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
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I
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
had warranty to detain Garrâ—nty and they made partition the one could not vouch without the other Vâ—uâ—her and therefore she should pray in ayd and then both to vouch Paramount and so the Statute which giveth pâ—â—tition between Joyntenants saveth their warranty otherwise it were gone And so if two Joyntenants make a lease for years reserving rent upon condition Partition of a 〈◊〉 and after they make partition as they well may having the reversion and the freehold in them I hold the Law clearly that the one nor the other shall enter for the condition broken Then in the case of the King I hold the Law that it shall not be apportioned and yet I agree that the King shall have his Preâ—â—gatives for his present lands and goods Prerogative but he shall never have Prerogative when wrong shall be done to any man Rent charge appâ—rtioned If the King have a Rent chage and after Purchase parcell of the Land charged it shall be apportioned 21 Hen. 7. he may well condition that his Feoffee shall not alien for in those cases there is no prejudice to others but all those cases run upon other grounds And in Bartlets case the King is bound by the Statute of donis conditionalibus for it was a wrong that the Donee at the Common Law should alien the inheritance And this case as me seemeth is not within the concourse of Title Câ—â—â—â—urse of â—itle as my Brother Rodes hath argued neither is the King deceived as hath been said For when the King enters he shall be seised in pristino statu suo Dyer and this is a principall reason in Winters case 16 Eliz. a person makes a Lease reserving Rent upon condition that if it be behind lawfully demanded that then he shall re-enâ—er Deâ—and after the reversion cometh to the King he shall not maâ—â— demand I agree well thereto the reason is because the demand is a thing which goeth to the person of the King Then Sir the Statute is that the King shall have it as the Prior had it which is meant of the estate and not of the person of the King Then Sir it is impossible that the King should have the land as the Prior had it ut in pristino statu suo if he doe not utterly defeat the grant made to Cordall then here the condition is gone The Kings grant against the Law is voyd but not by any grant as it hath been moved but by the operation of the Law And 49 Ed. 3. the King grants that lands shall be devisable it is voyd because it is against the Law and it is against the Law that a condition should be apportioned ergo the King shall not apportion it But admit this question against me then let us see what title the Queen hath by this commission First the commission is to enquire if Cordall his Assigns and Farmers have performed all covenants and provisoes contained in the Indenture Proviso as for that I hold the law clear that they have auâ—hority by those words to enquire of the condicion but for other reasons I think the Commission void For the Commission is to enquire per bonos legales homines de Com. nostre Mâ—dd and it doth not appear here that the Jurors were of Middlesex and therefore the inquisition is not good Further Severall spespecial finding they have found a thing in another County and this they cannot find but I hold that the Jury in one County may find the generall issue in another County Allso I hold that when the party cannot plead that which is the great matter of the Action they may find it in an another County because the party cannot pleade it as in 9 Ed. 2. in debt against Executors c. And for these reasons I hold judgement is to be given for the Defendant 2. RIchard Heydon Misre-cital in Letters Patentt Gentleman demands against Benjamin Ibgrave Gentleman the third part of 40. Acres of Land with the appurtenances in three parts to be divided in Sarrot in the County of Hartford as his right and Inheritance and to hold of our Lady the Queen in Capite and Laies the Esples in the time of Ed. the sixth and that such is his Right he offers himself c. And the aforesaid Benjamin put himself upon the great Assise whether it be his right or no c. And now the Assise made by the four Knights appeared at the Bar Challenge Snagg Serjeant for the Plantif we challenge A. B. for that c. Nelson chief Prothonotary all the Court you cannot challenge because it was made by the four Knights and the Assise is now at the Bar. Snagg well Sir then we will give evidence Anderson for whom are you Snagg for the Plantif Anderson then you shall not give evidence first for the Tenant affirms that he hath more right Evidence and that ought to be first proved Rodes and all the Court So it was here rul'd five years ago in Nowells case and thereupon Puckering gave evidence for the Tenant that it was Parcell of the Mannor of Sarrot which Mannor the Tenant hath and this was granted by the Counsell of the Defendant And in conclusion upon the evidence given the Defendant would have had the Tenant to have Demurred upon his evidence and discharge the Inquest but the Tenant would not in effect this was the doubt K. H. 8. by his Letters Patents gave among other things all the Lands which were in the Tenure of one Whyton and demised to Johnson in the Parish of Watford And it was true that the Lands were in the Tenure of Whyton but not demised to Johnson Misre-citall and allso they were not in the