for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
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
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
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
one of them dyed before partition yet their heirs should hold severally according to the intent of the Will for otherwise the Surviver should hold place which against the will of the Devisor Northens Case A Man seised of a Mannor having all the Goods of Felons de se within the same Mannor and makes a Lease for years of parcell of the same Mannor to a man and afterwards makes another Lease of the same Lands to commence after the determination surrender or forfeiture of the first Lease The first Lessée was a Felo de se the Lord Lessor of the Mannor enters into the lands Leased as forfeit and the second Lessée ousts him and it séemed to Crook that the Entry was lawfull enough Harvey said That the Lessor to whom the Frank-Tenement belonged entring into the land the Frank-Tenement drowned the lesser Estate and the Lease for years is extinct in the Frank-Tenement And it was said That therefore the first Lease extinguisht But if before that the Lord had aliened the Mannor saving to him the liberty and after had entred for the Forfeiture the second Lessée could not enter for it is not any determination of the first Lease Crook said That if the Lessor infeoffed the first Lessée of the Mannor that is a determination of the first Lease and the second Lessée may enter The Bishop of Winchester against Markham THomas Bishop of Winchester brought an Action upon the Statute of West 1 cap. 4. de scandalis magnatum against Markham for that he preferred a slanderous Bill against him before the President of the Councel surmising that he was a covetous and malicious Bishop And the Opinion of the Court was That the words were sufficient to maintain the Action A man seised of a Mannor held in Chivalry devises two parts of it to two men in severalty and all the Remnant he devises to his heirs in Tayle the remainder over in Fée Hutton said It seems to me that the devise is voyd for the third part to the heir for he might devise the two parts by his Testament and he had done all that he could doe by the Statute and then the devise of the third part is out of the warranty of the Statute for it is not reason that by the limitation of the third part the which he could not doe that the devise of the residue which was one time good shall be defeated which Harvey granted but Crook to the contrary for although the two parts were devised by the premisses of the Testament and the third part in the end of it yet in operation of Law the one part is not before the other but the will is intire and took effect in all its parts at one and the same time by the death of the Devisor By which it seemed for the benefit of him in the remainder that he shall take the third part devised to him for if a man seised of three Acres of land held in Chivalry and devises them severally to three severall persons in Fee the heir shall have the third part of every of the three Acres and not the Acre last devised which Hutton granted So also for the benefit of a third person he ought to be judged in the third part as a Purchaser and not of an Estate by descent and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder there he might choose to be in of the Estate limited by the Devise or as heir Hutton I doubt of that for the Book is not agreed 3 H. 6. Wilkinsons Case THe Baron seised of lands makes a Feoffment upon condition to enfeoff him and his wife for life the remainder over to a stranger in Fee Atthow demanded if the Feoffee shall be bound to make the Feoffment before request made by the Baron Hutton and Crook thought that a request ought to be made by the husband And because the particular Estate which is the foundation of the remainder limited to the stranger ought to be made to the husband who is party to the condition and it is his will to take the Estate for life or refuse it and the Feme is at his will But if the Baron dyes then it behooves him to make the Feoffment to the wife without request because she is a stranger to the condition by Act in Law And so where she dyes also before the Feoffment the Estate ought to be made to him to whom the remainder is limited without any request Yelverton But if the condition was to re-enfeoffe the Feoffor and a stranger there it behoves the Feoffee to tender the Feoffment to the stranger for he had not notice of the condition and he ought to be party to all the Estate And by the Livery made to him the Feoffor shall take well enough Waterton against Loadman VVaterton makes a Feoffee to the use of Loadman in Fee to the use of another in Tayle the remainder to his right heirs in Fee Cestui que use in Tayle dyes the first Feoffees enter for to recontinue the use Crook said That when Tenant in Tayle in use makes a Feoffment nothing passes but for his own life For it had been agreed where cestui que use pur vie makes a Feoffment in Fee for it was not a Forfeiture of his Estate because nothing passed but for his life then when the Feoffee dyes during the life of cestui que use in Tayle that cannot be any descent of the Fee but as an Estate for life the which determines by the death of cestui que use in Tayle And all the Iustices were of the same Opinion for the descent was when he had not any Title of entry for by the Feoffment he had a Title during the life of cestui que use in Tayle Wherefore during his life they could not enter nor make continuall claim But if the descent had been after the death of cestui que use in Tayl then otherwise it shall be for they had a Title to enter before the descent and by their laches they are told of that Hutton seemed That the Feoffees cannot enter in that case for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl for by the Feoffment the Estate of the Fee simple which was to their right heirs passes clearly and it is lawfully in the Feoffee Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate where they shall be seised of a Fee simple also and so there shall be two Estate of Fee simple of the same land which is inconvenient But the Iustices said That cestui que use in Tayl had no other remedy unless by the Entry of the Feoffees Harris against Marre A Man seised of certain lands in Fee makes a Feoffment in Fee to his use and afterwards makes his will by which he devises That
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
