Statute sayes that the lands devised shall be devised into three parts and that is to be understood of such an estate as may be divided but so cannot a Seigniory For put the case that the Lord held by a Hauke the whole Mannor shall descend and cannot be divided and so de catalla Fellonum Fenner contra For it seems to me that the seignory passeth and so it shall be if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne he shall say infra feodum suum and in reputation amongst men a seigniory is a Mannor for if a man makes a feoffment of a Mannor with livery where he hath no Mannor yet shall it passe 7 E. 3. Where a Mannor passeth by the name of Knights Fee And as to the intirenes of the seigniory it is easily answered for although the rent were entire yet it may be severed for a Rent Charge is entire yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed Walmesley For the Plaintiff the Question is if the Rent passeth by the name of a Mannor to the Devisees If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughters daughter yet this is good because in common speaking she is so called but here the words are not apt nor used in common speaking viz. That Rent should be taken for a Mannor and therefore it is voyd as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference that where the words have any affinity or likelihood to the Mannor then it will passe by the name of a Mannor As if a man deviseth his house and land by the name of a Mannor it shall passe But here being but a service it is otherwise Gawdy cont For if it the Rent passe not nothing shall passe which is a hard construction on a Will For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church And in Brett and Rigdens Casea man devised a Mannor in which he had nothing and after purchased the Mannor the devise is good And in 26 H. 6. feoffment 12. Land will not passe by deed by the name of a house but land will passe by the name of a Carue and a Carue by the name of a Mannor and I hold that the Rent in this case will passe by the name of the Mannor for a Mannor does consist of Demesnes services and rent may be called a Mannor aswell as a Carue and and the King gives it by the name of a Mannor to the Devisor and that is the reason that the Devisor calls it a Mannor And if you grant to me an Advowson by the name of the Church and Rectory and I devise the Rectory the Advowson and the Church will passe by the name of Rectory And in Plouden 194. A man did let his house and great demesnes rendring Rent and did devise to another all his Farme there the Devisee shall have all the Rent and the Reversion also Michaelm 29. 30. Bishop of Lincolnes Case Rot. 1528. 2200. IN a quare impedit brought by the King against the Bishop of Lincoln and Leigh the Incumbent The Case was The Bishop had an Advowson in gross and presented J.S. who took a second Benefice with cure whereby the first became void and continued so untill Lapse fallen to the Queen and after the title of Lapse fallen to the Queen the Bishop presented one J. who was inducted and by reason of Recusancy to pay Tythes was deprived and by the Statute 26 H. 8. the Church became void ipso facto whereupon the Bishop presented one Leigh within six months and now the Queen would present Fenner This Case is the same with Bosherulls lately adjudged But the Court said that here was a privation for Recusancy and therefore it would make a difference And afterwards Pasch 30 Eliz. Walmesley For the Queen said That if a Lapse be fallen to the Ordinary if the Patron doth present before the Bishop hath Collated he ought to receive his Clerk but where it is divolved to the King the Patron by no means can defeate the King but he may remove his Clerke at his pleasure but if such Incumbent be present after such Lapse and die then the title of the King is gone and his time passed by the act of God but in our Case the avoydance which does oust the King from his Lapse is avoidance by reason of Recusancy to pay Tithes which is the proper act of the Incumbent as is a resignation and no such avoydance being by the act of the party himself shall oust the King of his Presentation for in the 2 H. 9. In annuitie against an Abbot who resigns the Writ shall not abate for then the Plaintiff shall never have a good Writ So in our case if the King be outed of his Lapse by such devises he shall never have a Lapse for every one will usurp upon the Kings Lapse and will presently resign or misdemesn himself whereby to avoid the Lapse And in the 18 Ed. 4. the 19. By Pigot A writ brought against a Prior shall not abate although the Prior be not deposed for it is his own fault Fenner This Lapse is given the King by his prerogative but on this Condition that he take it in due time for so is the nature of things lapsed for if after a title accrued to the King he suffer usurpation and the Incumbent die his Lapse is lost for the nature of the Lapse is such that it must be taken at its time and where the title of the King is limited to a time there he shall not have his prerogative for a prerogative cannot alter estates As if the King grant a seigniory in gross rendring Rent and the Tenant to the Lord dies without heir whereby the tenant escheates the seigniory is extinct and the Rent of the King is gone aswell as it is in the case of a Common person And so if the King have a Rent feck for life out of my land if I die he cannot distreine in my land for the arrerages as he may in my life time And so where the Statute gives Annum diem vastum to the King yet he shall not have it after the death of the Tenant for life so if the King reserve a Rent upon a Lease to an Estranger and the stranger enters in respect of the land whereby his entire rent is suspended now the condition as to the King also is suspended during that time for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir and after this Rent comes to the King and the Grantee dies the Rent shall cease during the minority of his heir so that by all these cases the
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
Declaration that the Defendant did promise to pay the 10 l. before Michaelmass in consideration the Plaintiff would forbeare to sue A. and that he hath forborn adhuc abstiâ—et and does not say that he made request as he ought to have done But the Court held it was well enough and there is a difference when the Defendant does promise to pay generally and at a certain day named there the Plaintiff ought precisely to alledge a request made in certain but when the Defendant promiseth to pay at a day certain he is bound to pay it at his perill without request and therefore to alledge quod saepius requisitus is sufficient without alledging a speciall request otherwise it is if the Defendant assume to pay it upon request for there it ought to be specially pleaded Another errour was because the consideration was that the Plaintiff should forbeare to sue A. and does not set forth for how long time for perhaps the forbearance was but for a quarter of an houre Peryam The consideration upon which an assumpsit is grounded ought to be of value but of what value is it where the forbearance is but for half an houre Fleming By his promising not to sue he is ingaged never to sue Peryam There is great difference between a promise not to sue and a promise to forbeare to sue for a promise not to sue excludes him from suing at all but a promise to forbeare to sue is only to forbeare for a time so that notwithstanding such promise he may sue after and it being not here exprest how long he will forbeare there is no consideration Walmesley There is a difference when the Defendant sâ—eaks the words and when the Plaintiff For if the Plaintiff sayes I will forbeare to sue you so you will promise to pay me and upon this the Defendant makes a promise accordingly the Plaintiff in this Case ought to forbear to sue him for ever But if the Defendant only speaks the words as here he does If you will forbeace to sue I will promise to pay you and the Plaintiff agrees and forbeares a certain time yet he may have his action afterward sed adjournatur Pasch 38. Eliz. Stroud against Willis in B. R. Rot. 66. IN Debt upon a Bond the Condition was If the Obligor shall well and truly pay the Rent or sum of 37 l. yearly at two feasts according to the tenure and true intent of certain articles of agreement indented and made between the Obligor and Obligee during the terme therein mentioned that then c. The Defend intâ—…eâ—ded that these articles ut supra contain that the said Stroud the Obligee Dumisit ad firmam tradidit to the Defendant Omnia talia doâ—…s tenementa terras in Parochia de Petminster de in quibus the sayd Stroud hath an estate for life by Copy according to the Customs of the Mannor Habendum to the Defendant for 21 years if Stroud should so long live rendring to the said Stroud during the said terme 37 〈◊〉 to be paid at the Castle of Canton and pleaded further that at the time of the making the said Articles the said Stroud had not any estate in any Lands houses c. in Petminster aforesaid for the term of his life or by Copy And upon this plea the Plaintiff demurred and Iudgment was given for the Plaintif in the Common Pleas and now was removed by Vrit of Errour And in this Case were two questions First If nothing passe by these Articles and so the reservation of the Rent is also voyd Secondly If the Obligation for payment of the said sum be also voyd and it was said that this could not be payable as a Rent upon the 14 H. 4. 4. 20 Ed. 4. 20 H. 6.23 for no Rent is reserved because there is no land out of which it can come and then the obligation is also discharged 2. Admitting the Rent is not vayable as Rent then whether it be an â—stoppell to plead as here is done against the Articles and therefore they took a difference where the recitall is generall and where not as if A. be bound to infeof me of all his lands of the part of his Mother and he hath no lands of the part of his Mother but otherwise if it were to infeof me of Black acre for he shall be estopped to say that he had not Black acre and so here he shall be estopped to say that there are no Articles but he may plead that he hath no land by Copie Cook 2. Rep. 33.6 Fenner When a man makes a voyd Lease rendring Rent the Reservation is also voyd because the land is the consideration and recompence for the Rent but where a man reserves Rent upon a grant or Lease which grant and Lease are good but the thing out of which the Rent is issuing cannot be charged with the Rent there the reservation is good as where a Rent is reserved out of an advowson or menaltie but in the Case at Bar the Lease did never begin and therefore Rent shall not then is it to be considered whether the Rent is to be payd by reason of the bond as a sum in gross or not and as to that matter the condition of the bond is to pay the Rent according to the true meaning of the Articles which is that if the Lessee have not the Land the Lessor shall not have the Rent therefore it shall not be paid as a sum in gross Popham cont But he agreed that the reservation was voyd for if no Land do pass no Rent is reserved and the reservation only does not make any estoppell and he took a difference upon the 14 Ed. 4. A man makes a Lease generally and the Lessee is bound to pay the Rent in such manner as it was reserved there such Rent ought to be demanded otherwise the Obligation is not forfeit and the demand ought to be upon the Land but if such Lessee for years do oblige himself to pay the Rent at a Collaterall place out of the land there he ought to pay it at his perill without any demand for now he payes it in another nature than as Rent so here if the payment had been limited at a place out of the Land the Obligor is bound to pay it although nothing were demised to him for by the bond he hath made it a sum in gross And it is altered from the nature of Rent upon the first reservation and he is bound also to pay the Rent or sum and if this be any of them he must pay it As to the second point he made this difference A his bound to J.S. to Release to him all his right which he hath in the Land descended to him on the part of his Mother there in Debt upon this bond the Obligee cannot plead that he hath no right descended to him on the part of his mother but must Release at his perill But if he binds
Iustices Cook being against it that this is not within the Statute but they agreed that if one bought corn and thereof made meale or oat-meale and sold it that this was within the Statute for that is usuall and is no alteration and therefore remaines the same corn but starch is altered by a trade or science which is a mysterie and so it is not the same thing that was sold But Cook Chief Iustice contra And cited one Franklinghams Cass Michaelm 39 40 Eliza. in B. R. where one bought Barley and because it was of such Quantity that he could not make Malt of it in his own house he made Malt thereof in anothers house by his own servants And it was resolved First That the conversion of corn into Malt in his own house with an intent to sell it was within the Statute unless there be a saving for it Secondly Forasmuch as it was in anothers house he is out of the proviso and so within the penalty of the Statute And in Pasch 42 Eliz. between Reynolds and Gerret That if a Miller buyes corne and grinds it and sells it within his house this is within the Statute And in the Checquer Chamber in a writ of Errour there between Baron and Brise adjudged there that a Coster-monger who buyes Pippins to sell them again was out of this Statute because they are necessary victuall And divers exceptions were taken to the Information viz. where he saith Ligamen anglicè Starch whereas there is no such word but it is Ligumen and the anglicè will not help this mistake Cook 10. Rep. 134. and this exception was taken by Iustice Winch. But Warburton Iustice cont for Starch is a thing newly devised and there is no Latin word for it and therefore the anglice there is good Foster Iustice took an exception because the information concluded contra formam Statuti whereas it ought to have been contra formam Statutorum For this Statute was of force untill the 8 Elizab. and then was determined untill the 13th of Elizabeth and then it was revived so there are two Statutes but 't was agreed that where a Statute continued de tempore in Tempus and was never discontinued nor determined there it shall be said contra formam Statuti and this diversity hath been twice adjudged upon this very Statute viz. 9 Eliz. in Palmers Case and in the 35 Eliz. Warburton cont for the Information doth intend only the Statute of 5 Ed. 6 and 14. and he did recite the words thereof in his Information also this Statute only makes the offence and declares the manner of it and no other Statute makes any addition to it or increaseth the penalty but only revives it to endure in perpetuum But if a Statute doth prohibit a thing and another Statute gives a penalty there upon Information upon the penalty both Statutes ought to be recited and to conclude contra formam Statutorum vid. Commentar 206. Morgans Case And so the Statute of Vsury 37 H. 8. is revived the 13th Eliz. and an addition made to it there such inclusion ought to be contra formam Statutorum but where the Statute is only revived it is otherwise as the Statute of Perjury 5 Eliz. was continued untill the 14 Eliz. and then it was determined and 27 Eliz. was revived yet all informations upon that Statute are contra formam Statuti 5 Elizab. Cook This is no good exception and cited Talbot and Sheldens Case Hillar 33 Eliz. who were indited for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error the Iudgment was reversed because the penalty was demanded for the 10th Eliz. made the Offence and the 23 Eliz. gave the penalty but if the Information be for the offence only there it had been good See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good because the best shall be taken for the King Vid. 5 H. 7. 17. 8 Ed. 3.47 ◠Pasch 10 Jacob. VValler against the Deane and Chapter of Norwich IN an action of Covenant the Plaintiff declared on a Lease made from the Deane the Case was thus The Deane in the 38 Eliz. had made a Lease for 99. years to one Themilthorpe and then in the 42 Eliz. made a Lease to the Plaintiff for three lives rendring Rent with a Letter of Attorney to make livery and a Covenant to save the Plaintiff harmelesse against Themilthorpe afterwards the Attorney makes livery sc after Michaelmass which was a Rent day and he being disturbed by Themilthorpe brought this Covenant And two points were moved in the Case First Inasmuch as the Lease was voyd to Walter whether that the Covenant was voyd also Secondly If the livery made after the Rent day be voyd Hoghton Serjeant If the Covenant depended on the interest of the Lease as a Covenant to repay the thing devised or to pay rent these had been voyd because the Lease it self is voyd for they do immediatly depend upon the Lease but where the Covenant is for a thing collaterall as a Covenant that the Lessor is owner at the time of the Lease or that the Lessee shall enjoy it or shall be discharged and saved harmeless these Covenants being collaterall to the Lease and interest are good although the Lease be voyd and the 43 Ed. 3. proves this where a Lease was made by a Baron and Feme a Covenant by them shall not binde the wife contra where the Covenant concernes the interest as payment of Rent c. Also the Covenant was broken immediatly upon the sealing of the Lease to the Plaintiff And as to the second point he held it was a good livery because no time was limited in the Letter of Attorney Dodderidge Serjeant The Covenant is voyd because the Lease is voyd but contra if it had been a Covenant to enjoy for three lives and he relyed much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols cont The Covenant is good and yet in force for when an estate is created in which is implyed a Covenant in Law there if the estate be voyd the Covenant is voyd also but when there is an express Covenant in Deed there it is otherwise although the Lease be voyd or voydable as if he Covenant that the Lessee shall enjoy during the terme and the lessee resign yet is the Covenant good although the terme is gone And as to the second point The livery is good for untill the livery be made the lessor shall retaine his land and no Rent is due vid. Commentat 423. for by intendment the possession is better than the Rent And Cook agreed to this And the Iustices agreed with Nicholls Trinit 10 Jacob Barnes Case TEnant for life the Reversion in the Lessor a Formedon is brought against the tenant for life who prays in ayde of him in the remainder for life without him in
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
Oathes and they who had eaten were fined five pounds and committed to the Fleet. And some of the Iustices did doubt if the Verdict were good and upon many Presidents had it was adjudged good and they relyed much on the President of the 12 H. 8. Rot. 102. where one of the Iury did eat before they were agreed and yet the Verdict was good And after a Writ of Error was brought and the Iudgment affirmed 20 H. 7.3 13 H 4.13 Pasch 27 Eliz. A Man gives land to I.S. in the Premisses Habendum to him and three others for their lives Et eorum diutius viventium successive The question was what Estate I.S. had and whether there be any occupancy in the case Coke hâ—ld that I.S. had but an Estate for his own life because he cannot have an Estate for his own and anothers life where the interest of both begin at one instant and the Habendum by no means can make a Remainder as if a Lease be made to one for life habendum to him and his first begotten Son this makes no remainder to the Son although some have held to the contrary so of a Lease to one for years habendum to him and another does not make any remainder to the other also the word Successive will not make a remainder as in the 30 H 8. Br. Joynt-tenant 53. Also one cannot have an Estate for life and for anothers life also in present interest for the greater doth drowne the lesse but if the greater be present and the other future as a Lease to him for life the remainder to him for anothers life or a Lease for life and three years over this is good but if a Lease be made for life and for years the Lease for years is drowned 19 Ed. 3. Surrender 8. where Tenant for life of a Mannor did surrender to him in the Reversion c. Gawdy If a Lease be made to one for life and so long as another shall live quaere what Estate he hath And as to the second point certainly there cannot be an Occupancy for if the Estate be void the Limitation is void also the Occupancy is pleaded Que un tiel and does not say Claymant comme occupant c. for if a man comes a hawking on Land he is not an Occupant and the Book of Entries is that he ought to plead it Clinch Iustice every Occupant ought to be in possession at the time of the death of the Tenant for otherwise the Law casts the Interest upon him in the Reversion But Gawdy and Chute denied this and after viz. 29 Eliz. the Case was moved again by Popham and he made three points 1. If the other three had a joynt Estate 2. If they had a Remainder 3. If there be an Occupancy And he was of opinion that they had nothing by the habendum for they were not named in the Premisses they cannot have a Remainder for the incertainty but if those three had been named in the Premisses habendum to them Successive as they had been named there they had a Remainder for there the certainty appeared 30 H. 8.8 Dyer 361. Also there can be no Occupancy during the lives of the other three but he agreed to the Book of the 18 Ed. 3.34 that a Lease for life the Remainder to him for anothers life was good And that if a Lease be made to I.S. and a Monk it is void to the Monk and the other hath all and that during the life of the Monk there can be no Occupancy And if I make a Lease to I. S. for the life of a Monk it is a good Lease And till the same terme Iudgment was given that they could take nothing in possession joyntly nor by way of Remainder and that no Occupancy could be in the Case and that I.S. had Estate for terme of his owne life onely Stile against Miles STile Parson did suggest that the Land was parcell of the Glebe of the Parsonage and that the said Stile did let the said Glebe being foure and twenty acres to Miles for years rendring thirteen shillings foure pence Rent and in a Prohibition the case was if Tythes were to be paid And Wray said that although it was parcell of the Glebe yet when it was leased out Tythes ought to be paid and if no Rent be reserved Tythes ought to be paid without question but there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tythes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Iustices took no regard of those words But Godfrey said that those words would discharge him but Wray on the contrary for that this Tythe is not issuing out of the Land but is a thing collaterall and if a Parson do release to his Parishioners all demands in the Land yet Tythes are not thereby released for such generall words will not extend to such a speciall matter And in the 15 of R. 2. Avowry 99. one held of another by ten shillings for all Services Suits and Demands yet the Tenant shall pay Relief because it is incident to the Rent and 8 Ed. 3.26 Mich. 29 Eliz. Rot. 2574. or 2375. Stephens against Layton IN an Ejectione firmae upon issue joyned the case in a speciall Verdict was that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife primogenito habend to them diutius eorum viventi successive for terme of their lives and then the Husband and Wife had issue a Daughter The question was if the Daughter had any Estate And three Iustices held that she had no Estate because she was not in being at the time of the Lease made and a person that is not in esse cannot take any thing by Livery for Livery ought to carry a present Estate where the Estate is not limited by way of Remainder 18 Ed. 3.3 17 Ed. 3.29 30. adjudged but it was said at the Bar that if the Estate had been conveyed by way of use it is otherwise And the said Iustices held clearly that the word Successive would not alter the case And the case was further found that William Beale and Sampson Beale did covenant with one Lendall that if Tho. Beale Son of Sampson Beale should marry Margaret the Daughter of the said Lendall if she would assent and also that the said Lendall did covenant that the said Margaret should marry the said Thomas if he would assent Pro quo quidem Maritagio sic tum postea habendo the said William Beale covenanted that he would make or cause to be made an Estate to the said Thomas and Margaret and to the Heirs of their bodies for the Ioynture of the said Margaret and it was further found that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Sampson Beale and William Beale
