Brough against Devison 143 58 Forfeiture of Copyhold 143 59 Lease for years Knevit against Poole 143 60 Prohibition Rame against Patison 145 61 Partridge against Nayler 145 62 Forfeiture 146 63 Quare impedit Lord Zouches case 146 64 Assumpsit Thornton against Kemp. 146 65 Prohibition Sherington against Fleetwood 147 66 Trust VVildgoose against VVayland 147 67 Reservation of Rent 148 68 Action for a Robbery 148 69 Outlary reversed 148 70 Fine with proclamation 148 71 Feoffment to a use 148 72 Tenure and Wardship 149 73 Devise 149 74 Prohibition Benefield against Finch 149 75 Oyer of a bond 150 76 Ejectione firme Beckford against Parnecole 150 77 Writ of Error Harecourts case 151 78 Trover Easts case 152 79 Writ of Error Wiseman against Baldwin 152 80 Assumpsit Pine against Hide 154 81 Prohibition Jacksons case 154 82 Trover and conversion 155 83 Assumpsit Chessins case 155 84 Assumpsit Dixon against Adams 156 85 Ejectione firme Ross against Ardwick 157 86 Trover Harding against Sherman 158 87 Debt upon a bond Paytons case 158 159 88 Trespass quare clausum fregit 159 89 Debt upon a bond Allen against Abraham 159 90 Account Huntly against Griffith 159 91 Scire Facias Lady Gresham against Man 160 92 Prohibition Ramsies case 161 93 Account 161 94 Indictment Hom's his case 162 95 Fine of Lands 162 96 Ejectione firme Robins against Prince 162 163 97 Scire facias Hoo against Hoo 166 98 Mackerell against Bachelor 168 99 Information Goodale against Butler 169 170 100 Scire facias Foe against Balton 170 101 Contra formam Collationis 111 102 Ejectione firme Cootes against Atkinson 171 103 Action for words Pollard against Armeshaw 172 104 Elegit Palmer against Humphrey 172 105 Covenant 173 174 106 Debt upon a bond Robinson against May 174 107 Audita querela Hobs against Tedcastle 174 175 108 Covenant Matures against Westwood 175 109 Assault and battery Sims his case 176 110 Trespass Goodale against Wyat 176 111 Ejectione firme Sayer against Hardy 179 112 Rent Walter against Walter 180 113 Debt upon an Escape 108 114 Vtlary after Judgement 108 115 Fine levied Sir Henry Jones case 181 116 Evidence Tutball against Smote 181 117 Debt Richard Thornes case 182 118 Debt Humble against Glover 182 119 Evidence Maidstone against Hall 182 120 Speciall Verdict Dickins against Marsh 182 183 121 Covenant Cole against Taunton 184 122 Grant 184 123 Error Brewster against Bewty 187 124 Trespass Pannell against Fen 185 125 Repleuin Second deliverance 185 126 Action for words Stitch against VVisedom 185 127 Accessary to Felony 185 128 Debt Thin against Chomley 186 129 Lease Harbin against Barton 185 103 Action for words Baddocks case 186 131 Debt upon a bond Staples against Hankinson 187 132 Error Boyer against Jenkins 187 133 Grant over 187 134 Ejectione firme Thomas against King 187 135 Trespass Oland against Bardwick 188 136 Error Ascough against Hollingworth 188 137 Trespass Bodeam against Smith 189 138 Name of purchase 189 139 Perjury 189 140 Obligation 190 141 De Term. Pasch Anno Elizab. Reg. xxviij 1. WAst war brought by Constance Foster Wast and another against Lessee for years in effect the case was such A man makes a Lease of certain Lands 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods the Lessee cuts down Trees and he in Reversion brings an Action of Wast and by the opinion of the Court the Lessee is not punishable in Wast for they were never let and therefore the Plaintif is driven to his Action of Trespass at the Common Law 2. THe Sherif returneth in a Writ of Right four Esquires to make the pannel Return and doth not say that there be any Knights it was sayd by the Court that he ought to return them which be and that there be no more 3. WAst was brought for digging in Land Wast and taking away Okes the Defendant pleaded in bar That the Queen by her Letters Patents under the Great Seal of England granted unto him that he might dig for Mines of Cole in the Land and prayed that it might be entred verbatim and a Grant under the Seal of the Exchequor was entred whereupon the Plaintif Demurred Now came Walmisley and would have amended it and by the opinion of the Court he cannot amend it after the Demurrer be entred Demurrer but Judgement shall be given for the Plaintif if he shew no other matter 4. A Man seised of Lands in Fee Devise and sale by Executors Deviseth to his Wife for life the Remainder to his Son in tayl and if his Son dye without issue of his body that then the Land shall be sold by his Executors and maketh two Executors and dyeth the Wife dyeth one Executor dyeth the Sonne dyeth without issue the other Executor selleth the Land and Gawdy the Queens Serjeant moved whether the sale be good or no and it seemeth to him that the sale is good and vouched the Case in 30 Hen. 8. Brook Devise 31. And now lately it was adjudged in the Kings-bench where a man did Devise his Lands in tayl and for default of such issue that the Land shall be sold by his Sonnes-in-law and dieth having five Sonnes-in-law the one dyed the others sold the Land and this was adjudged a good sale Anderson It seemeth the sale is not good for if one make a Letter of Attorney to two to make Livery and Seisin Livery if the one dye the other cannot doe it So if one grant the Office of Stewardship to two the one of them cannot hold Court alone Stewardship And if one of them may sell to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell Windham The Statute will not prove the case but it seemeth the sale to be naught And there is a difference where one giveth an interest to two and when he giveth but an authority Interest for an interest may survive but an authority cannot Authority Rodes to the same intent and cited M. 4 Eliz. fol. 219. a. 177. 210. 371. 5. BAttery Battery by Webster against Pain the Action was layd in London and in truth the Battery was committed at Uxbridge in Midlesex the Defendant pleaded that such a day and year at A. in the County of Huntington 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him and the hurt c. absque hoc that he is guilty in London Snag moved that the Traverse should not be good Anderson Will you have him to say absque hoc that he is guilty that he ought not for by the speciall matter he hath confessed the Battery and you will not deny but that if his Plea be true he hath good cause to bar the
Priority which is not corporall neither ought it to be put in view in Assise and 21 Hen. 6. a. Tenant of the Land shall Attorn upon the grant of a rent charge and 33 Ed. 3. Priority shall hold place when the remainder falleth and not when it is granted 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then Sir when the foundation out of which the rent is issuing is gone the rent is allso gone and therefore let us see what authority Tenant in tayl hath in the remainder At the Common Law there was no Formdone in descender or remainder and the Statute of W. 2. cap. 1. provides but for two persons viz. he in reversion and the issues but Formdone in remainder is taken by the equity 50 Ed. 3. If Tenant for life be the remainder in tayl to another the remainder in fee to the Tenant for life and he makes wast Wast Bargain de remain Tenant in remainder shall punish him and Fitzh nat br fol. 193. a. Cui in vita by a wife which was Tenant in tayl upon the alienation of her husband And I think that if he in remainder bargain his remainder that it is voyd and he cannot grant to another that he shall dig in the soyl for by 2 Hen. 7. he in reversion cannot doe so 12 Ed. 4. Recovery suffered shall bind the issue 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Tenant for life Nul attaint pur tenant in rem then in this case he in remainder cannot enter and the Grantee shall not be in a better estate than his Grantor and then if he shall never enter frustra est illa potentia qua nunquam reducitur in actum The reason for the grant is good for when Tenant in tayl dyeth without issue he in remainder shall be in by the first gift in proof whereof is 33 Hen. 6. he in remainder shall be in ward Ward and in 11 Hen. 4. in Formdone in descender Formdone he shall say that the possession was given to his father Prebendary And a Prebendary cannot charge before induction Ioyntenants But if two Jointenants be and the one charge all and the other disclaimeth the charge is good from the beginning And the Recoverer here is not under the charge for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened yet is he a meer stranger and in by another title 10 Ed. 3. If two Jointenants be Charge per Ioyntenant and the one charge this is good conditionally that he which chargeth shall survive And if Tenant pur auter vie charge and die occupans shall hold it discharged So in this case for he is not in of this possession Moreover there is a mischief if this charge be good for then the Land may be charged by two severall persons at once which shall not be suffered but yet if cestui que use charge and the Feoffees charge both are good for the one is by the Common Law Charge per cest que use Feoffees 28 Ed. 3. 10. b. and the other by the Statute Law So if Lessee for years charge and he in reversion charge and after Lessee for years surrender but this is in severall respects and I put this case for Law Ch. per lessee per enreversion that if he in the remainder bind himself in a Statute Merchant Stat. Merch. per test en rem ne charge le poss this shall not charge the possession And if in this case he will grant the rent over none ought to Attorn and therefore voyd and Littleton saith that he in remainder shall not falsifie No attornment Falsifying and 26 Hen. 8. the Grantee of lessee for years shall not falsifie for the nature of falsifying is properly to find a fault wherefore it should not be good and what fault can he find in this case surely none Successor lie per confession 4 Hen. 7. 1. a. 20 Hen. 6. Abbot confesseth an Action the Successor is bound And further it is within the Statute of 27 El. for fraudulent deeds and we need not to plead the covin for the Statute is generall Fraudulent faits and vouched Wimbish case in the Comentaries and so the Replevin is maintainable And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea and allege the Covin Et adjornatur untill Michaelmas Term following because there were so many Demurrers hanging to be argued in Trinity Term next But afterwards judgement was given against the Rent charge 12. KIng Hen. 8. gave certain lands to Sir Edward Bainton Trespass Knight and to the heirs males of his body engendred who had issue Andrew and Edward and dyed Andrew afterwards convenanted with the Lord Admirall Thomas Seymer that he would convey an Estate of those Lands to himself for life the remainder to the Lord Seymer in Fee and in like manner the Lord Seymer convenanted to convey an Estate of other Lands to himself for life the remainder to Andrew Bainton in Fee Afterwards Andrew Bainton levyed a Fine and executed the estate according to the covenant on his part Afterwards the Lord Seymer before performance of the covenant on his part was attainted of High Treason and all his Lands forfeited to King Edward the sixth who dyed without issue and the Lands descended to Queen Mary to whom Andrew Bainton sued by Petition and shewed how she had those Lands to the disinherison of him and his heirs and Queen Mary by her Letters Patents ex certa scientia ex merâ— motu c. granted to Bainton all those Lands and Tenements which he had covenanted to convey to the Lord Seymer and all reversions thereof in as ample manner as she had them Et ulterius ex uberiori gratia sua she granted all reversions claims and demands qua ad manus suas devenerunt ratione c. aut in manibus suis existunt aut existere deberent Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee and dyed without issue then Edward Bainton entred and Segar brought his Action of Trepass Puckering It seemeth that the entry of Edward Bainton is congeable and so the Action not maintainable First let us see what passeth by this Grant of Queen Mary to Andrew Bainton and then whether a Fine levyed by Tenant in tayl the reversion being in the Queen be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations and therefore but a discontinuance and remains but as at the Common Law At the Common Law before the Statute of Dâ—nis conditionalibus a Fine levyed was a bar to all men for all Inheritances were Fee simples then by that Statute it was ordained Quod neque per factum neque feofamentum of the Tenant
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
and did not say praedict Edward Seymour And all the Justices agreed that this was amendable And so the first judgement was affirmed 18. ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench Rent suspenpended and the Case was such A man makes a lease of ten acres for ten yeares rendring rent upon a Condition the Lessee grants 5. acres thereof to a stranger for five years and after grants the residue of the years in the five acres to the Lessor And after the Lessee broke the Condition whereby the Lessor re-entred and if he may do so or if the Condition was suspended or no was the question because he accepted a future interest in parcell Future interest Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended and now this was assigned for error And all the Justices except Anderson and Peryam held that it is not suspended before he had entred by force of his lease Anderson If I make a lease as here upon Condition and waive the possession this may be suspended before his entrie Cook This is another case Peryam But the reason thereof commeth well to this case And afterwards because the said two Justices dis-assented from the rest it was adjourned over 19. ANother Writ of Error was there brought upon a judgment given in the Kings bench Trover And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices If a man lose his goods which come to the hands of another he converteth them to his own use and after the owner dye Day and place of conversion whether his Executors shall have an action of the Case for this Trover and whether he ought to shew the place and the day of the Conversion or no And the Counsellours at the bar said that he ought to shew both for so it was adjudged where an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation and it was found that he had broken the seales c. and because he did not shew the time and place of the Conversion he could never get Judgement And now the Justices were of the same opinion but yet Anderson seemed to doubt Peryam Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator and the doubt is if they shall have an Action upon the Case Manwood if a man hath another in Execution for debt and the Gaoler suffer him to escape and after the Recoverer dyes shall his Executors have an action against the Gaoler Cook No. Peryam So it seemeth But Anderson Manwood and VVindam clearly to the contrary and that they shall have debt upon this Escape Cook But not an Action upon the Case at the Common Law and here by his own shewing he might have Trespass vi armis and therefore not this action De Term. Trinitat An. Reg. Eliz. xxx 1. RAlph Heidon brought a Writ of Right against Smethwick and his Wife Droit of two parts of forty Acres of Land in Surret and they pleaded that one Ibgrave was seised and devised it to his Wife now one of the Tenants for term of her life the remainder to Benjamin Ibgrave in fee Praying ayd in an Assise which was his heir and dyed and they prayed in ayd of B. I. who came and joyned to them and thereupon they came and pleaded to the grand Assise and the first day of this term the Assise appeared and sixteen were sworn whereof four were Knights and the residue were Squires and Gentlemen and the title was all one as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part And the opinion of all the Court clearly that it is not ayded by the Statute for there is not any certainty in the Grant Name certain but if he had given it a certain name as green Acre then allthough he had mistaken the Parish yet it had been good enough Peryam The Assise may goe their way and they did so and after they being agreed came again to the Bar and the Demandant was called and did not appear whereby the Tenant prayed the Court to record the Nonsuit and it was done Curia All is one as if he had appeared Non-suits for this Non-suit is peremptory for ever the issue being joyned upon the meer droit aliter if the issue had been joyned upon any collaterall poynt 2. IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass Challenge VValmisley This Inquest you ought not to take for it is favourably made by the Sherif which is within the distress of one of the Plaintifs and shewed how the Sherif held certain lands of a Mannor now in question whereof Lister hath possession and allso hath certain lands for term of years of him and the Plaintifs moved that he ought to take one cause onely 1 Cause Curia He may allege both for the challenge is that he is within the distress and the allegations are but evidence to prove it and then the Plaintif sayd not within his distress whereupon the Court appointed Tryers and the Defendant sayd that all the Jury are favourable Tryors refused and prayed Tryers de circumstantibus Gawdy That cannot be but onely in an Assise and cited 9 Edw. 4. Curia We cannot appoint other Tryers in this case but only of the Jurors wherefore let the fourth and seventh be Tryers but you may refuse them and take others if you will and thereupon the Defendant refused the fourth whereby the third was appointed and they found the Array favourably made and therefore it was quashed 3. A Recovery was had by Arthur Mills against Sir Owen Hopton of divers lands twelve years passed Amendment and by the negligence of the Attorney Warranty of Attorney no Warrant of Attorney was entred for him and now suit was made to the Justices that it might be entered and they all consented thereunto and so it was entered incontinently but first the party made a corporall Oath that he had retained an Attorney and that this was the negligence of his Attorney 4. IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor Arbitrement and sayd that there was an Error in the Record Error not assigned which was not assigned and prayed that it might be examined allthough that it was not assigned because that it appeared in the Record which was agreed to by the Court. And then he shewed the case that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others and they Arbitrated that the Plaintif in this Writ of Error should release to the now Defendant all Actions which he might
