himself from all rights as concerning himself yet the Donor shall by force of this Statute which at the Common law he could not And if the Donor will release all his right in the Land to the Donee after a discontinuance by Feoffment his release though it will extinguish no right to the very Land yet it will extinguish Rents which proves that the Donee by his Feoffment cannot dismiss himself of all his right but that by the Statute of West his alienation is disabled as to that but that the Donor may avow for the Rent But wheresoever Tenant in tayl suffers a Recovery or levies a Fine the Rents together with the entayl ceases And the answer as to that is imperfect to resemble it to the Case of tenant in see simple doth alien and yet the Lord may avow upon him for the Cases have no resemblance for as Littleton well distinguisheth when Tenant in fee hath departed with his whole Estate he is no more Tenant to the Lord to avow upon though the Lord if he Will may avow upon him for the arrerages and if the Lord after future alienation release to him all his rights in the Land the Release is void to release the Rents and Services in all which it differs materially from the other Case and it is an equall proportion of the Law That when the Lord aliens his signory the Tenant is to he acquainted that all Arrearages may be paid that he may have no after-reckonings for after notice and the Arrerages paid the avowrie vanisheth Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him thereby allowing a right to remain in him against his Feoffment The Case is more difficult because during the Feoffor there can be no motion of that right neither by the Feoffor who hath hard himself nor his Issue because his Right is not yet come yet let me put this Case upon the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice If Tenant in tayl Iointress make a Feoffment the person to whom the land doth belong after her death may enter and hold it according to his right Now till such Entry there is a discontinuance but when the Issue enters he is an Heir intayl et quasi eins per discent But now generally when Tenant in tayl hath made a Feoffment and dies the Heir shall bring a Formedon in the Discender and shall count that descendere debet from that Ancestor that made the discontinuance performam doni and therefore the Writ saith discendit jus it is as much devenit jus It is true that regularly a Feoffment bars all former rights and future rights yet respect to be had to Estrangers Albanies Case 2 Rep. Archers Case 1 Rep. 66. 9 H. 7. And therefore in Archers Case Lands were demised to one fore life remainder to his first Heir male Tenant for life made a Feoffment in fee and died his next Heir was barred of his right for ever by the Feoffment A man seised of Land by right of his Wife makes a feoffment in fee and then the Estate is made back to the Wife she is thereby remitted and her Husband shall never be Tenant by the Courtesie and therefore well resolved if Tenant in tayl discontinue and levy fine with Proclamations is no bar to the Estate tayl Now this Case is irregular because it standeth by Act of Parliament which is able to make the same Act good to one purpose or person and void or voidable to another as the Statute of Ecclesiastical persons and binds the party but is void or voidable against the Successors and shall nevertheless when they enter be in by succession And that there is still a right remaining in the Tenant in tayl appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly and therefore note Cuppledikes Case If Tenant in tayl with divers remainders over make a Feoffment and Feoffee vouch not the Feoffee Tenant in tayl in possession but the first in Remainder by the Statute the Feoffees are not bound but are remitted and Maunsells Case there is cited where one recovery is a bar to 3 several Intayls with double voucher And this is called jus extinguendi which he could not extinguish and discharge if not in him and in his power and therefore there is no cause to frame Abeyances needless and in vain but the Law allows not nor admits not but in Cases of necessity as in the vacancy of Bishops Parsons and other Ecclesiastical persons or the like Remainders to right Heirs upon Freehold abeyances are not allowed but where the original Estate required them or where the consequences of Estates and Cases do require them As for the first in Case of single Corporations Bishops Deans and Parsons which must dye and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living Or Secondly in Case of congruity as if a man gives a Warranty and die his Heir in ventre sa mere may not be vouched but if there be Heir he may be vouched and a Vouchee may take and plead a Release quasi tenens or may lease a Fine to the Defendant of the Land in Question But for Estates that of their own nature and origination creation are perfect and intire as this Estate entayl is the Law permits not vain affected abeyance or fictions by the voluntary Act of the party as this to no good which should preserve a right to serve the Heir and to defraud the King which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession Vses being but a kind of abeyance and shift to kéep the profits to the use and defraud the King and Lords of their Escheats and them that had a right to know against whom to bring their Actions Littleton was confounded in himself when he made an abeyance of totum statum suum and yet made an Estate for life which is condemned in Walsinghams Case by the Iudges Again though fictions take place amongst common person the King is not bound by fictions and therefore the King is not bound by his remainders by recompence feigned upon a common recovery warrant collateral binds not the King but warranty with real and actual Assets nor the King is not bound by Estoppels of his own recitall certa scientia as it is in Altenwoods Case And I hold plainly that as the Land in possession is distinctly and literally given to the King so the right is as literally directly and plainly given to the King by discharge of that ancient right whereof formerly it was bound for when the Statute saith that the King should have the Lands saving the right of all persons other than the Offenders and their Heirs and such as claim to their use it is plain that the eye of the Statute was not
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
the evidence of the party or by others by his procurement in the same manner As it was in an appeal upon a fresh sute at the Common-law It was said by all That although the custome was of Burgage lands in soccage Yet if the Lands came by gift or otherwise to tenure in Chief or service of Chivalry That that now changes not the Custome which alwaies goes with the Land and not with the tenure As the Lands in Gavelkind by the Custome are soccage tenure Yet if they are changed to service of Chivalry the Custome is not altered But that all the heirs shall inherit It was agreed by all That if sir persons compass and imagine to levy war against the King And there is an agreement betwéen them that two shall do such an act in such a Country and the other two another act in such a County And so divers acts by divers in several Counties for to assemble the people against the King And after two do the Act according to their purpose and assemble the people and the other do nothing Yet the Act done by two upon the agreement is Treason in all But otherwise it is if there had been only a compassing c. and not any agreement and afterwards one of them does the act unknowing to the others there it is not Treason but in those that doe the fact and not in the others As it happened in the Case betwéen the King and an other Wilkins against Thomas IT was adjudged upon good advise That if an Infant he impleaded by any precipe of his Lands And loses by defending Now he shall have a Writ of Error And because that he was within age at the time of the Iudgement it shall be reversed And the Infant shall be restored to all that he lost As it happened in the Case of John Ware against Anderson and others in the County of York lost while they were infra aetatem Where it appeared that they appeared by their Guardian admitted to them by the Court to the Grand cape and that they were within age But there was an inspection by Nurses and Friends and they were found not to be within age John Symons against Thomas Symons NOte it was said by all the Iustices That if the Disseisee enter upon the Feoffee or Lessee of the Disseisor That he shall not have an Action of the Trespass for the same Trespass against the Feoffee or Lessee Because that they come in by a Title And at Common law before the Statute of Gloc. No dammages for mean occupation against the Feoffee or Lessee Bromleys Case IF a man steal goods and be arraigned upon an Indictment of felony and the goods are valued to 6 s. and the Iury upon their verdict say That he is guilty of the said goods but that the value was but 6 d. That is a good verdict And the Iustices shall vanish him as for patty Larcenny In the same manner it is If a man be arraigned for willfull murther and the Iury find it but Manslaughter That is a good verdict by all the Iustices Pease against Thompson A Man seised of Lands in see makes a feoffment from that day to divers to the use of his Wife for her life and after to the use of the heirs of the body of the Feoffor The Feme dies and the Feoffor makes a Lease for years and dies Now her Issue shall not avoid that Lease because a man cannot have Heirs in his life So that at the time of the death of the Feme there was none to take by the remainder And for that the Feoffor had the fee the Lease is good and shall bind the Heir As if a Lease be made for life the Remainder to the right Heirs of I. S. and I. S. dies in the life of the Lessee then the remainder is good otherwise not but it shall revert But otherwise it shall be peradventure in such a Case in a demise Hillary 3 Car. Com. Banc. Skore against Randall SKore brought Debt against Randall and recovered and had execution by Elegit and it was found by the Inquisition that the Defendant was seised of the moyety of a Messuage and Lands for life and other Lands in right of his Wife And the Sheriff returns that virtute brevis et deliberat feci meditatem omnium praemissorum cum pertinentiis c. Nec non duo pomaria nec non unum clausum vocat c. And that he had delivered the moyety of the Lands in right of his Wife and his Chattells and recites them and that Elegit was filed And the Question was whether he might have a new Elegit Because that the Sheriff ought to have delivered to him the moyety of the moyetic of the Lands held in Ioint-tenancy So that the Tenent by Elegit might be Tenant in Common for a fourth part with the Ioynt tenants as it was agreed But also by that Delivery he had but in effect the eighth part For the other Ioynt-tenants may occupy the Land delivered with him in Common Richardson said For part of the Lands and goods in right of his Wife the return is good And being filed he cannot have a new Election For if part shall be evicted you cannot have a new Extent upon the Estate But if it had been in the Genitive Case Duorum pomorariorum c. it had been good But it was granted by the Court That the Plaintiff makes a surmise that the Sheriff male se gessit in the Execution of that Elegit and then he may have a new Elegit at his peril c. Edward Thomas against John Morgan et al. EDward Thomas brought an Ejectione firmae against Morgan Kemmis and others and upon Not guilty pleaded a speciall Verdict was given to this effect for Morgan and Kemmis for the other some were dead before issue and the other not guilty and they found a Iudgement dated 12 Sept. 23 Eliz. and deliver'd the 15 Iunii next ensuing Which was between the then Bishop of St. Davids of the one part and Richard Thomas of the other part And it was in consideration of a Marriage to be had between him and the Daughter of the Bishop That before the end of Hillary Term next ensuing he would levy a Fine of all those Lands and all the other lands in Mountmouth and that should be to Thomas Morgan and Roger Sise of Lincoln-Inne And that he suffered a recovery with double voucher to the uses in the Indenture But the words are that the Conusees should stand seised to the use And by Atthowe the Recovery is idle for the uses shall be executed and then there shall be no Tenant to the Precipe viz. That of all the Lands mentioned in the Indenture Morgain and Sise shall stand seised to the only uses hereafter c. that is to say They shall be seised of in part of the Lands and Tenements that is so much thereof as shall amount to the clear value of
