Oathes and they who had eaten were fined five pounds and committed to the Fleet. And some of the Iustices did doubt if the Verdict were good and upon many Presidents had it was adjudged good and they relyed much on the President of the 12 H. 8. Rot. 102. where one of the Iury did eat before they were agreed and yet the Verdict was good And after a Writ of Error was brought and the Iudgment affirmed 20 H. 7.3 13 H 4.13 Pasch 27 Eliz. A Man gives land to I.S. in the Premisses Habendum to him and three others for their lives Et eorum diutius viventium successive The question was what Estate I.S. had and whether there be any occupancy in the case Coke hâ—ld that I.S. had but an Estate for his own life because he cannot have an Estate for his own and anothers life where the interest of both begin at one instant and the Habendum by no means can make a Remainder as if a Lease be made to one for life habendum to him and his first begotten Son this makes no remainder to the Son although some have held to the contrary so of a Lease to one for years habendum to him and another does not make any remainder to the other also the word Successive will not make a remainder as in the 30 H 8. Br. Joynt-tenant 53. Also one cannot have an Estate for life and for anothers life also in present interest for the greater doth drowne the lesse but if the greater be present and the other future as a Lease to him for life the remainder to him for anothers life or a Lease for life and three years over this is good but if a Lease be made for life and for years the Lease for years is drowned 19 Ed. 3. Surrender 8. where Tenant for life of a Mannor did surrender to him in the Reversion c. Gawdy If a Lease be made to one for life and so long as another shall live quaere what Estate he hath And as to the second point certainly there cannot be an Occupancy for if the Estate be void the Limitation is void also the Occupancy is pleaded Que un tiel and does not say Claymant comme occupant c. for if a man comes a hawking on Land he is not an Occupant and the Book of Entries is that he ought to plead it Clinch Iustice every Occupant ought to be in possession at the time of the death of the Tenant for otherwise the Law casts the Interest upon him in the Reversion But Gawdy and Chute denied this and after viz. 29 Eliz. the Case was moved again by Popham and he made three points 1. If the other three had a joynt Estate 2. If they had a Remainder 3. If there be an Occupancy And he was of opinion that they had nothing by the habendum for they were not named in the Premisses they cannot have a Remainder for the incertainty but if those three had been named in the Premisses habendum to them Successive as they had been named there they had a Remainder for there the certainty appeared 30 H. 8.8 Dyer 361. Also there can be no Occupancy during the lives of the other three but he agreed to the Book of the 18 Ed. 3.34 that a Lease for life the Remainder to him for anothers life was good And that if a Lease be made to I.S. and a Monk it is void to the Monk and the other hath all and that during the life of the Monk there can be no Occupancy And if I make a Lease to I. S. for the life of a Monk it is a good Lease And till the same terme Iudgment was given that they could take nothing in possession joyntly nor by way of Remainder and that no Occupancy could be in the Case and that I.S. had Estate for terme of his owne life onely Stile against Miles STile Parson did suggest that the Land was parcell of the Glebe of the Parsonage and that the said Stile did let the said Glebe being foure and twenty acres to Miles for years rendring thirteen shillings foure pence Rent and in a Prohibition the case was if Tythes were to be paid And Wray said that although it was parcell of the Glebe yet when it was leased out Tythes ought to be paid and if no Rent be reserved Tythes ought to be paid without question but there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tythes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Iustices took no regard of those words But Godfrey said that those words would discharge him but Wray on the contrary for that this Tythe is not issuing out of the Land but is a thing collaterall and if a Parson do release to his Parishioners all demands in the Land yet Tythes are not thereby released for such generall words will not extend to such a speciall matter And in the 15 of R. 2. Avowry 99. one held of another by ten shillings for all Services Suits and Demands yet the Tenant shall pay Relief because it is incident to the Rent and 8 Ed. 3.26 Mich. 29 Eliz. Rot. 2574. or 2375. Stephens against Layton IN an Ejectione firmae upon issue joyned the case in a speciall Verdict was that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife primogenito habend to them diutius eorum viventi successive for terme of their lives and then the Husband and Wife had issue a Daughter The question was if the Daughter had any Estate And three Iustices held that she had no Estate because she was not in being at the time of the Lease made and a person that is not in esse cannot take any thing by Livery for Livery ought to carry a present Estate where the Estate is not limited by way of Remainder 18 Ed. 3.3 17 Ed. 3.29 30. adjudged but it was said at the Bar that if the Estate had been conveyed by way of use it is otherwise And the said Iustices held clearly that the word Successive would not alter the case And the case was further found that William Beale and Sampson Beale did covenant with one Lendall that if Tho. Beale Son of Sampson Beale should marry Margaret the Daughter of the said Lendall if she would assent and also that the said Lendall did covenant that the said Margaret should marry the said Thomas if he would assent Pro quo quidem Maritagio sic tum postea habendo the said William Beale covenanted that he would make or cause to be made an Estate to the said Thomas and Margaret and to the Heirs of their bodies for the Ioynture of the said Margaret and it was further found that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Sampson Beale and William Beale
Statute sayes that the lands devised shall be devised into three parts and that is to be understood of such an estate as may be divided but so cannot a Seigniory For put the case that the Lord held by a Hauke the whole Mannor shall descend and cannot be divided and so de catalla Fellonum Fenner contra For it seems to me that the seignory passeth and so it shall be if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne he shall say infra feodum suum and in reputation amongst men a seigniory is a Mannor for if a man makes a feoffment of a Mannor with livery where he hath no Mannor yet shall it passe 7 E. 3. Where a Mannor passeth by the name of Knights Fee And as to the intirenes of the seigniory it is easily answered for although the rent were entire yet it may be severed for a Rent Charge is entire yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed Walmesley For the Plaintiff the Question is if the Rent passeth by the name of a Mannor to the Devisees If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughters daughter yet this is good because in common speaking she is so called but here the words are not apt nor used in common speaking viz. That Rent should be taken for a Mannor and therefore it is voyd as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference that where the words have any affinity or likelihood to the Mannor then it will passe by the name of a Mannor As if a man deviseth his house and land by the name of a Mannor it shall passe But here being but a service it is otherwise Gawdy cont For if it the Rent passe not nothing shall passe which is a hard construction on a Will For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church And in Brett and Rigdens Casea man devised a Mannor in which he had nothing and after purchased the Mannor the devise is good And in 26 H. 6. feoffment 12. Land will not passe by deed by the name of a house but land will passe by the name of a Carue and a Carue by the name of a Mannor and I hold that the Rent in this case will passe by the name of the Mannor for a Mannor does consist of Demesnes services and rent may be called a Mannor aswell as a Carue and and the King gives it by the name of a Mannor to the Devisor and that is the reason that the Devisor calls it a Mannor And if you grant to me an Advowson by the name of the Church and Rectory and I devise the Rectory the Advowson and the Church will passe by the name of Rectory And in Plouden 194. A man did let his house and great demesnes rendring Rent and did devise to another all his Farme there the Devisee shall have all the Rent and the Reversion also Michaelm 29. 30. Bishop of Lincolnes Case Rot. 1528. 2200. IN a quare impedit brought by the King against the Bishop of Lincoln and Leigh the Incumbent The Case was The Bishop had an Advowson in gross and presented J.S. who took a second Benefice with cure whereby the first became void and continued so untill Lapse fallen to the Queen and after the title of Lapse fallen to the Queen the Bishop presented one J. who was inducted and by reason of Recusancy to pay Tythes was deprived and by the Statute 26 H. 8. the Church became void ipso facto whereupon the Bishop presented one Leigh within six months and now the Queen would present Fenner This Case is the same with Bosherulls lately adjudged But the Court said that here was a privation for Recusancy and therefore it would make a difference And afterwards Pasch 30 Eliz. Walmesley For the Queen said That if a Lapse be fallen to the Ordinary if the Patron doth present before the Bishop hath Collated he ought to receive his Clerk but where it is divolved to the King the Patron by no means can defeate the King but he may remove his Clerke at his pleasure but if such Incumbent be present after such Lapse and die then the title of the King is gone and his time passed by the act of God but in our Case the avoydance which does oust the King from his Lapse is avoidance by reason of Recusancy to pay Tithes which is the proper act of the Incumbent as is a resignation and no such avoydance being by the act of the party himself shall oust the King of his Presentation for in the 2 H. 9. In annuitie against an Abbot who resigns the Writ shall not abate for then the Plaintiff shall never have a good Writ So in our case if the King be outed of his Lapse by such devises he shall never have a Lapse for every one will usurp upon the Kings Lapse and will presently resign or misdemesn himself whereby to avoid the Lapse And in the 18 Ed. 4. the 19. By Pigot A writ brought against a Prior shall not abate although the Prior be not deposed for it is his own fault Fenner This Lapse is given the King by his prerogative but on this Condition that he take it in due time for so is the nature of things lapsed for if after a title accrued to the King he suffer usurpation and the Incumbent die his Lapse is lost for the nature of the Lapse is such that it must be taken at its time and where the title of the King is limited to a time there he shall not have his prerogative for a prerogative cannot alter estates As if the King grant a seigniory in gross rendring Rent and the Tenant to the Lord dies without heir whereby the tenant escheates the seigniory is extinct and the Rent of the King is gone aswell as it is in the case of a Common person And so if the King have a Rent feck for life out of my land if I die he cannot distreine in my land for the arrerages as he may in my life time And so where the Statute gives Annum diem vastum to the King yet he shall not have it after the death of the Tenant for life so if the King reserve a Rent upon a Lease to an Estranger and the stranger enters in respect of the land whereby his entire rent is suspended now the condition as to the King also is suspended during that time for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir and after this Rent comes to the King and the Grantee dies the Rent shall cease during the minority of his heir so that by all these cases the
Declaration that the Defendant did promise to pay the 10 l. before Michaelmass in consideration the Plaintiff would forbeare to sue A. and that he hath forborn adhuc abstiâ—et and does not say that he made request as he ought to have done But the Court held it was well enough and there is a difference when the Defendant does promise to pay generally and at a certain day named there the Plaintiff ought precisely to alledge a request made in certain but when the Defendant promiseth to pay at a day certain he is bound to pay it at his perill without request and therefore to alledge quod saepius requisitus is sufficient without alledging a speciall request otherwise it is if the Defendant assume to pay it upon request for there it ought to be specially pleaded Another errour was because the consideration was that the Plaintiff should forbeare to sue A. and does not set forth for how long time for perhaps the forbearance was but for a quarter of an houre Peryam The consideration upon which an assumpsit is grounded ought to be of value but of what value is it where the forbearance is but for half an houre Fleming By his promising not to sue he is ingaged never to sue Peryam There is great difference between a promise not to sue and a promise to forbeare to sue for a promise not to sue excludes him from suing at all but a promise to forbeare to sue is only to forbeare for a time so that notwithstanding such promise he may sue after and it being not here exprest how long he will forbeare there is no consideration Walmesley There is a difference when the Defendant sâ—eaks the words and when the Plaintiff For if the Plaintiff sayes I will forbeare to sue you so you will promise to pay me and upon this the Defendant makes a promise accordingly the Plaintiff in this Case ought to forbear to sue him for ever But if the Defendant only speaks the words as here he does If you will forbeace to sue I will promise to pay you and the Plaintiff agrees and forbeares a certain time yet he may have his action afterward sed adjournatur Pasch 38. Eliz. Stroud against Willis in B. R. Rot. 66. IN Debt upon a Bond the Condition was If the Obligor shall well and truly pay the Rent or sum of 37 l. yearly at two feasts according to the tenure and true intent of certain articles of agreement indented and made between the Obligor and Obligee during the terme therein mentioned that then c. The Defend intâ—…eâ—ded that these articles ut supra contain that the said Stroud the Obligee Dumisit ad firmam tradidit to the Defendant Omnia talia doâ—…s tenementa terras in Parochia de Petminster de in quibus the sayd Stroud hath an estate for life by Copy according to the Customs of the Mannor Habendum to the Defendant for 21 years if Stroud should so long live rendring to the said Stroud during the said terme 37 〈◊〉 to be paid at the Castle of Canton and pleaded further that at the time of the making the said Articles the said Stroud had not any estate in any Lands houses c. in Petminster aforesaid for the term of his life or by Copy And upon this plea the Plaintiff demurred and Iudgment was given for the Plaintif in the Common Pleas and now was removed by Vrit of Errour And in this Case were two questions First If nothing passe by these Articles and so the reservation of the Rent is also voyd Secondly If the Obligation for payment of the said sum be also voyd and it was said that this could not be payable as a Rent upon the 14 H. 4. 4. 20 Ed. 4. 20 H. 6.23 for no Rent is reserved because there is no land out of which it can come and then the obligation is also discharged 2. Admitting the Rent is not vayable as Rent then whether it be an â—stoppell to plead as here is done against the Articles and therefore they took a difference where the recitall is generall and where not as if A. be bound to infeof me of all his lands of the part of his Mother and he hath no lands of the part of his Mother but otherwise if it were to infeof me of Black acre for he shall be estopped to say that he had not Black acre and so here he shall be estopped to say that there are no Articles but he may plead that he hath no land by Copie Cook 2. Rep. 33.6 Fenner When a man makes a voyd Lease rendring Rent the Reservation is also voyd because the land is the consideration and recompence for the Rent but where a man reserves Rent upon a grant or Lease which grant and Lease are good but the thing out of which the Rent is issuing cannot be charged with the Rent there the reservation is good as where a Rent is reserved out of an advowson or menaltie but in the Case at Bar the Lease did never begin and therefore Rent shall not then is it to be considered whether the Rent is to be payd by reason of the bond as a sum in gross or not and as to that matter the condition of the bond is to pay the Rent according to the true meaning of the Articles which is that if the Lessee have not the Land the Lessor shall not have the Rent therefore it shall not be paid as a sum in gross Popham cont But he agreed that the reservation was voyd for if no Land do pass no Rent is reserved and the reservation only does not make any estoppell and he took a difference upon the 14 Ed. 4. A man makes a Lease generally and the Lessee is bound to pay the Rent in such manner as it was reserved there such Rent ought to be demanded otherwise the Obligation is not forfeit and the demand ought to be upon the Land but if such Lessee for years do oblige himself to pay the Rent at a Collaterall place out of the land there he ought to pay it at his perill without any demand for now he payes it in another nature than as Rent so here if the payment had been limited at a place out of the Land the Obligor is bound to pay it although nothing were demised to him for by the bond he hath made it a sum in gross And it is altered from the nature of Rent upon the first reservation and he is bound also to pay the Rent or sum and if this be any of them he must pay it As to the second point he made this difference A his bound to J.S. to Release to him all his right which he hath in the Land descended to him on the part of his Mother there in Debt upon this bond the Obligee cannot plead that he hath no right descended to him on the part of his mother but must Release at his perill But if he binds
