Brough against Devison 143 58 Forfeiture of Copyhold 143 59 Lease for years Knevit against Poole 143 60 Prohibition Rame against Patison 145 61 Partridge against Nayler 145 62 Forfeiture 146 63 Quare impedit Lord Zouches case 146 64 Assumpsit Thornton against Kemp. 146 65 Prohibition Sherington against Fleetwood 147 66 Trust VVildgoose against VVayland 147 67 Reservation of Rent 148 68 Action for a Robbery 148 69 Outlary reversed 148 70 Fine with proclamation 148 71 Feoffment to a use 148 72 Tenure and Wardship 149 73 Devise 149 74 Prohibition Benefield against Finch 149 75 Oyer of a bond 150 76 Ejectione firme Beckford against Parnecole 150 77 Writ of Error Harecourts case 151 78 Trover Easts case 152 79 Writ of Error Wiseman against Baldwin 152 80 Assumpsit Pine against Hide 154 81 Prohibition Jacksons case 154 82 Trover and conversion 155 83 Assumpsit Chessins case 155 84 Assumpsit Dixon against Adams 156 85 Ejectione firme Ross against Ardwick 157 86 Trover Harding against Sherman 158 87 Debt upon a bond Paytons case 158 159 88 Trespass quare clausum fregit 159 89 Debt upon a bond Allen against Abraham 159 90 Account Huntly against Griffith 159 91 Scire Facias Lady Gresham against Man 160 92 Prohibition Ramsies case 161 93 Account 161 94 Indictment Hom's his case 162 95 Fine of Lands 162 96 Ejectione firme Robins against Prince 162 163 97 Scire facias Hoo against Hoo 166 98 Mackerell against Bachelor 168 99 Information Goodale against Butler 169 170 100 Scire facias Foe against Balton 170 101 Contra formam Collationis 111 102 Ejectione firme Cootes against Atkinson 171 103 Action for words Pollard against Armeshaw 172 104 Elegit Palmer against Humphrey 172 105 Covenant 173 174 106 Debt upon a bond Robinson against May 174 107 Audita querela Hobs against Tedcastle 174 175 108 Covenant Matures against Westwood 175 109 Assault and battery Sims his case 176 110 Trespass Goodale against Wyat 176 111 Ejectione firme Sayer against Hardy 179 112 Rent Walter against Walter 180 113 Debt upon an Escape 108 114 Vtlary after Judgement 108 115 Fine levied Sir Henry Jones case 181 116 Evidence Tutball against Smote 181 117 Debt Richard Thornes case 182 118 Debt Humble against Glover 182 119 Evidence Maidstone against Hall 182 120 Speciall Verdict Dickins against Marsh 182 183 121 Covenant Cole against Taunton 184 122 Grant 184 123 Error Brewster against Bewty 187 124 Trespass Pannell against Fen 185 125 Repleuin Second deliverance 185 126 Action for words Stitch against VVisedom 185 127 Accessary to Felony 185 128 Debt Thin against Chomley 186 129 Lease Harbin against Barton 185 103 Action for words Baddocks case 186 131 Debt upon a bond Staples against Hankinson 187 132 Error Boyer against Jenkins 187 133 Grant over 187 134 Ejectione firme Thomas against King 187 135 Trespass Oland against Bardwick 188 136 Error Ascough against Hollingworth 188 137 Trespass Bodeam against Smith 189 138 Name of purchase 189 139 Perjury 189 140 Obligation 190 141 De Term. Pasch Anno Elizab. Reg. xxviij 1. WAst war brought by Constance Foster Wast and another against Lessee for years in effect the case was such A man makes a Lease of certain Lands 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods the Lessee cuts down Trees and he in Reversion brings an Action of Wast and by the opinion of the Court the Lessee is not punishable in Wast for they were never let and therefore the Plaintif is driven to his Action of Trespass at the Common Law 2. THe Sherif returneth in a Writ of Right four Esquires to make the pannel Return and doth not say that there be any Knights it was sayd by the Court that he ought to return them which be and that there be no more 3. WAst was brought for digging in Land Wast and taking away Okes the Defendant pleaded in bar That the Queen by her Letters Patents under the Great Seal of England granted unto him that he might dig for Mines of Cole in the Land and prayed that it might be entred verbatim and a Grant under the Seal of the Exchequor was entred whereupon the Plaintif Demurred Now came Walmisley and would have amended it and by the opinion of the Court he cannot amend it after the Demurrer be entred Demurrer but Judgement shall be given for the Plaintif if he shew no other matter 4. A Man seised of Lands in Fee Devise and sale by Executors Deviseth to his Wife for life the Remainder to his Son in tayl and if his Son dye without issue of his body that then the Land shall be sold by his Executors and maketh two Executors and dyeth the Wife dyeth one Executor dyeth the Sonne dyeth without issue the other Executor selleth the Land and Gawdy the Queens Serjeant moved whether the sale be good or no and it seemeth to him that the sale is good and vouched the Case in 30 Hen. 8. Brook Devise 31. And now lately it was adjudged in the Kings-bench where a man did Devise his Lands in tayl and for default of such issue that the Land shall be sold by his Sonnes-in-law and dieth having five Sonnes-in-law the one dyed the others sold the Land and this was adjudged a good sale Anderson It seemeth the sale is not good for if one make a Letter of Attorney to two to make Livery and Seisin Livery if the one dye the other cannot doe it So if one grant the Office of Stewardship to two the one of them cannot hold Court alone Stewardship And if one of them may sell to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell Windham The Statute will not prove the case but it seemeth the sale to be naught And there is a difference where one giveth an interest to two and when he giveth but an authority Interest for an interest may survive but an authority cannot Authority Rodes to the same intent and cited M. 4 Eliz. fol. 219. a. 177. 210. 371. 5. BAttery Battery by Webster against Pain the Action was layd in London and in truth the Battery was committed at Uxbridge in Midlesex the Defendant pleaded that such a day and year at A. in the County of Huntington 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him and the hurt c. absque hoc that he is guilty in London Snag moved that the Traverse should not be good Anderson Will you have him to say absque hoc that he is guilty that he ought not for by the speciall matter he hath confessed the Battery and you will not deny but that if his Plea be true he hath good cause to bar the
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
the Land should pass by this words Appurtenances For allthough that in late Books Lands shall not pass by this word Appurtenances yet this is good authority to prove that they shall pass as 7 Hen. 5. 41. T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning and here upon this devise 4. l. Rent is reserved and the antient Rent is but 45. s and if the Land should be racked it is all worth but v. l. a year and because they are held in Capite therefore by the Statute we shall have but two parts And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney Valew wich are not worth so much therefore somtime the valew is considerable in a Will and cited 4 Ed. 6. 7 Ed. 6. and so he thought the Plaintif ought to recover And at this time the Court seemed to be of the same opinion for they gave day over to the Defendant at which day if nothing were said Judgement shall be given for the Plaintif 4. GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon Survivor the case was such H. was seised in Fee and had issue Mic. 29. 30 three Sonnes Eliz. râ—t 2325. John VVilliam now Plaintif and Richard now Defendant And by his last Will devised Lands to Iohn and to the Heirs Males of his body ingendred and devised other Lands to William in like sort and other Lands to Richard in like sort And that if any of his Sonnes died without issue Male that then the Survivor shall be each others Heir Afterwards the eldest died without issue Male And if William shall have all his part alone or else he and Richard between them was demurred in Law and day was given over to argue it 5. WAlmisley shewed how an Action was brought by Berdsley against Pilkington Impounding upon the Statute of 2 3 P. Mary for driving a Distress out of the County And shewed the truth of his case that the Distress was taken in the Hundred of Offlay in Staffordshire and the City of Lichfield was sometime within this Hundred And by Letters Patents of 1 Mariae the City was made a County of it self and he which took the Distress impounded them within a pound in the County of the City of Lichfield now whether he hath incurred the penalty of the Statute or no was the question And because the Court had not a Statute Book there to see the Preamble therefore they would give no resolution Anderson The meaning of the Statute was because the Bailif of the Hundred might make deliverance Allso I think it is within the compass of the Statute because the City was a County severed before this Statute made And the Serjeants at the bar said Same Hundred that the party may drive the Distress as far as he will within the same Hundred but he ought not to drive it above three miles without the Hundred 6. IOhn Slywright exhibited an information upon the Statute Champerty for buying of Titles Pasch 30. Eliz. rot 1532. against Page and declared how Joane Wade demised to Page for 60 yeares the Defendant pleaded not guilty And now a Jury of Sussex appeared at the bar And upon Evidence it was moved â—if a man have a lawfull Title to enter into Lands Lawfull title but hath not been in Possession and he entreth and makes a Lease for yeares thereof if this be within compass of the Statute Anderson It is within the Statute for the mischief was that when a man had a Title to Land he would let it to another to have maintenance and imbracery and make contentions and Suites for remedy whereof the Statute was made For if a man have a Title he may recover according to his Title Recovery Peryam The mischief hath been truly recited and therfore it is reason to restrain such bargains But if a man Recover by Formdon or Cessavit and make a Lease this is not within compass of the Statute A pretended Right allthough that he hath not been in Possession by a year and in my opinion the Plaintif need not prove that it is a pretented Right because the Statute expoundeth what is a pretented Right viz. if he hath not been in possession And so I have delivered my opinion before this time Anderson If a man hath not been in Possession and cometh to me and saith that he will make me a Lease and demands if I will take it and I agree thereto whereby he maketh me this Lease Ignorance if I do not know that he hath not been in possession I am not within the Statute And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor whereby he might take the Lease well enough For Fleetwood cited 6 Ed. 3. if one brother maintain the other this is not within the Statute of Champerty which case the Court agreed this is for speciall cause vide statut de articulis super cartas Maintenance Champerty Difference Anderson One brother may travell for another and maintain him but if he take a Lease of him he is within the Statute of 32. Hen. 8. for this is a generall mischief and the mischief is as great if the brother take a Lease as if another take it The case quod Periam coucessit clearly but because it was the case of the Defendant the Jury found a speciall Verdict viz. that the Lands were conveyed by the Husband of Joane Wade to the use of himself and his Wife in Tail-speciall the Remainder to the Husband in generall-generall-Tail the Remainder to the Wife in Fee and after the Husband Enfeoffed diverse men thereof and the Feoffees continued in Possession diverse years After the Husband died and then the Wife by indenture sealed and delivered of the Land made a Lease to Page which knew all this matter Knowledge from the fift day of Jenuary last past for 60 years if the Wife should live so long and that the Wife was Sister to Page the Defendant by the Mother and found the valew of the Land as if it should be sold and they prayed the advise of the Court c. And the morow after the like information being brought against the woman being Lessor the like Evidence was given and the like case found 7. FEnner moved this case to the Court. Recovery An Alien born purchaseth Lands in Tail the Remainder to a stranger in Fee The Alien suffereth a Common Recovery to his own use in Fee And after an Office is found of all this matter if the Remainder shall be to him which had it before or no was the question Anderson I think the Queen shall have a good Fee-simple Tenant sufficient to the praecipe for if there be a good Tenant to the praecipe then is the Remainder gone and you will not deny but that
