found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
arrear that the Remainder shall be to a Stranger that Remainder is not good Hutton said that in my opinion my Brother Atthow spoke well and so it was affirmed Bateman against Ford. AN action of the Case was brought against Ford who had called the Plaintiff Thief and that he had stollen from him a yard of Velvet and a yard of Damask The Defendant said that he said that the Plaintiff had taken and bribed from him as much mony as he had for a yard of Velvet and Damask and justifies Hitcham said that the Iustification is not good For the words that he justifies do not amount to so much as to affirm a Felony in the Plaintiff where the Plaintiff counts that the Defendant slandered him of a Felony Hutton said What difference is there when you say that I have bribed your Horse and when you say that I have robbed you of your Horse Henden one may take Goods and yet it is not felony Termino Pasc Anno 4. Car. Regis Com. Banc. Norris against Isham IN an Eject firm by Norris against Isham These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case That an Eject firm cannot be of a Mannor Because that there cannot be an Ejectment of the Services But if they do express further a quantity of acres it is sufficient It was said by Crook Iustice and not denyed That if a Lease is made of 5 acres to try a Title in an â—…eject firm And of the 3 acres he will make a lease But in the other a he will not If the livery be in the 3 acres the other 2 does not pass Part of the Evidence was That the Countess of Salisbury being seised of the Lands in Question makes a Lease of them by words of Demise Bargain and Sale to Iudge Crook for a Month to begin the 29 September habendum a datu and it was deliveted the 3 of September And the same day he bargains and sells the Reversion Davenport Because that no Entry appears by the Lessees by vertue of the Demise he submitted to the Court If there was any such Reversion in the Grantor he bring in possession And this difference was a greed That if one demises Lands for years and Grants the Reversion before Entry of the Lessée The Grant is void As it is in Saffins Case Cook 5. 12. 46. But if a man bargain and sell for years and grants the Reversion before Entry of the Lessee it is good For the Statute transfers the Possession to the use As if a man bargain and sells in fee or for life and the Deed is inrolled The Bargainee is in possession of the Frank-tenement And so it is of a Lease for years which is a Chattell And by Crook In the Court of Wards that very point was resolved Davenport Also there are words of Demise and Bargain and Sale before which the Lessee had his Election to take by which he would As Sir Rowland Heyards Case is But by Hutton and it was not denyed He should be in by the Bargain and Sale before Election For that is more for his advantage Further the Evidence was That George Earl of Salisbury made a Lease of those Lands which were a Mannor And makes a Conveyance from himself for life with divers Remainders and then to the use of the Daughter or Daughters of the said George And the heirs males of thrir bodies the remainder to the heirs of the body of the said George c. and had 3 Daughters to whom the Remainder The first dyed without Issue the 2 d. dyed having Issue male the 3 d. bargains sells all her half part and pur part to Edw. Earl of Salisbury Who now being seised of a third part of the Estate of Inheritance and of the other two parts for his life and the lives of the 3 Daughters suffers a common recovery by the name of the moyety of the Mannor And the doubt was what passed Richardson By that there is not passed but the moyety of the third part Hutton Crook and Yeiverton were on the contrary opinion and said that by that All the third part passed also Yelverton If a man be seised of the mannor of Dale and buys half for life of another in fee and makes a Feoffment of the half of the Mannor The moyety which he had in Fee shall pass And there shall be a forfeiture for no part Which was agreed by the Court. If a man be seised of the third part and grants the moyety perhaps the moyety of the third part only passes But he is seised of all Richardson There are several Estates and moyety goes to that Estate which he had in the Mannor For when I grant more than I can grant that which passes passes Crook I had the third part of a Mannor and grant the moyety of the Mannor all my third part passes But in the Bargain and Sale the words were part et pur part Which as it was passed all And also the Covenant to the Lessor The Recovery was of the half part pur part And by Hutton Crook Yelverton All was intended to be recovered And then the word Moyety carries that tresbien Richardson That Indentures of Covenant much mends the Case Another Question upon the Evidence was Whether when a Bargain and sale is made of Lands And the Bargainee before inrollment makes a Lease for years and afterwards it is enrolled If the Lease now be good Richardson and Yelverton It shall be that although it be after acknowledgement and before inrollment yet it is naught And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case That if one sells in fee and before inrollment the Bargainee bargains and sells to another And afterwards comes an Inrollment That second Bargain and sale is void And an other Question was Pasc 4. Car. Com. Banc. If one makes a Lease for years by Indenture of Lands which he had not If the Iury be estopped to find that no Lease And by Richardson If the finding that no Lease be subject to an attaint But they should find the special matter And then the Iudges would judge that a good Lease And Sergeant Barkley cited Rawlins's Case Coo. 4. 43. to that purpose Crook and Hutton against him And Crook said That it was adjudged in London in Samms case That that is not an Estoppel to the Iury. Which was affirmed by Hutton And that they may find the special matter And then the Iudges ought to find that it is not a good Lease And Hutton said That there is a difference between a special Verdict and pleading in that case For in speciall pleading and Verdict is confost by all parties That he had not any thing in the Lease And then the Iudges gave Iudgment accordingly The King against Clough IN the case of a Quare impedit by the King against Clough before Richardson shewed how the Quare
