the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
not a good Feoffment for White-acre Michaelm 29. 30. Eliz. Knowles against Powell in Scaccario THe Queen seized in Fee made a Lease for years to one who was out-lawed at the time of the Lease rendring rent and after he was out-lawed again and before seizure comes out the general pardon of all Goods and Chattels forfeited and in this Case it was agreed that a man out-lawed was capable of a Lease from the Queen as Farmer to the Queen And Manwood said that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry and it was also agreed that a man out-lawed and pardoned had property in his goods Egerton Sollicitor said that in the 4 Eliz. it was adjudged in the Common Pleas that if the Queen made a Lease under the Exchequer-seal to begin immediatly after forfeiture surrender or expiration of a former term and the Lessee is out-lawed shat the second Lease shall not commence for it is a Royal forfeiture Trinit 41 Elizab. Ferrers against Borough in B. R. Rot. 185. UPon a special Verdict the Case was thus A man makes a Lease for years upon condition that if he paid 10 l. before Michaelmas that it should be lawfull for him to re-enter and before Michaelmas he lets the land to another by Indenture for years and then performed the Condition and entred the first Lessee brought a Trespass and it was adjudged that it does not lye Trinit 35 Elizab. Lambert against Austen in B. R. Rot. 185. IN a Replevin the Case was thus A man seized of land in Fee grants a Rent-charge out of it to A. for life with a Clause of Distress and then makes a Lease to B. for years and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. untill the 18 of Eliz. and the Grantee makes the Defendant his Executor and dyes the term of B. ends in the 33 Eliz. and then J.S. enters and makes a Lease to the Plaintiff the Executor of A. distreyns for the arrearages and the Plaintiff brings a Replevin Gawdy and Fenner This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years but out of the Free-hold and upon grant thereof as Littleton saith the Tenant of the Free-hold ought to attorn and not the Termor and so is it 9 H. 6. and if an Assize be brought for this Rent it ought to be brought against the Tenant of the Free-hold and all the Tenants of the Free-hold ought to be named in a Rent-charge by Cook 6 Rep. 58. but otherwise for a Rent-service for that is against the Termor onely and a Termor cannot give seizin of the Rent to maintain an Assize by Cook 6 Rep. 57. and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages because the estate is determined Cook 4 Rep. 49. but an Avowry is given by this Statute Onely so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relyed on this word demesn which ought to be intended of a Free-hold and of a Reversion upon a Lease for years it is pleaded quod seisitus in dominico suo c. and so cannot a Tenant for years say for which reasons it seemed to them that the Distress was well taken Clench contr For the Termor ought to pay it for he takes the profits of the land as if a Lease be made to a woman rendring Rent who takes husband and dyes the husband shall pay the Rent by the 10 H. 6. for he hath taken the profits and by the words of the Statute they are in the possession or seisin and seisin refers to the Tenant of the Free-hold and possession to the Tenant for years and the words are which ought immediatly to pay the Rent and so ought the Termor in our Case who is chargeable to the Distress of the Testator Popham chief Iustice of the same opinion The Distress is not well taken for he who hath the profits of the land ought to answer for the Rent Gawdy Although the Cattel of the Lessee be distreynable by the Testator that is onely because they are upon his land as a strangers Cattel may be so distreyned and therefore this proves not that the Lessee should pay the Rent And if a man grants a Rent-charge and lets the land at will afterwards the Rent is behind and the Grantee dyes and the Lease at will determines without question in that Case the Lessor is subject to the Distress of the Executor And in our Case if the Grantee had released to the Tenant for life this had extinguisht the Rent otherwise of a Release to Tenant for years Fenner If Tenant in Tail granta a Rent-charge and after makes a Lease for 21 years according to the Statute and dyes the Rent by the death of the Tenant in Tail is determined To which Gawdy agreed which proves that the Rent issues out of the Freehold Vid. Cook 5 Rep. 118. Hillar 37 Eliz. Butler against Ruddisley IN a Trespass the Defendant pleaded the Free-hold of Edward Devereux and so justified as his Bailiff without saying at his commandment the Plaintiff replyed that the said Edward was seized in Fee and made a Lease to him by vertue whereof he was possest absque hoc that the Lessor made the Defendant his Bailiff post dimissionem and hereupon the Defendant demurred Crook By this Lease a Free-hold passeth to the Plaintiff and then the Plaintiffs traverse is naught for he hath now traverst that the Defendant is Bailiff whereas he ought to traverse the Free-hold in the Lessor for that would have destroyed the justification of the Defendant And to prove that the Free-hold doth pass he cited the Case of Littleton where if a Lease be made to the husband and wife during Coverture they are Ioynt-tenants for life So in the 30 H. 6. a Lease to a woman dum sola vixerâ—t And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice or dummodo se bene gesserit all these are Free-holds And it is clear that a Tenant at will cannot assign over And also an estate at will is an estate at the will of both parties but here it is at the will of the Lessor onely when he will make a Bailiff Haughton contr An estate at will doth pass and not a Free-hold for here he hath not pleaded that Livery was made and Livery shall not be intended in this case unless it be specially alledged but if Livery had been made then he agreed that a Free-hold conditional had past and for the pleading of a Livery he took a difference that where an express estate either in fee or for life be pleaded there Livery shall be intended but where a Free-hold passeth by implication or operation of Law and not
the wife is at large to have the twelve pound and her Dower also But the Court held that she could not have her joynture for by the recovery of the Dower her joynture is barred for the Rent was given her in recompence of her Dower so that it cannot be intended that she shall have Rent Dower also wherefore it was adjudged that her entry on the Land was not good 30 31 Eliz. The King against the Bishop of Canterbury and Hudson Rot. 1832. IN a Quare impedit Hudson the Incumbent did plead that King Edw. the 4th did grant the Rape of Hastings Et bona catalla Fellonum Fugitivorum ategat of all Residents and non-residents within the said Rape to the Earl of Huntington And pleaded that John Ashborne was seized of the Mannor of Ashborne and of the advowson appending to it and held the same of the Earl of Huntington as of his Rape of Hastings and that the said John Ashborn was outlawed during which the Incumbent of the said Church dyed and the Earl presented the said Hudson Shut I conceive this avoydance does not belong to the Earl by reason of this grant for by the same Patent libertie is given to the said Earl his heirs to put himself into possession and of such things as he cannot put himself into possession they will not passe and here this is a thing in action which by these words will not passe 19 H. 6.42 by the grant de Catalla Fellonum obligations do not passe VValmesley Stanford in his prerogative saith that by the words Bona catalla the King shall have the presentation to the Church of him that is outlawed or Attaint and by the same reason he may grant it by such a name and although the party cannot seise such a thing yet it shall passe 39 H. 3.35 Rent for years shall passe by the grant of bona Catalla Periam It will passe by these words for it is an ancient grant for in that time the Patents of the King were not so specially penned as now they are Anderson I conceive the avoydance will not passe by thse words for within this word bona moveables are contained both dead and living and Avoydance is no Chattell nor right of Chattell Quod Peryam negavit c. Mich. 37 38 Eliz. Townsend against VVhales IN an Ejectment the Iury found that J.S. was seized of land in possession and also in reversion for terme of life and made a Devise by these words That his Executors take the profit of all his Lands and tenements Free and Copy for ten years for the payment of his debts and Legacies and after the end of the said ten years that all the aforesaid lands and tenements with their appurtenances should be sold by his Executors or one of them and the silver to be bestowed in the performance of his Will or by the Executors of his Executors or any of them and then one of the Executors dyed within the ten years and the two surviving Executors did grant all aswell in possession as in reversion to House who made a Lease to the Plaintiff And two points were resolved 1. That the Executors may grant the reversion 34 H. 6. for by these words Free and Copy his intent appears that all should be granted 2. That although one of the Executors died yet the other two Executors may sell Anderson If such bevise had been at the Common Law and one Executor had refused the two others could not sell but if one die the survidors may sell the land for there the authority doth survive Which difference the other Iustices agreed to And at another day Anderson said there was difference where the Devise is that Executors should sell his and the money divided between them there if one die the others shall not sell but otherwise here because the money is the performance of his will Walmesley The sale by the two Executors is good for it is said the Executors or any of them c. And Beaumond agreed Wherefore judgment was given for the Plaintiff Note that there were two verdicts in this case and the first only found that the Executors shoull sell after the ten years and that one dyed and the other two did sell within the ten years and the opinion of the Court was that the sale was voyd but in the 39 and 40 Eliz. all the whole will was found and Iudgment given ut supra The Earle of Rutlands Case Roger Earl of Rudand and John Maners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland brought an action on the case against Isabell Countess of Rutland And Declared for divers Iewells and goods c. that came to the hands of John Earl of Rudand as Executor to the said Edward and the said John the 10th of July 29 Eliz. did casually loose them which after came to the hands of the Defendant licet saepius requisita she would not deliver them to the said John in his life time nor to the said Plaintiffs after his death but knowing the goods did belong to the Plaintiffs in D. in the County of Notingham converted them to her proper use And a verdict for the Plaintiff And it was moved often in arrest of Iudgment but all the Iustices agreed that the action of Trover and converversion would lie by the Executors upon the Satute of the 4 Ed. 3. upon a conversion in vita Testatoris and so hath it been adjudged in the Kings Bench and although the Statute mentions onely a Writ of trespass that is only put for example Also they all agreed that the sole cause of action to the Conversion for it there were no conversion they shall be put to their Detinue therefore the great doubt did arise because the day and time of the conversion was not shewed for perhaps it was after the Writ and before the Declaration And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said That all Iustices of the Common Pleas and of Serjeants Inne in Fleet-street besides Peryam Chief Baron were of opinion that Iudgment should be given for the Plaintiffs for that some of them held that the day of the Conversion is not materiall to be shewn and others that of necessity as this case is it shall be intended that the conversion was in the Plaintiffs time wherefore Iudgment was entredfor the Plaintiffs but a Writ of Errour was brought and the Case much debated Michaelm 38 39 Eliz. Carew against Warren in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in antient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland who rendred to Gunter in Fee who devised the reversion to his wife for life the remainder in Fee and dyed And then the Lord of Andover which is an ancient Mannor by an
