like to the case of a common for a man may prescribe to have common in another mans land for this is but a reception of the profits with the mouthes of his cattle but in our case it is all one as to prescribe to have the land it self and I may not prescribe to have land it self for I may not say that I and my ancestors had used to have such land for such a prescription is void to which Hobert chief Iustice and all the Court agreed as to that point and then to prove that this is all one as to prescribe to have the land it self he said that if a man lets the profits and the herbage of land for years this is a lease of the land it self as was lately adjudged in this Court which was also granted by the Court also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage but not of common and a formedon lyes of pasturage 4. E. 4. 2. the Regist fo 177. Ejectione firme lyes of pasturage and so he concluded that upon the matter he prescribed to have the land it self but Hobert chief Iustice and all the Court to the contrary that the prescription is good for that may have a good beginning by grant for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed and by consequence if that may be good by grant it may be good by prescription and judgement was commanded to be entered for the Defendant See prescription 51. and 52. In trespass the Defendant pleaded in barre that such a one was seised of land in the right of his wife and that his wife died seised and that he was heire to her entered and gave Colour to the Plantiff the Plantiff replied that the husband and wife were joyntly seised and that the wife died after whose death the husband was seised by Survivor-shipp absque hoc that the wife died seised and Warberton and Hutton being only present the traverse is not good that the wife did not die seised but it ought to be that she did not die sole seised In trespass for the taking of goods in a place in yorkshire and the Defendant justified as servant to the Bishop of Durham and he shewed that the Bishop of Durham had a Faire and that time beyond memory he and his predecessors had used to seise the cattle that were sold if he who bought them refused to pay toll and if the thing taken was not redeemed within such a time he might sell the same And he justified in a place in Durham absque hoc that he was guilty in Yorkshire and by Warberton and Hutton this is a good traverse to the place for it is local If a Capias issued here to have the body of such a one at Westminster such a day and the Sheriff bring the body or return the writ before the day this is good by Iustice Warberton Tutter against Fryer TUtter against Fryer a rent charge was granted for years with a nomine poenae a clause of distress if that was not paid at the day and the rent was behinde the years incurred and it was moved by Athowe that though the years are incurred that he may distrain for the nomine poenae but the Court was of a contrary opinion for that depends upon the rent and the distress is gone as to both of them Duncombe c. against the Bishop of Winchester c. DUncombe and others against the Bishop of Winchester and others Defendants in a Qu Imp. and the case was that Sir Richard Weston was seised of the said Church in fee in grosse and was convicted of recusancy and a Commission issued to certain Commissioners to seise two parts of his lands and goods and they seised this advowson inter alia into the hands of the King and the King granted the advowson to the Plantiff and the Church became void and whether the King or the university of Oxford shall have that was now the question and it was appointed to be argued the next Term. Potter against Turner IN the Kings Bench Pasch 19 Iac. the case between Potter and Turner was as I conceived to this effect A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt which he owed to B. assigned the debt of 30. l. which C. owed to him and made a letter of attorney to sue in his name A. and B. acquainted C. with this agreement and C. promised to B. in consideration that he will forbear till such a day that he will pay him the money and upon this promise he brought the action against C. and he pleadded non assumpsit and it was found for the Plantiff And it moved in arrest of Iudgement that the consideration was not sufficient according to Banes case Coke 9. If executors who had not assets promise to pay a debt of the Testator this shall not binde them because they who made the promise were not chargeable but on the other side it was said by Whitwick of our house that this was a good consideration for the assignement of that debt was lawful and no maintenance at all as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in barre in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary for B. here had only an authority to sue and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consideration that he will deliver them to him he will give him so much money this is no consideration except that they are delivered accordingly for this is only an authority to deliver goods which is alwayes countermandable by me And Iudgement was entered for the Defendant vide 4. E. 4. 14. Ewer and Vaughan IT was said by Dodderidge and A. in the argument of the case between Ewer and Vaughan that it had been adjudged by all the Iustices in one Trewmans case that no writ of error lyes of a judgement given in the Stanneryes in Cornwal A Prohibition to the Admiralty MAny poor Marriners sued one Iones the Master of a ship for wages in the Admiral Court and judgement was given against Iones and now he prayed to have a prohibition and he suggested that the contract was made at London in England and so the suit was not maintainable in the Admiral Court but the prohibition was denyed because he had not sued his prohibition in due time viz. before a judgement given in the Admiral Court which in point of discretion they disallowed and also these are poor Marriners and may not be delayed of their wages so long and besides they may all joyn in a Libel in the Admiral Court but
simple shall alwayes be supposed to have continuance if the contrary is not shewed to that he answered that is not so for the book of the 7. H. 7. 8. if in barre of assise the Tenant said that I. S. was seised and gave this is not good because he had not shewed quod fit seisitus existens dedit c. which being in a plea in barre is more strong then in a declaration to prove that a fee shall not be intended to have continuance without an express allegation and so he concluded that the declaration is naught but by Hobert Winch and Hutton it is very good notwithstanding this objection and Winch cited the 13. Eliz. in Ejectione firme where the life of the person was not cleerly alleadged but the declaration only was that the lessor was and yet is seised which was a sufficient averment of the life of the person and so the declaration is good and another exception was taken to the declaration by Hitcham Serjeant because that the Plantiff had declared that the Defendant had made conney borroughs and with the aforesaid conneys had eat up the grass where he had not alleadged any storeing of the coney borroughs before with coneys and then it is impossible they should eat up the grass to the prejudice of the Plantiff but to this it was answered by Serjeant Attoe that though the declaration as to that is naught yet the diging of the coney borroughs is to his prejudice and sufficient to maintaine the action which the Court granted and as to the matter in law Attoe argued for the Plantiff and recited the case to be that E. 3. granted to the Deane and Chapter of Windsor that they shall have free warren in the lands which yet they had not purchased and of which they were not seised at the time whether this is a good grant and shall extend to take effect after the purchase see Buckleys case and be argued that it is not a good grant and he put a difference between a warren and other priviledges which are flowers of the Crown which may be granted infuturo but a warren never was a flower of the Crown and for that reason a grant de bonis et cattallis fellon et fugitivorum may be granted and yet not be in esse at the time of the grant for it is a flower of the Crown and it is said 44. E. 3. 