not a good Feoffment for White-acre Michaelm 29. 30. Eliz. Knowles against Powell in Scaccario THe Queen seized in Fee made a Lease for years to one who was out-lawed at the time of the Lease rendring rent and after he was out-lawed again and before seizure comes out the general pardon of all Goods and Chattels forfeited and in this Case it was agreed that a man out-lawed was capable of a Lease from the Queen as Farmer to the Queen And Manwood said that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry and it was also agreed that a man out-lawed and pardoned had property in his goods Egerton Sollicitor said that in the 4 Eliz. it was adjudged in the Common Pleas that if the Queen made a Lease under the Exchequer-seal to begin immediatly after forfeiture surrender or expiration of a former term and the Lessee is out-lawed shat the second Lease shall not commence for it is a Royal forfeiture Trinit 41 Elizab. Ferrers against Borough in B. R. Rot. 185. UPon a special Verdict the Case was thus A man makes a Lease for years upon condition that if he paid 10 l. before Michaelmas that it should be lawfull for him to re-enter and before Michaelmas he lets the land to another by Indenture for years and then performed the Condition and entred the first Lessee brought a Trespass and it was adjudged that it does not lye Trinit 35 Elizab. Lambert against Austen in B. R. Rot. 185. IN a Replevin the Case was thus A man seized of land in Fee grants a Rent-charge out of it to A. for life with a Clause of Distress and then makes a Lease to B. for years and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. untill the 18 of Eliz. and the Grantee makes the Defendant his Executor and dyes the term of B. ends in the 33 Eliz. and then J.S. enters and makes a Lease to the Plaintiff the Executor of A. distreyns for the arrearages and the Plaintiff brings a Replevin Gawdy and Fenner This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years but out of the Free-hold and upon grant thereof as Littleton saith the Tenant of the Free-hold ought to attorn and not the Termor and so is it 9 H. 6. and if an Assize be brought for this Rent it ought to be brought against the Tenant of the Free-hold and all the Tenants of the Free-hold ought to be named in a Rent-charge by Cook 6 Rep. 58. but otherwise for a Rent-service for that is against the Termor onely and a Termor cannot give seizin of the Rent to maintain an Assize by Cook 6 Rep. 57. and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages because the estate is determined Cook 4 Rep. 49. but an Avowry is given by this Statute Onely so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relyed on this word demesn which ought to be intended of a Free-hold and of a Reversion upon a Lease for years it is pleaded quod seisitus in dominico suo c. and so cannot a Tenant for years say for which reasons it seemed to them that the Distress was well taken Clench contr For the Termor ought to pay it for he takes the profits of the land as if a Lease be made to a woman rendring Rent who takes husband and dyes the husband shall pay the Rent by the 10 H. 6. for he hath taken the profits and by the words of the Statute they are in the possession or seisin and seisin refers to the Tenant of the Free-hold and possession to the Tenant for years and the words are which ought immediatly to pay the Rent and so ought the Termor in our Case who is chargeable to the Distress of the Testator Popham chief Iustice of the same opinion The Distress is not well taken for he who hath the profits of the land ought to answer for the Rent Gawdy Although the Cattel of the Lessee be distreynable by the Testator that is onely because they are upon his land as a strangers Cattel may be so distreyned and therefore this proves not that the Lessee should pay the Rent And if a man grants a Rent-charge and lets the land at will afterwards the Rent is behind and the Grantee dyes and the Lease at will determines without question in that Case the Lessor is subject to the Distress of the Executor And in our Case if the Grantee had released to the Tenant for life this had extinguisht the Rent otherwise of a Release to Tenant for years Fenner If Tenant in Tail granta a Rent-charge and after makes a Lease for 21 years according to the Statute and dyes the Rent by the death of the Tenant in Tail is determined To which Gawdy agreed which proves that the Rent issues out of the Freehold Vid. Cook 5 Rep. 118. Hillar 37 Eliz. Butler against Ruddisley IN a Trespass the Defendant pleaded the Free-hold of Edward Devereux and so justified as his Bailiff without saying at his commandment the Plaintiff replyed that the said Edward was seized in Fee and made a Lease to him by vertue whereof he was possest absque hoc that the Lessor made the Defendant his Bailiff post dimissionem and hereupon the Defendant demurred Crook By this Lease a Free-hold passeth to the Plaintiff and then the Plaintiffs traverse is naught for he hath now traverst that the Defendant is Bailiff whereas he ought to traverse the Free-hold in the Lessor for that would have destroyed the justification of the Defendant And to prove that the Free-hold doth pass he cited the Case of Littleton where if a Lease be made to the husband and wife during Coverture they are Ioynt-tenants for life So in the 30 H. 6. a Lease to a woman dum sola vixerâ—t And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice or dummodo se bene gesserit all these are Free-holds And it is clear that a Tenant at will cannot assign over And also an estate at will is an estate at the will of both parties but here it is at the will of the Lessor onely when he will make a Bailiff Haughton contr An estate at will doth pass and not a Free-hold for here he hath not pleaded that Livery was made and Livery shall not be intended in this case unless it be specially alledged but if Livery had been made then he agreed that a Free-hold conditional had past and for the pleading of a Livery he took a difference that where an express estate either in fee or for life be pleaded there Livery shall be intended but where a Free-hold passeth by implication or operation of Law and not
in purchasing the Inheritance by which the Terme is extinct shall bar the possibility which Reynald the Son hath to come upon the womans marriage 3. That a Lessee for years being in possession may take a Feoffment although it be by Deed and may take Livery after the delivery of the Deed and shall be deemed to be in by force of the Feoffment as in this case is pleaded although that the Lessee may take the Deed by way of confirmation and then the Livery is but Surplusage and void 4. It was resolved that this possibility which was in Reynald the Son to have the residue of the terme upon the inter-marriage which at the time of the Feoffment and of the Fine was but Dormant shall be accounted a former charge and before the Covenant because of the will which was before the Covenant and shall awake and have relation before the marriage As if Tenant in tail of a Rent purchaseth the Land out of which the Rent issueth and makes a Feoffment and covenants that the Land at that time is discharged of all former charges although this charge is not in esse but is in suspence as it is said 3 H. 7.12 yet if the Tenant in tail dye his Issue may distrain for this Rent and then is the Covenant broke for now it shall be accounted a former charge before the Feoffment Mich. 29 and 30 Eliz. in Com. Ban. Bretts Case Debt on â— Bond. BRett brought an action of Debt on a Bond against Averden and the Condition of the Bond was to stand to the Arbitrement of J.S. who did award that the Defendant should pay ten pounds to Brett and no time was limited to pay it The Defendant confest the Arbitrement but pleaded in Bar that the Plaintiff hath not required him to pay the money And the Plaintiff hereupon demurred Adjudged by the Court that it is no good plea for the Defendant at his perill ought to pay the money and the Plaintiff need not make any request wherfore Iudgment was given for the Plaintiff Trin. 29 Eliz. in Com. Ban. Bucknells Case Action for Robbery on the Statute of Winchestster BUcknell was robbed in a Hundred within the County of Bucks and thereupon brought his Action upon the Statute of Winchester because the Theeves were not taken And Not guilty being pleaded by the Inhabitants the Iury gave this speciall Verdict viz. That he was robbed the same day alleadged in the Declaration but in another place and within another Parish then that he hath alledged in the Declaration but that both the Parishes were within the said Hundred Vpon which they prayed the Iudgment of the Court whether the Inhabitants were guilty Adjudged by the Court for the Plaintiff for it is not materiall in what Parish he was robbed so it were within the same Hundred Hil. 30 Eliz. in Com. Banc. Rot. 904. Spittles Case Replevin SPittle brought a Replevin against Davis the Case was this Turk being seised of Land in Fee did devise parcell thereof to his youngest Son Proviso and it is his intent that if any of his Sons or any of their Issues shall alien or demise any of the said Lands devised before they shall attain the age of thirty years that then the other shall have the Estate and does not limit any Estate And then the eldest Son made a Lease before his age of thirty years and the youngest Son enters and afterwards and before the age of thirty years he aliens the Land he entred into by reason of the limitation the elder Brother re-enters and demised to Spittle the Plaintiff for three years who put a Horse into the ground and Davis by the commandment of the younger brother entred and took the Horse Damage-feasant and Spittle brought a Replevin And upon the whose matter there was a Remainder It was resolved 1. That this is a limitation and that the Estate shall be to such use as by the Will is directed untill there be an Alienation and upon Alienation the Land shall go to the other Brother 2. When the youngest Brother hath once entred for the Alienation then is the Land discharged of all Limitations for otherwise the Land shall go and come to one and the other upon every Alienation ad infinitum wherefore all the Iudges agreed that after the one Brother hath entred by reason of the limitation the Land is then for ever discharged of the Limitation made by the Will And Iudgment was given accordingly Michaells Case Debt on a Bond THomas Michaell brought an Action of Debt on a Bond against Stockworth and Andrews the Iury gave this speciall Verdict That the said Stockworth and Andrews did seale a Bond and delivered it to the Plaintiff as their Deed and after Issue joyned and before the Nisi prius the Seale of Andrews was taken from the Bond. Shuttleworth The Plaintiff shall be barred for it is one entire Deed and the Seale of one is wanting And admit in case it goes against us the Iudgment be reversed by Writ of Error the Plaintiff can have no Action on such Bond But it was adjudged to be a good Bond and Iudgment for the Plaintiff See the like case in Dyer Trin. 36 H. 8.59 A. Hillari 33 Eliz. in Com. Ban. Rot. 1315. Richmonds Case Debt for rent RIchmond brought an Action of Debt against Butcher the case was A man makes a Lease for years reserving Rent to him and his Executors and Assignes and during the terme the Lessor dies and his Heire who hath the Reversion brings an Action of Debt And it was urged that the Rent was incident to the Reversion and the Heire having the Reversion shall have the Rent also as incident to it as the case is in the 27 H. 8.16 If H. makes a Lease for years rendring Rent without saying any more words the Heire shall have this part because it shall go along with the Reversion So in the fifth of Edw. 4.4 If two Ioynt-tenants make a Lease for years rendring Rent to one of them yet the other shall have the Rent also although no mention were made of him so in the 7 H. 4.223 By the Court If I make a Feoffment in Fee rendring a Rent to me my Heires may distraine And if I grant over this Rent my Assignees in this case may distraine and avow so in this case an Action will lye for the Heire although he be not mentioned But adjudged to the contrary by the Court for when H. passeth Lands from himself the Law gives him liverty to passe them in such way and manner as he himself will and this liberty ought to take effect according to the expresse words for the Law will not extend the words further for the intent shall appeare by the words and then it cannot be here intended that his will was that his Heire shall have the Rent because the words are not sufficient to give it to his Heirs And therefore note a diversity when
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
opinion he relied upon the intention of the Donors which ought to be observed For if the Habendum does crosse the Premisses it shall be void but a Remainder is good for the benefit of a stranger but a Rent cannot be reserved upon such a Gift during the foure degrees but after the Reversion is good if he do attorne to the Gâ—…ntee of the Reveâ—sion Windham Frank-marriage is not an Estate in taile for there wants the word Heires Coke lib. 1.103 So a Gift to a man semini suo 10 Ass 26. and after Meade â—greeâ— with Windham although the grounds of Frank-marriage were not observed yet that it was good for although there be no Tenure between the Donor and Donee yet is it a good Frank-marriage Dyer It is no good Frank-marriage because the usuall words are not observed and if the word Liberum be omitted it is not Frank-marriage neither is it good given to a man but it must be to a woman for a man cannot give land to a woman Causa matrimonii praelocuti And in this case the party ought to be of the blood of the Donor who by possibility may be inheritable to him and there ought to be a Tenure between them and an acquittall and if any faile it is no Frank-marriage and he said further that if it once takes effect as Frank-marriage and then the Donor grants the Reversion or the Reversion discends to the Donees yet it shall not be destroyed but shall remaine as an Estate in taile and not for life because it once took effect in the Donees and their issues and if land be given to a man in Frank-marriage the remainder in taile yet this shall not destroy the Frank-marriage and the Donee shall hold of the Donor and not of him in the remainder And if one give land in Frank-marriage the remainders to the Donees in taile yet is this a good Frank-marriage and if the Donor grants over his Services yet doth the Frank-marriage continue although the Donees attorn for they are incident to the Reversion and therefore the Grant is void but if the Reversion be granted the Services will passe and he concluded that the Husband had all and the Wife nothing because no Estate to her is mentioned in the Premisses and he could not construe the words to be the intent of the Donor for here is an expresse limitation of the fee to the Husband and his Heirs which cannot be controlled by intendment And after 25 Eliz. It was adjudged to be no Frank-marriage nor gift in taile but a Fee-simple And the Iustices said that the ancient Books were that where it took not effect as a Frank-marriage it should be in especiall taile yet those at this time are not Law But they agreed that this at one time took effect as Frank-marriage and by matter ex post facto may be made an Estate in taile Mich. 30 Eliz. Gibbs Case GIbbs brought an Action of Trover against Basil for a Gelding the Case was One Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and it was entred so in the Toll Book that Lister sold him The question was if this alteration of his name shall make any alteration of the property although the sale was in open Market Windham and Rhodes Iustices held this no good sale to bar the Plaintiff and grounded their opinion on the Statute of the 2 and 3 Phil. and Mar. cap. 7. which provides that no property of stollen Goods shall be altered that are sold unlesse the name and surname of the parties to the sale be written in the Toll-book And Shuttleworth moved that it should be in the Market and walked there for an houre together which is not set forth by the Defendant in his Bar but the Iustices said that such speciall plea need not to be but shall be intended Rouses Case IT was moved in this Case that if Tenant for terme Dauter vie does continue and hold in his Estate after the death of Cestuy que vie If he be a Disseisor and whether in pleading the plea ought to be seised and not possest Shuttleworth He was legally in at first and therefore cannot be a Disseisor 15 Ed. 4.41 A Freehold could not be gained where he came in by the agreement of the party and 12 Ass 22. Where the Husband and Wife were seised of a Freehold and after were divorced by Suit on the womans part whereby the woman is to have all the land yet if the Husband continue possession and dies seised this discent shall not take away entry because he was no Disseisor Gawdy He is Tenant at sufferance and no Disseisor and there it was moved that if Tenant at sufferance or a Disseisor makes Copies of Copyhold Lands if they be good or voidable And note that Wilde took here a diversity between a Termor that holds over and a Tenant at sufferance for in case of a Tenant at sufferance there is no Freehold taken from the Lessor which the continuance of possession doth not take from him but where the Tenant holds over his terme there the Freehold is disturbed and therefore there is a disseisin But at that present it seemed to the Iudges that there was no diversity But the next terme Godfrey moved that if Tenant for anothers life held over his Estate he had Feesimple and he granted that it was otherwise in some cases for if he claim to be Tenant at the Will of the Lessor he shall not gaine a Fee-simple For Littleton in his Chapter of Releases 108. saith that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold and such Occupyer claimeth nothing but at Will But in this case the Tenant claimes otherwise then at Will of the Lessor he does not claim any thing but at the Will of the Lessor as in the case of Littleton but claimes to hold over against the Will of the Lessor which is no Tenant at sufferance and 10 Ed. 4. If a man makes a Lease at Will and the Lessor dies and he continues possession and claims fee the Heire shall have a Mortdancester and 18 Ed. 4.25 If Cestuy que use dies and the Tenant continues in and the Tenant is impleaded the Lessor shall not be received and the reason is because there is no reversion in him but the Tenant hath it and 22 Ed. 4.38 by Hussey Iustice If a Termor holds over his Terme there an Estate in fee is confest to be in him by matter of Law but it is a deubt whether he be a Disseisor or not but it seemeth not for a Trespasse doth not lye against him before Regresse and in the 7 H. 4.43 If a Guardian holds the possession at the full age of the Heir or Tenant for years after his terme expired the Estate shall be judged in Fee And in our case he hath
was no apparance unlesse there were a Record But the Case in Court was ut supra Hil. 30. Eliz. IN an Ejectment by Dorothy Michell against Edmund Dunton the Case was A woman makes a Lease for years rendring Rent with a Covenant that the Lessee should repaire the house with other Covenants and then devised the same lands to the same Lessee for divers years more yeilding the like rent and under such Covenants as were in the first Lease the Remainder over in fee and dies and then the first Lease for years does expire and the Lessee continues in by force of the second Lease by vesture of the devise and repaires not the houses so that if the first Lease had been in being he had broke the Covenant If this shall be such condition as he in the remainder may enter was the question Shuttleworth It is a Condition for he cannot have a Covenant and then it shall be intended that iâ— is conditionall But by all the Court There appears no such intent for it appears that he holds under like Covenants Anderson The nature of a Covenant is to have an Action but not an entry and therefore there shall be no entry Shuttleworth To what end then serves these words under like Covenants Periam They are void And at last it was resolved by all the Iustices that the Will expressing that the first Lessee should have the Land observing the first Covenants it shall not be now taken to be a Condition by any intent that may be collected out of the Will for a Covenant and Condition are of severall natures the one giving Action the other entry and here the intent of the Will was that although the Covenants were not performed yet the Lessee should not forfeit his terme but is onely bound to such paine as he was at the beginning and that was to render damages in an Action of Covenant And Iudgment was given that the Plaintiff should be barred Mich 29 and 30 Eliz. Rot. 2449. THe Earle of Kent brought an Action of Debt upon a Bond against William Bryan which was indorsed with a Condition That if the Defendant did permit the Plaintiff his Executors or Assignes not onely to thresh Corn in the Defendants Barn but also to carry it away from time to time and at all times hereafter convenient with free egresse and regresse or else to pay eight pounds upon request c. that then c. And in truth the Defendant permitted the Corn to lye there two years in which time the Mise and Rats had devoured a great part of it and then the Defendant thresht it and the Earle therefore brought this Action And upon Demur it seemed to Walmsley that there was no forfeiture of the Bond because the Earl took not the Corn away in convenient time for convenient time is such as shall prejudice no person Quod fuit negatum per Justitiar and here is great prejudice to the Detendant because the Plaintiff did not carry away the Corn And he put many cases where things ought to be done in convenient time as in the 21 Ed. 4. where an Arbitrement ought to be performed in convenient time But the opinion of the Court was that he might come in covenient time although he comes long after and the words are not within convenient time Windham said That if the words had been within convenient time it would have made a difference Anderson If the words of the Condition had been that he should suffer the Plaintiff in time convenient to come and thresh and take away his Corn then perhaps he ought to send within a year according to Walmsleys saying but the words here are at all convenient times and that day that the Servant came was a convenient day to thresh and carry away and the words At all convenient times shall be construed that at any time when it pleaseth the Earl he may come unlesse it be night or Sabboth day and if the word convenient had not been mentioned then by the words from time to time and at all times after then the Earl may come at any time either in the day or night and that a hundred years after as he pleaseth and then the word convenient does restrain him that he cannot come but in the working daies but does not restrain any time in which he shall come but onely in conveniency of time which is at times of labouring and watching And so was the opinion of the Court ut supra An Action of Debt was brought upon a Lease for years the Defendant pleaded Nihil debet per patriam and did intend to give in evidence an entry of the Plaintiff before any Rent behind And by the Court he could not do it for it is contrary to the issue Hil. 30 Eliz. Rot. 904. Between Spittle and Davis IN a Replevin the case was One Turk seised of lands in fee devised parcell thereof to his eldest Son in taile and the other parcell to his youngest Son in fee. Provided and his intent was that if any of his Sons or any of their Issues do alien or demise any of the said lands before any of them comes to the age of thirty years that then the other shall have the Estate and does not limit what Estate and then one of the Sons makes a Lease for years before such age whereupon the other enters and before he comes to the age of thirty years he aliens that part into which he made entry and the other brother being the eldest enters and makes a Lease to Spittle the Plaintiff for three years and Davies by commandment of the younger brother enters and takes the house Damage-feasant and Spittle brought a Replevin And upon Demur it seemed to the Court that this was a limitation and by vertue of the Will the Estate devised to them untill they aliened and upon the alienation to go to the other upon such alienation the land is discharged of all limitations for otherwise the land upon one alienation shall go to one and upon another alienation shall go back again and so to and fro ad infinitum vide Dyer 14. 29. And afterwards all the Iudges agreed that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the Will And Iudgment was given accordingly Trin. 27 Eliz. Rot. 190. Carter against Lowe IN an Ejectment the Case was A Termor devised his terme to I.S. and made his Wife Executrix and died the Woman enters and proves the Will and takes Husband who takes a Lease of the Lessor and after the Devisee enters and grants all his Estate to the Husband and wife and herein two questions were moved 1. If by this acceptance of the new Lease by the Husband the term which the woman had to another use viz. to the use of the Testator shall be deemed a surrender And the opinion of the Court was clearly without argument that it