opinion he relied upon the intention of the Donors which ought to be observed For if the Habendum does crosse the Premisses it shall be void but a Remainder is good for the benefit of a stranger but a Rent cannot be reserved upon such a Gift during the foure degrees but after the Reversion is good if he do attorne to the Gâ—…ntee of the Reveâ—sion Windham Frank-marriage is not an Estate in taile for there wants the word Heires Coke lib. 1.103 So a Gift to a man semini suo 10 Ass 26. and after Meade â—greeâ— with Windham although the grounds of Frank-marriage were not observed yet that it was good for although there be no Tenure between the Donor and Donee yet is it a good Frank-marriage Dyer It is no good Frank-marriage because the usuall words are not observed and if the word Liberum be omitted it is not Frank-marriage neither is it good given to a man but it must be to a woman for a man cannot give land to a woman Causa matrimonii praelocuti And in this case the party ought to be of the blood of the Donor who by possibility may be inheritable to him and there ought to be a Tenure between them and an acquittall and if any faile it is no Frank-marriage and he said further that if it once takes effect as Frank-marriage and then the Donor grants the Reversion or the Reversion discends to the Donees yet it shall not be destroyed but shall remaine as an Estate in taile and not for life because it once took effect in the Donees and their issues and if land be given to a man in Frank-marriage the remainder in taile yet this shall not destroy the Frank-marriage and the Donee shall hold of the Donor and not of him in the remainder And if one give land in Frank-marriage the remainders to the Donees in taile yet is this a good Frank-marriage and if the Donor grants over his Services yet doth the Frank-marriage continue although the Donees attorn for they are incident to the Reversion and therefore the Grant is void but if the Reversion be granted the Services will passe and he concluded that the Husband had all and the Wife nothing because no Estate to her is mentioned in the Premisses and he could not construe the words to be the intent of the Donor for here is an expresse limitation of the fee to the Husband and his Heirs which cannot be controlled by intendment And after 25 Eliz. It was adjudged to be no Frank-marriage nor gift in taile but a Fee-simple And the Iustices said that the ancient Books were that where it took not effect as a Frank-marriage it should be in especiall taile yet those at this time are not Law But they agreed that this at one time took effect as Frank-marriage and by matter ex post facto may be made an Estate in taile Mich. 30 Eliz. Gibbs Case GIbbs brought an Action of Trover against Basil for a Gelding the Case was One Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and it was entred so in the Toll Book that Lister sold him The question was if this alteration of his name shall make any alteration of the property although the sale was in open Market Windham and Rhodes Iustices held this no good sale to bar the Plaintiff and grounded their opinion on the Statute of the 2 and 3 Phil. and Mar. cap. 7. which provides that no property of stollen Goods shall be altered that are sold unlesse the name and surname of the parties to the sale be written in the Toll-book And Shuttleworth moved that it should be in the Market and walked there for an houre together which is not set forth by the Defendant in his Bar but the Iustices said that such speciall plea need not to be but shall be intended Rouses Case IT was moved in this Case that if Tenant for terme Dauter vie does continue and hold in his Estate after the death of Cestuy que vie If he be a Disseisor and whether in pleading the plea ought to be seised and not possest Shuttleworth He was legally in at first and therefore cannot be a Disseisor 15 Ed. 4.41 A Freehold could not be gained where he came in by the agreement of the party and 12 Ass 22. Where the Husband and Wife were seised of a Freehold and after were divorced by Suit on the womans part whereby the woman is to have all the land yet if the Husband continue possession and dies seised this discent shall not take away entry because he was no Disseisor Gawdy He is Tenant at sufferance and no Disseisor and there it was moved that if Tenant at sufferance or a Disseisor makes Copies of Copyhold Lands if they be good or voidable And note that Wilde took here a diversity between a Termor that holds over and a Tenant at sufferance for in case of a Tenant at sufferance there is no Freehold taken from the Lessor which the continuance of possession doth not take from him but where the Tenant holds over his terme there the Freehold is disturbed and therefore there is a disseisin But at that present it seemed to the Iudges that there was no diversity But the next terme Godfrey moved that if Tenant for anothers life held over his Estate he had Feesimple and he granted that it was otherwise in some cases for if he claim to be Tenant at the Will of the Lessor he shall not gaine a Fee-simple For Littleton in his Chapter of Releases 108. saith that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold and such Occupyer claimeth nothing but at Will But in this case the Tenant claimes otherwise then at Will of the Lessor he does not claim any thing but at the Will of the Lessor as in the case of Littleton but claimes to hold over against the Will of the Lessor which is no Tenant at sufferance and 10 Ed. 4. If a man makes a Lease at Will and the Lessor dies and he continues possession and claims fee the Heire shall have a Mortdancester and 18 Ed. 4.25 If Cestuy que use dies and the Tenant continues in and the Tenant is impleaded the Lessor shall not be received and the reason is because there is no reversion in him but the Tenant hath it and 22 Ed. 4.38 by Hussey Iustice If a Termor holds over his Terme there an Estate in fee is confest to be in him by matter of Law but it is a deubt whether he be a Disseisor or not but it seemeth not for a Trespasse doth not lye against him before Regresse and in the 7 H. 4.43 If a Guardian holds the possession at the full age of the Heir or Tenant for years after his terme expired the Estate shall be judged in Fee And in our case he hath
Rot. 610. Bond against Richardson In Debt the Defendant pleaded payment at the day and gave in evidence payment at another day before the day of payment and so was it found by the Iury in a speciall Verdict And Anderson said We are all agreed that Iudgment shall be given against the Plaintiff for payment before the day is payment at the day and Iudgment was given that the Plaintiff should be barred Willis against Whitewood A Man was seised of lands in Socage and made a Lease for years by Paroll and died his wife was Guardian in Socage to his Son and the Lessee accepted of a new Lease by Deed of the Guardian in Socage and then the Guardian died and a new Guardian entred and outed the Lessee and if the second Guardian could do this was the question Anderson It cannot be a surrender for a Guardian hath no Estate that may be surrendred but it is an extinguishment of the Lease and if a Woman Guardian in Socage takes Husbandâ— and dies the Husband shall not be Guardian in Socage Almeskey against Johnson JOhnson had a second deliverance returned which was returned Averia eloigniata c. whereupon he prayed a Withernam of the Cattle of the Plaintiff and it was granted and then came the Plaintiff and satisfied the Defendant his damages and charges and praid a Writ of Restitution to have his Cattle again taken in Withernam Fleetwood Cattle taken in Withernam are not repleiditable how then can you have your Cattle and then we shall not be paid for the meat And the Court held that the Cattle were not repleivisable but for satisfaction of damages he shall have restitution of the Cattle and so is the course which was confirmed by the Clarks And Walmesley cited 16 H. 6. Repleviâ—… to warrant this And as to the meat he had the use of the Cattle whereby it was reason he should sustain them And a Writ of Restitution was granied Mich. 31 and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood it was said that the Order called the Cistrenses Order hav a priviledge that they should pay no Tythes for the lands that Proprils manibus excolunt but if they let it to Farmers then they were to pay Tythes and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tythes was the question And it was said that the Queen and her Farmers also should hold the land discharged of Tythes as well as the particular persons of the Order should for the King cannot be a Husband and therfore his Farmers shall hold the land discharged so long as the King hath the Freehold in him although he make a Lease thereof for years at will but to if the King sell the land to another or the reversion to another then the Farmers shall pay Tythes Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumont that a Debt which is not naturally a Debt in it self but a Debt onely by circumstance may be assigned to the Queen As where a man is bound in a Bond to save another harmlesse and failes thereof the Obligation may be assigned to the Queen But in such case a present extent shall not be awarded but the Processe shall be onely a Scire facias against the party to see if he hath any thing to plead against it which note well And where a man recovers damages in an Action on the case parcell of the damages cannot be assigned to the King before execution for he must bring a Scire facias upon such Record And Manwood chief Baron held clearly that a moyely hereof could not be assigned over 22 H. 6.47 One was indicted of Treason at S. Edmundsbury Coram Justiciariis ad diversas felonias c. audiendas and after the Indictment made mention of Bury and did not say praedict and by the opinion of the Iustices the Iudgment was quasht Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert for saying that the Plaintiff was a Suitor to a Widow in Southwark and that he consened her of her money in procuring false witnesses to consen her And a Verdict found for the Plaintiff And in Arrest of Iudgment it was said that in the case of Kerby it was adjudged that Cousener will not beare Action and so was it adjudged in this case Mosse against Reade THe Defendant called him Theef and thou forgest a Deed and a Verdict was found for the Plaintiff and in Arrest of Iudgment it was said that Theef generally without saying of what nature specially will not bear Action But Wray chief Iustice denied that and said that it had of late been adjudged to the contrary and Gawdy against him But as to the words that he had forged a Deed adjudged that the Action will lye although it be not specially alledged what manner of Deed was forged Pasch 32 Eliz. COllings informed upon the Statute of buying of Tythes against Robert Davyes and Stock And it was said by Periam that although the words of the Statute be Pro termino diversorum annorum yet if a Lease be made but for one year yet is it within the penalty of the Statute Mich. 31 and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury and others and declared upon a Grant of the next avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance and upon this there was a Demur And the whole Court for the Demur for that such Letter was a mockery for the Grant was not good without Deed and Iudgment was given accordingly In Tymbermans Case it was said that if a Sheriff took one in Execution by force of a Capias although he return not the Writ yet an Action of Debt will lye against him upon an escape and Periam said it had been so adjudged Katherine Gilham brought an Ejectment as Administratrix to her Husband Quare determino eject bona catalla sua ibidem inventa cepit c. and a Verdict for the Plaintiff and it was alledged in Arrest of Iudgment that this word Sua shall not be intended her own Goods and not the Testators And the Court was of opinion that Sua shall be intended in such manner as Administrator and no otherwise And therefore Iudgment was affirmed Mich. 31 and 32 Eliz. Baldwin against Mortin USe to the Husband and Wife habendum to the Husband for thirty years the Wife shall take nothing thereby and this case was argued at the Bar and Bench and was called the Earl of Cumberlands case Fleetwood moved that an Action was brought against the Husband and his Wife and dit declare a trover of the Goods of the Plaintiff by the Wife which she converted to her own use and prayed
