendant that long time before the sayd Parliament and after the sayd commitment by the Lord Chamberlain there went out of this Court a Corpus eum causa by force of which he was sent into this Court with the cause of his commitment and was for the sayd offence committed by this Court to the Marshalsey and there was remaining at the time of the Parliament by force of the commitment of this Court and it seemed by the better opinion of the Court if a man be committed by a Privy-counsellor and removed by Habeas corpus and committed by this Court he shall be now sayd imprisoned by commitment of this Court and not of the Privy-counsellor 32. STaugnton brings a Writ of Error against Newcomb upon a Judgement given in Debt in the Common-place Error and the first Error assigned was for that the originall Writ was xx l. and all the mean Process were so likewise but when the Defendant appeared to the Exigent the entry was quod defendens obtulit se in placitâ— debitâ— decem librarum where it ought to be xxl. Dodderidge I think it shall be amended for it is the misprision of the Clerk and to prove that he cited 37 Hen. 6. 44. Ed. 3. 18. But upon
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
shall have the corn for if Lessee for life leaseth for years and this Lessee for yeers sowe the land and the Lessee for life dye now the Lessee for yeers shall have the corn by reason of his right to the land at the time of his sowing and never lawfully devested by any Act done by himself and he denyed the cases put by Mr. Tanfield and so concluded Gawdie The lessee for yeers of the Tenant for life shall have the corn and he denyed some of the cases put by Mr. Tanfield for in the case where Tenant for life sowes the land and after assigns over his esttae now if Tenant for life dye the Assigne shall have the corn as well as the Executors of the Tenant for life if he had not assigned over his estate But I agree the case of the devise for life of land sowed with the remainder for life for there he in remainder shall have them and the laches of the not entry of the Lessee for yeers shall not prejudice him Lessee for years ousted for it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted and after the Tenant for life dye yet the Lessee for yeers shall have trespasse with a continuando for all the mean profits The which proves that they belong to him so is it in 38. H. 6. Lessee at wil ousted If Lessee at will be ousted and after the Lessor dye now the Lessee shall have a trespasse with a continuando without regress for when he may not enter Regress the law supplyeth it and the mean profits do belong to him And by consequence in this case the corn belongeth to the Lessee for yeers Ground let for life after sowing of the Tenant for life Popham Sir Henry Knevit shall not have the Corn for if a man lease for life ground which is sown and the Lessee dye now the Lessor shall have the Corn and not the Executors of the Lessee for life And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life of ground sowed and the Tenant for life dye that he in Reversion shall have the Corn Disseisor sow the land of tenant for life And if a Disseisor sow the land of Tenant for life and the Tenant for life dye now the Executors of the Tenant for life shall have the Corn and not the Disseisor nor he in Reversion and by consequence the Lessee for years of the first Lessee for life in this case Fenner was of the same opinion and after it was adjudged that Knevit should have the land and that Poole should have the Corn because of his possession 61. RAme sued a Prohibition against Patteson Prohibition for Dotards and the question was if Trees which are above the age of twenty years become rotten and are cut down for fuell shall pay Tyths or not and the opinion of the Court was that they shall not for Tythes are payable for an increase and not for a decrease and being once privileged in regard of hie nature this privilege shall not be lost in regard of his decrepitage 62. PArtridge brought an Action of Debt against Naylor upon the Statute of 1 2 P. M. 12. Empounding For taking of a Distress in one County and driving it into another and the case was that three men distreined a flock of Sheep and them impounded in severall places and if every of them shall forfeit a hundred shillings severally or but all together a hundred shillings Common place The Court was divided for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings and treble damages but Walmisley thought that every one should forfeit a hundred shillings and he put a difference between person and party for many persons may make but one party 63. BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts Erroneous Judgement in London was a forfeiture of their Liberties but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated and was made finable as in Chester if they give an erroneous Judgement they shall forfeit an hundred pound for these inferior Courts which have peculiar Jurisdictions ought to do justly for if these