the Civil Law And it was resolved First that the King by his Charter deprives the subject of his Liberty and Priviledge of Tryal As he cannot by his Letters Patents alter the nature of Gavelkinde Land but by prescription he may alter it in particular places As 9 H. 6. 44. In corpus cum causa to the Chancellor of Oxford was certified that the prisoner Pro extensione detentus fuit convictus And an exception was taken for that that he should have been indicted and convicted and it was answered that it was Mos Universitatis And by Hutton Iustice That custom was to be intended to be by prescription But so the Charter is confirmed by Act of Parliament it is as good Secondly that there is a good cause of action in the Chancellors Court. For Wilcocks who is one of the parties is a Scholar and the Charter was only made for the ease of Scholars that their Studies might not be interrupted by Sutes in other Courts But then he ought to be a Scholar resident in the Vniversity at the time of the Sute commenced there And he ought to be only one of the parties And for that if another be joyned with him he shall not have the priviledge or benefit of the Charter as it is 14 H. 4. 21. and by Richardson chief Iustice that is not a priviledge which may be waved for every person may Recusare jura introducta pro se But that it was an exempt Iurisdiction and differs where the priviledge goes to the person As if a Clerk in his Court will sue in another Court or suffer himself to be sued that is a Waver of the Priviledge Thirdly that a Proeedendo shall not be granted for that the Charter is not pleaded for the Iudges give Iudgement of the Record and the cause of their Iudgement ought to appear by pleading of the Record And also a prohibition is granted where by Demurrer or by Pleading and not by verbal surmise there ought to be a discharge And in the case of a prohibition It is not like the Case of 35 H. 6. 24. Where Conusans is one time allowed by Charter shewn and another Record there should be allowed without demand without other shewing But Yelverton Iustice to the contrary That it might be remanded upon pleading of the Charter And he said that there was a difference where the suggestion was upon matter of Fact as prescription c. Where an issue may be taken there it ought to be pleaded in writing which appears fully by the mean of the Court and not by suggestion Fourthly it was resolved that a prohibition may be granted in case where the Court cannot give other remedy for the ease of the Subject who is the party as it was adjudged in the Court of Requests Vpon the custom of London concerning Orphans a prohibition was granted and yet no remedy at Common Law was afterwards to be expected Trin 5. Car. Fawkner against Bellingham FAwkner against Bellingham in a Replevin The Avowry was for that that the Defendant was Lord of a Mannor and of Lands which were Chauntry Lands and held of him by Rent and other Services And after coming to the Crown by the Statute of 10 E. 6. cap. 14. Who granted it then over by Letters Patents c. And now the Lord distreins for Rent and avows that he had not seisin within fourty years And whether seisin was requisite for him who made the Conusans was the sole question in the Argument First for that that it is a new Rent created by the Statute of 1 E. 6. For when that Land is granted to the King by Parliament yet the King hath operation upon it and may dispose of it Secondly that the Land passed from the Priest and others by their assent confirming it And it is a Grant of the Seigniory by the Lord himself unless the saving hinder it But so by the Grant the Rent is extinguished And the saving is so a creation of a new Rent 1. rep 47. Altomeoods Case And there is diversity between a Rent-service viz. where the Tenant grants Land to the King and he grants that over He cannot distrein upon the Patentee for it is distinct from a Rent charge Stamford prerogat 75. Mich. 20. E. 3. 17. And so it is ordered by the Statute de Religione when he enters by Mortmain that he ought to revive the Services Stam. 27. If the King enters upon my Tenant there a Petition of Right lies Dyer 313. 10. rep 47. By the saving in the Statute of Wills c. A primer Seisin is given to the King de novo where he ought to have it before And then being a new Rent no Seisin is requisite Secondly the second reason is for that there is a new remedy and then no matter whether it be old Rent or new Rent Finchden A Rent granted out of White-acre and a distress out of Black-acre the Rent yet remains and there is one thing part of the Rent another of the remedy Because the Rent is only altered in quality Dyer 31. There our Case directly Now the Statute of Limitations is a Statute for the good of the Common wealth to settle inheritances and possessions And it should be expounded liberally Then if a scruple be of the Act it ought to be expounded benignly And so it is of all other Statutes which settle possessions Always shall be expounded favourably for the ease and benefit of the Tenant and Lord. And for that adjudged That a Copy-hold and Leases for years are within that Statute And the Statute of 32 H. 8. 11. rep 71. binds both King and Realm because it is for the publick good Owen against Price before BRamston argued for the Defendant I agree that Lease to be a Lease in remainder and I admit also that that Lease is warranted by the Statute 10 Eliz. For that that he is not punishable of waste And the case admits two questions whether it be a void Lease at Common Law And First In respect of the limitation Secondly there is not any Livery in the Case Wherefore first of all it had been said a Frank Tenement cannot pass from a day to come in case of a Grant 38 H. 6. 34. 8 H 7. Claytons Case 5. rep It had been agreed that a Livery made the first day by himself or by his Attorney should not be good And moreover if by his Attourney after the day if his Grant may be granted the same day it is not good And then I hold that the date of the Grant of Attourney is not material Trin. 43 Eliz. rot 402. Conibar It was resolved in such a Case as that is That the Livery is not good And the reason was that the Livery had not relation to the Deed which was void in Law Bucklers and Binsluns Case The release was made 1 May as this and executed by Attourney and by Attourney authorised the same day the second of May. And it was adjudged