W. who died seised of the Lands which descended to his Vncle who was the Defendant Crawley Two things are required to maintain the action Whether the Defendant be heir Secondly who held lands by descent from the Obligor now is heir at Common law And now the heir by the Mannor shall be charged in debt as well as the Heir at Common law Dyer 228. All Brothers in Gavelkind shall be charged 11 H. 7. 12. The heir of the party of the mother shall be charged and so shall Bastardeign 4 E. 3. 14. Heir by Borrough-English And in this Case R. is not heir but by the Mannor Yet he shall be charged 32 Eliz. Dyer 368. by 4 the Iustices And the Defendant here had Lands by descent from the Obligor by which he shall be charged which was agreed by the whole Court But by Richardson It is not sufficient that he be heir in Blood and heir by the Mannor But he ought to have also Land to him by descent from the Obligor But here the Plea is that the Land descended to him immediately And for that you ought to have pleaded that the Obligor died and Lands descended to W. his Son and Heir who died without issue seised of the said Land which descended to R. his Vncle as Brother and heir to the Obligor Quod fuit concessum per totam Curiam Grays Case HEnden shewed cause that a prohibition should not be granted to the Ecclesiastical Court where the case was That one Brother had taken administration and the other would have distribution of the goods of the intestate And said that issues might enforce distribution of it And it is grounded upon Magna Charta cap. 18. Where there is a saving to the wife and the issues their reasonable part And upon the same reason that there may be a division between the issues so there may be between the Brothers but more remote degrees have no distribution And it is hard that one Brother shall have the whole estate and the others nothing And the Ordinary here is the most indifferent man to make distribution Hutton if the eldest son had lands descended to him and the youngest took Administration It is reason that the eldest shall have distribution And by him and Harvey a Writ de rationabile parte bonorum lies only where there is a custom And they said if it should be admitted that the Ordinary should distribute to the Brothers by the same reason he may to more remote degrees And he declared their opinions that many terms before they were against those distributions But they said That now the Ordinary would have an Obligation before they granted a Prohibition and they coloured their Obligation with the Statute of 31 E. 3. cap. 11. That an Administrator shall be count able to the Ordinary And Harvey said that be knew where a man that was rich died and the Ordinary had 600 l. to pious uses before he would grant administration But he said that in the time of Sir Iohn Bennet such an Obligation was questioned and they would not endure the tryal of it Hutton said that now for that that they could not distribute they might invent a new way scil divide the Administration As if the Estate be 400 l. they might grant Administration of the Goods of the value of 100 l. to the other But by him and Harvey That is illegally granted Doctor Wood and Greenwoods Case DOctor Wood libels against Greenwood in the Ecclesiastical Court for tithes of Wool Wood and Apples c. And he shews that he was Vicar there and that the 8 E. 1. there was a composition that the Parson should have the tithes of Grain and Hay praeterea the Viccar should have Alteraginum And for that that those tithes did not belong to the Viccar he prayed a prohibition And Henden objected that the Parishioner ought to set forth his tith and not dispute the Title of the Parson or Viccar But the Viccar ought to come in the Spiritual Court pro interesse suo but notwithstanding that and notwithstanding the Viccar refuses to claim those tithes that always within memory they have been paid to the Parson yet a prohibition was granted And in the end upon this Composition power is reserved to th◠Ordinary if any doubt or obscurity be in the composition to expound or determine it And if he please to encrease the part of the Viccar And there was not power of diminution As by Hutton It is also usual in such compositions And they say that the word Alteraginum shal be expounded according to the use As if wood had always been paid to the Viccar by vertue of this word so it shall continue otherwise if not And so it had been ruled in the Eschequer And upon that president it was ruled accordingly in this Court And by them wood is minuta decima as in the case of St. Albans it was ruled Sir Richard Dorrel against Blagrave SIr Richard Dorrell was Plaintiff in action of debt upon an Obligation of 400 l. against Blagrave who demanded oyer of the condition which was that if Blagrave fulfilled and kept all Covenants and agreements in an Indenture c. between him and the Plaintiff which on his part is to be performed and kept Then the Defendant pleads that he had performed all the Covenants on his part to be performed c. And the Plaintiff shews that Blagrave the elder by his Indenture granted a rent of 20 l. per annum to one that he intended to marry for her joynture which was to commence after his death And that it was out of all his lands in Watchfield And afterwards by the same Indenture he Covenants that he was seised of a good and perfect estate in Fee simple of lands and tenements in Watchfield to the value of 40 l. per annum And he assigns for breach that Blagrave was not seised of an Estate in Fée of the lands and tenements aforesaid in Watchfield Whereupon the Defendant demurred And Heidley moved two questions First that admitting the breach here well assigned yet the obligation is not forfeited And then when the Defendant is bound that he perform all Covenants on his part to be performed and not to the Covenants broken As if Lessee for years rendring a rent at Michaelmas and the Annunciation covenant to pay the rent at a day and afterwards he fail and then a Stranger is bound that he perform all Covenants c. That extends to the failer of payment which is past here in our case And by the whole Court not allowed For by such means all assurances of England should be deluded And now in this case the Indenture and the Obligation shall be sealed and delivered at the same time But if the Obligation had been sealed afterwards at another day yet it was allowed For by Richardson Suppose that the Condition of the Obligation recites the grant c. And the condition is that if the land
open Pound if they dye the Distreyn is chargeable 75 A demand before a Distress if the Demand is out of the Land if not then see 86 Where Damages shall not be mitigated 93 Where a Demand ought to be certain and where not 109 On a Devastavit a Writ de bonis propriis issues 110 If a Debtee mary Debtor what becomes of the Debt see 120 In what Cases A must declare tam pro domino rege quam pro seipso 122 Double delay not allowed 126 E DElay in arrear of Error not hinder Execution 17 If a Sheriff remove his Prosoner out of the County without command It is Escape 34 Where he permits him to go for his pleasure Escapes lies ibid. Ne unque Executor found against him upon a Scire fac shall be only de bonis testat 48 Eject firm lies against Tenant at Will if he leases for years 73 If the Conisee permits the Conisor being in execution to go at large be an Escape 79 Excommunication to strike in the Church 86 If an Executor dies before probate the Goods belong to the Administrator of the first Testator 105 A Rent upon Condition reserved to the Executors goes to the Administrator 115 If a devise be void if no Executor be made 118 Ejectments do not lie of a Mannor 146 In Ejectment he ought to shew the certain quantity of Land 176 Antient Demesn is a good Plea in Ejectments 177 F A Franktenement cannot pass from a day to come 29 Feoffment to the use of a Stranger ought to be tendered to him 56 Denyal of the Rent a Forfeiture 6 A Subject may have a Forest but not a Justice Seat 60 No Clergy for Felony committed upon the high way otherwise upon the foot way 75 In a Formedon he ought to make himself heir to him who died seised last of the E-Estate tayl 78 Felony to take Pidgeons out of a Dove-coat 149 Fieri Facias no Bar to the Capias although part of the debt be satisfied 159 I INdictment quassavit for incertainty 35 Upon a Judgement if the Money be paid to the Attorney it is good but otherwise of a Scrivener 48 Inne-Keeper ought to say in his Action transiens hospitavit 49 If Land be descended to an Infant the Sheriff shall surcease his extent 54 59 Iudgement had against an Infant may be reversed 65 Judgement reversed for want of Pledge 59 Imparlance roll may be amended 143 Infans habeat eandem actionem possessoriam qualiter antecessor 160 An issue mistaken cannot be amended 164 K IF the King enters upon any Tenant a Petition of right lies 29 The King cannot take a man in execution out of Prison to his wars causa vid. 57. L VVHether a Lease to two be determined by the death of one 85 Whether a Grant of Estovers out of another place than was the Lease be good 78 Libell for the Seat in a Church 94 Where upon a Lease the Heir shall be estopped and where not 91 Libell for Tithes of two pecks of Apples 100 M VVHat things go to the making of a Feme sole Merchant 9 Where inter-mariage is but a suspension of a promise 12 An action brought in consideration of a mariage 50 How a Lord shall recover in a Writ de valore maritagii 55 O FOr what Causes an Outlawry may be reversed 93 P IN Partition no dammages are to be recovered 34 Prescription for Sallery of a Vicar is tryable at Common law 33 Prohibition where the thing might be tryed and proved at Common law 15 Where Prohibitions shall be granted and where not 19 27 28 49 50 51 60 68 69. Parson cannot discontinue 88 Prohibition upon words 94 A Protestando is no Answer 104 Symony a good suggestion for a Prohibition 116 Whether a Prohibition may be without alleging a Custom 117 Per minas pleaded 121 R VVHether the word Successive so makes a Limitation of a Remainder good matter and Cases thereupon 22 23 24 25 26 If a Feme sole Executrix of a Term mary him in reversion and dies the Term is not drowned 36 Release of Actions and Sutes substantive bars Debt 15 Nul tiel Record replyed where Recusancy convict is pleaded by the Defendant the Record must be shewn 18 Where a Reversion passes without Attornment 73 Where one Request may serve for several Debts 84 Whether on a Rescous the Action shall be brought by the Plaintiff against the Rescousor or against the Sheriff 95 Where no averment against a Record 107 Where a Feme shall be remitted and what makes a Remitter 110 No Rescous can be of Goods 145 Arrerages for rent upon an Estate for life cannot be forfeit for Outlawry 164 S TO grant a Supersedias there must be execution erronice emanavit alleged 30 Surrender determines the Interest of all parties but a Stranger 51 In Case of Symony the Statute makes the Church void 51 No fee due to the Sheriff for the executing of a cap. utlagat 52 That he might arrest the Kings Servant upon this Writ ibid. Quicquid plantatur solo cedit solo 57 T TRover and conversion brought for a load of wheat 22 A discharge of Tithes by the Parson for years runs with the Land and not with the person 31 Where toll ought to be pleaded in Trover and conversion 49 Trespass against Baron et feme dum sola fuit both shall be taken 53 If Part and Portion a like make joint tenancy or tenancy in Common 55 Trespass brought by Baron and Feme they must not say ad damnum ipsorum otherwise of Jointenants 2 Tithes of Fish due meerly by Custom 13 Tithes where due by the Common law of the Land no Prohibition ibid. Tithes of Limekills 14 The word Equally makes Tenancy in Common 64 No Trespass lies against a Disseisors Lessee 66 Where Tithes of young Cattel 85 93 Tithes for hedging Wood. 18 A Term evicted on Elegit is grantable upon a Statute Merchant or Staple not tithes for milk of Calves 100 No Composition for tithes for life without Deed. 107 No tithes for Estovers burnt in an House 110 V A Special Verdict may be amended according to the notes given to the Clark 52 A Verdict finding matter repugnant or which cannot come in question binds not the Court. 4 If a Scrivener not the party reserve more than just interest no Usury 11 Where the Visne and the return differ it is not good 83 If Defendant dies between Verdict and Iudgement Iudgement will be stayed 90 Whether Beer Brewers are within the Statute and intent of Victuallers 101 W VVAste committed by a Stranger the Lessee dies no remedy against the Seranger 97 Tenant for life and he in remainder may join in Waste 105 The Warden of the Fleet nor Westminster never may take Obligations for Dyet 146 REPORTS AND CASES TAKEN In the third fourth fifth sixth and seventh years of the Reign of the late King Charles c. Ralph Marsh against John Culpepper RAlph Marsh brought an action upon the