that the Plaintiff could not have the Error but the Daughters who were the Heirs to Henry for an Action alwaies discends according to the right of land and it seems that the Heir in Burrow English shall have Error or Attaint and not the Heir at the Common Law which was agreed by all on both sides but it was said that this varies much from the present case for two reasons One because he came in as Vouchee which is to recover a Fee-simple and he shall render a Fee-simple in value which is discendable to the Heirs at the Common Law Secondly he hath no Estate-tail Bromley Solicitor and Plowden contra and laid this ground that in all cases where a recovery is had against one by erroneous processe or false verdict he which is grieved shall have redresse of it although he be not party or privy to the first Iudgment and therefore at the Common Law if a Recovery be had against Tenant for life he in the Reversion shall have Error of Attaint after his death and now by the Statute of R 2. in his life so in a Precipe if the Tenant vouches and the Vouchee looseth by default the Tenant shall have Error for the Iudgment was against him and he looseth his term and in the 44 Ed 4.6 in a Trespasse of Battery against two one pleads and it is found against him and the plea of the other not determined damages by the principall Verdict is given against them both which if they be excessive the other shall have an Attaint And Bromley said there could not be a case put but where he that hath the losse by the recovery should have also the remedy and Baker cited 9. H. 7.24.6 that if a Recovery be had against a man that hath land on the part of the Mother and he dies without issue the Heir of the part of the Father shall have the Error But Bromley and Plowden denied this case and that 3 H 4.9 it was adjudged to the contrary And Wray said to Baker that he ought not much to rely on that case for it was not Law and said that if Tenant for life makes a Feoffment and a Recovery is had against the Feoffee the first Lessor shall not avoid this Bromley there is no use for he may enter by forfeiture but in our case of whatsoever estate it be at the time of the recovery the right of the Estate-tail is bound and therefore it is reason that the Heir in tail shall avoid it Jeffrey of the same opinion and cited 17. Ass A Conusor makes a Feoffment and then execution is sued against the Feoffee by erroneous processe the Feoffee shall have the Writ of Error although he be not party to the first Record but the reason is because of his interest in the land And Bromley and Plowden said further that notwithstanding the Feoffee recovers against the Vouchee and the Vouchee recover over the land yet this recovery shall go to the Estate-tail And Iudgment was given for the Plaintiff Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry and after an Execution is sued against him at the suit of a common person and he is taken by force thereof and after he takes a Habeas Corpus out of the Kings Bench and Coke prayed that he might be discharged of this execution for where a man is attaint of Felony he hath neither Goods nor Lands and his body is at the Kings disposall and so is not subject to the execution of a common person 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary For although he be attaint of Felony yet may he be in execution for his own offence shall not aid him and so was it in Crofs case in the Common Pleas where a man being attaint of Felony was taken in execution at the suit of a common person and he escaped out of Prison and an escape was brought against the Sheriffs of London and a Recovery against him And at last by advise of the Court because he was indebted to many persons and to discharge himself from his Creditors intended to have a pardon for his life and so deceive them therefore he was committed to the Marshalsey upon this execution Trin. 42 Eliz. Malloy against Jennings Rot. 1037. IN a Replevin the Case was A man seised of land in fee is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff and then the Recognizance is forfeit and the Conuzee sues out a Scire facias against the Conuzor before the Deed was inrolled and had Iudgment to have Execution And the question was if the Bargainor was a sufficient Tenant against whom the Execution was sued Williams Serjeant The Bargainor was Tenant at the time of the Scire facias before inrolement and although it was inrolled after shall have relation to the first livery to prevent any grant or charge And if an Action be brought against an Executor as in his own wrong and the Suit depending he takes Letters of Administration this shall not abate the Writ So in our case the Bargainor was seised of the land when the Scrie facias was brought and if a man makes a Lease for life rendring Rent and then the Lessor bargains and sells the Reversion and before the Inrolement the Rent is behind and the Bargainer demands the Rent which was not paid and then the Deed is inrolled yet he cannot enter for the forfeiture which I have seen adjudged in the 28 H. 8. Dyer Disseisee of one acre makes a Release to the Disseisor of all his lands and delivers it as an Escroll to be delivered to the Disseisor and then he disseiseth him of another acre and then the Deed is delivered to the Disseisor yet the right in the second acre shall not passe And he much rolled on Sir Richard Brochets case 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seised the first day of May and it hapned that one Corbet had sold him land by Indenture the 24. day of April but the Deed was not inrolled untill the 24. day of May after And the question was if the Conuzor was bound to convey these lands or not and adjudged that he was not for inasmuch as the Deed was not inrolled the ffrst day of May he was not seised and great mischief would ensue if the Law should be otherwise for no man will know against whom to bring his Action for a Bargain and Sale before Inrolement may be done secretly Herne Serjeant The Bargainee is seised before Inrolement and by the Statute of 5 Eliz. which wills that none shall convert land used to tillage unlesse he puts other land to tillage within six months yet none will say that it is a breach of the Statute although Pasture be presently converted to tillage and he cited Chilburns cafe 6 Eliz. Dyer 229. that proves that
21. years that is good and the Executor shall have it as in right of his Testator But where a man makes a Lease for years or life the remainder after his death for 40. years to his Executors the Executors shall have it as purchasors for this word remainder divides it from the Testator and makes the Executors purchasors Walmesley Glanvill and Kingsmill cont And their chief reason was from the intent of the parties and their intent was that the Lessee should have an estate during life for it is to him for 89. years if he so long live and because by common intendment he cannot survive those years their intent was that his Executors should have it after his death and that the certainty of the time might be known it was limited for 40. years And W lmsley said that the Administrator could not have this by purchase for when a man takes by purchase he must be named by an apt name of purchase by which he may be known as if there be tenant for life the remainder to the right heirs males of J.S. and J.S. hath issue two sons and the eldest hath issue a daughter and J.S. dies this daughter shall never take any estate because she is not heir male she hath no name of purchase and therefore here the Administrator cannot take by purchase for the Administrator comes in by the ordinary and therefore cannot be an assignee And at last Iudgment was given That the Administrator should hold it as a thing vested in the Intestate Michaelm 41 42 Eliza. VVhite against Gerish in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent The case was this Two persons did joyne in leavying a fine to J. S in Fee â—ur coâ—…ns de droit come ceo c. J.S. by the same Fine renders the Lands to one of the Conusors in taile reserving Rent and further would quod tenementa preâ—…cta remanerent to the other who is the avovee Walmesley The Rent shall passe as if a man grants land for life and also grants quod tenementa predicta remaneâ—unt to another these words Quod tenementa predicta do make a grant of the reversion and also these renders are as severall Fines and so it shall be taken as a grant in Taile rendring Rent and after a grant of the reversion Glanvill accorded Warburton If a man makes a gift in Taile rendring rent the remainder over in Fee the Donor shall have the Rent and not he in the remainder Walmesley That is true in a grant but not in a Fine Anderson If a man makes a gift in Taile rendring rent and at the same instant grants the Reversion and the Deeds are delivered accordingly this shall passe as a reversion And after it was adjudged to be a grant of the reversion and that the rent passeth Crawleys Case IN Replevin the case was thus A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth and if the Rent were determined was the Question Walmsley The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoynd with the possession whereby the Rent it self is carryed to J.S. whereby J.S. hath an absolute estate for his life and the life of the grantees is not materiall as if Rent be granted to two for the life of J.S. if he does not grant over the rent their lives are not materiall And if they grant over and dse the Rent shall not cease but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie otherwise if it were before the Statute of use quod fuit concessum per curiam Pasch 41 Eliz. Shaw against Sherwood Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill and the Bill was thus I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Elizâ—beth Shaw equally to be divided which said sum I acknowledge my self to have received to the use aforesaid and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and Eâ—…zabeth Walmesley Two points are here First if this be a Debt to cestuy que use or to him who gave it Secondly if it be divided so that each of them shall have an Action for 20 l. And as to the first he held that it was a debt to him for whose use the money was delivered and as to the second that they shall have a debt as of several debts by reason of these words equally to be divided Kâ—…gâ—…m Here is no Obligation for the words are not obligatory but onely an acknowledgement of the receipt Glanyâ—ll accorded Walmesley When he acknowledged the receipt to both their uses without question such Receiver is a Debtor And agreed by the Court that admitting it was a Debt that then it shall be a divided Debt and not joynt Quod nota Lane against Cotton IN Debt upon a Bond on condition to pay 20 l. within a month after the Obligee had a son that did or could speak the Lords Pâ—…er in English that he could be understood the Plaintiff pleaded that he had a son qui loqui potuiâ— praecationem Domini uâ—intelligâ— potuerit and the Defendant demurr'd because it was pleaded that he had a son qui loqui potui for that is a secret ability that cannot be known Kingsmill The plea is good and shall be tryed as in case of a Writ of non comâ—…s mentis Glanvill accorded for it may be proved by the testimony of those who have heard him speak and if he ever spoke it it is good evidence that he had ability to speak Walmesley contr Because it is a secret thing it cannot be tryed Kingsmill A man is bound in a Bond to give me 20 l. when the River of Varâ— is novigable it is a good plea to say that the River is navigable without saying that some have navigated upon it Herâ— Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop who had pleaded that the Parishioners were Welshmen and that they could not understand English and that the Clerk he presented could not understand Welsh and the Patron pleaded that the Clerk could speak Welsh and upon Demurr it was adjudged a good issue and that such matter might be tryed Anderson The issue is good and it is at the election of the party to plead quod loqui potuit vel loquutus est And if I am obliged to you to give you a 100 l. when I am able to go to Pauls this may â—e tryed although in facto I never went to Pauls and if I am able I shall pay the money And he cited Broughtons Case where in Maintenance the Defendant pleaded that he
Iustices Cook being against it that this is not within the Statute but they agreed that if one bought corn and thereof made meale or oat-meale and sold it that this was within the Statute for that is usuall and is no alteration and therefore remaines the same corn but starch is altered by a trade or science which is a mysterie and so it is not the same thing that was sold But Cook Chief Iustice contra And cited one Franklinghams Cass Michaelm 39 40 Eliza. in B. R. where one bought Barley and because it was of such Quantity that he could not make Malt of it in his own house he made Malt thereof in anothers house by his own servants And it was resolved First That the conversion of corn into Malt in his own house with an intent to sell it was within the Statute unless there be a saving for it Secondly Forasmuch as it was in anothers house he is out of the proviso and so within the penalty of the Statute And in Pasch 42 Eliz. between Reynolds and Gerret That if a Miller buyes corne and grinds it and sells it within his house this is within the Statute And in the Checquer Chamber in a writ of Errour there between Baron and Brise adjudged there that a Coster-monger who buyes Pippins to sell them again was out of this Statute because they are necessary victuall And divers exceptions were taken to the Information viz. where he saith Ligamen anglicè Starch whereas there is no such word but it is Ligumen and the anglicè will not help this mistake Cook 10. Rep. 134. and this exception was taken by Iustice Winch. But Warburton Iustice cont for Starch is a thing newly devised and there is no Latin word for it and therefore the anglice there is good Foster Iustice took an exception because the information concluded contra formam Statuti whereas it ought to have been contra formam Statutorum For this Statute was of force untill the 8 Elizab. and then was determined untill the 13th of Elizabeth and then it was revived so there are two Statutes but 't was agreed that where a Statute continued de tempore in Tempus and was never discontinued nor determined there it shall be said contra formam Statuti and this diversity hath been twice adjudged upon this very Statute viz. 9 Eliz. in Palmers Case and in the 35 Eliz. Warburton cont for the Information doth intend only the Statute of 5 Ed. 6 and 14. and he did recite the words thereof in his Information also this Statute only makes the offence and declares the manner of it and no other Statute makes any addition to it or increaseth the penalty but only revives it to endure in perpetuum But if a Statute doth prohibit a thing and another Statute gives a penalty there upon Information upon the penalty both Statutes ought to be recited and to conclude contra formam Statutorum vid. Commentar 206. Morgans Case And so the Statute of Vsury 37 H. 8. is revived the 13th Eliz. and an addition made to it there such inclusion ought to be contra formam Statutorum but where the Statute is only revived it is otherwise as the Statute of Perjury 5 Eliz. was continued untill the 14 Eliz. and then it was determined and 27 Eliz. was revived yet all informations upon that Statute are contra formam Statuti 5 Elizab. Cook This is no good exception and cited Talbot and Sheldens Case Hillar 33 Eliz. who were indited for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error the Iudgment was reversed because the penalty was demanded for the 10th Eliz. made the Offence and the 23 Eliz. gave the penalty but if the Information be for the offence only there it had been good See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good because the best shall be taken for the King Vid. 5 H. 7. 17. 8 Ed. 3.47 ◠Pasch 10 Jacob. VValler against the Deane and Chapter of Norwich IN an action of Covenant the Plaintiff declared on a Lease made from the Deane the Case was thus The Deane in the 38 Eliz. had made a Lease for 99. years to one Themilthorpe and then in the 42 Eliz. made a Lease to the Plaintiff for three lives rendring Rent with a Letter of Attorney to make livery and a Covenant to save the Plaintiff harmelesse against Themilthorpe afterwards the Attorney makes livery sc after Michaelmass which was a Rent day and he being disturbed by Themilthorpe brought this Covenant And two points were moved in the Case First Inasmuch as the Lease was voyd to Walter whether that the Covenant was voyd also Secondly If the livery made after the Rent day be voyd Hoghton Serjeant If the Covenant depended on the interest of the Lease as a Covenant to repay the thing devised or to pay rent these had been voyd because the Lease it self is voyd for they do immediatly depend upon the Lease but where the Covenant is for a thing collaterall as a Covenant that the Lessor is owner at the time of the Lease or that the Lessee shall enjoy it or shall be discharged and saved harmeless these Covenants being collaterall to the Lease and interest are good although the Lease be voyd and the 43 Ed. 3. proves this where a Lease was made by a Baron and Feme a Covenant by them shall not binde the wife contra where the Covenant concernes the interest as payment of Rent c. Also the Covenant was broken immediatly upon the sealing of the Lease to the Plaintiff And as to the second point he held it was a good livery because no time was limited in the Letter of Attorney Dodderidge Serjeant The Covenant is voyd because the Lease is voyd but contra if it had been a Covenant to enjoy for three lives and he relyed much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols cont The Covenant is good and yet in force for when an estate is created in which is implyed a Covenant in Law there if the estate be voyd the Covenant is voyd also but when there is an express Covenant in Deed there it is otherwise although the Lease be voyd or voydable as if he Covenant that the Lessee shall enjoy during the terme and the lessee resign yet is the Covenant good although the terme is gone And as to the second point The livery is good for untill the livery be made the lessor shall retaine his land and no Rent is due vid. Commentat 423. for by intendment the possession is better than the Rent And Cook agreed to this And the Iustices agreed with Nicholls Trinit 10 Jacob Barnes Case TEnant for life the Reversion in the Lessor a Formedon is brought against the tenant for life who prays in ayde of him in the remainder for life without him in