years or but for 7 years And it seemed to Hutton that the Lease was confirmed but for 7 years But Richardson was of the contrary opinion and took a difference where they confirm the Estate and where they confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Land for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Sergeants at the Bar. And afterwards Hutton said That that was a good Case to be considered and to be moved again Jacobs's Case A Man was indicted at Newgate For that he feloniously vi armis had robbed a man in a certain Kings foot-way leading to London from Highgate And upon that he was arraigned found guilty And having his judgment he prayed his Clergy for that he was a Clark And the Iustices of Gaol delivery doubted if he should have his Clergy or not Because the Statute if any man be taken upon Felony committed on the High way he shall not have his Clergy But the Indictment was in this case that the Felony was done in alta via reg pedestri So that the words are not alta via regia nec in magna via regia nec in via regia For if that word pedestri had been put out of the Indictment he should not have had his Clergy clearly Some of the Iustices were of opinion that that word added in the Indictment made that he should not have his Clergy The Lord chief Baron of the contrary opinion Perkins against Butterfield HItcham moved to the Iustices If one takes Beasts Dammage feasant and impounds them in an House and leaves the Door open So that the Owner may sée them and give them sustenance And afterwards for default of Sustenance they dye in the Pound Whether he who distreyned them shall be charged or not Hutton when one takes Beasts Dammage feasant in his Land It is at his Election if he will impound them in an open place where the Pound is or in some place in his own Land And if he impound them in the common Pound and the Beasts dye the Owner has no remedy But if they be impounded upon the Soyl where they did the Dammage or in the Houses of him who distreyned them and they dye for want of Food In this he who took them shall be charged For the Common Pound is common to all Persons so that they may come to give them food Otherwise in this case For there the Owner cannot have notice where he hath made his Pound Richardson of the same opinion And I believe that the Owner shall have an action upon his Case against the Owner for the recovery of the value of his Cattell For trespass does not lye For the taking of them and the impounding was lawfull And it is reason that he should recover the value of them by an Action For if the Owner had come to have given them food the Terre-tenant would have an action against him Hitcham The taking of them is made a Trespass ab initio when the Beasts dyed in Pound Wimberly against Taylor et alios VVImberly had entred a Plaint in a Court Baron against two jointly for taking of his Goods And the Plaintiff had removed the Plaint by a Recordare joyntly as the Plaint is And now at this time the Plaintiff counts of taking of Goods severally So that it varies from the Plaint and the Recordare also And Ward moved that the Writ might abate And so it was adjudged by Hutton and the Iustices Wilkinsons Case IT was moved at the Bar If a Man makes a Lease for years to I. S. I. N. and I. D. If the aforesaid I. S. c. should so long live And now one of the Lessées is dead If the whole Lease should be determined or not was the Question And Hutton and Harvey said That it was without doubt that the Lease was determined by the death of one of them But if the words had been generally If the Lessées should so long live and had not named them Then perchance it should have béen more doubtfull The Executors of Tomlins's Case ATthowe demanded this Question of the Iustices A Lease is made for years the Lessée grants over his Estate and reserves to him and his Heirs during the term a certain Rent If the Executors or the Heir of the heir shall have that Rent And it séems to me that it shall enure to the heir well enough As a Grant made by the Grantee of the estate of the same Rent So the Heir shall take by the Grant Harvy May the Heir take Chattel as Heir to his Father And this Rent is but a Chattel And in the Book of Assise there is a Case where Lands are given to I. S. et uni haeredi suo et uni haeredi ipsius haeredis tantum And that was taken to be no Fee-simple Nor no such Estate that the Heir might claim as Heir to his Father But I am in doubt of your Case truly For which I will advise Hitcham Vpon that I have seen a Diversity Where Lands are given to I. S. et haeredi suo et haeredi haeredis I. S. In that Case he shall have a Fée-simple Otherwise it is where Lands are given to I. S. et haeredi suo There no Fee-simple passes Richardson There no Fee-simple passes in any of the Cases And it was said in the Argument That Lessee shall not have Trespass vi et armis against his Lessor Whiddon's Case A Man devises by his Testament to his Daughrer Jane all his Land in D. habendum sibi et haered de corpore suo legitime proc And by the same Testament he devises to his Daughter Anne all his Land in the tenure of I. S. in the County of Hertford Whereas in truth D. was in the County of Hertford and parcel of the Lands were in the tenure of I. S. Whether Jane shall have the Lands in D. in the tenure of I. S. by the first words Or Anne shall have them by the last words Harvey The Testator had given them by his first words to Jane Wherefore he cannot revoke his Gift and give it afterwards to another Daughter But all the Iustices were of the contrary opinion A Case of Executors IF Executors come to the Ordinary for to prove the Will He ought to prove it ex communi jure And that he may do without great examination of the Witnesses But if other Executors come afterwards to prove a later Will Then the Ordinary ought to be circumspect in the probation of that Will and to do it by proofs For that is de mero Jure And it is the better and of more effect by Atthowe Challoner against Ware A Man makes a Lease for years reserving a certain rent payable at the Feast of St. Michael And for default of payment at the said day and by the space of 40 daies after That