have against him untill the 24 of June then next following which was half a year after and because he had not performed this an action upon an Assumpsit was brought and Judgement given for the Plaintif and all the Justices agreed that this was Error because that this thing arbitrated was out of the submission and so voyd for they have no authority to arbitrate that which is not submitted unto them Submission and the submission is onely of things passed and not to come but because that the Defendant had not heard of this Error before therefore they gave him day Afterwards the case was moved again and Anderson sayd that damages recovered doe not lye in arbitrement Damages recovered Peryam Amongst other things they will lye well enough quod Anderson non negavit But they all sayd that they may well assume upon consideration and an Action will be maintainable for it 5. THomas Mounson Esquire Term extinguished sonne and heir apparent to Sir Iohn Mounson Knight brought an Action of Trespass against VVest who pleaded not guilty and upon Evidence it appeared that Sir Iohn Mounson had an estate for years the Remainder in tayl to the Plaintif with divers Remainders over and the Lessee made a Feoffment to divers and a Letter of Attorney to others with commission to enter into the lands and to seal the Feoffment and deliver it in his name to the use of the sayd Thomas and his heirs and another by commandement or Letter of Attorney of the sayd Thomas entred in his name And the Court held this a good Feoffment notwithstanding that both the Lessee and the Attorney were disseisors Disseisors for it is good between the Feoffor and the Feoffee for they sayd that by the Feoffment to the use of him in the remainder and his heirs if he in remainder enter he is remitted and the estate for years is gone implicatively Freehold joyned to the term Morgage for Peryam sayd that in all cases where the Freehold cometh to the term there the term is extinguished And therefore if a man morgage his reversion to the Lessee for years and after perform the condition yet the Lease for years is utterly extinguished And the Evidence on both parts was very long and the chief matter was whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas by which Devise lands were conveighed to him by William Mounson his Father whose heir at the Common Law Sir John Mounson is viz. the Sonne of Roberts eldest brother and the Deed was shewed by VVest and it was perished with Mice all the Seal and part of every side but yet by the last Will of the sayd VVilliam Mounson and by divers other proofs it was evident that the Deed was good and but little in effect was shewed to prove the Deed forged Misdemenour yet the Jury went together and tarryed there all night and in the mean time some of them had victualls with them for one had Cheese and another had Pruens another had Pippins and another had an Orange but he which had the Orange swore that he brought it onely for the smell and therefore he was excused and he which had Pruens had given half a Pruen to one of his companions which eat it and he which had Cheese had eat thereof therefore all those which had victuals Fine and imprisonment were fined at 40 s and they which had eaten at 5 l. every of them and all committed to the Fleet but because they were agreed therefore the Verdict was taken and the Verdict was given for the Plaintif viz. that the Deed was forged by Justice Mounson and the Verdict taken de bene esse and all this matter commanded to be entred for the Justices doubted whether it were a good Verdict This matter was moved divers Terms afterwards and at the last adjudged a good Verdict 6. IN an Ejectione firme by Ashby against Laver for Lands in Westminster Countermand it was sayd by all the Justices to the Jury that if a man hath a Lease and disposeth of it by his will and after surrenders it and takes a new Lease and after dyeth that the Devisee shall not have this last Lease because this was a plain countermand of his Will 7. IN Trespass by Johnson against Astley it was said by the Justices to the Jury that if there were a Chauntery in reputation allthough it be none in right as if it be gone by disseisin yet the Queen shall have the Lands 8. AT Serjeants-Inne in Fleet-street Rent suspended the Justices of the Common Pleas and Barons of the Exchequer were assembled for divers Errors in the Kings-bench and the case of Rawlins was moved again and Anderson and Peryam retained their former opinions and Peryam sayd that he would differ from all the cases of collaterall conditions Feoffment upon condition which may be put for he sayd that if a man make a Feoffment in fee of 20 Acres of land upon condition that if he pay to the Feoffee xx l. at Easter that then it shall be lawfull for him to re-enter allthough that he be re-enfeoffed of 10 Acres yet he ought to perform the condition because it is collaterall But Cook the famous Utter-barrister sayd Truly it hath been adjudged to the contrary and I was privy to it for when he took as high an estate again as he had before by that the condition is confounded and the case of the Corody in 20 Ed. 4. will prove this case Rodes I see no diversity Peryam It is collaterall there but so it is not here but afterwards those two Judges changed their opinions and so the first Judgement was affirmed 9. BRown recovered against Garbrey in an Assumpsit Consideration and thereupon Garbrey brought a Writ of Error and assigned for Error that there was no Consideration for the Declaration was that whereas there was a communication between Brown and a woman for Mariage between them that the Father of Brown had promised to the Wife that if she would marry his Son he would make a Feoffment of his land to the use of himself for life and after to the use of them two in tayl the remainder c. and that Garbrey assured to the Wife in consideratione praemissorum that if the Father did not doe so then he would give the Wife a hundred pound ac licet the Father did not give to them in tayl secund agreament praedict yet Garbrey refused c. And Cook moved that this should be no Consideration for the communication of Mariage was not by him but between strangers to him but if the Father had assumed in consideration of Mariage then that should have been good against the Father but against Garbrey it is â—o otherwise than as if one promise to you to Enteoff you and I say that if he doe not so then I will give you a hundred pound this is
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
Plaintif was non suit And it was now moved whether the Plaintif ought to have a new venire facias upon the first issue insomuch as the first venire facias did not issue forth upon the first Record and no non suit Et opiniâ— Curiae that he may go to a new triall but whether he shall have a venire facias de novo or that the old venire facias should serve the Court doubted for that the first Jury was sworn 38. FOrd brought an Action of Debt against Glanvile and his Wife Administratrix bonorum Catellorum qua fuerunt Johannis S. durante minore aetate T. S. Abatements The Defendant pleaded that hanging this action against them the said T. S. during whose nonage the Wife was Administratrix came to full age and if this were a good Plea or no was the question And adjudged a good Plea 39. UPon an information against Sr. Christopher Blunt a Juror was challenged for want of Free-hold Free-hold of a Juror and by examination was found that he had 20 shillings a year Fenner and Gawdy doubted whether this be sufficient Free-hold or not Popham and Clinch held it is sufficient for the Statute binds not the Queen and by the Common law if he had any Free-hold it was sufficient Fenner This is a Statute made for the benefit of the Common-wealth and therefore the Queen shall be bound by it though she be not named in it Gawdy Me thinks every Juror ought to have 40. s Free hold at the least by the Common-Law No bill of enception against the Queen Cook No certainly and if they doe take the Law to be so they may have a bill of exception Tanfield Wee cannot have a bill of exception against the Queen see the Statute of 1 Hen. 5. cap. 3. that that is between party and party and the Statute of 8 Hen. 6. the preamble is between party and party But Popham commanded the Jury to be sworn but Gawdy would have sent to the Justices of the Common Pleas for their opinion but the Juror was sworn by Commandment of Popham against the opinion of Justice Fenner 40. PEr Cook Proxime future If I am bound in an Obligation in Lent upon Condition to pay a lesser sum in quarta septimana quadragesima proximae futurae This money shall be paid in Lent Twelvemonth after And so it is upon the Feast day of St Michael I am bound to pay a lesser Summe upon the Feast day of Saint Michaell prox futur without question said he it shall be paid the Twelvemonth after and not the instant day 41. THE Duke of Norfolk Morgaged certain Lands to Rowland Haward Demand Alderman of London upon Condition that if the said Duke do repay to the said Alderman a certain Sum of money That then the Duke might re-enter and after the Duke was attainted before the day of payment Condition given to the Queen and all his Lands Tenements and Conditions were given to the Queen And the question moved at the Table in the Serjeants Inne was whether Sir Rowland ought now to make a Demand of the money upon the Land or to demand that at the Receipt of the Exchequer or that the Queen ought to make the tender upon the Land And it was agreed by all the Judges and Serjeants at dinner that the Queen ought to make no tender But the Alderman ought to make his Demand at the Exchequer and not upon the Land 42. REdfrein agaiust I. S. an Action of the case was brought for words Slander viz. I was robbed and you were privy thereunto and had part of my money It was pleaded in arrest of Judgement that the words will not maintain an Action For that a man may be privy to a robbery after that it is made and have part of the money by honest meanes and therefore it is no slander but the whole Court held the contrary Infected Smell of robbery as well as you are infected with a robbery and smell of the same will maintain an Action so will these words therefore Judgement was given for the Plaintif 43. MEggs against Griffyth brought an Action for these words Slander viz. A woman told me that she heard say that Meggs Wife poysoned her Husband in a mess of milk and Judgement given for the Plaintif 44. REvell against Hart A Parsons Lease the case was upon the Statute of 13 Eliz. of Leases made by a Parson Serjeant Harris A Lease made by a Parson is not void against the Parson himself no more than a Lease made by a Bishop which is not void against the Bishop himself as was judged in the case of the Bishop of Salisbury Fenner The Law is as you said in a case of a Bishop but the case of a Parson percase will differ Popham If Rent be reserved Rent reserved it is good against the Parson himself otherwise not Clinch and Gawdy It is good against the Parson himself 45. WInch brought a Writ of Error against Warner Space in the roll upon a Judgement in a Writ of Debt in the Common place upon Arrerageâ— upon an account and it was assigned for Error for that the Plaintif in the Common place The emparlance roll is the Warrant in the first Declaration left a space for the day and year And after imparlance he put in a new Declaration which was perfect But for that the two Declarations did not agree and the first Declaration is the Warrant of all and therefore ought to be perfect therefore the Judgement ought to be Reversed for this default 46. IT appeared in Evidence inter Petties and Soam Foractor upon an Assumsit for ware bought by the Factor of Soam per opinionem Cur. If one be Factor for a Merchant to buy one kind of Stuff as Tin or other such like and the said Factor hath not used to buy any other kind of wares but this kind onely for his Master If now the said Factor buy Saies or other Commodities for his Master and assume to pay money for that Now the Master shall be charged in an Assumpsit for the money and for that let the Master take heed what Factor he makes 47. A. B. being seised in Fee Devise made his Will and devised his Land to his Wife for life the remainder to his Son in Tail and if he died without issue the Land to remain to R. W. and his Wife for their lifes and after their deceases to their children The question is whether the children of W. take by descent or as Purchasers Popham Gawdie were of opinion that they had an Estate Tail But Fenner Clinch but for life 48. WIlliam Gerrard was arrested by a Latitat and put in bail by the name of William Gerrat Bail by a false name and the Plaintif declared against him by the name of Gerrart and all the proceedings and issue was accordingly and Judgement was had
pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance Gawdie The Obligation is void for in so much as the Obligee hath not tendred to him any acquittance therefore he hath tolled from him the election whereof he shall not take advantage Fenner è contra for the election is not in the Partie for the making â—o the acquittance resteth in the will of the Obligee and so the Obligor hath no election Popham was of the same opinion 56. IF a Sheriff doe execute his Writ the same day that the Writ is retornable Execution of a writ done the day of the retorn it is a good execution per Yelverton and he cited these cases A Judgement given in a quare impedit 18. Eliz. and the Writ of dammages was executed the same day that it was retornable and this matter pleaded in arrest of judgement and notwithstanding the partie had judgment and if a capias ad satisfaciendum goe forth and the Sheriff take the Partie the same day that the Writ is retornable and send him into the Court who will say that this is not a good execution 57. WOodcock brought an Action of Debt against Heru Assets Executor of I. S. The Defendant pleaded that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing And if this Plea be good or not is the question Fenner The Plea is good without question Gawdie I have heard divers learned men doubt of that for if the Testator were bound in a Statute to perform Covenants which are not yet broken and it may be they will never be broken and then he shall never be chargeable by this Statute and yet he shall never be compelled to pay any debts which will be a great inconvenience And again I think there will be a greater mischief of the other part for put the case if the Executors doe pay this debt and the Statute is broken after he shall be chargeable by a devastavit of his own proper goods the which will be a greater inconvenience 58. BRough against Dennyson brought an Action for words Slander viz. Thou hast stoln by the high-way side Popham The words are not actionable for it may be taken that he stole upon a man suddenly as the common proverb is that he stole upon me innuendo that he came to me unawares And when a man creepeth up a hedge the common phrase is he stole up the hedge Fenner When the words may have a good construction you shall never construe them to an evill sense And it may be intended he stole a stick under a hedge and these words are not so slanderous that they are actionable 59. A Copy-holder was not upon his Land to pay his rent Forfeiture of a copy-hrld when the Lord was there to demand it And whether this were a forfeiture or not was the question Fenner It is no forfeiture if there were not an express denyall for the non-payment here is but negligence the which is not so hainous an injurie as a willfull denyal for it may be that the Copy-holder being upon the Land hath no money in his purse and therefore it shall be a very hard construction to make it a forfeiture But if he make many such defaults it may be it shall be deemed a forfeiture Popham If this shall not be a forfeiture there will grow great danger to the Lord and the Copy-holders estate was of small account in ancient time and now the strength that they have obtained is but conditionally to wit pay their rent and doing their sevices and if they fail of any of these the Condition is broken and it seemeth cleer if the rent be payable at our Lady day Demand after the day and the Lord doth not come then but after the day to demand the rent there is no forfeiture 60. THe Case was that there was Lessee for life Sir Henry Knevit against Poole interest of Corn. the Remainder for life and the first Lessee for life made a lease for years and this Lessee was put out of possession by a stranger and the stranger sowed the Land and the first Lessee for life dyed and he in remainder for life entred into the Land and leased it to Sir Henry Knevit and who should have the corn was the question Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder shall have the corn for the reason for which a man which hath an uncertain estate shall have the corn is for that he hath manured the land and for that it is reason that he that laboureth should reap the fruit but he said that the stranger that sowed the land shall not have the corn Lease of ground sowed because his estate begun by wrong for if a man make a lease for life of ground sowed and before severance the Lessee dyed now his Executor shall not have the corn Assignment after sowing concess per Popham cont per Gawdy for that they came not of the manurance of their Testator so it is if the Lessee for life sowe the land and assign over his interest and dye now the Assigne shall not have the corn cansa qua supra and for this reason in our case neither the Executors of the first Tenant for life nor the Lessee of the first Tenant for life shall have the corn here for that it comes not by their manurance and the stranger which sowed them he shall not have them Vncertainty necessarie unnecessary difference for albeit he manured the land and howbeit his estate was defeasable upon an uncertainty yet he was a wrong doer and the incertainty of his estate came by his own wrong for which the law will never give any favour to him and for that when he in remainder for life entreth it seemeth that he shall have the corn for he hath right to the possession and the corn are growing upon the soile and by consequence are belonging to the owner of the soile but it hath been said that here there was no trespasse done to him in remainder and for that he shall never have the corn Sir as to that I say if an Abator after the death of the Ancestor enter and sowe the land Abator soweth and after the right heire enter in this case the heire shall have the corn and yet no trespasse was made to him and it hath been adjudged in this Court where a man devised land sowed to one for life and after his decease the remainder to another for life and the first Tenant entred and dyed before severance and he in remainder entred that there he in remainder shall have the corn and by consequence the same Law shall be in our case Godfrey è contra and he argued that the Lessee for yeers Devise of land sowne of the first Lessee for life
shall have the corn for if Lessee for life leaseth for years and this Lessee for yeers sowe the land and the Lessee for life dye now the Lessee for yeers shall have the corn by reason of his right to the land at the time of his sowing and never lawfully devested by any Act done by himself and he denyed the cases put by Mr. Tanfield and so concluded Gawdie The lessee for yeers of the Tenant for life shall have the corn and he denyed some of the cases put by Mr. Tanfield for in the case where Tenant for life sowes the land and after assigns over his esttae now if Tenant for life dye the Assigne shall have the corn as well as the Executors of the Tenant for life if he had not assigned over his estate But I agree the case of the devise for life of land sowed with the remainder for life for there he in remainder shall have them and the laches of the not entry of the Lessee for yeers shall not prejudice him Lessee for years ousted for it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted and after the Tenant for life dye yet the Lessee for yeers shall have trespasse with a continuando for all the mean profits The which proves that they belong to him so is it in 38. H. 6. Lessee at wil ousted If Lessee at will be ousted and after the Lessor dye now the Lessee shall have a trespasse with a continuando without regress for when he may not enter Regress the law supplyeth it and the mean profits do belong to him And by consequence in this case the corn belongeth to the Lessee for yeers Ground let for life after sowing of the Tenant for life Popham Sir Henry Knevit shall not have the Corn for if a man lease for life ground which is sown and the Lessee dye now the Lessor shall have the Corn and not the Executors of the Lessee for life And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life of ground sowed and the Tenant for life dye that he in Reversion shall have the Corn Disseisor sow the land of tenant for life And if a Disseisor sow the land of Tenant for life and the Tenant for life dye now the Executors of the Tenant for life shall have the Corn and not the Disseisor nor he in Reversion and by consequence the Lessee for years of the first Lessee for life in this case Fenner was of the same opinion and after it was adjudged that Knevit should have the land and that Poole should have the Corn because of his possession 61. RAme sued a Prohibition against Patteson Prohibition for Dotards and the question was if Trees which are above the age of twenty years become rotten and are cut down for fuell shall pay Tyths or not and the opinion of the Court was that they shall not for Tythes are payable for an increase and not for a decrease and being once privileged in regard of hie nature this privilege shall not be lost in regard of his decrepitage 62. PArtridge brought an Action of Debt against Naylor upon the Statute of 1 2 P. M. 12. Empounding For taking of a Distress in one County and driving it into another and the case was that three men distreined a flock of Sheep and them impounded in severall places and if every of them shall forfeit a hundred shillings severally or but all together a hundred shillings Common place The Court was divided for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings and treble damages but Walmisley thought that every one should forfeit a hundred shillings and he put a difference between person and party for many persons may make but one party 63. BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts Erroneous Judgement in London was a forfeiture of their Liberties but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated and was made finable as in Chester if they give an erroneous Judgement they shall forfeit an hundred pound for these inferior Courts which have peculiar Jurisdictions ought to do justly for if these Courts shall not be restrained with penalties Justice will be neglected and before the Statute of 28 Ed. 3. those of London might not reform Errors in London 64. NOta per Doctor Amias in the Lord Souch his case Caveat if a Church become voyd and a stranger enters a Caveat with the Register of the Bishop that none be instituted to that Church untill he be made privy thereunto and the Bishop before that he have notice of the Caveat institutes an Incumbent the Institution is meerly voyd in the Spiritual Law for the Register ought to notifie the Caveat to the Bishop and his negligence in that shall not prejudice him that entered the Caveat and if the Bishop have notice of the Caveat and gives day to him that puts that in and before that day he institutes an Ineumbent this is meerly voyd for the entering of the Caveat is as a Supersedeas in our Law 65. THornton brought an Action upon an Assumpsit against Kemp Day of payment and declared that the Testator was indebted to him in ten pound and in consideration that the Plaintif would give day to the Defendant being Executor to pay that until Michaelmas he assumed to pay that in facto dicit that he hath given day and yet the Defendant hath not that payd The Defendant pleaded in bar that post praedictam assumptionem factam and before Michaelmas the Plaintif did arrest him for the same Debt and demands Judgement and upon that the Plaintif demurred Gawdy When he hath given to him day of payment usque ad Michaelmas allbeit he arrest him before that time yet if he do not receive the money before Michaelmas the consideration is performed Fenner I deny that for to what purpose is the giving of day of payment untill Michaelmas if in the mean time he may sue him Popham I agree with my brother Gawdy for insomuch that he onely forbears the payment untill Michaelmas and doth not promise to forbear to sue him the payment is forborn if the money be not received 66. SHerington â—ued a Prohibition against Fleetwood Parson de Orrell Prohibition in Com. Linc. for that that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments and the now Plaintif being Defendant in the Spirituall Court pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture and for this payment he had been discharged of payment of Tythes for all Agistments in that land Payment for one thing shall not discharge another Popham This payment of money for Milch
as primo Mar. 100 is Then if the Sherif inquire of one term and sell another as our case is the term sold was never found by our Inquisition and for that the sale not good quod Fenner concessit yet the Lord Popham sayd that if it had been found by the Inquistion generally that he is possessed of such land for term of divers years adhuc ventur which they have prised to such a sum this had been good insomuch as they have not any means to come to the knowledge of the certainty of the term But when by Inquiry a Term in particular is found Que estate refers as well to the estate as to the person they may not vary from that and sell another and he sayd that these words Cujus statum Henrici Fry shall be referred as well to the state precedent found as to the person of Fry And so is the common intendment in pleading of a que estate And he said to Mr. Tanfield that if he had taken any note of their first opinions that he should raze that out of his Book again and after the parties agreed in Court that Hauger should give to Fry 200 Marks more for his term and then Fry should make assurance to him of the term for confirmation of the sale 106. NOta per Cook Attorney Generall Difference between Feoffmenâ— to an use and covenant to raise an use If a man Covenant in consideration of naturall love to his son to stand seised of certain Land to the use of himself for life the Remainder to the same son in Fee with a Proviso that it shall be lawfull for himself to make Leases for 21 years or three lives Now he may not make such Leases notwithstanding this Proviso being by way of Covenant to raise the use And so it hath been resolved Contra Peradventure if it were by way of Feoffment to uses After Mr. Walter said that now lately in one Sharingtons case it was adjudged in this Court upon a Writ of Error That if a man Covenant with his Eldest son in consideration of naturall love A proviso with speciall limitaâ—n good to stand seised to the use of himself for life the remainder to his Eldest Son in tail with Proviso that he himself might make Leases to his second son or to any other of his kindred for 21 years or 3 lives and he made Leases to him accordingly this was holden good for they to whom the Leases are made are within the consideration to wit of the blood and for that the use may well rise to maintain those Leases But if the Proviso had been to make Leases to any man howbeit that after he made Leases by force of that to his second son These Leases are void for they are not within the consideration of the Covenant by Intendment of Law at the first for the Law at the beginning adjudged the Proviso meerly void quod nota 107. RObinson brought Debt upon an Obligation against May Counterbond the Condition was that the Defendant should discharge or save harmless the Plaintif of an Obligation for which the Plaintif as surety with the now Defendant was bound to I. S. The Defendant by way of bar pleaded Vsury that the Obligation made to I. S. by him and the Plaintif was upon a corrupt and usurious bargain and pleaded the Statute of Usury and concluded sic non daâ—â—ificatus It was moved at the bar that this was no plea for the Condition is that the Defendant shall discharge or save harmless c. And the Plaintif was impleaded by I. S. for that debt and hath paid the condemnation Tanfield Contra For if this shall not be allowed for a good plea the Statute of usury will be utterly defeated For by a compact between the surety and the Usurer the surety shall pay the usurer and the surety by that counterbond shall have double recompence against the Principall which will be mischievous But the whole Court held the plea not good sed quare 108. HObbs sued an Audita querela in the Kings Bench against Tedcastle Audita querela for a speciall bail and upon a demurer the case was recited by Moor of the Temple to be this Tedcastle sued a bill of debt in this Court against one Hallaway in Custodia Marescali which found bail the said Hobbs and an another which entred bail according to the common course of bail And after Hallaway was condemned in the said Action and then the said Hallaway died without paying the condemnation or rendring his body to Prison for which a scire facias was sued against the bail and upon two nihils retorned Execution was awarded against them Whereupon they sued this Audita querela supposing that the death of Hallaway hath discharged the bail Moor argued for the Plaintif that the bail ought to be discharged upon the matter for Hallaway had Election to discharge the bail by paying the condemnation or rendring of his body to Prison Now by the Act of God it becomes impossible to perform the one to wit to yield his body to prison And therefore the Law will discharge him of the other and by consequence his bail And that he proved by Arundells case 9 Eliz. 262. 6. 7 Eliz. 231. Sir Edw. Walgraves case Popham Quemodo constat here but that there was convenient time after the Judgement to perform the one or the other Kemp Secondary The course is allwaies here after Judgement to award a Capias against the Defendant and if upon that he do not render himself or pay the condemnation then to sue Execution against the bail and not before but here there was never any Capias awarded against Hallaway the Defendant in his life time Popham Gawdy Fenner This seemeth very reasonable not to sue Execution against the bail untill a default be retorned against the Principall and the recognisance of the bail which is that the Principall shall yield himself c. is intended to be upon Process awarded against him But no Process was awarded against him in his life and now it is impossible that he should yield himself to Prison being dead Iudgement and therefore the bail is discharged And so they awarded Judgement for the Plaintif in the Audita querela 109. MAtures brought an Action of Covenant against Westwood And the case was such Covenant for an assignee of a reversion for years Adams Lessee for 20 years made a Lease for 10 years of the same Land to Bowes by indenture whereby Bowes did Covenant at the end of his Term of ten years to avoid and to leave peaceable possession to Adams his Executors or Assignes Adams granted over his Reversion to Matures the now Plaintif The question is if the Plaintif by the Statute of 32 Hen. 8. cap 34. as Assignee may maintain an Action of Covenant for his Covenant broken or not Nota that this case was moved divers times And first it was moved if