propertie To which it was answered that if the ancient stock of Sheepe were still it had been godd but it was not and therefore the grant is voyd Walmesley Although the first stock was changed yet the new stock does supply it and is in place thereof and shall be in the same condition as the other stock is and therefore the Lessor shall have propertie in it But the whole Court was against him for they said that the increase of the stock of Sheepe should be to the Lessee and the Lessor shall never have them at the end of the terme but they agreed that if the lease were of the stock with Lambs Calves and Piggs there the increase belongs to the Lessor And all the Court took this difference sc when a lease is made of dead goods and when of living for when the lease is of dead goods and any thing is added to them for reparations or otherwise the Lessor shall have this addition at the end of the terme because it belongs to the principle but in case of a stock of Cattle which hath an increase as Calves and Lambs there these things are severed from the principle and Lessor shall never have them for then the Lessor shall have the Rent and the Lessee shall have no profit Trinit 29 VViseman against Rolfe in in C. B. Rot. 1454. IN a Writ of right the Case was thus A man selfed of Land in Fee makes his will and gives to D. his wife such Land for life the remainder to T. his son and heires of his body and also gives to T. his son his Land in B. and also his Land in C. and also he gives his Land called Odyum to the seed of his son habendum all the demised premisses to his T. son and the heires males of his body The Question was it T. should have an estate in Taile in B. and C. or if the last words shall relate only to that which was last named Fenner for the Plaintiff For the last Clause is a new Clause and shall not be preferred to the first for it begins with a verbe viz. I give my Land called Odyum and therefore the limitation afterward shall be referred only to this And 10 H. 7.8 There was a grant by Dedi custodiam Parci Arbores vento prostrat The Grantee shall have the trees by this Clause and 14 Eliz. A man deviseth thus I give my Mannour of C. to my second son Item I give my Mannor of S. to my second son to have and to hold to him and to his heirs And by Dyer Welsh and Weston he had an estate but for life but Brown cont for if a Lease be made to A. B. and C. successively it is adjudged that they are Ioyntenants but if it be to them as they are named they shall have it one after the other and if a devise be to one and his heirs and after to another for life the Law will conster that the estate for life is to procede for that words of Relation in Wills shall be taken stricttly as if a devise be to A. and his heirs of his body and he does devise other land in Forma praedicta this shall be but for life Walmesley cont and said that this limitation did go to all whereof no limitation was made before for the rules of reason are uncertain and therefore such matters shall be expounded according to the best sense that may be and here the sense is most naturall to refer it to all and the word all imports this and the Case of the fourth of Elizabeth under favour accords with this viz. that the Devisee shall have Fee in both But if the Devise had been I devise D. to my son Thomas and also to him and his heirs the Mannor of S. there he shall have D. but for life And if a man devise to his 4. sons A. B. C. and D. to have to the persons last named to them and their heirs there all shall have Fee 19 Ed. 4. In a precipe of a house and an acre of land in three severall Towns and that the Defendant Ibidem ingressus est and did not say into the house and land and yet it was held good Periam and Rhodes He shall have an estate Taile in all and the relation shall be to all Anderson doubted at first but agreed afterwards and Iudgement was given accordingly 32 33 Eliz. Mathewson against Trott in C. B. Rot. 1904. UPon a speciall verduit the Case was this A man seised of land in soccage devised it to his yonger son and died seised the elder son enters and dies seised and his heir enters and the yonger son enters upon him the Question was if his entry be taken away by this descent VValmesley It is not and he compar'd this case to a title of entry for a condition broken or a Conusee of a Fine upon grant and render c. in which Cases no descent shall take away entry Anderson The Devisee hath interest presently and the land does not descend for the devise prevents the descent and the Freehold is presently in the Devisee and the Statute 32 H. 8. which gives power to Devise lands does make a Title in the Devisee as a Title of entry for condition of Mortmaine and the Devisee shall not have an ex gravi querela upon this Statute but he must enter Walmesley The Devisee hath not a Freehold presently for if it were so the Devisee at the Common Law ought not to sue an Ex gravi Querela but certainly if the freehold be in the Devisee his entry is taken away And afterwards Iudgment was given by Anderson that descent does not take away the entry of the Devisee but delivered no reason for it Hillar 33 Eliz. Mosgrave against Agden Rot. 2529. IN an action of the Case on a Trover and conversion of six barrells of Butter The count was that they came to the hands of the Defendant and after the trover they were impared and decayed ratione negligentis custodiae And the Court held cleerly that the action would not lie for he who finds goods is not bound to preserve them from putrefaction but it was agreed that if the goods were used and by usage made worse the action would lie 44 Eliz. Ayer against Joyner in C. B. Rot. 2529. IN a second Deliverance it was said by the Court that if Lessee for years does assign over his terme and yet continues possession that he hath but a naked possession and no interest nor estate but the estate and interest does remain in the grantee so that he may grant it over And Walmesley said that if the Lessee makes waste the Lessor may have an action of waste against him and there is a casâ— that if a man makes a Lease and the Lessee waves the possession and a stranger commits waste the Lessor shall have an action of waste against the Lessee but the principall question
Estoppell otherwise if it were by Deed. Vid. 1 H. 7.12 Mich. 32 33 Eliz. Marshes Case in B. R. Rot. 1011. MArsh and his wife brought a Writ of Errour as Executors to Nicholson to reverse an Outlawry upon an Indictment of Felony pronounc'd against the Testator Altham of Grayes-Inne The sole point was whether the Executors may have a Writ of Errour and I hold that they may for if there be no heir it is great reason that the Executors should have it for otherwise the erroneous judgement cannot be at all reverst and every one shall have a Writ of Errour that is damaged by the erroneous judgement and Executors have right to the personal estate to have Errour For if a man recovers damages in a Writ of Cosenage and the land also and dyes his heir shall have Execution for the land and the Executors Execution for the damages by the 19 Ed. 4.5 43 Eâ— 3. 13 Ed. 4.2 If a man does recover my villain by a false Verdict the heir shall have an attaint for the villany and the Executors for the damages and a Writ of Errour shall be given to him to whom the right of the thing lost doth descend as it was adjudged in the Case of Sir Arthur Henningham and he cited two presidents in the point 1 Tâ—…ity 11 H. 8. Rot. 3. where an Administrator brought a Writ of Errour to reverse a Iudgement given in an exigent Vid. 2 Rep. 41. a. Cook contr In Natura Brevium 21 M. he sayes an Executor shall have a Writ of Errour upon a Iudgement given in Debt against the Testator and the heir shall have Error to reverse Outlawry in Felony and to restore him in his blood and he said that it was part of the punishment in Felony to have the blood corrupted sic filius portat iniquitatem patris and by reason of the attainder he cannot inherit any Ancestor wherefore he having the damage it is reason that he should reverse it And although Executors shall have a Writ of Errour for Chattels personal yet they shall not have one when they are mixt with things real 5 H. 7.15.18 Ed. 4. If Writings be in a Box the heir shall have the Box because real things are more regarded than personal Nevertheless in this Case the Writ of Errour is in a real Action for the Law sayes that it is in the same nature as in original action whereupon it is brought as if Errour be brought to reverse a Iudgement given in a personal action the Writ of Errour is personal and so in like manner is it real if the first action be real 47 Ed. 3.35 35 H. 6.19 23. and although the first action be mixt yet the Law does rather respect the reality 30 H. 6. Barr. 59. where two brought an assize and one did release and there it was said that although this were a mixt action yet it shall be according to the most worthy and that is the reality and 16 Assi 14. divers Disseisors being barr'd in an assize did bring a Writ of attaint for the damages and summons and severance was suffered for damages were joyned with the reality and Stanford 184. If a man be indicted before a Coroner quod fugam fecit if he after reverse the Indictment yet he shall have his goods for de minimis non curat Lex But note that the Iustices said that the fugam fecit was the cause of forfeiture of the goods and not the Felony And as to the presidents he agreed to the Case of the 18 H. 7. for an Executor shall have a Writ of Errour to reverse Iudgement given in an exigent for there nothing but the goods are forfeit 30 H. 6. Forfeiture 31. and for the president in 11 H. 8. it cannot be proved that the Outlawry was for Felony Vid. Rep. fol. 3. 33 Eliz. Lilly against Taylor in B. R. Rot. 467. MArsh seized of the land in question did devise this to Rose Lilly for life and if she fortun'd to marry and after her decease should have any heirs of her body lawfully begotten then that heir should have the land and the heirs of the body of such heir and for default of such issue the land shall revert to Philip Marsh his son and his heirs and the question was if the husband of Rose shall be Tenant by the curtesy or not and so if Rose had estate Tail or for life onely Godfrey She hath estate but for life and he cited a Case adjudged in Benlowes Reports 40 Eliz. where lands are devised to A for life and after his decease to the male children of his body and it was adjudged that the male children have an estate Tail by purchase and nothing by descent and so A had nothing but for life Gawdy agreed for she hath but for life and when she dyes her issue shall have it Popham agreed if the words were that if she had issue that he should have it But Clench held that she had an estate in Tail executed and that her husband shall be Tenant by the curtesy Fenner The issue is as a Purchaser for the Devisor intended that Rose should not have a greater estate than for life And also it was agreed by all the Iustices that a Devise to a man and his heir shall be accounted a Foe-simple for that the word heir is collective and so is the 29 Assi where land was given to a man and to the heir of his body uno haeredi ejusdem haeredis this is an estate Tail Popham He shall be Tenant by the curtesy and he agreed that heir of the body was a good name of purchase but if a Frank-tenement be limited to his Ancestor and by the same Deed it is also limited to his heir the heir shall be in by descent But Fenner on the contrary Pasch 38 Eliz. Bolton against Bolton Rot. 882. 582. TEnant for life being impleaded doth pray in aid of him in the Reversion who joyn and lose c. and the Tenant for life brings a Writ of Errour and the Record is removed and he in the remainder brings a Writ of Errour also De Recordo quod coram vobis residet and the question was upon which Writ of Errour the Iudgement should be reverst and it was objected that if it should be reverst by the Tenant for life that he in the remainder should be restored But Gawdy Fenner and Clench contr Who held that it should be reverst at his suit who first brings the Writ as in case of Interpleader it shall be alwayes upon the first Writ And notwithstanding the removing of the Record by the Tenant for life at the next term the Court said it was at their discretion to reverse this at suit of anâ— of the parties as they pleased and because they observed some indirect practices by him in the remainder it was reverst at suit of Tenant for life Pasch 5 Jacob. Sir Henry Dimmocks Case in the
Deforceants Qui quidem finis fuit ad usus intentiones in Indentura praedict specificat by force whereof the said Thomas and Margaret were seised but the Iury found nothing of the Marriage whether it took effect or not and further found that William Pile and Philip his Wife had Primogenitam prolem a Daughter and then died and then Thomas Beale died and his Wife inter married with one Lamock who made a Lease to the Plaintiff who was ousted by Layton the Lessee of Philip Pile And hereupon it was moved by Gawdy Serjeant that inasmuch as the Marriage took no effect between Thomas and Margaret the uses cannot be in them but the Fine shall be to the use of the Conusor which was opposed by Walshey Serjeant who said that it was not like a Covenant in consideration of marriage to stand seised of such a Mannor for there if the considerations faile the uses faile also for the consideration onely is the sole and entire cause that makes the uses to arise but in this case the consideration is not materiall but the Fine effectuall without consideration of money paid and if a Feoffment be made to the use of I S. although no money be paid yet I.S. shall have the Land Windham The Cases differ much for here the Fine is not exprest to be levied to the use of Thomas and Margaret but to the uses and consents contained in the Indenture but he said that the common course was to limit the use to the Conusor untill the Marriage took effect and after as before was urged by Walmsley And the Iury found that Thomas and Margaret were seised accordingly Winham They are no Iudges to determine doubts in Law Rhodes Iustice Herein they have taken notice but of the matter in fact and he affirmed the difference put by Walmsley Windham The case de matrimon praelocut is stronger then this Case for the secret intention shall reduce the Land if the marriage take no effect And after the Court being full they all agreed to the difference put by Walmsley and also that the sale afterwards was not good by reason of this Limitation And Iudgment was given for the Plaintiff accordingly Hil. 26 Eliz. Britman against Stanford UPon a speciall Verdict the Case was A House Stable and Hay-loft were demised to one for yeares rendring foure and twenty pounds Rent per annum and foure and twenty pounds for an In-come quarterly by equall portions upon Condition that if any of the Rent or In-come be behind at the time it ought to be paid that then the Lease shall cease and determine The Lessee makes a Lease of the Stable to the Lessor and after part of the In-come is behind and unpaid and the Lessor enters for the Condition broken into the house And if this was a good entry was the question And Iudgment was given that the Condition was gone and void by reason of the Lessors taking part of the thing demised because a Condition is speciall and intire and not to be severed And in this Case Fenner said that a Grantee of a Reversion cannot take benefit of a collaterall Condition as in case of a grosse summe but in case of a Rent waste c. it was otherwise Mich. 29 and 30 Eliz. Rot. 2529. Doctor Lewin against Munday IN a Replevin by Lewin against Munday it was found by Verdict That a Fine was levied the 14th of Elizabeth between Lowla and Rutland Plaintiffs and Fook and seven others Deforceants of the Mannors of Gollochall whereby the Defendant did grant the Mannor to the Plaintiffs and the Heires of one of them who granted and rendred twenty pounds per annum to the said Fook and his Heires with a Distresse for non-payment Fook seised of the Rent makes a grant to a stranger in this manner That whereas a Fine was levied the 14. of Eliz. of the Mannor aforesaid and divers other lands c. and mistook the Mannor for he put the names of the Conusees in place of the Conusors and so e contra and that it was levied of the Mannor and divers other lands whereas the Fine was levied of the Mannor solely and that he did grant the said Rent granted unto him to the said stranger and his Heires And this grant was adjudged by Anderson who said that if one recite that he hath ten pounds of the grant of I.S. whereas it was of the grant of I.D. yet it is good Hil. 30 Eliz. Rot. 17.32 Hunts Case HUnt brought an Action on the Case against Torney and declared that he being seised of lands in Swainton in Norf. in fee Secundum consuetudinem Mannerii the Defendant did promise to the Plaintiff in consideration the Plaintiff would permit him to occupy the same for the space of five years that he would pay him at the Feast of All-Saints next coming and so yearly twenty pounds at the Feasts of the Annunciation and All-Saints by equall Portions during the terme aforesaid and alledged that he had injoyed the lands by the space of a year and half and so brought his Action on the Assumpsit And Anderson was of opinion that untill the five years were expired no money was to be paid because the Contract was intire But all the other Iustices on the contrary for the consideration was to pay a certain summe yearly which made severall duties and so severall Actions For by Periam if a man be bound to pay I.S. twenty pounds in manner and forme following viz. ten pounds at such a day and ten pounds at such a day in this case the Obligee cannot have an Action of Debt for the first before the day of payment of the last ten pounds be past because the duty in it self is an intire duty but if a man be bound to pay I.S. ten pounds at such a day and ten pounds at such a day here the Obligee shall have his Action for the first because the duty was in it self severall Anderson at another day said that if a man makes a Lease for ten years rendring Rent in that case he may have an Assumpsit for the Rent due every year So if I covenant with you to build you twenty houses the Covenantee shall have a severall action for each default Periam That Case of the Assumpsit is much to the purpose for an Assumpsit is in the nature of a Covenant and is indeed a Covenant without writing Rhodes cited this Case Gascoigne promised in consideration of a marriage of his Daughter with such a mans Son to give seven hundred marks and to pay a hundred marks every year untill all the sunun were paid and it was held clearly in this Court that a severall action might be brought upon every hindred pounds but because the action was brought for all the seven hundred marks before the seven years were out Iudgment was given against him for if a man be bound in a Bond of a hundred pounds to pay twenty pounds for so many years he