it shall be lawfull to the Lessor to reenter without any demand of the Rent The Rent is in arrear by 40 daies after the Feast of Saint Michael and no demand of the Rent made by the Lessor Whereupon the Lessor entred If that Entry were lawfull was the Question And by Hutton it is not For a demand of the Rent is given by the Common law between Lessor and Lessée And notwithstanding the words without any demand it remains as it was before And is not altered by them But if the Rent had béen reserved payable at another place than upon the Land There the Lessor may enter without any demand But where no place is limitted but upon the Land otherwise it is Richardson to the contrary For when he had covenanted that he might enter without any demand The Lessée had dispensed with the Common law by his own Covenant As the Lessor might by his Covenant when he makes a Lease Sans impeachment dl waste He had dispenced with the Common law which gives the Action of Waste Harvey of the same opinion If a Man leases Lands for years with a Clause That if the Rent be in Arrear by forty daies after the day of payment That the term shall cease If the Rent be in arrear by the said forty daies after the day of payment The Lessor may enter without request Conyers's Case ONe Thompson makes a Lease for forty years to Conyers by Indenture and in the same Indenture covenants and grants to the Lessee That he shall take convenient House-boot Fire-boot and Cart-boot in toto bosco suo vocato S. wood within the Parish of S. And those Woods are not parcel of the Land leased but other Lands Atthow I would fain know your opinion if that Grant of Estovers out of an other place than was the Lease be good Also what Estate the Grantée of House-boot and Fire-boot shall have by that For the words are from time to time and hath limited no time in certain And lastly If the Lessée be excluded to have House-boot and Fire-boot in the Land leased or if he shall have in both places Also if the Executors by that Grant to the Lessee shall have House-boot and Fire boot And it was agreed by Hutton and Harvey That that Grant was good and that the Grantee shall have it during the Term. And that that grant does not restrain him But that he shall have house-boot and fire-boot in the land leased also Atthowe If there be no great Timber upon the land leased and the houses are in decay if the Lessor ought to find and allow to the Lessée sufficient Timber for the making the reparations or if the Lessée at his own costs ought to find the Timber for the reparations of the house Hutton said That the great Timber shall be at the costs of the Lessor if no Timber be upon the land leased nor no default be in the Lessee in suffering the great timber to go to decay or to putrifie And it was agréed if the Lessor cut a tree and carry it out of the Land That the Lessee may have an Action of Trespass And if Stranger cut a tree the lessee shall have an action of Trespass and recover treble dammages As the lessor should recover against him in an action of waste Wakemans Case A Man seised of a Mannor parcell demesn and parcell in service devises by his Testament to his wife during her life all the demesn lands also by the same Testament he devises to her all the services of chief Rents for 15 years And moreover by the same Testament he devises the same Mannor to another after the death of his wife And it was agreed by all the Iustices That the devise shall not take effect for no part of the Mannor as to the stranger untill after the death of the wife And that the heir after the 15 years passed during the life of the wife shall have the services and chief Rents Jenkins against Dawson IN a Formedon the Demandant makes his Conveyance in the Writ by the gift of I. S. who gave it to ◠D. er haeredibus de corp suo legitime procreat And shewes in the Writ that he was heir to the Son and heir of I. D. Son and heir of W. D. the Donee And Hitcham demanded Iudgement of the Writ for this Cause And the Court said that the Writ was not good for he ought not to make mention in the Writ of every heir as he does here But he ought to make himself heir to him who dyed last seised of the Estate Tayl as his Father or other Ancestor Also that word procreat ought not to be in the Writ but Exeuntibus But the Court thought that it might be amended And Harvey said If false Latin be in the Writ it shall be amended as if in a Formedon the Writ be Consanguineus where it should have béen Consanguineo Hutton and all the other Iustices said that that might be amended by the Statute Saulkells Case IN an Attaint the grand Iury appeared and the petit Iury and the parties also and one Rudstone Master of the Servant in the Attaint came to the Bar and there spoke in the matter as if he had been of counsell with his Servant Crawley said to him Are you a party to this Suteor for what cause do you speak at the Bar And he answered that he had done this for his Servant And if he had done any thing against the Law he knew not so much before Hutton You may if you did owe any mony to your Servant for his wages give to his Counsel so much as is behind of it and that is not maintenance Or you may go with your Servant to retein Counsel for him So that your Servant pay for his Counsel But that that you have done is apparent maintenance And the Kings Sergeant prayed That he may be awarded to the Fleet and pay a Fine And Hutton upon advise sent him to the Fleet. Wiggons against Darcy DArcy was in Execution upon a Statute Merchant and his Body and Goods were taken And the Conisee agreed that the Conisor should go at large and he went at large Atthowe moved If that were a discharge of the Execution or not And Richardson said it was For his imprisonment is for his Execution And if he release his imprisonment he releases his Execution And so if two men be in Execution for one Debt and the Plaintiff releases to one of them That is a release to both And so if one had two acres in Execution and the Plaintiff release the Execution of one of them It enures to both Harvey on the contrary opinion Yet I will agree That if a man be one time in Execution The Plaintiff shall not another time have an Execution For after a cap. ad satisfac an Elegit does not lye But in the Case where the Conisee does release the imprisonment only and not the Execution for it is
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without