in the Fleet Appearance was brought to the Common place bar by habâ—as corpus to the intent to have him appear to an Originall in debt brought against him And being demanded by Goldesburg Clark whether he were the same party against whom the Originall was brought confessed it but denied to appear to the Action Brâ—â—keâ— Prothonotary said the Court ought to record his appearance confessing himself to be the same person but the whole Court said this was no appearance whereby he was remanded to the Fleet And Tamworth the Plaintif proceeded to the outlary against him 2. PRice brought an Action of Trover against Sir Walter Sands Frandulent deeds Trin. xxxviii Eli. And this was for finding of Corn. And the first point of the case was That a man had a Lease in Reversion and granted it to another by fraud and his Grantee granted that over to Sir Walter Sands bona fide And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void per the Statute of 27 Eliz. or not was the question Harris Serjeant It seemeth the Grant to Sir Walter Sands to be good And not within the Statute of 27 Eliz. For 33 Heâ— 6. 28. If a man make a Feoffment in Fee by Collusion to the intent to defraud the Lord of the Wardship And after this Feoffee by Collusion make a Feoffment over bona fide Now the Lord is without remedy for the Collusion is gone And in this case there is an ignorance in Sir Walter Sands the which is not willfull and for that it is not punishable Notice But if the other had taken the profits so that the purchaser might have notice there it should be otherwise The â— cause was non constat whether the Grant were before the Statute of 27 Eliz. or not For if it were before then the party shall not answer the mean profits Allso a third matter is ten yeares of the Term was granted for money But when he granted the Residue of the Term and no Consideration expressed Consideration expressed then there shall be no consideration intended And if there were no Consideration given he is not holpen by the Statute For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid Et non constat that any thing was paid by the Plaintif Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute Allso here the party is charged with a speciall fraud And the other saith that it was made bona fide And this is a good course of pleading without any Traverse per 4 Ed. 4. 24. 3. HUgh Hall brought an Action upon his case for words and declared Slander that where he himself was robbed of divers parcels of Cloth per quendam ignotum and made his integrity and indeavour to apprehend the said thief praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone viz. Hugh Hall hath received three parcells of his Cloth again of the thief And if I receive any hurt henceforth I will charge him with it And by Judgement of the Court the words are not actionable 4. THe Lady VVilloughby Wife to the late Sir Francis VVilloughby Caveat sued in the Chancery as Administratrix of her said Husband against Percivall Willoughby which had maried one of the Daughters of the said Sir Francis And the Defendant pleaded that before any Administration commited to the said Plaintif he himself put in a Caveat in the Spirituall Court hanging which Caveat she hath attained these Letters of Administration Appeal whereby the Defendant hath appealed 〈◊〉 which appeal is not yet determined for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix And it seemed to Egerton then Lord Keeper of the great Seal that the Defendants plea is good to stay the suit untill the appeal be determined But not to be dismissed out of the Court Appeal Erâ—â—â— Difference no more than an excommunication And he said there is difference between an appleal in Spirituall Law and a Writ of Error in our Law For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter but not for the costs and for to prove that he cited 2 R. 2. Quare impedit 143. vide 27 H. 6. Gaud. 118. 2 M. 105. Dyer 7 Eliz. 240. 5. IN the Chauncery a speciall Verdict was retorned upon an extent Execution uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—e the Remainder in Tail and the Tenant in Remainder in Tail made a Statute Staple and after granted his Remainder And after the Tenant for life died 〈◊〉 Bull 〈◊〉 and the Grantee of the Remainder entered And whether Execution shall be sued of this land upon the said Statute insomuch that the said land was never in Demeasne in the hands of the Coâ—â—so◠〈◊〉 â—ames 〈◊〉 and so not extendable in his hands was the question And Sr. Thomas Egerton Lord Keeper of the great seal said that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life For to a Remainder are no services due nor incident and for that it is termed Seck But a Reversion hath services incident and those may be extended and by consequence the Reversion when it commeth in possession Bâ—t it seemed unto him that all was one for one may charge a Remainder when it happeneth aswell as a Reversion and a Statute is in the nature of a charge Cook the Queenes Attourney said there was no question in the Case for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question for if he in the Remainder make a lease for yeares to commence at a day to come Yet if he grant over his Remainder the Grantee shall hold that charged with his lease And every Statute is a charge Executory By which the said Lord Keeper awarded that there should be a liberate made to the Conusee upon the retorn above 6. OVerton brought an action of Debt against Sydall Debt by a Successor against an Executor after assignment And the case was that Prebendary made a lease for yeares rendring rent and the Lessee died and the Executors of the Lessee assigned over the Term and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over and the opinion of three Justices was that the action would not lye But Popham the chief Justice held the contrary For the Successor is privie to the Contract of the predecessor And so the Executor to the contract of the Testator
Plaintif was non suit And it was now moved whether the Plaintif ought to have a new venire facias upon the first issue insomuch as the first venire facias did not issue forth upon the first Record and no non suit Et opiniâ— Curiae that he may go to a new triall but whether he shall have a venire facias de novo or that the old venire facias should serve the Court doubted for that the first Jury was sworn 38. FOrd brought an Action of Debt against Glanvile and his Wife Administratrix bonorum Catellorum qua fuerunt Johannis S. durante minore aetate T. S. Abatements The Defendant pleaded that hanging this action against them the said T. S. during whose nonage the Wife was Administratrix came to full age and if this were a good Plea or no was the question And adjudged a good Plea 39. UPon an information against Sr. Christopher Blunt a Juror was challenged for want of Free-hold Free-hold of a Juror and by examination was found that he had 20 shillings a year Fenner and Gawdy doubted whether this be sufficient Free-hold or not Popham and Clinch held it is sufficient for the Statute binds not the Queen and by the Common law if he had any Free-hold it was sufficient Fenner This is a Statute made for the benefit of the Common-wealth and therefore the Queen shall be bound by it though she be not named in it Gawdy Me thinks every Juror ought to have 40. s Free hold at the least by the Common-Law No bill of enception against the Queen Cook No certainly and if they doe take the Law to be so they may have a bill of exception Tanfield Wee cannot have a bill of exception against the Queen see the Statute of 1 Hen. 5. cap. 3. that that is between party and party and the Statute of 8 Hen. 6. the preamble is between party and party But Popham commanded the Jury to be sworn but Gawdy would have sent to the Justices of the Common Pleas for their opinion but the Juror was sworn by Commandment of Popham against the opinion of Justice Fenner 40. PEr Cook Proxime future If I am bound in an Obligation in Lent upon Condition to pay a lesser sum in quarta septimana quadragesima proximae futurae This money shall be paid in Lent Twelvemonth after And so it is upon the Feast day of St Michael I am bound to pay a lesser Summe upon the Feast day of Saint Michaell prox futur without question said he it shall be paid the Twelvemonth after and not the instant day 41. THE Duke of Norfolk Morgaged certain Lands to Rowland Haward Demand Alderman of London upon Condition that if the said Duke do repay to the said Alderman a certain Sum of money That then the Duke might re-enter and after the Duke was attainted before the day of payment Condition given to the Queen and all his Lands Tenements and Conditions were given to the Queen And the question moved at the Table in the Serjeants Inne was whether Sir Rowland ought now to make a Demand of the money upon the Land or to demand that at the Receipt of the Exchequer or that the Queen ought to make the tender upon the Land And it was agreed by all the Judges and Serjeants at dinner that the Queen ought to make no tender But the Alderman ought to make his Demand at the Exchequer and not upon the Land 42. REdfrein agaiust I. S. an Action of the case was brought for words Slander viz. I was robbed and you were privy thereunto and had part of my money It was pleaded in arrest of Judgement that the words will not maintain an Action For that a man may be privy to a robbery after that it is made and have part of the money by honest meanes and therefore it is no slander but the whole Court held the contrary Infected Smell of robbery as well as you are infected with a robbery and smell of the same will maintain an Action so will these words therefore Judgement was given for the Plaintif 43. MEggs against Griffyth brought an Action for these words Slander viz. A woman told me that she heard say that Meggs Wife poysoned her Husband in a mess of milk and Judgement given for the Plaintif 44. REvell against Hart A Parsons Lease the case was upon the Statute of 13 Eliz. of Leases made by a Parson Serjeant Harris A Lease made by a Parson is not void against the Parson himself no more than a Lease made by a Bishop which is not void against the Bishop himself as was judged in the case of the Bishop of Salisbury Fenner The Law is as you said in a case of a Bishop but the case of a Parson percase will differ Popham If Rent be reserved Rent reserved it is good against the Parson himself otherwise not Clinch and Gawdy It is good against the Parson himself 45. WInch brought a Writ of Error against Warner Space in the roll upon a Judgement in a Writ of Debt in the Common place upon Arrerageâ— upon an account and it was assigned for Error for that the Plaintif in the Common place The emparlance roll is the Warrant in the first Declaration left a space for the day and year And after imparlance he put in a new Declaration which was perfect But for that the two Declarations did not agree and the first Declaration is the Warrant of all and therefore ought to be perfect therefore the Judgement ought to be Reversed for this default 46. IT appeared in Evidence inter Petties and Soam Foractor upon an Assumsit for ware bought by the Factor of Soam per opinionem Cur. If one be Factor for a Merchant to buy one kind of Stuff as Tin or other such like and the said Factor hath not used to buy any other kind of wares but this kind onely for his Master If now the said Factor buy Saies or other Commodities for his Master and assume to pay money for that Now the Master shall be charged in an Assumpsit for the money and for that let the Master take heed what Factor he makes 47. A. B. being seised in Fee Devise made his Will and devised his Land to his Wife for life the remainder to his Son in Tail and if he died without issue the Land to remain to R. W. and his Wife for their lifes and after their deceases to their children The question is whether the children of W. take by descent or as Purchasers Popham Gawdie were of opinion that they had an Estate Tail But Fenner Clinch but for life 48. WIlliam Gerrard was arrested by a Latitat and put in bail by the name of William Gerrat Bail by a false name and the Plaintif declared against him by the name of Gerrart and all the proceedings and issue was accordingly and Judgement was had