that the Action might be against the Husband onely because that the woman could not convert them to his own use during the Coverture but onely to the Husbands use And the opinion of the Court was that the Writ was good against them both and that the conversion was in nature of a Trespasse and so the Action would well lye Mich. 32. and 33 Eliz. Kent against Wichall IN a Trespasse Quare clausum fregit herbam conculcavit the Defendant pleaded that he tendied sufficient amends to the Plaintiff and he refused the same and demanded Iudgment c. And upon a Demurrer the opinion of the Court was that this is no plea in Trespasse but in a Replevin it is a good plea Sed non dierunt causam diversitatis 21 H. 7.30.9 H. 7.22 F.N.B. 69. G. 31 H. 4.17 Drew demanded of the Court that whereas Edmund Leusage had bound himself in an Obligation by the name of Edward Leusage if this was good or not and it seemed to the Court Quod non est factum and Anderson and Walmesley said expresly that it was void 34 H. 6.19 6. Dyer 279 21 H. 7.8 Sir John Arrundell and his Wife brought a Quare Impedit against the Bishop of Glocester and others who pleaded in Bar that William Sturton was seised of a Mannor to which the Advowson was appendant and bound himself in a Statute-merchant of two hundred pounds to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present Note it was said by the Iustices of the Common Pleas that if a man promise another that he shall have a Lease in his land for eight years or it is agreed amongst themselves that one shall have a Lease of the others land for eight yeares that is no lease of the land but onely a Contract and Agreement but if one promise another that he shall have his land for eight years or openly agree that one shall have the others land for eight years this is a good lease for eight years by force of the agreement A. came before the Major of Lincolne and acknowledged a Statute-merchant and the Seal of the Major was not put to it and it was adjudged that the Statute was not good but a man may sue upon it as an Obligation because the Seal of the party is to it Pasch 36 Eliz. IN a Waste the Case was that a Lessee for yeares purchased Trees growing upon the land and had liberty to cut them within eighty yeares and after the said Lessee purchased the inheritance of the land and devised it to his Wife for life the Remainder to the Plaintiff in see and made his Wife Executrix and died who after married with the Defendant who cuts the Trees whereupon the Action is brought And by opinion of all the Court the Action was maintainable for although the Trees were once Chattels yet by the purchase of the Inheritance they were united to the land and Iudgment was given for the Plaintiff accordingly Pasch 36 Eliz. UPon an Exigent the Sheriff returned that after Divine Service he made proclamation and did not say that there was no Sermon and therefore the Iudges held that the return was not good for by the Statute if there be a Sermon in the Church the Sheriff shall make his proclamations after the Sermon and if there be no Sermon then after Divine Service and because it did not appeare whether there were any Sermon or not the opinion of the Court was ut supra It was said that a man shall not aver against a Postea in the Kings Bench or the Common Pleas to say that it was contrary to the Verdict nor shall he be received to say that the Iudges gave a Iudgment and the Clarks have entred it contrary to their Iudgment but otherwise is it in Court Barons or other base Courts not Courts of Record 10 Ed. 3.40 35 and 36 Eliz. Newman against Beaumond IF the Ordinary grants the Administration of the Goods of B. to A. and after grants the Administration to R. this second Grant is an appeale of the first without any further sentence of repeale for the Administrator is but a servant to the Ordinary whom he may charge at any time In an Action of Debt on a Bond bearing date the nineth of July the Defendant pleaed a Release of all Actions the same day usque diem dati ejusdem scripti and it was adjudged that the Obligation was not discharged because the Release does exclude the nineth day on which it was made Mich. 37 and 38 Eliz. Rot. 211. Holman against Collins HOlman brought a Writ of Error against Collins upon a Iudgment given in the Court of Plymmouth in the County of Devon the case was Collins was possessed of a peece of Ordnance and in Consideration that he would tender this to Holman for to put into his Ship which was then going to Sea and that Collins would stand to the hazard of losing it The said Holman did assume upon himself and did promise to give Collins certain Goods which he should gain by the Voyage and after the said Ship did return laden with certain Goods and for non-satisfaction the said Collins brought his Action on the Assumpsit and had Judgment to recover And Crook assigned these Errors 1. That the Stile of the Court was not good for it was Curia Dominae Reginae Burgi praedict tent coram Majori de Plymmouth without saying secundum consuetudinem villae praedict and he who is Iudge of the Court ought to be either by Patent or Prescription and then for not expressing the stile of the Court nor by what authority they held their Court it is error and he cited the case in the Lord Dyer 262. and a Iudgment 30 Eliz. Rot. 32. given in the very point Another Error was that no day was prefixed for the Defendant to appear but generally ad proximam curiam which is Error although it be held every munday And for these Errors Iudgment was reversed Trin. 28 Eliz. Rot. 948. Mercer against Sparks MErcer had Iudgment to recover against Sparks in the Common Pleas upon an Action of the Case for words and Sparks brought a Writ of Error in the Kings Bench and assigned for Error that the Plaintiff did not expresse in the Declaration that the Defendant spake the words malitiose but it was adjudged that it was no Error because the words themselves were malicious and slanderous wherefore Iudgment was affirmed Savacres Case IT was adjudged in the Common Pleas that if a Baron or others mentioned in the Statute of 21 H 8. take divers Chaplaines which have many benefices and after they discharge their Chaplaines from their Service they shall retain their Benefices during their lives and if the Baron takes others to be his
maneriis de Badmanshall and the question was If the Vitar by this Indowment shall have the third part of the Tythes growing upon the â—and of the Freeholders within the Mannor or not And it was said by the Court that a Mannor cannot be without Freeholders and inasmuch as they are to be charged with the payment of Tythes one and the other together shall be said to be the Tythes of the Mannor and so it was adjudged that the Vicar should have Tythes of the third part of the land of the Freeholders as well of the Demesnes and Copyholders Trin. 37 Eliz. Rot. 438. Willoughby against Gray A Venire facias did beare Teste out of the Terme and also there was no place mentioned in the Writ here the Visne should be impaunelled and after the Writ said Coram Justiciariis and did not say apud Westmonasterium and a tryall was had hereupon and Iudgment given which was prayed might be reversed for these causes But it seemed to the Court that notwithstanding all that was alledged it was good enough for although the Venirefacias was not good yet if the Distringas had a certain return and place therein And the Iury appeared and gave their Verdict so that a Verdict was had the Statute will aide the other defects as in the case adjudged between Marsh and Bulford where the Venire bore Teste out of the Term. But Fenner said that the Teste was in the Term but on the Sabboth day which was not Dies Juridicus Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem against Hopton Flam and Williams Hopton pleaded not guilty Flam pleaded that he was mis-named and demanded Iudgment c. Et quoad feloniam mahemium not guiltâ— de hoc ponit se super patriam praedict Kinton similiter And Williams pleaded no such man in rerum natura as Flam and demanded Iudgment of the Writ and as to the Mayhem and Felony not guilty Et de hoc ponit se super patriam c. And as to the other two pleas to the Writ Kinton demurred prayed that the Writ might be awarded him and a Venire facias to try the issue For Tanfeild urged that by pleading over to the felony he waved the plea to the Writ for there was a diversity between an appeal of Murther and of Mayhem for in Murther as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal yet of necessity he must plead over to the Murther because it is in favorem vitae or else if he will joyne in Demurrer upon the plea to the Writ he doth confesse thereupon the Felony and therefore he must plead over not guilty But in Mayhem it is otherwise for although the Declaration was for Felony yet is a Mayhem but a Trespasse onely and all are pruâ—cipalls and the life of the Defendant is not questioned but he shall onely render damages and therefore it he plead over to the Felony that is a waver of the plea and so a Venire faciaâ— ought to issue out to try if he be culpable or not and of this opinion were Popham Fenner and Gawdy clearly and agreed to the diversity between the appeal of Mayhem and Murther Mich. 38 and 39 Eliz. King against Braine A Man sells Sheep and warrants that the yare sound and that they shall be sound for the space of a year upon which Warrant an Action of the Case was brought and it was moved that the Action did not lye because the Warranty is impossible to be performed by the party because it is onely the act of God to make them sound for a year But Clench and Fenner on the contrary for it is not impossible no more then if I warrant that such a Ship shall return safe to Bruges and it is the usuall course between Merchants to warrant the safe return of their Ships Mich. 38 and 39 Eliz. Wentworth and Savell against Russell IN a Writ of Parco fracto the Plaintiffs declared that they were Tenants pro indiviso of a Mannor in Yorkshire and that the Defendant held of them certain lands as of their Mannor rendring Rent which Rent was behind and for which they distrained and impounded the Distresse and the Defendant broke the Pound and rescued the distresse and thereupon they brought this Action and the Defendant demurred on the Declaration because the Plaintiffs did not shew how they were Tenants pro indiviso or Tenants in Common or Coparceners But the Court ruled the Declaration to be good And Gawdy said that a Tenant in Common alone without his companion may have an Action De parco fracto And Iudgment was given for the Plaintiff Hil. 39 Eliz. POphamsaid that in Lancashire there is a Parish called Standish within which are many Townes and one of the Townes is called Standish And if a man seised of lands in the Town of Standish and also of land in the other Townes do let all his land in Standish onely his land within the Town of Standish doth passe and not all his land within the Parish of Standish in the other Townes For where a man speaks of Standish or of Dale it shal be intended to be a Town and not a Parish unlesse there be expresse mention of the Parish of Standish or of Dale Gawdy and Fenner on the contrary for the Grant of every man shall be taken strongest against himself and therefore all the land as well within the Parish of Standish as within the Town of Standish shall passe And Fenner said that when Dale is mentioned in any Precipe it shall be intended the Town of Dale because Towns are noted at the Common Law and not Parishes for Parishes were ordained by the Councell of Lyons but notwithstanding in Grants there shall be no such intendment but the intendment shall be according to the common usage and understanding of the Country and Country-men in favour of the Grantee and when a man speake of Standish or any such place it shall as well be intended to be a Parish as a Town Hil. 29 Eliz. Clarentius against Dethick CLarentius brought an Action of the Case against Dethick by the name of Dethick alias Garter The Defendant demanded Iudgment of the Writ for the Queen by her Letters Patents had created him King at Armes Et quod nuncuparetur Garter principalis Rex armorum and that he should sue and be sued by such name and because he was not sued according to his creation he demanded Iudgment c. Tanfeild prayed that the Writ might abate for this case had been here in the Court in question before where Dethick was indided by the name of Dithick onely and because he was not named according to his creation he pleaded that matter and the Indictment was quashed Gawdy I remember the case very well and it was adjudged at my first coming to this Court and in truth the Iudgment passed against my opinion which then and still is
expounded as they are commonly taken and not to go to any strict construction of the words as Heirs in the Latine is used also for goods by the Civill Law but we use it only for lands and so Libra in Latine signifies a Weight and yet if I am bound in Vigint Libris if I forfeit my Bond I must pay money and not Lead or the like And so the word Puer is somtimes taken for a servant Claudite jam rivos pueri c. and the same reason that it may be intended for a Daughter may be for a Servant also Gawdy I suppose the Son shall have it and not the Daughter for although Pueri was taken for Male and Female yet now it is taken for Male in any Modern Author but to omit curiosity of words we ought to consider rather the intent of the parties and there are many circumstances to prove that he intended this to his Son and not to his Daughter for he made it for setling his Inheritance and it shall not be supposed that he intended his Daughter should have it Also where the case may be taken two waies the most usuall shall be intended as in case of a reservation of a Rent at Michaelmas that shall be intended at the chiefest Feast also in this case it shall be intended that he would advance the most worthy of his blood and therefore to that purpose the conveyance shall be expounded for if there be two I. S. and I give land to I.S. it shall be intended to my next Neighbour but if one be my Cosin although he dwells forty miles from me yet he shal have the land And to this Southcote accorded 31 Eliz. in B. R. Hone against Clerk A Woman Lessee for life takes Husband who by Indenture makes a Feoffment of the land to I.S. for these words Sciant per Servantes Richardum How Katherin uxor ejus dedisse I.S. unum messuagium habendum praedict I.S. heredibus suis ad solum opus usum of the said I.S. and his Heirs during the life of Katherine The question was if this was a forfeiture because the wife was Tenant for life and the Attorney argued that it was for the words Pro termino vitae Katherin are referred to the use only and not to the estate for by these words habendum to him and his Heirs the estate is limited and therefore it is a forfeiture but after comes the limitation of the use ad usum I.S. and his Heirs during the life of the woman and after the death of the woman the use remaines in the Feoffor and he cited the Lord Sturtons case in the beginning of the Queens Raign The Lord Sturton gave land to Clerk and his Heirs to the use of Clerk and the Heirs of his body and adjudged that it was not an estate in taile for the limitation of the estate was before in the Premises Coke on the contrary and said that those words For life of the wife are to be referred to the limitation of the Estate for if a double sense be in words such sense shall be taken as shall avoid all wrong and therefore it shall not be so expounded as that the Grant shall not take effect and that a forfeiture shall ensue 4 Ed. 2. and see a notable case for exposition of words and for relation of words and sentences 34 Ed. 3. Avowry 58.28 H. 8. Dyer Gawdy It is a forfeiture Clench said he would advise but afterwards it was adjudged a forfeiture for as Wray said the estate given was forfeit Mich. 36 37 Eliz. Bagnall against Porter in B. R. Rot. 353. A Man by Indenture bargains and sells his land and if the Bargainor pay 100 l. at such a day that then he shall be seised to the use of the Bargainor and his heirs and did assume to make such assurance for the security of the land as should be advised by the Councell of the Bargainor and the Bargainee bound himself in a Recognizance to performe the said Covenants And in debt upon the Recognizance it was shewn that the Bargainor paid the money at the day and had tendred to the Bargainee a Deed in which was comprised an acquittance of payment of the money and also a release of all his right and the Bargainee refused to seale it Coke was of clear opinion that he ought to have sealed it for it is necessary to have the Deed to mention payment of the money for otherwise the Bargainee and his heirs may claim the land for default of payment Gawdy of the same opinion and cited 19 Ed. 4. Popham The case is not so clear for if he had tendered an acquittance only there is no doubt but the Bargainee might refuse to seale it and by the same reason he may refuse when it is joyned to a thing that he is bound not to do viz. to seal the release but at last the matter was referred to Arbitration Hillar 37 Eliz. COke demanded this question A man having two Daughters his Heires does demise his Land to them in Fee What estate had they by this Demise For if a man deviseth Land to his eldest Son it is voyd and he is in by descent That it was holden by the Court that they shall hold by the Devise because that he gives another estate to them then descended for by the descent each of them had a distinct moyety but by the Devise they are Joyn-renants and the survivor shall have all And Fenner sayd If a man had Land in Burrow-English and Guildable Lands and devised all his Land to his two Sons and dyes both of them shall take joyntly and the younger shall not have a distinct moiety in the Burrow-English nor the elder in the Guildable Land but they are both Joyn-tenants Pasch 37 Eliz. Carrell against Read in B. R. Rot. 270. A Lease for years was made of divers Fenny grounds in Cambridge ss and the Lessee covenanted to defend the ground for being surrounded with water and to drain the water out of other lands that were demised to him in the said County And upon an Action of Covenant for not performing the Defendant pleaded that the Plaintiff had entred in the land demised And adjudged no plea by the Court because the Covenant was not in respect that the Lessee should enjoy the land nor was it a Covenant abhering to the land but to a collaterall thing but if it had been in respect of enjoying the land there it is a good plea to say that the Plaintiff had entred but where the thing to be done is collaterall it is otherwise and also if he did plead such plea yet it is not a bar unlesse he holds him out of possession Coke lib. 3.221 4 Ed. 3.29 the Lord shall not have a Cessavit after entry in parcel 10 Ed. 4.11.35 H. 6. Bar 162.19 Ed. 4.2 Trin. 37 Eliz. in B. R. Rot. 1076. Dogrell against Perks IN an Action of Covenant The Defendant pleaded