Courts shall not be restrained with penalties Justice will be neglected and before the Statute of 28 Ed. 3. those of London might not reform Errors in London 64. NOta per Doctor Amias in the Lord Souch his case Caveat if a Church become voyd and a stranger enters a Caveat with the Register of the Bishop that none be instituted to that Church untill he be made privy thereunto and the Bishop before that he have notice of the Caveat institutes an Incumbent the Institution is meerly voyd in the Spiritual Law for the Register ought to notifie the Caveat to the Bishop and his negligence in that shall not prejudice him that entered the Caveat and if the Bishop have notice of the Caveat and gives day to him that puts that in and before that day he institutes an Ineumbent this is meerly voyd for the entering of the Caveat is as a Supersedeas in our Law 65. THornton brought an Action upon an Assumpsit against Kemp Day of payment and declared that the Testator was indebted to him in ten pound and in consideration that the Plaintif would give day to the Defendant being Executor to pay that until Michaelmas he assumed to pay that in facto dicit that he hath given day and yet the Defendant hath not that payd The Defendant pleaded in bar that post praedictam assumptionem factam and before Michaelmas the Plaintif did arrest him for the same Debt and demands Judgement and upon that the Plaintif demurred Gawdy When he hath given to him day of payment usque ad Michaelmas allbeit he arrest him before that time yet if he do not receive the money before Michaelmas the consideration is performed Fenner I deny that for to what purpose is the giving of day of payment untill Michaelmas if in the mean time he may sue him Popham I agree with my brother Gawdy for insomuch that he onely forbears the payment untill Michaelmas and doth not promise to forbear to sue him the payment is forborn if the money be not received 66. SHerington â—ued a Prohibition against Fleetwood Parson de Orrell Prohibition in Com. Linc. for that that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments and the now Plaintif being Defendant in the Spirituall Court pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture and for this payment he had been discharged of payment of Tythes for all Agistments in that land Payment for one thing shall not discharge another Popham This payment of money for Milch
case the partie shall have a consultation Popham The one of the parties is a man temporall and so was it not in your case Sic nota that by the Spirituall law the Vicar shall have Tithes of Saffron of land newly sown with Saffron albeithat before the Parson had the Tith of that land being sowen with Corn. 76. NOta that by the course of the Kings-bench a man may have Oyer of the deed after imparlance Oyer of a deed but not in the Common place Q. 77. BEckford brought an ejectione firme against Parnecote Devise before purchasâ— and the Case upon the speciall Verdict was found to be this That one Parsons was seised of certain land in A. and had issue four Daughters viz. Barbera Johan E. and Mary and made his Will in writing And by the same Will he devised all his land in Aldeworth to Barbera and Johan two of his daughters and made them two his Executors and after he purchased other land in Aldworth and a stranger was desirous to purchase this land of him newly purchased And he said that that land should goe with the residue of his land to his Executors as his other land should go After the said Testator made a Codicill and caused it to be annexed to his Will But the Codicill was of other things and mentioned nothing of this land and whether this new purchased land shall pass by the Will without new publication of the Will for this land was the question Moor I think that the land newly purchased shall pass and to prove that he said that the reason in Bretts case 340. Com. for which land newly purchased shall not pass is by reason that there is no manner of new publication but in our case there is new publication and in Trivillians case 4 M. 143. where cestui quae use made a Will And then the Statute of 27 H. 8. of uses came now this Will was comptrouled The Statute of Wills but by a new publication it may be made good and he cited 44. E. 3. 12. and 44 Ass 36. Atkinson è contra For this Will ought to be warranted by the Statute otherwise it is not good and the Statute doth not enable him which hath no land at the time of the devise to devise land and the words of the Statute manifest this which are Where any person or persons having any land holden c. So by the express words Want of apt words if he have no lands at the time of the Devise he may not Devise as appears plainly in Brets case allso it appears that words out of a Will will never make that to pass which was intended before and with that agreeth the Lord Cheney his case and the case of Downhall and Catesby lately adjudged and in this case allbeit the Testator allowed this Will after to be his Will Things not expressed in the