that the Plaintiff could not have the Error but the Daughters who were the Heirs to Henry for an Action alwaies discends according to the right of land and it seems that the Heir in Burrow English shall have Error or Attaint and not the Heir at the Common Law which was agreed by all on both sides but it was said that this varies much from the present case for two reasons One because he came in as Vouchee which is to recover a Fee-simple and he shall render a Fee-simple in value which is discendable to the Heirs at the Common Law Secondly he hath no Estate-tail Bromley Solicitor and Plowden contra and laid this ground that in all cases where a recovery is had against one by erroneous processe or false verdict he which is grieved shall have redresse of it although he be not party or privy to the first Iudgment and therefore at the Common Law if a Recovery be had against Tenant for life he in the Reversion shall have Error of Attaint after his death and now by the Statute of R 2. in his life so in a Precipe if the Tenant vouches and the Vouchee looseth by default the Tenant shall have Error for the Iudgment was against him and he looseth his term and in the 44 Ed 4.6 in a Trespasse of Battery against two one pleads and it is found against him and the plea of the other not determined damages by the principall Verdict is given against them both which if they be excessive the other shall have an Attaint And Bromley said there could not be a case put but where he that hath the losse by the recovery should have also the remedy and Baker cited 9. H. 7.24.6 that if a Recovery be had against a man that hath land on the part of the Mother and he dies without issue the Heir of the part of the Father shall have the Error But Bromley and Plowden denied this case and that 3 H 4.9 it was adjudged to the contrary And Wray said to Baker that he ought not much to rely on that case for it was not Law and said that if Tenant for life makes a Feoffment and a Recovery is had against the Feoffee the first Lessor shall not avoid this Bromley there is no use for he may enter by forfeiture but in our case of whatsoever estate it be at the time of the recovery the right of the Estate-tail is bound and therefore it is reason that the Heir in tail shall avoid it Jeffrey of the same opinion and cited 17. Ass A Conusor makes a Feoffment and then execution is sued against the Feoffee by erroneous processe the Feoffee shall have the Writ of Error although he be not party to the first Record but the reason is because of his interest in the land And Bromley and Plowden said further that notwithstanding the Feoffee recovers against the Vouchee and the Vouchee recover over the land yet this recovery shall go to the Estate-tail And Iudgment was given for the Plaintiff Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry and after an Execution is sued against him at the suit of a common person and he is taken by force thereof and after he takes a Habeas Corpus out of the Kings Bench and Coke prayed that he might be discharged of this execution for where a man is attaint of Felony he hath neither Goods nor Lands and his body is at the Kings disposall and so is not subject to the execution of a common person 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary For although he be attaint of Felony yet may he be in execution for his own offence shall not aid him and so was it in Crofs case in the Common Pleas where a man being attaint of Felony was taken in execution at the suit of a common person and he escaped out of Prison and an escape was brought against the Sheriffs of London and a Recovery against him And at last by advise of the Court because he was indebted to many persons and to discharge himself from his Creditors intended to have a pardon for his life and so deceive them therefore he was committed to the Marshalsey upon this execution Trin. 42 Eliz. Malloy against Jennings Rot. 1037. IN a Replevin the Case was A man seised of land in fee is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff and then the Recognizance is forfeit and the Conuzee sues out a Scire facias against the Conuzor before the Deed was inrolled and had Iudgment to have Execution And the question was if the Bargainor was a sufficient Tenant against whom the Execution was sued Williams Serjeant The Bargainor was Tenant at the time of the Scire facias before inrolement and although it was inrolled after shall have relation to the first livery to prevent any grant or charge And if an Action be brought against an Executor as in his own wrong and the Suit depending he takes Letters of Administration this shall not abate the Writ So in our case the Bargainor was seised of the land when the Scrie facias was brought and if a man makes a Lease for life rendring Rent and then the Lessor bargains and sells the Reversion and before the Inrolement the Rent is behind and the Bargainer demands the Rent which was not paid and then the Deed is inrolled yet he cannot enter for the forfeiture which I have seen adjudged in the 28 H. 8. Dyer Disseisee of one acre makes a Release to the Disseisor of all his lands and delivers it as an Escroll to be delivered to the Disseisor and then he disseiseth him of another acre and then the Deed is delivered to the Disseisor yet the right in the second acre shall not passe And he much rolled on Sir Richard Brochets case 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seised the first day of May and it hapned that one Corbet had sold him land by Indenture the 24. day of April but the Deed was not inrolled untill the 24. day of May after And the question was if the Conuzor was bound to convey these lands or not and adjudged that he was not for inasmuch as the Deed was not inrolled the ffrst day of May he was not seised and great mischief would ensue if the Law should be otherwise for no man will know against whom to bring his Action for a Bargain and Sale before Inrolement may be done secretly Herne Serjeant The Bargainee is seised before Inrolement and by the Statute of 5 Eliz. which wills that none shall convert land used to tillage unlesse he puts other land to tillage within six months yet none will say that it is a breach of the Statute although Pasture be presently converted to tillage and he cited Chilburns cafe 6 Eliz. Dyer 229. that proves that
21. years that is good and the Executor shall have it as in right of his Testator But where a man makes a Lease for years or life the remainder after his death for 40. years to his Executors the Executors shall have it as purchasors for this word remainder divides it from the Testator and makes the Executors purchasors Walmesley Glanvill and Kingsmill cont And their chief reason was from the intent of the parties and their intent was that the Lessee should have an estate during life for it is to him for 89. years if he so long live and because by common intendment he cannot survive those years their intent was that his Executors should have it after his death and that the certainty of the time might be known it was limited for 40. years And W lmsley said that the Administrator could not have this by purchase for when a man takes by purchase he must be named by an apt name of purchase by which he may be known as if there be tenant for life the remainder to the right heirs males of J.S. and J.S. hath issue two sons and the eldest hath issue a daughter and J.S. dies this daughter shall never take any estate because she is not heir male she hath no name of purchase and therefore here the Administrator cannot take by purchase for the Administrator comes in by the ordinary and therefore cannot be an assignee And at last Iudgment was given That the Administrator should hold it as a thing vested in the Intestate Michaelm 41 42 Eliza. VVhite against Gerish in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent The case was this Two persons did joyne in leavying a fine to J. S in Fee â—ur coâ—…ns de droit come ceo c. J.S. by the same Fine renders the Lands to one of the Conusors in taile reserving Rent and further would quod tenementa preâ—…cta remanerent to the other who is the avovee Walmesley The Rent shall passe as if a man grants land for life and also grants quod tenementa predicta remaneâ—unt to another these words Quod tenementa predicta do make a grant of the reversion and also these renders are as severall Fines and so it shall be taken as a grant in Taile rendring Rent and after a grant of the reversion Glanvill accorded Warburton If a man makes a gift in Taile rendring rent the remainder over in Fee the Donor shall have the Rent and not he in the remainder Walmesley That is true in a grant but not in a Fine Anderson If a man makes a gift in Taile rendring rent and at the same instant grants the Reversion and the Deeds are delivered accordingly this shall passe as a reversion And after it was adjudged to be a grant of the reversion and that the rent passeth Crawleys Case IN Replevin the case was thus A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth and if the Rent were determined was the Question Walmsley The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoynd with the possession whereby the Rent it self is carryed to J.S. whereby J.S. hath an absolute estate for his life and the life of the grantees is not materiall as if Rent be granted to two for the life of J.S. if he does not grant over the rent their lives are not materiall And if they grant over and dse the Rent shall not cease but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie otherwise if it were before the Statute of use quod fuit concessum per curiam Pasch 41 Eliz. Shaw against Sherwood Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill and the Bill was thus I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Elizâ—beth Shaw equally to be divided which said sum I acknowledge my self to have received to the use aforesaid and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and Eâ—…zabeth Walmesley Two points are here First if this be a Debt to cestuy que use or to him who gave it Secondly if it be divided so that each of them shall have an Action for 20 l. And as to the first he held that it was a debt to him for whose use the money was delivered and as to the second that they shall have a debt as of several debts by reason of these words equally to be divided Kâ—…gâ—…m Here is no Obligation for the words are not obligatory but onely an acknowledgement of the receipt Glanyâ—ll accorded Walmesley When he acknowledged the receipt to both their uses without question such Receiver is a Debtor And agreed by the Court that admitting it was a Debt that then it shall be a divided Debt and not joynt Quod nota Lane against Cotton IN Debt upon a Bond on condition to pay 20 l. within a month after the Obligee had a son that did or could speak the Lords Pâ—…er in English that he could be understood the Plaintiff pleaded that he had a son qui loqui potuiâ— praecationem Domini uâ—intelligâ— potuerit and the Defendant demurr'd because it was pleaded that he had a son qui loqui potui for that is a secret ability that cannot be known Kingsmill The plea is good and shall be tryed as in case of a Writ of non comâ—…s mentis Glanvill accorded for it may be proved by the testimony of those who have heard him speak and if he ever spoke it it is good evidence that he had ability to speak Walmesley contr Because it is a secret thing it cannot be tryed Kingsmill A man is bound in a Bond to give me 20 l. when the River of Varâ— is novigable it is a good plea to say that the River is navigable without saying that some have navigated upon it Herâ— Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop who had pleaded that the Parishioners were Welshmen and that they could not understand English and that the Clerk he presented could not understand Welsh and the Patron pleaded that the Clerk could speak Welsh and upon Demurr it was adjudged a good issue and that such matter might be tryed Anderson The issue is good and it is at the election of the party to plead quod loqui potuit vel loquutus est And if I am obliged to you to give you a 100 l. when I am able to go to Pauls this may â—e tryed although in facto I never went to Pauls and if I am able I shall pay the money And he cited Broughtons Case where in Maintenance the Defendant pleaded that he