dissolved Williams But that is saved by the 3â— H. 8 for Annuities are exprest in the saving Anderson But this is an Annuity or Rent with which the land is charged Beaumond If it be any thing wherewith the land is charged it is saved but the person is only charged with this Annuity Walmsley But the 21 H. 7. is that an Annuity out of a Parsonage is not a meer personall charge but chargeth the Parson only in respect of the land And the Court would consider on the case Pasch 38 Eliz. in B. R. The Case of the Dean and Chapter of Norwich THe Case was A Church in which there had been a Parson and a Vicar time out of mind and the Parson used to have the great Tythes and the Vicar the small and for the space of forty years last past it was proved that the Parson had Tythes paid him out of a feild of twenty acres of Corne and now the feild is sowed with Saffron and the Vicar sued for the Tythes of Saffron in the Court Christian and the Parson had a Prohibition Coke I conceive the Parson shall have the Tythes for by the Statute of 2 H. 6. it is enacted that Tythes shall be paid as hath been used the last forty years and this hath been alwaies tythable to the Parson and although the ground be otherwise imployed yet the Parson shall have the Tythes and so was it in Norfolk in the Case of a Park where the Parson proscribed Pro modo decimandi to be paid three shillings fours pence for all Tythes rising out of the said Park and although the Park was after converted to arable yet no other Tythes shall be paid Popham It hath been adjudged otherwise in Wroths Case of the Inner Temple in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tythes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparkt Tythes shall be paid for Tythes are not due for Venison and therefore they are not Tythes in Specie And I conceive that Tythes of Saffron-heads shall be comprehended under small Tythes and although the Tythes of this Feild have been paid to the Parson yet it being converted to another use whereof no grosse Tythes do come the Vicar shall have the tythes and so if arable land be converted into an Orchard the Wicar shall have tythe of the Apples and so if the Orchard be changed to arable the Parson shall have tythes Quod Fenner concessit 36 Eliz. Higham against Deff IN a Trespasse the Case was That a Vicaridge by composition was indowed of the third part Omnium Bladorum decimarum of the Mannor of D. If he shall have tythes of the Freeholders of the Mannor was the question Johnson He shall not have them for a Mannor consisteth of two things viz. of Demesns and Services the Freeholders are neither parcel of the Demesnes nor the Services and therefore no parcell of the Mannor and this is proved in 12 Ass 40. a Rent-charge was granted out of a Mannor the Tenancy escheats it shall not be charged with the Rent Tanfeild contra For this word Mannor does extend to the Precincts of the Mannor and not to the Demesnes and Services onely and therefore if a Venire facias be awarded De viceneto Manerii de D. the Freeholders shall be returned also a survey of a Mannor shall be as well of the Freehold lands as of the Demesnes and if the King grants a Leet within the Mannor of D. all the Freeholders are bound to appear Fenner Grants ought not to be restrained to their strict words but are to be construed according to the intent of the parties Trin. 38 Eliz. in B. R. Ewer against Henden Rot. 339. IN an Ejectment the Iury found that I.S. being seised of a Capitall Messuage in the County of Oxford and also of a house and land in Walter in the County of Hartford makes a Lease for years of his house and land in the County of Hartford and then by Will does demise his house in the County of Oxon Together with all other his Lands Meadowes Pastures with all and singular their Appurtenances in Walter in the County of Hartford to John Ewer and whether the house in Walter in the County of Hartford does passe or not was the question Tanfeild The houses shall passe for if a man builds a house upon Black acre and makes a Feoffment of the acre the house shall passe and so if a man does devise una jugata terrae of Copyhold Land the house of the Copyhold does passe also for so is the common phrase in the Country and so if a man be rated in a 100 l. subsidy that does include houses and by the grant of a Tenement the house passeth but if a man demand a house in a Precipe there the house ought to be named Whistler contra It is true that if a man generally does devise his Land the houses passe but in this case the Devisee hath particularized his Land his Meadow and his Pasture and if he intended to have passed his houses he would have mentioned them as well as his Lande Fenner I am of the same opinion for this speciall numbring of particulars does exclude the generall intendment and if the Devisor had a Wood there that would dot passe by these words Popham contra For if a man sells all his Lands in D. his houses and woods passe by this word Lands and so was it agreed in a case which was referred to Dyer and Wray chief Justice and there reason was because that a Warrant of Attorney in a Precipe of a House Woods and Land is onely of Land which proves that land does comprehend all of them and therefore I conceive if a man does devise or bargain and sell all his lands in D. the Rents there shall passe for they were issuing out of the land But if a man be seised of three houses and three acres and he deviseth all his land in D. and one of his houses the other houses will not passe for his expresse meaning is apparant but here the words are in generall as to the lands in Walter and therefore the houses do passe But afterwards it was adjudged that the house did not passe for by the particular mentioning of all his Lands Meadowes and Pastures the house is excluded Pasch 4 Eliz. Hunt against King IN a Writ of Error upon a Iudgment given in the Common Pleas in a Formedon brought there the Case was Tenant in tail enfeoffs his Son and then disseiseth his Son and levies a Fine to a stranger and before the Proclamations passe the Son enters and makes a Feoffment to a stranger the Father dies and the Son dies and the Issue brings a Formedon The question was Whether by the entry of the Son the Fine was so defeated
that the Estate-tail was not barred Dyer The Estate tail is barred and made a difference where the Fine is defeated by entry by reason of the Estate-tail and where it is defeated by entry by reason of another estate-tail as in 40 Eliz. Tenant in tail discontinues and disseiseth the Discontinuee and levies a Fine to a stranger and retakes an Estate in Fee before the Proclamations passe the Discontinuee enters and then the Tenant in tail dies seised and adjudged that the Issue is not remitted for the Statute 32 H. 8. saies That a Fine levied of lands any way intailed by the party that levies the Fine shall bind him and so it is not materiall whether he were seised by force of the Estate-tail or by reason of another Estate or whether he have no Estate And all the Iustices were of opinion that the Estate was barred for although the discontinue had avoided the Fine by the possession yet the Estate-tail remains concluded and the same shall not enter by force of the Estate-tail but by force of the Fee which he had by discontinuance Popham Avoidance of a Fine at this day differs much from avoidance of a Fine at the Common Law for it appears by the 16 Ed 3. that if a Fine at the Common Law be defeated by one who hath right it is defeated against all but at this day the Law is contrary for if a man be disseised and the Disseisor die seised his Heir within age and he is disseised by a stranger who levies a Fine and then five years passe the Heire shall avoid this by his nonage yet the first Disseisee is bound for ever for the Infant shall not avoid the Fine against all but only to restore the possession And therefore it was adjudged in the Lord Sturtons Case 24 Eliz. where Lands were given to him and his Wife and the Heires of him and he died and his Issue entred and levied a Fine to a stranger and before the Proclamations passed the Mother enters it was adjudged that the Issue was barred for the Wife shall not avoid this but for her own Estate And so if a stranger enters to the use of him who hath right this shall not avoid the Fine Fenner did agree to this and said that it had been so adjudged but all the Iustices agreed that the Estate-taile being barred the entry shall go to the benefit of him who hath most right to the possession and that is the discontinue and therefore the Plaintiff in the Formedon hath good Title to the Land but onely to the Fee and not to the Intaile for that is barred by the Fine 28 Eliz. in C. B. Rot. 2130. Gibson against Mutess IN a Replevin the Case was John Winchfeild was seised of Lands in Fee and by his Will did devise all his Lands and Tenements to Anthony Winchfeild and his Heires and before his death made a Deed of Feoffment of the same Lands and when he sealed the Feoffment he asked If this Feoffment will not hurt this last Will if it will not I will seal it And then he sealed it and made a Letter of Attorney to make Livery in any of the said Lands the Attorney made Livery but not of the Lands which were in question and then the Testator died And the question was if the Devisee or Heire of the Devisor should have the Land And it was said in behalf of the Heire that if the Testator had said It shall not be my Will then it is a Revocation Quod curia concessit But it was the opoinion of the Court that it appears that it was the intent of the Testator that his Will should stand and if it be not a Feoffment it is not a Revocation in Law although that the Attorney made a Livery in part so that the Feoffment was perfect in part yet as concerning the Land in question whereof no Livery was made the Will is good and the Iury found accordingly that the Land does not descend to the Heire Fenner cited a Case of Serjeant Jeffereys where it was adjudged that where one had made his Will and being demanded if he will make his Will doth say he will not that this is no Revocation Sir Wolston Dixy against Alderman Spencer 20 Eliz. in C. B. IN a Writ of Errour brought upon a Iudgement given in an Assize of Fresh-force in London The case was Sir Wolston Dixy brought an Action of Debt for rent arrear against Spencer upon a Lease for years made to him by one Bacchus who afterwards granted the reversion to Dixy and the Tenant attorned and for rent arrear Dixy brought an action c. The Defendant pleaded in Bar that before the Grant made to Dixy the said Bacchus granted it to him by parole according to the custome of London whereupon he demanded Iudgement if c. and the Plea was entred on Record and hanging the suit Dâ—xy brought an assize of fresh force in London and all this matter was here pleaded and it was adjudged a forfeiture of the Land and hereupon Spencer brought a Writ of Errour and assigned this for errour that it was no forfeiture Shuttleworth It is no forfeiture untill a Trial be had whether the reversion be granted or not as in wast the Defendant pleads that the Plaintiff had granted over his estate this is no forfeiture and in the 26 Eliz. in a Quid Juris clamat the Defendant pleaded that he had an estate Tail and when he came to have it tryed he acknowledged he had an estate but for life and that was no forfeiture But the Court said they could remember no such Case Walmesley It was so adjudged and I can shew you the names of the parties Periam Justice If there be such a Case we would doubt of it for there are Authorities to the contrary as the 8 Eliz. and 6 Rich. 2. Anderson If the Defendant in a Trespass prayes in aid of an estranger this is a forfeiture and if it be counter-pleaded it is a forfeiture and the denial alters not the Case Walmesley The Books in 15 Ed. 2. Judgement 237. and 15 Ed. 1. that Iudgement in a Quid Juris clamat shall be given before the forfeiture Andâ—rson In my opinion he may take advantage before Iudgement as well as after if the Plea be upon Record And so was the opinion of the Court. The Dutchess of Suffolks Case Pasch 4 5 Ph. Mary in C. B. IN a Quare impedit against the Bishop of Exeter the Writ was ad respondendum Andrew Stoke Dennisae Franciscae de Suffolk Uxori eâ—uâ— Benlowes demanded Iudgement of the Writ c. because she lost her name of dignity by marriage with a base man as it was adjudged 7 Ed. 6. Dyer 79. where Madam Powes and her husband brought a Writ of Dower and the Writ abated because she called her self Dame Powes whereas she had lost her dignity by marrying with her husband Stanford agreed for Mulier nobilis si
Devise did occupy land for 20 years and after the Devise was adjudged voyd he that had right to the land brought an account against him and adjudged that it does not lye Harper contr For an account does lye against a Proctor and the Plaintiff may charge him as Proctor and it is no Plea for him to say that he did not occupy as Proctor no more than it is a Plea for him who occupies as Guardian to say he was not the prochein amy Dyer There are three Actions of Account 1. Against a Baily 2. Against a Receiver 3. Against a Guardian in socage and if an Account be brought against one as Receiver he ought to charge him with the receipt of money and I conceive that there ought to be a privity to charge one with the receipt of money but if one claim as Baily or as Guardian in socage he is chargeable in account but an Abator or a Disseisor is not because they pretend to be owners and in this case because by the setting forth the Tithes the property is in the Parson therefore he being Lessee for years he shall have an ejectione firma and not an Account Hillar 32 34 Eliz. Carter against Kungstead in C. B. Rotulo 120. IN a Trespass the Iury gave this special Verdict John Berry was seizin of the Mannour of Stapeley in Odiam and of other lands in Odiam and the 32 H. 8. suffered a common recovery of all his lands in Odiam Stapeley and Winkfield to the use of himself and his wife for life the remainder to the heirs males of his body quod â—lterius starent of the Mannour of Stapeley with the appurtenances to the use of himself for life the remainder to the heirs males of his body whereby they were seized prout Lex postulat The husband dyes the wife makes a Lease for 19 years and whether the Mannour of Stapeley were conveyed or not was the question Harris She shall have all for when the whole estate is limited at the beginning of a Deed it shall not be abridged afterwards Periam The estate is by way of use which shall be expounded according to the intent and will of the Limiter and if this had been done by will it is clear the woman should not have the Mannour of Stapeley Anderson If I devise my land to J.S. and afterwards by the same Will I devise it to J.D. now J.S. shall have nothing because it was my last Will that J.D. should have it But otherwise it is of a use for if I do limit an estate to the use of J.S. and in the last clause do limit the same estate to J.D. the limitation to J.D. is voyd for the repugnancy Periam As to the case of the Will I conceive it is voyd to both because it cannot be known who shall have it Anderson I am sure the Law hath been taken as I have said and there was a Case in the Vpper Bench where a man one day made part of his Will and another day made another part which was repugnant to the first part and adjudged that the last was good and the first voyd Periam I agree to this Case for here is a difference in time Anderson So is there in my Case for when I am writing my Will I am thinking how I shall dispose of my estate and it shall be intended that I have least advised concerning that which I have done last Walmesley A Vse is not to be compared to a Will for the Statute of 27 H. 8. hath made it an estate and then by the 19 of Edw. 3. If a man limits an estate at the beginning of a Deed he cannot after abridge it Periam I put this Case If a man covenants upon consideration to be seized to the use of himself for life and after to the use of his son but he further sayes that his meaning is his wife shall have it for her life this is not a voyd Clause but good to the wife and the Case was adjourned till next Term. And Harris argued again and said that a Vse was but matter of trust and for that it is apparent that the intention was that the wife should have nothing there is no reason that another construction should be made Walmesley The limitation of the Vse is but a declaration how the Vse shall be and does not give any thing and the opinion of the Court was against the Plaintiff who was Lessee of the woman and that the last Clause does countermand the first as to the Mannour of Stapeley Michael 31 32 Eliz. Brokesbyes Case in C. B. Rot. 18.15 BArtholomew Brokesby brought a Quare impedit and it appeared by his Declaration that the next avoydance was granted to him and one Humphrey Brokesby and then the Church became voyd and Humphrey did release to Bartholomew totum statum titulum c. and then Bartholomew being disturbed brought a Quare impedit in his name alone Harris The Plaintiff shall be barred for the other shall be named with him for the Release is voyd for when the Church becomes voyd it is a thing in action and of privity and confidence and cannot be released nor transferred Dyer 283. a. 28 H. 8.26 a. Where it is said that it cannot be granted over no more than an Executor may release his Executorship to his companion Beaumont In my opinion it is not a Chose in action but an interest which the Executors have and by the 14 H. 4. and 14 H. 6. If a man be seized of an Advowson in the right of his wife and the Church is voyd and the wife dyes yet the husband shall present which proves it is not a Chose in action for in the 49 Edw. 3.23 the husband shall not have an obligation that was made to his wife and in our case by this avoydance the Church is become an interest and a Chattell and therefore one Ioyntenant may release to another by reason of their privity although they have no possession Fenner The release is Totum Statum jus titulum but here he hath no estate nor possession and therefore the release is void And to prove that there is no estate nor possession it is proved by the pleadings of the grant of the next avoydance for he shews that the Church became voyd and that ea ratione pertinet ad ipsum presentare and not by force whereof he was possest and if none hath the advowson which becomes voyd and the Lord claymes the advowson yet he shall not have the present avoydance and as to the case of the Ioyntenants one cannot release to the other for default of possession for the release inanes by reason of their joynt possession which is out of them but release of the Demandant to the Vouchee is good by reason of the privity of Law that is betwixt them and in 11 H. 4. He who hath right after the Incumbent is instituted and inducted may confirme his
reason appears that the nature of the Lapse is to be taken hac vice and the King must take it then or not at all and where it is objected that by this means every Lapse may be taken from the King I conceive that far greater inconvenience will be to the Patrons on the other side for when a Lapse is devolded to the King and a stranger presents if then the true Patron may not present untill the death of such Incumbent perhaps the Incumbent will resign or be deprived and a stranger shall be presented again and again in like manner and so by this means the Patron shall never continue his advowson for by the Couin between the stranger and the neglect of the King to take his Lapse the Incâ—mbent shall never die And afterwards in this term it was adjudged that such usurpation shall not take away the Lapse from the King because the avoydance accrued by the act of the Incumbent Cook ib. 7.27 a. Hillary 29 Eliz. Lassell's Case LAssell brought an action of debt upon an obligation the Defendant pleads that the condition was that he should personally appear before the Iustices and set forth how he was taken by a Latitat by the Plaintiff who was Shiriff who took this obligation upon his deliverance and urged the Statute of 23 H. 6. and said that the obligation was not according to the Statute And by the Opinion of three Iustices Anderson being absent If it were in such an action wherein a man may appear by Atturney then it is void And the Plaintiff shewed a Iudgment given in the Kings Bench wherein in such case Iudgment was given for the Sheriffs and it was between Seekford and Cutts 27. 28. Eliz. Rot. 373. And the next Terme it was moved again Anderson The Obligation is voyd for when an express form is limited by the Statute no variance ought to be from it But the other three Iustices were against him for they held that he ought to appear in his proper person in case of a Latitat Anderson I deny that for Latitats have not been of above 60 years continuance Vid. Cook lib. 10. Beufages Case and his first Institutes 225. a. Pasch 25 Eliz. Kayre against Deurat in C. B. Rot. 603. IN a Waste the Plaintiff declared how the Defendant was seized in Fee and made a Feoffment to the use of himself for life the remainder to the Plaintiff in Fee after which he committed waste The Tenant said that he was seized in Fee without that he made a Feoffment as the Plaintiff declared and upon issue joyned it was found that the Defendant was seized in Fee and that he made a Feoffment to the use of himself for life of J.S. without impeachment of waste the remainder ut supra and whether this was the Feoffment which the Plaintiff alledged they prayed the advice of the Court. Anderson Chief Justice If the impeachment of waste be not part of their issue then the Verdict is voyd for that point and that which is found more than their issue is voyd 33 H. 6. the Defendant pleaded that he was not Tenant of the Free-hold and the Iury found that he held joyntly with another there the Plaintiff shall recover And then at another day it was said by the Iustices that the Iury had found such an estate as was alledged by the Plaintiff and although that they further found this priviledge to be dispunisht of waste which upon the matter proves that the Plaintiff hath no cause of action yet because the Tenant may choose whether he would take hold of this priviledge or not the Iury cannot finde a thing that is out of their Verdict and whereof the Defendant will not take advantage by pleading and for this cause their Verdict was voyd 7 H. 6.33 21 H. 7.12 where one pleaded in Bar a Feoffment and traversed the Feoffment and hereupon they were at issue and the Iury found that he had enfeoffed the Tenant after the Fine levyed to the Plaintiff this cannot be found because it is out of their issue 31 Assi 12. and Iudgement was given for the Demandant Hillar 29 Eliz. Michell against Donton in C. B. Rot 639. IN an Ejectment a man makes a Lease rendring Rent with a Covenant that the Lessee shall repair the houses with other Covenants and Conditions of re-entry for not performance and then he devised the same land to the same Lessee for divers years after the first years expired yielding the same Rent and under the same Covenants as in the former Lease and he devised the remainder in fee to the Plaintiff and the first Lease expires and the Defendant being possest by force of his second Lease doth not repair the houses and if the Plaintiff might enter was the question Shuttleworth In as much as he devised the land under the same Covenants as the first Lease was and the first was with Covenants and Conditions the second shall be so also the rather because he deviseth the remainder over so that the Devisee cannot take advantage of the Covenants but of the Conditions he may and the second Lease is conditional But the whole Court was against him Shuttleworth To what purpose then are these words in the Devise Under the same Covenants Periam They shall be voyd And by all the Iustices the intent of the Will was not that the Lease should be conditional for Covenants and Conditions differ much for the one gives an action but not the other but the intent was that he should perform the Covenants upon pain to render damages in a Writ of Covenant Bottenham against Herlakenden 29 30 Eliz. in C. B. Rot. 1620. HErlakenden was seized of land and devised the same to the Plaintiff for years the remainder to his wife for life Proviso that the Plaintiff should pay to the woman 20 l. per annum and if he failed of his payment c. wherefore the woman entred and if this shall be called reservation or reversion was the question Anderson A man cannot make a Reservation on a Devise Periam A man may to himself and his heirs but not to a stranger Anderson Every Devisee is in in the sier by the Devisor and why shall not this then be a reservation to the Devisor and a grant of the reversion to the woman Gawdy Wherefore cannot a man devise land reserving rent when by the Statute 32 H. 8. he may devise at his pleasure Periam Because his pleasure must correspond with the Law Anderson If I devise land to another reserving rent to me and my heirs and then devise the reversion he shall have the rent as incident to the reversion and the Iudges were divided wherefore c. 29 Eliz. Glover against Pipe in B. R. Rot. 838. IN debt upon a Bond the Condition was that where Glover the Plaintiff had a Copyhold of inheritance and had leased it to the Defendant if the Defendant should not commit any manner of waste and