Deforceants Qui quidem finis fuit ad usus intentiones in Indentura praedict specificat by force whereof the said Thomas and Margaret were seised but the Iury found nothing of the Marriage whether it took effect or not and further found that William Pile and Philip his Wife had Primogenitam prolem a Daughter and then died and then Thomas Beale died and his Wife inter married with one Lamock who made a Lease to the Plaintiff who was ousted by Layton the Lessee of Philip Pile And hereupon it was moved by Gawdy Serjeant that inasmuch as the Marriage took no effect between Thomas and Margaret the uses cannot be in them but the Fine shall be to the use of the Conusor which was opposed by Walshey Serjeant who said that it was not like a Covenant in consideration of marriage to stand seised of such a Mannor for there if the considerations faile the uses faile also for the consideration onely is the sole and entire cause that makes the uses to arise but in this case the consideration is not materiall but the Fine effectuall without consideration of money paid and if a Feoffment be made to the use of I S. although no money be paid yet I.S. shall have the Land Windham The Cases differ much for here the Fine is not exprest to be levied to the use of Thomas and Margaret but to the uses and consents contained in the Indenture but he said that the common course was to limit the use to the Conusor untill the Marriage took effect and after as before was urged by Walmsley And the Iury found that Thomas and Margaret were seised accordingly Winham They are no Iudges to determine doubts in Law Rhodes Iustice Herein they have taken notice but of the matter in fact and he affirmed the difference put by Walmsley Windham The case de matrimon praelocut is stronger then this Case for the secret intention shall reduce the Land if the marriage take no effect And after the Court being full they all agreed to the difference put by Walmsley and also that the sale afterwards was not good by reason of this Limitation And Iudgment was given for the Plaintiff accordingly Hil. 26 Eliz. Britman against Stanford UPon a speciall Verdict the Case was A House Stable and Hay-loft were demised to one for yeares rendring foure and twenty pounds Rent per annum and foure and twenty pounds for an In-come quarterly by equall portions upon Condition that if any of the Rent or In-come be behind at the time it ought to be paid that then the Lease shall cease and determine The Lessee makes a Lease of the Stable to the Lessor and after part of the In-come is behind and unpaid and the Lessor enters for the Condition broken into the house And if this was a good entry was the question And Iudgment was given that the Condition was gone and void by reason of the Lessors taking part of the thing demised because a Condition is speciall and intire and not to be severed And in this Case Fenner said that a Grantee of a Reversion cannot take benefit of a collaterall Condition as in case of a grosse summe but in case of a Rent waste c. it was otherwise Mich. 29 and 30 Eliz. Rot. 2529. Doctor Lewin against Munday IN a Replevin by Lewin against Munday it was found by Verdict That a Fine was levied the 14th of Elizabeth between Lowla and Rutland Plaintiffs and Fook and seven others Deforceants of the Mannors of Gollochall whereby the Defendant did grant the Mannor to the Plaintiffs and the Heires of one of them who granted and rendred twenty pounds per annum to the said Fook and his Heires with a Distresse for non-payment Fook seised of the Rent makes a grant to a stranger in this manner That whereas a Fine was levied the 14. of Eliz. of the Mannor aforesaid and divers other lands c. and mistook the Mannor for he put the names of the Conusees in place of the Conusors and so e contra and that it was levied of the Mannor and divers other lands whereas the Fine was levied of the Mannor solely and that he did grant the said Rent granted unto him to the said stranger and his Heires And this grant was adjudged by Anderson who said that if one recite that he hath ten pounds of the grant of I.S. whereas it was of the grant of I.D. yet it is good Hil. 30 Eliz. Rot. 17.32 Hunts Case HUnt brought an Action on the Case against Torney and declared that he being seised of lands in Swainton in Norf. in fee Secundum consuetudinem Mannerii the Defendant did promise to the Plaintiff in consideration the Plaintiff would permit him to occupy the same for the space of five years that he would pay him at the Feast of All-Saints next coming and so yearly twenty pounds at the Feasts of the Annunciation and All-Saints by equall Portions during the terme aforesaid and alledged that he had injoyed the lands by the space of a year and half and so brought his Action on the Assumpsit And Anderson was of opinion that untill the five years were expired no money was to be paid because the Contract was intire But all the other Iustices on the contrary for the consideration was to pay a certain summe yearly which made severall duties and so severall Actions For by Periam if a man be bound to pay I.S. twenty pounds in manner and forme following viz. ten pounds at such a day and ten pounds at such a day in this case the Obligee cannot have an Action of Debt for the first before the day of payment of the last ten pounds be past because the duty in it self is an intire duty but if a man be bound to pay I.S. ten pounds at such a day and ten pounds at such a day here the Obligee shall have his Action for the first because the duty was in it self severall Anderson at another day said that if a man makes a Lease for ten years rendring Rent in that case he may have an Assumpsit for the Rent due every year So if I covenant with you to build you twenty houses the Covenantee shall have a severall action for each default Periam That Case of the Assumpsit is much to the purpose for an Assumpsit is in the nature of a Covenant and is indeed a Covenant without writing Rhodes cited this Case Gascoigne promised in consideration of a marriage of his Daughter with such a mans Son to give seven hundred marks and to pay a hundred marks every year untill all the sunun were paid and it was held clearly in this Court that a severall action might be brought upon every hindred pounds but because the action was brought for all the seven hundred marks before the seven years were out Iudgment was given against him for if a man be bound in a Bond of a hundred pounds to pay twenty pounds for so many years he
was no apparance unlesse there were a Record But the Case in Court was ut supra Hil. 30. Eliz. IN an Ejectment by Dorothy Michell against Edmund Dunton the Case was A woman makes a Lease for years rendring Rent with a Covenant that the Lessee should repaire the house with other Covenants and then devised the same lands to the same Lessee for divers years more yeilding the like rent and under such Covenants as were in the first Lease the Remainder over in fee and dies and then the first Lease for years does expire and the Lessee continues in by force of the second Lease by vesture of the devise and repaires not the houses so that if the first Lease had been in being he had broke the Covenant If this shall be such condition as he in the remainder may enter was the question Shuttleworth It is a Condition for he cannot have a Covenant and then it shall be intended that iâ— is conditionall But by all the Court There appears no such intent for it appears that he holds under like Covenants Anderson The nature of a Covenant is to have an Action but not an entry and therefore there shall be no entry Shuttleworth To what end then serves these words under like Covenants Periam They are void And at last it was resolved by all the Iustices that the Will expressing that the first Lessee should have the Land observing the first Covenants it shall not be now taken to be a Condition by any intent that may be collected out of the Will for a Covenant and Condition are of severall natures the one giving Action the other entry and here the intent of the Will was that although the Covenants were not performed yet the Lessee should not forfeit his terme but is onely bound to such paine as he was at the beginning and that was to render damages in an Action of Covenant And Iudgment was given that the Plaintiff should be barred Mich 29 and 30 Eliz. Rot. 2449. THe Earle of Kent brought an Action of Debt upon a Bond against William Bryan which was indorsed with a Condition That if the Defendant did permit the Plaintiff his Executors or Assignes not onely to thresh Corn in the Defendants Barn but also to carry it away from time to time and at all times hereafter convenient with free egresse and regresse or else to pay eight pounds upon request c. that then c. And in truth the Defendant permitted the Corn to lye there two years in which time the Mise and Rats had devoured a great part of it and then the Defendant thresht it and the Earle therefore brought this Action And upon Demur it seemed to Walmsley that there was no forfeiture of the Bond because the Earl took not the Corn away in convenient time for convenient time is such as shall prejudice no person Quod fuit negatum per Justitiar and here is great prejudice to the Detendant because the Plaintiff did not carry away the Corn And he put many cases where things ought to be done in convenient time as in the 21 Ed. 4. where an Arbitrement ought to be performed in convenient time But the opinion of the Court was that he might come in covenient time although he comes long after and the words are not within convenient time Windham said That if the words had been within convenient time it would have made a difference Anderson If the words of the Condition had been that he should suffer the Plaintiff in time convenient to come and thresh and take away his Corn then perhaps he ought to send within a year according to Walmsleys saying but the words here are at all convenient times and that day that the Servant came was a convenient day to thresh and carry away and the words At all convenient times shall be construed that at any time when it pleaseth the Earl he may come unlesse it be night or Sabboth day and if the word convenient had not been mentioned then by the words from time to time and at all times after then the Earl may come at any time either in the day or night and that a hundred years after as he pleaseth and then the word convenient does restrain him that he cannot come but in the working daies but does not restrain any time in which he shall come but onely in conveniency of time which is at times of labouring and watching And so was the opinion of the Court ut supra An Action of Debt was brought upon a Lease for years the Defendant pleaded Nihil debet per patriam and did intend to give in evidence an entry of the Plaintiff before any Rent behind And by the Court he could not do it for it is contrary to the issue Hil. 30 Eliz. Rot. 904. Between Spittle and Davis IN a Replevin the case was One Turk seised of lands in fee devised parcell thereof to his eldest Son in taile and the other parcell to his youngest Son in fee. Provided and his intent was that if any of his Sons or any of their Issues do alien or demise any of the said lands before any of them comes to the age of thirty years that then the other shall have the Estate and does not limit what Estate and then one of the Sons makes a Lease for years before such age whereupon the other enters and before he comes to the age of thirty years he aliens that part into which he made entry and the other brother being the eldest enters and makes a Lease to Spittle the Plaintiff for three years and Davies by commandment of the younger brother enters and takes the house Damage-feasant and Spittle brought a Replevin And upon Demur it seemed to the Court that this was a limitation and by vertue of the Will the Estate devised to them untill they aliened and upon the alienation to go to the other upon such alienation the land is discharged of all limitations for otherwise the land upon one alienation shall go to one and upon another alienation shall go back again and so to and fro ad infinitum vide Dyer 14. 29. And afterwards all the Iudges agreed that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the Will And Iudgment was given accordingly Trin. 27 Eliz. Rot. 190. Carter against Lowe IN an Ejectment the Case was A Termor devised his terme to I.S. and made his Wife Executrix and died the Woman enters and proves the Will and takes Husband who takes a Lease of the Lessor and after the Devisee enters and grants all his Estate to the Husband and wife and herein two questions were moved 1. If by this acceptance of the new Lease by the Husband the term which the woman had to another use viz. to the use of the Testator shall be deemed a surrender And the opinion of the Court was clearly without argument that it
that it was enacted by the Major of London and common Councel that if any Citizen takes the Son of an Alien to be his Apprentice that the Covenants and Obligations shall be void and he shewed that he was the Son of an Alien and became an Apprentice to the Plaintiff who is a Citizen and made the Covenants with him for his Apprentiship And demanded Iudgment And it was held no Bar for notwithstanding the Act the Covenant is good for it is the Act of the Defendant although the Act of the Common Councell be against it but the said Act may inflict punishment on any Citizen that breakes it And Iudgment was given for the Plaintiff Trin. 41 Eliz. in B. R. Knotts against Everstead LEssee for life the remainder for life the remainder in taile he in the reversion who had the fee does enter and enfooffs the Lessee for years and adjudged that by this Feoffment Nihil operatur Popham said that he who hath a term cannot license another that hath nothing in the land to make a Feoffment for he who hath the Freehold wants nothing but possession to make a good Livery but in this case he who makes the Livery had not the Freehold and therefore the license is void But Tanfeild said that if Lessee for life gives leave to a stranger to make Livery it is void but if he consent that the stranger shall make a Feoffment it shall amount to a Disseisin and the Feoffment is good Which was denied by the Court. And Clench said if a Lessee for ten years makes a Lease for one year to him in reversion there he in the reversion who hath the land for a year may make a Feoffment to the Lessee for ten years and it is good Trin. 41 Eliz. Moyle against Mayle MOyle brought an Action of Waste against Mayle and declared that he had leased to him a Mannor and a Warren and that he had destroyed a Cony-borough and subverted it and assigned otherwastes in cutting down certain Thornes Williams The Action of waste will well lye and said that a Warren consisted or two things of a place of Game and of liberty and to prove that a waste did lye for a liberty he cited the Statute of Magna Charta Cap. 5. in which a Warren is intended also the Statute of Marlebridge cap. 24. and the Statute Articuli super Chartas cap. 18. by which Statutes it is evident that a waste does lie for Warrens and a Warren is more then a liberty for a Writ lies Quare warrenam suam intravit and by the 12 H. 8. if Lessee of a Warren does break the Pale it is a waste also if Lessee of a Pigeon-house stop the holes so that the Pigeons cannot build a waste doth lye as it hath been adjudged Also if Lessee of a Hop yard ploweth it up and sowes Graine there it is waste as it hath been adjudged Also the breaking a Weare is waste and so of the Banks of a Fish-pond so that the water and fish run out To all which cases the Court agreed except to the principal For the Court held it was not waste to destroy Cony-boroughs for wast will not lye for Conies because a man hath not inheritance in them and a man can have no property in them but only possession and although by a speciall Law Keepers are to preserve the land they keep in the same plight they found it yet thiâ— does not bind every Lessee of land Walmsley The subversion of Cony-boroughs is not waste and it was usuall to have a waste against those who made holes in land but not against those who stop them up because therby the land is made better And it was said that to dig for stones was a waste unlesse in an ancient Quarry although the Lessee fill it up againe And Walmsley said that in Lancashire it is waste to dig Marle unlesse it be imployed upon the land And said it was not waste to cut thornes unlesse they be in a Wood stubbed and digged up by the roots but if they grow upon the land then they may be stubbed and it is no waste But to cut down Thorne-trees that have stood sixty or a hundred years it is waste Hil. 32 Eliz. in B. R. Sir George Farmer against Brook IN an Action of the Case the Plaintiff claimeth such a Custome in the Town of B. that he and his Ancestors had a bake-house within the Town to bake white bread and houshold-bread and that he had served all the Town with bread that no other could use the Trade without his license and that the Defendant had used the Trade without his license upon which the Defendant demuâ—'d Morgan This is a good Prescription and it is reason that a Prescription should bind a stranger vide 11 H. 6.13 A. prescribed to have a Market and that none should sel but in a Stall which A. had made and was to pay for the Stall and held there a good Prescription And the Arch-bishop of Yorks Case in the Register 186. is a good case A man prescribed that he had a Mill and he found a horse to carry the Corn thither and that therfore they ought to grind there and because they did not he brough his Action on the case Buckley contra It cannot be intended to have any commencement by any Tenure 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny adjudged not good and the case of the Arch-bishop was good because he had it ratione dominii tenuri And adjudged the principall case that the action will not lye 23 Eliz. in C. B. Farrington against Charnock KIng Henry the 8 granted Turbariam suam in D. at Farrington rendring rent sur 21. years and then the Lessee imployed part of it in arable land and relinquisht part of it in Turbary and then Q. Mary grants Totam illam TurbariaÌ„ before demised to Farrington and adjudged that that passed only which was Turbary and the other part that was converted into Tillage did not passe Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother and the Error assigned was that there was no warrant of Attorney of the Record And it was agreed by the Bar and Bench and adjudged error But the great point was if the Plaintiff could have a writ of Error The Case was Henry the Father had Henry his Son and three Daughters by one Venter and the Plaintiff by another Venter and died seised of the land intailed to him and the Heirs Males of his body Henry enters and makes a Feoffment the Feoffee is impleaded and voucheth Henry who looseth by default in the recovery and dies without issue and whether the Daughters which are Heirs generall or the Plaintiff which is Heir in tail shall have the Error Gawdy and Baker for the Defendant who said