good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
tender a Rent seck upon the Land The Grantee cannot demand it upon the Land in the absence of the tenant that it ought to be to the person upon the land For what can the tenant do more than he hath done already And the Statute of Westminster 2. cap. 9. gives ease to the Tenant When the Lord distreins immoderately and unnecessarily For an immoderate distress may be the ruine of a tenant And therefore the Statute says Nec habeat Capitalis dominus potestatem distringendi tenentes in dominico suo dum praedict Tenens offerat ei servitia debita consueta 30. Ass Fitzher N. B. 69. G. If Cattel be distreined damage feasant and tender of sufficient amends is made The Distreiner is liable to damages for the detinue although not for the distress And to the same purpose is Cook lib. 8. 140. Carpenters Case 5. rep 76. Pilkintons Case c. The second question is whether a Bayliff without command of the Lessor when he had refused to take the Rent upon a Lawfull tender may distrein And it seemed that he cannot And the second resolution in Pilkintons Case came to that question That a tender of amends to a Bayliff amounts to nothing And the question upon a Herriot is Whether the Lessor may distrein without declaring his election and it seemed that he cannot For that is no Heriot which may be seized As the Case in one Woodland and Mantles Case there it is certain And because the Law vests it in him immediatly after the death of the tenant But so it is arbitrable and cannot vest before Election and also the Tenant does not know which he ought to provide before and declares his election And it was demanded for that it is not reasonable that he shall be lyable to a distress and cannot by any possibility prevent it 2 Rep. 36. Sir Rowland Howards Case I cannot finde any president where an Avowry is made upon a disjunctive reservation without allegation that he had declared his Election Although that the Lessor in that Case may distrein without declaring his election yet the Bayliff cannot for he cannot justifie as Bayliff for an Arbitrable thing without express command Acceptance of Rent by a Bayliff cannot alter the Tenancy For although that he had power in Law to receive the Rent yet he cannot by Law alter the Tenency by his acceptance without the Lords Command Dyer 222. A Bayliff may demand Rent but cannot enter for non-payment without express command And when he avows he cannot avow any thing which doth not appertain to his office And for that that it is an arbitrable thing which cannot be transferred from the person of the Lessor his Heirs or Assigns that distress is well taken c. If a Writ of Error was brought in this Court and the day of the return is long to delay the party as if it be more than the next Term the Court may award Execution quod nota c. Gammons Case ONe was obliged in the Ecclesiastical Court not to accompany with such a woman unless to Church or a Market overt And afterwards he was summoned to the Ecclesiastical Court to say whether he had broken his Obligation or not And Ayliffe moved for a prohibition which was granted For that that the forfeiture is a temporal thing And it does not become them in the Ecclesiastical Court to draw a man in examination for breaking of Obligations or for offences against Statutes Dame Chichley against Bishop of Ely DAme Dorothy Chichley brought a Quare impedit against the Bishop of Ely and Marmaduke Thomson And declared that Thomas Chichley was seized of the Advowson of the Church of Whiple in Cambridgeshire And presented Marshall and died seized and the Advowson descended to Thomas his son who by Indenture granted it to East and Angel and to their use and the use of the Plaintiff for life And he being seized of the Church it became void c. But Thompson pleads that he is Parson imparsonee ex praesentatione of the King And confessed that he was seized as aforesaid but that he was seized also of other Lands in Capite and dyed and that his son Thomas was and now is within age which is found by Office And so the King by his Letters Patents after avoydance presents Thompson who was instituted and inducted Absque hoc that Thomas Chichley granted by his Indenture to the use of his wife c. And the Plaintiff replies null teil record Vpon which the Defendant demurs Atthowe for the Defendant Although the Plaintiff may have a Writ to the Bishop when his Title is traversed And admit there be no Inquisition Yet the King may present before Office found 20 E. 4. 11. An Advowson being void is not but a Chattel and for that it is vested in the King without any Office And you may see many Cases to that purpose Richardson said If it be not by the Statute 32 H 8. The King may grant Wardship of Land before Office Atthowe Also there is Traverse upon Traverse which should not be Hendon argued for the Plaintiff And he says he is Parsona imparsonata and does not say before the purchase of the Writ For the Incumbent by the Statute of 25 E 3. cap. 7. cannot plead unless he be Incumbent ante diem impetratitrationis brevis unlesse he be Incumbent pendente lite he cannot plead c. Hutton If one be presented instituted and admitted before the Writ and inducted after and before his Pleader He may plead well And it was resolved by the whole Court That the pleading of the Parson was good without the words Ante diem impetrationis brevis And that all the Presidents are according to that But more afterwards c. Alice Readngs Case ALice Reading brought an Action upon the Case against I.S. And de-declared whereas she was a Maiden and had many Suitors the said I. S. said That Alice Reading was with childe and did take Physick to kill the Child Vpon which words divers men refused her And upon not guilty pleaded it was found for the Plaintiff Finch Recorder moved that those words were not actionable For that that it is not said precisely that she took Physick to kill the childe and that the Physick might have such an operation without her desire or purpose and also there is not any Suitor in special named And as it is in Anne Davyes Case 4 Rep. 16. 6. where it ought to be proved precisely to the Iury that such a one was Suitor and refused her But here there was no such proof And he alleged in the Case of Sell which was adjudged Where one declares that he endeavoured to mary a Woman and that she refused him upon slanderous words And it was adjudged against him For that that a Conatus is not sufficient but yet Iudgement was given for the Plaintiff without any reason alleged Cook lib. 4. 16. 6. The Lady Cockins Case The Case of a Recusant
Executor shall have the Land and yet the heir cannot have the rent Harvey In this Court it was the case of one Asham who had a purpose to enclose a Common and one Tenant was refractory wherefore Asham made him a Lease of the soil in which he had Common and afterwards he surrenders it again And it was agreed that the Common was suspended during the term Crook A Lease for years is by the contract of both parties and the surrender may revive the rent but by the surrender the arrearages shall not be revived And suppose that the surrender was by Indenture and a recitall of the grant that is a grant and then it is expresse that by the surrender their intent was that the rent should be revived 3 H. 6. A surrender determines the interest of all parties but of a stranger But it is determined to themselves to all intents and purposes Crook It was one Cooks Case against Bullick intrat 45 Eliz. rot 845. Com. ban It was there adjudged and this diversity was taken If one devise Lands in Fee and after makes a Lease for years of the same Lands to the Devisee to commence after his death it is a countermand of his will if the Lease was to commence presently it is no countermand and the reason is In the first case both cannot stand in Fee the Devise and the Lease But when the Lease commences immediately he may outlive the Lease And this Case is put upon the intents of the parties But Henden This Case is also adjudged If two Tenants in Common are and one grants a Rent charge the Beasts of the other are not distreinable But if a Tenant in Common takes a Lease for years of another his Cattel are discharged again But Yelverton and Hutton doubted that Case and so it was adjourned to be argued c. Thomsons Case THompson libells for delapidations against the Executors of his predecessor and Henden moved for a Prohibition for that that Thompson is not incumbent for his presentment was by the King ratione minoritatis of one Chichley and the King had not any such Title to present for where the King mistakes his Title his Presentment is voyd and he is no Incumbent 6 Rep. 26. Greens Case And Sir Thomas Gawdys Case where the King presented jure praerogat when he had another Title and the present Action was adjudged voyd and whether he is incumbent or not that shall be tryed But by the Court a Prohibition was denyed because that he was now incumbent And the Iudges would not take notice of the ill Presentment of the King But in case of Symony the Statute makes the Church voyd and then the Iudges may take notice of that and grant a Prohibition if the Parson sues for Tythes But if a quare impedit be brought and appears that the King had not cause of Presentment then a Prohibition may be granted which also was granted by all the other Iustices Richard Youngs Case RIchard Young was Demandant in a Formedon and admitted by Prochein amy and the Warrant was allowed by a Iudge and it was certified and entred in Gulstons Office in the Roll of Remembrance but it was not entred in the Roll as the course in the Common Bench is and after Iudgement is given for the Plaintiff And for that Formeden the Defendant brought a Writ of Errour and removed the Record and assigned it for Errour And before in nullo est erratum pleaded And Davenport moved that it might be mended for he said that there was a difference between that Court and the Kings Bench as it is in the 4 Rep. 43. Rawlins Case for the Entry of the Roll was Richard Young came et obtulit se per atturnat suum where it should have been proximum amicum And the Entry in the Remembrance Roll was That he was admitted per Gardianum Richardson said that all the Books are That an infant ought to sue by Prochein amy and defend by his Guardian and so is a Demandant But the Court agreed That that