Court of Wards TEnant of the King by Knights service bargains and sells his land to Sir Henry Dimmock and his heirs and Sir Henry Dimmock dyes his heir within age and then the Deed is inrolled the question was if the King should have premier seisin Trist The King shall not because Sir Henry did not dye within his homage but the land was in the Bargainor as if there be a Bargainee of the reversion and the Tenant makes waste the Bargainee shall not have waste unless the Deed be introlled before the waste committed 3 Jacobi Bellingham against Alsop Bargainee before inrolment sells the land over and it was adjudged that the second bargain was voyd 10 Eliz. Mockets case Disseisee releaseth to the Bargainee of the Disseisor before inrolment and adjudged voyd 5 Eliz. in Pophams Case it was said that the Statute of inrolments had altered the Common Law for now by the delivery of the Deed no use is raised untill it be inrolled But all the Iustices held that the heir should be in Ward and pray premier seisin if he were of full age for the Statute sayes that no use shall be unless the Deed be inrolled but if it be inrolled it passeth ab initio and then the Bargainee shall be Tenant ab initio But it was also agreed by all the Iustices that the wife of Sir Henry shall not be indowed and that Rent paid to the Bargainor at the Rent-day incurr'd after the bargain is good and the Bargainee hath no remedy because it is a thing executed Trinit 12 Jacobi Cuddington against VVilkin in C. B. Rot. 924. IN an Action of the Case for calling the Plaintiff Thief the Defendant justified because the Plaintiff had stollen Sheep 37 Eliz. the Plaintiff replyed protestando that he had not stollen Sheep and pleaded the General Pardon 7 Jacobi upon which the Defendant demurred and adjudged for the Plaintiff for the Pardon had so purged and abolished the Offence that now he was no Thief 1 Ed. 3. Corone 15. 2 Ed. 3. Corone 81. 1 Assi 3. So if one call another Villain after he is infranchised And in one Baxters Case in Banco Regis it was adjudged that where a man was accused for Perjury and acquitted by Trial if he be afterwards called perjur'd he shall have his Action on the Case And Iudgement was given for the Plaintiff Seaman against Cuppledick IN a Trespass of Assault and Battery the Defendant justified in defence of his servant scil that the Plaintiff had assaulted his servant and would have beaten him c. and the Plaintiff demurr'd Yelverton The bar is good for the master may defend his servant or otherwise he may lose his service 19 H. 6.60 a. Crook Iustice The Lord may justifie in defence of his villain for he is his inheritance Williams contr The master cannot justifie but the servant may Justifie in defence of his master for he owes duty to his master 9 Ed. 4.48 Yelverton The master may maintain a plea personal for his servant 21 H. 7. and shall have an Action for beating his servant and also a man may justifie in defence of his cattle Cook A man may use force in defence of his goods if another will take them and so if a man will strike your cattle you may justifie in defence of them and so a man may defend his son or servant but he cannot break the peace for them but if another does assault the servant the Master may defend him and strike the other if he will not let him alone Williams It hath been adiudged in Banhams Case that a man cannot justifie a batterie in Defence of his soil a fortiori he cannot in defence of his servant vid. 19 H. 6.31 9 Ed. 4.48 Trinit 12. Jacob. Drury against VValler IN an action on the Case upon a trover and conversion of 200 l. delivered by the Plaintiff to the Defendant and upon not guilty pleaded the Question was if denyall by the Defendant to pay it upon request would beare this action And the case of Isaac was urged who brought an action of Trover c. for 200 l. in a bag and by verdict it was found that demand was made thereof and a deniall to pay it And by Dodderidge it was a Conversion Crooke accorded but Haughton doubted the case And Man Prothonotarie said that he remembred a president in the Case where it was resolved that in such case deniall of a horse was a conversion Haughton I remember an action of Trover was brought for a Trunk and it was ruled there that if one hath Timber in my land and he demands liberty to carry it off my Land and I deny it this is not a sufficient conversion Dodridge there is great difference in the Cases for a Horse or money cannot be known if they be used but Timber may Et adjournatur Michaelm 8 Jacobi Alfo and Dennis against Henning in B. R. Rot. 969. IN an action of Covenant the Case was thus Thomas Tavener by Indenture primo Jacobi did demise land to one Salisburie for 7. years and by the same Indenture Salisburie did Covenant grant condescend and agree with Taverner his heirs and assignes that he his Executors and Administrators should pay to Taverner his heirs and assigne 75 l. per annum And after Taverner demised the same land to Mary Taverner for life and he demised the reversion for 40. years to the Plaintiff if he so long lived and the tenant attorned and for rent due at the Feast of St Michaell he brought his action of Covenant And the first question was if this were a sum in gross because the Lessee covenanted to pay this as a Rent And resolved by Cook Chief Iustice and the Court that this is a good reservation of Rent for it is by Indenture and their intention was to have it as a Rent and the words of the Indenture shall be accounted to be his who may most properly speak them 26 H. 8.2 10 Eliz. 275. 22 H. 6.58 28 H. 8.6 And the Case between Whitchett and Fox in Replevin this terme where a man made a Lease for 99. years rendring rent and the Lessee covenanted by the same deed with the Lessor that he would not alien without his assent upon paine of forfeiture and after he aliened and the Lessor entred And it was held by the Court that this was a condition although the Plaintiff did covenant for being by Indenture they shall be the words of both and the words sub paena â—orisfacturae are the words of the Lessor The second point was if the assignee for 40 years may have a Covenant and it was held he might for it is for payment of rent and if the Lessee covenants to do any thing upon the land as to build or repaire a house there a covenant will lie for the assignee by the common Law but if it do not by the Common Law yet it is cleere that it will lie by the Statue of
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
facias by the Queen against Allen. THe Case was A man recovers damages in an Action on the case and he assignes parcell of his debt to the Queen before execution and the Queen thereupon brought a Scire facias Manwood chief Baron and all the Court held cleerly that parcell or a Meyety of this debt could not be assigned over to the Queen See 22 H. 6.47 where parcell of a debt upon an Obligation was attached by a forren Attachment Beverley against the Arch-bishop of Canterbury Quare Impedit THomas Beverley brought a Quare Impedit against John Arch-bishop of Canterbury and Gabriel Cornwall the case was That the Queen being intituled to an Advowson by Lapse because that the Incumbent had two Benefices each of them being of the value of eight pounds per annum whereby the first by the Statute of 21 H. 8. became void and after the said Incumbent died and divers others were presented by the Patrons who died also whereby the Church becomes void againe If the Queen may now take her turn to present in regard she took not her turn when the first Lapse happened immediatly at the first avoidance was the question And after long and serious debate all the Iustices of the Common Pleas did resolve That the Queen shal not now have her Presentment but the Patron because the Queen hath such presentment by Lapse as the Bishop had and no other and could present but to the present avoidance then void and although Nullum tempus occurrit Regi yet we must distinguish it thus for where the King is limited to a time certaine or to that which in its self is transitory there the King must do it within the time limited or in that time wherin the thing to be done hath essence or consistence or while it remaineth for otherwise he shall never do it For if the Grantee of the next avoidance or Lessee Per auter vie be attaint here the King must take his interest and advantage during the time viz. during the life of Cestui que vie or within the years of the next avoidance or otherwise he shall never have it the same Law is where a second presentment is granted to the King and he does not present he shall not present after Shuttleworth we have an Outlawry against the Plaintiff whereupon Iudgment was staied But after Hil. 29 Eliz. The Queens Serjeants shewing that the Plaintiff was outlawed It was argued by Walmsley that that could not now come into debate for the plaintiff hath no bay in Court after judgment and it is but a surmise that the plaintiff is the same party Windham In a debt upon an Obligation the Serjeants may pray the debt for the Queen and yet it is but a surmise And the opinion of three Iustices was for Anderson was absent that the Writ to the Bishop ought to be staied but in what manner processe should be made if the Scire facias shall issue against the Plaintiff they said they would advise concerning the Course But Periam said that a Scire facias might have issued against the ancient Incumbent and then the Queen shall bring a Scire facias again because she had no presentation And the Scire facias was brought against Beverly Walmsley I conceive the Queen shall have no Presentation for although we have acknowledged our Presentment yet before execution we have but a right As if a Disseisee be outlawed he shall not forfeit the profits of his Land also he hath brought a Scire facias and a Scire facias lies not but by him that is party or privy Periam After that we have this Chattell it is forfeit by Outlawry Anderson The Iudgment that he shall recover shall not remove the Incumbent and then the Plaintiff hath but a right to which Periam and Walmsley agreed but as to the other point that the Queen shall not have a Scire facias for default of privity they saw no reason for in many Cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and then I am outlawed shall the Queen have this debt Walmsley If I recover in a Quare Impedit and dye who shall have the Presentment my Executor or my Heire To which no answer was made But the Court would take advice for the rarenesse of the Case And it was said to Walmsley that he might demur in Law if he thought the matter insufficient to which Walmsley agreed and did demur c. Annuity to a woman who marries and dies AN Annuity is granted to a woman for life who after marries the Arrears of the Annuity encur and the wife dies whereby the Annuity is determined It was adjudged that the husband shall have an Action of Debt at the Common Law for that an Annuity is more then a Chose in Action and may be granted over And it was agreed by the Court in this case That if a man grant an annuall Rent out of Land in which he hath no interest yet this is a good Annuity to charge the person of the Grantor in a Writ of Annuity 14 H. 4.29 A. Coke 4th Rep. 51. A. Bragg against Brooke Second deliverance LUcas Bragg brought a Writ of second deliverance against Robert Brook for taking his Cattell in a place called East Burlish in the County of Surrey the Case was That Sir Thomas Speck was seised of a Mannor containing in it severall Copyholds and the place where c. was Copyhold And the said Sir Thomas being so seised married and then died and the wife 5 Edw. 6. demands the third part of the Mannor for her Dower Per nomen centum Messuagium centum gardinum tot acr terrae prati c. And the wife had Iudgment to recover and the Sheriff assigned to her part of the Demesnes and parcell of the Services and of the Freeholders and Copyholders And it was resolved clearly that the Copy-holds did not passe by the assignment and that she could not grant a Copyhold for when she demanded her Dower it was at her election and liberty to demand either a third part of the Mannor or of the Messuages and when she demanded Per nomen Messuagiorum c. she cannot then have the Mannor nor can a Mannor be claimed unlesse by his name of Corporation as Anderson termed it and not otherwise And the Lands and Acres cannot be called Mannors and then the grant of a Copyhold by one who hath no Mannor cannot be good And so was the opinion of the Court and yet the Sheriff had assigned to her Demesnes and Services and all things which make a Mannor And 29 Ed. 3.35 If a Mannor to which an Advowson is appendant be delivered by the Sheriff in execution by the name of a Mannor cum pertinentiis the Advowson passeth also but it is otherwise if it be delivered in extent by the name of Acres Lands Meadow Wood c. Wakefeilds Case 28 Eliz. Rotulo