that latitude c. is waste and for that a forfeiture 22 H. 6. Waste 46. There it is agréed that if Land be digged to make a Bank and if more be digged than is necessary that is waste if it be not cast down again for the Land might be made barren 41 E. 3. Waste 82. There it is not waste for the Land is better than it was before But it is not better if it be arable Land for the Trees and Bushes shadow the Sun from the Land Dyer 361. And if none had been folded there yet it should not have been waste Fodder in Meadow is waste but there it was found by the special verdict that the Land was imbetterd If Lessee for years does so it is a forfeiture 2 H. 6. 17. There it is said that permitting the Land to lye fresh is waste But thorny is no waste for the Less may grub the Thorns up and it shall be better Land wherefore he prayed Iudgement for the Plaintiff But Sergeant Henden argued for the Defendant and conceived that in the whole cause pleaded there is not any thing in it which makes a forfeiture There are two things in it to make that inclosure and waste And first That an Inclosure without Licence is not a forfeiture First every Act that makes a forfeiture of a Copyhold ought to be a dis-inheritance to the Lord c. Secondly a voluntary Act against the Custome c. Thirdly in this Case there is not any Custome found which makes a Forfeiture And for that any Condition in Law is excluded A Copiholder is in tenens secundum consuetudinem manerii and therefore an Act that makes a forfeiture ought to be against Custome and a dis-inheritance to the Lord of his Copihold and not of a Collateral thing As a Trespass upon the Demesus of the Lord is not a forfeiture 21 H. 7. Kell 77. 9 Rep. 76. Combes Case there has the same rule The Custome fixes his Estate so long as the Tenent does the services and observes the Customes Hill 16 Iac. Com. Banc. rot 335. Brettyes Case Two Copiholders are and one release to the other is no forfeiture Dyer 221. One part of the Services there was to make Presentments and if he refuse it is a Forfeiture If a Copyholder fell Trees it is no Forfeiture because it may be for the reparation of Houses But an Act afterwards as selling them may cause a Forfeiture 9 H. 4. Waste 39. A Copy-hold is not forfeited by Outlawry in a personal Action for the Lord is not prejudiced by that And yet the King shall have the profits by which the Lord is estranged from the Tenement 5 H. 5. 2. New Book of Entries 228. Hill 4 Iac. rot 172. Com. Banc. in the end of the Case resolution is to this purpose If Copyholder be summoned to the Court by common Proclamation or express notice and he does not appear it is no Forfeiture Because it is but a failer of Services and no deniall And for that neglect he may be punisht and fined Secondly it was resolved that non-payment of the rent although it be a failer of Services or if he had said he could not now pay if is not a Forfeiture But to forge new Customes is a Forfeiture for that tends to the dis-inheriting of the Lord Dyer 228. The Case of pay ment of a Fine which admits the diversity appears Cook lib 1. 4 28. Now this inclosure is not a Dis-inheritance or a voluntary Act to estrange him from his Lord. And then the Custome ought to make that a Forfeiture which is not so found And it was a rule in P. 19 Iac. That a bare Inclosure is not a Forfeiture of a Copyhold And then it is found that he shall not inclose without Licence But it is not found that if he should inclose without Licence it should be a forfeiture And there is neither express nor tacite condition that it should be a Forfeiture And then it is found that he may amerce and command that the Hedge should be pulled down upon pain c. The intention is not that he had two remedies And it is not to be found in our Books that one Act causes a pain and a forfeiture also And so the custom shall be taken favourably for the Copy-holder and strictly for the Lord for a forfeiture is odious in Law 4. Rep. 9. There the Custom is found that not appearing at four Summons is expresly a forfeiture And to the objection that is made that he had not any remedy for his Fine the Verdict answers that that he may put a pain upon him Secondly he encloses and leaves three gaps It was objected that an Enclosure was a disseisin ergo a forfeiture In some Cases that Enclosures shall be disseisins there is no question But there is if they be Enclosures with gaps The Enclosure that deprives him of all his remedy is a disseisin in Rent but otherwise not For Littleton says if he enclose that he cannot distrein I conceive this diversity If a Copy-holder makes a disseisin of any thing appertaining to the Copy-hold it is a forfeiture for then he doth an act that estranges the Lord from his Tenant but if the Lord had any profit accrewing out of the Copy-hold and he disseiseth him of that Whether you will make that a forfeiture As if the Lord had herbage out of the Copy-hold a disseisin of that is not a forfeiture unless it be particularly by Copy of the Grant The making of the Ditch is objected to be waste and therefore a forfeiture I agree if it be waste it is a forfeiture It is not a forfeiture if a Copy-holder dig a Marle-pit and Marles his Land for the Land is imbettered by it It is objected that it is a forfeiture at Common Law 22 H. 6. 41 E. 3. waste 821. If Lessee for years plough a Meadow it is not Waste for it tends to a matter of Husbandry Natura Brev. title waste Dyer 361. pl. 12. Lessee for years converts Land to Hop ground It was the opinion of Popham Lord Chief Iustice 30. Eliz. that it was not waste And for that that the Land by this Enclosure is imbettered it is not waste and the Lord had no prejudice because the gaps were left And the Court said that it is to be presumed that all the Land was imbettered by this Enclosure if it be not expresly shewed to the contrary Sed adjournatur c. Ralph Marshes Case again ATthome said that the consideration also is good and there is a double consideration of the Premises For she promised to pay that debt part at Mich c. So there was a day given or it was due presently And that is the consideration Crook said that it is no consideration For it is not expressed that he shewed the account But that they surveyed it which is not but an implication that he shewed it And he said that he intended to sue him and then he in