12. that the King may not grant a warren in other mens lands but only in the land of the grantee and upon this he concluded that this grant shall not extend to land after purchased and the rather because it is in the nature of a licence which shall be taken strictly see 21. H. 7. 1. 6. And Hobert chief Iustice said that this word demeans is derived of the French words en son manies and though the Lord of the mannor had the waste in his hands yet he had not the common and as to the confirmation by Ed. 4. they all agreed that this will confirm nothing to him but what was granted by E. 3. himself and then as to the licence pleaded that is of no effect for first the licence is pleaded to be made to one Sir Cha. Haydon and the Defendant did claime under him and this licence was made by the father which will not binde the son who had the land to which the common is appendant after the death of his father for a common may not be extinguished without deed and Hobert and all the Court agreed that the licence of the father will not binde the son and by the Court if nothing is shewed to the contrary within a week judgement shall be given for the Plantiff Davies against Turner DAvies brought a replevin against Turner and he declared of the taking in a place called the Holmes and the Defendant made conusance as bayliff to Sir George Bing for that one Clap held certain land of him by 20. s. rent and suite of Court and for the rent he avowed and alleadged seisin by the hands of Clap the Plantiff said that Chap held 40. acres of land by 9. s. rent fealty and suite of Court absque hoc that he held modo et forma and upon this it was demurred and the single point was this in auowry the Tenant alleadged c. and the question is whether he ought to traverse the tenure or the seisin and it was argued by Henden Serjeant that he ought to traverse the seisin and that the traverse of the tenure is not good and besides here is double matter for the conclusion sounds in barre of the avowry and in abatement of the avowry see a good case 18. H. 6. 6. for the falsness of the quantity of the land and the falsness of the quantity of rent the on goes in barre the other in abatement of the avowry 47. E. 3. 79. 5. H. 6. 4. and affirmed for good law And as to the second point he held the seisin to be traversable and not the tenure and first he said there was a difference between pleading in barre of avowry and in the abatement of the avowry for in barre of the avowry there the seisin is is not traversable by Frowick 21. H. 7. 73. which opinion he held for good law for it is agreed in Bucknels case Co. 9. he may not say that he held of a stranger absque hoc that the avowant was seised but otherwise it is when that goes in abatement of the avowry Secondly he said that the seisin is the principal thing and the principal thing ought to be traversed for if a man had seisin of many services seisin shall never be ayded till the Stat. of magna charta see Bucknels case Cook 9. and here the seisin is the most meterial thing and the most proper see 37. H. 6. Bro. Avowry 76. ne tiendra is no plea for a stranger to the avowry but he ought to answer to the seisin Thirdly the cause for which the seisin is traversable see a notable case per Danby 7. E. 4. 29. for the beginning of the services may be time beyond memory c. and for that reason may not be tried see 20. E. 4. 17. 22. H. 6. 3. 26. H. 6. 25. by Newton he may traverse the tenure Attoe contrary 13. H. 7. 25. to this it was answered that the number Rolle may not be found 5. H. 7. 4. 13. H. 6. 21. 21. H. 7. 22. by Frowick and Kingsmil Harvey to the contrary the case was that the Defendant made conusance as Bayliff to Sir George Bing for this that Chap held a messuage c. by certain rent and by suite of Court and the other said that he held 40. acres by 9. s. and suite of Court absque hoc that he held the messuage and the land modo et forma and he argued that it was a good traverse of the tenure and not double which was granted by Hobert and by Winch being only present and Hobert said true
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
reversion for life of the Grandfather is no dispensation to the estate of the lessee for though the action was suspended during his life yet now it is on foot again and in many cases an estate may be dispunishable of waste and yet by matter ex post facto this shall be punishable viz. where the first privitie of the estate was determined as in case a lease for years be without impeachment of waste and then the lessor releases to the lessee c. the first privity is gone and he is now punishable in an action of waste and here in our case there was no absolute dispensation but only for the time and yet perchance though the estate is subject to waste in the creation yet if the lessor will afterwards by his deed grant that this shall be dispunishable this may priviledge him but here is no such matter in the case at the bar and of this opinion was the Court and Winch said that there was no difference where the Franke tenement is intercedent for if this be not punishable yet the particular estate shall not participate of that priviledge of him in the remainder and Iones Iustice said if the particular estate had been extracted and drawn out of that estate for life in that case that had been dispunishable but it was agreed by Hendon Serjeant that the Plantiff in his declaration had declared of a waste after the estate for life was determined and they found that this was made in the time of him in reversion for life and so differed but the Court was of opinion that this was nothing to the purpose for it is only a variance from the time and not from the matter for it is not material whether this was before his death or after his death because in both cases this is punishable but day was given over to shew other causes Portington and Beamount IT was argued clearly in the case between Portington and Beamount that if the Court of the Councel of York which is a Court of equitie do decree against a maxime in law as against a joynt Tenant who had that by Survivorship that the heir of his companion shall have the Moietie that in this case a prohibition shall be granted except that during the lives of the parties it was agreed that there shall not be any Survivorship and then they hold plea upon that equitie and then good In Dower it was agreed clearly that if the Tenant shew that before the husband any thing had in the land A. was seised of the same land in fee and leâ— that for years rendring rent and granted the reversion to the husband of the Plantiff who died seised of the said reversion and so demanded judgement if the demandant shall have Dower c. this is no plea in bar of Dower but proves she had title of Dower but this saves the lease for years and she shall have judgement only of the reversion and of the rent and also she doth save to the Tenant damages and the demandant shall be indowed of the reversion Summers against Dugs SUmmers brought an action upon the case upon a promise against Dugs and he shewed in his declaration that the Defendant was rector of the Rectorie of D. and that he and all his predecessors had used to have all manner of Tithes and said that he the Plantiff occupied 100. acres of land in the same parish and shewed that the Defendant promised to the Plantiff that in consideration that he would plant his lands with Hops and so make the Tithes to be the better the