Parish of Watford if this shall be helped by the Statute of Misrecitall and not Recitall is the question and the party did not aver that the intent of the King was to pass this Parcell now in question to the Patentee and the opinion of all the Court was that it is not within the Statute clearly but they said to the Jury that they may find all this matter if they will or otherwise say what they will And thereupon after they were agreed they came again to the Bar and then all the Court told them that yet they might give a speciall Verdict The Jury said we are all agreed that the Tenant hath more right to hold these Lands as he now holdeth then the Demandant as he demands them Anderson then are you discharged and as I think you have done well So they gave their Verdict according to the opinion of the Court for the Statute of Misrecitall and yet Peryam was well content to have them give a speciall Verdict and the Demandant was demanded who appeared and thereupon Judgement finall was given for ever against him 3. ONe Tirrell brought an Action of Debt against a Hundred in Essex Hâ—e and Cry for
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
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
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
half whereby the Land was sown accordingly and that the Bore of Okely came and destroyed the Corn. Sed utrum c. And the doubt rested upon two points 1. because the Verdict saith that it conteineth sixty Acres and so shall be intended not the same place and the Court varied in opinion thereof insomuch that the sixteen Acres are found to be within the close conteining sixty Acres but for the 2 which was that they all four joyned in quare clausum fregit and it appeareth that three have nothing there Verdict shall abate the Writ but that Hare is sole seised And for that the Court held opinion that the Verdict shall abate the Writ for the Defendant cannot break their close where three of them have nothing but Hare onely Rodes A Case hath been adjudged a where Cheâ—ey brought Partition against Bury Partition who pleaded that they did not hold in Common and the Jury found that he and his Wife held in Common and yet the Verdict abated the Writ Windham You will all grant that the other three have no interest in the Land quod Walmisley concessit how then can they have quare 〈◊〉 fregit Fenner Executors shall have quare clausum fregit Executors and yet they have no interest in the Land Rodes There they have an interest for the time Anderson Here is but a bargain and no interest and then the three have no colour to bring Trespass quare elaâ—sum fregit 10. THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law Avoydance and now the Record was read and day given over to hear the Arguments but 〈◊〉 said that it is all one case with that which hath been adjudged here viz. that the Queen hath title of Lapse and doth not present but the Patron presents and after the Church becomes voyd by the death of the Incumbent that now the Queen shall not present but the Court answered Difference between Death and Privation that there the avoydance came by death but here it cometh by privation and whether this will make a diversity was the question 11. HArper brought Trespass against Spiller and Drew Estate upon not guilty pleaded a speciall Verdict was found and the case in effect was this F. gave Lands to a woman to have and to hold to her to the heirs of F. of the body of the woman ingendred what estate the woman had was the question and now the Record was read and day given over to argue it 12. SHuttleworth moved the Court Amendment and shewed that one Brokes by had brought a Quare impedit against the Bishop of Lincoln and others and the Writ was suam spectat donationem and this word 〈◊〉 was omitted and he prayed the Court that it might be amended and he cited 11 Hen. 6. 2. where it was imaginavit and it should have been imaginat fuit and 13 Hen. 7. where the teste was omitted and the Court took time of advisement and at length by the opinion of all the Justice it was amendable and then a Clerk of the Chancery came into the Court of the Common-pleas and amended it 13. IN an Avowry for an Amercement in a Leet By-law a Prescription was made for making of By-lawes and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants and not for the private commodity of any particular man as J. S. onely or the Lord onely As if a By-law be made that none shall put in his beasts into the common-field before such a day this is good but if a By-law be made that they shall not carry hay upon the lands of the Lord or break the hedges of J. S. this is not good because it doth not respect the common benefit of all And Windhaâ—â— sayd that some Books are that they shall bind no more than such as agree to them 14. HAre brought Debt against Curson for a great sum Capias utlâ—gatum and Process continued untill Capias â—tlog And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ because they doubted thereof and the Writ was delivered to the Sherif in Court and he sayd that he would doe his endeavour but Curson hath long kept his house so that he cannot come at him Peryam You may take the power of the Country with you and break his house and take him out for so it hath been adjudged here which the Court granted 15. PUckering shewed how an Action of Debt was brought against an Administrator Assetâ— who pleaded plens administraâ—it and thereupon the Jury