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
in tayl the issue should be barred After which Statute as I intend the Law was such that when Tenant in tayl levied a Fine of such a thing as he might discontinue and the Fine executed in possession allthough the words of the Statute were Ipso jure sit nullus yet the issue was put to his Formdone but if it were a Fine Executory then by the death of the Tenant in tayl the issue was remitted and the Fine voyd But now by the Statute of 4 Hen. 7. the Law is made otherwise and for that here it is to be granted that he cannot discontinue the estate tayl because the reversion is in the King as it was now lately adjudged in the Exchequer in the case of Gillebrand ergo here the estate doth not pass to the Feoffees by the first Fine when he took an estate again to himself for life the remainder to the Lord Seymer in Fee but a Fee simple determinable then when the Lord Seymer was attainted Queen Mary had such an estate as the Lord Seymer had which was a Fee determinable and she had another Fee absolute in jure Coronae After when he sued by Petition he did not shew to the Queen what estate he had nor what estate the Queen had but that it was to the disinherision of him and his heirs then the Queen grants reversionem inde adeo plene libere integre as she had it or as it came to her by the Act of Parliament And I think when the Queen gives by generall words she doth not give any special Prerogative And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla c. and 9 Eliz. 268. in Dyer the case of the Dutchy of Cornwall 8 Hen. 6. the King pardons all Felonies this is no pardon of the Outlawry and especially when the Queen hath two interests it shall be construed beneficially for the Queen as 9 Edw. 4. Grant of an Office where the Grantee was no denison see there Baggots Assise and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion upon the life of one of them And further the case in Dyer where Queen Mary grants in Manerium de Bedminster in Com. Somerset 5. 13 El. fol. 306. a. Then Sir the Patent is that the Queen intendens dare congruum remedium in praemissis c. and when he iueth to the Queen by Petition Petition certain all titles ought to be in the Petition 3 Hen. 7. 1 H. 7. a Latin case the case of the corody and this is in nature of a Petition therfore ought to be certain then the Patent is Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratione actus Parliamenti c. aut in manibus suis existunt vel existere deberent c. and they are not to be expounded so largely as to make the reversion to pass for if those words ratione c. were before admanus suas c. or after in manibus suis existunt then it cannot be intended but the reversion shall not pass to Bainton Now when in manibus suis existunt come after these words References ratione c. for references are to be intended according to the meaning of the parties Devise 29 lib. Ass 14 Eliz. Dyer Devise of all Acres except a Lease for 30 years And those words aut existere deberent ought to have some relation ergo it ought to be intended quae in manibus suis existunt ratione attincturae c. and this will not make any grant of the reversion For the meaning of the Queen was because Bainton had no recompense of the other Lands No use to give him these for no use was in him by the covenant of Seymer as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Seymer For the other matters I think that A. Baynton is not Tenant in tayl by the grant again but admit him so yet he cannot discontinue neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine things which are not touched doe not pass as Commons Rents Wayes Claim per lessee purâ—ans alit postea si soit en post c. Br. Fines 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case 21 Eliz. that Lessee for yeares need not to make claim within five years and vouched the opinion of Br. tit Fines 121. accordingly that the issue shall not be barred And as the King is privileged so are his possessions allthough that afterwards they come into a subjects hands Generall restraint And where one hath a special Grant allthough a general Restraint come after if he doe not speak specially of this the Grant shall be good in many cases as 19 Hen. 6. fol. 62. the Parson of Edingtons case Br. Patents 16. and the case of the Abbot of Waltham 21 Ed. 4. fol. 44. Br. tit Exemption 9. in 19 Hen. 8. it was doubted if the issue of a common person should be barred ergo the issue in tayl the reversion being in the King is not barred And the Statute of 32 Hen. 8. is generall as well for those which were of the gift of the King as others and therefore afterwards there was another Statute made which excepted those which were of the gift of the King as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception if it were a bar before by the Statute of 4 H. 7. And for authority I have a report delivered me by a Sage antient in the Law that in 16 17 El. in Jacksons case where Lands were given in tayl the remainder to the King in fee the Tenâ—nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court Difference per enter rem reversion in le Roy. this was a bar but the Court then sayd that otherwise it should be if the reversion were in the King as our case is wherefore seeing there is neither discontinuance nor bar in the case his entry is congeable and the Action not maintainable Walmisley to the contrary I will agree that it is not any discontinuance yet he may admit him out of possession if he will as in 18 Edw. 3. Where Tenant in tail the Reversion in the King makes a Lease for life and hath two Daughters and died and Lessee for life was impleaded and upon his default the two daughters prayed to be received and so they were and as me seemeth the Petition made by him to the Queen shall not prejudice or hinder the Grant ex mero motuâ— and vouched 3 H. 7. fol.
6. the Priors case Note that Puckering then said privily to Shuttelworth is not the book contrary to that which he hath vouched for he vouched the Book contrary to that which Puckering had done before Shuttelworth No Sir but the record is contrary to the Book quod nota and when she granteth ex certa scientia it shall be taken beneficial for the party 1 H. 7. 13. omnia debita released to the Sherif and 29 Ed. 3. the King seised the lands of a Prior alien c. Difference per enter interest prerogative Touts droits poss per fine Fine puis disseisin ou discont alit de recovery and there is a difference between the cases put and this case for when the Queen makes a Grant all matters of interests may pass by the words but matters of prerogative as in the cases put by my brother Puckering cannot pass for they are not within the words but interests are To that which hath been sayd that he was not seised of any estate tayl this is not any argument for if he had three rights by the Fine all are gone and passed to the Conisee for if he be disseised or discontinue and then levy a Fine this is a bar but otherwise it is of a recovery Lessee purâ—ans en reversion poss diversity for that is no bar but of an estate tayl And as to the case of Saunders that lessee for years need not to make claim the case was not so but the case was of a lease inreversion and he had never entred and therefore it was but as a common or a rent but if it be a lease in possession he is bound as in Zouches case Then because the King is in possession it hath been sayd that it is no bar but this seemeth to be no reason for the Statute began with the King and the Preamble seemeth to induce it and the third saving of the Statute is by force of any gift in tayl so this is generall And because he cannot discontinue therefore can he not make a bar Non sequitur For he cannot discontinue and yet a Fine levyed is a good bar and the Statute of 32 Hen. 8. doth not impair this opinion but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case as it was agreed by all the Judges in Stowels case and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar doth not extend but to the words going before as in the case in Dyer that a man had not done any act but that c. And the Queen in this case hath not any prejudice for she shall have the rent with the reversion And as for Jacksons case that maketh for me for the question of the case there was that the remainder shall be gone and we ought not to take regard to that which is sayd indirectly in the case but the point of the Judgement is the matter and for authority it is direct in Dyer fol. 26. pl. 1. and therefore it seemeth that the entayl is barred and so the action maintainable Anderson You have well argued but for any thing that I see none of you shall have the Land Grant for the Queen is deceived in her grant and therefore the Patent is voyd and then it shall be seised into the Queens hands And therefore you had best to be advised and we will hear what can be sayd for this point at another day And note that it was sayd by the Justices 3 Costs in forcible entry that if a man recover in a Writ of forcible entry upon the Statute of 8 Hen. 6. by confession or by default he shall recover his treble costs 22 Hen. 6. 57. 13. ONe Colgate brought a Replevin against Blyth who avowed the taking Replevin and thereupon they were at Issue in Kent and the Jury found a speciall Verdict The case in effect was this Husband and Wife are seised of Lands in right of the Wife And she by Indenture in her own name agrees that a Fine shall be levyed and limits the uses by Indenture After the Husband by another Indenture agrees that a Fine shall be levied and limits other uses and afterwards a Fine is levied by them both now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity The Jury prayed the advise of the Court c. For if they be good they found for the Plantif if not then they found for the Defendant Shuttleworth Serjeant It seemeth that Judgement shall be given for the Plantif For the use limited by the Husband shall be a good limitation in Perpetuity Rent ch ou Lease per feme covert and first the Wife only cannot limit any use for her Acts are of no Validity And therefore if a Wife grant a Rent charge or make a Lease and the Grantee enter this is a Disseisin 43. Ed. 3. Deeds given by a Feme Covert are void 17. lib. Ass a VVife levies a Fine Executory Fine executory executed per feme covert sur grant render as a sole Woman and after a Scire fac Is brought to Execute this Fine the Husband shall extort the Execution and if it were a Fine Executed then it is a Disseisin to the Husband Vse quod For an use is a Declaration how the Land shall continue in Perpetuity and the Feoffees are nothing but Instruments or Organs to convey the use for the Land yields the use and not the Feoffees then when the Wife which is under the Power of her Husband Limitation per infant quaere limits an use this is void for I hold for Law if an Infant limit uses and after levy a Fine and do not Reverse it during his Nonage yet the limitation shall not bind him and so of a man non compos mentis Non compos mentis And so it was ruled in the Court of Wards where a naturall Ideot made a Declaration of uses and levied a Fine accordingly Ideot naturall that yet it shall be to the use of himself And then in our case the Limitation by the Wife cannot be good but her Will depends upon the Will of her Husband and the expressing of the use by the Husband shall be good Estate disseisin assumsit al feme For if an Estate be made to a Wife if the Husband seaven years after agree it is good and so it is of a Disseisin to a use so ofan Assumpsit to the Wife 27 Hen. 8. in Jordans case 1 Hen. 7. in Doves case and in a Praâ—cipe quod reddat the default of the Wife shall be the default of the Husband Default del feme because she is Compellable to the Will of her Husband by the Intendment of the Law 21. lib. Ass A man seised of Land in Right of his Wife makes a Feoffment in Fee
Livery per baron and would have made Livery but the Wife would not agree to the Livery yet notwithstanding the contradiction of the Wife the Livery was Adjuged good 33 Hen. 6. Husband and Wife are Plantifs in an Assise Nonsuite del feme and the Husband would Prosecute but the Wife would be Nonsuite the act of the Husband shall be accepted and the act of the Wife rejected So if the Husband will make an Attourny and the Wife wil dissavow him Attourny yet he shall be their Attourny And as I think this Limitation by the Husband shall bind the Wife in perpetuity Case per fine indentare Difference Juris clamat For if the Husband make a Lease of the wifes Land for 100 years the Wife may avoid it after his death but if after they both Levy a Fine the Lease shall be good-for ever And 11 Hen. 4. He in Reversion and one which hath nothing Levy a Fine quid juris clamat shall be brought against them both And as I conceive it it shall be counted her folly Reentry per condition that will take such a Husband as will Limit such uses For if a Wife hath an Estate in Land upon condition for not payment of Rent that the Feoffor shall reenter if she take a Husband which doth not pay the Rent whereby the Feoffor or his Heires reenter the Estate of the Wife is utterly defeated And in 4 Ed. 2. A woman Tenant takes a Husband Cessavit who ceaseth by two yeares whereby the Lord bringeth a Cessavit and recovereth the Inheritance of the Wife she shall be bound And this appeareth in Fitzh in Cui invita 21. And it shall be so if the Wife hath but a Freehold Wast as it is in 3 Ed. 3. A woman Lessee takes a Husband who maketh Wast whereby the Land is recovered and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife this is onely the sale of the Husband but if after they Levy a Fine this shall bind the Wife And for express Authority it is the case in Dyer Joynture fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands takes a Wife who hath a Jointure in his Land and he makes a Limitation of uses and after they both Levy a Fine this shall be the Limitation by the Husband because it shall be intended that the Wife consented if it doth not appear to the contrary Whereby the Declaration of the use here by the Husband shall be good to bind the Wife and therefore Judgement ought to be given for the Plantif Feâ—ner to the contrary for here the Inheritance is in the Wife and where the Husband limits further than he hath Authority there the Law shall make a Declaration of the uses for the Husband cannot Limit uses of that which he hath not 21 Ed. 3. A man takes a Wife seised of Lands in Fee Atteynder del feme and before that the Husband was intitled to be Tenant by the Curtesie the Wife was attainted of Treason Homage