Defendant promised to the Plantiff to allow him towards every acre which he shall so plant 40. s. towards the charge in planting them and he shewed that he planted an acre at the request of the Defendant and so upon the promise brought the action and now it was moved whether this was a good consideration to ground an action because the Tithes are not bettered by the planting of that with Hops but by the growing of them and the increase of them and he had not averred that the Tithes were of better value then they were before and it was also moved that he may not have an action for the Rood c. but this afterwards was referred to Arbitrement but the Court said if the Plantiff had shewed in his declaration that he might have made more benefit of that by other means then that by the planting of it with Hops the Tithes also being bettered then it had been more cleare Philip Holman against Tuke PHillip Holman was executor of George Holman and he brought an action of debt against George Tuke and declared upon a lease made by himself by the name of Philip Holman executor of the Testament of George Holman deceased of such land and the said land was delivered to him in execution of a Statute by extent which Statute was made to this Testator and this lease was for years if the Plantiff should so long continue seised by force of the Statute and it was rendring 100. l. per annum and for 3. years rent behinde he brought his action in the debet and in the detinet and also in the declaration he averred that he did continue seised so long by vertue of the extent and Serjeant Bing demurred in law because he said the action ought to be brought in the detinet only because he had brought the action as executor but Hendon and the Court c. Iones and Hutton to the contrary because the lease was made by himself and Hutton said in the case there is difference between a personal contract and real and it was said that an executor shall never be forced to bring his action in the detinet only where he need not name himself to be an executor which note well It was agreed in a case by Hobert that where a man brought an action de parco facto and declared upon the breach of a pound and also of the taking out of beasts and the Defendant as to the taking out of the beasts pleaded not guilty and as to the breaking of the pound he said that he was Lord of the Soil upon which the pound stood and thaâ— he brake of the Lock and put a lock of his own and Hobert said in this case that he ought to plead the general issue for in verity this is not any broach of the pound except the beast come out of it and Iones Iustice was of an opinion that if he put out the beasts he may not have this action because the freehold was in him but he ought to have a special action upon the case Entred in Easter Term in the 19th year of King James Rot. 1672. Ellen Goldingham against Sir John Saunds ELlen Goldingham brought an action of Dower against Sir Iohn Saunds to be indowed of the third part of the Mannor of Goldingham and he vouched the son to warranty as son and heir to Christopher Goldingham husband of
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest
within the Statute and â—hirdly he had not shewed what time he was received that so it might appeare that he was an apprentice but for half a year and such a retainer is not within the Statute fourthly the conclusion of the information is contrary to the form of the Statute yet this doth not aide the imperfection of the information for such information only extends to matter of circumstance and not to matter of substance Finch Serjeant contrary that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial is within the Statute of the 5th of Eliz. for the same branch is general there being no person who departs c. and an apprentice is a person which departs secondly the clause of the Statute is be it enacted that none of the forementioned retained persons c. and an apprentice is a person which is in a special manner named before Mich. 19. Jac. and therefore he is within the express words of the same branch Thirdly the form of the testimonial proves that for it is I. W. servant to such c. and an apprentice is such a servant Hobert chief Iustice said that it was never the intent of the Statute to make an infant who is an apprentice to be within the danger of the same Statute for an infant at the age of 14. years may be bound to be an apprentice and the punishment which is given by the same Statute is that such person shall be whipt as a Rogue which plainly proves the Statute intends only those who are of full age and if other construction shall be made perchance that the sonne of a gentleman may be punished as a Rogue by such departure and he held that if an apprentice depart with his Mrs. goods delivered to him that in this case he is not within the Statute of the 21. H 8. as another servant is and Serjeant Finch said that there is an express exception and if that had not been that an apprentice had been within the danger of the law but Hobert said that he doubted much whether an apprentice had been within that Statute though the Proviso had not been made but this proves that the makers of the Statute thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law and for that reason the proviso of the Statute was made Winch said to which Hutton agreed that when the Defendant had pleaded nihil debet and this was found for the Plantâ—ff yet he may move in arrest of judgement if the matter be not within the Statute adjurned In a replevin the Defendant said that he hâ—d property in the beasts absque hoc that the property was to the Plantiff and so prayed judgement of the writ and it was found for the Plantiff and now Harvey Serjeant moved in arrest of judgment for in no book is found such a traverse as this that the Plantiff had not property but only that the property was to the Defendant and secondly the conclusion of the plea is not good for he ought to conclude to the writ and not to the action Hobert 6. H. 7. is that an action of detinue affirmes the property at the time of the action but a repleviant the time of the taking and two men may have such property in the same thing that every of them may have a replevin and Hutton said that when the Defendant in the replevin claimed property he ought to conclude to the action and Hendon Serjeant being only at the barre and not of councell in the case said that the book of entries is that he shall traverse the property of the Plantiff as in the principal case Hutton Iustice said that this was never seen by him but they all agreed that this being after verdict judgement shall be given for the Plantiff Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650. TRehern against Claybrook in a debt upon a lease for yeares the jury gave a special verdict to this effect that Iohn Trehern Grandfather of the Plantiff was seised of land in fee and let this for forty yeers rendring rent for which the action is brought and that he devised the reversion to the Plantiff in catle the remainder to Leonard Trehern in taile with divers remainders over and with provises in the same will that for the raising of a stock for the Plantiff and for him in remainder his will was that one Griffith and Anne his wife being daughter of the devisor should have the profits and rent of the said land to their own use until the time that the Plantiff and the said Leonard Trehern accomplish the age of 21. years provided alwayes and upon this condition that the said Griffith and his wife within 3 moneths of his decease enter into bond to the overseers of his will in such a summe and in such a penalty as shall be thought fit by the said overseers and this bond to be made by their advice and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid then the overseers shall have the rents and the profits c. and the jury