beasts shall not discharge him for the payment of Tythes for other beasts and Tythes shall not be payd for beasts fed for the occupation of the house of the owner No tyths for things spent in the house but if a man feed to sell there shall Tyths be payd for those for with the first people live which manure the land of which the Tythes are payd for so is Fitzh Nat. brev 53. Q. to be intended 67. WIldgoose versus Wayland in Cancellar Notice of trust This question arose If A. be seised upon trust and confidence to the use of B. and his Heirs and A. selleth the land to one that hath notice of the trust to whose use shall the Vendee be seised Also it was moved if before the sale one come to the Vendee say to him take heed how ye buy such land for A. hath nothing in that but upon trust to the use of B. and another comes to the Vendee and saith to him It is not as he is informed for A. is seised of this land absolutely by which the Vendee buyeth the land if this first Caveat given to him ut supra be a sufficient notice of the trust or not And the Lord Keeper sayd it is not for flying-reports are many times fables and not truth and if it should be admitted for a sufficient notice then the Inheritance of every man might easily be slandered Notice of Forgery Cook It was holden in Bothes case in the Starchamber that if a man sayd to another take heed how you publish such a Writing for it is forged and notwithstanding the party doth publish it this is a sufficient notice to the publisher that the Deed was forged And upon that the Lord Popham at the same time put this case Notice of Felony If one say to me take heed how you entertain or receive A. B. for he hath committed such a Felony and I giving no credit to the report receive the party where in truth he had committed the Felony now I am accessary to this Felony To which the Lord Keeper answered that he would not draw blood upon such an opinion 68. IF a man make a Lease reserving Rent to the Lessor Reservation of Rent if he say no more the Rent shall goe but to the Lessor but if it be reserved generally and doe not say to whom it shall goe as well to the Heir of the Lessor as to the Lessor himself Per Gawdy 69. IT was sayd by Fell Hue and Cry an Attorney of the Kings-bench that it hath been adjudged in the same Court that an Action upon the Statute of Hue and Cry against Inhabitants of any Hundred will never lye by Bill but ought to be sued by Writ and the reason is for that the Action is brought against Inhabitants which are a multitude and for that may not be in custodia Marescalli as another private person may 70. A Judgement was had in an Action of Debt of 80 l. And the Plaintif had a Fieri facias Capias after a Fieri sacias executed for parcell and the Sherif levyed 20 l. of the goods of the Defendant and retorned that of Record but non constat by the Record whether the Plaintif had received the 20 l. or not and the Plaintif took forth a Cap. ad satisfaciend for the whole Execution being 80 l. and upon that the Defendant was Utlawed and now he brought a Writ of Error to reverse that Utlary which was reversed for that it did appear upon Record that execution was made by Fieri fac of 20 l. of the 80 l. and therefore the Cap. ad satisfaciend should have been but 60 l. 71. IF the Husband sell his land by Fine Claim of Dower with Proclamations and live five years and after dye his Wife being sole of full age of sound memory out of prison and within the four Seas and doe not make any demand or claim of her Dower within five years after the death of her Husband she shall be barred 72. A Feofment was made before the Statute of 27. to the use of a Man and Woman unmarried Moities in Tail and of the Heires of their two bodies begotten and after they intermarried and after marriage the Husband bargained and sold all the land in fee to one of his Feoffees and died without issue and after the Statute of 27 was made the Wife claymed the whole by Survivor as Tenant in tayl after possibility of issue extinct And by the opinion of all the Court without argument she can have but the Moity because the Husband and Wife had Moities as Joyntenants by reason of the Joyntenancy made before marriage And yet by the Court as to the issue in tail if any had beeen he shall have a Formdon of the whole 73. IF Land be holden of a Subject Tenure and Wardship extinct and the Tenant sells the land by Fine with Proclamations to I. S. in tail the Remainder to her Majesty in fee The Tenant in tail dyes his Issue within age The Opinion of the Court was that the Issue shall not be in ward to the Subject if the Queen do not assent to her Remainder for that the tenure and services are gone and extinct by the Fee simple to the Queen which may hold of none And so the issue in tail shall be in ward to none 74. IF a man have goods to the value of 100l and is indebted in 20l. and he deviseth and bequeatheth to his Wife by his Testament the moity of all his goods to be equally divided between her and his Executors Legacy of a moity of all his goods and make his Executors and dieth And the Executors pay the 20l. yet the Wife shall have the moity of the whole estate viz. 50l without any defalcation so that the Executors have Assets besides 75. IN a Prohibition and the Case was this Benefield against Feek Tithe of Saffron the Farmor of a Parsonage sued in he Spirituall Court for Tithes of Saffron against a Vicar The Vicar pleaded that time out of memory of man the Vicar and his predecessors have had the Tithe of all Saffron growing within the parish A Prohibition for the Plaâ—ntif in the Spirituall Court upon his own lihell The Plaintif pleaded that the land where the Saffron was growing this year by the space of 40 yeares next before had been sown with Corn whereof the Parson and his predecessors have had the Tithe And the Spirituall Court would not allow this Plea For which the partie prayed a Prohibition Tanfield The right of the Tithe commeth in question between the Parson and Vicar Howbeit that the Farmor be made partie to the suit and for that the right of Tithes being in question between two Spirituall men Suit between persons spirituall This Court hath no Jurisdiction And this very point was adjudged 30. Eliz. inter Hunt and Bush in this Court that in such
Priority which is not corporall neither ought it to be put in view in Assise and 21 Hen. 6. a. Tenant of the Land shall Attorn upon the grant of a rent charge and 33 Ed. 3. Priority shall hold place when the remainder falleth and not when it is granted 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then Sir when the foundation out of which the rent is issuing is gone the rent is allso gone and therefore let us see what authority Tenant in tayl hath in the remainder At the Common Law there was no Formdone in descender or remainder and the Statute of W. 2. cap. 1. provides but for two persons viz. he in reversion and the issues but Formdone in remainder is taken by the equity 50 Ed. 3. If Tenant for life be the remainder in tayl to another the remainder in fee to the Tenant for life and he makes wast Wast Bargain de remain Tenant in remainder shall punish him and Fitzh nat br fol. 193. a. Cui in vita by a wife which was Tenant in tayl upon the alienation of her husband And I think that if he in remainder bargain his remainder that it is voyd and he cannot grant to another that he shall dig in the soyl for by 2 Hen. 7. he in reversion cannot doe so 12 Ed. 4. Recovery suffered shall bind the issue 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Tenant for life Nul attaint pur tenant in rem then in this case he in remainder cannot enter and the Grantee shall not be in a better estate than his Grantor and then if he shall never enter frustra est illa potentia qua nunquam reducitur in actum The reason for the grant is good for when Tenant in tayl dyeth without issue he in remainder shall be in by the first gift in proof whereof is 33 Hen. 6. he in remainder shall be in ward Ward and in 11 Hen. 4. in Formdone in descender Formdone he shall say that the possession was given to his father Prebendary And a Prebendary cannot charge before induction Ioyntenants But if two Jointenants be and the one charge all and the other disclaimeth the charge is good from the beginning And the Recoverer here is not under the charge for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened yet is he a meer stranger and in by another title 10 Ed. 3. If two Jointenants be Charge per Ioyntenant and the one charge this is good conditionally that he which chargeth shall survive And if Tenant pur auter vie charge and die occupans shall hold it discharged So in this case for he is not in of this possession Moreover there is a mischief if this charge be good for then the Land may be charged by two severall persons at once which shall not be suffered but yet if cestui que use charge and the Feoffees charge both are good for the one is by the Common Law Charge per cest que use Feoffees 28 Ed. 3. 10. b. and the other by the Statute Law So if Lessee for years charge and he in reversion charge and after Lessee for years surrender but this is in severall respects and I put this case for Law Ch. per lessee per enreversion that if he in the remainder bind himself in a Statute Merchant Stat. Merch. per test en rem ne charge le poss this shall not charge the possession And if in this case he will grant the rent over none ought to Attorn and therefore voyd and Littleton saith that he in remainder shall not falsifie No attornment Falsifying and 26 Hen. 8. the Grantee of lessee for years shall not falsifie for the nature of falsifying is properly to find a fault wherefore it should not be good and what fault can he find in this case surely none Successor lie per confession 4 Hen. 7. 1. a. 20 Hen. 6. Abbot confesseth an Action the Successor is bound And further it is within the Statute of 27 El. for fraudulent deeds and we need not to plead the covin for the Statute is generall Fraudulent faits and vouched Wimbish case in the Comentaries and so the Replevin is maintainable And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea and allege the Covin Et adjornatur untill Michaelmas Term following because there were so many Demurrers hanging to be argued in Trinity Term next But afterwards judgement was given against the Rent charge 12. KIng Hen. 8. gave certain lands to Sir Edward Bainton Trespass Knight and to the heirs males of his body engendred who had issue Andrew and Edward and dyed Andrew afterwards convenanted with the Lord Admirall Thomas Seymer that he would convey an Estate of those Lands to himself for life the remainder to the Lord Seymer in Fee and in like manner the Lord Seymer convenanted to convey an Estate of other Lands to himself for life the remainder to Andrew Bainton in Fee Afterwards Andrew Bainton levyed a Fine and executed the estate according to the covenant on his part Afterwards the Lord Seymer before performance of the covenant on his part was attainted of High Treason and all his Lands forfeited to King Edward the sixth who dyed without issue and the Lands descended to Queen Mary to whom Andrew Bainton sued by Petition and shewed how she had those Lands to the disinherison of him and his heirs and Queen Mary by her Letters Patents ex certa scientia ex merâ— motu c. granted to Bainton all those Lands and Tenements which he had covenanted to convey to the Lord Seymer and all reversions thereof in as ample manner as she had them Et ulterius ex uberiori gratia sua she granted all reversions claims and demands qua ad manus suas devenerunt ratione c. aut in manibus suis existunt aut existere deberent Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee and dyed without issue then Edward Bainton entred and Segar brought his Action of Trepass Puckering It seemeth that the entry of Edward Bainton is congeable and so the Action not maintainable First let us see what passeth by this Grant of Queen Mary to Andrew Bainton and then whether a Fine levyed by Tenant in tayl the reversion being in the Queen be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations and therefore but a discontinuance and remains but as at the Common Law At the Common Law before the Statute of Dâ—nis conditionalibus a Fine levyed was a bar to all men for all Inheritances were Fee simples then by that Statute it was ordained Quod neque per factum neque feofamentum of the Tenant
in tayl the issue should be barred After which Statute as I intend the Law was such that when Tenant in tayl levied a Fine of such a thing as he might discontinue and the Fine executed in possession allthough the words of the Statute were Ipso jure sit nullus yet the issue was put to his Formdone but if it were a Fine Executory then by the death of the Tenant in tayl the issue was remitted and the Fine voyd But now by the Statute of 4 Hen. 7. the Law is made otherwise and for that here it is to be granted that he cannot discontinue the estate tayl because the reversion is in the King as it was now lately adjudged in the Exchequer in the case of Gillebrand ergo here the estate doth not pass to the Feoffees by the first Fine when he took an estate again to himself for life the remainder to the Lord Seymer in Fee but a Fee simple determinable then when the Lord Seymer was attainted Queen Mary had such an estate as the Lord Seymer had which was a Fee determinable and she had another Fee absolute in jure Coronae After when he sued by Petition he did not shew to the Queen what estate he had nor what estate the Queen had but that it was to the disinherision of him and his heirs then the Queen grants reversionem inde adeo plene libere integre as she had it or as it came to her by the Act of Parliament And I think when the Queen gives by generall words she doth not give any special Prerogative And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla c. and 9 Eliz. 268. in Dyer the case of the Dutchy of Cornwall 8 Hen. 6. the King pardons all Felonies this is no pardon of the Outlawry and especially when the Queen hath two interests it shall be construed beneficially for the Queen as 9 Edw. 4. Grant of an Office where the Grantee was no denison see there Baggots Assise and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion upon the life of one of them And further the case in Dyer where Queen Mary grants in Manerium de Bedminster in Com. Somerset 5. 13 El. fol. 306. a. Then Sir the Patent is that the Queen intendens dare congruum remedium in praemissis c. and when he iueth to the Queen by Petition Petition certain all titles ought to be in the Petition 3 Hen. 7. 