arrear that the Remainder shall be to a Stranger that Remainder is not good Hutton said that in my opinion my Brother Atthow spoke well and so it was affirmed Bateman against Ford. AN action of the Case was brought against Ford who had called the Plaintiff Thief and that he had stollen from him a yard of Velvet and a yard of Damask The Defendant said that he said that the Plaintiff had taken and bribed from him as much mony as he had for a yard of Velvet and Damask and justifies Hitcham said that the Iustification is not good For the words that he justifies do not amount to so much as to affirm a Felony in the Plaintiff where the Plaintiff counts that the Defendant slandered him of a Felony Hutton said What difference is there when you say that I have bribed your Horse and when you say that I have robbed you of your Horse Henden one may take Goods and yet it is not felony Termino Pasc Anno 4. Car. Regis Com. Banc. Norris against Isham IN an Eject firm by Norris against Isham These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case That an Eject firm cannot be of a Mannor Because that there cannot be an Ejectment of the Services But if they do express further a quantity of acres it is sufficient It was said by Crook Iustice and not denyed That if a Lease is made of 5 acres to try a Title in an â—…eject firm And of the 3 acres he will make a lease But in the other a he will not If the livery be in the 3 acres the other 2 does not pass Part of the Evidence was That the Countess of Salisbury being seised of the Lands in Question makes a Lease of them by words of Demise Bargain and Sale to Iudge Crook for a Month to begin the 29 September habendum a datu and it was deliveted the 3 of September And the same day he bargains and sells the Reversion Davenport Because that no Entry appears by the Lessees by vertue of the Demise he submitted to the Court If there was any such Reversion in the Grantor he bring in possession And this difference was a greed That if one demises Lands for years and Grants the Reversion before Entry of the Lessée The Grant is void As it is in Saffins Case Cook 5. 12. 46. But if a man bargain and sell for years and grants the Reversion before Entry of the Lessee it is good For the Statute transfers the Possession to the use As if a man bargain and sells in fee or for life and the Deed is inrolled The Bargainee is in possession of the Frank-tenement And so it is of a Lease for years which is a Chattell And by Crook In the Court of Wards that very point was resolved Davenport Also there are words of Demise and Bargain and Sale before which the Lessee had his Election to take by which he would As Sir Rowland Heyards Case is But by Hutton and it was not denyed He should be in by the Bargain and Sale before Election For that is more for his advantage Further the Evidence was That George Earl of Salisbury made a Lease of those Lands which were a Mannor And makes a Conveyance from himself for life with divers Remainders and then to the use of the Daughter or Daughters of the said George And the heirs males of thrir bodies the remainder to the heirs of the body of the said George c. and had 3 Daughters to whom the Remainder The first dyed without Issue the 2 d. dyed having Issue male the 3 d. bargains sells all her half part and pur part to Edw. Earl of Salisbury Who now being seised of a third part of the Estate of Inheritance and of the other two parts for his life and the lives of the 3 Daughters suffers a common recovery by the name of the moyety of the Mannor And the doubt was what passed Richardson By that there is not passed but the moyety of the third part Hutton Crook and Yeiverton were on the contrary opinion and said that by that All the third part passed also Yelverton If a man be seised of the mannor of Dale and buys half for life of another in fee and makes a Feoffment of the half of the Mannor The moyety which he had in Fee shall pass And there shall be a forfeiture for no part Which was agreed by the Court. If a man be seised of the third part and grants the moyety perhaps the moyety of the third part only passes But he is seised of all Richardson There are several Estates and moyety goes to that Estate which he had in the Mannor For when I grant more than I can grant that which passes passes Crook I had the third part of a Mannor and grant the moyety of the Mannor all my third part passes But in the Bargain and Sale the words were part et pur part Which as it was passed all And also the Covenant to the Lessor The Recovery was of the half part pur part And by Hutton Crook Yelverton All was intended to be recovered And then the word Moyety carries that tresbien Richardson That Indentures of Covenant much mends the Case Another Question upon the Evidence was Whether when a Bargain and sale is made of Lands And the Bargainee before inrollment makes a Lease for years and afterwards it is enrolled If the Lease now be good Richardson and Yelverton It shall be that although it be after acknowledgement and before inrollment yet it is naught And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case That if one sells in fee and before inrollment the Bargainee bargains and sells to another And afterwards comes an Inrollment That second Bargain and sale is void And an other Question was Pasc 4. Car. Com. Banc. If one makes a Lease for years by Indenture of Lands which he had not If the Iury be estopped to find that no Lease And by Richardson If the finding that no Lease be subject to an attaint But they should find the special matter And then the Iudges would judge that a good Lease And Sergeant Barkley cited Rawlins's Case Coo. 4. 43. to that purpose Crook and Hutton against him And Crook said That it was adjudged in London in Samms case That that is not an Estoppel to the Iury. Which was affirmed by Hutton And that they may find the special matter And then the Iudges ought to find that it is not a good Lease And Hutton said That there is a difference between a special Verdict and pleading in that case For in speciall pleading and Verdict is confost by all parties That he had not any thing in the Lease And then the Iudges gave Iudgment accordingly The King against Clough IN the case of a Quare impedit by the King against Clough before Richardson shewed how the Quare
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