W. who died seised of the Lands which descended to his Vncle who was the Defendant Crawley Two things are required to maintain the action Whether the Defendant be heir Secondly who held lands by descent from the Obligor now is heir at Common law And now the heir by the Mannor shall be charged in debt as well as the Heir at Common law Dyer 228. All Brothers in Gavelkind shall be charged 11 H. 7. 12. The heir of the party of the mother shall be charged and so shall Bastardeign 4 E. 3. 14. Heir by Borrough-English And in this Case R. is not heir but by the Mannor Yet he shall be charged 32 Eliz. Dyer 368. by 4 the Iustices And the Defendant here had Lands by descent from the Obligor by which he shall be charged which was agreed by the whole Court But by Richardson It is not sufficient that he be heir in Blood and heir by the Mannor But he ought to have also Land to him by descent from the Obligor But here the Plea is that the Land descended to him immediately And for that you ought to have pleaded that the Obligor died and Lands descended to W. his Son and Heir who died without issue seised of the said Land which descended to R. his Vncle as Brother and heir to the Obligor Quod fuit concessum per totam Curiam Grays Case HEnden shewed cause that a prohibition should not be granted to the Ecclesiastical Court where the case was That one Brother had taken administration and the other would have distribution of the goods of the intestate And said that issues might enforce distribution of it And it is grounded upon Magna Charta cap. 18. Where there is a saving to the wife and the issues their reasonable part And upon the same reason that there may be a division between the issues so there may be between the Brothers but more remote degrees have no distribution And it is hard that one Brother shall have the whole estate and the others nothing And the Ordinary here is the most indifferent man to make distribution Hutton if the eldest son had lands descended to him and the youngest took Administration It is reason that the eldest shall have distribution And by him and Harvey a Writ de rationabile parte bonorum lies only where there is a custom And they said if it should be admitted that the Ordinary should distribute to the Brothers by the same reason he may to more remote degrees And he declared their opinions that many terms before they were against those distributions But they said That now the Ordinary would have an Obligation before they granted a Prohibition and they coloured their Obligation with the Statute of 31 E. 3. cap. 11. That an Administrator shall be count able to the Ordinary And Harvey said that be knew where a man that was rich died and the Ordinary had 600 l. to pious uses before he would grant administration But he said that in the time of Sir Iohn Bennet such an Obligation was questioned and they would not endure the tryal of it Hutton said that now for that that they could not distribute they might invent a new way scil divide the Administration As if the Estate be 400 l. they might grant Administration of the Goods of the value of 100 l. to the other But by him and Harvey That is illegally granted Doctor Wood and Greenwoods Case DOctor Wood libels against Greenwood in the Ecclesiastical Court for tithes of Wool Wood and Apples c. And he shews that he was Vicar there and that the 8 E. 1. there was a composition that the Parson should have the tithes of Grain and Hay praeterea the Viccar should have Alteraginum And for that that those tithes did not belong to the Viccar he prayed a prohibition And Henden objected that the Parishioner ought to set forth his tith and not dispute the Title of the Parson or Viccar But the Viccar ought to come in the Spiritual Court pro interesse suo but notwithstanding that and notwithstanding the Viccar refuses to claim those tithes that always within memory they have been paid to the Parson yet a prohibition was granted And in the end upon this Composition power is reserved to th◠Ordinary if any doubt or obscurity be in the composition to expound or determine it And if he please to encrease the part of the Viccar And there was not power of diminution As by Hutton It is also usual in such compositions And they say that the word Alteraginum shal be expounded according to the use As if wood had always been paid to the Viccar by vertue of this word so it shall continue otherwise if not And so it had been ruled in the Eschequer And upon that president it was ruled accordingly in this Court And by them wood is minuta decima as in the case of St. Albans it was ruled Sir Richard Dorrel against Blagrave SIr Richard Dorrell was Plaintiff in action of debt upon an Obligation of 400 l. against Blagrave who demanded oyer of the condition which was that if Blagrave fulfilled and kept all Covenants and agreements in an Indenture c. between him and the Plaintiff which on his part is to be performed and kept Then the Defendant pleads that he had performed all the Covenants on his part to be performed c. And the Plaintiff shews that Blagrave the elder by his Indenture granted a rent of 20 l. per annum to one that he intended to marry for her joynture which was to commence after his death And that it was out of all his lands in Watchfield And afterwards by the same Indenture he Covenants that he was seised of a good and perfect estate in Fee simple of lands and tenements in Watchfield to the value of 40 l. per annum And he assigns for breach that Blagrave was not seised of an Estate in Fée of the lands and tenements aforesaid in Watchfield Whereupon the Defendant demurred And Heidley moved two questions First that admitting the breach here well assigned yet the obligation is not forfeited And then when the Defendant is bound that he perform all Covenants on his part to be performed and not to the Covenants broken As if Lessee for years rendring a rent at Michaelmas and the Annunciation covenant to pay the rent at a day and afterwards he fail and then a Stranger is bound that he perform all Covenants c. That extends to the failer of payment which is past here in our case And by the whole Court not allowed For by such means all assurances of England should be deluded And now in this case the Indenture and the Obligation shall be sealed and delivered at the same time But if the Obligation had been sealed afterwards at another day yet it was allowed For by Richardson Suppose that the Condition of the Obligation recites the grant c. And the condition is that if the land