should be amended according to the Certificate As a speciall Verdict should be amended according to the Notes given to the Clerk And Davenport said that he would venture it although it was by Guardian for he held it all one if it were by Guardian or by Prochein Amy. See afterwards more of this The Vicar of Cheshams Case THe Earl of Devonshire had a Mannor in the Parish of Chesham in Buckinghamshire which extended to Latmos where there is a Chapell of Ease and the Vicar of Chesham Libells for Tithes against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed that he and all his Tenants should be acquitted of all the Tythes of Land within Latmos paying 10. s. per. ann to the Chaplin of Latmos And he said that such a Prescription is good as it was adjudged in Bowles Case And a Prohibition was granted Wildshieres Case IT was agreed by the whole Court That for Executing of a Capias utlagatum or for a Warrant to Execute it or for a return of it no Fee is due to the Sheriff c. It was afterwards agreed upon an Habeas corpus sued by Wiltshiere who was imprisoned being under-Sheriff by the Lord Chamberlain for arresting Sir George Hastings Servant to the King upon a Cap. utlagat That he may well doe it upon the Servant of the King for it is the Sute of the King himself and he is sworn to serve it and there is no cause of the Commitment returned but only a recitall of the Commitment unless he was released by the Lord. And the Iudges took exception to that and said that it ought to be unless he can be released by the Law and said if no cause be returned they ought to dismisse the Prisoner And they ordered the Keeper to inform the Lord Chamberleiâ— and that their Opinion was and so was the Opinion of all the Iudges of England That he who procured the Commitment of the under Sheriff ought to pay all the Charges and Expences Quod nota Wentworth against Abraham THe Lord Wentworth brought an Action upon the Case against Abraham upon an Assumpsit and declares that the Defendant 1 die Maii Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage and Croft in which the Defendant had dwelt before promised that he would pay to him 30. s. yearly during the time that he should enjoy it And that he permisit ipsum reentrare and that he should enjoy it a year and an half which ended at Michaelmas 1626. And for that he would not pay 45. s. he c. And upon non Assumpsit pleaded it was found for the Plaintiff And it was moved by Davenport in Arrest of Iudgement for that that the Assize is to pay 30. s. Annuatim then before the Action be determined nothing is due and the Plaintiff cannot divide the
the Feoffees shall make an Estate of the same lands to all his Sons except H. And if all his Sons dye without issue that then the remainder shall be to an Estranger Hutton said That because H. was not excepted in the last clause that he had an Estate Tayl. The Maior and Commonalty of Winchesters Case THe Bishop of Winchester grants to the Maior and Commonalty of the same City That they might Edifie in the vacant places of the same City and inhabit there And that Grant was confirmed by the Dean and Chapter and the Opinion of Hutton was That notwithstanding that Grant the soil is to the Bishop and by consequence the Houses Quia quioquid plantatur solo cedit solo And that grant does not enure but as a Covenant or Licence and not otherwise One Tomkins Case IT was said by the way That if a man be in Execution for the Debt of another man in the Fleet the King cannot take him into his Protection into his Wars out of Prison untill the Debt be paid because that he is in Execution for the said Debt and the letting him out of Prison is to let him out of the Execution which the Law will not suffer But if he was in Execution in the Fleet or other Prison for the Debt of the King there he may discharge him and take him into his Protection or into his wars for he may well discharge his own Debt Skore and Randalls Case THe Case was thus A Lease was made to Robert Chichester for 99 years to him his Executors Assigns or Administrators if Robert Chichester or John Bellew or James Bellew or any of them shall so long live yielding and paying therefore yearly and every year unto the said Randall his Heirs and Assigns the sum of 40. s. at the four most usuall Feasts and also yielding at or upon the death of Chichester Bellew or Bellew his or their best Beast in the name of an Herriot or 40. s. c. Provided that if Bellew or Bellew dye in the life of Chichester no Herriot to be paid after their deaths A Distress is taken upon Skore the Assign of Chichester for his own Beast Ashly The Question is whether his or their refer to Chichester Bellew or Bellew only or may refer to Executors and Assigns of Chichester the Lessée And so whether the Beasts of the Assignée may be taken for an Herriot And it séemed to him not for that that a Reservation ought to be taken strictly 27 H. 8. Comment 171. 21 H. 8. Dyer 45. So that if the words are words of Reservation or of Declaration which he will favour they shall not be extended further than the words c. Bing contrary And he conceived that the Lessee or his Executors before Assignment ought to pay the Herriot and afterwards the Assignee for he who took the benefit ought to sustein the burthen Sic transit res cum onere and none took the benefit but the Assignee or his Executors And that is so strange an intendment that in the Habend it is not named who shall yield or pay but it is intended he who had the land and that Herriot comes in in the render of the Rent and render does suppose a Prender And it is coupled with the reservation of Rent and it may be granted that the Tenant shall pay the Rent And then it immediately followes And also his or their best c. which then ought to be the Beast of him in possession Secondly The other Exposition should be impossible to be performed for none shall be charged but those that are either privy in contract or Estate and the Executors of Chichester are not privy to any and Bellewes are the persons only named by the limitation of the Estate and not any wayes privy It may be said that the Tenant shall pay the Beast of Chichester and so his Beast But no man may give the Beast of another And if it be said That he may buy him then the Property should be altered and it would be his own Beast Yielding his or their Beast It cannot be intended that Bellew or Bellew might yield but the Lease is granted to him his Executors or Assigns then his or their Lessee or their Executors or Assigns And you cannot have a forraign intendment of Bellew or Bellew Then the Exposition is good that the Herriot ought to goe with the Estate Hutton That Reservation is not of a thing that agrees with the Rent but it is of a collaterall matter and it is of a thing against common right and for that it ought to be taken strictly and to be the Beast of him that dyed for if it had been Yielding the best Beast of a stranger it had been good but thâ—…e is Election of the Herriot or of 40. s. Then by Assignment one part is become impossible for the Assignee cannot pay the Beast of Chichester but the Fourty shillings he may pay And because the Distress may be taken for the 40. s. therefore the Avowry is naught Richardson If Chichester dye Tenant then his Beast shall be paid And his Executors if the interest come to them shall cause that it be paid for Chichester made the Contract and that goes to his Executors but not to the Assigns And for the 40. s. that is demandable against the Executors of Chichester Yelverton The case is doubtfull but I incline that the Avowry is not good for the words in the Reservation of the Heriot are speciall If it had been said And also yielding after his and their death his or their best Beast There it would be the Beast of the Lessee his Executors or Assigns But also he had sever'd it from the Rent and had taken out of the course of the Estate for otherwise it concurred and went with the Rent But also he had made it collaterall for it is to be paid after the death of the stranger For his or their cannot be carried but to the persons named by the limitation And the Proviso explains that that it should not be payed after the death of the Assignee But if it had been rendring the best Beast after the death of the stranger It should be payed by him that had the Inheritance But he held for the 40. s. that the Executors shall not pay it Perryman against Bowden PErryman brought a Replevin against Bowden and Brown who made a Recognisance in the name of Bedle. And the Case was thus A rent is granted payable at Michaelmas and the Annunciation And if it be in arrear by 40 daies after any day of payment upon the demand at such a place he might distrain And it is not shewed that he demanded it And for that a demurrer Atthowe it is not requisite to shew a demand for the distress it self is a demand And it was adjudged in this Court If a Rent be granted and that he may without demand distreyn and good without demand And the words if it be
stollen from him and that was sold in a Scriveners Shop Resolved that there was no change of the property For by intendment if a man had Drapery stollen from him he would not seck it there So if a man fells stollen Plate and sells it in the High street under his Cloak It does not change property And if a man sells a thing in a Silkmans Shop in London the Curtain being drawn That does not change the property And now to the principal Case Although he said that he was a Goldsmith and that that was his Shop It is not necessary to be intended that he used the Trade of a Goldsmith in it And that ought to be averred For every Shop is a Market overt for these Causes only which appertain to the same trade Williams against Bickerton VVIlliams brought an action upon the Case against Bickerton for saying He hath forsworn himself and I le teach him the price of an Oath for I will have his Ears cropt And it séemed that it lay For although it was not said at the beginning where it was that he forswore himself Yet by the circumstance it shews that he was in such a place for which it was punishable And M. 29 30 Eliz. Dantsleys Case Thou art a Pillary Knave remember that thou hast deserved the Pillary and the Action maintainable And the Plaintiff paid the Box for his Iudgement Bradyes against Johnson BRadye brought an Eject firm against Johnson and declared upon a Lease of Land habend a die dat Indentur praedict And does not speak of any Indenture before And for that the Declaration adjudged naught And so it was betwéen Bell and March. And this same term between Spark Where it was shewed quod concessit per eandem Indent Where he had not spoke of any Indenture before Lowen against Cocks IN Debt by Lowen against Cocks the Case was thus A man seised of an house in St. Edmonds Parish in Lumbard-street in London devises it to his wife for life the remainder to his Son George and if he dye without Issue then to Iohn and Thomas his Sons equally and to their Heirs The wife dyes George dyes without Issue l. and T. make a Lease for years rendring 5. l. to the one and 5. l. to the other l. devises the reversion to his wife and dyes and for that Rent the Action was brought by the Wife And the Question was if they shall be Ioynt or Tenants in Common For if joynt the devise of the Reversion is void And Secondly If by any Act which makes partition viz. the several Limitations of the rent to them If séemed to Hutton that they are Tenents in Common By reason of that word equally which in it self makes a Division In 33 Eliz. in Boucher against Marsh It was held that where a man devises Lands to three Children equally to be divided they are Tenents in Common And so it was 14 lac in case of Goods And it is clear as it is said If a Man devise 100 l. to two equally the Executors shall pay 50 l. to the one and 50 l. to the other For if that word equally does not make tenancy in Common it shall be all otherwise void And every word of a Will ought to be of some force And in these Cases the