found over that he made two executors and 3. who were overseers and that the 3. October 16. Iac. died and that within 3. weeks after the death of the devisor the executor read the will to the overseers but they found that the overseers did not remember that and if upon all the matter Griffith and Anne his wife had not performed the condition was the question and that if not the reversion was in the Plantiff And the point in law upon the verdict was whether Griffith and Anne his wife ought of their perils to tender the bond within 3. moneths or whether the overseers ought to make the first act and to tender the bond and the penalty for them to seal and Towse Serjeant argued that Anne and Griffith her husband ought to tender the bond at their peril for he said that the condition did precede the estate and therefore if they will have the benefit of the devise then he ought to tender the obligation and vouched Corbets case and 18. Eliz. the devise of land upon condition to pay money he ought to pay that at his perill Attoe Serjeant contrary and yet he agreed that if the condition was to precede the estate then the law was as Towse had said but here he said the estate precedes the condition for all the profits are devised to Griffith and to Anne his wife during the minority of the Plantiff by which it is apparent the estate is presently in the devisees and by consequence the estate precedes the condition and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation and to limit the condition or whether the overseers ought to make this first they being the parties instrusted by the Will
son and his wife and upon a demurrer the question was whether this Covenant did raise a present use to the Son and to his wife or whether this only rests in Covenant and Harris Serjeant argued that no present use will arise by this Covenant for first all other Covenants in the indenture are in the future for the words are that the lands shall remain and come c. and therefore till the death of the Covenantor the fee simple is in him and no use will arise for it shall be in the election of the Covenantor what estate he will make to his Son for he himself shall interpret his intent and the difference in our books is when the words are in the present tense and when in the future and for this he cited 22. H. 7. by Iustice Rede if a man Covenant that land shall discend remain or revert he said this did not give any present interest because the wors are in the future and it is in the election of the Covenantor how and in what manner the land shall pass and there he put the case that if I give my horse or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other because the words are in the present tense but if the words are that I will give a horse or a Cow there the Donor had election which he shall have because the words are in the future the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son that immediately after his death his son shall enjoy the use of his land of inheritance according to the course as then they stood and the question was whether the see simple was presently out of the Covenantor and the opinion was that it was not because it was but a Covenant and did not change the fee simple and so is Dyer 96. Sir Thomas Seymor promised and Covenanted by indenture in consideration that the Covenantee had granted land to him that he would leavy a fine to Wimbish and Pennoy of other lands which fine should be to Sir Thomas Seymor for life the remainder to the Covenantee in taile and no fine was levied and the question was whether any use was raised by this Covenant to the Covenantee and the opinion of the book is that not because it is in the future and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration that the Lord Henry his brother was to marry the Lady Wiltshire he Covenanted with Bray and with others that the Mannors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord and after the Duke granted to the Lord Henry and his wife for their lives and it was argued whether this second grant is good or no for if it is then the first Covenant will not work to raise an use to the feme and the book left that as a quere and if it be then he argued that in the principal case no present use is raised but that this rests meerly in Covenant and so he prayed judgement for the Plantiff Serjeant Hendon to the contrary for he thought this will raise a present use and that this was the intent of the parties that this should raise a present use for the intent was to advance them first during their lives with the rent and after the death of the Covenantor and his wife with the land it self and therefore of necessity this will raise a present use for a bare action of Covenant may not be any advancement at all and the rather here because they who take benefit of this are strangers to the Covenant and not Preston himself for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant and therefore he said the intentions of the parties was to raise an use for otherwise there shall be no advancement at all And further the words in the indenture are Covenant and grant and if no use is raised then this word grant is idle and every word shall be so expounded that they may take effect and the word Covenant is insufficient of it self to pass an estate in land or to have any estate in signification other then to a meer Covenant and to be obligatory as is put Co. 2. Cromwels case Tirrels case there vouched a lease for years provided and it is Covenanâ—ed and agreed there the Covenant is a condition and also a Covenant and 8. Ass 1. 12. it is agreed that if I Covenant that an other shall have my land for 7. years this a good lease of the land it self and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly and in our case this word Covenant and grant is also sufficient to raise an use and to give an interest in the land it self and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee that then no use will arise but it shall rest only in Covenant Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son that the said Lady would convey to her son by a recovery and that after 6. moneths the said Sir Anthony shall make an estate to his Mother for life and there it is doubted whether the use is changed within the 6. moneths and it was holden that it was not Mich. 20. Jac. C.P. for then it is impossible that the Covenants should be performed and in that case it is in the power of the Covenantor to make an act that the Covenants shall not be performed and therefore Covenants will not raise an use but in our case no act of the Covenantor may hinder that this use shall arise and therefore good and for that the difference is Dyer 296. which is entered 11. Eliz. the Roll of which I have seen the father upon the marriage of his son promised to the friends of his wife that after his death his son shall have his land to him and his heirs and the book is ruled that this did not change the use and the reason was this Covenant was by words and not in writing but it was not doubted if this Covenant had been by writing but that the Covenant will raise an use which is all one with our case and so was Callard and Callards case 37. Eliz. stand forth Eustace reserving to my wife and my self I give to thee and thy heires and there it was doubted whether any use will arise to the son and ruled that not because this was by words only but it was also agreed that if these words had been by writing they had been sufficient to raise an use to the son and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son with the daughter of the other that he would retain his land for life and that