charged be to the value of 40 l. per an that will be a good condition and the Obligation shall be forfeit If the condition was that the Land was then of such a value it was presently a breach of the Condition The second matter was whether the breach was well assigned or not And Richards Yelvert held that the breach is not well assigned There are two things in the Covenant one of the Estate another of the value Here may be a breach to be assigned upon the Estate but then it ought to be general For the grant out of all his lands and tenements in Watchfield is not a conclusion to him who had lands and tenements in Watchfield then the Obligation is forfeited As if one be obliged to make a Feofment to I. S. of all his lands which he had by descent in D. If he had no lands there it is not a forfeiture So here But if the rent was granted out of particular land as out of the Mannor of D. There the grantor is included to say but that he was seised of the Mannor of D. which was granted As to this diversity the word praedictis had relation to lands and tenements in Watchfield for no lands were named But the material thing is the value c. And if praedict goes to all the Lands then the breach goes to more than the Covenant and then it is not met with But admit that it goes to all yet it is all one For the intention of the parties was that the value of 40 l. joynture per annum shall be mentioned But the Plaintiff does not mention the value And it is sure that the word praedict may goe to all the lands in Watchfield or to lands of 40 l. And if the Defendant had rejoyned he might have rejoyned generally scil That he was seised of lands in Watchfield in Fee simple and he is not forced to shew his particular estate in the lands And admitting they had gone to tryal upon that issue what might the Iurors find And if they had found the value it is nothing to the breach That is more than was in their charge and so void But Hutton and Harvey on the contrary and said that the breach is well assigned And Hutton took this difference That if the Covenant was that he was seised of such particular lands of such value The breach ought to be assigned in particular also but where it is that he was seised of lands of such a value the breach is now well assign'd here it is a recital of lands of the value of 40 l. per an to that predict has relation And it does not appear to us if he had more lands in Watchfield than of 40 l. per an But these things were agreed by all First that the antient pleading in the time of H. 6. is now changed and the general pleading of all Covenants in the Indenture in form although that the affirmative is good And the Plaintiff ought to shew the particular Covenant broken c. Secondly in the principal Case if the Plaintiff had replyed that he was not seised of lands and tenements in Watchfield in Fee-simple without praedict or deque fuit seise de nullis terris vel tenementis praedictis in Watchfield of the value of 40 l. in modo forma secundum formam conventionis is a good assignment of the breach And the Defendant forced to shew the particulars The Plaintiff discontinued the principal sute and begins again but that he might not doe without the license of the Court as they said Because that they might agree afterwards to give Iudgement Taylors Case TAylor was Plaintiff against Waterford in debt upon an Obligation and the Defendant demanded Oyer of the Condition quae legitur ei in haec verba If the Defendant should pay such costs as should be assist at the Assizes without shewing for what the Obligation should be void And the Plaintiff replies that post confectionem Obligationis Pasch .. 4 Car. Com. Banc. the aforesaid words were written upon the Obligation and the truth is that they were endorsed upon the Obligation by memorandum after the Delivery And Atthowe moved that the Plaintiff might not reply in that manner because that when Oyer of the condition was demanded that was entred for a condition and so was admitted by the Plaintiff And for that he is concluded to say the contrary But Serjeant Davenport replyed on the contrary And said first that the words of themselves will not make a condition It is Litletons case That some words doe not make a condition without a conclusion as what is contingent 39 H. 6. And admit that the words will make a condition yet they were written after delivery 3 H. 8. Kellways reports Hutton If there be an Obligation made of 20 l. if it be written upon the back of the Obligation before the sealing and delivery The intent of this Bond is to pay 10 l. for such costs That is no good condition Which Iustice Harvey only being present agreed And if any thing may be part of the condition it ought to be written before the sealing and delivery But it is no condition if it be written after And by them here is no conclusion but that the Plaintiff may plead that the words were written after sealing and delivery Termino Pasch Anno 5. Car. Regis Com. Banc. Mericke against King IN evidence to the Iury he who had purchased the land in question It was said by the Court he shall not be a witness if he claim under the same title Richardson said that the conveyance may be proved by other circumstances And the same reason was also agreed by the Court That if a Feoffment be made of a Mannor to uses that if the tenants have notice of the feoffment that although they have not notice of the particular uses their attornment to the Feoffees is good For the Feoffees have all the estate And Harvey said that so it was agreed in one Andernes's case Sir Richard Moors Case IT was said in evidence to the Iury. The case was that a man prescribes to have common in 100 acres and shews that he put his cattel in 3 acres without saying that those thrée acres are parcel of the 100 yet good And Hitcham said that so it was adjudged in this Court. And Richardson said it was an Huntingtonshire case Where a man alleged a custom to put his Horses c. And the custom was for Horses and Cows And adjudged good Hutton said there can be no exception to the Witness who is Cozen to the party to hinder his evidence in our law To which all agréed Clotworthy against Clotworthy THe case between Tenkely and Clotworthy was cited One grants an Annuity for him and his heirs to be paid annually at two usual feasts for 30 years which was to begin after the death of the grantor And it was agreed by all Richardson being absent that