that the Plaintiff could not have the Error but the Daughters who were the Heirs to Henry for an Action alwaies discends according to the right of land and it seems that the Heir in Burrow English shall have Error or Attaint and not the Heir at the Common Law which was agreed by all on both sides but it was said that this varies much from the present case for two reasons One because he came in as Vouchee which is to recover a Fee-simple and he shall render a Fee-simple in value which is discendable to the Heirs at the Common Law Secondly he hath no Estate-tail Bromley Solicitor and Plowden contra and laid this ground that in all cases where a recovery is had against one by erroneous processe or false verdict he which is grieved shall have redresse of it although he be not party or privy to the first Iudgment and therefore at the Common Law if a Recovery be had against Tenant for life he in the Reversion shall have Error of Attaint after his death and now by the Statute of R 2. in his life so in a Precipe if the Tenant vouches and the Vouchee looseth by default the Tenant shall have Error for the Iudgment was against him and he looseth his term and in the 44 Ed 4.6 in a Trespasse of Battery against two one pleads and it is found against him and the plea of the other not determined damages by the principall Verdict is given against them both which if they be excessive the other shall have an Attaint And Bromley said there could not be a case put but where he that hath the losse by the recovery should have also the remedy and Baker cited 9. H. 7.24.6 that if a Recovery be had against a man that hath land on the part of the Mother and he dies without issue the Heir of the part of the Father shall have the Error But Bromley and Plowden denied this case and that 3 H 4.9 it was adjudged to the contrary And Wray said to Baker that he ought not much to rely on that case for it was not Law and said that if Tenant for life makes a Feoffment and a Recovery is had against the Feoffee the first Lessor shall not avoid this Bromley there is no use for he may enter by forfeiture but in our case of whatsoever estate it be at the time of the recovery the right of the Estate-tail is bound and therefore it is reason that the Heir in tail shall avoid it Jeffrey of the same opinion and cited 17. Ass A Conusor makes a Feoffment and then execution is sued against the Feoffee by erroneous processe the Feoffee shall have the Writ of Error although he be not party to the first Record but the reason is because of his interest in the land And Bromley and Plowden said further that notwithstanding the Feoffee recovers against the Vouchee and the Vouchee recover over the land yet this recovery shall go to the Estate-tail And Iudgment was given for the Plaintiff Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry and after an Execution is sued against him at the suit of a common person and he is taken by force thereof and after he takes a Habeas Corpus out of the Kings Bench and Coke prayed that he might be discharged of this execution for where a man is attaint of Felony he hath neither Goods nor Lands and his body is at the Kings disposall and so is not subject to the execution of a common person 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary For although he be attaint of Felony yet may he be in execution for his own offence shall not aid him and so was it in Crofs case in the Common Pleas where a man being attaint of Felony was taken in execution at the suit of a common person and he escaped out of Prison and an escape was brought against the Sheriffs of London and a Recovery against him And at last by advise of the Court because he was indebted to many persons and to discharge himself from his Creditors intended to have a pardon for his life and so deceive them therefore he was committed to the Marshalsey upon this execution Trin. 42 Eliz. Malloy against Jennings Rot. 1037. IN a Replevin the Case was A man seised of land in fee is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff and then the Recognizance is forfeit and the Conuzee sues out a Scire facias against the Conuzor before the Deed was inrolled and had Iudgment to have Execution And the question was if the Bargainor was a sufficient Tenant against whom the Execution was sued Williams Serjeant The Bargainor was Tenant at the time of the Scire facias before inrolement and although it was inrolled after shall have relation to the first livery to prevent any grant or charge And if an Action be brought against an Executor as in his own wrong and the Suit depending he takes Letters of Administration this shall not abate the Writ So in our case the Bargainor was seised of the land when the Scrie facias was brought and if a man makes a Lease for life rendring Rent and then the Lessor bargains and sells the Reversion and before the Inrolement the Rent is behind and the Bargainer demands the Rent which was not paid and then the Deed is inrolled yet he cannot enter for the forfeiture which I have seen adjudged in the 28 H. 8. Dyer Disseisee of one acre makes a Release to the Disseisor of all his lands and delivers it as an Escroll to be delivered to the Disseisor and then he disseiseth him of another acre and then the Deed is delivered to the Disseisor yet the right in the second acre shall not passe And he much rolled on Sir Richard Brochets case 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seised the first day of May and it hapned that one Corbet had sold him land by Indenture the 24. day of April but the Deed was not inrolled untill the 24. day of May after And the question was if the Conuzor was bound to convey these lands or not and adjudged that he was not for inasmuch as the Deed was not inrolled the ffrst day of May he was not seised and great mischief would ensue if the Law should be otherwise for no man will know against whom to bring his Action for a Bargain and Sale before Inrolement may be done secretly Herne Serjeant The Bargainee is seised before Inrolement and by the Statute of 5 Eliz. which wills that none shall convert land used to tillage unlesse he puts other land to tillage within six months yet none will say that it is a breach of the Statute although Pasture be presently converted to tillage and he cited Chilburns cafe 6 Eliz. Dyer 229. that proves that
reason appears that the nature of the Lapse is to be taken hac vice and the King must take it then or not at all and where it is objected that by this means every Lapse may be taken from the King I conceive that far greater inconvenience will be to the Patrons on the other side for when a Lapse is devolded to the King and a stranger presents if then the true Patron may not present untill the death of such Incumbent perhaps the Incumbent will resign or be deprived and a stranger shall be presented again and again in like manner and so by this means the Patron shall never continue his advowson for by the Couin between the stranger and the neglect of the King to take his Lapse the Incâ—mbent shall never die And afterwards in this term it was adjudged that such usurpation shall not take away the Lapse from the King because the avoydance accrued by the act of the Incumbent Cook ib. 7.27 a. Hillary 29 Eliz. Lassell's Case LAssell brought an action of debt upon an obligation the Defendant pleads that the condition was that he should personally appear before the Iustices and set forth how he was taken by a Latitat by the Plaintiff who was Shiriff who took this obligation upon his deliverance and urged the Statute of 23 H. 6. and said that the obligation was not according to the Statute And by the Opinion of three Iustices Anderson being absent If it were in such an action wherein a man may appear by Atturney then it is void And the Plaintiff shewed a Iudgment given in the Kings Bench wherein in such case Iudgment was given for the Sheriffs and it was between Seekford and Cutts 27. 28. Eliz. Rot. 373. And the next Terme it was moved again Anderson The Obligation is voyd for when an express form is limited by the Statute no variance ought to be from it But the other three Iustices were against him for they held that he ought to appear in his proper person in case of a Latitat Anderson I deny that for Latitats have not been of above 60 years continuance Vid. Cook lib. 10. Beufages Case and his first Institutes 225. a. Pasch 25 Eliz. Kayre against Deurat in C. B. Rot. 603. IN a Waste the Plaintiff declared how the Defendant was seized in Fee and made a Feoffment to the use of himself for life the remainder to the Plaintiff in Fee after which he committed waste The Tenant said that he was seized in Fee without that he made a Feoffment as the Plaintiff declared and upon issue joyned it was found that the Defendant was seized in Fee and that he made a Feoffment to the use of himself for life of J.S. without impeachment of waste the remainder ut supra and whether this was the Feoffment which the Plaintiff alledged they prayed the advice of the Court. Anderson Chief Justice If the impeachment of waste be not part of their issue then the Verdict is voyd for that point and that which is found more than their issue is voyd 33 H. 6. the Defendant pleaded that he was not Tenant of the Free-hold and the Iury found that he held joyntly with another there the Plaintiff shall recover And then at another day it was said by the Iustices that the Iury had found such an estate as was alledged by the Plaintiff and although that they further found this priviledge to be dispunisht of waste which upon the matter proves that the Plaintiff hath no cause of action yet because the Tenant may choose whether he would take hold of this priviledge or not the Iury cannot finde a thing that is out of their Verdict and whereof the Defendant will not take advantage by pleading and for this cause their Verdict was voyd 7 H. 6.33 21 H. 7.12 where one pleaded in Bar a Feoffment and traversed the Feoffment and hereupon they were at issue and the Iury found that he had enfeoffed the Tenant after the Fine levyed to the Plaintiff this cannot be found because it is out of their issue 31 Assi 12. and Iudgement was given for the Demandant Hillar 29 Eliz. Michell against Donton in C. B. Rot 639. IN an Ejectment a man makes a Lease rendring Rent with a Covenant that the Lessee shall repair the houses with other Covenants and Conditions of re-entry for not performance and then he devised the same land to the same Lessee for divers years after the first years expired yielding the same Rent and under the same Covenants as in the former Lease and he devised the remainder in fee to the Plaintiff and the first Lease expires and the Defendant being possest by force of his second Lease doth not repair the houses and if the Plaintiff might enter was the question Shuttleworth In as much as he devised the land under the same Covenants as the first Lease was and the first was with Covenants and Conditions the second shall be so also the rather because he deviseth the remainder over so that the Devisee cannot take advantage of the Covenants but of the Conditions he may and the second Lease is conditional But the whole Court was against him Shuttleworth To what purpose then are these words in the Devise Under the same Covenants Periam They shall be voyd And by all the Iustices the intent of the Will was not that the Lease should be conditional for Covenants and Conditions differ much for the one gives an action but not the other but the intent was that he should perform the Covenants upon pain to render damages in a Writ of Covenant Bottenham against Herlakenden 29 30 Eliz. in C. B. Rot. 1620. HErlakenden was seized of land and devised the same to the Plaintiff for years the remainder to his wife for life Proviso that the Plaintiff should pay to the woman 20 l. per annum and if he failed of his payment c. wherefore the woman entred and if this shall be called reservation or reversion was the question Anderson A man cannot make a Reservation on a Devise Periam A man may to himself and his heirs but not to a stranger Anderson Every Devisee is in in the sier by the Devisor and why shall not this then be a reservation to the Devisor and a grant of the reversion to the woman Gawdy Wherefore cannot a man devise land reserving rent when by the Statute 32 H. 8. he may devise at his pleasure Periam Because his pleasure must correspond with the Law Anderson If I devise land to another reserving rent to me and my heirs and then devise the reversion he shall have the rent as incident to the reversion and the Iudges were divided wherefore c. 29 Eliz. Glover against Pipe in B. R. Rot. 838. IN debt upon a Bond the Condition was that where Glover the Plaintiff had a Copyhold of inheritance and had leased it to the Defendant if the Defendant should not commit any manner of waste and
not a good Feoffment for White-acre Michaelm 29. 30. Eliz. Knowles against Powell in Scaccario THe Queen seized in Fee made a Lease for years to one who was out-lawed at the time of the Lease rendring rent and after he was out-lawed again and before seizure comes out the general pardon of all Goods and Chattels forfeited and in this Case it was agreed that a man out-lawed was capable of a Lease from the Queen as Farmer to the Queen And Manwood said that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry and it was also agreed that a man out-lawed and pardoned had property in his goods Egerton Sollicitor said that in the 4 Eliz. it was adjudged in the Common Pleas that if the Queen made a Lease under the Exchequer-seal to begin immediatly after forfeiture surrender or expiration of a former term and the Lessee is out-lawed shat the second Lease shall not commence for it is a Royal forfeiture Trinit 41 Elizab. Ferrers against Borough in B. R. Rot. 185. UPon a special Verdict the Case was thus A man makes a Lease for years upon condition that if he paid 10 l. before Michaelmas that it should be lawfull for him to re-enter and before Michaelmas he lets the land to another by Indenture for years and then performed the Condition and entred the first Lessee brought a Trespass and it was adjudged that it does not lye Trinit 35 Elizab. Lambert against Austen in B. R. Rot. 185. IN a Replevin the Case was thus A man seized of land in Fee grants a Rent-charge out of it to A. for life with a Clause of Distress and then makes a Lease to B. for years and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. untill the 18 of Eliz. and the Grantee makes the Defendant his Executor and dyes the term of B. ends in the 33 Eliz. and then J.S. enters and makes a Lease to the Plaintiff the Executor of A. distreyns for the arrearages and the Plaintiff brings a Replevin Gawdy and Fenner This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years but out of the Free-hold and upon grant thereof as Littleton saith the Tenant of the Free-hold ought to attorn and not the Termor and so is it 9 H. 6. and if an Assize be brought for this Rent it ought to be brought against the Tenant of the Free-hold and all the Tenants of the Free-hold ought to be named in a Rent-charge by Cook 6 Rep. 58. but otherwise for a Rent-service for that is against the Termor onely and a Termor cannot give seizin of the Rent to maintain an Assize by Cook 6 Rep. 57. and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages because the estate is determined Cook 4 Rep. 49. but an Avowry is given by this Statute Onely so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relyed on this word demesn which ought to be intended of a Free-hold and of a Reversion upon a Lease for years it is pleaded quod seisitus in dominico suo c. and so cannot a Tenant for years say for which reasons it seemed to them that the Distress was well taken Clench contr For the Termor ought to pay it for he takes the profits of the land as if a Lease be made to a woman rendring Rent who takes husband and dyes the husband shall pay the Rent by the 10 H. 6. for he hath taken the profits and by the words of the Statute they are in the possession or seisin and seisin refers to the Tenant of the Free-hold and possession to the Tenant for years and the words are which ought immediatly to pay the Rent and so ought the Termor in our Case who is chargeable to the Distress of the Testator Popham chief Iustice of the same opinion The Distress is not well taken for he who hath the profits of the land ought to answer for the Rent Gawdy Although the Cattel of the Lessee be distreynable by the Testator that is onely because they are upon his land as a strangers Cattel may be so distreyned and therefore this proves not that the Lessee should pay the Rent And if a man grants a Rent-charge and lets the land at will afterwards the Rent is behind and the Grantee dyes and the Lease at will determines without question in that Case the Lessor is subject to the Distress of the Executor And in our Case if the Grantee had released to the Tenant for life this had extinguisht the Rent otherwise of a Release to Tenant for years Fenner If Tenant in Tail granta a Rent-charge and after makes a Lease for 21 years according to the Statute and dyes the Rent by the death of the Tenant in Tail is determined To which Gawdy agreed which proves that the Rent issues out of the Freehold Vid. Cook 5 Rep. 118. Hillar 37 Eliz. Butler against Ruddisley IN a Trespass the Defendant pleaded the Free-hold of Edward Devereux and so justified as his Bailiff without saying at his commandment the Plaintiff replyed that the said Edward was seized in Fee and made a Lease to him by vertue whereof he was possest absque hoc that the Lessor made the Defendant his Bailiff post dimissionem and hereupon the Defendant demurred Crook By this Lease a Free-hold passeth to the Plaintiff and then the Plaintiffs traverse is naught for he hath now traverst that the Defendant is Bailiff whereas he ought to traverse the Free-hold in the Lessor for that would have destroyed the justification of the Defendant And to prove that the Free-hold doth pass he cited the Case of Littleton where if a Lease be made to the husband and wife during Coverture they are Ioynt-tenants for life So in the 30 H. 6. a Lease to a woman dum sola vixerâ—t And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice or dummodo se bene gesserit all these are Free-holds And it is clear that a Tenant at will cannot assign over And also an estate at will is an estate at the will of both parties but here it is at the will of the Lessor onely when he will make a Bailiff Haughton contr An estate at will doth pass and not a Free-hold for here he hath not pleaded that Livery was made and Livery shall not be intended in this case unless it be specially alledged but if Livery had been made then he agreed that a Free-hold conditional had past and for the pleading of a Livery he took a difference that where an express estate either in fee or for life be pleaded there Livery shall be intended but where a Free-hold passeth by implication or operation of Law and not
was upon the pleading Taylor being Lessee for years 9 Elizabeth did grant and assigne this to Ayer the Plaintiff The Defendant pleaded that before the grant made to Ayer sc 8 Elizabeth Taylor did grant and assigne his estate to the Defendant without traversing the gift made to the Plaintiff Williams There needs no traverse for being granted the 8 Elizab. it is impossible it should be granted 9 Eliz. 2 Edw. 6. and 1 H. 5. Anderson He ought to travers for it is impossible to confesse and avoyd a grant by confession that was granted to another before for if it were so the second grant is voyd and so being so confest here ought to be a travers Walmesley cont in 32 H. 6. it is sufficient to say that at another day c. there was another arbitrement c. for by that the first arbitrement is voyd in Law And it is a good plea in a Will that after that there was another Will made without Traversing and there is difference between Lands and Chattells for land may be gotten out of a man by wrong and therefore it may be that after the feoffment the Feoffor entred and it disseised the Feoffee and did infeoffe another but it cannot bâ— so here of a terme for years for no man can take it away from the Lessee by wrong Glanvill and Kingsmill cont There must be a Traverie for there ought to be a confession before there can be an avoydance but here he does not confess the grant but pleads matter that denies it being granted And at last Anderson gave Iudgment that he ought to Travers 42 Eliz. Rudd against Topsey in C. B. Rot. 135. IN a Quare Impedit The Iury found that Edward Capell was seised of an Advowson in Fee and did let it to the Defendant for years and during the Lease he presented the Defendant and the doubt was whether this were a surrender or an Extinguishment And it was held by all the Iustices that this could not be a surrender but is cleerly an extinguishment For if a man does present to his own Church as Proctor to another by this he looseth his advowson Nat. Br. 25.17 Ed. 33.24 H. 6. Hillar 42 43 Eliz. Forrest against Ballard Rot. 2480. AN Audita querela was brought upon a Statute which was acknowledged before a Maior who had no power to take it Anderson An Audita querela will not lie upon a voyd Statute But Kingsmill Walmesley and Warburton cont and Walmesley cited 〈◊〉 Br. 102. where an Audita querela was brougt upon a forg'd Statute and there it would lie upon a Statute made by Duress 20 Ed. 3.28 Trinit 40. Eliz. Goodrick against Cooper in C. B. Rot. 1259. IN a Replevin the Defendant justified for Rent granted to the Master and Schollers of Emanuell Colledge in Cambridge And the Iury found that one Spendelose being seised of the land where c. by his Deed did grant to the said Master and Fellowes a Rent Ch. of 40 l. per annum for ever and that Spendlose did seale his part of the Indenture and delivered it to the use of the Master and Fellowes to one J.S. to deliver it accordingly but there was no dead to shew their receit thereof and then they sealed the other part but they made no Attorney to deliver it and it was â—ound that the Rent was payd for divers years after VValmesley Although no Letter of Attorney were made yet it is good for by their sealing of the Counterpart there is a sufficient agreement to the grant As it a Reversion be granted to a Corporation by Deed although they cannot accept of this but by Attorney yet if they bring a waste this is a sufficient agreement to vest it in them Quod assi Justiciarii concesserunt And judgment was given for the Avowant Michaelm 43 44. Eliz. Claygate against Batchelor in C. B. Rot. 3217. IN debt upon a Bond of thirty pound the Condition was that if Robert Batchelor son to the Defendant did use the Trade of Haberdasher as Iourneyman servant or Apprentice or as a Master within the County of Kent within the Cities of Canterbury and Rochester within four years after the date that then if he pay twenty pound upon request the Obligation to be voyd And all the Iustices agreed that the condition was against Law and then all is voyd for it is against the liberty of a Free-man and against the Statute of Magna Carta cap. 20. and is against the Commonwealth 2 H 5. 5. And Anderson said that he might aswell bind himself that he would not go to Church And Iudgment was given against the Plaintiff Michaelm 43 44 Eliz. Dogget against Dowell in C. B. Rot. 65â— IN an action on the Case upon an Assumpsit The Plaintiff declared that at the request of the Defendant he had lent to him 30 l. the 10th day of May 5 Eliz. and the Defendant in consideration thereof viz. the second day of May aforesaid did promise and assume upon himself that he at the end of the yeare would lend the Plaintiff other thirty pounds for a year or give to him five pound It was said that the consideration is good for although the promise was made at another day yet is it in pursuance thereof so that in Law it shall be accounted all at one time and is not like to the case in Dyer 372. where the Master promised one who was bayle for his servant that he would save him harmless this is no consideration for the Ballment was of his own will and was executed before the Assumpsit but if the Master had first requested and afterwards assumed there it is good and so was it adjudged in the case of one Sydenham against Worthington Trinit 27 Eliz. Rot. 748. Where the request was before and the promise after and there it was a good Assumpsit VVarburton agreed And it is like as if I should say to you do such a thing and I will give you five pound this is no good contract But all the Iustices on the contrary for when at the first day the Plaintiff did lend to the Defendant thirty pound that was absolute and the speaking on the second day cannot have such reference to the first agreement that it shall be accounted all one Anderson If I say to one In consideration you will serve me for a year I will give you five pound here is no cause of action for the consideration is precedent and not mutuall and so judgment was entred for the Defendant Hillar 41 Eliz. VVentworth against VVright Rot. 2529. IN a Quare impedit two points were moved 1. If the Parson be made Bishop whether the Patron should present or the King by his prerogative VVilliams The King shall for before the Statute the Pope should present and the reason was because the Bishop had received his presentment gratis from the Pope and by the same reason the King now