the Land shall be forfeit and 44 Ed. 3. He shall not make Homage Conusans before he be intitled to be Tenant by the Curtesie 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife Warranoy And in this case the Conisee is in in the per by the Wife and Warranty made to the Husband shall inure to the Wife and 18 Ed. 3. A man seised of a Mannor in right of his Wife Villain to which there is a Villain regardant the Villain Purchaseth Lands the Husband shall be seised of the Perquisite in right of his Wife And yet otherwise it is where a man is Lessee for years of a Mannor to which c. For he shall be seised of the Perquisite in his own Right Divorce 12. lib. Ass If he be Divorced his Estate is gone Lease Rent ch diversity And I agree to the case put by my Brother Shut Where the Husband makes a Lease for years and after he and his Wife levy a Fine there the Lease shall be good but if the Husband grant a Rent charge and after he and his Wife Levy a Fine I do not agree that this is good for in the first case the Conisee found one which had an Interest in the Land but not in the last Then Sir here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever Feoffee al use 28 Hen. 8. The Feoffece to use at the Common Law Limits an use to a stranger this Devesteth the first use but if he limit is to cestui que use then it is an ancient use and not new And so it is if Tenant for life and he in Reversion levy a Fine this shaâ—l be to the use of him in Reversion 2 Loyntenants And so if two Joyntenants be in Fee and they limit severall uses this shall be good according to their limitations for the Moities of either of them and for no more And if Husband and Wife levy a Fine to the use of the Husbands Sonne Fits del baron yet this is to the use of the Wife but if he be the Wifes Sonne allso then this is a good consideration and the use shall be accordingly And these cases I put to this intent that when a man limits an use which is repugnant Vse repugnant or further than he hath Authority the Law shall make a Declaration of the same use for Bracton saith Nemo potest ad alterum plus juris tranferre quam ipse habet And I take the Law if Husband and Wife levy a Fine of the Lands of the Wife and render back to the Wife in Tail Fine levie de terres del feme Oâ—e râ—eder al feme en tail and the Husband dye and the Wife discontinue that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case And I agree to that which hath been said that the Wife only cannot limit uses but because the Jury hath found for â—he Defendant if the limitation by the Husband be not good as I think it is not then Judgement shall be given for the Defendant Concessum Adjornatur 14 WIlliam Knight Eject firm as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman brought an Executione firme against W. Breâ—h of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell the Defendant pleaded not guilty and the Jury appeared at the Bar and Evidence given on both sides And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant Demurrer al evidence and thereupon the Jury were discharged And now Gawdy the Queens Serjeant
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
charges except Rents and Services which shall be due after c. to the chief Lord And afterward he made and levyed a fine And after the Wife maried and then the Son entred and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares Walmisley It seemeth that Judgement shall be given for the Plaintif because it was not discharged at the time of the Feoffment For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age Com. fo 539. after at his full age the Son shall have it so that there it was chargable to the Entry of the Son hereafter And here allthough that it be not presently charged yet when there is a charge arise the Covenant is broken And for that in 8 Eliz. a man bargains and sells Land Rent charge future and Covenants that it shall be discharged of all charges and he had granted a Rent before to begin twenty years after when the Rent begins it shall be said a breach And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land c. And so I think Judgement shall be given for the Plaintif Fenner to the contrary and here the Term was extinct by the grant end sale and then the Feoffment void and therefore no charge and thereupon no charge at the time of the Feoffment and for that he cited 42 Ed. 3. 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed c. so here in that she took nothing by the Feoffment there was no charge at the time of the Feoffment And this possibility of a remainder doth not make an interest and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 Resceit upon Cond where Tenant for life lets the Land to one upon condition that if he dye in the life of the Lessor that it shall retourn to the Lessor c. upon such a matter he may be received and he cited for that the case of Wheler 14 Hen. â— fol. 17. and a title suspended is no title 3 Hen. 7. 12. 30 Ed. 3. Lease for life upon condition that if the Rent be behind then he shall retain the Land c. and he said that the opinion of Bâ—omley in Fulmerstons case was contrary thereunto but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso And so it seemed to him that the Plaintif shall be barred 18. THE case of Fr. Ashpool was moved again by Fenner Hue and cry and it seemed to him that the Plaintif ought to make Hue and cry for as he said it hath allwaies been the manner of pleading and allso it hath been allwaies parcell of his issue to prove Allso he argued that he should not have remedy by the Statute post occasum solis For Stamford saith expresly that if a man be robbed in the day that he shall have remedy and the day shall be said but from the rising of the Sun to the fall thereof for the words of the Statute are that the Gates of the walled Towns shall be shut ab occasu usque ad ortum solis and then if the Gates be shut and that walled Town be within a Hundred how can they make Hue and cry And the case in 3 Ed. 3. is not like to this case Fresh suit by the Hundreders for there it was enquired and found of the Dozen Anderson The fresh suit mentioned in the Statute ought to be made by the Inhabitants and not by the parties and I am of your opinion that Hue and cry was at the Common Law but what of that But look the Statute and there is no word of Hue and cry And the Statute of 28 Ed. 3. is an exposition of that Statute and there is no mention thereof but Fresh suit is there mentioned which ought to be made by the Inhabitants And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort as men may safely travell without robbing And for the night Sir wee ought to construe it as it is most reasonable and about the setting of the Sun is the common time of robbing and therefore if this shall not be intended by the Statute nothing shall be intended and allthough the walled Towns cannot persue Walled Towns may keep the waies yet they may keep the waies so that no robberies shall be committed and this is both day and night as I think And if a man be slain in the robbery so that no Hue and cry can be made I doubt not but the Country shall answer for the robbery A man is robbed slain and bound and so if he be bound And if Hue and Cry ought to be when ought it to be For if a man be bound two dayes together he had as good make no Hue and cry as make Hue and cry afterwards and yet I hope you will agree that this man shall be relieved by the Statute which case was agreed by all the Court. Peryam The day without doubt is after the Sun-set Day after Sun-set Rodes cited the case of waging Battail in an Appeal in Stamford And so by agreement of all the Justices Judgement was entred for the Plaintif but Fenner sayd privately that in his conscience it was against the Law yet notwithstanding all the Judges were clear in opinion and the Serjeants of the other part allso So that it seemed to the Judges that no Hue and Cry is necessary by the party for they all agreed that the Country ought to be kept so that no Robberies be committed And Anderson and Rodes affirmed precisely that it is not necessary and the other agreed in the reason thereof and sayd that it is not mentioned in the Statute but sayd that the waies ought to be kept so that men may travell safely or otherwise it is against the Statute 19. IN a Writ of False Judgement brought against the Mayor Tryall Sherifs Citizens and Commonalty of Norwich it was moved where the Issue shall be tryed and per Curiam it shall not be tryed there but yet the Action may be used there And in the same case it was demanded Summons if the Sherif may summon himself and the Court answered that he could not and Peryam sayd that so it hath been adjudged here many times 20. THe â—ast day of the Term the matter of Lassels was moved again and it seemed to Anderson that the Obligation is voyd in that there is an express form limited by the Statute and this varying from the form in substance is voyd for in his opinion he excludes the
Defendant shall be taken and shall make a Fine wherefore forasmuch as he shall recover no land the entry into the land cannot purge the offence and wrong which is made punishable by the Statute and so was the opinion of the whole Court And the Court then held opinion likewise that if a man be disseised and after re-enters and is disseised again Assise that he ought to have an Assise of the last entry and not of the first 27 Ass pl. 42. 4. ONe Powell was sued in the Common-Pleas Privilege and as he was coming to Westminster he was arrested in London and thereupon had a common Writ of Privilege surmising that he was coming to retain Counsell and Walmisley prayed that he might be examined whether he did so or no but the Court would not Walmisley It is no reason that if he be going about other matters he should have the privilege of this place Curia A hundred Writs have been allowed without any examination Walmisley In 10 Hen. 6. 4 Hen. 7. such an examination was made Anderson But that was not de rigore Juris and all the Court refused utterly to examine him But Walmisley sayd privily that it was against the Law 5. DOrothy Millington brought Debt against J. Burges for 9 l. and declared that he bought certain Oad Wager of Law and the truth of the case was this Oad was sold to him upon condition that if she did not prove it to be good and sufficient then he should pay nothing for it and all this was disclosed by the Defendant upon his Wager of Law Detinue Windham If the case be so then you may wage your Law and it was sayd that she must have detinue for the Oad 6. IN an Avowry made by the Lady Rogers Title in avowry it was sayd by the Court Anderson absente that it is sufficient for the Avowant to plead his Freehold but if the Plaintif will traverse the same he ought to make himself a title Nelson Pronotary so are all our Presidents Peryam It is not sufficient to make it of his own seisin but he must make it Paramount his own seisin 7. WAlmisley moved for Judgement in the case of Richard Hanington for the Plaintif For he sayd that it was not clearly discharged because of the possibility of the charge ensuing allthough the charge were not then presently executed in proof whereof he sayd that it is not all gone by the acceptance of the Feoffment and then it is a bargain for a Lease for years is a bargain for there he hath quid pro quo Allso it is a Title as in Nichols case in the Commentaries And then allthough he had nothing which he could release because it was casuall whether it shall happen or no yet now when it happens it is a charge ab initio and thereupon he cited 9 H. 6. where one which had nothing but a possibility may maintain And so where a man makes a Feoffment and covenants that it shall be discharged as here and afterwards his Wife recovers her Dower the Covenant is broken and yet it was but a possibility And 8 Eliz. where a man covenants that it shall be discharged and he had granted a Rent charge to begin twenty years after this was not discharged Fenner argued to the contrary for the reasons moved by him before Peryam Here allthough it be no charge at the time of the Feoffment yet it is not discharged for if it were discharged then it shall never be charged afterwards And so was the opinion of all the Court Anderson absente and after at the end of the Term when Anderson was present they were all agreed that it was an incumbrance and not discharged of the incumbrance and therefore they gave Judgement for the Plaintif 8. IN Avowry by Johns of Surrey Esquire Tenure it was sayd by Anderson for Law that if a man before the Statute of quia emptores terrarum makes a gift and reserveth to himself upon every alienation the value of the Land by a year this shall be adjudged according to the value of the Land at the time of the tenure and not that whereunto it is enhauâ—ced at this day for a tenure ought to be certain when it is made 9. â—Aven brought Debt upon an Obligation against Stockdale who pleaded non est factum Statute 23 H. 6 and the Jury in Norfolk found this specially Verdict that the Defendant was sued by the Plaintif and made a Bond to the Plaintif endorced with Condition that if the sayd S. did personally appear in the Queens Majesties Court called the Kings bench and then and there make answer to such matter as the Plaintif should object against him the sayd Plaintif giving him warning that then c. And the Plaintif was neither Sherif nor Sherifs Officer for the pretence of the Defendant was to avoyd it by the Statute of 23 Hen. 6. And now the Plaintif prayed Judgement Anderson The case is no more than this A man is bound to another to appear at his suit in the Kings-bench and doth not so if this Obligation shall be avoyded and I see no colour to avoyd it for it is not within the Statute and all the Judges agreed clearly that it is not within the Statute and therefore they gave Judgement for the Plaintif 10. BLosse brought Trespass vi armis against Halmon for taking of his Goods Possession the Defendant pleaded not guilty and the Jury found a speciall Verdict that the Plaintif at the time of the Trespass supposed was of the Mystery of the Grocers and that the Defendant was his servant and put in trust to sell res mercandisas detempore in tempus in shopa sua existen and he took those goods and carried them away c. and they prayed the advise of the Court The doubt was because the action was vi armis whereas the Defendant had the custody or if this shall be called a custody Shuttleworth for the Plaintif and he cited the case in Littleton fol. 15. if I deliver my sheep to compost your land Sheep and you kill them I shall have trespass whereto the Justices agreed and held clearly that he shall have this action well enough Auctority Peryam he hath but an auctority only and not any custody or possession v. 2. E. 4. 22. 2 E4 8. 22 E. 4. 5. 13 E. 4. 9. Tenant at will ought not to cut down trees nor abate 3. H. 7. 12. 21 H. 7. 14. the case of Butler 11. TRespass by Foster against Pretty and his wife Title who justified that I was seised and made a lease to them for yeares c. the Plaintif replied de son tort demeasne Absque hoc that he leased c. Peryam Will you take a Traverse and not make your self a title Curia without question you ought to make your self a title otherwise it is if the Defendant claym a Common or such like and no