action upon the case lies for retaining the servant of another And by them the retainer without being testimonial which is an offence against that Law is after the years of reteiner expired For so are the words of the Statute But they said that the Information was naught because that it does not appear that the Defendant did not retain him out of the Parish where they served before For the Statute says out of the City Town or Parish c. except he have a testimonial And the words secundum formam Statuti will not aid it And in the same Village or City c. The Statute does not require a testimonial because that there it was known c. And for these reasons after here said for the Plaintiff Iudgement was stayed if c. Jennings against Cousins IEnnings brought a Replevin against Cousins who avowes for damage feasant The Plaintiff replies that post captionam ante deliberationem he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum pleg c. Vpon which they demurred And by the whole Court the Replication is naught For Pilkintons Case was agreed to be good Law that the tender ought to be before pounding but any time before the impounding it is sufficient But here ante deliberationem implies that the Cattel were impounded and it is not shewn in certain that the tender was before And it was agreed in trespass That the Defendant may plead the Trespass to be involuntary and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute Whereupon Iudgement was given for the Defendant Butts against Foster THe Plaintiff in an Action upon the Case the Plaintiff declared That whereas he was a man of good fame carriage and behaviour and free from all blot or stain Yet the Defendant with purpose to draw his life in Question and traduce him amongst his Neighbours in presentia multorum c. crimen felonae ei imposuit ea occasione illum arrestari causavit et per spatium duarum dierum in custodia detineri coram Iohanni Pettyman uno Justic ad pacem c. duci procuravit nequisfime prosecutus est c. The Defendant pleads not guilty which was found for the Plaintiff And Hitcham moved in arrest of Iudgement that the Action would not lie And of that opinion was Hutton because that he did not proceed to indictment For there an Action of that lies in the nature of a Conspiracy But if an Action should lie here it would be a mischievous Case for by that every man would be deterred to question any person for felony And it was said by Hutton If one said You have broken the Peace and I will cause you to be arrested and procures a Warrant from a Iustice of Peace by which he is arrested No Action here will lye But Berkley on the other side said to the contrary and of that Opinion was Richardson Chief Iustice that the Action will well lye And by Richardson The Defendant ought to have justified that there was a Felony done and that he suspected him c. But he pleads not guilty And it does not appear by the Declaration what was done with the Plaintiff after he was brought to the Iustice of Peace and by that it shall be implyed that he was dismissed upon his examination And here the Plaintiff was imprisoned and carried before a Iustice of Peace which is an act done as well as in the case where there is an Indictment And an Attourney of the Court cited one Danvers and Webly's Case In that very case it was adjudged that the Action lay But it was adjourned to another day Champues Case OUnson makes his will gives 200 l. to Tho. Champues son of Jeremie Champues Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages or ages of 21 years And after wills that his Executor should enter into bond to the several parents to pay the several Legacies to the several Children at the ages of 21 years or their marriages And his Executor after his death gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage But in the Spiritual Court afterwards upon libell it was ordered that he pay the legacies presently Thomas being under age of tender years And for that Henden moved for a prohibition Richardson although the sute for a Legacy be properly in the Spiritual Court yet if there be an Obligation given for the payment of it it is not turned to a duty in the Common Law and then it is not tryable there This is one reason why a prohibition shall be granted Secondly another reason is because that they sentenced the payment of the Legacy against the Will and against Law and the Obligation here will not alter the case for it is given to another person not to the Legatee and then the Legatee notwithstanding the Obligation may sue in the spiritual Court But by Richardson it is all one for here the Will orders the Obligation to be made Which Hutton changing opinion and Harvey agréed For now because the Obligation is given if the sentence shall be given the party is liable to the Obligation also to perform that And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Executor to pay at the marriage or 21 years of age the several Legacies c. extends to the first Legacy of 200 l. to Thomas although it be coupled to the last Legacy which should be by a new and several Item And by that clause the intention of the Testator appears that the 200 l. which is given generally and no time of payment named It shall not be paid until marriage of 21 years of age And a prohibition was commanded to be granted NOte It was said by Richardson chief Iustice If a man had a way over the Land of another for his Cattel and upon the way he scares his cattel so that they run out of the way upon the land of the owner and the party who drives the Cattel freshly pursues them c. That in Trespasse he who had the way might plead this special matter in justification Green against Brouker and Greenstead IN Trover and reversion the Plaintiff declares That whereas he was possessed of a bag of hops and a bag of flax to the value of c. And that the Defendant found them and the third day of October converted them And the Defendants plead that Sandwich is an antient Village and that the custom of forrain attachment is used there as in London and that these goods were lost upon default in November and traverses absque hoc that they were guilty of any conversion in October Pasc 7 Car. Com. Banc. or any other time or day than the times before which are