607. Replevin WAkefeild brought a Replevin against Cassand who avowed for Damage-feasant And the Plaintiff prescribed that D. is an ancient Town c. and that all the Inhabitants within the said Town except the Parâ—ion Infants and some particular houses have used to have Common to their houses c. The Avowant shewed that the house to which Common was claimed was built within thirty years last past And whether he shall have Common to this new erected house was the question on a Demurrer Shuttleworth he shall have this Common by prescription but not of common right Gawdy the Prescription is against common reason that he should have Common time cut of mind c. to that which hath not been thirty years and he hath excepted the Parson Infants and such particular houses and by the same reason may exceptall and therefore it is not good But it was adjudged no good Prescription for if this be a good Prescription then any body may create a new house so that in long space of time there will be no Common for the ancient Inhabitants Periam By such Prescription the Lord shall be barred to improve the Common which is against reason Anderson The Common is intire for if H. hath Common appendant to three Messuages and enfeoff one of one Messuage another of the second and another of the third the Common in this case is gone But all agreed that it is impossible to have a Common time out of mind c. for a house that is builded within the thirty years Mich. 29 and 30 Eliz. Rot. 2299. Bishop of Lincolns Case Quare Impedit THe Queen brought a Quare Impedit against the Bishop of Lincoln and Thomas Leigh to present to the Church of Chalsenut Saint Giles in the County of Bucks The case was thus H. being qualified took two Benefices which were above the value of eight pounds and after took a third Benefice above the said value whereby the first Benefice became void and so remained for two years whereby Title of Lapse accrued to the Queen and before presentment made by the Queen the Patron did present one A. who being admitted instituted and inducted did refuse to pay 38 l. 2 s. ob due to the Queen for the Tenths which matter was certified by the Bishop into the Exchequer whereupon and by force of the Statute of the 26 H. 8. the Church is ipso facto void wherefore the Bishop the now Defendant being Patron in right of his Bishoprick did present Thomas Leigh the other Defendant against whom the Queen brought her Quare Impedit And it was adjudged by the Court that the Quare Impedit very well lies for the Recusancy to pay the Tenths was his own act and is a Resignation and by that reason she Church is void and this shall not hinder the Queen of the Lapse But if A. the Incumbent who was presented dies being presented by usurpation upon the Lapse to the Queen yet afterwards the right Patron shall present again But when A. the Incumbent doth resigne and make the Church void by his own Act viz. by Recusancy as in this case is done this may be done by Collusion and by such means the Queen may be deprived of her Litle by Lapse for if this Collusion between the Bishop and the Incumbent be suffered then may a stranger present upon the Title of the Queen and presently such Recusancy and Certificate may be made by which the Church shall become void and so the Queen deprived of the Lapse Fenner this Lapse is given to the Queen by her Prerogative but on condition that she take it in due time for such is the nature of the thing Lapsed as is in this case adjudged viz. That when the Queen hath Title to present by Lapse and doth not present but the Patron presents and after the Church becomes void by the death of the Incumbent In this case adjudged by the Court also the Queen cannot present but in this case the avoidance being by privation and not by death Iudgment was entred for the Queen Trin. 19 Eliz. in Com. B. Hales Case Debt on â— Bond. SAmuel Hales brought an Action of Debt on a Bond against Edward Bell and the Condition of the Bond was that if the said Bell should pay to the said Hales forty pounds within forty daies next after the return of one Russell into England from the City of Venice beyond the Seas that then the Obligation to be void and the Defendant pleaded in Bar that the said Russell was not in Venice upon which the Plaintiff demurred And adjudged by all the Iustices that it was no good plea for in such cases where parcell is to be done within the Realm and parcell out of the Realm the tryall shall be within the Realm 7 H 7.9 Trin. 28 Eliz. in Com. Ban. Haveringtons Case 1974. Debt by an Administrator HAverington and his wife as Administratrix of one Isabell Oram brought an Action of Debt against Rudyand and his wife Executrix to one Laurence Kidnelly the Case appeared to be thus Farmer for thirty years did devise to his wife so long as she shall be sole and a Widow the occupation and profits of his terme And after her Widowhood the Residue of the terme in the Lease and his interest in it to Reynald his Son the Devisor dies and the wife enters according to the Devise And afterwards he in the Reversion by Indenture Dedit concessit vendidit Barganizavit totum illud tenementum suum to the wife and her Heires and did also covenant to make further assurance and to discharge the said Tenement of all former Bargains Sales Rights Joyntures Dowers Mortgages Statute-merchants and of the Staple Intrusions Forfeitures Condemnations Executions Arrearages of Rents and of all other charges except Rents Services which shall be hereafter due to the Lords Paramount And then the Reversioner and his wife levied a Fine to the uses aforesaid and after the Devisee takes husband and thereupon the Son enters in the terme And the Administrator of the wife brought an action of debt upon an Obligation for the performance of the Covenants of the Indenture against the Administrator of the Reversioner And Judgment for the Plaintist And it appeared by the Record that these points following were adjudged to be Law although that the latter matter was onely argued 1. That the wife of the Reversioner who had Title of Dower in the Land is concluded of her right of Dower by the Declaration of the uses of the Fine by the husband onely which Fine is after levied by them joyntly because no contradiction of the woman appears that she doth not agree to the Vses which the husband selely by his Deed of Indenture had declared 2. To Devise that the wife shall have the occupation and profits during her Widowhood is a good Devise of the Land it self during such time See Plow 524. And that no Act which she can do
in purchasing the Inheritance by which the Terme is extinct shall bar the possibility which Reynald the Son hath to come upon the womans marriage 3. That a Lessee for years being in possession may take a Feoffment although it be by Deed and may take Livery after the delivery of the Deed and shall be deemed to be in by force of the Feoffment as in this case is pleaded although that the Lessee may take the Deed by way of confirmation and then the Livery is but Surplusage and void 4. It was resolved that this possibility which was in Reynald the Son to have the residue of the terme upon the inter-marriage which at the time of the Feoffment and of the Fine was but Dormant shall be accounted a former charge and before the Covenant because of the will which was before the Covenant and shall awake and have relation before the marriage As if Tenant in tail of a Rent purchaseth the Land out of which the Rent issueth and makes a Feoffment and covenants that the Land at that time is discharged of all former charges although this charge is not in esse but is in suspence as it is said 3 H. 7.12 yet if the Tenant in tail dye his Issue may distrain for this Rent and then is the Covenant broke for now it shall be accounted a former charge before the Feoffment Mich. 29 and 30 Eliz. in Com. Ban. Bretts Case Debt on â— Bond. BRett brought an action of Debt on a Bond against Averden and the Condition of the Bond was to stand to the Arbitrement of J.S. who did award that the Defendant should pay ten pounds to Brett and no time was limited to pay it The Defendant confest the Arbitrement but pleaded in Bar that the Plaintiff hath not required him to pay the money And the Plaintiff hereupon demurred Adjudged by the Court that it is no good plea for the Defendant at his perill ought to pay the money and the Plaintiff need not make any request wherfore Iudgment was given for the Plaintiff Trin. 29 Eliz. in Com. Ban. Bucknells Case Action for Robbery on the Statute of Winchestster BUcknell was robbed in a Hundred within the County of Bucks and thereupon brought his Action upon the Statute of Winchester because the Theeves were not taken And Not guilty being pleaded by the Inhabitants the Iury gave this speciall Verdict viz. That he was robbed the same day alleadged in the Declaration but in another place and within another Parish then that he hath alledged in the Declaration but that both the Parishes were within the said Hundred Vpon which they prayed the Iudgment of the Court whether the Inhabitants were guilty Adjudged by the Court for the Plaintiff for it is not materiall in what Parish he was robbed so it were within the same Hundred Hil. 30 Eliz. in Com. Banc. Rot. 904. Spittles Case Replevin SPittle brought a Replevin against Davis the Case was this Turk being seised of Land in Fee did devise parcell thereof to his youngest Son Proviso and it is his intent that if any of his Sons or any of their Issues shall alien or demise any of the said Lands devised before they shall attain the age of thirty years that then the other shall have the Estate and does not limit any Estate And then the eldest Son made a Lease before his age of thirty years and the youngest Son enters and afterwards and before the age of thirty years he aliens the Land he entred into by reason of the limitation the elder Brother re-enters and demised to Spittle the Plaintiff for three years who put a Horse into the ground and Davis by the commandment of the younger brother entred and took the Horse Damage-feasant and Spittle brought a Replevin And upon the whose matter there was a Remainder It was resolved 1. That this is a limitation and that the Estate shall be to such use as by the Will is directed untill there be an Alienation and upon Alienation the Land shall go to the other Brother 2. When the youngest Brother hath once entred for the Alienation then is the Land discharged of all Limitations for otherwise the Land shall go and come to one and the other upon every Alienation ad infinitum wherefore all the Iudges agreed that after the one Brother hath entred by reason of the limitation the Land is then for ever discharged of the Limitation made by the Will And Iudgment was given accordingly Michaells Case Debt on a Bond THomas Michaell brought an Action of Debt on a Bond against Stockworth and Andrews the Iury gave this speciall Verdict That the said Stockworth and Andrews did seale a Bond and delivered it to the Plaintiff as their Deed and after Issue joyned and before the Nisi prius the Seale of Andrews was taken from the Bond. Shuttleworth The Plaintiff shall be barred for it is one entire Deed and the Seale of one is wanting And admit in case it goes against us the Iudgment be reversed by Writ of Error the Plaintiff can have no Action on such Bond But it was adjudged to be a good Bond and Iudgment for the Plaintiff See the like case in Dyer Trin. 36 H. 8.59 A. Hillari 33 Eliz. in Com. Ban. Rot. 1315. Richmonds Case Debt for rent RIchmond brought an Action of Debt against Butcher the case was A man makes a Lease for years reserving Rent to him and his Executors and Assignes and during the terme the Lessor dies and his Heire who hath the Reversion brings an Action of Debt And it was urged that the Rent was incident to the Reversion and the Heire having the Reversion shall have the Rent also as incident to it as the case is in the 27 H. 8.16 If H. makes a Lease for years rendring Rent without saying any more words the Heire shall have this part because it shall go along with the Reversion So in the fifth of Edw. 4.4 If two Ioynt-tenants make a Lease for years rendring Rent to one of them yet the other shall have the Rent also although no mention were made of him so in the 7 H. 4.223 By the Court If I make a Feoffment in Fee rendring a Rent to me my Heires may distraine And if I grant over this Rent my Assignees in this case may distraine and avow so in this case an Action will lye for the Heire although he be not mentioned But adjudged to the contrary by the Court for when H. passeth Lands from himself the Law gives him liverty to passe them in such way and manner as he himself will and this liberty ought to take effect according to the expresse words for the Law will not extend the words further for the intent shall appeare by the words and then it cannot be here intended that his will was that his Heire shall have the Rent because the words are not sufficient to give it to his Heirs And therefore note a diversity when
opinion he relied upon the intention of the Donors which ought to be observed For if the Habendum does crosse the Premisses it shall be void but a Remainder is good for the benefit of a stranger but a Rent cannot be reserved upon such a Gift during the foure degrees but after the Reversion is good if he do attorne to the Gâ—…ntee of the Reveâ—sion Windham Frank-marriage is not an Estate in taile for there wants the word Heires Coke lib. 1.103 So a Gift to a man semini suo 10 Ass 26. and after Meade â—greeâ— with Windham although the grounds of Frank-marriage were not observed yet that it was good for although there be no Tenure between the Donor and Donee yet is it a good Frank-marriage Dyer It is no good Frank-marriage because the usuall words are not observed and if the word Liberum be omitted it is not Frank-marriage neither is it good given to a man but it must be to a woman for a man cannot give land to a woman Causa matrimonii praelocuti And in this case the party ought to be of the blood of the Donor who by possibility may be inheritable to him and there ought to be a Tenure between them and an acquittall and if any faile it is no Frank-marriage and he said further that if it once takes effect as Frank-marriage and then the Donor grants the Reversion or the Reversion discends to the Donees yet it shall not be destroyed but shall remaine as an Estate in taile and not for life because it once took effect in the Donees and their issues and if land be given to a man in Frank-marriage the remainder in taile yet this shall not destroy the Frank-marriage and the Donee shall hold of the Donor and not of him in the remainder And if one give land in Frank-marriage the remainders to the Donees in taile yet is this a good Frank-marriage and if the Donor grants over his Services yet doth the Frank-marriage continue although the Donees attorn for they are incident to the Reversion and therefore the Grant is void but if the Reversion be granted the Services will passe and he concluded that the Husband had all and the Wife nothing because no Estate to her is mentioned in the Premisses and he could not construe the words to be the intent of the Donor for here is an expresse limitation of the fee to the Husband and his Heirs which cannot be controlled by intendment And after 25 Eliz. It was adjudged to be no Frank-marriage nor gift in taile but a Fee-simple And the Iustices said that the ancient Books were that where it took not effect as a Frank-marriage it should be in especiall taile yet those at this time are not Law But they agreed that this at one time took effect as Frank-marriage and by matter ex post facto may be made an Estate in taile Mich. 30 Eliz. Gibbs Case GIbbs brought an Action of Trover against Basil for a Gelding the Case was One Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and it was entred so in the Toll Book that Lister sold him The question was if this alteration of his name shall make any alteration of the property although the sale was in open Market Windham and Rhodes Iustices held this no good sale to bar the Plaintiff and grounded their opinion on the Statute of the 2 and 3 Phil. and Mar. cap. 7. which provides that no property of stollen Goods shall be altered that are sold unlesse the name and surname of the parties to the sale be written in the Toll-book And Shuttleworth moved that it should be in the Market and walked there for an houre together which is not set forth by the Defendant in his Bar but the Iustices said that such speciall plea need not to be but shall be intended Rouses Case IT was moved in this Case that if Tenant for terme Dauter vie does continue and hold in his Estate after the death of Cestuy que vie If he be a Disseisor and whether in pleading the plea ought to be seised and not possest Shuttleworth He was legally in at first and therefore cannot be a Disseisor 15 Ed. 4.41 A Freehold could not be gained where he came in by the agreement of the party and 12 Ass 22. Where the Husband and Wife were seised of a Freehold and after were divorced by Suit on the womans part whereby the woman is to have all the land yet if the Husband continue possession and dies seised this discent shall not take away entry because he was no Disseisor Gawdy He is Tenant at sufferance and no Disseisor and there it was moved that if Tenant at sufferance or a Disseisor makes Copies of Copyhold Lands if they be good or voidable And note that Wilde took here a diversity between a Termor that holds over and a Tenant at sufferance for in case of a Tenant at sufferance there is no Freehold taken from the Lessor which the continuance of possession doth not take from him but where the Tenant holds over his terme there the Freehold is disturbed and therefore there is a disseisin But at that present it seemed to the Iudges that there was no diversity But the next terme Godfrey moved that if Tenant for anothers life held over his Estate he had Feesimple and he granted that it was otherwise in some cases for if he claim to be Tenant at the Will of the Lessor he shall not gaine a Fee-simple For Littleton in his Chapter of Releases 108. saith that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold and such Occupyer claimeth nothing but at Will But in this case the Tenant claimes otherwise then at Will of the Lessor he does not claim any thing but at the Will of the Lessor as in the case of Littleton but claimes to hold over against the Will of the Lessor which is no Tenant at sufferance and 10 Ed. 4. If a man makes a Lease at Will and the Lessor dies and he continues possession and claims fee the Heire shall have a Mortdancester and 18 Ed. 4.25 If Cestuy que use dies and the Tenant continues in and the Tenant is impleaded the Lessor shall not be received and the reason is because there is no reversion in him but the Tenant hath it and 22 Ed. 4.38 by Hussey Iustice If a Termor holds over his Terme there an Estate in fee is confest to be in him by matter of Law but it is a deubt whether he be a Disseisor or not but it seemeth not for a Trespasse doth not lye against him before Regresse and in the 7 H. 4.43 If a Guardian holds the possession at the full age of the Heir or Tenant for years after his terme expired the Estate shall be judged in Fee And in our case he hath