Wil must be expressed in the publication yet this shall never make this land newly purchased to pass without express publication of this land Clinch Justice sayd it seemed to him that the land newly purchased shall pass for after that he had made his last purchase the Testator heard the Will read and by that he devised all his lands in Aldworth and then knew that the land newly purchased lay in Aldworth and upon reading of the Will he allowed it and so I think that the new purchased land shall pass as well as the other and that this allowance upon the reading is a new publication Gawdy Justice è contra For if I make my Will and by that devise all my land in Dale and after I purchase other land there and one afterwards shews me the Will and demands of me if it shall be my Will and I answer it shall I say that this land newly purchased shall not pass Hearing and allowance is a publication and in this case howbeit that the reading of the Testament or annexing of the Codicill be a new publication yet it doth not manifest the intent to be that more shall pass by that than he intended at the first and allso the new reading of the Will and the annexing of the Codicill may not properly be termed a new publication as this case is Where there it no controlment there needeth no new publication for here was not any Controlment and for that the Will needs not any new publication by which it seemeth that without any express publication for this land newly purchased this land shall not pass for the things which are found to be done are but allowances and no new publications 78. HArecourt brought a Writ of Error upon a Judgment given in the Common-place Amendment and assigned for Error for that the Judgement was that the now Defendant should recover xx l. assessed to him per Jnr. nec non x l. bassessed to him hic per Jur. where it ought to be per Cur. Yelverton prayed that it might be amended for that the Record in the Common-place was right and the Misprision which made this Error was in the Clerk which certified the Record and the opinion of the Conrt was that if it were so it should be amended and therefore they sayd they would have the Record it self brought out of the Common-place thither to be viewed whether it were so or not The Record it self shall not be sent out of the Court. Worley Clerk The Justices of the Common-place will not suffer the Record to be brought hither Popham That is no new President that the Record shall be brought hither for I have seen it done before this time But after in truth the Justices of the Common-place would not send their Record into the Kings-bench and therefore Cook the Queens Attorney prayed that it might be amended Popham It may not be amended for that I have spoken with the Justices of the Common place and they say that the Record was at the first as it was certified viz. Iur. pro. Cur. and after the Record was certified it was amended by a Clerk without any Warrant Cook Allbeit that it was so yet under Correction it is amendable for it is the misprission but of a Clerk and that of a Letter onely viz. of I. for this letter C. for the word is written Jur. short where it ought to have been Cur No amendment in â—â—int of Judgement and so amendable by the Statute of 8 Hen. 6. Curta è contra for it is parcell of the Judgement and you never saw the Judgement of the Court amended for which it cannot be amended here 79. EAst Executor of I. S. brought an Action upon the case of finding and Converting of certain goods Trover against Newman And upon not guilty pleaded the Jury found this speciall Verdict viz. That the Testator was possessed of divers goods and them lost and the Defendant found them And knowing them to be the goods of the Testator upon demand denied to deliver them And
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
a Grantee of a Reversion for years be within the Statute or not Gawdy Well enough For the words of the Statute extend to that quod fuit concessum Then it was moved that this was a meer collaterall Covenant between the persons and not concerning the estate of the land and for that not within the Statute Popham sayd Covenant reall which concerneth the estate If nothing be sayd to the contrary intretur Judicium for the Plaintiff afterwards the case was moved again Gawdie It seems the case is Assigne which in regard of his reversion as of a Covenant may well maintain this action by the Statute of 32. Fenner This Covenant is not any Covenant to be performed during the estate or terme of the Defendant but it is a Covenant to doe a thing in the end of his term and for that is not a Covenant of which the Assignee of the reversion shall have benefit by the Statute for that he hath not any reversion depending upon any estate when the Covenant is alledged to be broken for the Defendant when he breaks that Covenant is but Tenant at sufferance Gawdie contra the Covenant is not to doe a thing after the terme determined but at the instant of the determination of the term and therfore it is a