word divided was not the force of the matter but only equally And it was the Case of a Shepheard in the Courts of Wards Where a man devises that after the death of his Son all my woods shall remain equally to his Daughters and their Heirs of their bodies And it was there held by Dyer and Manwood that they were Tenents in Common If Parceners agrée to hold by That is sufficient partition And if the one Ioyntenant confirms to the other that does not give any thing but severs the Ioynture Harvey to the contrary First They are Ioint For Ioynture is the greatest equality for every one is seised by himself and the one hath as much of the profits as the other And so equal interest and equal benefit to the Survivor 6 E. 6. in Dyer A difference was taken between a Demise to two when it is said equally divided That they shall be Tenents in Common If equally to be divided they shall be joynt But it was never adjudged 17 Eliz. A man having 3 Sons devises Lands to them equally to be divided The Question was what estate they had For if the younger had not a fee they could not have an Estate equal with the eldest for he had a fee. Resolved that they shall have a fee-simple and also that they shall be Tenents in Common And held that to be divided and divided was all one And it was held also that the word divided makes the Tenancy in Common and not equally 2. As to that reserve of 50 l. to the one and 50 l. to the other clearly being a joynt Lease and a joynt reversion And the Rent as accessary to the reversion and shall not change the nature of it Yelverton They are Tenents in Common A Will shall be construed according to the intent of the Testator And exposition shall be made of the words to supply his intent Tomlins's Case IT was agreed by all That if one sojourn in the House of another and the House is broken in the night and the Stranger robbed in the House without being put in fear of his life In law He that robbed shall have his Clergy notwithstanding the Burglary For it is out of the Statute of 5 6 of E. 6. cap. 9. Dicksons Case AT Sergeants Inne in Chancery lane this Question was debated If a man steal Goods and the very Owner makes fresh sute to take the felon So that he waives the Goods and flies And before the Owner comes the Goods are seised as Goods waived and af-the Owner comes and challenges them Now if he shall have them or they shall be forfeited was the Question And it was held by Harvey and Crook That they are not at all forfeited for that the Owner had done his endeavour and pursued from village And that the Goods shall not be said to be waived but where it cannot be known to whom the property is Hutton Chief Iustice and Yellerton said That Goods waived shall be said those which are stollen and that the Felon being pursued for danger of apprehension waives and flies Now if they are seised before that the Owner comes the property is presently altered out of the Owner in the Lord although that he made fresh sute If that Sute was not within the view of the Felon allwaies But they all agreed if the Felon do as not flye but is apprehended with the Goods That then the Owner shall have his Goods without Question Or if the Owner comes and challenges the Goods before seisure and after the flight of the Felon Harvey said The Statute of 21 H. 8. cap. 13. does not remedy any thing as to the restitution of the Goods stollen But upon
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
years or but for 7 years And it seemed to Hutton that the Lease was confirmed but for 7 years But Richardson was of the contrary opinion and took a difference where they confirm the Estate and where they confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Land for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Sergeants at the Bar. And afterwards Hutton said That that was a good Case to be considered and to be moved again Jacobs's Case A Man was indicted at Newgate For that he feloniously vi armis had robbed a man in a certain Kings foot-way leading to London from Highgate And upon that he was arraigned found guilty And having his judgment he prayed his Clergy for that he was a Clark And the Iustices of Gaol delivery doubted if he should have his Clergy or not Because the Statute if any man be taken upon Felony committed on the High way he shall not have his Clergy But the Indictment was in this case that the Felony was done in alta via reg pedestri So that the words are not alta via regia nec in magna via regia nec in via regia For if that word pedestri had been put out of the Indictment he should not have had his Clergy clearly Some of the Iustices were of opinion that that word added in the Indictment made that he should not have his Clergy The Lord chief Baron of the contrary opinion Perkins against Butterfield HItcham moved to the Iustices If one takes Beasts Dammage feasant and impounds them in an House and leaves the Door open So that the Owner may sée them and give them sustenance And afterwards for default of Sustenance they dye in the Pound Whether he who distreyned them shall be charged or not Hutton when one takes Beasts Dammage feasant in his Land It is at his Election if he will impound them in an open place where the Pound is or in some place in his own Land And if he impound them in the common Pound and the Beasts dye the Owner has no remedy But if they be impounded upon the Soyl where they did the Dammage or in the Houses of him who distreyned them and they dye for want of Food In this he who took them shall be charged For the Common Pound is common to all Persons so that they may come to give them food Otherwise in this case For there the Owner cannot have notice where he hath made his Pound Richardson of the same opinion And I believe that the Owner shall have an action upon his Case against the Owner for the recovery of the value of his Cattell For trespass does not lye For the taking of them and the impounding was lawfull And it is reason that he should recover the value of them by an Action For if the Owner had come to have given them food the Terre-tenant would have an action against him Hitcham The taking of them is made a Trespass ab initio when the Beasts dyed in Pound Wimberly against Taylor et alios VVImberly had entred a Plaint in a Court Baron against two jointly for taking of his Goods And the Plaintiff had removed the Plaint by a Recordare joyntly as the Plaint is And now at this time the Plaintiff counts of taking of Goods severally So that it varies from the Plaint and the Recordare also And Ward moved that the Writ might abate And so it was adjudged by Hutton and the Iustices Wilkinsons Case IT was moved at the Bar If a Man makes a Lease for years to I. S. I. N. and I. D. If the aforesaid I. S. c. should so long live And now one of the Lessées is dead If the whole Lease should be determined or not was the Question And Hutton and Harvey said That it was without doubt that the Lease was determined by the death of one of them But if the words had been generally If the Lessées should so long live and had not named them Then perchance it should have béen more doubtfull The Executors of Tomlins's Case ATthowe demanded this Question of the Iustices A Lease is made for years the Lessée grants over his Estate and reserves to him and his Heirs during the term a certain Rent If the Executors or the Heir of the heir shall have that Rent And it séems to me that it shall enure to the heir well enough As a Grant made by the Grantee of the estate of the same Rent So the Heir shall take by the Grant Harvy May the Heir take Chattel as Heir to his Father And this Rent is but a Chattel And in the Book of Assise there is a Case where Lands are given to I. S. et uni haeredi suo et uni haeredi ipsius haeredis tantum And that was taken to be no Fee-simple Nor no such Estate that the Heir might claim as Heir to his Father But I am in doubt of your Case truly For which I will advise Hitcham Vpon that I have seen a Diversity Where Lands are given to I. S. et haeredi suo et haeredi haeredis I. S. In that Case he shall have a Fée-simple Otherwise it is where Lands are given to I. S. et haeredi suo There no Fee-simple passes Richardson There no Fee-simple passes in any of the Cases And it was said in the Argument That Lessee shall not have Trespass vi et armis against his Lessor Whiddon's Case A Man devises by his Testament to his Daughrer Jane all his Land in D. habendum sibi et haered de corpore suo legitime proc And by the same Testament he devises to his Daughter Anne all his Land in the tenure of I. S. in the County of Hertford Whereas in truth D. was in the County of Hertford and parcel of the Lands were in the tenure of I. S. Whether Jane shall have the Lands in D. in the tenure of I. S. by the first words Or Anne shall have them by the last words Harvey The Testator had given them by his first words to Jane Wherefore he cannot revoke his Gift and give it afterwards to another Daughter But all the Iustices were of the contrary opinion A Case of Executors IF Executors come to the Ordinary for to prove the Will He ought to prove it ex communi jure And that he may do without great examination of the Witnesses But if other Executors come afterwards to prove a later Will Then the Ordinary ought to be circumspect in the probation of that Will and to do it by proofs For that is de mero Jure And it is the better and of more effect by Atthowe Challoner against Ware A Man makes a Lease for years reserving a certain rent payable at the Feast of St. Michael And for default of payment at the said day and by the space of 40 daies after That
the Issue Ganfords Case ONe Ganford was bound in an Obligation of 200 l. to Char. Rogers to pay him 100 l. But that was in trust to the use of Mary Watkins during her life and after to George Powell Powell cannot release that bond neither in Law nor Equity during the life of the Wife For then it destroys the use to the Wife As it was agreed But if it was to her benefit solely The Release is good in Equity Woolmerstons Case ONe libells against Woolmerston for the herbage of young Cattel â—…cil for a penny for every one And Hitcham moved for a Prohibition And said that he ought not to have Tithes If they are young Beasts brought up for the Cart or Plough And so it hath been adjudged As if a Parson prescribe to have Tithes for hedgeing stuff he cannot Because that he preserves the Land out of which he had Tithes And then a Parson libells for Tithes of an Orchard for that that it was a young Orchard And the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards For if the Custome be that he shall pay 4 d. for every Orchard It will reach to the new Orchard And then he libells for a Harth-penny for the Wood burnt in his House Hutton said the Harth-penny c. is more doubtfull For it is a Custome in the North parts to give an Harth-penny for Estovers burnt For which he prescribes to be free of every thing which comes to the Fire And in some parts by the Custome they had pasturage for the Tenth Beast or the tenth part of the Gains which is barrain for the time But he and Yelverton who only were present That no Tithes are due for them without Custome Hitcham they also will have Tithes for a thing before it comes to perfection which would be tithable afterwards But I agrée If he sells them before they come to perfection then the Parson will have tithes But by Hutton and Yelverton There may be a Custom to have every year a penny for them Sed adjournatur c. Viner against Eaton VIner against Eaton Where a Sute was betwéen them in the Spritual Court for striking in the Church which by the second branch of the Statute of 5 E. 6. cap. 4. It is excommunication ipso facto By which he surmised him incidisse in poenam excommunicationis And being granted if c. And Ashley shew'd cause why it should not issue viz. There ought to be a Declaration in the Christian Court of the Excommunication before any may prohibit him the Church Richardson said That their procéedings are