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
Writ is grounded upon a recovery by default in a reall action but a waste is a meere personall action And therefore in the 2 H. 4. in a waste against the husband and wife the wife shall not be received also it will not lie in this case because here is no default within the intent of the Statute for the Statute intends to relieve defaults after appearance and therefore all the Iudgment in this Writ is that the recovery was by default and if there was a default in pleading it is a default but not within the Statute Glanvill cont No waste is committed and so the recovery shall not bind for it appears in the 8 Ed. 4. by West That this action was provided instead of a Writ of right and there is no question but a Writ of right will lie here and this Writ is of the same nature And Mr Plowden in his Reading said that this action will lie upon a recovery upon a Writ of waste aswell as in other actions for the recovery is not upon the Inquiry of the Iury but upon default And it is also a reall action 7 Ed. 3. 28 Ed. 3.30 If the husband make default herein the wife shall be received Anderson There is no question but this action lies upon a recovery in waste but if this be a default within the Statute is a doubt for if this should be suffer d it were very mischievous for then contempts shall be favoured which was never the intention of the Statute and therefore it will not lie where there is a default after appearance Walmesley of the same opinion for this case differs much from the Statute of Glocester for this Statute gives remedy to a third person upon default of the particular Tenant and therefore upon this Statute the intent of the partie who makes default is more regarded than the manner of the default and therefore it shall be taken largely But here is default in the party himself and he shall have no favour against his willfull default for every nihil dicit is a confession of it self for thereupon it is supposed that nothing can be said Windham I hold that a Quod ei deforceat will not lie in a Writ of waste for the inquiry of the Iury is the cause of the Iudgment But he agreed that default within the Statute is intended such default that in it self is the cause of the Iudgment but here the Iudgment is given upon contempt and refusall of the party and therefore no favour Perryam This action cannot be compar'd to a writ of right which is grounded upon the right and not on the Iudgment but the form in the Quod ei deforceat is set down in the Statute which ought to be observed and the Statute gives this action upon a default and here is no default for it cannot be a default where the partie appears and hath no day in Court but he doubted much if it lay in awrit of waste because the damages are the principall but as the case is here it will not lie And to prove that a nihil dicit is a confession he cited Pepyss Ease in the Comentaries 438. And at last Iudgment was given that the Writ would not lye Pasch 35 Elizab. James against Portman WIlliam James and Thomas James Ioyntenants for life of a lease made by Portman William James doth assent covenant and agree that Thomas James occupy all the land alone and sow it with his own Corn After the land is sowed Thomas James dyes William James the survivor grants the Corne to Portman who takes it and the Plaintiff as executor to Thomas brought an action of trespass Ewens for the Defendant one Ioyntenant cannot make a Lease to his companion no more than one may infeof the other by reason they have joynt possession 10 Ed. 4.3 2 R. 2. Extinguishment 3. Also the words here are not sufficient to make a Lease but admitting this yet the survivor shall have the corn of that part which belongs to him for by this Lease the Ioynture is severed and then the Survivor shall have that which grows on his part For it two Ioyntenants sowe their land and one of them letts his moytie for years and he who did not let dyes the other shall have the corn as Survivor Pyne cont Although one Ioyntenant cannot inteof another because he cannot make livery because he hath possession before yet may he Release to his companion and so may he make a Lease for years for there is no need of any livery and by the 22 H. 6.43 If one Ioyntenant infeofs another this shall enure by way of confirmation And 14 H. 6.10 One Ioyntenant may put out his companion by this means for he may clayme a Lease from him and then a Release and if it be a good Lease then the Executors shall have it Popham The action is good for one Ioyntenant may make a Lease to the other although he cannot infeof for a Lease is but a contract And 11 H. 6.33 one Ioyntenant commanded the other to occapy all and in a trespass he was compelled to plead this as a Lease and then if one Ioyntenant does sow all and dyes the other shall have the Corne by Survivor and it is not as in case where a man hath an estate determinable upon uncertainty for there his Executors shall have the Corn but in our case the Survivor had contracted with his companion and thereby had bound himself not to meddle with the land and the other bestowed great costs in manuring and sowing the Land and therefore the Executors shall have the Corn. Fenner agreed but doubted whether one Ioyntenant could make a Lease to the other but said that by the contract he had excluded himself from the proffits and by the 39 Ed. 3.27 one Ioyntenant may have an account against the other And he said that if I agree that you shall sow my Land with me you shall gain no interest in the land and yet you shall have the corne And one Ioyntenant may distreyn for himself and as Bayly for the other And the Cause was adjourned and afterwards viz. Hillary 36 Eliz. the case was repeated And Gawdy said That if there be two Ioyntenants and one grants to the other that he may sow the Land yet may the other occupie with him for these words do not transfer any sole interest but if he sayes that he shall occupy all the Land and shall sow it solely this does exclude him from having any interest with him Popham Agreed because this is but a contract and so of a Lease for years Gawdy If one Ioyntenant sayes to the other that he will not occupie the Land with him or that he will not put in his Cattle this does not transfer any interest but that he may occupie with him and so in this case if it had not been said that he should occupy solely Popham of the same opinion for where he sayes he will not occupy
the words are in the negative which will not exclude him of his interest but in the Case at Bar they will because they are in the affirmative so That he shall occupy the Land solely And Iudgment was given for the Plaintiff Pasch 3. Eliz. Woodward against Nelson in B. R. WOodward Parson of Wotton in consideration of 120 l. payd by Bretman one of his Parishioners did accord and agree with him that he and his assignes should be discharged of Tythes during the time that he should be Parson Bretman made a Lease to Nelson Woodward did libell against him for Tythes and Nelson prayed a prohibition upon the said contract And it this was sufficient matter for a prohibition was the Question because it was by word only and without writing which amounts only to a cause of action upon a promise for Bretman but no action for his lessees neither can this amount to a Release of Tythes for as Tythes cannot be leased without Deed so they cannot be released or discharged without Deed. Gawdy Justice Tythes cannot be discharg'd without Deed unless by way of contract for a sum of money and he cited the 21 H. 6.43 Fenner for that year in which the discharge was made it was good by way of discharge without Deed because the Parson for that year had as it were an Interest but such discharge can have no continuance for another year for default of a Deed and so a promise being no discharge it is no cause of a prohibition But Gawdy held as afore And about this time Wray Chief Iustice dyed and Popham succeeded and the same day he was sworn Cook moved this Case again And the Court held that the agreement being by parol was not good And Fenner then said that without writing the agreement could not be good between the parties but for one year And the Court awarded a consultation But upon search made no Iudgment was entred in the Roll. Trinit 35 Eliz. Dr. Foord against Holborrow in B. R. Rot. 367. IN an Action of Debt upon a Bond the case was Dr. Drury to whom the Plaintiff was Executor made a Lease to Holborrow of the Mannour of Golding for years and Holborrow the Lessee entred into a Bond that if he his Executors or Assigns did pay to Anne Goldingham widow the sum of 20 l. for 17 years if the said Goldingham should so long live and so long as Holborrow the Lessee or any claiming by or under the said Holborrow shall or may occupy or enjoy the said Mannour of Goldingham and then Holborrow surreudred his Lease to the Obliges praecextu cujus the Defendant pleaded quod non occupavit nec potuit occupare c. wherefore he did not pay the said sum to Anne Goldingham and the Executor of the Obligee brought an Action of Debt upon this Obligation Johnson for the Defendant The term is gone for he cannot occupy after the surrender and also the Obligee is a party to the cause why it is not performed and therefore he shall take no advantage 4 â— 7.2 But the whole Court was against him for he to whom the surrender is made cometh in quodammodo by him and is his Assignee for he shall be subject to the charge that was before the surrender and also the Defendant shall be bound by these words in the Obligation viz. so long as he shall or may and although these words were not inserted yet he shall pay the annuity for where the first Cause does commence in himself he shall not have advantage thereby but otherwise where he is not party to the first Cause As if two Ioynt-tenants with Warranty make a partition the Warranty is gone because they are parties to the act which made the extinguishment but if one makes a Feoffment of his part the Warranty as to the other remains 11 Ed. 4.8 and in the Case at Bar the Obligor made the surrender and therefore he is party and the first cause and there is a diversity when the thing to be done is collateral and when not for if a Lessee does oblige himself to do a collateral thing as payment of money there he ought to do it although that he surrender for although the Obligee do accept of the surrender yet no act is done by him to hinder the performance of the condition but where the Obligee does any act to hinder the performance of the Condition the Condition is saved as if the Lessee be bound to the Lessor to suffer J.S. to enter into a Chamber during the Lease and he surrenders to the Obligee who will not suffer J.S. to enter the Obligation is saved and Iudgement was given for the Plaintiff 36 Eliz. Bedford against Hall in B. R. IN an Action of Covenant wherein the Plaintiff declared that the Defendant did devise and grant to him certain land with all his goods contained in a certain Inventory for 20 years and said that in the Inventory amongst other things were five Cows which the Defendant seized and that one J.S. took them away as his proper goods as indeed they were and hereupon he brought this Action Fenner The Action will not lye for no interest in the Cows doth pass to the Lessee by this Lease neither was there any right to them in the Lessor As if I demise to you the land of J. S. by these words Dem si concessi and you enter and J S. re-enters no Covenant lyes against me And so in the 11 H. 4. a Prebend made a Lease for years and resigned now is the term of the Lessee quite destroyed and if after he be outed by a new Prebend yet he shall have no Action of Covenant And so is it 9 Eliz. Dyer â—57 Lessee for life makes a Lease for years and dyes the Lessee shall not have a Covenant if he be outed by him in the reversion because he is not in as a Termor at the time of the disturbance But if in the principal Case the Lessor had been possest of the goods although by a wrong title and the Owner had seized them then a Covenant would lye And so if a Disseisor makes a Lease and the Disseisee re-enters the Lessee shall have a Covenant Gawdy If a man lets lands wherein he hath no estate together with his goods although the land will not pass yet the goods do and if a man lets goods for a year and re takes them within the year no Covenant will lye for the property was never in the Lessee Câ—…câ— If a man lets anothers goods to me by Deed if I seize them and the Owner re-takes them a Covenant will lye and so will an Action on the Case if it be without Deed 42 Assi 8. If I be in possession of anothers goods and sell them a deceit lyes against me by the Vendee and so is the Book of Ass 42.8 conâ—ra where the Vendor hath not possession at the time of the sale And if I sell goods by Deed which
the attainder and she granted it to Bones and all actions demands and a scire facias was issued out in the name of the Queen And the principall case was adjourned but the Patentee had express words to sue in the name of the Queen although it was not so pleaded 43 Eliz. Pelling against Langden in B. R. Rot. 438. IN a trespass for breaking his Close and killing 100 Conies The Defendant justified because he had common time out of mind and because the Conies were damage Feasant in the place where he killed them The Plaintiff demurr'd and judgment given for the Plaintiff for Conies are beasts of Warren and profitable as Deer and are not to be compar'd to Foxes and vermine which may be kill'd but the Owner of the soil may keep Conies where the Common is aswell as other cattle also he may make Fish-ponds in the Common and the Commoner cannot destroy them Cook 5. Rep. 104. 22 H. 6.59 so it was adjudgâ—d Trinit 43 Eliz. Gresham against Ragge in B. R. Rot. 1295. IN trepass for entring into a house The Defendant pleaded that the Plaintiff was indebted to the Defendant in 100 l. and that he by the permission of the Plaintiffs servant the doores being open did enter to demand his debt Vpon which the Plaintiff demurred And adjudged for the Plaintiff For the servant of the Plaintiff could not licence any to enter into the house of his Mr. also a man cannot enter into anothers house to demand money unless the debtor be within the house Gawdy If it had been averred that the Plaintiff had been then in the house the Plea had been good Hillar 44. Eliz. Streetman against Eversley in B. R. IN an ejectment the Case was a Lessee for 80. years upon condition that if the Lessee his Executors or Assignes did not repairo the house within six weeks after warning that the Lease should be void the Lessee made a Lease for ten years who suffered J.S. to occupie the house and then the Lessor came to the said occupation of the house and at the house gave notice and said that the house was defective in reparations and did shew in what and so gave warning to have it repaired and after for default of reparations he entred and the Defendant as servant to the Lessee re-entred And his entry adjudged lawfull for notice given to J.S. who was but an Occupier of the house and not Lessee or Assignee of any interest of the terme was not sufficient but it ought to be to the person interessed in the terme who is liable to reparations Vid. Cooks 6. Rep. Greens case Also the notice at the house is not sufficient but it ought to be to the person of the Lessee and Popham agreed to this Trinit 1 Jacobi Shopland against Radlen in C. B. Rot. 853. IN a Replevin the question was when a Guardian in socage holds a Court in his own name and does grant Copies in reversion if this be a good Grant or not and adjudged to be good against the Heir Walmesley Dominus pro tempore of a Mannour may hold a Court and make a Grant of Copyholds but this is to be understood of perfect Lords which a Guardian is not but onely ad commodum haereâ—is and is rather a servant to the Lord than Dominus pro tempore and he cannot be called Dominus because he can neither grant nor forfeit his estate and hath nothing to do to meddle in the Mannour but to account for the profits and a Writ of Ward does not lye for the land but onely for the body Gawdy chief Justice Warburton and Daniel Justices to the contrary Who held that a Guardian in socage is Dominus pro tempore and that he hath interest in the land and may make a Lease thereof for years Commentar 293. and may avow in his own name 29 Ed. 3. Avowry 298. But a Guardian in socage cannot present to an Advowson because he cannot be accountable But Daniel Iustice said that the Guardian may present where the heir is not of years of discretion and a Guardian in socage shall have a Trespass and a ravishment of Ward 24 Ed. 3.52 and he hath the Ward by reason of looking to him and therefore he hath interest sufficient to keep Court and admit Copyholders who are not in by him but by the custome But a Bailiff of a Mannour hath no interest and therefore cannot make Grants and Copies but a Guardian hath interest provisione legis although it be such interest as cannot be forfeit and the heir cannot be at any prejudice for he shall have an account made to him of such Fines for the heir himself cannot grant them and the Law cannot compell the Guardian to occupy them neither can the Court be held in the name of the heir but the Guardian and therefore he may grant Copies And if a Guardian in socage hath such interest that he can make a Lease for years and his Lessee shall maintain an Ejectment a fâ—r â—…oti he may grant Copies Neither is it any argument at all to say that a Guardian in socage hath no interest because he cannot grant or forfeit his estase for the reason is because these things are annexed to his person And after Mich. 3 Jacob. it was adjudged that the Grant was good and shall binde the heir Vid. Keloway 46.6 37 Eliz. Brown against Hercey in C. B. Rot. 620. IT was found by office that J.S. who held the Mannour of D. of the King did dye without heir whereupon W.S. as heir to him did traverse the said Office and hereupon was at issue with the Queen if he were heir or not and depending this suit he made a Feoffment in Fee with a Letter of Attorney to make Livery and after it was found for him against the Queen and Iudgement given against the Queen but before the Writ of Amoveas manum the Attorney made Livery and adjudged good for it cannot be said that the heir at the time of the Feoffment had nothing or that the Queen at the time of the Livery was in possession for by the Iudgement given the possession of the Queen was utterly defeated and possession in the party before any amoveas manum sued out for that serves but to compell the Eschaetor to avoyd the possession it he hold the land after Iudgement Vid. Stanford praerogat 78. 10 Ass 2. 10 Ed. 3. and the difference is where the King is seized by title and where without title for when the King is seized by title and his title is determined he ought to make Livery to him that hath right but when he is seized without title and he who hath right hath Iudgement against him he may enter without Livery 5 Ed. 5. Quare impedit 34. But it was here said by Owen Iustice that if a man makes a Feoffment of White-acre with a Letter of Attorney to make Livery and then he purchase White-acre this is