Covenant annexed to the State and runnes with the Land and therefore the Plaintiff shall have advantage over it 110. TRespasse and assault was brought against one Sims by the Husband and the Wife for beating of the woman A Child born living but bruised Cook the case is such as appears by examination A man beats a woman which is great with child and after the child is born living but hath signes and bruises in his body received by the said batterie and after dyed thereof I say that this is murder Fenner Popham absentibus cateris cleerly of the same opinion and the difference is where the child is born dead and where it is born living for if it be dead born it is no murder for non constat whether the child were living at the time of the batterie or not or if the batterie was the cause of the death but when it is born living and the wounds appeare in his body and then he dye the Batteror shal be arraigned of murder for now it may be proved whether these wounds were the cause of the death or not and for that if it be found he shall be condemned 111. GOodale against Wyat in trepasse The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee Mortgage and morgaged it to one Woodliff upon condition that if he or his Heires did pay to the Heires Executors or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment and the Seisin thereupon given should be void and afterwards Woodliff infeoffed Goodale of the same land and gave notice of the said Feoffment to Sr J. P. and after Woodliff dyed and Sir J. agreed with the heir of W. to wit one Drew Woodliff to take 30 l. for the said 50 l. but when the 30 l. was to be paid Sir J. paid to the said Drew VV. all the fifty pounds and after such payment made Drew VV. gave back to the said Sr. J. 20 l. parcel of the 50 l. Altam 2. points are in the case The first is to whom the payment of the money as this case is ought to be made and I think to the Feoffee because the Heir hath nothing to do in the land and to prove that he cited fundamenta legum 17. Ass 2. 6. R. 2. Plesingtons case and the case of one Ramsey 19. Eliz. was such a man infeoffed three Ramseys case upon condition that if the Feoffor paid to them or their heires 100 l. that then he might re-enter and after one of the Feoffees dyed and the Feoffor tendred the money to his Heir and adjudged a void tender And also Littleton proves that but tif the condition might be performed to the Heirby payment that ought to be precisely performed for he is now as a stranger having nothing in the land and the Covin between the Feoffor and the Heir must not hurt my Olient for by 4. E. 2. câ—i in vita 22. If cui in vita be brought against a Prior and hanging the action he is deposed by Covin this shal not abate the Writ and it was adjudged in this Court where a man was bound by Obligation to deliver a bond and after he got a judgement upon it and then delivered the bond and holden no performance of the condition because the intent was not performed and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed whereby the Plaintiff granted that if the Defendant made a Recognisance to him that then the Writ of accompt shall be made void and he shewed how he made a Recognisance But the Plaintiff said that after the making and before deliverie of that to him Composition by Executors the Defendant took it from the Clerk and therefore was adjudged to accompt Precisely named and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes if he do license him and then disturb him the condition is broken and the common case of Executors will prove this for if an Executor have but 20 l. assets in his hands and is in debt to two men in 20. l. to either of them if he pay but 10 l. to the one and have an acquittance of him for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other for no compacting between strangers shall prejudice my right per quo c. Payment upon a mâ—rgage good to the Executorrs cleelry Gawdy I think cleerly if the payment had been intirely made to the Heir without collusion it had been good for that he is preisely named for none will deny but that if the payment had been made to the Executors it had been good but the Covin between the Heir and the Feoffor peradventure will make no payment Father enfeoff the son and for that 34. E. 1. Warrantie 88. If the father infeoff the Son to the intent that this land shall not be assets to the Sonne to bar him in a Formdone this Covin will not serve to aid him Covin by administration and 2 3 Mar. the Husband dyed intestate and administration was committed to the wife which tooke another husband and the second husband and his wife as Administrators brought an action of Debt hanging which suit the Sonne of the intestate by fraud and covin between him and a Debtor obtained other letters of Administration to him and the woman joyntly and after judgement the sonne by covin to defeat the execution released to the Debtor all demands and executions and after the Husband and
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I