found a speciall Verdict that certain Obligations made by the Testator to the value of a hundred pound were forfeit and the Administrator took in the said Bonds and gave his own Bond for the Debt and retained the money in his own hands besides which c. he had nothing c. and if that hundred pound shall be liable to this Action of the Plaintif they prayed the advice of the Court and by the opinion of Windham and Peryam it shall not be Assets because the property is changed in giving his own Bond for the same Payment with Proper râ—â—ds and it is as if he had payd the Debts with his own goods but if he had compounded for less Surplusage then the surplusage should have been Assets But Rodes was of a contrary opinion in the principall case forasmuch as he had payd no money but onely given his Bond for in and Anderson was absent at this day And after at another day the case was moved again by Shuttelworth and then he shewed that for part thereof the Administrator had given his Bond and for another part his promise Promise and he sayd that this is no payment but a composition and therefore no change of property Anderson For so much as he hath given his promise I think it not good because that by this promise this first debt being due by Bond is not discharged but for so much as he hath given his Bond for I hold it good enough because the first Debt is discharged thereby allthough that the Obligation be made to a stranger Estranger by the appointment of the Debtee and allso before the Debt due for by this the first Debt is gone And Windham and Peryam were of the same opinion that the Debt was discharged and that it should not be Assets in his hands but Rodes doubted thereof and it was adjorned 16. JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants Abatement and after a Verdict found for the Plaintif and before Judgement one of the Defendants died and the Writ was adjudged to stand good against the other 17. IN Debt by Saunderson Wager of Law the Defendant pleaded nil debet per legem and in truth the money was due to the Plaintif but the Plaintif was allso
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
have against him untill the 24 of June then next following which was half a year after and because he had not performed this an action upon an Assumpsit was brought and Judgement given for the Plaintif and all the Justices agreed that this was Error because that this thing arbitrated was out of the submission and so voyd for they have no authority to arbitrate that which is not submitted unto them Submission and the submission is onely of things passed and not to come but because that the Defendant had not heard of this Error before therefore they gave him day Afterwards the case was moved again and Anderson sayd that damages recovered doe not lye in arbitrement Damages recovered Peryam Amongst other things they will lye well enough quod Anderson non negavit But they all sayd that they may well assume upon consideration and an Action will be maintainable for it 5. THomas Mounson Esquire Term extinguished sonne and heir apparent to Sir Iohn Mounson Knight brought an Action of Trespass against VVest who pleaded not guilty and upon Evidence it appeared that Sir Iohn Mounson had an estate for years the Remainder in tayl to the Plaintif with divers Remainders over and the Lessee made a Feoffment to divers and a Letter of Attorney to others with commission to enter into the lands and to seal the Feoffment and deliver it in his name to the use of the sayd Thomas and his heirs and another by commandement or Letter of Attorney of the sayd Thomas entred in his name And the Court held this a good Feoffment notwithstanding that both the Lessee and the Attorney were disseisors Disseisors for it is good between the Feoffor and the Feoffee for they sayd that by the Feoffment to the use of him in the remainder and his heirs if he in remainder enter he is remitted and the estate for years is gone implicatively Freehold joyned to the term Morgage for Peryam sayd that in all cases where the Freehold cometh to the term there the term is extinguished And therefore if a man morgage his reversion to the Lessee for years and after perform the condition yet the Lease for years is utterly extinguished And the Evidence on both parts was very long and the chief matter was whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas by which Devise lands were conveighed to him by William Mounson his Father whose heir at the Common Law Sir John Mounson is viz. the Sonne of Roberts eldest brother and the Deed was shewed by VVest and it was perished with Mice all the Seal and part of every side but yet by the last Will of the sayd VVilliam Mounson and by divers other proofs it was evident that the Deed was good and but little in effect was shewed to prove the Deed forged Misdemenour yet the Jury went together and tarryed there all night and in the mean time some of them had victualls with them for one had Cheese and another had Pruens another had Pippins and another had an Orange but he which had the Orange swore that he brought it onely for the smell and therefore he was excused and he which had Pruens had given half a Pruen to one of his companions which eat it and he which had Cheese had eat thereof therefore all those which had victuals Fine and imprisonment were fined at 40 s and they which had eaten at 5 l. every of them and all committed to the Fleet but because they were