therefore the Action shall continue And if a man be outlawed he may bring an Action as Executor and the Writ shall not abate Browne If I make I.S. my Attorney and he the Warrant of Attorney still continuing is made a Knight yet is not the Warrant of Attorney determined although the word Knight which is now part of his name be not in the Warrant therefore in this case the Writ is good Mich. 7 Eliz. NOte it was said by Browne that if H. does let the Cite of his Mannor with all his Lands to the said Mannor appurtenant hereby all the Demesne lands do passe but if it were with all the Lands appertaining to the said Cite nothing passeth but the Mannor-place Pasch 6 Eliz. A Man seised of the Mannor of Dale doth let the same with all the Members and Appurtenances to the same to have and to hold all the members of the said Mannor to the Lessee for terme of years Walsh and Weston were of opinion that this was a Lease for years of the Mannor onely and that the limitation of the word Members being after the Habendum was void But Dyer and Browne were of the contrary opinion And Browne said that when the Habendum is used by way of limitation it shall not be void As if he let his Mannor of Dale to have and to hold one acre parcell thereof for a terme of years the Lease is void for all but if there had been no Habendum but the Lease for years had been limited in the Premisses of the Lease that is good enough And if the Lease had been Habendum every part thereof that had been a good Lease of the Mannor for all the parts comprehend all the Mannor And Dyer said that the word Members shall be taken for the Townes and Hamblets wherein the Mannor hath Iurisdiction Note it was said by Dyer that if partition be made by the Sheriff although the Writ be not returned yet it is good enough and none of the parties shall except against it and so was the better opinion concerning the Estate of Culpeper and Navall in the County of Kent Sutton brought a Writ of Ravishment of a Ward against Robinson wherein it was resolved by Dyer Carus Weston and Benlowes That if the Tenant enfeoff his Lord and others all the Seigniory is extinct also if the Tenant does infeoff the Lord but of a Moyety yet is all the Seigniory extinct And Dyer said that if the Tenant does infeoff the Lord and a stranger to the use of another and his Heires and makes Livery to the stranger this is no extinguishment of the Seigniory but if the Livery were made to the Lord it is otherwise and yet is the possession instantly carried away to the stranger by the Statute of 2 H. 7.13 A man seised of lands devises the same to his Wife to dispose and imploy them for her self and her Son according to her will and pleasure Dyer Weston and Walson held that the Wife had a Fee-simple by the Intendment of the Will and the Estate is conditionall for ea intentione will make a Condition in a Devise but not in Grant vide Dyer 2â— 6 A woman Tenant in taile makes a Lease for one and thirty years and after takes a Husband who have issue the Husband being Tenant by the Curtesie surrenders the Heirs doth oust the Lessee and the Lessee brings an Ejectment And it was held that the Surrender was good and that the Privity was sufficient Mich. 40 Eliz. IN an Action of the Case for calling one Bastard Dyer and Walsh said an Action would lye but Browne on the contrary because it shall be tried in the Spirituall Court And Dyer said That at Barwick Assises a Formedon in the Discender was brought and one said that his Father by whom he claimed was a Bastard and thereupon he brought an Action against him for those words and recovered Catlin said That if Lands be given to a man and to the Heires he shall engender on the body of an English woman and he marries a French woman and she dies and then he marries an English woman that now this is a good Estate in special taile Pasch 7 Eliz. THe Prior and Monks of the Charter-house before the dissolution made a Lease for foure years reserving the ancient rent of twenty five Quarters of Wheat per annum and then the house was surrendered into the hands of King Henry the eighth and then the Lord Chancellor did let the said rent of twenty five Quarters of Wheat to I.S. for foure and twenty years And it came into question between I.S. and the Termor if this was warranted by the 27 H 8.28 Harper and Portrell it is not for the Statute is that they may make Leases of any Mannors Lands Tenements and Hereditaments for one and twenty years c. and this Wheat is neither Land Tenement nor Hereditament but a Chattell and shall be demanded in an Action of debt But the opinion of all the Court was that the Lease was good and they did agree that it was directly within the word Hereditaments for it may discend or escheat and the wife shall be endowed thereof Also upon a Lease of Corne a Rent may be referved for a man may reserve a Rent upon a Lease of a Rent and the Rent is not parcell of the Reversion but onely incident thereunto and the Lessor hath the same inheritance therein as he hath in the Reversion Trin. 7 Eliz. AN assurance was made to a woman to the intent it should be for her Ioynture but it was not so expressed in the Deed. And the opinion of the Court was that it might be averred that it was for a Ioynture and that such averment was not traversable and so was it in the case between the Queen and Dame Beaumont Winter brought an Action of the Case against Barnam for these words viz. Thou Murtherer Dyer and Walsh said that the Action would lye for there are some words that cannot be qualified as Murtherer Theef Extortioner false Knave and in such Case an Action will lye but contrary where such words are spoken in a jesting way Note by Dyer that the Lord Fitz-James late Lord chief Iustice of England did devise his land to Nicholas Fitz-James in taile with divers remainders over and in the same devise he devised divers Iewels and peeces of Plate viz. the use of them to the said Nicholas Fitz-James and the Heires Males of his body In this case it was the opinion of the Court that the said Nicholas had no property in the said plate but onely the use and occupation And the same Law where the Devise was that his Wife should inhabit in one of his houses which he had for terme of years during her life because the Wife takes no interest in the terme but onely an occupation and usage out of which the Executors cannot eject her during her life but Walsh held the contrary Hil. 8 Eliz. IF a Bishop
shall not have an Action of Debt untill the last year expired And after Iudgment was given for the Plaintiff viz. Mich. 29. Eliz. Rot. 2248. 28 Eliz. Between Sticklehorne and Hatchman ADjudged by the Court that if for not scouring of a Ditch or Mote the Groundsells of the house are putrified or Trees cut downe which are in defence of the house whereby the house by tempests is blown down Waste shall be assigned in Domibus pro non Scourando c. IN an Ejectione firmae Broker Prothenotary said that where the title of him in the Reversion is not disclosed in pleading nor cometh in question aid shall not be granted Pasch 28 Eliz. in C. B. Yardley against Pescan THe Queen seised of an Advowson being void the Ancestor of Pescan presented and so gained it by usurpation and then the Church being void he presented again and his Clark is now dead and then the Queen grants the Advowson to Yardley the Plaintiff and he brings a Quare Impedit in the name of the Queen supposing that this usurpation did not put the Queen out of possession and it was argued that the Grant could not passe without speciall words because it is of the nature of a Chose in Action and this was moved the last terme and then Dyer Meade and Windham held that this usurpation did gaine possession out of the Queen and that she should be put to her Writ of Right of Advowson and now this terme Fenner moved the case againe and the opinion of Anderson that was the chief Iustice of the Common Pleas was clearly that the Queen was not out of possession for he said that it was a rule in our Books that of a thing which is of Inheritance the act of a common person will not put the Queen out of possession but if she had but a Chattell as the next Advowson then perhaps it is otherwise But Meade and Windham held very earnestly the contrary and they relied on the Book of 18 Ed. 3.15 where Shard said that if the King had an Advowson in his owne right and a stranger who had no right did happen to present that put the King out of possession And the King shall be put to his Writ of Right as others shall vide 47 Ed. 3.14 B. 18 Ed. 3.16 The Defendant there did alledge two Presentments in his Ancestor after the Title of the King and demanded Iudgment if the King should have a Writ of possession and the plea was admitted to be good but after Pasch 25 Eliz. Iudgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 31 Eliz. Rot. 211. SIr Robert Rowley made the Lord Keeper Sir Robert Catlin and the Master of the Rols his Executors and did devise a terme to Sir Robert Catlin and died and they writ their Letters to the Ordinary certifying that they were made Executors but that they could not attend the executing of the Executorship and therefore they required him to commit the Administration to the next of kin ut lex postulat The Ordinary enters in the Register Quia Executors praedicti per testamentum praedictum distulerunt c. and thereupon committed the Administration over Afterwards the Lord Catlin received the Rent of the Farme and after granted it to a stranger The Administrator ousted the Lessee and he brings an Ejectment And if this writing was a refusall in the Executors or not was the question And it was said by Ford Doctor of the Civill Law that it was a refusall and he said that if Legatees being Executors do refuse to prove the Will yet by the Civill Law they shall have their Legacies But adjudged by the Court that if Legatees do refuse to prove the Testament that by the Common Law they have no remedy for their Legacies for by the refusall there is a dying Intestate and then nothing could be devised and also said that this Writing was a refusall of the Executors so that the Ordinary might presently commit Administration and therefore Sir Robert Catlin could take nothing as Legatee Pasch 31 Eliz. THe Array of a Pannell was challenged because the Sheriff was Cosin to the Plaintiff and upon a Traverse it was found that they were Cosins but not in such manner as the Defendant had alledged and per curiam the Array was quasht for the manner is not materiall but whether he be a Cosin or not 18 H. 6.18 Pasch 31 Eliz. IT was resolved in the case of Miles against Snowball that if the Sheriff return one who hath no Freehold yet he shall be sworne in the Iury if he be not challenged by the parties And after upon the evidence it was moved If a woman make a Deed of Feoffment to severall persons of a house and land wherein she her self inhabiteth and is seised and delivers the Deed to the Feoffers without saying any thing if this be a good Feoffment of which Periam doubted because she did inhabit there all the time but if it were of other lands on which she did not dwell and she comes there to make Libery and delivers the Deed upon the land and saies no words yet is this a good Feoffment because she comes thither to malte Livery Anderson The Feoffment in this case is good for if she hath an intent to make Livery the delivery of the Deed is good Livery Quod Periam tota Curia concesserunt if she had intended to make Livery vide Co. lib. 6 26. lib. 9.136 Dyer 192. Pasch 31 Eliz. A Woman brought an Action of Debt as Administratrix to another the Defendant pleaded that the Plaintiff was an Alien born in Gaunt under the obedience or Philip King of Spain the Queens enemy And Walmsley moved for the Plaintiff that this was no plea because that the recovery is to anothers use but the Court was against him for the Court will not suffer that any enemy shall take advantage of our Law and then he moved that that King was no enemy because Wars were not proclaimed But Anderson said that a more open enemy then King Philip cannot be who had conspired the death of the Queen and had endeavoured to invade the Realm and subvert the State which Windham granted but Periam haerebat aliquantulum whether he could be called enemy in law before such proclamation But Walmsley said that the plea was that the woman was born under the obedience of the Emperor who was in amity with the Queen and the Court replied Plead as you will abide by it Pasch 13 Eliz. IN a trespasse of Assault and Battery the Plaintiff declared to his damages of twenty pounds and the Iury found for the Plaintiff and gave thirty pounds damages And by the Court the Plaintiff shall recover no more then he hath declared for and this ought to be done of course by the Clarks 2 H. 6.7.8 H. 6.4.42 Ed. 3.7 Mich. 30. and 31 Eliz.
that the Action might be against the Husband onely because that the woman could not convert them to his own use during the Coverture but onely to the Husbands use And the opinion of the Court was that the Writ was good against them both and that the conversion was in nature of a Trespasse and so the Action would well lye Mich. 32. and 33 Eliz. Kent against Wichall IN a Trespasse Quare clausum fregit herbam conculcavit the Defendant pleaded that he tendied sufficient amends to the Plaintiff and he refused the same and demanded Iudgment c. And upon a Demurrer the opinion of the Court was that this is no plea in Trespasse but in a Replevin it is a good plea Sed non dierunt causam diversitatis 21 H. 7.30.9 H. 7.22 F.N.B. 69. G. 31 H. 4.17 Drew demanded of the Court that whereas Edmund Leusage had bound himself in an Obligation by the name of Edward Leusage if this was good or not and it seemed to the Court Quod non est factum and Anderson and Walmesley said expresly that it was void 34 H. 6.19 6. Dyer 279 21 H. 7.8 Sir John Arrundell and his Wife brought a Quare Impedit against the Bishop of Glocester and others who pleaded in Bar that William Sturton was seised of a Mannor to which the Advowson was appendant and bound himself in a Statute-merchant of two hundred pounds to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present Note it was said by the Iustices of the Common Pleas that if a man promise another that he shall have a Lease in his land for eight years or it is agreed amongst themselves that one shall have a Lease of the others land for eight yeares that is no lease of the land but onely a Contract and Agreement but if one promise another that he shall have his land for eight years or openly agree that one shall have the others land for eight years this is a good lease for eight years by force of the agreement A. came before the Major of Lincolne and acknowledged a Statute-merchant and the Seal of the Major was not put to it and it was adjudged that the Statute was not good but a man may sue upon it as an Obligation because the Seal of the party is to it Pasch 36 Eliz. IN a Waste the Case was that a Lessee for yeares purchased Trees growing upon the land and had liberty to cut them within eighty yeares and after the said Lessee purchased the inheritance of the land and devised it to his Wife for life the Remainder to the Plaintiff in see and made his Wife Executrix and died who after married with the Defendant who cuts the Trees whereupon the Action is brought And by opinion of all the Court the Action was maintainable for although the Trees were once Chattels yet by the purchase of the Inheritance they were united to the land and Iudgment was given for the Plaintiff accordingly Pasch 36 Eliz. UPon an Exigent the Sheriff returned that after Divine Service he made proclamation and did not say that there was no Sermon and therefore the Iudges held that the return was not good for by the Statute if there be a Sermon in the Church the Sheriff shall make his proclamations after the Sermon and if there be no Sermon then after Divine Service and because it did not appeare whether there were any Sermon or not the opinion of the Court was ut supra It was said that a man shall not aver against a Postea in the Kings Bench or the Common Pleas to say that it was contrary to the Verdict nor shall he be received to say that the Iudges gave a Iudgment and the Clarks have entred it contrary to their Iudgment but otherwise is it in Court Barons or other base Courts not Courts of Record 10 Ed. 3.40 35 and 36 Eliz. Newman against Beaumond IF the Ordinary grants the Administration of the Goods of B. to A. and after grants the Administration to R. this second Grant is an appeale of the first without any further sentence of repeale for the Administrator is but a servant to the Ordinary whom he may charge at any time In an Action of Debt on a Bond bearing date the nineth of July the Defendant pleaed a Release of all Actions the same day usque diem dati ejusdem scripti and it was adjudged that the Obligation was not discharged because the Release does exclude the nineth day on which it was made Mich. 37 and 38 Eliz. Rot. 211. Holman against Collins HOlman brought a Writ of Error against Collins upon a Iudgment given in the Court of Plymmouth in the County of Devon the case was Collins was possessed of a peece of Ordnance and in Consideration that he would tender this to Holman for to put into his Ship which was then going to Sea and that Collins would stand to the hazard of losing it The said Holman did assume upon himself and did promise to give Collins certain Goods which he should gain by the Voyage and after the said Ship did return laden with certain Goods and for non-satisfaction the said Collins brought his Action on the Assumpsit and had Judgment to recover And Crook assigned these Errors 1. That the Stile of the Court was not good for it was Curia Dominae Reginae Burgi praedict tent coram Majori de Plymmouth without saying secundum consuetudinem villae praedict and he who is Iudge of the Court ought to be either by Patent or Prescription and then for not expressing the stile of the Court nor by what authority they held their Court it is error and he cited the case in the Lord Dyer 262. and a Iudgment 30 Eliz. Rot. 32. given in the very point Another Error was that no day was prefixed for the Defendant to appear but generally ad proximam curiam which is Error although it be held every munday And for these Errors Iudgment was reversed Trin. 28 Eliz. Rot. 948. Mercer against Sparks MErcer had Iudgment to recover against Sparks in the Common Pleas upon an Action of the Case for words and Sparks brought a Writ of Error in the Kings Bench and assigned for Error that the Plaintiff did not expresse in the Declaration that the Defendant spake the words malitiose but it was adjudged that it was no Error because the words themselves were malicious and slanderous wherefore Iudgment was affirmed Savacres Case IT was adjudged in the Common Pleas that if a Baron or others mentioned in the Statute of 21 H 8. take divers Chaplaines which have many benefices and after they discharge their Chaplaines from their Service they shall retain their Benefices during their lives and if the Baron takes others to be his