in purchasing the Inheritance by which the Terme is extinct shall bar the possibility which Reynald the Son hath to come upon the womans marriage 3. That a Lessee for years being in possession may take a Feoffment although it be by Deed and may take Livery after the delivery of the Deed and shall be deemed to be in by force of the Feoffment as in this case is pleaded although that the Lessee may take the Deed by way of confirmation and then the Livery is but Surplusage and void 4. It was resolved that this possibility which was in Reynald the Son to have the residue of the terme upon the inter-marriage which at the time of the Feoffment and of the Fine was but Dormant shall be accounted a former charge and before the Covenant because of the will which was before the Covenant and shall awake and have relation before the marriage As if Tenant in tail of a Rent purchaseth the Land out of which the Rent issueth and makes a Feoffment and covenants that the Land at that time is discharged of all former charges although this charge is not in esse but is in suspence as it is said 3 H. 7.12 yet if the Tenant in tail dye his Issue may distrain for this Rent and then is the Covenant broke for now it shall be accounted a former charge before the Feoffment Mich. 29 and 30 Eliz. in Com. Ban. Bretts Case Debt on â— Bond. BRett brought an action of Debt on a Bond against Averden and the Condition of the Bond was to stand to the Arbitrement of J.S. who did award that the Defendant should pay ten pounds to Brett and no time was limited to pay it The Defendant confest the Arbitrement but pleaded in Bar that the Plaintiff hath not required him to pay the money And the Plaintiff hereupon demurred Adjudged by the Court that it is no good plea for the Defendant at his perill ought to pay the money and the Plaintiff need not make any request wherfore Iudgment was given for the Plaintiff Trin. 29 Eliz. in Com. Ban. Bucknells Case Action for Robbery on the Statute of Winchestster BUcknell was robbed in a Hundred within the County of Bucks and thereupon brought his Action upon the Statute of Winchester because the Theeves were not taken And Not guilty being pleaded by the Inhabitants the Iury gave this speciall Verdict viz. That he was robbed the same day alleadged in the Declaration but in another place and within another Parish then that he hath alledged in the Declaration but that both the Parishes were within the said Hundred Vpon which they prayed the Iudgment of the Court whether the Inhabitants were guilty Adjudged by the Court for the Plaintiff for it is not materiall in what Parish he was robbed so it were within the same Hundred Hil. 30 Eliz. in Com. Banc. Rot. 904. Spittles Case Replevin SPittle brought a Replevin against Davis the Case was this Turk being seised of Land in Fee did devise parcell thereof to his youngest Son Proviso and it is his intent that if any of his Sons or any of their Issues shall alien or demise any of the said Lands devised before they shall attain the age of thirty years that then the other shall have the Estate and does not limit any Estate And then the eldest Son made a Lease before his age of thirty years and the youngest Son enters and afterwards and before the age of thirty years he aliens the Land he entred into by reason of the limitation the elder Brother re-enters and demised to Spittle the Plaintiff for three years who put a Horse into the ground and Davis by the commandment of the younger brother entred and took the Horse Damage-feasant and Spittle brought a Replevin And upon the whose matter there was a Remainder It was resolved 1. That this is a limitation and that the Estate shall be to such use as by the Will is directed untill there be an Alienation and upon Alienation the Land shall go to the other Brother 2. When the youngest Brother hath once entred for the Alienation then is the Land discharged of all Limitations for otherwise the Land shall go and come to one and the other upon every Alienation ad infinitum wherefore all the Iudges agreed that after the one Brother hath entred by reason of the limitation the Land is then for ever discharged of the Limitation made by the Will And Iudgment was given accordingly Michaells Case Debt on a Bond THomas Michaell brought an Action of Debt on a Bond against Stockworth and Andrews the Iury gave this speciall Verdict That the said Stockworth and Andrews did seale a Bond and delivered it to the Plaintiff as their Deed and after Issue joyned and before the Nisi prius the Seale of Andrews was taken from the Bond. Shuttleworth The Plaintiff shall be barred for it is one entire Deed and the Seale of one is wanting And admit in case it goes against us the Iudgment be reversed by Writ of Error the Plaintiff can have no Action on such Bond But it was adjudged to be a good Bond and Iudgment for the Plaintiff See the like case in Dyer Trin. 36 H. 8.59 A. Hillari 33 Eliz. in Com. Ban. Rot. 1315. Richmonds Case Debt for rent RIchmond brought an Action of Debt against Butcher the case was A man makes a Lease for years reserving Rent to him and his Executors and Assignes and during the terme the Lessor dies and his Heire who hath the Reversion brings an Action of Debt And it was urged that the Rent was incident to the Reversion and the Heire having the Reversion shall have the Rent also as incident to it as the case is in the 27 H. 8.16 If H. makes a Lease for years rendring Rent without saying any more words the Heire shall have this part because it shall go along with the Reversion So in the fifth of Edw. 4.4 If two Ioynt-tenants make a Lease for years rendring Rent to one of them yet the other shall have the Rent also although no mention were made of him so in the 7 H. 4.223 By the Court If I make a Feoffment in Fee rendring a Rent to me my Heires may distraine And if I grant over this Rent my Assignees in this case may distraine and avow so in this case an Action will lye for the Heire although he be not mentioned But adjudged to the contrary by the Court for when H. passeth Lands from himself the Law gives him liverty to passe them in such way and manner as he himself will and this liberty ought to take effect according to the expresse words for the Law will not extend the words further for the intent shall appeare by the words and then it cannot be here intended that his will was that his Heire shall have the Rent because the words are not sufficient to give it to his Heirs And therefore note a diversity when
but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his â—isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further infâ—rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessioneÌ„ Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchangâ— and iâ— the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander bâ—ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents
to pay the Rent to me because the receit is no wrong But it is otherwise in the first case for when the Tithes are set forth they are presently in the possession of the Parson so that when the Defendant takes them he is a wrong Seisor of them and therefore no account will lye against him And so was it adjudged in a case of a Mannor in London where one under colour of a Devise did occupy the Land for twenty years which Will afterwards was made void and thereupon he to whom the right of the land belonged brought an account and it was adjudged that it would not lye Harper An Account will lye against a Procter so that the Plaintiff may charge him as Procter and it is no plea for him to say he is no Procter no more then it is for a Guardian in Socage to say he is not Prochein amy Dyer there are three Actions of Account One against a Baily another against a Receiver the third against a Guardian in Socage And if an Account be brought against a man as Receiver he must be charged with the receipt of the money but if the Defendant pretends he is Owner of it it is contrary to the nature of an account and therefore he is not chargable in such Action but he may plead Ne unque son Baily pur account render for in an Account as my Brother Manhood said there must be privity But an Abator or an Intruder shall not be charged in an Account because they pretend to be Owners But in this case the Lessee may have an Action of Trespasse against him for the Tythes were immediatly upon the setting forth in the possession of the Lessee and by the Statute of the 31 H. 8.7 he may have an Ejectione firmae but an account will not lye in this case Mich. 14 Eliz. TEnant in Dower commits Waste and the Waste was assigned in this Case that the Lessee had destroyed a hundred Does of the Plaintiffs whether this was Waste or no was the question Dyer I think it no Waste unlesse she had destroyed all the Deer Manwood If a Lessee of a Pigeon house destroy all the old Pigeons except one or two yet it is a Waste and so is this although all be not destroyed Mich. 15 Eliz. A Man is indebted by Obligation in a hundred pounds to a Testator this Obligation is not Assets in the hands of the Executors untill it be recovered by them because it is but a Chose in Action but if in such case the Executor release the Debt now he hath determined the Action and hath made it Assets in his hands to the whole value of the Bond. Bliss against Stafford MArgaret Bliss who was in Remainder after an Estate in taile did bring an Action on the case against Edward Strafford for standring her Title in affirming that A. had issue one B. who is alive and the Defendant pleaded not guilty and the Action adjudged good by all But did abate for an exception to the Count. Pasch 13 Eliz. UPon the Statute of Recusancy made the 29. of Elizabeth Thomas Salherd and Henry Evered being committed of Recusancy for not paying twenty pounds for every month a Commission was awarded to enquire of their Goods and Lands in Suffolk to levy the said Debt and amongst other Lands certain Copyhold Lands were seised and being returned the parties came in and by way of plea did set forth that some of their Lands seised were Copyhold and did pray Quod manus Dominae Reginae amoveantur and hereupon the Queens Attorney demurred upon which the question was if Copyhold Lands were within the said Statute of the 29 Eliz. Snagge The Lands and Hereditaments which the Statute speaks of are such as are known by the Common Law and not by Custome for it I grant all my Lands Hereditaments in D. my Copyhold lands will not passe so that it seems to me Copyholds are not within the Statute Popham contra If Copyhold Lands are not within the Statute some persons shall be free and he held that Lands in ancient Demesne were within the meaning of the Statute although not within the words and he agreed that where a Grant is made of all my Lands and Tenements in D. that Copyhold Lands passe not because they cannot passe by such assurance and that Copyhold Lands were not within the Statute of Bankrupts if they be not particularly expressed and a Copyhold cannot passe by grant but by surrender But after great debate it was adjudged that Copyhold Lands are not within the Statuto by reason of the prejudice that may come thereby to the Lord who hath not committed any Offence and therefore shall not loose his Customes and Services Trin. 30 Eliz. IN the Case of Viscount Bindon it was holden that if a man hath Iudgment in Debt upon an Obligation and no execution yet he may commence another Action upon the same Obligation but otherwise of Contract 9 Ed. 4.51 A question was moved that if a man grants Vesturam terrae what doth passe and it was said by Clerk that one man may have the Vesture another the Soil Lord chief Baron he who hath Vesturā terrae cannot dig the Land And if many have a Meadow together viz. to be divided amongst them every year by lots how much every one shall have of grasse in such a place and how many in such a place and so to change every year according to the lots they have not a Freehold but onely vesturam terrae Dyer 285.6.14 H. 7.4 6. 21 H. 7.37 Dyer 375.6 13 H. 6.13 14 H. 8.6 In the Case of a Dean and Chapter the question was that if Lessee for years be rendring Rent with clause of re-entry for non-payment and then the Reversion or Rent be extended by a Statute or seised into the hands of the King for debt if the Lessee shall pay the Rent according to the extent and no breach of the Condition although he pay not the Lessor And the chief Baron held it was no breach of the Condition because he is now compellable to pay it according to the extent Caltons Case IT was moved by Serjeant Fenner and agreed by all the Barons that if the King make a Lease to A. rendring Rent and there the Lessee lets parcell hereof rendring Rent in this case the second Lessee shall not have the priviledge of the Exchequer to fly thither to be sued concerning this Land because that by such means all the causes in England may be brought into the Exchequer and hereupon Fenner said that he had demurred upon a Bill exhibited into the Exchequer Chamber by such a Lessee and prayed the Court that he might not answer and he was thereupon dismist Vpon not guilty pleaded the parties joyned issue and after evidence given and the Iury dismist from the Bar some of them had Apples and Figgs whereof the Court taking notice when they came to give their Verdict did examine them upon their