1 H. 7. a Latin case the case of the corody and this is in nature of a Petition therfore ought to be certain then the Patent is Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratione actus Parliamenti c. aut in manibus suis existunt vel existere deberent c. and they are not to be expounded so largely as to make the reversion to pass for if those words ratione c. were before admanus suas c. or after in manibus suis existunt then it cannot be intended but the reversion shall not pass to Bainton Now when in manibus suis existunt come after these words References ratione c. for references are to be intended according to the meaning of the parties Devise 29 lib. Ass 14 Eliz. Dyer Devise of all Acres except a Lease for 30 years And those words aut existere deberent ought to have some relation ergo it ought to be intended quae in manibus suis existunt ratione attincturae c. and this will not make any grant of the reversion For the meaning of the Queen was because Bainton had no recompense of the other Lands No use to give him these for no use was in him by the covenant of Seymer as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Seymer For the other matters I think that A. Baynton is not Tenant in tayl by the grant again but admit him so yet he cannot discontinue neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine things which are not touched doe not pass as Commons Rents Wayes Claim per lessee purâ—ans alit postea si soit en post c. Br. Fines 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case 21 Eliz. that Lessee for yeares need not to make claim within five years and vouched the opinion of Br. tit Fines 121. accordingly that the issue shall not be barred And as the King is privileged so are his possessions allthough that afterwards they come into a subjects hands Generall restraint And where one hath a special Grant allthough a general Restraint come after if he doe not speak specially of this the Grant shall be good in many cases as 19 Hen. 6. fol. 62. the Parson of Edingtons case Br. Patents 16. and the case of the Abbot of Waltham 21 Ed. 4. fol. 44. Br. tit Exemption 9. in 19 Hen. 8. it was doubted if the issue of a common person should be barred ergo the issue in tayl the reversion being in the King is not barred And the Statute of 32 Hen. 8. is generall as well for those which were of the gift of the King as others and therefore afterwards there was another Statute made which excepted those which were of the gift of the King as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception if it were a bar before by the Statute of 4 H. 7. And for authority I have a report delivered me by a Sage antient in the Law that in 16 17 El. in Jacksons case where Lands were given in tayl the remainder to the King in fee the Tenâ—nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court Difference per enter rem reversion in le Roy. this was a bar but the Court then sayd that otherwise it should be if the reversion were in the King as our case is wherefore seeing there is neither discontinuance nor bar in the case his entry is congeable and the Action not maintainable Walmisley to the contrary I will agree that it is not any discontinuance yet he may admit him out of possession if he will as in 18 Edw. 3. Where Tenant in tail the Reversion in the King makes a Lease for life and hath two Daughters and died and Lessee for life was impleaded and upon his default the two daughters prayed to be received and so they were and as me seemeth the Petition made by him to the Queen shall not prejudice or hinder the Grant ex mero motuâ— and vouched 3 H. 7. fol.
be Fidi Rodes I know a Wife which is called Troth in English and she was called Trothia in Latin and it was good And all the Court adjudged this Writ good here 11. AN Action upon the Statute of Winch. was brought against a hundred in Gloucester Hue and 〈◊〉 and the Jury found a speciall Verdict viz. that the money was delivered to a Carrier of Bristow to be carried to London who packed it up And as he was on his journey certain Malefactors came to him in an another Hundred and there took his Horse and Pack and led him into a Wood within this Hundred against which the action is brought And if this Hundred be guilty or no they prayed the advise of the Court And all the Justices agreed that this was a robbery in the first Hundred and not in the second for upon the first taking he was robbed but if the Carrier had led the Horse himself Possession then it should be adjudged to be in his own possession and no robbery untill he came into the second Hundred and if a man have money and the Malefactors take him in one Hundred and carry him unto another Hundred and there Rifle him this shall not be a robbery in the first but onely in the second Hundred for he is allwaies in possession per totam Curiam and Judgement was given accordingly So of the purse picked in the Kings Bench and the thief taken with the manner but a key being fastened to the purse still stuck in the pocket and 2 Justices against two that the man was still in possession of his purse and so no robbery 12. WAlmisly shewed Termor how a woman brought Dower against her two daughters and another and in truth the third was but a Termer and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term for they all have made default at the grand cape and now he prayed to be received and shewed cause that the Husband made a lease for yeares and after the Lessee levied a fine to the Lessor and they granted and rendred back again to the Lessee for the same yeares rendring the same rent and the Statute of Gloucester is if the Farmour have c. that is if he may have covenant as in 19 Ed. 3. and here he may have covenant Ejectione firme and prayed to be received and shewed his plea. Shuttleworth You are at no mischief for you shall have an ejectione firme if you be ousted where she hath no cause of Dower Walmisley But we shall be put out of possession which shall be no reason Anderson I hold that a Termer may falsify by the Common law Falsify Shuttleworth But his lease is after our title of dower Lesser may plead destruction of dower Peryam although that it be after yet if he have matter which goeth in destruction of the Dower he shall falsify well enough as if she have title of Dower and five yeares pass after the fine levied And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession but here the Termer is named ideo quare And after at another day Shuttleworth moved it again Resceit of the partie to the Writ and said that the Termer shall not be received because he is named in the Writ and the Court was of the same opinion then but they said that he might plead speciall non tenure Shuttleworth first he ought to save his default for he commeth in upon the grand cape Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there Shuttleworth Then I shall have judgement against the two which made default at the grand cape Conusance Curia you had best be advised lest the Writ should abate by non tenure of parcell Cemurier Shuttleworth by my Conusance of non tenure of parcell Difference all shall abate but if I demurr upon his plea then it shall abate but for one parcell 13. LEonard White brought a Formdon in Discender and declared of a gift in tayl made to his father Estoppell who died and the land descended to the elder brother of the Demandant who also died without Issue and so conveyed to himself as heir in tayl c. The Tenant pleaded that the elder brother had Issue a Daughter who levied a fine to him and he relied upon the fine and proclamation Inducement doth 〈◊〉 make a plea double Walmisly this Plea is double the one is the Issue the other the fine Curia forasmuch as he cannot come to the one without shewing the other it shall not be double also here he relieth upon the Estopple vide 18. E. 3. 25. Tit. Gard. per Wylly 14. A Formdon in descend by three brethren for lands in Gavelkind they were at Issue upon Assetz descended to the Demandants Assets in Gavelkind And the Jury found a speciall Verdict that the Father of the Demandant was seised of those lands and by his Testament devised them to his three sonnes now Demandants and to their heires equally to be divided And if this shall be said a descent to them or no was the question because the Law would have done as much and therefore it shall be said Assetz But all the Court held the contrary and that they shall be joynt-Tenants or Tenants in common and then they shall not be in by the descent and so no Assetz and Anderson said that if a man devise to his sonne and heir in tayl he shall not take it by descent Peryam if a man may have any more benefit by the Devise than by the descent then he shall take by the Devise Eadem lex per Curiam if he devise his lands to his two daughters and heires they shall be joynt-Tenants and no coparceners è contra if he have but one son or one daughter only 15. IN the Exchequer Chamber all the Justices of the Common Pleas and the Barons of the Exchequer Venus were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator who pleaded plenè administravit and the action was laid in Barkshire at Newbery and the Plaintif averred that the Defendant had Assetz at Westwood in the same County and the venire facias was of Newberry whereas it should have been of Westwood And this he assigned for Error And all the Court agreed una voce that it was Error and so the judgement was reversed but the Assetz being transitory might have been assigned at Newbery 17. ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him Amendment and assigned for error that the judgement was quod recuperet versus Edward Seymour
have against him untill the 24 of June then next following which was half a year after and because he had not performed this an action upon an Assumpsit was brought and Judgement given for the Plaintif and all the Justices agreed that this was Error because that this thing arbitrated was out of the submission and so voyd for they have no authority to arbitrate that which is not submitted unto them Submission and the submission is onely of things passed and not to come but because that the Defendant had not heard of this Error before therefore they gave him day Afterwards the case was moved again and Anderson sayd that damages recovered doe not lye in arbitrement Damages recovered Peryam Amongst other things they will lye well enough quod Anderson non negavit But they all sayd that they may well assume upon consideration and an Action will be maintainable for it 5. THomas Mounson Esquire Term extinguished sonne and heir apparent to Sir Iohn Mounson Knight brought an Action of Trespass against VVest who pleaded not guilty and upon Evidence it appeared that Sir Iohn Mounson had an estate for years the Remainder in tayl to the Plaintif with divers Remainders over and the Lessee made a Feoffment to divers and a Letter of Attorney to others with commission to enter into the lands and to seal the Feoffment and deliver it in his name to the use of the sayd Thomas and his heirs and another by commandement or Letter of Attorney of the sayd Thomas entred in his name And the Court held this a good Feoffment notwithstanding that both the Lessee and the Attorney were disseisors Disseisors for it is good between the Feoffor and the Feoffee for they sayd that by the Feoffment to the use of him in the remainder and his heirs if he in remainder enter he is remitted and the estate for years is gone implicatively Freehold joyned to the term Morgage for Peryam sayd that in all cases where the Freehold cometh to the term there the term is extinguished And therefore if a man morgage his reversion to the Lessee for years and after perform the condition yet the Lease for years is utterly extinguished And the Evidence on both parts was very long and the chief matter was whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas by which Devise lands were conveighed to him by William Mounson his Father whose heir at the Common Law Sir John Mounson is viz. the Sonne of Roberts eldest brother and the Deed was shewed by VVest and it was perished with Mice all the Seal and part of every side but yet by the last Will of the sayd VVilliam Mounson and by divers other proofs it was evident that the Deed was good and but little in effect was shewed to prove the Deed forged Misdemenour yet the Jury went together and tarryed there all night and in the mean time some of them had victualls with them for one had Cheese and another had Pruens another had Pippins and another had an Orange but he which had the Orange swore that he brought it onely for the smell and therefore he was excused and he which had Pruens had given half a Pruen to one of his companions which eat it and he which had Cheese had eat thereof therefore all those which had victuals Fine and imprisonment were fined at 40 s and they which had eaten at 5 l. every of them and all committed to the Fleet but because they were agreed therefore the Verdict was taken and the Verdict was given for the Plaintif viz. that the Deed was forged by