was a surrender But admitting it was no surrender but the first terme continues then the second question is 2. If when the Devisee enters into the terme devised to him without consent of the Executor by which entry he is a wrongfull Seisor and a Disseisor and after he grants his right and interest to the Executor if this Grant be good or no because he had not any terme in him but onely a right to the terme suspended in the land and to be revived by the entry of the Executor And adjudged that it was a good Grant and it shall inure first as the agreement of the Executor by the acceptance of the Grant that the Devisee had a terme in him as a Legacy And secondly the Deed shall have operation by way of Grant to passe the Estate of the Devisee to the Executor and so no wrong and the case was resembled to the case of surrender to the grantee of a Reversion which first shall inure as attornment and after as surrender and so was it adjudged Trin. 37 Eliz. IN an Action on the Case for these words Carter is a prigging pilfering Merchant and hath pilfered away my Corne and my Goods from my Wife and my Servants and this I will stand to And the Action was commenced in a base Court in the Country and Iudgment given and the Record removed by Writ of Error And it seemed to the Court that the words were not actionable wherefore Iudgment was reverst Sed quaere rationem Gowood against Binkes A Man did assume and promise to I.S. in consideration that he would forbeare a Debt due to him untill such a time That he would pay the Debt if A.B. did not pay it and he that made the promise died and the money was not paid and therefore an Action was brought against his Executors who traversed the Assumpsit and a Verdict found against them and in Arrest of Iudgment it was moved that an Action grounded on a simple Contract lies not against Executors unlesse upon an Assumpsit for a Debt or Duty owing by the Testator himself and not of such a collaterall matter as the forbearance of the Debt of another but by Gawdy Iudgment was given for the Plaintiff whereupon Popham said that he believed this Iudgment would be reversed by Writ of Error in the Exchequer Chamber and the same day at Serjeants-Inn such a case was depending in the Exchequer Chamber to be argued and reversed for the cause ut supra And the case was between Jordan and Harvey and entred Trin. 36 Eliz. Rot. 384. Hil. 37 Eliz. Rot. 34. Castleman against Hobbs IN an Action of the Case for saying Thou hast stollen half an acre of Corne innuendo Corne severed the Defendant demurred upon the Declaration Fenner It is not Felong to move Graine and take it away Popham agreed to it and that the word Innuendo would not alter the Case unlesse the precedent words had vehement presumption the Corne was severed and in this case no man can think that the Corne was severed when the words are half an acre of Corne on the contrary if the words had been that he had stollen so many loads or bushels of Corne And Gawdy was of the same opinion and Iudgment against the Plaintiff c. Hil. 38 Eliz. IN an Account the Plaintiff declared that he delivered Goods to the Defendant to Merchandize for him the Defend said that the Goods with divers other of his own proper goods werâ— taken at Sea where he was robbed of them And it was moved that this was no plea in Bar of an Account but if it be any plea it shall be a plea before Auditors in discharge But admitting it be a good Bar yet it is not well pleaded for the Plaintiff as it is pleaded cannot traverse the robbing and try it for things done super altum mare is not tryable here wherefore the Defendant ought to have pleaded that he was robbed at London or any other certain place upon the Land and maintain it by proofs that he was robbed on the Sea Gawdy It is no good plea for he hath confest himself to be accountable by the receipt 9 Ed. 4. and it is no plea before Auditors no more then the Case was in 9 Ed. 4. for a Carrier to say that he was robbed Popham It is a good plea before Auditors and there is a difference between Carriers and other Servants and Factors for Carriers are paid for their carriage and take upon them safely to carry and deliver the things received Gawdy If Rebels break a Prison whereby the Prisoners escape yet the Goaler shall be responsible for them as it is in the 33 H. 6. Popham In that case the Goaler hath remedy over against the Rebels but there is no remedy over in our case Gawdy Then the diversity is when the Factor is robbed by Pyrates and when by enemies Popham There is no difference Hil. 38 Eliz. Rot. 40. IN a Writ of Error upon a Iudgment given in Nottingham the Error assigned was because the Defendant had no addition for it appeared the Action was in Debt and the Record was that H. Hund complained against Richard Preston of c. in the County of Nottingham Husbandman the which addition is not in his first name but in the alias and that could not be good and therefore it was prayed that Iudgment might he reversed But by the Court the Court of Nottingham had no authority to outlaw any man so that addition is not requisite wherefore it is no Error and Iudgment was affirmed Trin. 37 Eliz. Rot. 553. Browne against Brinkley IN an Action of the Case for words the Declaration was That the Plaintiff was produced as a Witnesse before the Iustices at the Assises at Darby where he deposed in a certain cause and the Defendant said Browne was disproved before the Iustices of Assise at Darby before Mr. Kingsley Innuendo that he was disproved in his Oath that he took before the Iustices And adjudged against the Plaintiff for although he was disproved in his Oath yet it is not actionable in this case for that disproof might be in any collaterall matter or any circumstance but otherwise if the words had been that he was perjured and the Innuendo will not help the matter and so was it adjudged The chief Iustice and Fenner being onely in the Court. Trin. 36 Eliz. Higham against Beast IN an Action of Trespasse by the Parson of Wickhambrooke in the County of Suffolk against the Vicar of the same place for taking of Tythes and on the generall issue the Iury gave this speciall Verdict That the place where c. was a place called B. the Freehold of I.S. and parcell of the Mannor of Badmanshall and found that the Pope as supream Ordinary heretofore made such an Indowment to the Vicaridge in these words Volumus quod Vicarius c. habebit tertiam partem decimarum Bladorum Foeni quomodocunque pervenientem de
maneriis de Badmanshall and the question was If the Vitar by this Indowment shall have the third part of the Tythes growing upon the â—and of the Freeholders within the Mannor or not And it was said by the Court that a Mannor cannot be without Freeholders and inasmuch as they are to be charged with the payment of Tythes one and the other together shall be said to be the Tythes of the Mannor and so it was adjudged that the Vicar should have Tythes of the third part of the land of the Freeholders as well of the Demesnes and Copyholders Trin. 37 Eliz. Rot. 438. Willoughby against Gray A Venire facias did beare Teste out of the Terme and also there was no place mentioned in the Writ here the Visne should be impaunelled and after the Writ said Coram Justiciariis and did not say apud Westmonasterium and a tryall was had hereupon and Iudgment given which was prayed might be reversed for these causes But it seemed to the Court that notwithstanding all that was alledged it was good enough for although the Venirefacias was not good yet if the Distringas had a certain return and place therein And the Iury appeared and gave their Verdict so that a Verdict was had the Statute will aide the other defects as in the case adjudged between Marsh and Bulford where the Venire bore Teste out of the Term. But Fenner said that the Teste was in the Term but on the Sabboth day which was not Dies Juridicus Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem against Hopton Flam and Williams Hopton pleaded not guilty Flam pleaded that he was mis-named and demanded Iudgment c. Et quoad feloniam mahemium not guiltâ— de hoc ponit se super patriam praedict Kinton similiter And Williams pleaded no such man in rerum natura as Flam and demanded Iudgment of the Writ and as to the Mayhem and Felony not guilty Et de hoc ponit se super patriam c. And as to the other two pleas to the Writ Kinton demurred prayed that the Writ might be awarded him and a Venire facias to try the issue For Tanfeild urged that by pleading over to the felony he waved the plea to the Writ for there was a diversity between an appeal of Murther and of Mayhem for in Murther as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal yet of necessity he must plead over to the Murther because it is in favorem vitae or else if he will joyne in Demurrer upon the plea to the Writ he doth confesse thereupon the Felony and therefore he must plead over not guilty But in Mayhem it is otherwise for although the Declaration was for Felony yet is a Mayhem but a Trespasse onely and all are pruâ—cipalls and the life of the Defendant is not questioned but he shall onely render damages and therefore it he plead over to the Felony that is a waver of the plea and so a Venire faciaâ— ought to issue out to try if he be culpable or not and of this opinion were Popham Fenner and Gawdy clearly and agreed to the diversity between the appeal of Mayhem and Murther Mich. 38 and 39 Eliz. King against Braine A Man sells Sheep and warrants that the yare sound and that they shall be sound for the space of a year upon which Warrant an Action of the Case was brought and it was moved that the Action did not lye because the Warranty is impossible to be performed by the party because it is onely the act of God to make them sound for a year But Clench and Fenner on the contrary for it is not impossible no more then if I warrant that such a Ship shall return safe to Bruges and it is the usuall course between Merchants to warrant the safe return of their Ships Mich. 38 and 39 Eliz. Wentworth and Savell against Russell IN a Writ of Parco fracto the Plaintiffs declared that they were Tenants pro indiviso of a Mannor in Yorkshire and that the Defendant held of them certain lands as of their Mannor rendring Rent which Rent was behind and for which they distrained and impounded the Distresse and the Defendant broke the Pound and rescued the distresse and thereupon they brought this Action and the Defendant demurred on the Declaration because the Plaintiffs did not shew how they were Tenants pro indiviso or Tenants in Common or Coparceners But the Court ruled the Declaration to be good And Gawdy said that a Tenant in Common alone without his companion may have an Action De parco fracto And Iudgment was given for the Plaintiff Hil. 39 Eliz. POphamsaid that in Lancashire there is a Parish called Standish within which are many Townes and one of the Townes is called Standish And if a man seised of lands in the Town of Standish and also of land in the other Townes do let all his land in Standish onely his land within the Town of Standish doth passe and not all his land within the Parish of Standish in the other Townes For where a man speaks of Standish or of Dale it shal be intended to be a Town and not a Parish unlesse there be expresse mention of the Parish of Standish or of Dale Gawdy and Fenner on the contrary for the Grant of every man shall be taken strongest against himself and therefore all the land as well within the Parish of Standish as within the Town of Standish shall passe And Fenner said that when Dale is mentioned in any Precipe it shall be intended the Town of Dale because Towns are noted at the Common Law and not Parishes for Parishes were ordained by the Councell of Lyons but notwithstanding in Grants there shall be no such intendment but the intendment shall be according to the common usage and understanding of the Country and Country-men in favour of the Grantee and when a man speake of Standish or any such place it shall as well be intended to be a Parish as a Town Hil. 29 Eliz. Clarentius against Dethick CLarentius brought an Action of the Case against Dethick by the name of Dethick alias Garter The Defendant demanded Iudgment of the Writ for the Queen by her Letters Patents had created him King at Armes Et quod nuncuparetur Garter principalis Rex armorum and that he should sue and be sued by such name and because he was not sued according to his creation he demanded Iudgment c. Tanfeild prayed that the Writ might abate for this case had been here in the Court in question before where Dethick was indided by the name of Dithick onely and because he was not named according to his creation he pleaded that matter and the Indictment was quashed Gawdy I remember the case very well and it was adjudged at my first coming to this Court and in truth the Iudgment passed against my opinion which then and still is
before the Inrolement land passeth to the Bargainee and the Bargainee hath a Freehold in him before the Inrolement and whereof his wife shall be endowed and if the Bargainor levies a Fine or acknowledge of Statute the Bargainee shall avoid them and deased the case of Morgan cited by the other side and cited the case of 6 Ed 6. where were two Ioynt-tenants and one of them bargained and sold his Moyety and then the other Ioyntenant died and then the Deed was inrolled there nothing passed but a Moyety but it seems in that case that by the Bargain and Sale the Ioynture is severed before the Inrolement so that there is no Survivorship but the Book speaks not of it and if a Bargainee be of lands held of the King without license of a alienation there the forfeiture to the King shall relate to the first delivery of the Deed. Warberton contra Before the Inrolement there is but a commencement of the Bargain and before all circumstances in the Deed mentioned are performed it is no Bargain and I hold the Deed shall have relation to the delivery to prevent all Charges Contracts but as to strangers it shall not have such relation If Tenant for life bargains and sells his land to another and his Heirs and then makes a Feoffment in fee to another before inrolement this is no forfeiture Anderson A release made to a Bargainee before inrolement is void then if this Scire facias be well brought no Act of the Bargainee shall avoid it Walmsley If there be a Bargainee and before the Inrolement the Bargainor enfeoffs him he is in by the Feoffment and not by the Bargain which proves that no estate is really in the Bargainee before Inrolement Kingsmill The reason of that is because it is out of the Statute for the Bargain and Sale was onely delivered and he said that the wife of the Bargainee in such case shall be indowed But the Court denied that and all agreed that the wife of the Bargainee before Inrolement shall not be indowed Kingsmill said that it was a usuall course in a Recovery to make the Bargainee Tenant of the Precipe And it was said by all the Iustices that if Tenant for life be impleaded the Bargainee of the Reversion after Inrolement shal be received and yet if hanging the Writ he purchase the Reversion he shall not And after many arguments it was adjudged that the Scire facias was not well awarded And Iudgment given for the Plaintiff 37 Eliz. in C. B. Day against Austin IN a Trespasse the Defendant justified the taking of a Furnace fixt to the earth because the Sheriff upon an intent sold it to him And by the Court it was held a good discharge for if a stranger takes my Horse and sells him a Trespasse will not lye against the Vendee but a Detinue But if one sells my Horse and a stranger takes him he is a Trespassor Walmesley and Beaumond Although such Furnace be fixed by the Termor yet he may take it away within the term but the Sheriff cannot attach it and the Termor may pull down a Wall made by him and it is not waste And at another day the case was recited to be thus The Lessee made a Furnace for the use of a Dyer and fixed it to the wall of his house and the Lessee being condemned in debt the Sheriff came to the Furnace and put his hands upon it and delivered it to the Defendant and the Lessee brought a Trespasse Glanvill A Furnace may be delivered in execution and the house never the worse but otherwise of the doors because the Lessee cannot be without them 42 Ed. 3.6 it is not waste to take away a Furnace 21 H. 6.26 said there that the Heir shall have such Furnace but this does not prove that it is not a Chattell but the cause wherefore the Heir shall have it it is because it is annext to the land as in the case of writings which are meer Chattels Beaumound It is doubly fixt to the land and to the wall and it is clear that the Sheriff cannot take it from the wall Dyer The diversity is when the Furnace is fixt to the middle of the house and when to the wall for the Termor may take it from the middle of the house but not from the wall for the wall is worse for taking it away and therefore it is waste And to this Owen agreed Pasch 35 Eliz. in B. R. Rotheram against Crawley Rot. 332. IN debt upon a Bond the case was Divers questions were made between the Plaintiff Lord and the Defendant Tenant concerning Relief whereupon they referred themselves to the Arbitrement of I.S. who did award that the Plaintiff should make a Release to the Defendant which was done of all Actions Duties and Amercements and then upon this Action brought by the Plaintiff for a collatterall thing the Release was pleaded in Bar. Coke Attorney The Plaintiff shall not be barred by this Release for Deeds ought to be expounded according to the intent of the parties and the intent of the party was to release no Duty but the Relief which was only in question this word Duties being interposed between Reliefs and Amercements shall be intended Duties of such nature as Reliefs and Amercements and no otherwise as it is in Dyer 23 Eliz. A man grants and to farm lets such land with wood this is no grant of the wood and yet there are words sufficient to passe the wood but being conjoyned with the words And to farm let it shall be expounded that it was not intended to have it be an absolute Grant But adjudged that it was a good Bar and Iudgment was given accordingly Hil. 37 Eliz. Goodway against Michell GOodway brought a trespasse against divers persons Quare clausum fregerunt duas Ramas perches of hedge fregerunt The Defendant by way of justification said that the place was in the Parish of Hadnam in Ely and that all the Parishioners time out of mind have used to have passage through the said Close in Rogation week to make their Perambulation of the Parish because that the Plaintiff hindred the Defendants as Parishioners Ramas sepes fregerunt whereupon the Plaintiff demurred Sperling The justification is not good for although Parishioners may justifie the having a way over my ground yet they cannot break the Hedges Also they have broken two Perches and two Gates which is excessive for a foot-path 15 H. 9.10.6 A Commoner cannot break all the hedge upon the land where he hath Common Savile cont All the Parishioners ought to go their Perambulation and being a great number they may well enough justifie for they are not compelled to keep the foot-path 6 Ed. 2. F.N.B. 185. b. Parishioners may pull down a wall that hinders them in their way to the Church and in the book of Entries there is a President where the Vicar and Parishiones did justifie an entry for
dissolved Williams But that is saved by the 3â— H. 8 for Annuities are exprest in the saving Anderson But this is an Annuity or Rent with which the land is charged Beaumond If it be any thing wherewith the land is charged it is saved but the person is only charged with this Annuity Walmsley But the 21 H. 7. is that an Annuity out of a Parsonage is not a meer personall charge but chargeth the Parson only in respect of the land And the Court would consider on the case Pasch 38 Eliz. in B. R. The Case of the Dean and Chapter of Norwich THe Case was A Church in which there had been a Parson and a Vicar time out of mind and the Parson used to have the great Tythes and the Vicar the small and for the space of forty years last past it was proved that the Parson had Tythes paid him out of a feild of twenty acres of Corne and now the feild is sowed with Saffron and the Vicar sued for the Tythes of Saffron in the Court Christian and the Parson had a Prohibition Coke I conceive the Parson shall have the Tythes for by the Statute of 2 H. 6. it is enacted that Tythes shall be paid as hath been used the last forty years and this hath been alwaies tythable to the Parson and although the ground be otherwise imployed yet the Parson shall have the Tythes and so was it in Norfolk in the Case of a Park where the Parson proscribed Pro modo decimandi to be paid three shillings fours pence for all Tythes rising out of the said Park and although the Park was after converted to arable yet no other Tythes shall be paid Popham It hath been adjudged otherwise in Wroths Case of the Inner Temple in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tythes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparkt Tythes shall be paid for Tythes are not due for Venison and therefore they are not Tythes in Specie And I conceive that Tythes of Saffron-heads shall be comprehended under small Tythes and although the Tythes of this Feild have been paid to the Parson yet it being converted to another use whereof no grosse Tythes do come the Vicar shall have the tythes and so if arable land be converted into an Orchard the Wicar shall have tythe of the Apples and so if the Orchard be changed to arable the Parson shall have tythes Quod Fenner concessit 36 Eliz. Higham against Deff IN a Trespasse the Case was That a Vicaridge by composition was indowed of the third part Omnium Bladorum decimarum of the Mannor of D. If he shall have tythes of the Freeholders of the Mannor was the question Johnson He shall not have them for a Mannor consisteth of two things viz. of Demesns and Services the Freeholders are neither parcel of the Demesnes nor the Services and therefore no parcell of the Mannor and this is proved in 12 Ass 40. a Rent-charge was granted out of a Mannor the Tenancy escheats it shall not be charged with the Rent Tanfeild contra For this word Mannor does extend to the Precincts of the Mannor and not to the Demesnes and Services onely and therefore if a Venire facias be awarded De viceneto Manerii de D. the Freeholders shall be returned also a survey of a Mannor shall be as well of the Freehold lands as of the Demesnes and if the King grants a Leet within the Mannor of D. all the Freeholders are bound to appear Fenner Grants ought not to be restrained to their strict words but are to be construed according to the intent of the parties Trin. 38 Eliz. in B. R. Ewer against Henden Rot. 339. IN an Ejectment the Iury found that I.S. being seised of a Capitall Messuage in the County of Oxford and also of a house and land in Walter in the County of Hartford makes a Lease for years of his house and land in the County of Hartford and then by Will does demise his house in the County of Oxon Together with all other his Lands Meadowes Pastures with all and singular their Appurtenances in Walter in the County of Hartford to John Ewer and whether the house in Walter in the County of Hartford does passe or not was the question Tanfeild The houses shall passe for if a man builds a house upon Black acre and makes a Feoffment of the acre the house shall passe and so if a man does devise una jugata terrae of Copyhold Land the house of the Copyhold does passe also for so is the common phrase in the Country and so if a man be rated in a 100 l. subsidy that does include houses and by the grant of a Tenement the house passeth but if a man demand a house in a Precipe there the house ought to be named Whistler contra It is true that if a man generally does devise his Land the houses passe but in this case the Devisee hath particularized his Land his Meadow and his Pasture and if he intended to have passed his houses he would have mentioned them as well as his Lande Fenner I am of the same opinion for this speciall numbring of particulars does exclude the generall intendment and if the Devisor had a Wood there that would dot passe by these words Popham contra For if a man sells all his Lands in D. his houses and woods passe by this word Lands and so was it agreed in a case which was referred to Dyer and Wray chief Justice and there reason was because that a Warrant of Attorney in a Precipe of a House Woods and Land is onely of Land which proves that land does comprehend all of them and therefore I conceive if a man does devise or bargain and sell all his lands in D. the Rents there shall passe for they were issuing out of the land But if a man be seised of three houses and three acres and he deviseth all his land in D. and one of his houses the other houses will not passe for his expresse meaning is apparant but here the words are in generall as to the lands in Walter and therefore the houses do passe But afterwards it was adjudged that the house did not passe for by the particular mentioning of all his Lands Meadowes and Pastures the house is excluded Pasch 4 Eliz. Hunt against King IN a Writ of Error upon a Iudgment given in the Common Pleas in a Formedon brought there the Case was Tenant in tail enfeoffs his Son and then disseiseth his Son and levies a Fine to a stranger and before the Proclamations passe the Son enters and makes a Feoffment to a stranger the Father dies and the Son dies and the Issue brings a Formedon The question was Whether by the entry of the Son the Fine was so defeated