agreed therefore the Verdict was taken and the Verdict was given for the Plaintif viz. that the Deed was forged by Justice Mounson and the Verdict taken de bene esse and all this matter commanded to be entred for the Justices doubted whether it were a good Verdict This matter was moved divers Terms afterwards and at the last adjudged a good Verdict 6. IN an Ejectione firme by Ashby against Laver for Lands in Westminster Countermand it was sayd by all the Justices to the Jury that if a man hath a Lease and disposeth of it by his will and after surrenders it and takes a new Lease and after dyeth that the Devisee shall not have this last Lease because this was a plain countermand of his Will 7. IN Trespass by Johnson against Astley it was said by the Justices to the Jury that if there were a Chauntery in reputation allthough it be none in right as if it be gone by disseisin yet the Queen shall have the Lands 8. AT Serjeants-Inne in Fleet-street Rent suspended the Justices of the Common Pleas and Barons of the Exchequer were assembled for divers Errors in the Kings-bench and the case of Rawlins was moved again and Anderson and Peryam retained their former opinions and Peryam sayd that he would differ from all the cases of collaterall conditions Feoffment upon condition which may be put for he sayd that if a man make a Feoffment in fee of 20 Acres of land upon condition that if he pay to the Feoffee xx l. at Easter that then it shall be lawfull for him to re-enter allthough that he be re-enfeoffed of 10 Acres yet he ought to perform the condition because it is collaterall But Cook the famous Utter-barrister sayd Truly it hath been adjudged to the contrary and I was privy to it for when he took as high an estate again as he had before by that the condition is confounded and the case of the Corody in 20 Ed. 4. will prove this case Rodes I see no diversity Peryam It is collaterall there but so it is not here but afterwards those two Judges changed their opinions and so the first Judgement was affirmed 9. BRown recovered against Garbrey in an Assumpsit Consideration and thereupon Garbrey brought a Writ of Error and assigned for Error that there was no Consideration for the Declaration was that whereas there was a communication between Brown and a woman for Mariage between them that the Father of Brown had promised to the Wife that if she would marry his Son he would make a Feoffment of his land to the use of himself for life and after to the use of them two in tayl the remainder c. and that Garbrey assured to the Wife in consideratione praemissorum that if the Father did not doe so then he would give the Wife a hundred pound ac licet the Father did not give to them in tayl secund agreament praedict yet Garbrey refused c. And Cook moved that this should be no Consideration for the communication of Mariage was not by him but between strangers to him but if the Father had assumed in consideration of Mariage then that should have been good against the Father but against Garbrey it is â—o otherwise than as if one promise to you to Enteoff you and I say that if he doe not so then I will give you a hundred pound this is
the Declaration ought to agree with the Writ 14. A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster Administrators in an Action upon the case brought against one as Administrator And did not shew by whom the Administration was committed which he ought to have done by 32 Hen. 6. 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant And whether this were a good consideration was another doubt and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid And at this day it was held that when an Action is brought against an Administrator it need not be shewed but in an Action brought by them clearly they ought to shew it And for the other matter whether the Plaintif needed to aver that they had Assets besides the Debts c. it was said that this ought to come and be shewn on the other part And for that Woodwards case in the Commentaries was cited And the next morning Puckering shewed that he had a report of a Judgement given in the Kings Bench that it is not necessary to shew that they had Assets besides the Debts and Legacies c. And therefore he prayed that the Judgement may be affirmed And so it was for Rodes had seen the report of Puckering according to his saying and testified the same whereby Judgement was here given against the Administrator Anderson being in the Starchamber 15. IT was agreed by all the Justices Herriot that for a Herrioâ— service the Lord cannot distrein out of his Fee no more than for a Rent but he may seise a Herriot Custom out of his Fee 16. A Man was outlawed Vtlary and the Sherif retourned the Proclamation tali die omnes singulas proclam fieri feci And did not shew that such a day he made the first and such a day the second c. and this was assigned for Error and prayed that the Utlary night be reversed and so it was 17. FLeetwood shewed that this case came in pleading Rent-service A man had a Rent service payable at the Feast of St. Michael And on Michaelmas day he died about ten of the clock in the morning now he demanded whether his Heir or his Executor shall have the Rent Anderson Hath he not all the day to pay it and upon condition to pay such a sum he may tender it any time before Sun-set Peryam But if the party accept the payment in the morning it is good Curia If it be a case in this Court you ought to demur as your case is and not to be thus Politick 18. A Writ of Error was brought upon a Judgement in the Kings Bench Abatement and one of the parties died hanging the Writ And the Court held this to be an abatement of the Writ and that he ought to purchase a new Writ De Term. Mic. Anno Reg. Eliz. xxx xxxj 1. AFormdon was brought against Haselwood and Haselwood Abatement and the one took the Tenancy of the one Moity Dier 3. 