Justice Mounson and the Verdict taken de bene esse and all this matter commanded to be entred for the Justices doubted whether it were a good Verdict This matter was moved divers Terms afterwards and at the last adjudged a good Verdict 6. IN an Ejectione firme by Ashby against Laver for Lands in Westminster Countermand it was sayd by all the Justices to the Jury that if a man hath a Lease and disposeth of it by his will and after surrenders it and takes a new Lease and after dyeth that the Devisee shall not have this last Lease because this was a plain countermand of his Will 7. IN Trespass by Johnson against Astley it was said by the Justices to the Jury that if there were a Chauntery in reputation allthough it be none in right as if it be gone by disseisin yet the Queen shall have the Lands 8. AT Serjeants-Inne in Fleet-street Rent suspended the Justices of the Common Pleas and Barons of the Exchequer were assembled for divers Errors in the Kings-bench and the case of Rawlins was moved again and Anderson and Peryam retained their former opinions and Peryam sayd that he would differ from all the cases of collaterall conditions Feoffment upon condition which may be put for he sayd that if a man make a Feoffment in fee of 20 Acres of land upon condition that if he pay to the Feoffee xx l. at Easter that then it shall be lawfull for him to re-enter allthough that he be re-enfeoffed of 10 Acres yet he ought to perform the condition because it is collaterall But Cook the famous Utter-barrister sayd Truly it hath been adjudged to the contrary and I was privy to it for when he took as high an estate again as he had before by that the condition is confounded and the case of the Corody in 20 Ed. 4. will prove this case Rodes I see no diversity Peryam It is collaterall there but so it is not here but afterwards those two Judges changed their opinions and so the first Judgement was affirmed 9. BRown recovered against Garbrey in an Assumpsit Consideration and thereupon Garbrey brought a Writ of Error and assigned for Error that there was no Consideration for the Declaration was that whereas there was a communication between Brown and a woman for Mariage between them that the Father of Brown had promised to the Wife that if she would marry his Son he would make a Feoffment of his land to the use of himself for life and after to the use of them two in tayl the remainder c. and that Garbrey assured to the Wife in consideratione praemissorum that if the Father did not doe so then he would give the Wife a hundred pound ac licet the Father did not give to them in tayl secund agreament praedict yet Garbrey refused c. And Cook moved that this should be no Consideration for the communication of Mariage was not by him but between strangers to him but if the Father had assumed in consideration of Mariage then that should have been good against the Father but against Garbrey it is â—o otherwise than as if one promise to you to Enteoff you and I say that if he doe not so then I will give you a hundred pound this is
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance Gawdie The Obligation is void for in so much as the Obligee hath not tendred to him any acquittance therefore he hath tolled from him the election whereof he shall not take advantage Fenner è contra for the election is not in the Partie for the making â—o the acquittance resteth in the will of the Obligee and so the Obligor hath no election Popham was of the same opinion 56. IF a Sheriff doe execute his Writ the same day that the Writ is retornable Execution of a writ done the day of the retorn it is a good execution per Yelverton and he cited these cases A Judgement given in a quare impedit 18. Eliz. and the Writ of dammages was executed the same day that it was retornable and this matter pleaded in arrest of judgement and notwithstanding the partie had judgment and if a capias ad satisfaciendum goe forth and the Sheriff take the Partie the same day that the Writ is retornable and send him into the Court who will say that this is not a good execution 57. WOodcock brought an Action of Debt against Heru Assets Executor of I. S. The Defendant pleaded that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing And if this Plea be good or not is the question Fenner The Plea is good without question Gawdie I have heard divers learned men doubt of that for if the Testator were bound in a Statute to perform Covenants which are not yet broken and it may be they will never be broken and then he shall never be chargeable by this Statute and yet he shall never be compelled to pay any debts which will be a great inconvenience And again I think there will be a greater mischief of the other part for put the case if the Executors doe pay this debt and the Statute is broken after he shall be chargeable by a devastavit of his own proper goods the which will be a greater inconvenience 58. BRough against Dennyson brought an Action for words Slander viz. Thou hast stoln by the high-way side Popham The words are not actionable for it may be taken that he stole upon a man suddenly as the common proverb is that he stole upon me innuendo that he came to me unawares And when a man creepeth up a hedge the common phrase is he stole up the hedge Fenner When the words may have a good construction you shall never construe them to an evill sense And it may be intended he stole a stick under a hedge and these words are not so slanderous that they are actionable 59. A Copy-holder was not upon his Land to pay his rent Forfeiture of a copy-hrld when the Lord was there to demand it And whether this were a forfeiture or not was the question Fenner It is no forfeiture if there were not an express denyall for the non-payment here is but negligence the which is not so hainous an injurie as a willfull denyal for it may be that the Copy-holder being upon the Land hath no money in his purse and therefore it shall be a very hard construction to make it a forfeiture But if he make many such defaults it may be it shall be deemed a forfeiture Popham If this shall not be a forfeiture there will grow great danger to the Lord and the Copy-holders estate was of small account in ancient time and now the strength that they have obtained is but conditionally to wit pay their rent and doing their sevices and if they fail of any of these the Condition is broken and it seemeth cleer if the rent be payable at our Lady day Demand after the day and the Lord doth not come then but after the day to demand the rent there is no forfeiture 60. THe Case was that there was Lessee for life Sir Henry Knevit against Poole interest of Corn. the Remainder for life and the first Lessee for life made a lease for years and this Lessee was put out of possession by a stranger and the stranger sowed the Land and the first Lessee for life dyed and he in remainder for life entred into the Land and leased it to Sir Henry Knevit and who should have the corn was the question Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder shall have the corn for the reason for which a man which hath an uncertain estate shall have the corn is for that he hath manured the land and for that it is reason that he that laboureth should reap the fruit but he said that the stranger that sowed the land shall not have the corn Lease of ground sowed because his estate begun by wrong for if a man make a lease for life of ground sowed and before severance the Lessee dyed now his Executor shall not have the corn Assignment after sowing concess per Popham cont per Gawdy for that they came not of the manurance of their Testator so it is if the Lessee for life sowe the land and assign over his interest and dye now the Assigne shall not have the corn cansa qua supra and for this reason in our case neither the Executors of the first Tenant for life nor the Lessee of the first Tenant for life shall have the corn here for that it comes not by their manurance and the stranger which sowed them he shall not have them Vncertainty necessarie unnecessary difference for albeit he manured the land and howbeit his estate was defeasable upon an uncertainty yet he was a wrong doer and the incertainty of his estate came by his own wrong for which the law will never give any favour to him and for that when he in remainder for life entreth it seemeth that he shall have the corn for he hath right to the possession and the corn are growing upon the soile and by consequence are belonging to the owner of the soile but it hath been said that here there was no trespasse done to him in remainder and for that he shall never have the corn Sir as to that I say if an Abator after the death of the Ancestor enter and sowe the land Abator soweth and after the right heire enter in this case the heire shall have the corn and yet no trespasse was made to him and it hath been adjudged in this Court where a man devised land sowed to one for life and after his decease the remainder to another for life and the first Tenant entred and dyed before severance and he in remainder entred that there he in remainder shall have the corn and by consequence the same Law shall be in our case Godfrey è contra and he argued that the Lessee for yeers Devise of land sowne of the first Lessee for life
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
Livery per baron and would have made Livery but the Wife would not agree to the Livery yet notwithstanding the contradiction of the Wife the Livery was Adjuged good 33 Hen. 6. Husband and Wife are Plantifs in an Assise Nonsuite del feme and the Husband would Prosecute but the Wife would be Nonsuite the act of the Husband shall be accepted and the act of the Wife rejected So if the Husband will make an Attourny and the Wife wil dissavow him Attourny yet he shall be their Attourny And as I think this Limitation by the Husband shall bind the Wife in perpetuity Case per fine indentare Difference Juris clamat For if the Husband make a Lease of the wifes Land for 100 years the Wife may avoid it after his death but if after they both Levy a Fine the Lease shall be good-for ever And 11 Hen. 4. He in Reversion and one which hath nothing Levy a Fine quid juris clamat shall be brought against them both And as I conceive it it shall be counted her folly Reentry per condition that will take such a Husband as will Limit such uses For if a Wife hath an Estate in Land upon condition for not payment of Rent that the Feoffor shall reenter if she take a Husband which doth not pay the Rent whereby the Feoffor or his Heires reenter the Estate of the Wife is utterly defeated And in 4 Ed. 2. A woman Tenant takes a Husband Cessavit who ceaseth by two yeares whereby the Lord bringeth a Cessavit and recovereth the Inheritance of the Wife she shall be bound And this appeareth in Fitzh in Cui invita 21. And it shall be so if the Wife hath but a Freehold Wast as it is in 3 Ed. 3. A woman Lessee takes a Husband who maketh Wast whereby the Land is recovered and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife this is onely the sale of the Husband but if after they Levy a Fine this shall bind the Wife And for express Authority it is the case in Dyer Joynture fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands takes a Wife who hath a Jointure in his Land and he makes a Limitation of uses and after they both Levy a Fine this shall be the Limitation by the Husband because it shall be intended that the Wife consented if it doth not appear to the contrary Whereby the Declaration of the use here by the Husband shall be good to bind the Wife and therefore Judgement ought to be given for the Plantif Feâ—ner to the contrary for here the Inheritance is in the Wife and where the Husband limits further than he hath Authority there the Law shall make a Declaration of the uses for the Husband cannot Limit uses of that which he hath not 21 Ed. 3. A man takes a Wife seised of Lands in Fee Atteynder del feme and before that the Husband was intitled to be Tenant by the Curtesie the Wife was attainted of Treason Homage the Land shall be forfeit and 44 Ed. 3. He shall not make Homage Conusans before he be intitled to be Tenant by the Curtesie 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife Warranoy And in this case the Conisee is in in the per by the Wife and Warranty made to the Husband shall inure to the Wife and 18 Ed. 3. A man seised of a Mannor in right of his Wife Villain to which there is a Villain regardant the Villain Purchaseth Lands the Husband shall be seised of the Perquisite in right of his Wife And yet otherwise it is where a man is Lessee for years of a Mannor to which c. For he shall be seised of the Perquisite in his own Right Divorce 12. lib. Ass If he be Divorced his Estate is gone Lease Rent ch diversity And I agree to the case put by my Brother Shut Where the Husband makes a Lease for years and after he and his Wife levy a Fine there the Lease shall be good but if the Husband grant a Rent charge and after he and his Wife Levy a Fine I do not agree that this is good for in the first case the Conisee found one which had an Interest in the Land but not in the last Then Sir