not contrary to the Statute But stood with the Statute And it was said by Yelverton It is seen that there ought to be a Declaration in the Spiritual Court But the difference is where it is officium Judicii or ad instantiam partis they will give costs which ought not to be Hutton and Richardson If the party will not follow it none will take notice of it And they proceed to give costs Then a Hrohibition may be granted And if he be a Minister he ought to be suspended for an offence against that Statute And it ought to be first declared and so to excommunication And that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted Fox against Vaughan and Hall SIr Charles Fox was Plaintiff in a Replevin against Sir George Vaughan and Iacob Hall for taking of his Beasts in Rustock The Defendant was known as Bayliff of Tho. Vaughan at the day quod William Vaughan was seised of the place quo c. And being seised the 9th of Maii 10 Iac. by Indenture granted to Thomas Vaughan a Rent of twenty Nobles per annum out of the place in quo c. to commence after the death of Anne Vaugham for life payable at the Feasts of St. Michael and the Annunciation And if the Rent be in Arrear at any day of payment or fourteen daies after the demand at a place out of the Land scil his Capital Messuage in Orleton Then it should be lawfull for him to distrein And he shews that twenty Marks were in arrear And that 22 Iac. 22 Octob. He demands it at Orleton c. And the Plea in Bar was That the Grantor was not compos mentis at the time Vpon which Issue was taken But it appeared upon the evidence that at the time of the Grant Gaudebat lucido intervallo Whereupon it was found for the Defendant And Sergeant Barkley moved in arrest of Iudgement For that the Demand appears to be after the 14 daies And he took a difference where the Demand ought to be made upon the Land But there it may be demanded at any time And the Distress it self is a Demand As it was adjudged 20 Iac. in Skinners Case But otherwise it ought to be out of the Land Henden objected because the Issue was joyned That cannot be shewed Richardson Although there was Issue joyned Yet it appears that you cannot distreyn without demand if there be not actual demand of the Distress alleged It is illegal And for the matter he cited Maunds Case 7 Rep. 28. And he doubted if such a difference would hold Berkley This difference was taken by me before cited But lecto recordo the Demand is not ex tunc petito But if it be in arrear and required at the Capital Messuage upon which he demanded it does not refer to any place Richardson If there be a nomine poenae then it ought to be demanded strictly at a day And when it is to be demanded upon the Land it may be at any time For that that Littleton sayes That a Tenant is intended alwaies present upon the Land But when the Demand is to be made at an other day it is only to give notice and so it is demandable upon the Land Hutton by that exposition if he does not hit the demand upon the day he shall lose his Rent Richardson He had lost his Distress by that day only but not his Rent For if he demand it after upon the Land he may have an Assise Hutton you would make that partly a Rent-seck and partly a Rent-charge Harvey If the Rent be not gone but that he may have an assise Richardson It is a Rent-charge generally by the clause of the distress And for that he may have an Assise which is a remedy for a Rent-charge as well as a Distress Hutton If you may make it a Rent-seck you have lost the Rent-charge for ever If a Grantee of a Rent-charge or Rent-seck brought an annuity Richardson If he proceed to Declaration he had lost the Rent-charge Et adjournatur Note It was said if one comming upon an Attachment in any Court And the other does not put in Interogatories against him He shall be dimissed with costs and may
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
And at length it was adjudged that the Declaration was good Harding against Turpin IT was agréed by Hutton If a Copyholder makes a lease for years to commence at Michaelmas it is a forfeiture presently None gainsaid it Hutchinson against Chester AN action upon the case was brought against Chester And declares how the Plaintiff was in doing of certain businesse for the Defendant The Defendant said to him Do it and I 'll repay you whatsoever you lay out And shews that he had expended 4 l. and does not shew in certain and particular circa quid And for that cause it was held naught Read against Eaglefield IN debt by Read against Eaglefield and others who were Sheriffs of Bristowe The case being that they being Sheriffs took the Plaintiff by a Capias ad satisfaciend and detained him in prison untill the party Defendant and now Plaintiff paid the money to the Sheriff It was held that that was contrary to his warranty which is ita quod habeat denarios hic in curia And for that he did not so he is chargeable to him that was in Execution Stone against Walsingham STone libels against Walsingham in the spiritual Court and he pleads an agréement that for five years he ought not to set forth his tithes but to pay for them 6 s. 8 d. upon which matter a prohibition was granted Richardson you ought not to have a prohibition A lease for tithes ought to be by deed but by way of contract it is good for a year only without deed Vpon the Book M. 26 H. 6. But for 4 or 5 years by parol Such an agreement is not good Richardson May a Parson bargain and sell his tithes happening 4 years after by parols Yelverton It had been so adjudged in many Cases in the Kings Bench and the difference is where it is by way of demise and where by discharge Hutton The reason why it is good for years is for that that the contract moves severally But by way of deuise between Parson and Parishioner it is not good And Weston and Biggs case where it was resolved If there was an agréement made between Parson and Parishioner for discharge for tithes for years it was good without deed otherwise if it be for life Davenport not Richardson Then for more than a year that contract is void And you cannot bargain and sell the profits of beasts which a man hath not in his possession now but for those which he hath in his possession he may sell any profits Quod concessum Intr. 4 Car. rot 670 or 870. Litman against West LItman brought an action upon the case against West for words And he declared he being an Attourney c. and colloquio habito between them concerning his office The Defendant spoke these words He is a Cozener and hath cozened me of 20 s. And Serjeant Henden objected that the words were not actionable For that that they are too general And although they had Communication of his Office As Attorny Yet when the words were general and might be applyed as well to other things as such as touch his place yet for that c. As if one says of an Attorney Thou art a Common Barrettor Is not actionable And it was adjudged where one said to a Wheeleright Thou art a Cousener and hast cousened me of a pair of Wheeles Is not actionable And Sir Wil. Fleetwoods Case One said of him He is a Cousener and hath consened me in entring the Kings Accounts So here he might cousen him of 20 s. twenty ways and not as Attorny Richardson said the words were actionable Some words spoken of some men would bear an Action although the same words spoken of another would not As the Case of an Attorny especially as the Case is laid here And he had spoken of him as an Attorny Then it ought to be taken that he was a Cousener in his profession If one said of an Attorny Thou art a Cousener and hast delivered cousening Bills c. If it had been laid here that he had been an Attorny for the Defendant It would be actionable And this Case is more strong than Birchleys Case in Coo. lib. 4. One said of Chomely Recorder of London That he could not hear but of one side of his head And that was adjudged actionable And that being spoken of an Attorney there it would bear an Action One said in the North Country That one was a Daffidowndilly and adjudged actionable Because that the word there used expresses an Ambidexter being a flower of party colour Hutton said That the action would lye In one Gardleys Case who was an Attorny One said of him he was his Attorny and he had cousened him So of a Goldsmith Thou hast consened me and sold me a Saphire for a Diamond These words are not actionable because that the Goldsmith himself might be deceived in the stone And here these words spoken of an Attorny cannot be otherwise but to disgrace him in his profession An action in the Kings Bench. Thou art a cousening Knave Coroner and adjudged actionable One said of a Lawyer He hath no more Law than an Horse an action lies for both are applyed to his profession Yelverton agreed that the Iury had found that the words were spoken of him as Attorny For they have found the words in the Kings Bench. The Case was An Inne-keeper and an other were in communication and he said to him No man comes to thy House but thou cousenest him And adjudged actionable And so Iudgement was given for the Plaintiff Middleton against Sir Iohn Shelly MIddleton recovers in Debt against Sir Iohn Shelly and had Execution And afterwards Sir Iohn purchases the Land of the Plaintiff And long after the Execution was sued by Elegit and that land extended But before Livery by any the Plaintiff dies Yet the Sheriff returns that he delivered the Land Hutton We will not credit that he is dead But you bring a Writ of error Yelverton agreed The return of the Sheriff Richardson the return of the Sheriff does not prejudice a third person although it concludes the parties And if the Execution was made if the party brings an Ejectione firm Whatsoever the Sheriff returnes his proceedings ought to be proved legal See if the Sheriff deliver possession where the partie is dead if any thing lies It was urged to have a writ of restitution But where the Sheriff gives possession contrary to the rule of the Court. Coventries case IN Coventries case before Ashley brought a Copy of the sentence given in the high commission Court which was that the parties shall be excommunicated and be fined 30 l. and imprisoned Whereupon he prayed a prohibition Richardson If they had gone but to excommunication they had been well Yelverton Iustice they have power by fine and imprisonment in some cases but here where the party grieved may be fined at Common law not For if the party be fined in the high Commission and be