4. Phil. Mar. 134. Absque hoc that the other had any thing therein and pleaded in abatement of the Writ and the other took the Tenancy of the other Moity and vouched Shut Shall I maintain my Writ or answer to the Bar of the other Tota Curia You must needsmaintain your Writ Anderson Where the pleading is such as your Writ cannot be good there it is a ground that you ought to maintain your Writ Praecipe quod reddat but if a praecipe quod reddat be brought against two and the one plead Nontenure and the other accepts the entire Tenancy Absque hoc c. and doth plead in Bar there you may answer to the Bar because there peradventure the Writ is good notwithstanding As if a Writ be brought against the Feoffor and Feoffee upon condition or Morgagor and Morgagee and so there is a diversity 2. IN a Quare impedit brought by the Queen against the Archbishop the disturber Vtlary and the Incumbent the disturber pleaded that long time before he had any thing in the Advowson by whose Utlary the Queen is intitled King Ed. 4. was seised of the Honor of Haststings and granted it to the Lord Hastings in Fee and further granted omnia bona catalla omnium teneutium ejusdem honoris sive manerii residentium non residentium qui forent utlagati c. and so conveyes the Honor by descent to the now Lord Hastings and did not aver that he which was Utlawed Averment was a Tenant of the Honor. Curia It is not good without doubt for otherwise he is not within compass of the Grant and therefore a day was given by which if the Defendant did not shew better matter the Queen should have Judgement 3. IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford Devise and other Defendants Glocester And upon not guilty pleaded Hit 30. Eliz. rot 188. the Jury found a speciall Verdict viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell and of divers other Tenements within the same Parish and within a place known in the same Parish which is neither Town nor Hamlet called Ebney in which Samford had a Tenement which hath Lands time out of mind perteining thereunto lying as well in Ebney as in Stone-house which Tenement is in the Tenure of one Bucher by Copy of Court-roll according to the custom of the Mannor Afterwards William Samford deviseth to his Brother after the death of Bucher all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney Now the question was whether the Lands in Stone-house perteining thereunto shall pass or no And the famous Cook argued that it should pass for this word Tenement referreth to his dwelling which is in Ebney and not to the place where the Lands lie And therefore he said that words ought to have relation ut ne impediatur sententia sed ut res magis valeat quam pereat Quare impedit and he cited 4 Ed. 3 in a Quare impedit quod permittat praesentare ad ecclesiam de Mourton Majorem and the Defendant demanded Judgement of the Writ for false latin because of Majorem and yet it was adjudged good for it shall be referred to ecclesiam and he cited 19 Ed. 3. 3 Ed. 4. Allso it passeth by this word appurtenances for there was such a Chambridgshire case here within this Twelve-month where a man gave instructions to another to make his Will in this form I will that B. shall have my House with all my Lands thereto apperteining And the other made it in these words I devise to B. my house with the Appurtenances and it was adjudged that
de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei every one will agree that this is voyd but if a further addition be made to the Corporation the Lease is true Addition superfluous shall not hurt allbeit that it be varying as if the Lease had been Minister Dei omnipotentis the addition of this word omnipotent shall not hurt sic de similibus And allbeit that it be not agreeing in words yet if it agree in common understanding Common understanding it is good but if in common understanding the grant may not be taken according to the Foundation if it be not wrested to an unexpected understanding there it is not good and if the Foundation had been in English words Minister of God of the poor house of Donington and the Lease by name of Minister of the poor house of God of Donington every one will agree that this is palpable variance and the Lease not good And I doubt of the case of Everwick for there the Prior beatâ—â— Mariae brought an action by name of Prior beatâ—â— Mariae extramures civitatis Ebor and if this case were now to be adjudged that would be variance as the case of Bristoll Prior beatae Maria de Bristoll made a Lease by name of Prior beatae Maria juxta Bristoll and this Lease was adjudged voyd but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance for it had been but an explanation which will never hurt and for that the Court was so divided in opinion that is to say two against two and the case concerned a poor house They moved the parties to comprimise 8. RUswell brought disceipt against Vaughan Disceipt and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that and sold the profits of the sayd Advowson