here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever Feoffee al use 28 Hen. 8. The Feoffece to use at the Common Law Limits an use to a stranger this Devesteth the first use but if he limit is to cestui que use then it is an ancient use and not new And so it is if Tenant for life and he in Reversion levy a Fine this shaâ—l be to the use of him in Reversion 2 Loyntenants And so if two Joyntenants be in Fee and they limit severall uses this shall be good according to their limitations for the Moities of either of them and for no more And if Husband and Wife levy a Fine to the use of the Husbands Sonne Fits del baron yet this is to the use of the Wife but if he be the Wifes Sonne allso then this is a good consideration and the use shall be accordingly And these cases I put to this intent that when a man limits an use which is repugnant Vse repugnant or further than he hath Authority the Law shall make a Declaration of the same use for Bracton saith Nemo potest ad alterum plus juris tranferre quam ipse habet And I take the Law if Husband and Wife levy a Fine of the Lands of the Wife and render back to the Wife in Tail Fine levie de terres del feme Oâ—e râ—eder al feme en tail and the Husband dye and the Wife discontinue that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case And I agree to that which hath been said that the Wife only cannot limit uses but because the Jury hath found for â—he Defendant if the limitation by the Husband be not good as I think it is not then Judgement shall be given for the Defendant Concessum Adjornatur 14 WIlliam Knight Eject firm as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman brought an Executione firme against W. Breâ—h of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell the Defendant pleaded not guilty and the Jury appeared at the Bar and Evidence given on both sides And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant Demurrer al evidence and thereupon the Jury were discharged And now Gawdy the Queens Serjeant
which you allege is against you And the Wife of the Defendant being in Court was very importunate whereupon the Court moved an agreement and the Plaintif was content upon condition that the Defendant would enter into bond but the Defendant seemed unwilling by his silence Anderson Wee have made stay to the intent to do the Defendant good and he will not be content when more than reason is offered him wherefore let Judgement be entred for the Plaintif 7. IN a replevin by Gybson against Platlesse Revocation of a VVill. the Defendant made Conusance as Baylif to Anne Wingfield and the Issue was whether the Land descended to Anne Wingfield Norfolk Trin. as Daughter and Heir to I. W. and upon evidence this was the case 28 Eliz. rot 2â—30 The said I. W. was seised of the Lands in question and divers other Lands and by his last VVill devised all his Lands and Tenements to Anthony Wingfield of London Goldsmith in Fee and after and before his death he made a Feoffment in Fee of the same Lands which he had devised to the same A. W. and when he sealed the Feoffment he demanded will not this hurt my Will and it was answered again that it would not and he said if this will not hurt my Will I will seal it and then he sealed it and a Letter of Attorny to make livery and in some of the Lands the Attorney made livery but not of the Lands now in question and after the Testator died now if the Devisee shall have the Lands or no was the question for if this Feoffment be Revocation of the Will then the Devise is void And it was said by the Counsell of Anne VVingfield that it is a Revocation For if the Testator had said that this shall not be his Will then it had been a plain Revocation quod fuit concessum per Curiam and then the making of the Feoffment is as much to say as that the Will shall not stand but it was answered by the Court that it appeared that the mind of the Testator was that his Will should stand and when he made the Feoffment this was a Revocation in Law and if no Feoffment had been made there had been no Revocation in Law and there is no Revocation in deed for he said if this will not hurt my Will I will seal it and allthough that the Attorney made livery in part Feofâ—ent perfect in part so that the Feoffment was perfect in part yet for the Lands in question whereof no livery was made the Will shall stand Will. for a Will may be effectuall for Part and for Part it may be revoked and the Court told the Jury that this was their opinion and thereupon the Jury found accordingly that the Land did not descend to A. VV. quod nota And Fenner who was of Counsell with the Plaintif before the coming again of the Jury to the Bar said to the Counsell of the Defendant that the Law was clear against them Allso he said to divers Barresters afterward privately that in the case of Serjeant Jeofres it was adjudged that where one had made his Will and after one of his friends came unto him and demanded of the Testator if he had made his Wil and he answered no. And he demanded again will you make your Will and he answered no and yet this was adjudged no Revocation 8. ONe Lea of Essex Privelege was sued in an Action of Battery in the Common pleas Battery and upon non culp pleaded it appeared upon the evidence that the Defendant and others had thrown daggers at the Plaintif and grievously hurt and maimed him in outragious manner and Peryam said to the Jury that they ought to consider that the Plaintif was put in fear of his life and had one of his hands maimed and what damage he had susteyned by his Mayhem and that they ought to give damage as well for the fear and assault as for the Mayhem and when the Jury was gone from the Bar the Defendant caused the Plaintif to be arrested in the Kings Bench for a battery done to him by the Plaintif before and this was shewed to the Court and thereupon they sent for Lea and were grievosly offended with him for they said that when a man is sued here Privelege de Court. he ought safely to come and go by the privilege of this place without vexation elsewhere And Lea pleaded that he was ignorant of the Law but the Court answered that ignorantia juris non excusat and therefore they said that they would punish him and discharge the other Then the Plaintif said that he had put in bayl to the arrest and the Court answered if you had not done so we would have discharged you but now we cannot but they commanded Lea to release his arrest or otherwise he should smart for it Fine and Lea was well content to do so Anderson yet you shall pay a fine here allso for otherwise we shall be perjured wherefore because you are ignorant you shall be fined at vj. s and Lea payed the vj. s incontinently and went for to release his arrest Rodes You have escaped well therefore let this be a warning 9. BEtween Smyth and Lane the case was such Copyhold Mith. 27. 28. Eliz. Rot. 1858. Radford A. was a Copyholder in Fee according to the custom of a Mannor whereof the Queen was Lady And she by her Letters Patents let the Copy hold to B. for years and he granted his Term to the Copyholder if by this the Copyhold be determined or no was the doubt And it was agreed by the Court and all the Serjeants 28 H. 8. 30. b. that if the Lease had been made immediately from the Queen to the Copyholder then it had been a plain determination but some put a diversity because the Patentee was not Lord of the Mannor Peryam I think the Copyhold is not gone for when the Copyholder hath an interest in possession and the other in the Freehold and the Patentee grants his interest to the Copyholder what surrender can this be Anderson I will not have it a surrender but I will have his interest to be determined For when he is a Copyholder this is by Custom and when the Land is left this is by the Common Law and when this is granted to the Copyholder surely he shall not have both For he cannot have a Copyhold in the Land and have the Land also wherefore in my opinion the Copyhold is gone Peryam Peradventure by the grant to the Patentee the Rent shall pass if there be any but it shall be hard to make it a determination of the Copyhold for they are two distinct and two severall interests Anderson By the grant made to the Patentee the Rent shall not pass for he hath no Reversion adjornatur 10. A Quare impedit was brought by Specot and his wife against the Bishop of Exeter
party from his advantage given him by the Statute But all the other Justices held opinion against him for they sayd that a man ought to appear in proper person upon a Latitat which Anderson denyed and sayd that the Latitats are not but of threescore yeares continuance which the other day Peryam had affirmed and he seemed to mislike with the Latitats And the Serjeant moved for their resolution in the case Anderson All my Brethren are of opinion against me wherefore take your judgement accordingly And so judgement was entred for the Plaintif 21. GAwon brought Debt upon an Obligation against White Traverse with condition that if the Defendant suffer the Plaintif his Tenants and Farmers to enjoy such a Common that then c. And the Defendant pleaded conditions performed and the Plaintif assigned for breach that he did not suffer A. B. his Tenant to enjoy c. Absque hoc that he performed the condition And it was sayd by the Court that this Traverse was not good no more than if one be bound to perform the covenants in an Indenture and the Defendant pleads that he hath performed all generally if the Plaintif assign his breach he shall not say further Absque that the Defendant hath performed the covenants for so much he had sayd before But Walmisley would have put a difference between the cases because in the one there were divers covenants to be performed but not so here Anderson If a man plead a Plea which is sufficient of it self and take a traverse allso you will grant that this Plea is not good quod fuit concessum and this Plea had been sufficient of it self onely quod fuit concessum ergo the traverse was not good without question Et sic opinio totius Curiae 22. GOverstone brought a Replevin against B. Rent charge who avowed the taking for a Rent charge granted to him by the Duke of Suffolk And this was the case The Duke was seised of three parts of a Mannor and granted a Rent charge to the Avowant And one Pole was seised of the fourth part and Hatcher purchased the Dukes three parts and the part of Pole allso and demised a fourth part to the Plaintif but the Serjeants could not agree whether it was Poles fourth part or otherwise the fourth part generally and as it seemed to the Court if it were the fourth part of Pole then the Avowry is not maintainable but otherwise if it were the fourth part generally And after in Michaelmas Term the case was rehearsed again and it was that he demised eandem quartam partem to hold at will And all the Justices agreed that it shall be discharged because it was never charged allthough once he might have distreined in all the Mannor Vnion of possession for that then there was no fourth part for all was alike in the hands of the purchaser but now when the fourth part is in the hands of a stranger it is no reason that it shall be charged Walmisley But the Tenant at will hath nothing but the profits by the way of taking Tenant at wil. and not any land but if Hatcher had made a Feoffment then I agree that it shall be discharged â—eryam And as well shall Tenant at will take the profits in his own right as long as the will doth continue wherefore judgement was given for the Plaintif 23. LEssee for years Wast the reversion in fee to Constance Foster and the Lessee granted over all his term and interest to A. B. Pasch 18 El. reserving and excepting all trees growing in and upon the premisses Rot. 420. the Lessee makes wast and destruction in the trees and C. F. brought Wast against the assignee and if this action will lye or no was the question wherein it was disputed whether this exception and reservation made by the Lessee be good or no for if the reservation be voyd then the action will lye well against the Assignee and thereupon these cases were put to shew both what interest the Lessor and Lessee have in the Trees viz. 33 Hen. 8. 2 Hen. 7. 42 Ed. 3. 21 Hen. 6. 46. 27 Hen. 6. Wast in Slatham 2 Eliz. fol. Danseyes case 7 Hen. 6. 12 Ed. 4. but to prove the reservation voyd Fenner took this ground That thing which a man cannot grant he cannot reserve and the Lessee cannot grant the Trees ergo he cannot reserve them And afterwards judgment was given for the Plaintif for default of pleading on the part of the Defendant but for the matter in Law two Judges were against the other two so that they could not agree De Term. Mic. An. Reg. Eliz. xxix xxx 1. AN action of Debt was brought by Bret against Andrews upon an Obligation indorced with condition to stand to the arbitrement of A. B. Request who did arbitrate that the Defendant should pay to the Plaintif xxâ—l and appointed no certain day of payment and the Defendant in pleading confessed the arbitrement but he sayd further that the Plaintif did never require him to pay it and thereupon the Plaintif demurred in Law and upon reading of the Record the Court held clearly that it was no plea because the Defendant at his peril ought to make payment within convenient time and the Plaintif needeth not to make any request And Anderson commanded to enter judgment accordingly 2. FEnner moved this case Possibility of Interest a man deviseth lands to his Wife for term of her life and if she live untill his sonne come to the age of 24 yeares that then he shall have the lands and if she dye before he come to that age that then I. S. shall have it untill his sonne come to that age and dyed then I. S. dyed before the wife and after she dyed before the sonne came to 24 years if the Executors of I. S. shall have the land untill the sonne come to that age or no was the question And the opinion of all the Court was that they shall not have it because their Testator had never any interest vested in him Fenner But here was a possiblity of an interest Curia But that is not sufficient Rodes cited the case of Bret and Rigden in the Commentaries Grant Anderson If I grant you that if you pay me xxl. at Easter then you shall have an Annuity of xl s to you and your heirs if you dye before Easter now your Heir shall never have it and so in this case 3. THatcher recovered in an Assise of Novel disseisin against Elmer for Lands in Hackney in Middlesex Redisseisin and after Elmer re-disseised him and Thatcher re-entred and Elmer disseised him again And Fleetwood moved the Court if Thatcher may have re-disseisin because that after action accrued to him he had re-entred Anderson What is the Judgement in this Action Judgement Surely it is not that he shall recover any land but double damages and that the