that the wife is not in her former or antient estate but takes hereby a new estate for if Tenant for life grants his estate to J.S. and his heirs and J.S. grants a Rent and then re-grants an estate to the Tenant for life the Tenant for life shall be liable for the Rent Dyer 252. Harris contr For by the rendring of the estate by the Fine she shall be in her antient state and he cited the Case of Peter Cary here adjudged who being Tenant in T. the remainder to the Earl of Devonshire was attainted and then the King pardon'd him and gave him his land again and then he suffered a common recovery and thereby barred the remainder in the Earl of Devonshire But Anderson was against this Case and said that by the render the woman was in her antient estate and so the remainder discontinued and the entry of him in the remainder taken away Warburton The Fine does make no discontinuance for they give away but that which they may lawfully do and so is Bredons Case Cook 1 Rep. 67. and as to the common recovery it is out of the Statute of the 32 H. 8. because she remains party to the Fine and by the render upon the Fine they shall be as in by a new estate and then the recompence shall not be to the antient estate and therefore he in the remainder is not barred nor impeached by this Fine but he may enter within five years Kingsmill accorded for it is plain that by the render to the husband and wife they are in a new estate and the recompence shall go as to that and not to the antient estate but contr if it had been by way of voucher Walmesley accorded but notwithstanding the Fine and recovery the entry of him in the remainder is good and as to the woman it is clear that there is no discontinuance to him in the remainder in Fee for he in the remainder in Tail cannot discontinue because he is seized by force of the estate Tail as the 4 H. 7.17 Tenant in Dower and he in the reversion in Tail joyn in a Fine this is no discontinuance of the estate Tail because he was never seized and therefore it is a forfeiture in the Tenant for life although he in the remainder joyn'd with him by the 41 Ed. 3. but otherwise if Tenant for life and he in remainder in Fee joyn in a Fine Vid. Bredons Case 1 Rep. 76. Anderson I conceive he in the remainder may enter for all passeth from the Tenant for life and it is her Feoffment and the confirmation of the other and so the estate Tail being spent he in the remainder shall enter for forfeiture and the recovery shall be no bar because it was of another estate and also this title of entry for forfeiture shall not be barr'd by the common recovery no more than if a Feoffee upon condition does suffer a common recovery yet may the Feoffor enter for the condition broken and Iudgement was given for the Plaintiff so that his remainder was neither discontinued by the Fine nor his entry taken away by the Recovery 43 Eliz. Hall against VVood in C. B. IN an Action on the Case for a Trover and conversion of 40 l. on not guilty pleaded it was found for the Plaintiff Walmesley How can an Action lye for a Trover of money if it be not within a bag for this Writ supposeth a loss and when the money was lost how doth it appear that the money found is the same money that was lost Davies There are many presidents in the Kings Bench to prove that this Action will well lye for corn and money and I have been of Counsel in many of those Cases Warburton If the money were lost in view of a third person upon such Trover the Action will lye for there it may be proved that it was the money of the Plaintiff And Walmesley agreed And note that a president was shewn tempore 40 41 Eliz. inter Holloway and Higgs which was thus a master delivered to his servant 30 quarters of corn to be sold and the servant sold them and converted the money and the master brought his Action on the Case for the Trover and conversion against the servant who pleaded not guilty and it was sound against him and two things were moved in arrest of Iudgement first that the master was never possessed of the money and therefore could not lose it secondly because the money cannot be known and so non constat whether it was the money of the masters or no. But notwithstanding this Case Iudgement was given for the Plaintiff because the possession of the servant was the possession of the master and when the servant converts this to his own use by this the master loseth the property and is also a conversion in the servant Mich. 42 43 Eliz. Leeke against the Bishop of Coventry in C. B. Rot. 3579. IN a Quare impedit the Case was thus Langford and Bussy were Patrons of an Advowson to which they and their Ministers use to present by turn Langford presented according to his turn and his Clerk dyed and then Bussy presented in his turn also and his Clerk was deprived after which Langford grants his Advowson in Fee to Leeke the Plaintiff and then the Bishop without any notice does collate Dr. Babington who dyes after whose death the question was if Leeke should present or Bussy and Iudgement was given for the Plaintiff because that notwithstanding the Church was voyd by deprivation yet the Patron may transpose his Advowson over Bethell against Sir Edward Stanhop IN Debt against Sir Edward Stanhop as Executor to Francis Vaughan he pleaded that he is not Administrator and the said Vaughan gave 40 l. to his daughter within age with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors and then he dyed possest of the goods and the Defendant sold these goods which made him Executor in his own wrong and afterwards takes Letters of Administration Walburton I conceive the Plaintiff ought to have Iudgement for the Statute of 21 Eliz. of fraudulent conveyances annuls this gift of the Intestate because he did it to defraud his Creditors and then when he dyed it was assets in the hands of the Administrator And if a Testator have goods wrongfully taken from him out of his possession these are not Assets to the Executors or Administrators but if they be taken out of the possession of the Administrators or Executors they shall be Assets for they may take them again but for goods taken from the Testator they have but an Action But here the Administrator may take the goods which were given by the Intestate to defraud Creditors for the gift was voyd and therefore they shall be accounted Assets And as to the Action it is well brought for when a man does administer as Executor and then takes Letters of
was upon the pleading Taylor being Lessee for years 9 Elizabeth did grant and assigne this to Ayer the Plaintiff The Defendant pleaded that before the grant made to Ayer sc 8 Elizabeth Taylor did grant and assigne his estate to the Defendant without traversing the gift made to the Plaintiff Williams There needs no traverse for being granted the 8 Elizab. it is impossible it should be granted 9 Eliz. 2 Edw. 6. and 1 H. 5. Anderson He ought to travers for it is impossible to confesse and avoyd a grant by confession that was granted to another before for if it were so the second grant is voyd and so being so confest here ought to be a travers Walmesley cont in 32 H. 6. it is sufficient to say that at another day c. there was another arbitrement c. for by that the first arbitrement is voyd in Law And it is a good plea in a Will that after that there was another Will made without Traversing and there is difference between Lands and Chattells for land may be gotten out of a man by wrong and therefore it may be that after the feoffment the Feoffor entred and it disseised the Feoffee and did infeoffe another but it cannot bâ— so here of a terme for years for no man can take it away from the Lessee by wrong Glanvill and Kingsmill cont There must be a Traverie for there ought to be a confession before there can be an avoydance but here he does not confess the grant but pleads matter that denies it being granted And at last Anderson gave Iudgment that he ought to Travers 42 Eliz. Rudd against Topsey in C. B. Rot. 135. IN a Quare Impedit The Iury found that Edward Capell was seised of an Advowson in Fee and did let it to the Defendant for years and during the Lease he presented the Defendant and the doubt was whether this were a surrender or an Extinguishment And it was held by all the Iustices that this could not be a surrender but is cleerly an extinguishment For if a man does present to his own Church as Proctor to another by this he looseth his advowson Nat. Br. 25.17 Ed. 33.24 H. 6. Hillar 42 43 Eliz. Forrest against Ballard Rot. 2480. AN Audita querela was brought upon a Statute which was acknowledged before a Maior who had no power to take it Anderson An Audita querela will not lie upon a voyd Statute But Kingsmill Walmesley and Warburton cont and Walmesley cited 〈◊〉 Br. 102. where an Audita querela was brougt upon a forg'd Statute and there it would lie upon a Statute made by Duress 20 Ed. 3.28 Trinit 40. Eliz. Goodrick against Cooper in C. B. Rot. 1259. IN a Replevin the Defendant justified for Rent granted to the Master and Schollers of Emanuell Colledge in Cambridge And the Iury found that one Spendelose being seised of the land where c. by his Deed did grant to the said Master and Fellowes a Rent Ch. of 40 l. per annum for ever and that Spendlose did seale his part of the Indenture and delivered it to the use of the Master and Fellowes to one J.S. to deliver it accordingly but there was no dead to shew their receit thereof and then they sealed the other part but they made no Attorney to deliver it and it was â—ound that the Rent was payd for divers years after VValmesley Although no Letter of Attorney were made yet it is good for by their sealing of the Counterpart there is a sufficient agreement to the grant As it a Reversion be granted to a Corporation by Deed although they cannot accept of this but by Attorney yet if they bring a waste this is a sufficient agreement to vest it in them Quod assi Justiciarii concesserunt And judgment was given for the Avowant Michaelm 43 44. Eliz. Claygate against Batchelor in C. B. Rot. 3217. IN debt upon a Bond of thirty pound the Condition was that if Robert Batchelor son to the Defendant did use the Trade of Haberdasher as Iourneyman servant or Apprentice or as a Master within the County of Kent within the Cities of Canterbury and Rochester within four years after the date that then if he pay twenty pound upon request the Obligation to be voyd And all the Iustices agreed that the condition was against Law and then all is voyd for it is against the liberty of a Free-man and against the Statute of Magna Carta cap. 20. and is against the Commonwealth 2 H 5. 5. And Anderson said that he might aswell bind himself that he would not go to Church And Iudgment was given against the Plaintiff Michaelm 43 44 Eliz. Dogget against Dowell in C. B. Rot. 65â— IN an action on the Case upon an Assumpsit The Plaintiff declared that at the request of the Defendant he had lent to him 30 l. the 10th day of May 5 Eliz. and the Defendant in consideration thereof viz. the second day of May aforesaid did promise and assume upon himself that he at the end of the yeare would lend the Plaintiff other thirty pounds for a year or give to him five pound It was said that the consideration is good for although the promise was made at another day yet is it in pursuance thereof so that in Law it shall be accounted all at one time and is not like to the case in Dyer 372. where the Master promised one who was bayle for his servant that he would save him harmless this is no consideration for the Ballment was of his own will and was executed before the Assumpsit but if the Master had first requested and afterwards assumed there it is good and so was it adjudged in the case of one Sydenham against Worthington Trinit 27 Eliz. Rot. 748. Where the request was before and the promise after and there it was a good Assumpsit VVarburton agreed And it is like as if I should say to you do such a thing and I will give you five pound this is no good contract But all the Iustices on the contrary for when at the first day the Plaintiff did lend to the Defendant thirty pound that was absolute and the speaking on the second day cannot have such reference to the first agreement that it shall be accounted all one Anderson If I say to one In consideration you will serve me for a year I will give you five pound here is no cause of action for the consideration is precedent and not mutuall and so judgment was entred for the Defendant Hillar 41 Eliz. VVentworth against VVright Rot. 2529. IN a Quare impedit two points were moved 1. If the Parson be made Bishop whether the Patron should present or the King by his prerogative VVilliams The King shall for before the Statute the Pope should present and the reason was because the Bishop had received his presentment gratis from the Pope and by the same reason the King now
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS
the wife is at large to have the twelve pound and her Dower also But the Court held that she could not have her joynture for by the recovery of the Dower her joynture is barred for the Rent was given her in recompence of her Dower so that it cannot be intended that she shall have Rent Dower also wherefore it was adjudged that her entry on the Land was not good 30 31 Eliz. The King against the Bishop of Canterbury and Hudson Rot. 1832. IN a Quare impedit Hudson the Incumbent did plead that King Edw. the 4th did grant the Rape of Hastings Et bona catalla Fellonum Fugitivorum ategat of all Residents and non-residents within the said Rape to the Earl of Huntington And pleaded that John Ashborne was seized of the Mannor of Ashborne and of the advowson appending to it and held the same of the Earl of Huntington as of his Rape of Hastings and that the said John Ashborn was outlawed during which the Incumbent of the said Church dyed and the Earl presented the said Hudson Shut I conceive this avoydance does not belong to the Earl by reason of this grant for by the same Patent libertie is given to the said Earl his heirs to put himself into possession and of such things as he cannot put himself into possession they will not passe and here this is a thing in action which by these words will not passe 19 H. 6.42 by the grant de Catalla Fellonum obligations do not passe VValmesley Stanford in his prerogative saith that by the words Bona catalla the King shall have the presentation to the Church of him that is outlawed or Attaint and by the same reason he may grant it by such a name and although the party cannot seise such a thing yet it shall passe 39 H. 3.35 Rent for years shall passe by the grant of bona Catalla Periam It will passe by these words for it is an ancient grant for in that time the Patents of the King were not so specially penned as now they are Anderson I conceive the avoydance will not passe by thse words for within this word bona moveables are contained both dead and living and Avoydance is no Chattell nor right of Chattell Quod Peryam negavit c. Mich. 37 38 Eliz. Townsend against VVhales IN an Ejectment the Iury found that J.S. was seized of land in possession and also in reversion for terme of life and made a Devise by these words That his Executors take the profit of all his Lands and tenements Free and Copy for ten years for the payment of his debts and Legacies and after the end of the said ten years that all the aforesaid lands and tenements with their appurtenances should be sold by his Executors or one of them and the silver to be bestowed in the performance of his Will or by the Executors of his Executors or any of them and then one of the Executors dyed within the ten years and the two surviving Executors did grant all aswell in possession as in reversion to House who made a Lease to the Plaintiff And two points were resolved 1. That the Executors may grant the reversion 34 H. 6. for by these words Free and Copy his intent appears that all should be granted 2. That although one of the Executors died yet the other two Executors may sell Anderson If such bevise had been at the Common Law and one Executor had refused the two others could not sell but if one die the survidors may sell the land for there the authority doth survive Which difference the other Iustices agreed to And at another day Anderson said there was difference where the Devise is that Executors should sell his and the money divided between them there if one die the others shall not sell but otherwise here because the money is the performance of his will Walmesley The sale by the two Executors is good for it is said the Executors or any of them c. And Beaumond agreed Wherefore judgment was given for the Plaintiff Note that there were two verdicts in this case and the first only found that the Executors shoull sell after the ten years and that one dyed and the other two did sell within the ten years and the opinion of the Court was that the sale was voyd but in the 39 and 40 Eliz. all the whole will was found and Iudgment given ut supra The Earle of Rutlands Case Roger Earl of Rudand and John Maners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland brought an action on the case against Isabell Countess of Rutland And Declared for divers Iewells and goods c. that came to the hands of John Earl of Rudand as Executor to the said Edward and the said John the 10th of July 29 Eliz. did casually loose them which after came to the hands of the Defendant licet saepius requisita she would not deliver them to the said John in his life time nor to the said Plaintiffs after his death but knowing the goods did belong to the Plaintiffs in D. in the County of Notingham converted them to her proper use And a verdict for the Plaintiff And it was moved often in arrest of Iudgment but all the Iustices agreed that the action of Trover and converversion would lie by the Executors upon the Satute of the 4 Ed. 3. upon a conversion in vita Testatoris and so hath it been adjudged in the Kings Bench and although the Statute mentions onely a Writ of trespass that is only put for example Also they all agreed that the sole cause of action to the Conversion for it there were no conversion they shall be put to their Detinue therefore the great doubt did arise because the day and time of the conversion was not shewed for perhaps it was after the Writ and before the Declaration And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said That all Iustices of the Common Pleas and of Serjeants Inne in Fleet-street besides Peryam Chief Baron were of opinion that Iudgment should be given for the Plaintiffs for that some of them held that the day of the Conversion is not materiall to be shewn and others that of necessity as this case is it shall be intended that the conversion was in the Plaintiffs time wherefore Iudgment was entredfor the Plaintiffs but a Writ of Errour was brought and the Case much debated Michaelm 38 39 Eliz. Carew against Warren in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in antient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland who rendred to Gunter in Fee who devised the reversion to his wife for life the remainder in Fee and dyed And then the Lord of Andover which is an ancient Mannor by an