the lessee of the Mannor or to the Bishop was the question and it was argued by Serjeant Hendon that this appertaines to the Plantiff and not to Wood and as to that the single point is a Bishop is seised of a Mannor in the right of his Bishoprick and lets parcel of that for life whether the reversion of this parcel be alwayes parcel of the Mannor notwithstanding this lease and he argued that it was not and yet he agreed that if another let as aforesaid the reversion continues alwayes parcel of a thing in possession and that in the case of the King himself as appears by Dyer 230. if the King lets parcel of a Mannor for life the reversion of this parcel passeth to the King for the reversion had all times continuance in the same capacity and no alteration is made of this by force of the lease but where the lease for life is a discontinuance there he gaines a new reversion and this shall not be parcel of the Mannor and for that if a man is seised of a Mannor in the right of his wife and he lets parcel for life this is a discontinuance and he had gained the reversion in his own right and for that reason the reversion may not be parcel of the Mannor as appears by 18. Assises and also he held if Tenant in taile lets parcel of a Mannor for life that were the reversion of this parcel is not parcel of the Mannor for the cause aforesaid and so in our case when the Bishop granted parcel which is not grantable by the Statute now he had discontinued the reversion and had gained a new fee simple which may not be parcel of the Mannor so long as this new fee simple had a continuance and this was his first reason And secondly he argued from the intent of the parties because the intent was that the lease to Wood shall be good and if the reversion of the 20. acres pass to Wood this will make all the lease void for no rent may be reserved out of the reversion but out of the land it self 3. Assise Placito ultimo a Bishop let land and a hundred rendring rent the rent issues out of the land and not out of the hundred and so here it issues out of the land and not out of the reversion which made the lease all void and so he concluded the first point that the reversion of the 20. acres did not pass to Wood the lessee of the Mannors Secondly when the Bishop lets 20. acres of ground rendring rent and this is not confirmed by the Dean and Chapter as it ought and after he lets the Mannor and the successor accepts the rent of the Mannor this acceptance shall not make the lease of the 20. acres to be good admitting that the reversion do pass and when the Bishop had made a lease for 3. lives he may not contract for the reversion and when a lease is meerly void in the creation there no acceptance afterwards may make that good but admitting this to be against him yet the lessee shall not have the Herriot for they are not appendant to the reversion but due only by way of Covenant and the words are yielding c. and this being a Collateral thing it shall not go with the reversion and the Herriot here may not be had without it be delivered by the lessee for life Secondly it is paid only in the name of a Herriot and this is not Herriot service Thirdly it is to be paid upon the death of a stranger and not upon the death of the lessee and all this proves this Herriot to be collateral and he cited Rawlins case a lease for years paying for a fine 20. l. this is a summe in gross and shall not pass with the reversion and so he prayed judgement for the Plantiff Attoe contrary and yet he agreed the case of the husband and wife and of the Tenant in tail for here the lessor gaines a new fee simple but in our case when the Bishop lets for life this is not any wrong for the successor may enter and he shall have this lease not in his natural capacity but alwayes in his politique capacity and for that there is an apparent difference between the cases and for that reason he held that the reversion was parcel of the Mannor and so passed to the lessee and as to that which had been said that the intent of the parties was only that the Mannor in possession and not the parcel in reversion should pass to the lessee for that is most beneficial to the lessor to this he answered that by express words this is granted and no construction shall be made contrary to the very express words of the grant and here though the Defendant had not any title at all to the Herriot yet the Plantiff shall not have a trover and conversion for this because that he himself had not right to this and for that reason judgement shall be given for the Defendant and he also argued that the lease of the reversion is not meerly void but voidable and then the acceptance extends to this see 37. H. 6. the lease of a Priâ—r 2. E. 6. Bâ— Abbots case Vpon which authorities he said cleerly by the Common Law this lease of the reversion is not meerly void but voidable and for that the confirmation of the Dean and Chapter after the Statute of the first of Eliz. had not altered that and for that a lease after the Statute shall not be meerly void and see Lincolns Colledge case Coo. 3. and in our case there is a possibility that the lessee of the Mannor may survive the cestui que vies of the 20. acres and that possibility is sufficient to make this good out of the reversion for then the lessor may distrain for his rent but where no possibility of a distress is there no rent may be reserved as in Iewels case the lease was void for there was no possibility that the lessor shall ever distrain but in our case the lease for years is good for the lessor is not without his remedy for he may have an action of debt upon this reservation 1. H. 4. 2. there a measnalty in gross was let rendring rent and good for by possibility the Tenant may die without heires and yet this is a remote possibility 12. E. 3. execution 112. a reversion granted by fine in tail rendring rent is good and Coo. 5. Elmers case that a reversion being let for life rendring rent is a good reservation at the Common Law and he held without question that where a Bishop is seised of a Mannor which consists part of freeholders and part of Copiholders that a lease of the Mannor rendring rent is good and in our case the reservation of the rent is intire and shall bind the successor and as to that which had been said that the Herriot is Collateral and shall not go with the reversion to this he
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
in capite and others in Soccage and he made a devise of all his fee simple lands and left only his lands in tail to descend to the heir which doth not amount to a full third part this is a good devise of all the fee simple lands and this case was also admitted that where the Lord Norrice gave land to Sir Edward Norrice his youngest son and to the heirs of the bodie of the father and then the Lord Norrice died and after Sir Edward died without issue that the son of the eldest Brother who was then dead shall take that as heir in tail and that he in this case had that by a descent from Sir Edward Norrice his Vncle which also doth clearly prove that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail The residue of Easter Term in the two and twenty year of King James Stephens and Randal IN replevin between Stephens and Randal who made Conusance as Bailiff to the Earl of Bath and he shewed that such land was parcel of such a Chantrey which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute by which the right of others was saved and pleaded all incertain and shewed that so much rent was behinde upon which he made Conusance as c. to which the Plantiff replied that the land is out of the fee and signiorie of the Earl of Bath c. and this was ruled to be no plea for he confessed so much in his avoury and this avoury is not for rent service for the signiorie is extinct by act of Parliament but this is for rent reserved by the saving of the act of Parliament and this is a rent seek and yet is destrainable for the priviledge which was before but he may traverse the tenure that at the time of the making of the