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
shall have the corn for if Lessee for life leaseth for years and this Lessee for yeers sowe the land and the Lessee for life dye now the Lessee for yeers shall have the corn by reason of his right to the land at the time of his sowing and never lawfully devested by any Act done by himself and he denyed the cases put by Mr. Tanfield and so concluded Gawdie The lessee for yeers of the Tenant for life shall have the corn and he denyed some of the cases put by Mr. Tanfield for in the case where Tenant for life sowes the land and after assigns over his esttae now if Tenant for life dye the Assigne shall have the corn as well as the Executors of the Tenant for life if he had not assigned over his estate But I agree the case of the devise for life of land sowed with the remainder for life for there he in remainder shall have them and the laches of the not entry of the Lessee for yeers shall not prejudice him Lessee for years ousted for it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted and after the Tenant for life dye yet the Lessee for yeers shall have trespasse with a continuando for all the mean profits The which proves that they belong to him so is it in 38. H. 6. Lessee at wil ousted If Lessee at will be ousted and after the Lessor dye now the Lessee shall have a trespasse with a continuando without regress for when he may not enter Regress the law supplyeth it and the mean profits do belong to him And by consequence in this case the corn belongeth to the Lessee for yeers Ground let for life after sowing of the Tenant for life Popham Sir Henry Knevit shall not have the Corn for if a man lease for life ground which is sown and the Lessee dye now the Lessor shall have the Corn and not the Executors of the Lessee for life And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life of ground sowed and the Tenant for life dye that he in Reversion shall have the Corn Disseisor sow the land of tenant for life And if a Disseisor sow the land of Tenant for life and the Tenant for life dye now the Executors of the Tenant for life shall have the Corn and not the Disseisor nor he in Reversion and by consequence the Lessee for years of the first Lessee for life in this case Fenner was of the same opinion and after it was adjudged that Knevit should have the land and that Poole should have the Corn because of his possession 61. RAme sued a Prohibition against Patteson Prohibition for Dotards and the question was if Trees which are above the age of twenty years become rotten and are cut down for fuell shall pay Tyths or not and the opinion of the Court was that they shall not for Tythes are payable for an increase and not for a decrease and being once privileged in regard of hie nature this privilege shall not be lost in regard of his decrepitage 62. PArtridge brought an Action of Debt against Naylor upon the Statute of 1 2 P. M. 12. Empounding For taking of a Distress in one County and driving it into another and the case was that three men distreined a flock of Sheep and them impounded in severall places and if every of them shall forfeit a hundred shillings severally or but all together a hundred shillings Common place The Court was divided for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings and treble damages but Walmisley thought that every one should forfeit a hundred shillings and he put a difference between person and party for many persons may make but one party 63. BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts Erroneous Judgement in London was a forfeiture of their Liberties but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated and was made finable as in Chester if they give an erroneous Judgement they shall forfeit an hundred pound for these inferior Courts which have peculiar Jurisdictions ought to do justly for if these Courts shall not be restrained with penalties Justice will be neglected and before the Statute of 28 Ed. 3. those of London might not reform Errors in London 64. NOta per Doctor Amias in the Lord Souch his case Caveat if a Church become voyd and a stranger enters a Caveat with the Register of the Bishop that none be instituted to that Church untill he be made privy thereunto and the Bishop before that he have notice of the Caveat institutes an Incumbent the Institution is meerly voyd in the Spiritual Law for the Register ought to notifie the Caveat to the Bishop and his negligence in that shall not prejudice him that entered the Caveat and if the Bishop have notice of the Caveat and gives day to him that puts that in and before that day he institutes an Ineumbent this is meerly voyd for the entering of the Caveat is as a Supersedeas in our Law 65. THornton brought an Action upon an Assumpsit against Kemp Day of payment and declared that the Testator was indebted to him in ten pound and in consideration that the Plaintif would give day to the Defendant being Executor to pay that until Michaelmas he assumed to pay that in facto dicit that he hath given day and yet the Defendant hath not that payd The Defendant pleaded in bar that post praedictam assumptionem factam and before Michaelmas the Plaintif did arrest him for the same Debt and demands Judgement and upon that the Plaintif demurred Gawdy When he hath given to him day of payment usque ad Michaelmas allbeit he arrest him before that time yet if he do not receive the money before Michaelmas the consideration is performed Fenner I deny that for to what purpose is the giving of day of payment untill Michaelmas if in the mean time he may sue him Popham I agree with my brother Gawdy for insomuch that he onely forbears the payment untill Michaelmas and doth not promise to forbear to sue him the payment is forborn if the money be not received 66. SHerington â—ued a Prohibition against Fleetwood Parson de Orrell Prohibition in Com. Linc. for that that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments and the now Plaintif being Defendant in the Spirituall Court pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture and for this payment he had been discharged of payment of Tythes for all Agistments in that land Payment for one thing shall not discharge another Popham This payment of money for Milch
dyed and if the estate of Tho. was determined by the death of Nich. was the question Johnson There are two points in the case the first if by this word Assignee an Occupant shall have the land and I think he shall not And the second point is when a lease is made to one and his Assignees for his own life and the lives of two others if now his own life confound the other two lives for that that it is greater to the Lessee than the other two lives and he said the Lessee hath no estate but for his own life and when he dyed the state is determined and to prove that he cited the opinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie without impeachment of Wast the remainder to him for his own life that now he is punishable of Wast for that that when the remainder is limited unto him for his own life Wast against the surviving Joyntenant this drowneth the estate pur auter vie which was in him before And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast and one of them purchase the Fee simple and dye now his heir shall have Wast against the Survivor And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane Cook è contra And the case is no more but that a lease is made to one and his Assignes for his own life Remainder for years to the tenant for life and for the lives of two others and I think that all may stand together for a man may have an estate for his own life the remainder for yeares and both may stand together in him simul semel for that that albeit that the Lessee may not have that during his own life yet he may dispose of that and by that means shall have the benefit and so in this case and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant and the inconveniencies shall be exceeding many in this case if the estate doth not endure for all their lifes for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years and usually Tenants in tayl make such leases as these be and for that the generality of the case ought greatly to be regarded and there was a case adjudged in the Common place between Chambers and Gostock Chambers against Gostock where a lease was made to two for their lives and the life of a stranger and one of the Lessees dyed and the Survivor granted the land for his life and the life of the stranger Burdels case and it was no forfeiture and allso it was Burdels case in the Common-place 32 Eliz. where a lease was to him for his own life and the lives of two others and a good lease for all their lives Occupant And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor Gawdy The cases put by Mr. Johnson are not like to the case in question The greater estate preceding the less both may stand and I will agree them for here the greater estate precedeth the lesser I hold that a lease made to one for his life the remainder to him for anothers life is good for he may it grant over and so I think in this case that so long as any of the lives remain living that the estate remains Fenner I am of the same opinion for I think that the state pur auter vies is in the party to dispose at his pleasure so Judgment was given for the Defendant 87. HArding brought an Action of Trover of goods against Shâ—rman Visne and declared of a Trover at D. in the County of Hunt The Defendant pleaded that he bought the goods of one I. S. at Roiston in the County of Hertford in open Market and demanded Judgement The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Huntington by fraud and Covin And after bought them again at Roiston as the Defendant supposeth the Defendant rejoines that he bought the same goods bona fide at Roiston Absque hoc that he bought them by fraud apud D. in Com. Hunt Glanvile pleaded in arrest of Judgement that the Visne ought to be of both Counties Gawdy seemeth to agree but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties therefore Gawdy gave Judgement for the Plaintif for by this speciall Traverse the buying at Roiston shall not come in question 88. PAyton being High-Sherif Keep harmless brought Debt upon an Obligation against his under-Sherif and the Condition was to perform all Covenants in a pair of Indentures conteined and one Covenant was that the under-sherif shall keep all the Prisoners committed to him untill they be delivered by the Law and allso to save Mr. Payton harmless of all escapes made by the said Prisoners And the Defendant pleaded performance of all Covenants Godfry The Plea is not good for one part is in the Affirmative and the other in the Negative By which the Defendant ought to plead that the Plaintif non fuit damnifieatus and so was the opinion of the Court by which day was given to the Deâ—endant to amend his plea. 89. A Man brought an Action of Trespass for entring into an house and breaking of his close in Dale Variance between the declaration and the new assignment or the title of the Plaintif The Defendant said that the said house and close in which the Trespass is supposed to be done conteins twenty Acres and is at the time of the Trespass supposed was his Freehold And the Plaintif replyed quod locus clausa in quo supponitur transgressio est anum messuagium and makes him a Title to it To which the Defendant pleaded non Cul. And it was found for the Plaintif and for that that the Plaintif by his Replication made to him Title but to a messuage and doth not maintain his Declaration which was for the messuage and the close therefore it was awarded quod querens nihil capiat per Billam sed quare if this do not amount to a discontinuance of the close onely and so helped by the Verdict 90. THomas Allen brought a Writ of Debt against William Abraham upon an Obligation bearing date in October Counterbond for an Obligation allready forfeited The Condition was that whereas the sayd Thomas Allen at the request of the above bounden William Abraham standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May the which May was before the