to the Plaintif pro quadam pecunia summa And it was pleaded in arrest of Judgement for that the Plaintif did not aver ubi revera the Defendant had no title non allocatur 9. THe case was that the Queen made a Lease for years Burrough versus Taylor rendring rent at the receipt of her Exchequer or to the hands of her Baylif upon condition that if the rent be not payd that the estate shall cease Payment of rent the reversion being granted away by the Queen after the Queen granted over the reversion and whether the rent shall be now tendered upon the land or at the receipt of the Exchequer or to the person of the Assignee of the reversion was the question and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land or otherwise he shall not re-enter for the condition broken that for two causes the one for that that when the reversion was in the Queen Election the Lessee had election to pay it at the receipt of the Exchequer or to the hands of the Queens Baylif and when the Queen had granted over the reversion the election of the Lessee is tolled by which now the rent shall ensue the nature of other rents reserved by common persons The common receipt of the Exchequer and those are payable upon the lands another reason is every rent reserved by the Queen is of common right payable at the receipt of the Exchequer or to the Baylifs of the Queen without words appointing at what place it shall be payd for these are the usuall receipts of the Queen and so the words which appoint that to be payd at the receipt of the Excheq â—r to the hands of the Baylif of the Queen are idle words for that the Law appointeth so much of common right ex praerogativa Regis but when the reversion is transferred into the hands of a common person No prerogative can be granted over there this Prerogative ceaseth for it cannot be granted to a common person and by consequence the rent shall be payd upon the Land 10. THomas VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome recuperet No amendment in point of judgement and for that Error was brought and Serjeant Heale moved that the Record might be mended for that it was the mis-entring of the Clerk but adjudged to the contrary for the Judgement is the act of the Court and not of the Clerk 11. EDmund Nevell brought an Action of Trespass against J. Sayle Abuttals and declared Quare clausum fregit in quodam loco vocato Claveringfield abuttan super quoddam molend in tenura J. S. Opinio Curiae If the Plaintif do not prove his Buttals he is gone And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged and howbeit that there be a way between the Close and the Mill yet the Buttall is good 12. RIchard Somerstailes brought an Action upon the case for slanderous words Slanderous words that is to say R. S. is a very bad fellow for he made J. S. drunken in the night and consened him of an hundred Marks and upon not guilty pleaded it was found for the Plaintif and Judgment was stayed for the words are not sufficient to maintain an Action 13. IF the Heir of the Morgagee is in Ward Mortgage and the Morgager payeth the mony his entry is not lawfull upon the King but shall be put to monstrans de droit per Popham chief Justice 14. HAmond brought Debt upon an Obligation against Hatch Award of paâ—t onely and the Condition was That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant for and concerning the matters contained in 9 severall Articles bearing date the day of these presents So that the same be given up under the hand and seal of c. And the Arbitrator made an award of 7 of the sayd Articles omitting the other two and whether the Obligor ought to perform this Award was the question Man I think he ought to perform the Award for that he is bound by Obligation to perform it and to prove that he cited 5 Edw. 4. 19 Hen. 6. 17 Edw. 4. Gawdy The words of the Condition are so that the same Award be given up in writing before such a day and that shall have reference to all the Articles for the Submission was conditionall as 14 Elizab. And after Judgement was given quod quer nihil capiat per billam 15. How against Broom and others A Man leased a House and a Close rendring rent and the Lessor entered into the house and pulled that down and after
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
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
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
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
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
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
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
Wife sued execution and the Debtor upon this release brought an audita querela and adjudged against him because of covin but there is a third matter which makes an end of all for it is found that Sir John Pagginton entred upon Goodale and Goodale re-entred and then the Defendant entring is a Trespassor to the Plaintiff because no title is found for him to make his entrie lawfull Finner I thinke no payment ought to be made to the heir in this case no more than it shall be where a man is bound by obligation to pay a lesser sum to the Obligee his Heires or Executors there payment shall be to the Executor and not to the Heir And I think in this case Conusee by Starute grants over his estate that the payment ought to be to the Feoffee for that that he is to have the losse for by 22. E. 3. 