possession of the land 11. BRet Plaintif against Shepheard Apparaâ—ce the Condition of the Obligation was to appear at his Suit in the Kings-bench and upon Condition performed pleaded Triall by the Record the issue was found for the Plaintif And now he spake in arrest of judgement for that the triall ought to have been by the Record and not by the Country And so was the opinion of the Court But Radford Pregnotary said that the triall was good enough for it may be that he appeared there and yet there is no Record made thereof to whom it was answered that then it is no appearance if it be not recorded and Radford replied suppose that there is not any such suit there how then can it be recorded but the rule of the Court was ut supra for then the Obligation seemeth to be single 13. THe case of Calgate against Blyth was now again argued by Fletewood for the Plaintif And first he said that the limitation by the Wife is not good for which he took this ground that alwaies when a man shall gain a fee simple by matter of conclusion of Record that he shall be seised to his own use And here the Husband had a fee by conclusion by the fine and therefore his limitation good only Carill And there upon he put a case reported by Carill who was a grave man Fine levied and very learned in the law That if Husband and Wife levy a fine to B. who rendereth to them again for life the reversion shall remain in the Conisor to his own use Also he put another case put by Baldwin in the time of H. 8. Grant of all Estate that a man seised in right of his Wife grants totum statum suum to another the grantee shall have it no longer than during the life of the Husband if his Wife overlive him but if she have issue by him then he shall have it during the life of the Husband absolutely Fine And if two tenants in common inâ—eoff B. Feâ—ffâ—â—ent in see to their use they are then tenants in common of this use Diffâ—â—â—nâ—â— per Tenants â—n common but if they levy a fine to B. to their use then they are Joyntenants And in Queen Maries time a parson of a Church by licence of his patron and ordinary levied fi Parson levies a Fâ—e a fine of a portion of his Rectory and it was adjudged that it shall be to his own use in his naturall capacity Bishops the same law is if a Bishop levy a fine and he cited 1â— H. 4. 1. the first case and so he prayed judgment for the plaintif Anderson chief justice rehearsed the case and first he said that the Wife without her Husband cannot limit the use without doubt And here the case is no more but whether the husband may limit the use without the privity of his Wife and I think it a strong case that he cannot Notice of a use If Husband and Wife have an use and they grant it over to one who hath notice of the Use this shall be to the use of the Wife again What a use is and he defined an Use to be an intent and trust to convey lands and cited 6. H. 7. and that when the interest of the inheritance is in the Wife Fine if Husband and Wife levy a fine this shall be to to the use of the Wife for the use ariseth out of them which give the land and not by the Conises or Feoffees for they neither grant nor give the use Feoffment by he Husband alone and then it shal be to the use of the Wife again But if the Husband alone make a Feoffment this shall be to his own use and the Wife after his death shall be driven to her action And if the wife had been privy or assenting to the limitation Assent without naming although she had not been named yet it should be a good limitation but the Jury have found that she was not privy And a case was here adjudged Indenture after a fine levied that where a fine was levied and the limitation made after by Indenture that this shall be to the use of the Indenture if there be no other against it but in this case it is found expresly by the Jury that shee never agreed which doth impugn that which otherwise should be intended then now the case is no otherwise but that a fine is levyed and no use is limited but if the fine had been levied Silence is an agreemâ—ni the Husband only limited the use and nothing els had been done against it then it should have been to the use limited by the Husband because it should have been intended that the Wife had consented thereunto and so I think judgment shal be given against the Plaintif Windham I am of the same opinion and it seemeth that their difference and disagreement in the limitation is the cause that both the limitations are void First let us see who hath auctority to limit the use surely the principall owner of the land hath the principall auctority to limit the use and here the Wife is the principall owner What a use is and therefore hath chief power to dispose of the use And Sr. the use is the chief profit and commodity of the land and cannot be severed from the land no more than the shadow from the body and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use and not the use to the possession for the use is the principall for by the common law by bargain sale enrolled the land shall pass without livery Bargain and sale for this was a contract for the use and then the law shall make the land to pass The Law erects the use and whithersoever the use is now carried the land and possession shall follow but when the Law carrieth the use it is to the owner and proprietary of the Land The mothers heir For if a man seised of Lands on the part of his Mother levy a fine thereof the use shall pass according as the land shall because the law carrieth the use And here the Wife cannot limit the use without her Husband and therefore that is void but yet it is good to this intent to shew her disagreement Silence Consent And if the Husband limit the use and she doth not disagree the law intendeth that she consenteth thereunto because she hath joined in the fine Sale in London by Husband and Wife And therefore in London sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent or if she do not disagree And although that she shall not be examined concerning the use yet the Law will not have her defrauded of her land by joyning in the fine without her consent to the use for by that meanes
Wast and the Defendant demurred in law whether such an action will lie against him or no it was for cutting down of trees And at this day Anderson rehearsed the case and said that they were all agreed that the action will lye well enough vi armis for otherwise he shall have no action for wast is not maintainable and Littleton saith that Trespass lyeth so seemeth the better opinion in 2 E. 4. 33. for otherwise this being a common case it shall be a common mischief And he commanded the Pregnotary to enter judgement for the Plaintif 18. Snagg moved to stay Judgdment in the case of Blosse Property and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods Trespass will not lie sed vide librum and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler Windam If he had imbezeled the goods it is Felony and for the case of 3 Hen. 7. it is Felony without question Property quod fuit concessum Anderson The servant hath neither generall nor speciall property in the goods Taking Embezeling and he shall have no Action of Trespass if they be taken away and therefore if he take them Difference Trespass lieth against him and if he imbezell them it is Felony wherefore he commanded to enter Judgement for the Plaintif 19. THomas Taire and Joane his Wife brought an Action of Wast against Pepyat Pas 25. Eliz. and declared how that the Defendant was seised in Fee Rot. 602. and made a Feoffment to the use of himself for life Wast and after to the use of the Mother of Joane in Fee who died and it descended to her and after the Defendant made Wast c. The Defendant pleaded that he was and yet is seised in Fee Absque hoc that he made the Feoffment in manner and form pro ut c. And the Jury found a speciall Verdict that the Defendant made a Feoffment to the use of himself for life but that was without impeachment of Wast the Remainder in Fee as before And the Plaintif prayed Judgement and the doubt was because they have found their issue and more viz. that it was was without impeachment of Wast Anderson Whether it were without impeachment of Wast or no was no part of their issue and then the Verdict for that point is void and the Plaintif shall have Judgement VVindham The doubt is for that they have found that the Defendant is not punishable and where a Verdict discloseth any thing whereby it appeareth that the Plaintif ought not to Recover Judgement thereupon ought to be given against him As in detinue the Plaintif counts upon a Bailment by himself Bailment and the Jury findeth that another Bailed to his use the Plaintif shall not Recover And a Serjeant at the Bar said that the issue is not found Anderson That which is found more than their issue is void Assise and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise â—i troâ—â— ne so it c. and the Jury found that he was Tenant but that he held jointly with another and there the Plaintif Recovered and so he shall here And at length by the opinion of all the Court Judgement was entred for the Plaintif for he might have helped the matter by pleading 16. IN debt by May against Johnson Payment the Condition was to pay a 100. l. to Cowper and his Wife and by all the Court if he plead payment to Cowper alone it sufficeth for payment to him alone sufficeth without naming the Wife 15. IN a Quare impedit by Sir Thomas Gorge Avoydance against the B. of Lincoln and Dalton Incumbent the case was that a Mannor with an advowson appendant was in the hands of the King then the Church becoms void and after the King grants the Mannor with the advowson now the question was if the Patentee shall have this presentation or the King And all the Judges held clearly that the avoydance doth not pass for it was a Chattell vested in the King and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh nat br is contrary fol. 33. 11. 22. DEbt was brought by Goore Plaintif for 200. l. Bailiwick upon such a Bill Be it known unto all men by these presents that I Ed. Wingfield of H. in the County of Midd. Esq do acknowledge my self to be indebted to William Goore in 200. l. for the payment whereof I mine Heirs and Assigns do licence the said G. to have and use the Baliwick of Dale to the use c. untill c. the Defendant pleaded in bar that the Plaintif had used the said Bailiwick and said no more nor at what place he had received the money and Suagg moved that the Plea was not good because he had not shewed the value which he ought to have done Value and the Judges were of the same opinion and they said moreover that this Plea is not good in bar of this specialty for payment is no plea upon a single Bill Licence and he might have brought his Action upon this Bill without using the Bailiwick for this Licence is no Condition 〈◊〉 De Term. Hill Anno Eliz. xxx 1. AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton Covenant and the case was this A man maketh a Lease for years rendring Bent upon Condition with a Covenant that the Lessee shall repair the Houses with other Covenants And after he deviseth the same Lands to the same Lessee for more years rendring the like Rent and under the like Covenants as in the first Lease the remainder over to another in Fee and dyeth Then the first Lease expires and the Lessee held in by force of the Devise aâ—d did not repair the Houses so that if the first Lease had been in esse Condition he had broken a Covenant now if this shall be a Condition so that he in Remainder may enter was the question Shuttleworth This is a Condition for he cannot have an Action of Covenant and then the intent was that it shall be a Condition But all the Court was against him and that the intent was not so for the words are under like Covenants which words do not make a Condition allthough they be in a Will Anderson The nature of a Covenant is 〈◊〉 to have an Action and not to enter and so all the Court held it no Condition And Perâ—â—â— said that under like Covenants were void words and therefore Judgement shall be given against you 2. PUckering the Queens Serjeant moved Fee determinable that one Adams was indebted to the Queen in a great sum which was stalled to pay yearly so much untill all werere paid And for security he levied a a fine to William Lord Burghley Lord Treasurer and others that they should
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
the Land should pass by this words Appurtenances For allthough that in late Books Lands shall not pass by this word Appurtenances yet this is good authority to prove that they shall pass as 7 Hen. 5. 41. T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning and here upon this devise 4. l. Rent is reserved and the antient Rent is but 45. s and if the Land should be racked it is all worth but v. l. a year and because they are held in Capite therefore by the Statute we shall have but two parts And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney Valew wich are not worth so much therefore somtime the valew is considerable in a Will and cited 4 Ed. 6. 7 Ed. 6. and so he thought the Plaintif ought to recover And at this time the Court seemed to be of the same opinion for they gave day over to the Defendant at which day if nothing were said Judgement shall be given for the Plaintif 4. GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon Survivor the case was such H. was seised in Fee and had issue Mic. 29. 30 three Sonnes Eliz. râ—t 2325. John VVilliam now Plaintif and Richard now Defendant And by his last Will devised Lands to Iohn and to the Heirs Males of his body ingendred and devised other Lands to William in like sort and other Lands to Richard in like sort And that if any of his Sonnes died without issue Male that then the Survivor shall be each others Heir Afterwards the eldest died without issue Male And if William shall have all his part alone or else he and Richard between them was demurred in Law and day was given over to argue it 5. WAlmisley shewed how an Action was brought by Berdsley against Pilkington Impounding upon the Statute of 2 3 P. Mary for driving a Distress out of the County And shewed the truth of his case that the Distress was taken in the Hundred of Offlay in Staffordshire and the City of Lichfield was sometime within this Hundred And by Letters Patents of 1 Mariae the City was made a County of it self and he which took the Distress impounded them within a pound in the County of the City of Lichfield now whether he hath incurred the penalty of the Statute or no was the question And because the Court had not a Statute Book there to see the Preamble therefore they would give no resolution Anderson The meaning of the Statute was because the Bailif of the Hundred might make deliverance Allso I think it is within the compass of the Statute because the City was a County severed before this Statute made And the Serjeants at the bar said Same Hundred that the party may drive the Distress as far as he will within the same Hundred but he ought not to drive it above three miles without the Hundred 6. IOhn Slywright exhibited an information upon the Statute Champerty for buying of Titles Pasch 30. Eliz. rot 1532. against Page and declared how Joane Wade demised to Page for 60 yeares the Defendant pleaded not guilty And now a Jury of Sussex appeared at the bar And upon Evidence it was moved â—if a man have a lawfull Title to enter into Lands Lawfull title but hath not been in Possession and he entreth and makes a Lease for yeares thereof if this be within compass of the Statute Anderson It is within the Statute for the mischief was that when a man had a Title to Land he would let it to another to have maintenance and imbracery and make contentions and Suites for remedy whereof the Statute was made For if a man have a Title he may recover according to his Title Recovery Peryam The mischief hath been truly recited and therfore it is reason to restrain such bargains But if a man Recover by Formdon or Cessavit and make a Lease this is not within compass of the Statute A pretended Right allthough that he hath not been in Possession by a year and in my opinion the Plaintif need not prove that it is a pretented Right because the Statute expoundeth what is a pretented Right viz. if he hath not been in possession And so I have delivered my opinion before this time Anderson If a man hath not been in Possession and cometh to me and saith that he will make me a Lease and demands if I will take it and I agree thereto whereby he maketh me this Lease Ignorance if I do not know that he hath not been in possession I am not within the Statute And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor whereby he might take the Lease well enough For Fleetwood cited 6 Ed. 3. if one brother maintain the other this is not within the Statute of Champerty which case the Court agreed this is for speciall cause vide statut de articulis super cartas Maintenance Champerty Difference Anderson One brother may travell for another and maintain him but if he take a Lease of him he is within the Statute of 32. Hen. 8. for this is a generall mischief and the mischief is as great if the brother take a Lease as if another take it The case quod Periam coucessit clearly but because it was the case of the Defendant the Jury found a speciall Verdict viz. that the Lands were conveyed by the Husband of Joane Wade to the use of himself and his Wife in Tail-speciall the Remainder to the Husband in generall-Tail the Remainder to the Wife in Fee and after the Husband Enfeoffed diverse men thereof and the Feoffees continued in Possession diverse years After the Husband died and then the Wife by indenture sealed and delivered of the Land made a Lease to Page which knew all this matter Knowledge from the fift day of Jenuary last past for 60 years if the Wife should live so long and that the Wife was Sister to Page the Defendant by the Mother and found the valew of the Land as if it should be sold and they prayed the advise of the Court c. And the morow after the like information being brought against the woman being Lessor the like Evidence was given and the like case found 7. FEnner moved this case to the Court. Recovery An Alien born purchaseth Lands in Tail the Remainder to a stranger in Fee The Alien suffereth a Common Recovery to his own use in Fee And after an Office is found of all this matter if the Remainder shall be to him which had it before or no was the question Anderson I think the Queen shall have a good Fee-simple Tenant sufficient to the praecipe for if there be a good Tenant to the praecipe then is the Remainder gone and you will not deny but that