them the word Iudas is material here for loquendum ut vulgus If he had said you have plaid the Iudas with your Clyent without doubt is actionable Which Richardson also agreed and said if one says of an Attorney that hes a false Attorney an action lies Sed adjournatur Hawes's Case IN Dower the Defendant pleads ne unque seise que dower It was found by the Iury that the Husband was seised and died seised and assess dammages to the Plaintiff generally And it was moved in arrest of Iudgment because that the Iurors did not enquire of the value of the land and then ultra valorem terrae tax dammages as much as is the usual course as the Prothonatories informed the Court. For the Statute of Merton gives dammages to the Wife scil valorem terrae And the Statute of Glouc. cap. 1. gives costs of sute But by the Court Iudgement was given for the Plaintiff although the dammages are given generally and certainly intended for the value of the Land And there might be in the Case a Writ of Error Hil. 5. Car. Com. Banc. Simcocks against Hussey SImcocks brought waste against Hussey for cutting 120 Oakes and the Iury upon nul wast pleaded found him guilty of cutting 20 in such a field and so sparsim in other fields which was returned upon the Postea but nothing said of the other 20. where in truth the Iury found him not guilty of them but the Clark of Assizes took no notice of that By the Court If the Clark had taken notice there might have been an amendment by them But here they gave direction to attend the Iudge of Assize to examine the truth of it And if they could procure the Clarks to certifie the residue they would beleeve it Dower DOwer was brought for the moiety of 45 acres of land and for part non tenure was pleaded which was found for the Plaintiff and for other part Ioyntenancy which was after imparlance Whereupon the Plaintiff demurred and Bramston prayed Iudgement and answered farther for that that it was after imparlance and cited one Doctor Waterhouses case in Dower where it was adjudged that non-tenure after imparlance was not a plea And by the same reason shall not joyntenancy be 32 H. 6. 29. And by the Court it was adjudged quod respondeat ouster But otherwise it would have been if there had been a special imparlance tam ad breve quam ad narrationem And it was prayed to have Iudgement upon the verdict And by the Court it was said that they should have Iudgement And that there might be two Iudgements in this action for the several parts of the land Sir Francis Worthly against Sir Thomas Savill HE brought an action against Sir Thomas Savill for batterie In which it was found for the Plaintiff in not guilty pleaded and 3100 l. damages was given Which verdict was last Term. And in this Term it was shewn to the Court that the Declaration entred upon the imparlance roll was without day moneth and year in which the battery was committed Which was observed by the Atturneys and Counsel of the other part and that a blank was left for it But afterwards in the time of this vacation in the night time the Key of the Treasury being privily obtained by a false message from Mr. Brownlow Prothonotary the record was amended and some things were interlined to make it agree with the Issue Roll which was perfect And these things were affirmed by severall affidavits Whereupon Atthowe moved that those parties privie to this practice might be punisht and that the record might be brought in Court and made in statu quo prius Crew on the other side demanded Iudgement for the Plaintiff for whether there is an imparlance Roll or no. If none then the matter is discontinued and that ayded by the Statute If you will have an Imparlance Roll then I think these omissions are amendable by the Clarkes although after verdict Harvey The Course of the Court is for I am not ashamed to declare that I was a Clark for 6 years in Brownlowes Office If the Declaration was with a blank and given to the Attourney of the other side if in the next term the Atturneys of both sides agrée upon the Issue Roll Vpon this agreement the Clark for the Plaintiff had always power to amend the Declaration Because that by the acceptance of the other side there was an assent Richardson The imparlance Roll is the original Roll and ground for the Issue Roll which is the Record of the Court And I agrée that it is reason to amend the nisi prius Roll. Harvey gave an excellent reason whereupon the Pregnotaries were demanded what was the course of the Court Brownlow Gulston and Moyle all agréed that the course is That an imparlance roll may be amended if no recordaâ—uâ— That if no recordatur or rule be to the contrary and a Declaration delivered with blanks the Clarks have always amended it And Brownlow shewed where the book of 4 E. 4. was objected to the contrary and he had séen the Record and there was a recordatur granted Richardson Debt is brought against one as heir and there is omitted ad quam quidem solutionem haeredes suas oblig shall that be amended And it was said by all the Pregnotaries it should And Moyle said that in 13 Iac. there was a case between Parker and Parker upon a trover and conversion and the Imparlance Roll was entred with a blank as here and upon non-guilty pleaded it was found for the Plaintiff and I fear it will be mended By the Court this difference will reconcile all the books scil where there is a recordatur and where not It was agreed by some one of the Iudges that a recordatur might be granted out of the Court. And so Brownlow cited a president Pas 4 E. 4. rot 94. to the same purpose And so Iudgement was given for the Plaintiff Starkeys Case before IVdge Yelverton now being in Court the Counsel of the Plaintiff prayed his opinion and shewed the reasons given before to have Iudgement And Yelverton said that the word Iudas here did not bear an action It was two of the Apostles names and the betrayer Iudas was a Traytor to Heaven and therefore this reason should not be drawn to earth to cause Actions between men But for the word common Barrettor being spoken of a common person is not actionable until conviction he is not punishable for it If he called him convicted Barrettor Convicted Barrettor to a common person is actionable it is actionable But being spoken of an Atturney or an Officer of Iustice it is actionable Littleton tells us what they are they are meant stirrers up of unjust sutes which is a grand offence in an Atturney And they put the case of Sir Miles Fleetwood One called him the Kings Deceiver which was adjudged actionable and that it ought to be understood of his Office And for that in
the principal case Iudgement was given for the Plaintiff Iohn Costrell against Sir George Moor. JOhn Costrell and Ioan his wife brought an action upon the Case against Sir George Moor and declares That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan A man having land in right of his wife in trust they cannot both joyn in the action but the Husband only and that the said Iohn and Ioan and all their predecessors time out of mind c. had common in such a waste which is the soyle of the Defendant pro omnibus a veriis levantibus cubantibus c. and the Defendant had inclosed 20 acres of the said waste and made a fish pond of it there so that they could not take the profits as before with their cattel Vpon the general issue pleaded it was found for the Plaintiff And Crawley moved in arrest of Iudgement For that the prescription is ill made and that the Husband and wife cannot joyn in this action but the Husband might bring the action only And also where it is said that they cannot take the profits with their Cattel when the wife cannot have Cattel during the Coverture Richardson said the prescription is good and it would have been better if he said all those whose estate the wife had But this tantamounts and is as well in substance for that goes meerly to the estate of the Wife Trin 5 Car. Com. Banc. which was granted But for the second I doubt if the Wife may joyn in this Action If a man be seised in right of his Wife he may have Trespass for Trespass done upon the Land there the Wife shall not joyn for she cannot have the dammages if she survive And there is no difference between this Case and the principal Case It is Trespass on the Case and for the personal and temporary trespass and such for which the Wife should have the Action after the death of the Husband unless that the Defendant continue the Pond c. I agree if Battery be done to the Wife they both shall joyn for the Wife might have had the Action if she survived And so it was resolved in the Cooks of Grays-Inns Case they might joyn For the wrong was done to the Wife But here the Husband only lost the benefit of the Common and the wife could not take it with her Cattel For she had not any Cattel during the coverture And Yelverton also was of the same opinion But Hutton said In a Quare impedit the Husband and Wife shall joyn And yet the avoidance goes to the Executors of the Husband Hitcham In an Ejectione firm or ravishment of Ward the Feme joyns quod concessum fuit Yelverton said that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife for dammages shall be recovered in lieu of profits Moor against Everay MOor and his Wife brought dower against Everay To parcel he pleads non tenure and to the other parcel ne unque seise de dower which goes to the tryal and there the Tenant makes default and upon that a petit cape is awarded and now at a day in bank one Lumbard prays to be received upon the Statute of Gloucester to save his term c. But Henden alleged to the contrary First That Statute is not to this purpose in force by the Common law Tenant for years cannot falsifie 6 Rep. Periams Case Then because it was hard that a recovery should be had by Covin and the Lessee for years without remedy for his term the Statute of Gloucester was made which gives a receipt for the Lessee for years after the Statute 21 H. 8. was made which gives the Lessee power to falsifie The Common experience of the Court is If an habens facias seisinam issue there is not any saving of the term of Lessee for years Hil. 39 Eliz. in Bests Case A receipt was moved and denied For if the Lessee had a good term he might have trespass for entry upon him Littleton though says in his Chapter of Tenant for years that he shall be received Hutton The Statute of Gloucester aids them only who knew and had notice of the Recovery 21 H. 8. aids them who had not notice of it And it is better to prevent mischief than to remedy it after and as to that a final Bar. I was of Counsel in some Cases where the Lessee was received And if the Lease be not good the Lessor may avoid it by Plea scil Traverse or Demurer And I remember the issue taken upon the Term and found against the Termor And it was Mr. Fulhams Case against Sergeant Harris Sed adjournatur Fawkenbridges Case IT was moved he having Iudgement before to have costs where the Court doubted because that it was a special Verdict and the Statute of 23 H. 8. cap. 15. says That where a Verdict is found against the Plaintiff But in a special verdict it is neither found for or against But it may be said that when it is adjudged against the Plaintiff then it is found against him And 4 Iac. cap. 3. which gives costs in an Ejectione firmae had the same words if any verdict c. But it may be answered That as in Demurrer no costs shall be recovered no more in a special verdict For that the Plaintiff had a Prohibition causam litigandi And the Statute may be intended of vexatious Sutes c. But Brownlowe said that he had many times given costs upon the Statute of 4 Iacob For that the Prothonotaries were commanded to search Presidents The University of Cambridge THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market and that they had power by their Office to make orders and execute them And they made an Order that no Chandler should sell Candles for more than 4 d. ob the pound And because that one R. sold for 5 d. he was imprisoned and a Prohibition granted But it séemed that an Habeas corpus was more proper For he was not presented First For that they could not imprison without course of Law Secondly Because that as Clarks of a Market they have nothing to do with but Victuals and Candles are not Victuals The Sheriff of Surrey against Alderton THe Sheriff of Surrey returns a rescous against one Alderton That whereas there was a Iudgement had against B. and a fieri facias awarded upon that by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona catalla ipsius did levy and had them in his custody No rescous can be of Goods and one Alderton rescued them from the Bayliff contra voluntat ipsius Rich. The return is naught First For that that it is rescued from the Bayliff Secondly It is of Goods whereof a rescous cannot be returned Yelverton contrary in