15. E. 3. if a man have exeution by Statute and grant his estate over if the Conusor will pay the money and have the land again it shall be paid to the Grantee and not to the Conusee But I am cleer in opinion that for another cause judgement ought to be given against the Defendant for the words of the condition are sub conditione That if Sir John Pagginton pay 50. l. to the Heires Executors or Administrators of W. That the said Deed of Feoffment Liveriâ— cannot be void without a reentire and the seizin upon that given shall be void And I think it is no condition for livery of seisin may not be void without a re-entry as 15. H. 7. is but for the matter of the Covin it seems to me that if the Heir may receive the money that shall not prejudice for if he have right to have the money who hath any wrong if he give part of that to another Clinch The payment of the money to the Heire is good for when a man departeth with his estate it is in his dispose to annexe what condition he will and for that when he appointeth to the Heires Executors or Administrators payment to any of them is good And he said it was a good condition Possession a good title against all which have not a better and no fraud for the duty was due to the Heir but for the last matter that is not to be cured for when one title is found for the Defendant and it is found that the outed one that had elder possession his entry is torcious Popham I think the condition is not good for whensoever you will have an estate of inheritance to cease Estates beginning by liverie and otherwise you ought to have apt words to make it cease for an estate which beginneth by liverie may not cease by words but it is otherwise of an estate that beginneth by contract without any liverie and seisin but in the point of fraud I am of opinion with my brother Gawdy Fraudulent recoveries are void although they be by a good title For fraud in our law is not favoured albeit the partie have right for if he that hath right is of covin with one to disseise him that is in possession to the intent that he will recover against him now this recoverie albeit he hath right will doe no good to him but the last makes all without question and so judgement was given for the Plaintiff 112. SAyer brought an Eejectione firme against Hardy A Lease determinable made good for the insensibility of words and a speciall verdict was found to wit that a Lease was made to a widow for 40. yeers sub hac tamen conditione quod si ipsa tam diu sola fuerit inhabitabit in the same house the woman continued sole all her life and dwelt all her time in the said house and dyed within the term the question was whether the term be determined or not and whether the words make a condition or limitation Morgan It is no condition and cited Colthursts case but if it were a condition here is no breach alleged for the death is the Act of God which no man may resist and the Act of God may not prejudice any man Bromly I think the word makes a Limitation and not a Condition and he tited the Lord Barkly's case Gawdie If a Lease be made to a feme sole if she so long live sole and continue unmarried now if she dye the Lease is determined Differences between conditions and limitations and per Litl If an Abbot make a lease for 40. yeers if he so long be Abbot if he after be deposed or dye the lease is determined So is it of a lease made by the Husband if he so long continue Husband of such a woman but in this case the words are insensible and for that it is neither condition nor Limitation vide 3. E. 6. Dyer 65. 66. Popham Clinch It is neither Condition nor limitation but if this word si had been omitted it would have been a condition Or if the words sub conditioâ—â— quod had been omitted it would have been a limitation And if I make a Lease for 40. yeers if the Lessee dwell upon the thing let during the term there if the Lesse dye the Lease is determined for that the point of limitation goeth to all the term but if it be a lease for 40. yeers if the Lessee dwell upon that during his life there if he dye the Lease continueth So they all concluded that the terme yet continueth per quod judicium intretur pro quer 113. IN the case between Walter and Walter for 20. l. per annum to be paid to a Justice of Wales for the Office of the Clerk of Fines Assumpsit in consideration of an Office sold For a Justice of Wales may by Prescription take notice of Fines of Land lying in certain Shires in Wales and this 20 l. per annum was to be payd by the Servant to the Master for the sayd Office for the Clerks Fee was v. s iiij d. of every Fine The Action for not paying the xx l. Mistrâ—all was brought and tried in comitatu Gloucest And therefore Mr. Attorney said it was mis-tryed for properly it ought to be tryed in one of the three Shires in Wales John Walter I think the Tryall good for 30 Eliz. there was a Case in this Court between Beveridge and Conney Reveridge against Conney And the case was that a Lease was made in the County of Northampton of lands in the County of Cambridge and the Lessee was bound by Obligation to pay his rent in the County of Northhampton The Defendant pleaded payment in the County of Cambridge and this was found in the County of Northampton Gawdy This is a good Case let us see the Record Walter You shall Sir But the Court seemed to incline against Walter Cook said that in this case the Assumption is voyd per le Statute de 5 Ed. 6. cap. 16. For it is not
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good