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
in the Fleet Appearance was brought to the Common place bar by habâ—as corpus to the intent to have him appear to an Originall in debt brought against him And being demanded by Goldesburg Clark whether he were the same party against whom the Originall was brought confessed it but denied to appear to the Action Brâ—â—keâ— Prothonotary said the Court ought to record his appearance confessing himself to be the same person but the whole Court said this was no appearance whereby he was remanded to the Fleet And Tamworth the Plaintif proceeded to the outlary against him 2. PRice brought an Action of Trover against Sir Walter Sands Frandulent deeds Trin. xxxviii Eli. And this was for finding of Corn. And the first point of the case was That a man had a Lease in Reversion and granted it to another by fraud and his Grantee granted that over to Sir Walter Sands bona fide And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void per the Statute of 27 Eliz. or not was the question Harris Serjeant It seemeth the Grant to Sir Walter Sands to be good And not within the Statute of 27 Eliz. For 33 Heâ— 6. 28. If a man make a Feoffment in Fee by Collusion to the intent to defraud the Lord of the Wardship And after this Feoffee by Collusion make a Feoffment over bona fide Now the Lord is without remedy for the Collusion is gone And in this case there is an ignorance in Sir Walter Sands the which is not willfull and for that it is not punishable Notice But if the other had taken the profits so that the purchaser might have notice there it should be otherwise The â— cause was non constat whether the Grant were before the Statute of 27 Eliz. or not For if it were before then the party shall not answer the mean profits Allso a third matter is ten yeares of the Term was granted for money But when he granted the Residue of the Term and no Consideration expressed Consideration expressed then there shall be no consideration intended And if there were no Consideration given he is not holpen by the Statute For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid Et non constat that any thing was paid by the Plaintif Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute Allso here the party is charged with a speciall fraud And the other saith that it was made bona fide And this is a good course of pleading without any Traverse per 4 Ed. 4. 24. 3. HUgh Hall brought an Action upon his case for words and declared Slander that where he himself was robbed of divers parcels of Cloth per quendam ignotum and made his integrity and indeavour to apprehend the said thief praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone viz. Hugh Hall hath received three parcells of his Cloth again of the thief And if I receive any hurt henceforth I will charge him with it And by Judgement of the Court the words are not actionable 4. THe Lady VVilloughby Wife to the late Sir Francis VVilloughby Caveat sued in the Chancery as Administratrix of her said Husband against Percivall Willoughby which had maried one of the Daughters of the said Sir Francis And the Defendant pleaded that before any Administration commited to the said Plaintif he himself put in a Caveat in the Spirituall Court hanging which Caveat she hath attained these Letters of Administration Appeal whereby the Defendant hath appealed 〈◊〉 which appeal is not yet determined for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix And it seemed to Egerton then Lord Keeper of the great Seal that the Defendants plea is good to stay the suit untill the appeal be determined But not to be dismissed out of the Court Appeal Erâ—â—â— Difference no more than an excommunication And he said there is difference between an appleal in Spirituall Law and a Writ of Error in our Law For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter but not for the costs and for to prove that he cited 2 R. 2. Quare impedit 143. vide 27 H. 6. Gaud. 118. 2 M. 105. Dyer 7 Eliz. 240. 5. IN the Chauncery a speciall Verdict was retorned upon an extent Execution uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—e the Remainder in Tail and the Tenant in Remainder in Tail made a Statute Staple and after granted his Remainder And after the Tenant for life died 〈◊〉 Bull 〈◊〉 and the Grantee of the Remainder entered And whether Execution shall be sued of this land upon the said Statute insomuch that the said land was never in Demeasne in the hands of the Coâ—â—so◠〈◊〉 â—ames 〈◊〉 and so not extendable in his hands was the question And Sr. Thomas Egerton Lord Keeper of the great seal said that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life For to a Remainder are no services due nor incident and for that it is termed Seck But a Reversion hath services incident and those may be extended and by consequence the Reversion when it commeth in possession Bâ—t it seemed unto him that all was one for one may charge a Remainder when it happeneth aswell as a Reversion and a Statute is in the nature of a charge Cook the Queenes Attourney said there was no question in the Case for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question for if he in the Remainder make a lease for yeares to commence at a day to come Yet if he grant over his Remainder the Grantee shall hold that charged with his lease And every Statute is a charge Executory By which the said Lord Keeper awarded that there should be a liberate made to the Conusee upon the retorn above 6. OVerton brought an action of Debt against Sydall Debt by a Successor against an Executor after assignment And the case was that Prebendary made a lease for yeares rendring rent and the Lessee died and the Executors of the Lessee assigned over the Term and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over and the opinion of three Justices was that the action would not lye But Popham the chief Justice held the contrary For the Successor is privie to the Contract of the predecessor And so the Executor to the contract of the Testator
beasts shall not discharge him for the payment of Tythes for other beasts and Tythes shall not be payd for beasts fed for the occupation of the house of the owner No tyths for things spent in the house but if a man feed to sell there shall Tyths be payd for those for with the first people live which manure the land of which the Tythes are payd for so is Fitzh Nat. brev 53. Q. to be intended 67. WIldgoose versus Wayland in Cancellar Notice of trust This question arose If A. be seised upon trust and confidence to the use of B. and his Heirs and A. selleth the land to one that hath notice of the trust to whose use shall the Vendee be seised Also it was moved if before the sale one come to the Vendee say to him take heed how ye buy such land for A. hath nothing in that but upon trust to the use of B. and another comes to the Vendee and saith to him It is not as he is informed for A. is seised of this land absolutely by which the Vendee buyeth the land if this first Caveat given to him ut supra be a sufficient notice of the trust or not And the Lord Keeper sayd it is not for flying-reports are many times fables and not truth and if it should be admitted for a sufficient notice then the Inheritance of every man might easily be slandered Notice of Forgery Cook It was holden in Bothes case in the Starchamber that if a man sayd to another take heed how you publish such a Writing for it is forged and notwithstanding the party doth publish it this is a sufficient notice to the publisher that the Deed was forged And upon that the Lord Popham at the same time put this case Notice of Felony If one say to me take heed how you entertain or receive A. B. for he hath committed such a Felony and I giving no credit to the report receive the party where in truth he had committed the Felony now I am accessary to this Felony To which the Lord Keeper answered that he would not draw blood upon such an opinion 68. IF a man make a Lease reserving Rent to the Lessor Reservation of Rent if he say no more the Rent shall goe but to the Lessor but if it be reserved generally and doe not say to whom it shall goe as well to the Heir of the Lessor as to the Lessor himself Per Gawdy 69. IT was sayd by Fell Hue and Cry an Attorney of the Kings-bench that it hath been adjudged in the same Court that an Action upon the Statute of Hue and Cry against Inhabitants of any Hundred will never lye by Bill but ought to be sued by Writ and the reason is for that the Action is brought against Inhabitants which are a multitude and for that may not be in custodia Marescalli as another private person may 70. A Judgement was had in an Action of Debt of 80 l. And the Plaintif had a Fieri facias Capias after a Fieri sacias executed for parcell and the Sherif levyed 20 l. of the goods of the Defendant and retorned that of Record but non constat by the Record whether the Plaintif had received the 20 l. or not and the Plaintif took forth a Cap. ad satisfaciend for the whole Execution being 80 l. and upon that the Defendant was Utlawed and now he brought a Writ of Error to reverse that Utlary which was reversed for that it did appear upon Record that execution was made by Fieri fac of 20 l. of the 80 l. and therefore the Cap. ad satisfaciend should have been but 60 l. 71. IF the Husband sell his land by Fine Claim of Dower with Proclamations and live five years and after dye his Wife being sole of full age of sound memory out of prison and within the four Seas and doe not make any demand or claim of her Dower within five years after the death of her Husband she shall be barred 72. A Feofment was made before the Statute of 27. to the use of a Man and Woman unmarried Moities in Tail and of the Heires of their two bodies begotten and after they intermarried and after marriage the Husband bargained and sold all the land in fee to one of his Feoffees and died without issue and after the Statute of 27 was made the Wife claymed the whole by Survivor as Tenant in tayl after possibility of issue extinct And by the opinion of all the Court without argument she can have but the Moity because the Husband and Wife had Moities as Joyntenants by reason of the Joyntenancy made before marriage And yet by the Court as to the issue in tail if any had beeen he shall have a Formdon of the whole 73. IF Land be holden of a Subject Tenure and Wardship extinct and the Tenant sells the land by Fine with Proclamations to I. S. in tail the Remainder to her Majesty in fee The Tenant in tail dyes his Issue within age The Opinion of the Court was that the Issue shall not be in ward to the Subject if the Queen do not assent to her Remainder for that the tenure and services are gone and extinct by the Fee simple to the Queen which may hold of none And so the issue in tail shall be in ward to none 74. IF a man have goods to the value of 100l and is indebted in 20l. and he deviseth and bequeatheth to his Wife by his Testament the moity of all his goods to be equally divided between her and his Executors Legacy of a moity of all his goods and make his Executors and dieth And the Executors pay the 20l. yet the Wife shall have the moity of the whole estate viz. 50l without any defalcation so that the Executors have Assets besides 75. IN a Prohibition and the Case was this Benefield against Feek Tithe of Saffron the Farmor of a Parsonage sued in he Spirituall Court for Tithes of Saffron against a Vicar The Vicar pleaded that time out of memory of man the Vicar and his predecessors have had the Tithe of all Saffron growing within the parish A Prohibition for the Plaâ—ntif in the Spirituall Court upon his own lihell The Plaintif pleaded that the land where the Saffron was growing this year by the space of 40 yeares next before had been sown with Corn whereof the Parson and his predecessors have had the Tithe And the Spirituall Court would not allow this Plea For which the partie prayed a Prohibition Tanfield The right of the Tithe commeth in question between the Parson and Vicar Howbeit that the Farmor be made partie to the suit and for that the right of Tithes being in question between two Spirituall men Suit between persons spirituall This Court hath no Jurisdiction And this very point was adjudged 30. Eliz. inter Hunt and Bush in this Court that in such
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