If I grant to a man that if he mary my Daughter he shall have my Mannor of Dale for years the mariage ought to be before he shall have any thing in the Mannor But if it had been that he should have had my Mannor for 7 years if he mary my Daughter Then the mariage is conditional subsequent that if he does not mary I shall have my Mannor again 10 E. 3. 44. The Abbot of Bosneys The difference is there put by Brerewood Trin. 4 Car. Com. Banc. 36. H. 6. An Annuity granted untill he was promoted to a benefice That is conditional from the Defeasance But if it was that the Grantée did such an Act that he should have an Annuity And ex vi termini there is a perfect Estate before the if and the former if is well explained by the last That if there be not issue male then the Estate shall cease 10 Rep. 41. A Condition in its nature is not to precede an Estate As if the Lands be given to a woman for years si tam diu vixerit 35 Assise plo 14. The Case in point of a Remainder which comes to our Case and conteyns both the parts of that difference As it is in Colthursts and Binshams Case The Prior and Covent of Bath leases Land for life the Remainder to W. Si ipse inhabitare et residens esse velit infra praedict terram And if it shall happen that the said W. should mary before H. Then the Remainder to P. And the Question is whether it is a Condition precedent or subsequent Resolved that the second is precedent For that that the Si precedes and for that makes the Estate contingent But for the other Si after the Estate limited Si ipse inhabitare vellet They were the very words of Mountague Chief Iustice It cannot be denyed but that it is subsequent and then goes in Defeasance and the other ought to shew the non-performance of it And that Case is more strong than our Case is For that Estate is by way of Livery not by use For in Case of Livery there he ought to have a time to do the thing And our Case then he should have for life determinable upon the Si c. And that construction of Vses shall be clear by the intent which appears that there ought to be a present Estate Where uses are by Indenture if by one construction the Intent is frustrate and if by another upheld That ought to be taken ut res magis valeat c. The Lord Sturtons Case Where a Lease was made of a Mannor to two Hubbards to have to them and to two others for their lives the first two dye And it was ruled that it was good but to the first two for their lives and not for the lives of the four Because they shall take but in point of Estate See more after Termino Trin. 4 Car. Com. Banc. The King against the Bishop of Canterbury THe King brought a Quare impedit against the Bishop of Canterbury Sir John Hall and Richard Clark for the Church of Marleborough in Northamptonshire And declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6 Iac. by Indenture he covenanted to stand seised to the use of himself and his wife for their lives and to the Heirs of Richard White And after White presents one Boynton and dies and his wife maries with Sir Iohn Hall The first of Iune 6th Iacob by Deed grants proximam advocationem to two to this intent that he might receive of such a Parson that he presented all mony as should be agréed betwéen Grantor and Grantee And that this was done Boynton lying in extremis And then the 26 Ian. 16 Iacob there was a corrupt agreement between Sir Iohn Hall and one of the Grantees That for 200 l. to be paid by the Clark Blundell That the other Grantee should present him And the first of February Blundell pays Sir Richard the mony and the second day he was presented instituted and inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sir Iohn Hall makes a Title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alleged and not answers whether the mony was paid or not But that he is Parson imparsonee of the presentment of But 16 Iacob after such an agreement scil 17 Feb. he was presented by the Letters Patents of the King to this Church and never answers to the Symony And it was held by the Court to be naught and only pleaded to hinder the Execution before the Iustices of Assise If the Tryal went against the Patron Upon a Prohibition ONe libells against another in the Spiritual Court for the tithe of two pecks of Apples and for feeding the Cattel upon the Ground And the Defendant for the Apples answered That there were two Pecks only growing in his Orchard and that they were stollen and never came to his use and for the Cattel that they were antient Milch-beasts and that they growing old were dry And that for a month they depastured with other Heyfars and that after they put them in a Meadow out of which the Hay was carried And afterwards he fed them with hay in his House Atthowe Because that the Answers were not admitted prayed a Prohibition Hutton If Appples are upon the Trees and taken by a Stranger shall the Parson be hindred of his tithe Yelverton If I suffer one to pull my Apples the Parson shall have tithes But if they be taken by Persons not known the Parson shall not have tithes of them Which was granted For they are not tithable before plucking And for that if he suffer them to hang so long by negligence after the time that they are imbessed By Yelverton he shall pay tithes For the second matter it was agreed by the Court and for the depasturing in the Meadow and for the Hay with which they were fedd afterwards tithe shall not be paid Because that the Parson had tithes of them before But if the Question is for the tithes when he went with the other Heyfars By Crook that is no cause to excuse the tithe Harvey If I have ten Milch-kine which I purpose to reserve for Calves and they are dry The Parson shall not have tithe for their Pasture But if I sell them by which it appears I kept them for fatting There tithes shall be paid Hutton agreed That although that there was so small time yet when they went with the Heyfars he shall pay tithes for them Goddard and Tilers Case GOddard against Tiler in a Prohibition Tiler sued for tithes of Milk and Calves upon which modus decimandi surmised A Prohibition was granted viz. That every Inhabitant should pay 4 d. for every Cow and 2 d. for every Calf which they proved that there was never tithe paid in specie But
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
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
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
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
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
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
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
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
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