Statute nor never after this was holden of the said Earl of Bath Priest and King Priest and King in an action of which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Prothonotaries and the case was that two were bound for the appearance of an other and judgement was given against the debtor now if upon the capias he come and offer his bodie and the Plantiff refuse that yet that discharges the sureties but the Prothonotaries said that notwithstanding this refusal he may take a Capias against him within the year because that at the first he might have had a fierie facias or an elegit quere of that but Winch thought that in this case he ought to have a fierie facias but if he had come upon the Capias and had no suerâ—tes and he refuse to take him and this is so entred now quere if he had not discharged him Hendon moved the Court for a prohibition to the spiritual Court and suggested that one had libeld in the spiritual Court for a legacie and the Executor shewed that he had not assets to discharge the debts of the Testator and that Court would not allow this allegation and upon this he prayed to have a prohibition and it was the opinion of the Court that no prohibition shall be granted for the legacie is a thing meerly which is determinable in the spiritual Court and no other Court may have Conusance of that and this is also a thing which doth consist meerly in the discretion of the Court and resolved that in a thing which meerly doth rest in discretion of the Court in this case no prohibition shall be granted Henry Good against Thomas Good IT was agreed in the case by the Court between Henry Good and Thomas Good that if the devisee of 500. l. sue in the Marches of Wales for this legacie that a prohibition is grantable for though the Court of the Common pleas had no power to hold plea of that yet because that the thing is only triable in the Ecclesiastical Court a prohibition may be granted to reduce that to its proper Court and though the instruction of the Court of the Marches be to hold plea of all such things wheresoever there is no remedie at the Common Law yet this is to be understood of matters of equitie and not to take the jurisdiction from the spiritual Court for in verity the King may not do that by his Letters pattents but yet the Court agreed that if the Executor do suffer a decree against him in the Court of the Marches and not come to them at the first to be releived it is now meerly in the descretion of the Court whether they will grant that or no for that is a means to lengthen suits and to make the more delay before he do recover his legacie If a Capias ut legatum issueth to the Sheriff to take the partie and to enquire what lands and Tenements he had and the Sheriff findes by inquisition that he is seised of many lands and continues possession in them and the Sheriff do out me I shall have an action of trespass John Marriots case SErjeant Crawley moved this case in arrest of judgement in the case of Iohn Marriot and he declared upon a contract to table with the Plantiff at Ashton in Northamptonshire ad tunc ibidem superse assumpsit to pay 4. s. by the week for his diet and Crawley moved that this ought to have bin tried in Northamptonshire for these words ad tunc et ibident refer to Northamptonshire which was next before and not to London Hutton said that it ought to refer to London otherwise it was idle and it is to be intended of the time and the place where the promise was made but it was said if the issue had been whether he was tabled or no this shall be tried there Giles Bray against Sir Paul Tracie GIles Bray brought an action of waste against Sir Paul Tracie and in his declaration he conveyed a good tearm to the Defendant and a reversion to himself and upon a general issue a special verdict was found to this effect that Sir Edmund Bray was seised of this land in his demeasne as of fee and he being so seised 16. Eliz. made this lease for divers years to I. S. and he being so seised of the reversion conveyed that to the use of himself for life without impeachment of waste and then to the use of Edward Bray his eldest son and to Dorothie his wife and to the heirs males of the said Edward upon the said Dorothie to be ingendred and then Edward died having issue in tail the Plantiff and then this lease was assigned to Tracie and then Dorothie died and then the waste was committed and then Edmund the Grandfather died and the question was whether in this case an action of waste will lie or no. The argument of Serjeant Harris HArris argued that the waste doth lie for the priviledge or despensation which was annexed to the
he was seised in fee and that he had power to alien that and this was to encourage the Purchasers and for the form he needs not aver that this was in the hands of Anne Parker for he had confessed that in the bar that he came lawfully to that and besides the Covenant is broken though he never was seised and so I conceive that the Plantiff shall have judgement Winch to the same intent it is true if it had been all but one Covenant then if it had been no question this had not been broken but I think they are several Covenants like to the case of Sir Robert Napper lately adjudged also the first two Covenants are in the affirmative and the other in the Negative and for that they ought to be answered with several pleas and these kinde of assurances are the Common assurances and therefore they ought to be interpreted favourably for the Purchasers and Iohn was not deceived in these Covenants for they brought down upon the deed an estate in fee and it is also agreed if the word Covenant and grant had been divers times added to the several clauses then they had been several Covenants and now it is all one word and made those to be several Covenants and words of relation never will controul that which is certainly put down before and so he concluded in this case the Plantiff shall have judgement to recover Hobert chief Iustice to the contrary every deed ought to be construed according to the intention of the parties and the intents ought to be adjudged of the several parts of the deed as a general issue out of the evidence and intent ought to be picked out of every part and not out of one Word only and here Peter joyned with his father to strengthen the assurance and Iohn had not only his own estate but the estate of Proud and it is plain he never meant to intangle himself with other Conveyances then those which he and Proud had made and I hold this to be no independent Covenant and it is all bound with one clause S. for any Act or Acts made by them c. and it is confessed if these words had been placed in the forefront that then they should relate to all and it is as clear as if they were and the first reson is that the intent appears only to undertake for himself because he should but have part of the land and for that he was to warrant his evidence and to that end he was to deliver to him his title at large in the said indenture and here he had made the Plantiff privie to every several conveyance of that to inform the Purchaser of it and will you also intangle him with a covenant you might have taken notice of his title and it appears to be the very intents of the parties that you should take notice of the title and inform your selves concerning the same Secondly this is a sentence which may be taken both wayes and I say it is agreed that if it had begun with these words notwithstanding any Act or Acts c. that then it shall be all construed by this and I never saw any difference I grant they are several Covenants in point of fact but not in point of obligation for there are not several words of binding nay I say if he had released this last he had released all but it hath been said that one is in the negative and the other is in the affirmative but I do not value that and it