that the Estate-tail was not barred Dyer The Estate tail is barred and made a difference where the Fine is defeated by entry by reason of the Estate-tail and where it is defeated by entry by reason of another estate-tail as in 40 Eliz. Tenant in tail discontinues and disseiseth the Discontinuee and levies a Fine to a stranger and retakes an Estate in Fee before the Proclamations passe the Discontinuee enters and then the Tenant in tail dies seised and adjudged that the Issue is not remitted for the Statute 32 H. 8. saies That a Fine levied of lands any way intailed by the party that levies the Fine shall bind him and so it is not materiall whether he were seised by force of the Estate-tail or by reason of another Estate or whether he have no Estate And all the Iustices were of opinion that the Estate was barred for although the discontinue had avoided the Fine by the possession yet the Estate-tail remains concluded and the same shall not enter by force of the Estate-tail but by force of the Fee which he had by discontinuance Popham Avoidance of a Fine at this day differs much from avoidance of a Fine at the Common Law for it appears by the 16 Ed 3. that if a Fine at the Common Law be defeated by one who hath right it is defeated against all but at this day the Law is contrary for if a man be disseised and the Disseisor die seised his Heir within age and he is disseised by a stranger who levies a Fine and then five years passe the Heire shall avoid this by his nonage yet the first Disseisee is bound for ever for the Infant shall not avoid the Fine against all but only to restore the possession And therefore it was adjudged in the Lord Sturtons Case 24 Eliz. where Lands were given to him and his Wife and the Heires of him and he died and his Issue entred and levied a Fine to a stranger and before the Proclamations passed the Mother enters it was adjudged that the Issue was barred for the Wife shall not avoid this but for her own Estate And so if a stranger enters to the use of him who hath right this shall not avoid the Fine Fenner did agree to this and said that it had been so adjudged but all the Iustices agreed that the Estate-taile being barred the entry shall go to the benefit of him who hath most right to the possession and that is the discontinue and therefore the Plaintiff in the Formedon hath good Title to the Land but onely to the Fee and not to the Intaile for that is barred by the Fine 28 Eliz. in C. B. Rot. 2130. Gibson against Mutess IN a Replevin the Case was John Winchfeild was seised of Lands in Fee and by his Will did devise all his Lands and Tenements to Anthony Winchfeild and his Heires and before his death made a Deed of Feoffment of the same Lands and when he sealed the Feoffment he asked If this Feoffment will not hurt this last Will if it will not I will seal it And then he sealed it and made a Letter of Attorney to make Livery in any of the said Lands the Attorney made Livery but not of the Lands which were in question and then the Testator died And the question was if the Devisee or Heire of the Devisor should have the Land And it was said in behalf of the Heire that if the Testator had said It shall not be my Will then it is a Revocation Quod curia concessit But it was the opoinion of the Court that it appears that it was the intent of the Testator that his Will should stand and if it be not a Feoffment it is not a Revocation in Law although that the Attorney made a Livery in part so that the Feoffment was perfect in part yet as concerning the Land in question whereof no Livery was made the Will is good and the Iury found accordingly that the Land does not descend to the Heire Fenner cited a Case of Serjeant Jeffereys where it was adjudged that where one had made his Will and being demanded if he will make his Will doth say he will not that this is no Revocation Sir Wolston Dixy against Alderman Spencer 20 Eliz. in C. B. IN a Writ of Errour brought upon a Iudgement given in an Assize of Fresh-force in London The case was Sir Wolston Dixy brought an Action of Debt for rent arrear against Spencer upon a Lease for years made to him by one Bacchus who afterwards granted the reversion to Dixy and the Tenant attorned and for rent arrear Dixy brought an action c. The Defendant pleaded in Bar that before the Grant made to Dixy the said Bacchus granted it to him by parole according to the custome of London whereupon he demanded Iudgement if c. and the Plea was entred on Record and hanging the suit Dâ—xy brought an assize of fresh force in London and all this matter was here pleaded and it was adjudged a forfeiture of the Land and hereupon Spencer brought a Writ of Errour and assigned this for errour that it was no forfeiture Shuttleworth It is no forfeiture untill a Trial be had whether the reversion be granted or not as in wast the Defendant pleads that the Plaintiff had granted over his estate this is no forfeiture and in the 26 Eliz. in a Quid Juris clamat the Defendant pleaded that he had an estate Tail and when he came to have it tryed he acknowledged he had an estate but for life and that was no forfeiture But the Court said they could remember no such Case Walmesley It was so adjudged and I can shew you the names of the parties Periam Justice If there be such a Case we would doubt of it for there are Authorities to the contrary as the 8 Eliz. and 6 Rich. 2. Anderson If the Defendant in a Trespass prayes in aid of an estranger this is a forfeiture and if it be counter-pleaded it is a forfeiture and the denial alters not the Case Walmesley The Books in 15 Ed. 2. Judgement 237. and 15 Ed. 1. that Iudgement in a Quid Juris clamat shall be given before the forfeiture Andâ—rson In my opinion he may take advantage before Iudgement as well as after if the Plea be upon Record And so was the opinion of the Court. The Dutchess of Suffolks Case Pasch 4 5 Ph. Mary in C. B. IN a Quare impedit against the Bishop of Exeter the Writ was ad respondendum Andrew Stoke Dennisae Franciscae de Suffolk Uxori eâ—uâ— Benlowes demanded Iudgement of the Writ c. because she lost her name of dignity by marriage with a base man as it was adjudged 7 Ed. 6. Dyer 79. where Madam Powes and her husband brought a Writ of Dower and the Writ abated because she called her self Dame Powes whereas she had lost her dignity by marrying with her husband Stanford agreed for Mulier nobilis si
nupserit ignobili desinit esse nobilis Brookes There is a difference where a noble woman marries a noble man of less noble degree than she is and when she marries one that is not at all noble for in the first case the shall hold the dignity of her second husband but in the last case she shall retain her antient dignity And so it was observed where the Marquis of Dorâ—eâ— had two daughters the elder was married to the Lord Audley and the youngest to a Gentleman and the eldest took place alwayes as wife to a Baron but the youngest kept her place as a Marquisses daughter Dyer I was a Counsel in the Case of the Lady Powes already mentioned and she would by no means lose her dignity and an Herauld was brought into Court that said she had such dignity although it was held clearly on the contrary by our Law by Montague and Hales and the Writ did abate Stanford A noble man loseth his honour by his own act as by attaint and so hath the woman here by taking such husband and the nobility of such woman is lost also by attainder Brookes said That he knew where the sons of a Duke and Marquiz had a trespass brought against them for hunting a Park by the name of Squires and it was good wherefore it was said to Benlows that he must plead to the Writ Pasch 4 5 Ph. Mary in C. B. A Feme sole having the custody of the land and body of an Infant took husband and she and her husband did tender convenient marriage to the Infant which he refused and married himself elsewhere and at his full age entred into the land if it be necessary that both shall joyn in a Writ of forfeiture upon the marriage or that the husband alone shall have it was the question Brown Justice Both shall joyn and so is it ruled in a Book Dyer contr The husband alone shall have this Writ for he may discharge it or release it and by the 5 Ed. 3.14 6. the husband alone may have a Writ of Trespass and if the wife have an advouson and a stranger present the husband alone shall have a Quare impedit and the same Law is where the woman hath a Rent and the husband distreyns and Rescous is made the husband alone shall have a Rescous Prideaux The Wardship of a Ward and Land is a thing real and the Survivor shall have it and not the Executors of the Baron and if an Action be accrued before marriage as if a Bond be made to her before marriage she shall joyn with her husband in the Action upon the Bond but if a right to an Action does accrew after marriage there she shall not joyn as here the right of the husband does not accrew untill marriage for the Action is not in respect of the Wardship but of the tender and refusal and his marriage elsewhere all which do accrew after the Coverture Stanford If a man bring a Quare impedit for an Advowson which he hath in right of his wife and hath Iudgement to recover and dyes the wife shall present and not the Executors of the husband so if he recover in a Trespass the wife shall have execution for the damages Prideaux If a Lease be made to a woman and a Rent reserved â—…mine poenae and she takes husband and the Rent is behind both shall joyn in the Action for the pain Dyer This Action is grounded upon a real Covenant Stanford Damages recovered in a Trespass are not real yet the wife shall have them if the husband dye before Execution Dyer The Trespass is done to the inheritance of the wife and therefore she shall have damages and in 43 Ed. 1. Statham The husband alone brought a ravishment of a Ward for a Ward he had in right of his wife and the Writ held to be good but there it is said that otherwise it is in right of a Ward and if they joyn in a Writ of ravishment of Ward and recover and the husband dye before Execution his Executors shall have Execution and not the wife but it is said there Quaere and at last it was agreed that the Action should be allowed but the surest way is to have bosh joyn Pasch 6 Eliz. Powtrells Case in C. B. IN an Ejectment the case was a woman-tenant in Tail did make a Lease for 31 years and took husband and had issue the wife dyes and the husband is tenant by the curtesy and surrenders to the heir who puts out the Lessee who brings this Action Dyer I doubt whether this surrender be good for tenant by the curtesy is but in reversion and hath nothing in possession and it is dubious how he can surrender Weston and Brown He may surrender for a term or franktenement may be surrendred to him that hath the estate in reversion or remainder if it be not a mean estate as tenant for life the remainder for life the remainder in fee the first tenant for life cannot surrender to him that hath the fee. But the great point of the Case was if the issue could avoyd the Lease during the life of the tenant by curtesy and the Court held he could not for the tenant is in as a purchaser And by Walsh and Carus If tenant by the curtesy grants over his estate and then enters into religion the Grantee shall have his estate during the tenants natural life Quod omnes concesserunt and it was said also that if the heir had been impleaded during the life of the tenant by curtesy he shall not have his age quod fuit concessum Mich. 14 15 Eliz. Tottenham against Bedingfield IN an Account the Defendant pleaded he was never his Baily for to render account Gawdy prayed the opinion of the Court if the Action would lye for otherwise he would not trouble the Court. The Case was the Plaintiff had a Lease of a Parsonage and the Defendant being no Lessee nor claiming any interest takes the Tithes being set forth and carries them away if the Plaintiff could have this Action was the question Manwood It will not lye for an account lyes where there is privity but wrongs are alwayes without privity but I agree that it one receive my rents I shall have an account against him for by my consent afterwards I do make a privity for although that he hath received the Rent he hath not done wrong to me inasmuch as it is not my money untill it be paid to me but otherwise it is where a man disseiseth me of land for that is meerly a wrong and so is it in this case for when the Tithes were set forth by the Parishioners the Law sayes they are in the possession of the Parson and therefore when the Defendant took them away he does it wrongfully and therefore no account will lye against him and so was it adjudged in Londâ—… in the Case of one Monax who under colour of a
should do no other thing that should be forfeiture of the Copyhold that then c. The Defendant pleaded conditions performed the Plaintiff replyed and alledged waste committed in a shop that fell down during the term for want of reparation but the Defendant in rejoynder alledged that the shop was ruinous at the time of the Lease and by reason thereof fell down Tanfield It is no waste as the Books are 42 Ed. 3. 19 Ed. 3. 2 H. 7.3 a. 12 H. 8.11 a. If a house be ruinous at the time of the Lease and fall during the term it is no waste yet the Book in 7 H. 6. is otherwise And in the 12 H. 4. a man lets his house promiseth that the Lessee shall not suffer any voluntary waste if the timber be so good as it will endure the whole term although it be not covered yet is the Lessee bound to reserve it during the term Godfrey for the Plaintiff and agreed to all the cases aforesaid But here the Defendant is bound by his obligation and therefore it differs from the case in 42 Ed. 3.6 and of Perkins 142. where a diversity is between a waste and a covenant for if a man makes a Lease for years and by sudden chance waste is committed this shall excuse the Lessee but if he covenant to leave the house in as good a condition as he found it if the house fall down by tempest yet he ought to re-edify it Also in this case it is a waste in Law although the house were ruinous at the beginning of the Lease for in a waste brought in such case if he pleads nul waste fait he shall not give such matter in evidence but it is onely to excuse him And with him agreed all the Court and Iudgement was given for the Plaintiff Austin against Courtney 30 Eliz. in B. R. Rot. 165. AUstin and his wife as daughter and heir of one Webb brought a Writ of Errour against Thomas Courtney to reverse a Fine leavied in a base Court by the said Webb to himself Cook assigned these errours 1. Because the Fine was levied de uno tenemento which is not good for the generality for it may be land or common or rent And in 3 Ed. 4. a Plea in Bar was rejected because it was pleaded that one was seized de uno tenemento for this is uncertain And in 38 H. 6. an Action is brought upon the Statute of 8 H. 6. for entry into certain tenements that is not good for it ought to be brought of so many acres The second errour was because Webb the Conusor did acknowledge the land to be his right whereas it ought to be the right of Courtney the Conusee The third errour was because the Fine was levied in a base Court which prescribes to hold Pleas but they cannot levy Fines there for then the King shall lose his silver 50. Assiâ— And so was it adjudged between Bambury and Peres that a Fine levied in Chester which had such prescription is not good wherefore Iudgement was given that the Fine should be reverst Trinit 30 Eliz. Ireland against Higgins Rot. 403 vel 43. IN an Action of the Case the Plaintiff declared that whereas a dog came to the hands of the Defendant which belonged to the Plaintiff the Defendant did assume to deliver the said dog to the Plaintiff upon request and that the Plaintiff had requested him and he did not deliver the dog ad damnum c. and hereupon the Defendant demurred Leigh for the Defendant Here is no consideration for when the Plaintiff is out of the possession of his dog he hath lost his interest in him for a dog is ferae naturae and therefore when he is out of possession he hath no remedy 22 H. 6. 10 H. 7. â— 6 Ed. 4. and he cited Fyneâ— and Sir Johâ— Spencers Case in Dyer where a Trespass will not lye for a hawk Also by the Grant of omnia bona catalla dogs do not pass nor are tithable nor are Assets Tâ—…field contra Horses cows and all cattel which are most profitable for service of man were at first ferae naturae and so were dogs also but since by use nothing is so familiar and domestick to man than is a dog and then he cannot be ferae naturae and therefore a Trespass will lye for a dog if he declare his dog for that word does imply it is his domestick dog and he much relyed on a Book the Roll whereof he had seen Trâ—nâ—t 15 H. 7. R. 35. where a man justified in a Trespass of Battery in defence of his dog And in 2 Ed. 2. Avowry 182. a Replevin was brought of a Ferret And in 23 Elâ—z Leeks Case where one had Iudgement to recover great damages for a blood-hound And as to the Case of Fâ—neâ— and Sâ—eâ—ce the reason why the Plaintiff had not Iudgement was because he did not shew that the hawk was reclaimed but after he brought a new Action and had great damages And at last it was adjudged by all the Court that the Action is maintainable and Iudgement commanded to be entred nisi c. Trinit 30 Eliz. Stone against Withepoole in B. R. Rot. 771. IN an Action of the Case the Plaintiff declared that J. S. wan indebted to him for velvet and other things to such a value and was bound in a Bond to pay money for them and that afterwards the Defendant being his Executor did assume and promise to pay the money The Defendant pleaded that the Testator was within age at the time of the making the Bond and hereupon the Plaintiff demurred Egerton S ll citor for the Plaintiff A Contract made by an Infant is not voyd but voydable and if the Infant at his full age had assumed as the Defendant hath it had been good and by the same reason the Executors assumsion is good 9 Eliz. 13. where the Lord Graâ— being heir to the former Lord Gray although he was not bound to pay the debts of his father upon simple contract yet in regard he did assume to pay them he was made chargeable And in 15 and 16 E iz it is a good consideration where an Administrator undertakes to pay debts upon a simple contract but admitting the Executor be not chargeable by Law yet in equity and conscience he is chargeable in Chancery and when he promiseth in consideration that the Plaintiff will not sue him that is a good consideration Cooke The consideration is the ground of every Action on the Case and it ought to be either a charge to the Plaintiff or a benefit to the Defendant 17 Eâ— 4 5. where a man promised and assumed to a Chyrurgean money for curing a poor man that was a good consideration for although it is no benefit to the Defendant yet it is a charge to the Plaintiff and where there is no consideration there can be no good action as where a man promiseth a debt that he never owed