Oathes and they who had eaten were fined five pounds and committed to the Fleet. And some of the Iustices did doubt if the Verdict were good and upon many Presidents had it was adjudged good and they relyed much on the President of the 12 H. 8. Rot. 102. where one of the Iury did eat before they were agreed and yet the Verdict was good And after a Writ of Error was brought and the Iudgment affirmed 20 H. 7.3 13 H 4.13 Pasch 27 Eliz. A Man gives land to I.S. in the Premisses Habendum to him and three others for their lives Et eorum diutius viventium successive The question was what Estate I.S. had and whether there be any occupancy in the case Coke hâ—ld that I.S. had but an Estate for his own life because he cannot have an Estate for his own and anothers life where the interest of both begin at one instant and the Habendum by no means can make a Remainder as if a Lease be made to one for life habendum to him and his first begotten Son this makes no remainder to the Son although some have held to the contrary so of a Lease to one for years habendum to him and another does not make any remainder to the other also the word Successive will not make a remainder as in the 30 H 8. Br. Joynt-tenant 53. Also one cannot have an Estate for life and for anothers life also in present interest for the greater doth drowne the lesse but if the greater be present and the other future as a Lease to him for life the remainder to him for anothers life or a Lease for life and three years over this is good but if a Lease be made for life and for years the Lease for years is drowned 19 Ed. 3. Surrender 8. where Tenant for life of a Mannor did surrender to him in the Reversion c. Gawdy If a Lease be made to one for life and so long as another shall live quaere what Estate he hath And as to the second point certainly there cannot be an Occupancy for if the Estate be void the Limitation is void also the Occupancy is pleaded Que un tiel and does not say Claymant comme occupant c. for if a man comes a hawking on Land he is not an Occupant and the Book of Entries is that he ought to plead it Clinch Iustice every Occupant ought to be in possession at the time of the death of the Tenant for otherwise the Law casts the Interest upon him in the Reversion But Gawdy and Chute denied this and after viz. 29 Eliz. the Case was moved again by Popham and he made three points 1. If the other three had a joynt Estate 2. If they had a Remainder 3. If there be an Occupancy And he was of opinion that they had nothing by the habendum for they were not named in the Premisses they cannot have a Remainder for the incertainty but if those three had been named in the Premisses habendum to them Successive as they had been named there they had a Remainder for there the certainty appeared 30 H. 8.8 Dyer 361. Also there can be no Occupancy during the lives of the other three but he agreed to the Book of the 18 Ed. 3.34 that a Lease for life the Remainder to him for anothers life was good And that if a Lease be made to I.S. and a Monk it is void to the Monk and the other hath all and that during the life of the Monk there can be no Occupancy And if I make a Lease to I. S. for the life of a Monk it is a good Lease And till the same terme Iudgment was given that they could take nothing in possession joyntly nor by way of Remainder and that no Occupancy could be in the Case and that I.S. had Estate for terme of his owne life onely Stile against Miles STile Parson did suggest that the Land was parcell of the Glebe of the Parsonage and that the said Stile did let the said Glebe being foure and twenty acres to Miles for years rendring thirteen shillings foure pence Rent and in a Prohibition the case was if Tythes were to be paid And Wray said that although it was parcell of the Glebe yet when it was leased out Tythes ought to be paid and if no Rent be reserved Tythes ought to be paid without question but there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tythes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Iustices took no regard of those words But Godfrey said that those words would discharge him but Wray on the contrary for that this Tythe is not issuing out of the Land but is a thing collaterall and if a Parson do release to his Parishioners all demands in the Land yet Tythes are not thereby released for such generall words will not extend to such a speciall matter And in the 15 of R. 2. Avowry 99. one held of another by ten shillings for all Services Suits and Demands yet the Tenant shall pay Relief because it is incident to the Rent and 8 Ed. 3.26 Mich. 29 Eliz. Rot. 2574. or 2375. Stephens against Layton IN an Ejectione firmae upon issue joyned the case in a speciall Verdict was that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife primogenito habend to them diutius eorum viventi successive for terme of their lives and then the Husband and Wife had issue a Daughter The question was if the Daughter had any Estate And three Iustices held that she had no Estate because she was not in being at the time of the Lease made and a person that is not in esse cannot take any thing by Livery for Livery ought to carry a present Estate where the Estate is not limited by way of Remainder 18 Ed. 3.3 17 Ed. 3.29 30. adjudged but it was said at the Bar that if the Estate had been conveyed by way of use it is otherwise And the said Iustices held clearly that the word Successive would not alter the case And the case was further found that William Beale and Sampson Beale did covenant with one Lendall that if Tho. Beale Son of Sampson Beale should marry Margaret the Daughter of the said Lendall if she would assent and also that the said Lendall did covenant that the said Margaret should marry the said Thomas if he would assent Pro quo quidem Maritagio sic tum postea habendo the said William Beale covenanted that he would make or cause to be made an Estate to the said Thomas and Margaret and to the Heirs of their bodies for the Ioynture of the said Margaret and it was further found that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Sampson Beale and William Beale
was a surrender But admitting it was no surrender but the first terme continues then the second question is 2. If when the Devisee enters into the terme devised to him without consent of the Executor by which entry he is a wrongfull Seisor and a Disseisor and after he grants his right and interest to the Executor if this Grant be good or no because he had not any terme in him but onely a right to the terme suspended in the land and to be revived by the entry of the Executor And adjudged that it was a good Grant and it shall inure first as the agreement of the Executor by the acceptance of the Grant that the Devisee had a terme in him as a Legacy And secondly the Deed shall have operation by way of Grant to passe the Estate of the Devisee to the Executor and so no wrong and the case was resembled to the case of surrender to the grantee of a Reversion which first shall inure as attornment and after as surrender and so was it adjudged Trin. 37 Eliz. IN an Action on the Case for these words Carter is a prigging pilfering Merchant and hath pilfered away my Corne and my Goods from my Wife and my Servants and this I will stand to And the Action was commenced in a base Court in the Country and Iudgment given and the Record removed by Writ of Error And it seemed to the Court that the words were not actionable wherefore Iudgment was reverst Sed quaere rationem Gowood against Binkes A Man did assume and promise to I.S. in consideration that he would forbeare a Debt due to him untill such a time That he would pay the Debt if A.B. did not pay it and he that made the promise died and the money was not paid and therefore an Action was brought against his Executors who traversed the Assumpsit and a Verdict found against them and in Arrest of Iudgment it was moved that an Action grounded on a simple Contract lies not against Executors unlesse upon an Assumpsit for a Debt or Duty owing by the Testator himself and not of such a collaterall matter as the forbearance of the Debt of another but by Gawdy Iudgment was given for the Plaintiff whereupon Popham said that he believed this Iudgment would be reversed by Writ of Error in the Exchequer Chamber and the same day at Serjeants-Inn such a case was depending in the Exchequer Chamber to be argued and reversed for the cause ut supra And the case was between Jordan and Harvey and entred Trin. 36 Eliz. Rot. 384. Hil. 37 Eliz. Rot. 34. Castleman against Hobbs IN an Action of the Case for saying Thou hast stollen half an acre of Corne innuendo Corne severed the Defendant demurred upon the Declaration Fenner It is not Felong to move Graine and take it away Popham agreed to it and that the word Innuendo would not alter the Case unlesse the precedent words had vehement presumption the Corne was severed and in this case no man can think that the Corne was severed when the words are half an acre of Corne on the contrary if the words had been that he had stollen so many loads or bushels of Corne And Gawdy was of the same opinion and Iudgment against the Plaintiff c. Hil. 38 Eliz. IN an Account the Plaintiff declared that he delivered Goods to the Defendant to Merchandize for him the Defend said that the Goods with divers other of his own proper goods werâ— taken at Sea where he was robbed of them And it was moved that this was no plea in Bar of an Account but if it be any plea it shall be a plea before Auditors in discharge But admitting it be a good Bar yet it is not well pleaded for the Plaintiff as it is pleaded cannot traverse the robbing and try it for things done super altum mare is not tryable here wherefore the Defendant ought to have pleaded that he was robbed at London or any other certain place upon the Land and maintain it by proofs that he was robbed on the Sea Gawdy It is no good plea for he hath confest himself to be accountable by the receipt 9 Ed. 4. and it is no plea before Auditors no more then the Case was in 9 Ed. 4. for a Carrier to say that he was robbed Popham It is a good plea before Auditors and there is a difference between Carriers and other Servants and Factors for Carriers are paid for their carriage and take upon them safely to carry and deliver the things received Gawdy If Rebels break a Prison whereby the Prisoners escape yet the Goaler shall be responsible for them as it is in the 33 H. 6. Popham In that case the Goaler hath remedy over against the Rebels but there is no remedy over in our case Gawdy Then the diversity is when the Factor is robbed by Pyrates and when by enemies Popham There is no difference Hil. 38 Eliz. Rot. 40. IN a Writ of Error upon a Iudgment given in Nottingham the Error assigned was because the Defendant had no addition for it appeared the Action was in Debt and the Record was that H. Hund complained against Richard Preston of c. in the County of Nottingham Husbandman the which addition is not in his first name but in the alias and that could not be good and therefore it was prayed that Iudgment might he reversed But by the Court the Court of Nottingham had no authority to outlaw any man so that addition is not requisite wherefore it is no Error and Iudgment was affirmed Trin. 37 Eliz. Rot. 553. Browne against Brinkley IN an Action of the Case for words the Declaration was That the Plaintiff was produced as a Witnesse before the Iustices at the Assises at Darby where he deposed in a certain cause and the Defendant said Browne was disproved before the Iustices of Assise at Darby before Mr. Kingsley Innuendo that he was disproved in his Oath that he took before the Iustices And adjudged against the Plaintiff for although he was disproved in his Oath yet it is not actionable in this case for that disproof might be in any collaterall matter or any circumstance but otherwise if the words had been that he was perjured and the Innuendo will not help the matter and so was it adjudged The chief Iustice and Fenner being onely in the Court. Trin. 36 Eliz. Higham against Beast IN an Action of Trespasse by the Parson of Wickhambrooke in the County of Suffolk against the Vicar of the same place for taking of Tythes and on the generall issue the Iury gave this speciall Verdict That the place where c. was a place called B. the Freehold of I.S. and parcell of the Mannor of Badmanshall and found that the Pope as supream Ordinary heretofore made such an Indowment to the Vicaridge in these words Volumus quod Vicarius c. habebit tertiam partem decimarum Bladorum Foeni quomodocunque pervenientem de