hath been said that this is the Common assurance of the Realm and if other construction shall be made then no man shall be sure of his own we had given him leave to say that no reversion nor remainder is in the King by any Act by him made and the King may not have any reversion and he seised in fee also this clause standing indifferent whether this shall be referred to all or not and then the question is how the Court will adjudge of that for my part I take it that this may stand with the intent of all the parties of the deed but take that as you take it that this destroyes all for if he is absolutely seised in fee what matter is where the reversion is and yet if the reversion was in the Crown and not by his Act you confess that may not charge him which is expresly against the first Covenant if this be distinct by it self but take that indifferently and all the parties will stand together Nappers case hath no affinity with this for questionless there were several Covenants for in that indenture it did not appear what estate Sir Thomas Eearsfield had and for that reason nothing might be collected out of that but he had a present estate but in our case all is contained in the bodie of the indenture and Nokes case is a strong case and stronger then the case at the bar is for thereupon construction of all the parties of the deeds the special warrantie controuls the general warranty and the reason is no man will take an express special warranty when the intent is that he shall have a general warranty there was a case lately ajudged between the Earl of Clanrickard and his wife against the Countess of Leicester where the Lady pleaded that she was Tenant in Dower where in veritie she had the revesion in fee expectant upon a Term for life and they conveyed all the estate the Lady had in Dower and then they covenanted that they would convey all their estate to the Lord of Leicester and his heirs during the life of his wife and then Covenanted that they would convey all their estate to the Earl of Leicester and his heirs for ever in the aforesaid land and it was resolved that though such Covenant will raise an use to the partie who ought to have that and so the reversion will pass if there had been no more words now it was but during the life of the Lady for that third part for the Covenant was but to strengthen an estate and not to convey it and so he concluded that the Plantiff should be hard and after it was said by the Court that this case was not of weight to be brought into the Exchequer Chamber and therefore the Court advised that the parties would agree quere for the residue in the Exchequer Chamber concerning that Entred Hill 18. Jac the case of Comendams Richard Woodley against the Bishop of Exeter and Mannering RIchard Woodley brought a quare Impedit against the Bishop of Exeter and Mannering who was Parson of the said Church and he declared that Arthur Basset was seised of an acre of land to which the said Advowson was appendant in his demeasne as of fee and that he the 13. Octobris 13. Eliz. granted the next advowson to one William Manwood who was then incumbent in the said Church who by his will 20. November made one Harcourt his executor
years notwithstanding his advancement and he resigned during the 3. years and issue there taken upon the resignation and this case proves all the partes of our case first that the King may dispence and that by his dispensation he is compleat person to resign and if he do resigne during the years the King shall not have the prerogative to present again for that was satisfied with the dispensation and also when the King came to his prerogative by subjects means he ought to take that as it falls for otherwise he loses that quite vide Bastervils case Coo. 7. and another reason is if it be not satisfied then the King shall have another which is mischievous and this being a new case such president is not to have more favour then the necessitie of the Law will require and so my opinion is that it is all one as if it had for life and there is a good case 9. Ed. 3. 20. where the King had 2. presentments vide the case but it was upon another reason but the case of 21. H. 7. 8. Frowike where the grantee of the next avoydance had judgement to recover and the incumbent resigned so that it is the second presentment yet the Plantiff shall have the effect of his judgement and he had a writ to the Bishop quere the application for I did not well heare that but in our case if the prerogative of the King was not satisfied yet it ought to appear that when he presented Gee he had no title but that was an usurpation and if the King was not satisfied then the Plantiff shall not have judgement for then Gee was an usurper and upon that declaration the Plantiff shall be barred but now for the last point admit that the King was satisfied of his prerogative by his presentation of Gee whether the Plantiff had lost his course I think he had in the first place the words of the devise are the first the next avoydance which shall hap after the death of Athur Basset now it hath been objected that the King had the first by his prerogative and therefore he shall have the second I think in this case Brook presentation 52. is a strong case where a presentation was granted to one and after to another when the first is void and ruled that the second grantee shall not have the second and so Dyer 35. it ought to be taken according to the words for otherwise he shall not have any for modus et Conventio uniunt Legem and the case of quare Impedit 152. proves something to this purpose for a man had 4. advowsons and granted the next which should hap of them to I. S. and he died and the heir assigned the wife for her Dower one Mannor to which the advowson was appendant which first became void and ruled that the Grantee shall not have that against the feme and then it was moved by Thorpe that he shall have the second but Shard said certainly never which proves that if the turn of the Grantee was taken from him by the indowment of the feme he had lost that for ever the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant that the Grantee of the third shall have the fourth when the wife is indowed of the third which case is brought to prove a case which without question is not law and that is that the King being Gardian of the Grantee of the next avoydance and he grant that in this case the heir shall have that at his full age which without question is now law for by the same reason his course may be the 20. but there are two rules from this which seem to cross this opinion one rule is that the words of the grantor shall be taken most strong against himself and the other that the Grantor shall not be received to avoid his own grant as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are compleat for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joynt Tenants for life and he in reversion grant the lands only which the husband held in this case nothing passeth for the reversion was expectant upon a lease which the husband and wife held nay I will cite one case where a man by his own Act shall avoid his own grant in a quare Impedit Elmes against Taylor where a man was seised of the Mannor to which the advowson was appendant and he granted the third next avoydance and after against his own grant he usurped and it was adjudged that by this usurpation he had gained the advowson to be appendant to his Mannor again and that the Grantee had lost his course and so the case in Dyer 283. where the Church was void and the patron granted the next avoidance tunc vacant to another and this pro hac unica vice tantum and there resolved that the grant was not good and that it should not extend to another and so in our case it shall not extend to a second another reason is if the King had a prerogative he is bound and every derivative