But by the Court it is after verdict For the Original for part cannot be applyed to this Declaration and it shall not be taken as the Original for it And then there is no Original which is aided by the Statute and so it had been frequently ruled By Harvey it was one Blackwells Case here where the Writ was bona catalla cepit and the Declaration was viz. unicum discum plumbi And that was ruled to be no Original The Wife of Cloborn against her Husband THe Wife complains against her Husband in the Spiritual Court Causa saevitiae For that he gave her a box on the ear and spat in her face and whirled her about and called her damned whore Which was not by Libel but by verbal accusation after reduced to writing The Husband denies it the Court ordered the Husband to give to his Wife 4 l. every week pro expensis litis and Alimony Barkley and Henden moved for a Prohibition The Sute is originally Causa saevitiae and as a Case that they assesse Alimony And now for a ground of a Prohibition It was said that Cloborn chastised his wife for a reasonable Cause by the Law of the Land as he might which they denyed and said that they had Iurisdiction in these matters de saevitia c. And afterwards that the wife departed and that they were reconciled again And then that reconciliation took away that saevitia before as reconciliation after elopement Richardson It was said here that the Sute was now held and without Libel but that is no ground of a Prohibition for he proceeded upon that matter reduced in Articles and we cannot grant a Prohibition if they proceed to their form For we are not Iudges of their form But if they will deny a Copy of the libell a Prohibition lies by the Statute And you you 'l say that an Husband may give reasonable chastisement to his Wife and we have nothing to do with it But only that the Husband may be bound to his good behaviour by the Common law And the sentence in causa saevitiae is a mensa thoro and we cannot examine what is Cruelty and what not And certainly the matter alleged is Cruelty For spitting in the face is punishable by the Star-chamber But if Mr. Cloborn had pleaded a Iustification and set forth a Provocation to him by the wife to give her reasonable castigation Then there would be some colour of a Prohibition Henden We have made such an Obligation as it is absolutely refused Hutton Perhaps he is in contempc and then they will not admit any Plea As if one be out-lawed at Common law be cannot bring an Action But the Plaintiff they advised to tender a Iustification and if they refused it then to move for a Prohibition Bachus and Hiltons Case HUtton cited one Bachus and Hiltons Case in the Kings Bench Where a Bill was of Lands 17 Maii and the Declaration 20 Mail which was after and so the Original before the trespass and after verdict Because it was mistaken Iudgement was stayed Mortimores Case AMhurst desired the opinion of the Court in this Case Copiholder is ousted and so the Lord disseised and the Copiholder releases all his right to the Disseisor and dies his Heir enters and brings trespass against the Disseisor who pleads his Franktenement And by the Court the Release is clearly void the Disseisor never being admitted Copiholder But they ought not to teach him how to plead And Hitcham cited a Case in which he was of Councel Two Copiholders in fee the one release to the other by Deed. And that was adjudged a good Release which was now also agreed by the Court. Earl of Mulgrave Ratcliffes Case Intratur Exchequer Chamber 18 Iac. Rot. Argued by Sergeant Atthowe D' e Mercurii post festum Sanctae Margaret 17 Edwardi 2d Iohn de Malo lacu gave to Peter de Malo lacu and the Heirs of his body the Castle and Mannor of Mulgrave by divers mean conveiances the Land came to Sr. Ralph Bigod 11 Ian. 6 H. 8. Sr. Ralph Bigot made a Feoffment to William Euer and others to the use of his last Will and died and the right of the Land together with the Entayl and the use also after the Will performed descended to Sr. Francis Bigot 10 Dec. 28 H. 8. Sir Francis Bigod made a Feoffment to Iohn and others to the use of himself and Katherine his wife and the Heirs of their bodies and they had issue Ralph Bigod and Dorothy then the Statute 16 H. 8. cap. 13. for forfeiture for treason is made and 26 Maii 29 H. 8. Sir Francis Bigod was attainted of Treason committed 7 Ian. 28 H. 8. and was executed and Katherine survived H. 8. by the special act of attainder of Sir Francis Bigod and his forfeiture is made 4 Novem. E. 6. Ralph Bigod Son of Katherine and Sir Francis was restored in blood and died without issue Dorothy maried Boger Ratcliff and they had Issue Francis Ratcliff 5 Octob. 8 Eliz. Katherine died and Francis Ratcliff died having issue Roger Ratcliff 1 Febr. 34 Eliz. Francis Ratcliff Roger Ratcliff entred 11 Aug. 33 Eliz. Office found for the Quéen 28 April 34 Eliz. The Quéen by Letters Patents granted the same to Edward Lord Sheffield and the Heirs males of his body begotten at the rate of 9. 18. 3 d. Roger Ratcliff upon the whole matter sued his Monstrare de droit in the Exchequer and had Iudgement for him and Writ of Error being brought by the Lord Sheffield to reverse the Iudgement formerly given in the Case Points 2. First whether Francis Bigod who had Estate in special tayl in possession had also any right in the antient entayl left in him at the time of his Attainder or whether it were not in abeiance in respect of the Feoffment made 21 H. 8. and whether that right did accew unto the King by the Attainder of Francis and the general Statute of 26 H. 8. cap. 13. or by the particular act of Attainder of 31 H. 8. and I am of opinion that there was a right of the old entayl remaining in him and that the King ought to have it together with that estate in special entayl in possession freed and discharged thereof as long as the Estate entayl endured In the handling of this point I shall occasionally speak of rights of Actions real given or not given to the King upon Attainder of Treason by force of Statute 26 of H. 8. or of the general Statute of 33 H. 8. for this Statute is so near of kin to that conservation of antient Rights that we must foresee that we do not in the Iudgement of this Cause prejudice the Statute ex aliqua Secondly Whether there be a Remitter in the Case after Attainder of Treason and if there be such a Remitter here when the Remitter begins and in whom whereas nothing hath as yet been distinctly said I am of opinion that there
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another
all was false and written of set purpose and that for that the Lord displaced him it would be more difficult But for any thing as appears to us there is not any thing for which he might be justly displaced And also it was not said in the Declaration that the Defendant had any fee for his Office And Richardson also said That if it had been found as my Brother Hutton said Yet it is known that it should be more strong But then I conceive that the Action does not lye For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office And by the Court Although the Declaration be laid falsely and maliciously Yet if the words be nâ—…t scandalous yet it ought to be laid falsely and maliciously And he said that it was adjudged in this Court Where an Action upon the Case was brought for conspiracy to indict a man and upon the Indictment the Iury found Ignoramus There the Indictee was clear And yet for the conspiracy the Action laid which was Blakes Case And it was said by Hutton If I have Land which I intended to sell and one came and says maliciously and on purpose to hinder my sale that he had a Title to it That that is actionable Which Harvey agreed without Question if he does not prove that he had a Title If one says of an Inue Go not to such an House for it is a very cutting House Agreed by the Court not Actionable Mich. 5 Car. Com. Banc. And Iudgment was given quod querens nil cap. per bil Pasc 6 Car. Com. Banc. THis Term there was nothing worthy the reporting as I heard of others For I my self was not well and could not hear any thing certum referre c. Trin. 6 Car. Com. Banc. Tomlins's Case IF the Husband makes a Feoffment to the use of himself for life the Remainder to his Son in tayl By the Court That is a dying seised in the Husband For the Wife shall have dammages in Dower And so it was adjudged in the Lady Egertons Case But the Husband ought to dye seised of an Estate tayl or Fée simple which might descend to his Heir Mich 6 Car. Com. Banc. MEmorandum That Sergeant Atthowe died at his House in Northfolk who was a man somewhat defective in Elocution and Memory but of profound Judgement and Skill in pleading NOte it was was said by Hutton and Davenport That if an Inferiour Court prescribe to hold Pleas of all manner of Pleas except Title to Freehold That that is no good prescription For then it may hold Plea of Murther which cannot be c. Note It was said by Richardson chief Iustice that if two conspire to indict an other of a Rape and he is indicted accordingly If the Iury upon the Indictment find Ignoramus Yet that Conspiracy is not punishable in the Starchamber Father purchases Lands in his Sons name who was an Infant at the age of seaventeen years and he would have suffered a Common recovery as Tenant to the Praecipe But the Court would not suffer him Rawling against Rawling THe Case was thus A man being possessed of a Lease for 85 years devises it as follows viz. I will that R. Rawling shall have the use of my Lease if he shall so long live during his life he paying certain Legacies c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease in manner and form as R. Rawling should have it Crew said That after the death of R. Rawling and Andrew the term shall revert to the Executors of the Devisor But by the Court not But it shall go to A. Rawling the last Devisée and in manner and form shall go to pay Legacies And by all a strong Case And together with the Lease be by strong words The Archbishop of Canterbury against Hudson of Grays-Inne THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne in an Information upon the Statute of E. 1. of Champerty Henden Sergeant for the Plaintiff moved upon the Plea that it was insufficient Because that the Defendant had prayed Iudgement of the Writ when he ought to have pleaded in Bar For the Statute of E. 1. had appointed a special Writ in this Case as the Defendant said But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery which before was only by sute at Common Law Richardson chief Iustice said That the Plea is not to the matter but to the manner for the Plaintiff had mistaken his Action For the Action is given to the King only And therefore said to Henden demur if you will The Case was that the Defendant purchased Lands in anothers Name hanging the Sute in Chancery for it And after rules for Publication was given in the Cause Malins Case AYliff moved in arrest of Iudgement in an action of Battery c. And the cause that he shewed was An issue mistaken cannot be amended It was brought against William Malin of Langlee and in the Record of nisi prius It was William Langley of Malin But by the Court it ought to be amended For it is a misprision apparently of the Clark For the whole Record besides is right And the Record of nisi prius ought to be amended by the Record in the Bench according to the 44 E. 3. But if the issue had been mistaken otherwise it had been Arrerages for rent upon an estate for life cannot be forfeit by Outlawry NOte That it was agreed by the whole Court That arrerages of rent reserved upon an Estate for life are not forfeited by Outlawry because that they are real and no remedy for them but a distress Otherwise if upon a Lease for years c. Hill 6 Car. Com. Banc. MEmorandum that this term Sir Humfrey Davenport puisne Iudge of the Common Bench was called into the Exchequer to be Chief barron Browns Case AN Information upon the Statute of 5 Eliz. pro eo that one Brown was retained an Apprentice in Husbandry until the 21 year of his age and that he before his age of 21 years went away And the Defendant absque ullo testimonio detained him contra formam Statuti And by Hutton and Harvey Iustices only shewed the branch of the said Statute which says And if any servant retained according to the form of this Statute depart from his Master c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry until after the time of his reteiner be expired shall depart That is not to be intended of an Apprentice in Husbandry but of an hired servant For the Statute did not intend to provide for the departure of an Apprentice because that an Apprentice ought to be by Indenture And then a writ of Covenant lies upon his departure to force him to come again And by the Common Law an