date of the sayd Obligation whereof the Action is brought if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation that then c. The Defendant pleaded payment secundum formam effectum condition is praedictae and upon this Plea the Plaintif demurred in Law and Judgement given for the Plaintif for the Defendant ought to plead non damnificatus 91. HUntley brought a Writ of Accompt against Griffith Account Baron Feme and the case was that one devised a certain sum of money to a Feme covert And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor who did receive it accordingly to the use of the woman And the Husband and Wife both dye and the Administrator of the Womans Husband brings this Action Tanfeild argued that the Action is not maintainable for when the Legacy was devised to the woman the Husband and Wife ought to joyn in the Action and if the Wife dye the Husband hath no remedy And when the Husband and the Wife make a Letter of Attorney to receive the money this principally is to be sayd the act of the woman and the Husband joyneth with her but for conformity and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land and the Wife onely declares the use of the Fine it is good and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole which afterwards takes a Husband and he and his Wife assign Auditors to the Receiver they both shall joyn in an Action of Debt for the Arrerages Altam è contra and sayd that the concourse of all our Books are that when money is delivered to deliver over to another Letter of Attorney by the Husband only Debt due to a Feme sole that other shall have an Action of Accompt allbeit that before that time he had not any property And 6 Ed. â— 1. that proveth Gawdy It seems to me the Action is well brought for the matter whereupon you stand is the Letter of Attorney and I say if the Husband sole had made the Letter of Attorney For by the entermartage the duty became the husbands if he could attain it in the life of the wife which he did by the receipt of his Bayly it had been well enough and when the money is received to the use of the Husband and the Wife now by that the Husband hath interest Popham I am of the same opinion for if Debt be due to a woman sole upon an Obligation and after she take an Husband and the Husband sole makes a Letter of Attorney to J. S. to receive that and J. S. receives the same now the Husband sole shall have an accompt against J. S. Fenner accord so Judgement was given for the Plaintif 92. THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr Verdict in a Scire fac upon Recognisance Tenant The Defendant pleaded in abatement of the Writ that one Bedingfield was seised in Fee of three Acres of land not named Judgement si execut c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not and the Jury found that B. and J. S. were Jointenants of the said three Acres and whether this Verdict hath found for the Plaintif or Defendant was the question Whether Joyntenancy shal be sayd a Seisin Gawdy I think it may never be said the Land of Bedngfield onely And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent the Plaintif declared of a demise of 26 Acres rendring the said Rent The Defendant pleaded that the Plaintif demised to him 26 Acres and 4 Acres more without that that he demised the twenty Acres onely And the Jury found that he Leased but 22 Acres and there that was good for the Defendant hath confessed a demise of 26 Acres and then the Verdict should have been that the 4 Acres ultra were not demised and allso he said when two men made a Feoffment the Feoffee shall be in by both the which is a strong proof that the one sole is not seised Fenner According to the matter in question I think it is found for the Plaintif for the pretence of the Defendant is to have a companion against whom the Scire facias shall be as well brought as against himself And in 46. Edw. 3. That in casu proviso if issue be taken upon an Alienation in Fee Forfeiture by alienation and the Jury find an Alienation pro Termino vitae this is a Verdict good enough and the Plaintif shall recover for the Alienation to the Defendants Inheritance is the question And whether it be in Fee or for life it is but form and so in this case Popham by pleading of the truth the Defendant might have been holpen but not as he hath pleaded here as if one plead his Freehold and another say his Freehold absque hoc that it is the Freehold of the Plaintif and upon that they are at issue And the Verdict finds that the Plaintif and Defendant are Tenants in Common Now this Verdict is found for the Plaintif for he that makes the first lie shall be triced and this was the Defendant Fenner In this case one Tenant may not have an Action against an other Iointenants make a statute and it was agreed in this case if there are two Jointenants and the one make a Statute and after joines with his companion in a Feoffment of that Land now the moity of the Land may be extended upon this Statute Godfry When it appears unto the Court that there is another against whom the extent shall be then the Plaintif his Writ shall abate Gawdy No truly for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited and the Defendant plead ne unques seisi que Dower and the Verdict find the remitter yet the Plaintif shall have the Judgement for the Tenant if he will have advantage of that ought to plead it 93. THe Parson of Ramesey â—ued in the spirituall Court for Tithes of Asp Prohibition for Asp and a Prohibition was awarded And Fenner said that it was adjudged before that time that Asp should not pay Tithes and also it was agreed if a man cut trees for Housboot No Tithes for housboots c. or other usuall bootes Hedgboot Ploughboot Cartboot and Fireboot Tithes shall not be paid of them 94. NOta per Fenner Justice Account that an Action of accompt shall be maintainable against a servant but not against an Apprentice 95. HOme was indicted for that he had spoken against the book of Common prayer Depravation upon endictment Yelverton The Indictment as it appears is taken before the Lord Anderson and Baron Gent Justices of
Cook Attorney generall Alienation by a Bishop that he said in an argument in the Exchequer if a Bishop with consent of the Dean and Chapter alien land belonging to his Bishoprick in fee that a contra formam collocationis doth not lye and so he said he could shew the resolution of all the Judges of England the reason is for that that the Statute of Westm 2 cap. 41. whereupon this is founded speaks only of Abbots Priors or Masters of Hospitalls and albeit there are other words general to wit or Masters of other Religious or Ecclesiasticall houses yet that doth not extend to Bishops which is an higher diginity than an Abbot but the generall words after ought to be supplied with intention of other houses inferior to those named before So hath it been ruled that a Lease by a Bishop is out of the Statute of 13 Eliz. cap. 10. which commenceth with Dean and Chapter howbeit there are generall words after to wit or any other having any Spirituall or Ecclesiasticall living which is intended of any other inferior to those named before and never was intended to extend to superiors but as I think the contrary hath been since adjudged 103. VPon an Evidence in an Ejectione firme by Cootes against Atkinson for land in the County of Derby Whether a lease be bound by the Statute of 4 H. 7. It appeared that a Lease for yeares was made of the said land 20. H. 8. for 80. yeares and after the Lessee was ousted and died intestate And after in 4. and 5. P. Mar. a Fine was levied of the said land with Proclamations and the Conusee enjoyed it untill 37. Eliz. in which year letters of Administration of the goods of the Lessee was granted to I. S. which entered and made the Lease to the Plaintif Godfrey moved that this Fine with non claim for five yeares shall bind the right of the term by the Statute of 4. H. 7. which hath a saving of title and interests So as they make their claim within five yeares A good distinction otherwise their title and interest is bound Cook and Tanfield A right of a term is not within the Statute of 4 H. 7. but right of Free-hold or inheritance and so it was agreed in Stamfords case 21 Eliz. and sure hath been diverse times holden Godfrey Stamfords case was a lease to commence at a day future and then a Fine and non claim for 5 yeares before the day of the commencement shall not bind the right of that Lease but a Fine levied after the day of commencement although before any entry of the Lessee shall bind Saffins case Gawdy Fenner absent caeter Justic held that a Lease for years shall never be bound by the Statute of 4 H. 7. and therefore the Administrator may lawfully enter This was the Title of the Countess of Shrewsbury against Rowland Ayre for the mannor of Hassop in Com. praedict But the Jury gave a speciall Verdict and Justice Fenner the next day said that he demanded this question of the Lord Anderson And he is clear of opinion that the Statute of 4 H. 7. extends to bind a right of a term if the Lessee were or might have been ever in possession before the Fine 104 POllard and his Wife brought an Action upon the case against Armshaw for these words Slander Thou art a whore for I. S. Goldsmith hath the use of thy body the cart is too good for thee Popham et tota Curia The Action will not lye for the Common-law cannot define who is a Whore but if one keep a victualling house or Inne and one say that she keeps a house of Bawdry A Victualing house an action lyes and so was Ann Davies case because it may be a meanes to make honest guests to forbear the house and so breed a temporall loss to the owner 105. INter Palmer Humphrey Inquisition upon an elegit the case was such upon an Elegit a Sherif impannelled an Inquest which found that one Henry Fry against whom the Elegit was taken out was possessed of a Lease for 100. yeares to begin at the Feast of St. Micb. Anno 2 3. P. M. when in truth as it was found by speciall verdict in this action the Lease was to begin at the Feast of St. Mich. Anno 3. 4. Phi. Ma. Cujus quidem Henrici Fry Statum interesse terminum in ten prae ne dit praedict Juratores praedict appreciaverunt to 80. l. and the Sheriff sold the Lease as a chattell for lxxx l. The question was if the sale by the Sheriff be a good sale Popham It seems to me the sale is good for albeit the Lease is misrecited and Heâ—ery Fry hath not any such Lease yet when the Jury comes to praise it and the Sherif to sell his estate in the land they do not referr that to the recitall before but generally that they shall sell all the state interest and term of Henry Fry But if this word praedict had been in the inquisition sale it had been otherwise as if the Sherif had said all which said estate term then he had referred that to the recitall before which being false will make the sale void for that he said that it was agreed in the time of Sr. Christopher Wray about 21 yeares past between Sr. G. Sydnam and Rolls upon a Fieri facias where the Inquest found that the party against whom c. was possessed of a certain term bearing date c. which did not â—ear such date and the Sherif sold the sayd term And it was ruled that the sale was not good But the Court did then advise the party to take a new Fieri fac A good form of finding a term by inquisition and that the Inquest should find generally that he was possessed of a term for years yet enduring and the Sherif upon that made sale accordingly and that sale was holden good for that the Extendors and Sherif could not come to the knowledge of the certainty of the term so in the principall case the sale being of a term and the state of the party in the Tenements and not of the term and estate aforesayd which was falsly recited this is a good sale which was in a manner agred by all the Justices but adjâ—rnatur At another day Tanfeild moved this case again Popham I have considered of the Record with advise and I think as this case is that the sale of a term by an Elegit is voyd The difference between a Fieri fac and an Elegit and for that the difference between a Fieri fac and an Elegit is to be considered For the Elegit is that per Inquisitionem sacramentum 12 bonorum hominum per rationabile precium extent the Sherif should apprise the goods and chattels and extend the land so without inquiry the Sherif may not sell quod fuit concessum
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
of a thing is necessary where not pag. 189. 5. pl. 137. Detinue VVhere an Action of Detinue lies and where not pag. 65. pl. pag. 152. pl. 79. Deed. What shall be a good Deed what not pag. 83. pl. 2. pag. 116. pl. 12. Devise What things may be Devised what not pag. 84. pl. 6. What is a good Devise what not pag. 88. pl. 14. pag. 99. pl. 3. pag. 100. pl 3. pag. 111. pl. 15. pag. 129. pl. 23. pag. 139. pl. 47. pag. 149. pl. 74. pag. 150 151. pl. 77. pag. 153. pl. 80. pag. 184. pl. 122. pag. 185. pl. 125. Debt Where an Actiou of Debt lies where not pag. 119. pl. 6. pag. 130. pl. 26. pag. 152. pl. 79. pag. 182. pl. 118 119. pag. 185. pl. 29. Declaration What shall be a good Declaration what not pag. 97. pl. 12. pag. 109. pl. 15. pag. 111. pl. 18. pag. 115. pl. 19. pag. 155. pl. 84. 156. pag. 186 pl. 135. Devastavit What shall be said a Devastavit what not pag. 113. pl. 8. pag 14. pl. 57. pag. 181. pl. 117. Determination Where an estate is determined where not pag. 157 158. pl. 86. pag. 178. pl. 111. pag. 179. pl. 112. Dispenation What is a good Dispensation to hold divers livings and what not pag. 162. pl. 97. Discontinuance What shall be said a Discontinuance what not pag. 25. pl. 6. Where and when one may discontinue his Action when not pag. 53. pl. 3. Distress Where a Distress lies for rent or service where not pag. 6. pl. 11. pag. 62. pl. 29. pag. 97. pl. 14. When a Distress ought not to be taken pag. 56. pl. 10. pag. 140. pl. 50. How a distress must be used pag. 100 101. pl. 5. Disseisor and Disseisin VVho shall be a Disseisor with force who not pag. 42. pl. 18. Who shall be a Disseisor who not pag. 82. pl. 24. Discent What lands shall Discend to the heir what not pag. 84. pl. 6. pag. 88. pl. 14. Where one shall take by Discent where not pag. 139. pl. 47. Discharge What is a good Discharge of a debt or duty pa. 156. pag. 84. pl 174. pl. 108. Dower What shall be a good plea in bar of Dower what not pag. 4. pl. 8. pag. 27. pl. 8. pag. 108. pl. 13. pag. 148. pl. 71. VVhere the feme may waive her Dower where not pag. 108. pl. 13. E. EJectione firme Who may have an Ejectione firme and who not pag. 87. pl. 12. Where Election of Action lyes or other things where not pag. 20. pl. 4. pag. 25. pl. 6. pag. 83. pl. 1. pag. 124. pl. 9. pag. 131. pl. 27. pag. 142. pl. 55. pag. 175. pl. 108. Elegit VVhere an Elegit lies where not pag. 180. pl. 115. Enrolment To what time an Enrolment of a Deed shall relate pag. 18. pl. 14. What shall be a good Enrolment and what not pag. 162 163 164. pl. 97. Entirety and Severality Where a thing is Entire and where Severall pag. 18. pl. 14. pag. 19. pl. 14. Entry What Entry into lands is a ground for an Ejectione firme pag. 5. pl. 10. Where an Entry is lawfull where not pag. 6. pl. 1. pag. 125. pl. 13. pag. 153. pl. 80. pag. 178. pl. 111. pag. 188. pl. 136. What Entry of Record is good what not pag. 91. pl. 3. Error What is Error to Reverse a Judgement what not pag. 138. pl. 45 pag. 140. pl. 50. pag. 184 185. pl. 124. Who may reform Errors in Judgements who not pag. 14. pl. 63. Where a writ of Error lies where not pag. 181. pl. 116. Escape Where an Escape lies where not pag. 180. pl. 114. Estople What shall be an Estople to parties what to strangers pag. 43. pl. 22. pag. 53 54. pl. 5. Estrepment Where an Estrepment lies and where not pag. 50. pl. 12. Evidence Who must first give Evidence pag. 27. pl. 2. What matter may be given in Evidence what not pag. 80 81. pl. 18. What is good Evidence what not pag. 124 125. pl. 11. Executor What Acts done by an Executor are good what not pag. 2. pl. 4. pag. 141. pl. 54. pag. 184. pl. 25. What things an Executor shall have what not pag. 64. pl. 2. pag. 98. pl. 17. pag. 112. pl. 19. pag. 129. pl. 24. pag. 143. 144 145. pl. 60. pag. 84. pl. 123. pag. 185. pl. 125. What Actions an Executor may have and what not pag. 90. pl. 19. pag. 105. pl. 9. What Actions may be brought against an Executor what not pag. 106. pl. 11. pag. 154. pl. 81. Exchange What is a good Exchange what not pag. 27. pl. 8 Extinguishment By what Acts a thing may be extinguished pag. 43. pl. 24. pag. 53. pl. 4. pag. 92 93. pl. 5. pag. 93 94. pl. 7. pag. 84. pl. 4. pag. 107. pl. 12. pag. 114. pl. 6. pag. 116. pl. 13. pag. 116. pl. 15. pag. 125 126. pl. 16. pa. 140. pl. 73. pag. 156. pl. 84. pag. 157. pl. 86. pag. 181. pl. 116 117. Examination Where one shall â—e examined where not pag. 64 65. pl. 4. Exposition How Statutes shall be expounded pag. 137. pl. 40. How a condition shall be expounded pag. 137. pl. 40. Execution Where Execution shall issue forth where not pag. 120. pl. 5. What is a good plea in bar of an Execution what not pag. 170. pl. 101. pag. 174 175. pl. 108. pag. 108. pl. 114. What is a good Execution what not pag. 180. pl. 115. Extent Where a Statute shall be Extended where not pag. 120. pl. 5. What is a good extent what not pag. 161. pl. 92. Exeption Where a bill of exception lies where not pag. 137. pl. 39. F FAlsifying What falsifying is and who may falsifie and who not pag. 8. pl. 11. pag 26. pl. 7. pag. 96. pl. 1. pag. 87. pl. 12. Fee Simple Divers sorts of Fee Simple pag. 9. pl. 12. What words will create a fee simple what not pag. 135. pl. 33. pag. 183. pl. 211. Feem Covert What Acts done by feem covert are void what not pag. 13. pl. 13. 14. What Acts done to a feem covert are good what not pag. 13. pl. 13. Felony What shall be accounted felony what not pag. 72. pl. 18. pag. 129. pl. 24. pag. 185. pl. 28. Feoffment What is a good feoffment what not pag. 92 93. pl. 5. Fine of lands c. What right in lands a Fine shall bar what not pag. 6. pl. 11. pag. 107. pl. 12. pag. 110. pl. 15. pag. 148. pl. 71. pag. 162. pl. 96. pag. 171 172. pl. 103. pag. 181. pl. 116. How a Fine shall inure whereno use limited pag. 67 68 69 70. pl. 13. Of what a Fine may be levied of what not pag. 107. pl. 12. Fine and Imprisonment For what offences a Court may Fine and Imprison pag. 30. pl. 5. pag. 34. pl. 8. pag. 93. pl. 5. What offences are Finable and what not pag. 146. pl. 63. pag. 165. pl. 97. 182. pl. 120. Forfeiture By what acts a lease for years or other estate shall be forfeited by what not