estate under him for he shall not be in better case then the grantee for he was bound by the law of the land and for that it is equitie and it is Iustice that the estate of the grantee should be bound and so in this case like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound now if afterwards the Abbot made a lease for years or granted the next avoydance and then after they came to the King he shall avoid the grant for the interest of the Grantor was bound by Act of Parliament and see the case of the universitie of Oxford Coo. 10. where a man before he was a recusant convict he granted the next avoydance and after he became a recusant convict and then the Church became void now the grantee shall not present for his interest was bound by Act of Parliament and so he must take it and here it behoves him to take that as it is bound with the prerogative of the King and so upon all the matter he hath lost his title and he concluded that the Plantiff shall be barred The argument of Justice Winch. WInch Iustice of the same opinion but because his argument was much to the purpose of that with Hutton and the Lord Hobert therefore I will not Report that verbatim and Winch said I will speak to the last point which was moved by my brother Hutton and I hold that where he had the first granted to him now he shall have none at all for it is punctually expressed that he shall have the first and that shall not extend to the next which may be granted but I grant if two coparceners had an advowson and the eldest presented and
the parties hinders the operation of the law and that law will not provide for him that provides not for himself and the Lady her self was partie to the limiting of the uses and she covenanted that she will be seised by vertue of the fine and under the condition in the indenture and so it is a plain Surrender of her former estate and so I pray judgement for the Plantiff The argument of Serjeant Hendon to the contrary HEndon contrary there are 3. points First whether this be a precedent or a subsequent condition and I conceive it is subsequent and here the indentures being but to declare the uses of the fine and not to create any use ergo it shall be guided by the intents of the parties appearing in them and so is the Earl of Rutlands case Cook 5. and Dyer 357. and Shelleys case and the meaning of the parties was not to raise any use to Robert but only a possibilitie to reduce that by the performance of the condition and first it is here said that the Conusee shall be seised to the uses hereafter expressed and under the conditions and then the use ought to preceed the condition for no man may stand seised under the condition except the condition is subsequent to the use to arise Secondly when is the use to arise to Robert surely when he payes 10. s. and then in the mean time the use is to the Lady and her heirs for tunc had here relation to when as it is said in Boles case Cook 3. and in Grants case cited in Loves case Cook 10. and 17. Ed. 3. 1. all which cases prove that tâ—en had relation to when and before this when he had nothing and this doth appear to be the agreement of the parties and now for the words themselves I take it that they make a subsequent condition and so it is here limited in intention and for that in matter also and it is said in Colthirsts case in Plowden that if the estate doth first pass reducible upon condition then it is subsequent and here it is limited to the Conusee and his heirs if the Conusor do not pay but here it hath been said is inversio verborum and the consequent is placed before the Antecedent and this hath been proved by Logick I never knew cases in law to be expounded by Logical and Grammatical learning but by the intentions of the parties and here I conceive that the estate is vâ—sted in the Conusee by the fine and so the condition is subsequent but admit it is Executory and I say concerning that there are these differences that if the state of the thing granted is executory and that the condition of the thing granted is Executory and the condition is to remain with the estate so long as the estate doth remain the condition is precedent 28. E. 3. 2 4. 3. 1. H. 6. 32. but if the condition be but one time to be executed and that not contained with the estate then it is subsequent 10. Eliz. Dyer Calthorps case but here our estate is executed for it is expresly limited to the Lady Cesar and her heirs which takes away all implied uses so that no implied use shall result in the mean time and so 75. Assises land given to a man and to his heirs if he have heirs of his body now this if is subsequent and so I conceive that it is not a condition simply but a conditional limitation for it appears by Mr. Littleton because it is no otherwise expressed and another reason is because the condition is annexed to the future time ergo that is subsequent and yet I grant there is a difference betwixt such an estate conditional annexed to an interest and where it is is annexed to an authoritie it may be precedent but for an interest it is subsequent as is the case of Bracton lib. 2. fo 3. and now for the second point whether the heir may and ought to perform that and I do conceive that he is and it is not annexed to the person because it is real and doth arise with the land Secondly yet the law doth expect who ought to have performed that but it is the performance it self which the law doth respect 4. E. 3. 2. such condition real which doth arise with the land and in such a case no notice is in that case requisite and the last point is whether the estate for life is gone and I hold that it is saved by the common law of England for the fine only is as the grant of the reversion by the explanation of the indenture and then there is no surrender in the case but when the condition is performed the estate for life doth remain and so was it resolved in Mr. Mansors case and yet I agree that a litle matter will make a surrender and Mr. Ruds case where lessee for years of an advowson was presented by the Patron that was a surrender but the Statute of the 27th of H. the Eighth at the end saved that though it is to her own use for the words of the saving are to every person and their heirs which hereafter shall be seised to any use all such former rights c. possession c. as they might have had to their own use in any lands whereof they be seised to any other use whatsoever and so upon the whole matter I do conceive that judgement ought to be given for the Defendant The residue of the case of Gibson and Ferrers NOw the case of Gibson and Ferrers which see before was argued again by Serjeant Bridgman and he said as before the award is not good for the interest and yet he now agreed that covenants bonds and contracts for usury are good in law but yet it may not be awarded 17. Ed. 4. 5. if a man do submit to Arbitrators they may not award that he and his wife shall levie a fine but if the partie himself do promise that this is good and shall binde the wife to perform that and besides he said that here is an award made only of one side and nothing is allowed to Ferrers and so not good 9. Ed. 4. 29. 29. H. 6. 22. and I pray that the Plantiff may be barred Hendon to the contrary and he argued if an award be good in any part though it be not in that which is assigned for breach yet it is good upon such plea of nullum fecerit arbitrium and the other shews an award and assignes the breach in this case the breach is not traversable for it is of the form and not of the substance of the action but to that the Court did presently answer that the cause of the action is the breach of the award and this he ought to make apparent to the Court for otherwise he shall not have any action and though the breach is not traversable yet it is of the substance of the action for upon such plea pleaded he not only