maneriis de Badmanshall and the question was If the Vitar by this Indowment shall have the third part of the Tythes growing upon the â—and of the Freeholders within the Mannor or not And it was said by the Court that a Mannor cannot be without Freeholders and inasmuch as they are to be charged with the payment of Tythes one and the other together shall be said to be the Tythes of the Mannor and so it was adjudged that the Vicar should have Tythes of the third part of the land of the Freeholders as well of the Demesnes and Copyholders Trin. 37 Eliz. Rot. 438. Willoughby against Gray A Venire facias did beare Teste out of the Terme and also there was no place mentioned in the Writ here the Visne should be impaunelled and after the Writ said Coram Justiciariis and did not say apud Westmonasterium and a tryall was had hereupon and Iudgment given which was prayed might be reversed for these causes But it seemed to the Court that notwithstanding all that was alledged it was good enough for although the Venirefacias was not good yet if the Distringas had a certain return and place therein And the Iury appeared and gave their Verdict so that a Verdict was had the Statute will aide the other defects as in the case adjudged between Marsh and Bulford where the Venire bore Teste out of the Term. But Fenner said that the Teste was in the Term but on the Sabboth day which was not Dies Juridicus Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem against Hopton Flam and Williams Hopton pleaded not guilty Flam pleaded that he was mis-named and demanded Iudgment c. Et quoad feloniam mahemium not guiltâ— de hoc ponit se super patriam praedict Kinton similiter And Williams pleaded no such man in rerum natura as Flam and demanded Iudgment of the Writ and as to the Mayhem and Felony not guilty Et de hoc ponit se super patriam c. And as to the other two pleas to the Writ Kinton demurred prayed that the Writ might be awarded him and a Venire facias to try the issue For Tanfeild urged that by pleading over to the felony he waved the plea to the Writ for there was a diversity between an appeal of Murther and of Mayhem for in Murther as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal yet of necessity he must plead over to the Murther because it is in favorem vitae or else if he will joyne in Demurrer upon the plea to the Writ he doth confesse thereupon the Felony and therefore he must plead over not guilty But in Mayhem it is otherwise for although the Declaration was for Felony yet is a Mayhem but a Trespasse onely and all are pruâ—cipalls and the life of the Defendant is not questioned but he shall onely render damages and therefore it he plead over to the Felony that is a waver of the plea and so a Venire faciaâ— ought to issue out to try if he be culpable or not and of this opinion were Popham Fenner and Gawdy clearly and agreed to the diversity between the appeal of Mayhem and Murther Mich. 38 and 39 Eliz. King against Braine A Man sells Sheep and warrants that the yare sound and that they shall be sound for the space of a year upon which Warrant an Action of the Case was brought and it was moved that the Action did not lye because the Warranty is impossible to be performed by the party because it is onely the act of God to make them sound for a year But Clench and Fenner on the contrary for it is not impossible no more then if I warrant that such a Ship shall return safe to Bruges and it is the usuall course between Merchants to warrant the safe return of their Ships Mich. 38 and 39 Eliz. Wentworth and Savell against Russell IN a Writ of Parco fracto the Plaintiffs declared that they were Tenants pro indiviso of a Mannor in Yorkshire and that the Defendant held of them certain lands as of their Mannor rendring Rent which Rent was behind and for which they distrained and impounded the Distresse and the Defendant broke the Pound and rescued the distresse and thereupon they brought this Action and the Defendant demurred on the Declaration because the Plaintiffs did not shew how they were Tenants pro indiviso or Tenants in Common or Coparceners But the Court ruled the Declaration to be good And Gawdy said that a Tenant in Common alone without his companion may have an Action De parco fracto And Iudgment was given for the Plaintiff Hil. 39 Eliz. POphamsaid that in Lancashire there is a Parish called Standish within which are many Townes and one of the Townes is called Standish And if a man seised of lands in the Town of Standish and also of land in the other Townes do let all his land in Standish onely his land within the Town of Standish doth passe and not all his land within the Parish of Standish in the other Townes For where a man speaks of Standish or of Dale it shal be intended to be a Town and not a Parish unlesse there be expresse mention of the Parish of Standish or of Dale Gawdy and Fenner on the contrary for the Grant of every man shall be taken strongest against himself and therefore all the land as well within the Parish of Standish as within the Town of Standish shall passe And Fenner said that when Dale is mentioned in any Precipe it shall be intended the Town of Dale because Towns are noted at the Common Law and not Parishes for Parishes were ordained by the Councell of Lyons but notwithstanding in Grants there shall be no such intendment but the intendment shall be according to the common usage and understanding of the Country and Country-men in favour of the Grantee and when a man speake of Standish or any such place it shall as well be intended to be a Parish as a Town Hil. 29 Eliz. Clarentius against Dethick CLarentius brought an Action of the Case against Dethick by the name of Dethick alias Garter The Defendant demanded Iudgment of the Writ for the Queen by her Letters Patents had created him King at Armes Et quod nuncuparetur Garter principalis Rex armorum and that he should sue and be sued by such name and because he was not sued according to his creation he demanded Iudgment c. Tanfeild prayed that the Writ might abate for this case had been here in the Court in question before where Dethick was indided by the name of Dithick onely and because he was not named according to his creation he pleaded that matter and the Indictment was quashed Gawdy I remember the case very well and it was adjudged at my first coming to this Court and in truth the Iudgment passed against my opinion which then and still is
that it was enacted by the Major of London and common Councel that if any Citizen takes the Son of an Alien to be his Apprentice that the Covenants and Obligations shall be void and he shewed that he was the Son of an Alien and became an Apprentice to the Plaintiff who is a Citizen and made the Covenants with him for his Apprentiship And demanded Iudgment And it was held no Bar for notwithstanding the Act the Covenant is good for it is the Act of the Defendant although the Act of the Common Councell be against it but the said Act may inflict punishment on any Citizen that breakes it And Iudgment was given for the Plaintiff Trin. 41 Eliz. in B. R. Knotts against Everstead LEssee for life the remainder for life the remainder in taile he in the reversion who had the fee does enter and enfooffs the Lessee for years and adjudged that by this Feoffment Nihil operatur Popham said that he who hath a term cannot license another that hath nothing in the land to make a Feoffment for he who hath the Freehold wants nothing but possession to make a good Livery but in this case he who makes the Livery had not the Freehold and therefore the license is void But Tanfeild said that if Lessee for life gives leave to a stranger to make Livery it is void but if he consent that the stranger shall make a Feoffment it shall amount to a Disseisin and the Feoffment is good Which was denied by the Court. And Clench said if a Lessee for ten years makes a Lease for one year to him in reversion there he in the reversion who hath the land for a year may make a Feoffment to the Lessee for ten years and it is good Trin. 41 Eliz. Moyle against Mayle MOyle brought an Action of Waste against Mayle and declared that he had leased to him a Mannor and a Warren and that he had destroyed a Cony-borough and subverted it and assigned otherwastes in cutting down certain Thornes Williams The Action of waste will well lye and said that a Warren consisted or two things of a place of Game and of liberty and to prove that a waste did lye for a liberty he cited the Statute of Magna Charta Cap. 5. in which a Warren is intended also the Statute of Marlebridge cap. 24. and the Statute Articuli super Chartas cap. 18. by which Statutes it is evident that a waste does lie for Warrens and a Warren is more then a liberty for a Writ lies Quare warrenam suam intravit and by the 12 H. 8. if Lessee of a Warren does break the Pale it is a waste also if Lessee of a Pigeon-house stop the holes so that the Pigeons cannot build a waste doth lye as it hath been adjudged Also if Lessee of a Hop yard ploweth it up and sowes Graine there it is waste as it hath been adjudged Also the breaking a Weare is waste and so of the Banks of a Fish-pond so that the water and fish run out To all which cases the Court agreed except to the principal For the Court held it was not waste to destroy Cony-boroughs for wast will not lye for Conies because a man hath not inheritance in them and a man can have no property in them but only possession and although by a speciall Law Keepers are to preserve the land they keep in the same plight they found it yet thiâ— does not bind every Lessee of land Walmsley The subversion of Cony-boroughs is not waste and it was usuall to have a waste against those who made holes in land but not against those who stop them up because therby the land is made better And it was said that to dig for stones was a waste unlesse in an ancient Quarry although the Lessee fill it up againe And Walmsley said that in Lancashire it is waste to dig Marle unlesse it be imployed upon the land And said it was not waste to cut thornes unlesse they be in a Wood stubbed and digged up by the roots but if they grow upon the land then they may be stubbed and it is no waste But to cut down Thorne-trees that have stood sixty or a hundred years it is waste Hil. 32 Eliz. in B. R. Sir George Farmer against Brook IN an Action of the Case the Plaintiff claimeth such a Custome in the Town of B. that he and his Ancestors had a bake-house within the Town to bake white bread and houshold-bread and that he had served all the Town with bread that no other could use the Trade without his license and that the Defendant had used the Trade without his license upon which the Defendant demuâ—'d Morgan This is a good Prescription and it is reason that a Prescription should bind a stranger vide 11 H. 6.13 A. prescribed to have a Market and that none should sel but in a Stall which A. had made and was to pay for the Stall and held there a good Prescription And the Arch-bishop of Yorks Case in the Register 186. is a good case A man prescribed that he had a Mill and he found a horse to carry the Corn thither and that therfore they ought to grind there and because they did not he brough his Action on the case Buckley contra It cannot be intended to have any commencement by any Tenure 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny adjudged not good and the case of the Arch-bishop was good because he had it ratione dominii tenuri And adjudged the principall case that the action will not lye 23 Eliz. in C. B. Farrington against Charnock KIng Henry the 8 granted Turbariam suam in D. at Farrington rendring rent sur 21. years and then the Lessee imployed part of it in arable land and relinquisht part of it in Turbary and then Q. Mary grants Totam illam TurbariaÌ„ before demised to Farrington and adjudged that that passed only which was Turbary and the other part that was converted into Tillage did not passe Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother and the Error assigned was that there was no warrant of Attorney of the Record And it was agreed by the Bar and Bench and adjudged error But the great point was if the Plaintiff could have a writ of Error The Case was Henry the Father had Henry his Son and three Daughters by one Venter and the Plaintiff by another Venter and died seised of the land intailed to him and the Heirs Males of his body Henry enters and makes a Feoffment the Feoffee is impleaded and voucheth Henry who looseth by default in the recovery and dies without issue and whether the Daughters which are Heirs generall or the Plaintiff which is Heir in tail shall have the Error Gawdy and Baker for the Defendant who said