21. years that is good and the Executor shall have it as in right of his Testator But where a man makes a Lease for years or life the remainder after his death for 40. years to his Executors the Executors shall have it as purchasors for this word remainder divides it from the Testator and makes the Executors purchasors Walmesley Glanvill and Kingsmill cont And their chief reason was from the intent of the parties and their intent was that the Lessee should have an estate during life for it is to him for 89. years if he so long live and because by common intendment he cannot survive those years their intent was that his Executors should have it after his death and that the certainty of the time might be known it was limited for 40. years And W lmsley said that the Administrator could not have this by purchase for when a man takes by purchase he must be named by an apt name of purchase by which he may be known as if there be tenant for life the remainder to the right heirs males of J.S. and J.S. hath issue two sons and the eldest hath issue a daughter and J.S. dies this daughter shall never take any estate because she is not heir male she hath no name of purchase and therefore here the Administrator cannot take by purchase for the Administrator comes in by the ordinary and therefore cannot be an assignee And at last Iudgment was given That the Administrator should hold it as a thing vested in the Intestate Michaelm 41 42 Eliza. VVhite against Gerish in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent The case was this Two persons did joyne in leavying a fine to J. S in Fee â—ur coâ—…ns de droit come ceo c. J.S. by the same Fine renders the Lands to one of the Conusors in taile reserving Rent and further would quod tenementa preâ—…cta remanerent to the other who is the avovee Walmesley The Rent shall passe as if a man grants land for life and also grants quod tenementa predicta remaneâ—unt to another these words Quod tenementa predicta do make a grant of the reversion and also these renders are as severall Fines and so it shall be taken as a grant in Taile rendring Rent and after a grant of the reversion Glanvill accorded Warburton If a man makes a gift in Taile rendring rent the remainder over in Fee the Donor shall have the Rent and not he in the remainder Walmesley That is true in a grant but not in a Fine Anderson If a man makes a gift in Taile rendring rent and at the same instant grants the Reversion and the Deeds are delivered accordingly this shall passe as a reversion And after it was adjudged to be a grant of the reversion and that the rent passeth Crawleys Case IN Replevin the case was thus A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth and if the Rent were determined was the Question Walmsley The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoynd with the possession whereby the Rent it self is carryed to J.S. whereby J.S. hath an absolute estate for his life and the life of the grantees is not materiall as if Rent be granted to two for the life of J.S. if he does not grant over the rent their lives are not materiall And if they grant over and dse the Rent shall not cease but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie otherwise if it were before the Statute of use quod fuit concessum per curiam Pasch 41 Eliz. Shaw against Sherwood Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill and the Bill was thus I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Elizâ—beth Shaw equally to be divided which said sum I acknowledge my self to have received to the use aforesaid and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and Eâ—…zabeth Walmesley Two points are here First if this be a Debt to cestuy que use or to him who gave it Secondly if it be divided so that each of them shall have an Action for 20 l. And as to the first he held that it was a debt to him for whose use the money was delivered and as to the second that they shall have a debt as of several debts by reason of these words equally to be divided Kâ—…gâ—…m Here is no Obligation for the words are not obligatory but onely an acknowledgement of the receipt Glanyâ—ll accorded Walmesley When he acknowledged the receipt to both their uses without question such Receiver is a Debtor And agreed by the Court that admitting it was a Debt that then it shall be a divided Debt and not joynt Quod nota Lane against Cotton IN Debt upon a Bond on condition to pay 20 l. within a month after the Obligee had a son that did or could speak the Lords Pâ—…er in English that he could be understood the Plaintiff pleaded that he had a son qui loqui potuiâ— praecationem Domini uâ—intelligâ— potuerit and the Defendant demurr'd because it was pleaded that he had a son qui loqui potui for that is a secret ability that cannot be known Kingsmill The plea is good and shall be tryed as in case of a Writ of non comâ—…s mentis Glanvill accorded for it may be proved by the testimony of those who have heard him speak and if he ever spoke it it is good evidence that he had ability to speak Walmesley contr Because it is a secret thing it cannot be tryed Kingsmill A man is bound in a Bond to give me 20 l. when the River of Varâ— is novigable it is a good plea to say that the River is navigable without saying that some have navigated upon it Herâ— Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop who had pleaded that the Parishioners were Welshmen and that they could not understand English and that the Clerk he presented could not understand Welsh and the Patron pleaded that the Clerk could speak Welsh and upon Demurr it was adjudged a good issue and that such matter might be tryed Anderson The issue is good and it is at the election of the party to plead quod loqui potuit vel loquutus est And if I am obliged to you to give you a 100 l. when I am able to go to Pauls this may â—e tryed although in facto I never went to Pauls and if I am able I shall pay the money And he cited Broughtons Case where in Maintenance the Defendant pleaded that he
the Reversion Warburton I conceive he shall have the Ayde 7 H. 4.2 where ayde is prayed against him in the Remainder and Reversion and and he cited a Manuscript 11 R. 2. direct in the point that the ayde would lye But the other Iustices cont for the Tenant for life hath as high an estate as he in the remainder and may plead all that the other may but if there be Tenant for life the remainder in Taile there he shall have ayde of the Tenant in Taile 23 H. 6.6 11 Edw. 3.16 If there be Tenant for life the remainder for life the remainder in Fee tenant for life shall have ayde of them both for else he in the remainder shall not come in to plead 11 E. 3. ayde 32. Where it is resolved that tenant for life shall have ayde of the Reversioner for life Hillar 28 Eliz. VVatkins against Astwick A Man makes a feofment on condition that if he his heirs or Executors do pay the Rent of 100 l. before such a day that he may re-enter the Feoffer dyes his heire within age the mother without any notice of the son requests J.S. that he would pay the money for her son And all this was found by speciall verdict but it was not found of what age the son was Clinch If the Iury had found that the son was of the age of 17 years the payment had been good Wray If a Bond be upon condition that the Obligor or his heirs should pay 100 l. and the Obligor dyes his heire within age I conceive payment by the Guardion or by some other friend is good And afterwards all the Iustices agreed That if the Infant were within the age of 14. years the tender of the money by his mother had been good but contra if he had been more than 14 years and because no age was proved here but that he was within age it shall not be intended that he was within the age of 14. years and therefore they advised the party to begin de novo and that it may be found that the Infant was within the age of 14. years Trinit 25. Eliz. Moris against Paget in C. B. Rot. 2215. IN a Replevin a speciall Verdict was found that Sir Francis Ascough was seised of the Mannor of Castor in Lincolne which Mannor extended it self into four Towns v z. Castor North Kelsey Dale â—ale and that there were demesne lands and Freeholders in each of the said Towns and that Moris the Plaintiff held the land where c by Fealty and suit of Court to the Mannor of Castor and the lands did lie in one of the Towns viz. in Norch Kelsey And Ascough being so seised sold to the Defendant Totum illud Manerium sive Dominium de North Kelsey cum pertinentiis in North Kelsey ac omnia ac singula Messuagia redditus Herriot and all other things used or reputed as parcell thereof with all Courts c. To have and to hold to the Vendee and his heires and Moris the Plaintiff and other freeholders in North Kelsey did attorne to the Vendee The Question was if the Vendee had the Mannor of North Kelsey or not Peryam He has not yet by the feofment and attornment all the Tenants and services are conveyed to him but not as a Mannor for a Mannor is made and incorporate by continuance of time and this entire Mannor of Castor cannot be divided no more than other liberties as if the King grant to three partners who have three Mannors a Leet or Warren and one of them makes a feofment the Feofee shall not have the Leet and heâ—tted Dyer 362. a. and he sayd if I grant my Mannor of â—except certain Demesn lands and services the feofee shall have the Mannor and I shall have the Lands and services in grosse and so if I have a Mannor that extends into two Towns and I grant my Mannour to you in one Town you shall have no Mannor but the lands and services in gross Windham Iustice cont For where he grants his Mannor of North Kelsey in North Kelsey there it shall be construed his Mannor in reputation Ander on agreed for although a Mannor cannot be created at this day yet is it not so intire but it may be divided Hillar 30. Elizab. Sir Thomas Howards Case A Man makes a Lease for years the 10th of May and then the Lessor bargains and sells this to another by Deed enroll'd bearing date the 10th of Aprill and it was entred to be conveyed the 10th of Aprill before but in truth it was delivered and acknowledged and enrolled afterwards And it was held that the bargaine was without remedy at the Common Law for he cannot plead that it was acknowledged or delivered after the date of the day of acknowledging it and so was the opinion of Rhodes Peryam and Windham Anderson being absent for he cannot aver that it was inrolled or acknowledged at another day then it is recodred because it is contrary to the Record for it is entred that it was acknowledged the 10 of Aprill and then if such a plea should be admitted it would shake most of the Assurances in England Note Shuttleworth put this case A man makes a Lease rendring Rent at two Feasts and if the Rent be behind at any of the said Feasts or 40. dayes after and no distress to be found that the Lessor shall re-enter the Lessor comes upon the ground the last day of the 40. and demands his Rent and because no distress was sound on the land at the time of his demand he entred But it was averred that always before this day there was sufficient distress and the question was if his entry were good Fenner and Rhodes said they had seen a Report of the same Ease 8 Eliz. That the distress ought to be on the Land on the last day yea at the last instant of the day which is a legall time to make a demand or else the Lessor may enter Walmsley The same Ease was resolved a year agoe in the Kings Bench between Ward and VVare But if it were and no distress to be found at any time within forty dayes there if there be a distress found at any time it is sufficient Vid. 1. Inst 202. a. 28 Eliz. VVood against Ash IN a Replevin the Ease was thus Puttenham made a Lease of Land with a Stock of Sheep for 20. years rendring Rent and the Lessee doth Covenant to render back to him at the expiration of the Lease 1000 Sheepe of the age of three or four years and that the Lessor grants all his Chattells and this stock of Sheepe to Elizabeth Vavafor the Defendants now wife but in Truth the Sheepe of the old stock were all spent and others supplyed part by increase and part by buying of other Sheepe Walmesley for the Defendant The grant made by the Lessor is good for the generall propertie does remain in him although that the Lessee hath a speciall
shall present for there is no reason the patron should for by his precedent presentment he hath dismist himself untill resignation or death as if a man lets land for another mans life he shall not have the land during the life of Cestuy que vie great mischief would be if it should not be so for els all the presentments that the King hath made shal be usurpations The second matter was that no presentment is pleaded against the King by the Patron for it is pleaded that the Parson was admitted and instituted but not that he was inducted but the Court held it good notwithstanding that omission But as to the first point the Court asked Williams if he could shew presidents that the King should have such presentment for they said that the usage by the Pope is no argument at all for that he used to usurpe many things Walmesley I conceive this custome began by the Popes usurpation but he said there is a Book in the time of Edâ— 2. where this point is argued and adjudged that the Patron shall present and not the King VVilliams shewed eight or nine Presidents in the time of H. 8. that the King used to present in such case but all of them were between spirituall persons And the Court said they did not regard those presidents for all spirituall persons were the Popes servants vid. 6 Elizab. 72.8 South against Whitewit IN a prohibition the case was thus the wife of VVhitewit had spoken scandalous words of South and therefore the was excommunicated by the high Commissioners and by Letters Missive a Pursevant came at twelve of the clock at night and broke the house of VVoâ—tewit and tooke the body of VVhi ewâ—… wife who was rescued wherefore VVhitewit her husband was called before the Commissioners and hereupon VVhitew t prayed a prohibition And the question was if a Pursevant could break a house by such Commission or not And it was agreed that by the Common Law neither the Pope nor any other spirituall Iudge had any thing to do with the body and goods of any one for only the sword spirituall belongs unto them VValmesley At the Common Law after Excommunication a Capias Excommunicaâ—um was awarded and I conceive this writ is of force at this day and is not taken away by the Statute of 5 Eâ—…z Kingsmâ—ll agreed for this Statute gives power onely to correct the spirituall law and to take away the authority of the Pope but gives the same means to execute it as before and he further said that the Statute that did erect the Court of Wards doth appoint a Seale belonging to it and other process according to the course of the Common Law and therefore by the same reason if this Statute of â— Eliz. intended to give them such authoritie they would have appointed a Seale also and a course according to the Common Law but as the course is here used a man may be robb'd in his house by a beggerly Pursevant which is no Officer known by the Law And so was the opinion of the Iustices Pasch 40 Eliz. Goosey against Pot in C. B. IN a Replevin the Case was thus two Hundreds were adjoyning together to two several Mannoure of two several persons and the avowant was seized of one of them and he prescribed that all the Tenants of the other Hundred have used to make suit to the Leet within his Hundred and also that the Lord of the other Hundred used to appear or to pay him 4 s. pro anno futuro and if it were not paid the Defendant prescribed that he and all those whose estates he hath have used to distreyn any Inhabitant within the Hundred for the same and therefore for 4 s. not paid he did avow the Distress whithin the Mannour of the Plaintiff who was one of the Inhabitants Williams A man may prescribe by a que estate in a Hundred for a man may have it by disseisin and there are divers presidents which the Prothonotaries have shewed me to warrant this in a Replevin for the seisin is the matter of the title And to this Littletons rule may be added that of all things which lye in grant and whereof a man cannot be disseised against his will a man shall not plead a que estate Kingsmall A que estate cannot be pleaded of a Hundred unless if be appendant to the Mannour and a second matter was moved in this Case viz. that he prescribed to distreyn the Cattle of a stranger for the essence of the Lord. Williams It is not good by the 41 Ed. 3. but by the 47 Ed. 3. for suit and service the Cattle of the Lord may be distreyned on any land within the Hundred Anderson I do agree to the Case of my Lord Dyer that the Cattle of a stranger cannot be taken for a Herriot Walmesley In the 12 of H. 7. it is said by Fineux that a Lord of a Mannour may inlarge his services by prescription and so the Cattle of a stranger may be taken but for a personal matter as for amercement in default of suit no stranger may be distreyned And afterwards agreed by all the Iustices that the strangers Cattle could not be distreyned Holt against Lister IN a Replevin the Case was thus he in the reversion after Tenant in Dower grants it over to the use of himself for life the remainder to his nert son in Tail the remainder to the use of himself in Fee and after this he levyes a Fine to the Plaintiff and his heirs of land which he claimeth de haered tate sua after the death of the Tenant in Dower The Plaintiff brought a Quid Juris clamat against the Tenant in Dower and upon non sum informatus Iudgement was given that the Tenant should attorn and now he prayed that she should not attorn for if she atterns she will torfeit her estate Walmesley If he in the remainder for life grants over by Fine it is no forfeiture for he gives no more right than he hath and so hath it been adjudged in the time of my Lord Dyer Glanvill I agree to that but in this Case he grants that which he hath de haereditate sua and this recital will make a forfeiture and then if the Tenant in Dower attorn this is a forfeiture Anderson This attornment is no forfeiture because it is by judgement of the Court. Walmesley I agree for the Grant it self is no forfeiture unless it be by reason of the recital but the Attornment shall have relation onely to the substance of the Grant And it was much disputed between Walmsley and Glanvill If Lessee for life of a Rent grants this in Fee by Fine if this be a forfeiture and Walmesley vouched a Iudgement that it was no forfeiture and Glanvill voucht 31 Ed. 3. Grant 60. to the contrary and 15 Ed. 4.9 by Littleton If Lessee for life of a Rent grants this by Fine in Fee it is a forfeiture by reason of the
the wife is at large to have the twelve pound and her Dower also But the Court held that she could not have her joynture for by the recovery of the Dower her joynture is barred for the Rent was given her in recompence of her Dower so that it cannot be intended that she shall have Rent Dower also wherefore it was adjudged that her entry on the Land was not good 30 31 Eliz. The King against the Bishop of Canterbury and Hudson Rot. 1832. IN a Quare impedit Hudson the Incumbent did plead that King Edw. the 4th did grant the Rape of Hastings Et bona catalla Fellonum Fugitivorum ategat of all Residents and non-residents within the said Rape to the Earl of Huntington And pleaded that John Ashborne was seized of the Mannor of Ashborne and of the advowson appending to it and held the same of the Earl of Huntington as of his Rape of Hastings and that the said John Ashborn was outlawed during which the Incumbent of the said Church dyed and the Earl presented the said Hudson Shut I conceive this avoydance does not belong to the Earl by reason of this grant for by the same Patent libertie is given to the said Earl his heirs to put himself into possession and of such things as he cannot put himself into possession they will not passe and here this is a thing in action which by these words will not passe 19 H. 6.42 by the grant de Catalla Fellonum obligations do not passe VValmesley Stanford in his prerogative saith that by the words Bona catalla the King shall have the presentation to the Church of him that is outlawed or Attaint and by the same reason he may grant it by such a name and although the party cannot seise such a thing yet it shall passe 39 H. 3.35 Rent for years shall passe by the grant of bona Catalla Periam It will passe by these words for it is an ancient grant for in that time the Patents of the King were not so specially penned as now they are Anderson I conceive the avoydance will not passe by thse words for within this word bona moveables are contained both dead and living and Avoydance is no Chattell nor right of Chattell Quod Peryam negavit c. Mich. 37 38 Eliz. Townsend against VVhales IN an Ejectment the Iury found that J.S. was seized of land in possession and also in reversion for terme of life and made a Devise by these words That his Executors take the profit of all his Lands and tenements Free and Copy for ten years for the payment of his debts and Legacies and after the end of the said ten years that all the aforesaid lands and tenements with their appurtenances should be sold by his Executors or one of them and the silver to be bestowed in the performance of his Will or by the Executors of his Executors or any of them and then one of the Executors dyed within the ten years and the two surviving Executors did grant all aswell in possession as in reversion to House who made a Lease to the Plaintiff And two points were resolved 1. That the Executors may grant the reversion 34 H. 6. for by these words Free and Copy his intent appears that all should be granted 2. That although one of the Executors died yet the other two Executors may sell Anderson If such bevise had been at the Common Law and one Executor had refused the two others could not sell but if one die the survidors may sell the land for there the authority doth survive Which difference the other Iustices agreed to And at another day Anderson said there was difference where the Devise is that Executors should sell his and the money divided between them there if one die the others shall not sell but otherwise here because the money is the performance of his will Walmesley The sale by the two Executors is good for it is said the Executors or any of them c. And Beaumond agreed Wherefore judgment was given for the Plaintiff Note that there were two verdicts in this case and the first only found that the Executors shoull sell after the ten years and that one dyed and the other two did sell within the ten years and the opinion of the Court was that the sale was voyd but in the 39 and 40 Eliz. all the whole will was found and Iudgment given ut supra The Earle of Rutlands Case Roger Earl of Rudand and John Maners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland brought an action on the case against Isabell Countess of Rutland And Declared for divers Iewells and goods c. that came to the hands of John Earl of Rudand as Executor to the said Edward and the said John the 10th of July 29 Eliz. did casually loose them which after came to the hands of the Defendant licet saepius requisita she would not deliver them to the said John in his life time nor to the said Plaintiffs after his death but knowing the goods did belong to the Plaintiffs in D. in the County of Notingham converted them to her proper use And a verdict for the Plaintiff And it was moved often in arrest of Iudgment but all the Iustices agreed that the action of Trover and converversion would lie by the Executors upon the Satute of the 4 Ed. 3. upon a conversion in vita Testatoris and so hath it been adjudged in the Kings Bench and although the Statute mentions onely a Writ of trespass that is only put for example Also they all agreed that the sole cause of action to the Conversion for it there were no conversion they shall be put to their Detinue therefore the great doubt did arise because the day and time of the conversion was not shewed for perhaps it was after the Writ and before the Declaration And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said That all Iustices of the Common Pleas and of Serjeants Inne in Fleet-street besides Peryam Chief Baron were of opinion that Iudgment should be given for the Plaintiffs for that some of them held that the day of the Conversion is not materiall to be shewn and others that of necessity as this case is it shall be intended that the conversion was in the Plaintiffs time wherefore Iudgment was entredfor the Plaintiffs but a Writ of Errour was brought and the Case much debated Michaelm 38 39 Eliz. Carew against Warren in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in antient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland who rendred to Gunter in Fee who devised the reversion to his wife for life the remainder in Fee and dyed And then the Lord of Andover which is an ancient Mannor by an