date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
Cook Attorney generall Alienation by a Bishop that he said in an argument in the Exchequer if a Bishop with consent of the Dean and Chapter alien land belonging to his Bishoprick in fee that a contra formam collocationis doth not lye and so he said he could shew the resolution of all the Judges of England the reason is for that that the Statute of Westm 2 cap. 41. whereupon this is founded speaks only of Abbots Priors or Masters of Hospitalls and albeit there are other words general to wit or Masters of other Religious or Ecclesiasticall houses yet that doth not extend to Bishops which is an higher diginity than an Abbot but the generall words after ought to be supplied with intention of other houses inferior to those named before So hath it been ruled that a Lease by a Bishop is out of the Statute of 13 Eliz. cap. 10. which commenceth with Dean and Chapter howbeit there are generall words after to wit or any other having any Spirituall or Ecclesiasticall living which is intended of any other inferior to those named before and never was intended to extend to superiors but as I think the contrary hath been since adjudged 103. VPon an Evidence in an Ejectione firme by Cootes against Atkinson for land in the County of Derby Whether a lease be bound by the Statute of 4 H. 7. It appeared that a Lease for yeares was made of the said land 20. H. 8. for 80. yeares and after the Lessee was ousted and died intestate And after in 4. and 5. P. Mar. a Fine was levied of the said land with Proclamations and the Conusee enjoyed it untill 37. Eliz. in which year letters of Administration of the goods of the Lessee was granted to I. S. which entered and made the Lease to the Plaintif Godfrey moved that this Fine with non claim for five yeares shall bind the right of the term by the Statute of 4. H. 7. which hath a saving of title and interests So as they make their claim within five yeares A good distinction otherwise their title and interest is bound Cook and Tanfield A right of a term is not within the Statute of 4 H. 7. but right of Free-hold or inheritance and so it was agreed in Stamfords case 21 Eliz. and sure hath been diverse times holden Godfrey Stamfords case was a lease to commence at a day future and then a Fine and non claim for 5 yeares before the day of the commencement shall not bind the right of that Lease but a Fine levied after the day of commencement although before any entry of the Lessee shall bind Saffins case Gawdy Fenner absent caeter Justic held that a Lease for years shall never be bound by the Statute of 4 H. 7. and therefore the Administrator may lawfully enter This was the Title of the Countess of Shrewsbury against Rowland Ayre for the mannor of Hassop in Com. praedict But the Jury gave a speciall Verdict and Justice Fenner the next day said that he demanded this question of the Lord Anderson And he is clear of opinion that the Statute of 4 H. 7. extends to bind a right of a term if the Lessee were or might have been ever in possession before the Fine 104 POllard and his Wife brought an Action upon the case against Armshaw for these words Slander Thou art a whore for I. S. Goldsmith hath the use of thy body the cart is too good for thee Popham et tota Curia The Action will not lye for the Common-law cannot define who is a Whore but if one keep a victualling house or Inne and one say that she keeps a house of Bawdry A Victualing house an action lyes and so was Ann Davies case because it may be a meanes to make honest guests to forbear the house and so breed a temporall loss to the owner 105. INter Palmer Humphrey Inquisition upon an elegit the case was such upon an Elegit a Sherif impannelled an Inquest which found that one Henry Fry against whom the Elegit was taken out was possessed of a Lease for 100. yeares to begin at the Feast of St. Micb. Anno 2 3. P. M. when in truth as it was found by speciall verdict in this action the Lease was to begin at the Feast of St. Mich. Anno 3. 4. Phi. Ma. Cujus quidem Henrici Fry Statum interesse terminum in ten prae ne dit praedict Juratores praedict appreciaverunt to 80. l. and the Sheriff sold the Lease as a chattell for lxxx l. The question was if the sale by the Sheriff be a good sale Popham It seems to me the sale is good for albeit the Lease is misrecited and Heâ—ery Fry hath not any such Lease yet when the Jury comes to praise it and the Sherif to sell his estate in the land they do not referr that to the recitall before but generally that they shall sell all the state interest and term of Henry Fry But if this word praedict had been in the inquisition sale it had been otherwise as if the Sherif had said all which said estate term then he had referred that to the recitall before which being false will make the sale void for that he said that it was agreed in the time of Sr. Christopher Wray about 21 yeares past between Sr. G. Sydnam and Rolls upon a Fieri facias where the Inquest found that the party against whom c. was possessed of a certain term bearing date c. which did not â—ear such date and the Sherif sold the sayd term And it was ruled that the sale was not good But the Court did then advise the party to take a new Fieri fac A good form of finding a term by inquisition and that the Inquest should find generally that he was possessed of a term for years yet enduring and the Sherif upon that made sale accordingly and that sale was holden good for that the Extendors and Sherif could not come to the knowledge of the certainty of the term so in the principall case the sale being of a term and the state of the party in the Tenements and not of the term and estate aforesayd which was falsly recited this is a good sale which was in a manner agred by all the Justices but adjâ—rnatur At another day Tanfeild moved this case again Popham I have considered of the Record with advise and I think as this case is that the sale of a term by an Elegit is voyd The difference between a Fieri fac and an Elegit and for that the difference between a Fieri fac and an Elegit is to be considered For the Elegit is that per Inquisitionem sacramentum 12 bonorum hominum per rationabile precium extent the Sherif should apprise the goods and chattels and extend the land so without inquiry the Sherif may not sell quod fuit concessum
a Grantee of a Reversion for years be within the Statute or not Gawdy Well enough For the words of the Statute extend to that quod fuit concessum Then it was moved that this was a meer collaterall Covenant between the persons and not concerning the estate of the land and for that not within the Statute Popham sayd Covenant reall which concerneth the estate If nothing be sayd to the contrary intretur Judicium for the Plaintiff afterwards the case was moved again Gawdie It seems the case is Assigne which in regard of his reversion as of a Covenant may well maintain this action by the Statute of 32. Fenner This Covenant is not any Covenant to be performed during the estate or terme of the Defendant but it is a Covenant to doe a thing in the end of his term and for that is not a Covenant of which the Assignee of the reversion shall have benefit by the Statute for that he hath not any reversion depending upon any estate when the Covenant is alledged to be broken for the Defendant when he breaks that Covenant is but Tenant at sufferance Gawdie contra the Covenant is not to doe a thing after the terme determined but at the instant of the determination of the term and therfore it is a Covenant annexed to the State and runnes with the Land and therefore the Plaintiff shall have advantage over it 110. TRespasse and assault was brought against one Sims by the Husband and the Wife for beating of the woman A Child born living but bruised Cook the case is such as appears by examination A man beats a woman which is great with child and after the child is born living but hath signes and bruises in his body received by the said batterie and after dyed thereof I say that this is murder Fenner Popham absentibus cateris cleerly of the same opinion and the difference is where the child is born dead and where it is born living for if it be dead born it is no murder for non constat whether the child were living at the time of the batterie or not or if the batterie was the cause of the death but when it is born living and the wounds appeare in his body and then he dye the Batteror shal be arraigned of murder for now it may be proved whether these wounds were the cause of the death or not and for that if it be found he shall be condemned 111. GOodale against Wyat in trepasse The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee Mortgage and morgaged it to one Woodliff upon condition that if he or his Heires did pay to the Heires Executors or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment and the Seisin thereupon given should be void and afterwards Woodliff infeoffed Goodale of the same land and gave notice of the said Feoffment to Sr J. P. and after Woodliff dyed and Sir J. agreed with the heir of W. to wit one Drew Woodliff to take 30 l. for the said 50 l. but when the 30 l. was to be paid Sir J. paid to the said Drew VV. all the fifty pounds and after such payment made Drew VV. gave back to the said Sr. J. 20 l. parcel of the 50 l. Altam 2. points are in the case The first is to whom the payment of the money as this case is ought to be made and I think to the Feoffee because the Heir hath nothing to do in the land and to prove that he cited fundamenta legum 17. Ass 2. 6. R. 2. Plesingtons case and the case of one Ramsey 19. Eliz. was such a man infeoffed three Ramseys case upon condition that if the Feoffor paid to them or their heires 100 l. that then he might re-enter and after one of the Feoffees dyed and the Feoffor tendred the money to his Heir and adjudged a void tender And also Littleton proves that but tif the condition might be performed to the Heirby payment that ought to be precisely performed for he is now as a stranger having nothing in the land and the Covin between the Feoffor and the Heir must not hurt my Olient for by 4. E. 2. câ—i in vita 22. If cui in vita be brought against a Prior and hanging the action he is deposed by Covin this shal not abate the Writ and it was adjudged in this Court where a man was bound by Obligation to deliver a bond and after he got a judgement upon it and then delivered the bond and holden no performance of the condition because the intent was not performed and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed whereby the Plaintiff granted that if the Defendant made a Recognisance to him that then the Writ of accompt shall be made void and he shewed how he made a Recognisance But the Plaintiff said that after the making and before deliverie of that to him Composition by Executors the Defendant took it from the Clerk and therefore was adjudged to accompt Precisely named and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes if he do license him and then disturb him the condition is broken and the common case of Executors will prove this for if an Executor have but 20 l. assets in his hands and is in debt to two men in 20. l. to either of them if he pay but 10 l. to the one and have an acquittance of him for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other for no compacting between strangers shall prejudice my right per quo c. Payment upon a mâ—rgage good to the Executorrs cleelry Gawdy I think cleerly if the payment had been intirely made to the Heir without collusion it had been good for that he is preisely named for none will deny but that if the payment had been made to the Executors it had been good but the Covin between the Heir and the Feoffor peradventure will make no payment Father enfeoff the son and for that 34. E. 1. Warrantie 88. If the father infeoff the Son to the intent that this land shall not be assets to the Sonne to bar him in a Formdone this Covin will not serve to aid him Covin by administration and 2 3 Mar. the Husband dyed intestate and administration was committed to the wife which tooke another husband and the second husband and his wife as Administrators brought an action of Debt hanging which suit the Sonne of the intestate by fraud and covin between him and a Debtor obtained other letters of Administration to him and the woman joyntly and after judgement the sonne by covin to defeat the execution released to the Debtor all demands and executions and after the Husband and