before the Inrolement land passeth to the Bargainee and the Bargainee hath a Freehold in him before the Inrolement and whereof his wife shall be endowed and if the Bargainor levies a Fine or acknowledge of Statute the Bargainee shall avoid them and deased the case of Morgan cited by the other side and cited the case of 6 Ed 6. where were two Ioynt-tenants and one of them bargained and sold his Moyety and then the other Ioyntenant died and then the Deed was inrolled there nothing passed but a Moyety but it seems in that case that by the Bargain and Sale the Ioynture is severed before the Inrolement so that there is no Survivorship but the Book speaks not of it and if a Bargainee be of lands held of the King without license of a alienation there the forfeiture to the King shall relate to the first delivery of the Deed. Warberton contra Before the Inrolement there is but a commencement of the Bargain and before all circumstances in the Deed mentioned are performed it is no Bargain and I hold the Deed shall have relation to the delivery to prevent all Charges Contracts but as to strangers it shall not have such relation If Tenant for life bargains and sells his land to another and his Heirs and then makes a Feoffment in fee to another before inrolement this is no forfeiture Anderson A release made to a Bargainee before inrolement is void then if this Scire facias be well brought no Act of the Bargainee shall avoid it Walmsley If there be a Bargainee and before the Inrolement the Bargainor enfeoffs him he is in by the Feoffment and not by the Bargain which proves that no estate is really in the Bargainee before Inrolement Kingsmill The reason of that is because it is out of the Statute for the Bargain and Sale was onely delivered and he said that the wife of the Bargainee in such case shall be indowed But the Court denied that and all agreed that the wife of the Bargainee before Inrolement shall not be indowed Kingsmill said that it was a usuall course in a Recovery to make the Bargainee Tenant of the Precipe And it was said by all the Iustices that if Tenant for life be impleaded the Bargainee of the Reversion after Inrolement shal be received and yet if hanging the Writ he purchase the Reversion he shall not And after many arguments it was adjudged that the Scire facias was not well awarded And Iudgment given for the Plaintiff 37 Eliz. in C. B. Day against Austin IN a Trespasse the Defendant justified the taking of a Furnace fixt to the earth because the Sheriff upon an intent sold it to him And by the Court it was held a good discharge for if a stranger takes my Horse and sells him a Trespasse will not lye against the Vendee but a Detinue But if one sells my Horse and a stranger takes him he is a Trespassor Walmesley and Beaumond Although such Furnace be fixed by the Termor yet he may take it away within the term but the Sheriff cannot attach it and the Termor may pull down a Wall made by him and it is not waste And at another day the case was recited to be thus The Lessee made a Furnace for the use of a Dyer and fixed it to the wall of his house and the Lessee being condemned in debt the Sheriff came to the Furnace and put his hands upon it and delivered it to the Defendant and the Lessee brought a Trespasse Glanvill A Furnace may be delivered in execution and the house never the worse but otherwise of the doors because the Lessee cannot be without them 42 Ed. 3.6 it is not waste to take away a Furnace 21 H. 6.26 said there that the Heir shall have such Furnace but this does not prove that it is not a Chattell but the cause wherefore the Heir shall have it it is because it is annext to the land as in the case of writings which are meer Chattels Beaumound It is doubly fixt to the land and to the wall and it is clear that the Sheriff cannot take it from the wall Dyer The diversity is when the Furnace is fixt to the middle of the house and when to the wall for the Termor may take it from the middle of the house but not from the wall for the wall is worse for taking it away and therefore it is waste And to this Owen agreed Pasch 35 Eliz. in B. R. Rotheram against Crawley Rot. 332. IN debt upon a Bond the case was Divers questions were made between the Plaintiff Lord and the Defendant Tenant concerning Relief whereupon they referred themselves to the Arbitrement of I.S. who did award that the Plaintiff should make a Release to the Defendant which was done of all Actions Duties and Amercements and then upon this Action brought by the Plaintiff for a collatterall thing the Release was pleaded in Bar. Coke Attorney The Plaintiff shall not be barred by this Release for Deeds ought to be expounded according to the intent of the parties and the intent of the party was to release no Duty but the Relief which was only in question this word Duties being interposed between Reliefs and Amercements shall be intended Duties of such nature as Reliefs and Amercements and no otherwise as it is in Dyer 23 Eliz. A man grants and to farm lets such land with wood this is no grant of the wood and yet there are words sufficient to passe the wood but being conjoyned with the words And to farm let it shall be expounded that it was not intended to have it be an absolute Grant But adjudged that it was a good Bar and Iudgment was given accordingly Hil. 37 Eliz. Goodway against Michell GOodway brought a trespasse against divers persons Quare clausum fregerunt duas Ramas perches of hedge fregerunt The Defendant by way of justification said that the place was in the Parish of Hadnam in Ely and that all the Parishioners time out of mind have used to have passage through the said Close in Rogation week to make their Perambulation of the Parish because that the Plaintiff hindred the Defendants as Parishioners Ramas sepes fregerunt whereupon the Plaintiff demurred Sperling The justification is not good for although Parishioners may justifie the having a way over my ground yet they cannot break the Hedges Also they have broken two Perches and two Gates which is excessive for a foot-path 15 H. 9.10.6 A Commoner cannot break all the hedge upon the land where he hath Common Savile cont All the Parishioners ought to go their Perambulation and being a great number they may well enough justifie for they are not compelled to keep the foot-path 6 Ed. 2. F.N.B. 185. b. Parishioners may pull down a wall that hinders them in their way to the Church and in the book of Entries there is a President where the Vicar and Parishiones did justifie an entry for
that the Estate-tail was not barred Dyer The Estate tail is barred and made a difference where the Fine is defeated by entry by reason of the Estate-tail and where it is defeated by entry by reason of another estate-tail as in 40 Eliz. Tenant in tail discontinues and disseiseth the Discontinuee and levies a Fine to a stranger and retakes an Estate in Fee before the Proclamations passe the Discontinuee enters and then the Tenant in tail dies seised and adjudged that the Issue is not remitted for the Statute 32 H. 8. saies That a Fine levied of lands any way intailed by the party that levies the Fine shall bind him and so it is not materiall whether he were seised by force of the Estate-tail or by reason of another Estate or whether he have no Estate And all the Iustices were of opinion that the Estate was barred for although the discontinue had avoided the Fine by the possession yet the Estate-tail remains concluded and the same shall not enter by force of the Estate-tail but by force of the Fee which he had by discontinuance Popham Avoidance of a Fine at this day differs much from avoidance of a Fine at the Common Law for it appears by the 16 Ed 3. that if a Fine at the Common Law be defeated by one who hath right it is defeated against all but at this day the Law is contrary for if a man be disseised and the Disseisor die seised his Heir within age and he is disseised by a stranger who levies a Fine and then five years passe the Heire shall avoid this by his nonage yet the first Disseisee is bound for ever for the Infant shall not avoid the Fine against all but only to restore the possession And therefore it was adjudged in the Lord Sturtons Case 24 Eliz. where Lands were given to him and his Wife and the Heires of him and he died and his Issue entred and levied a Fine to a stranger and before the Proclamations passed the Mother enters it was adjudged that the Issue was barred for the Wife shall not avoid this but for her own Estate And so if a stranger enters to the use of him who hath right this shall not avoid the Fine Fenner did agree to this and said that it had been so adjudged but all the Iustices agreed that the Estate-taile being barred the entry shall go to the benefit of him who hath most right to the possession and that is the discontinue and therefore the Plaintiff in the Formedon hath good Title to the Land but onely to the Fee and not to the Intaile for that is barred by the Fine 28 Eliz. in C. B. Rot. 2130. Gibson against Mutess IN a Replevin the Case was John Winchfeild was seised of Lands in Fee and by his Will did devise all his Lands and Tenements to Anthony Winchfeild and his Heires and before his death made a Deed of Feoffment of the same Lands and when he sealed the Feoffment he asked If this Feoffment will not hurt this last Will if it will not I will seal it And then he sealed it and made a Letter of Attorney to make Livery in any of the said Lands the Attorney made Livery but not of the Lands which were in question and then the Testator died And the question was if the Devisee or Heire of the Devisor should have the Land And it was said in behalf of the Heire that if the Testator had said It shall not be my Will then it is a Revocation Quod curia concessit But it was the opoinion of the Court that it appears that it was the intent of the Testator that his Will should stand and if it be not a Feoffment it is not a Revocation in Law although that the Attorney made a Livery in part so that the Feoffment was perfect in part yet as concerning the Land in question whereof no Livery was made the Will is good and the Iury found accordingly that the Land does not descend to the Heire Fenner cited a Case of Serjeant Jeffereys where it was adjudged that where one had made his Will and being demanded if he will make his Will doth say he will not that this is no Revocation Sir Wolston Dixy against Alderman Spencer 20 Eliz. in C. B. IN a Writ of Errour brought upon a Iudgement given in an Assize of Fresh-force in London The case was Sir Wolston Dixy brought an Action of Debt for rent arrear against Spencer upon a Lease for years made to him by one Bacchus who afterwards granted the reversion to Dixy and the Tenant attorned and for rent arrear Dixy brought an action c. The Defendant pleaded in Bar that before the Grant made to Dixy the said Bacchus granted it to him by parole according to the custome of London whereupon he demanded Iudgement if c. and the Plea was entred on Record and hanging the suit Dâ—xy brought an assize of fresh force in London and all this matter was here pleaded and it was adjudged a forfeiture of the Land and hereupon Spencer brought a Writ of Errour and assigned this for errour that it was no forfeiture Shuttleworth It is no forfeiture untill a Trial be had whether the reversion be granted or not as in wast the Defendant pleads that the Plaintiff had granted over his estate this is no forfeiture and in the 26 Eliz. in a Quid Juris clamat the Defendant pleaded that he had an estate Tail and when he came to have it tryed he acknowledged he had an estate but for life and that was no forfeiture But the Court said they could remember no such Case Walmesley It was so adjudged and I can shew you the names of the parties Periam Justice If there be such a Case we would doubt of it for there are Authorities to the contrary as the 8 Eliz. and 6 Rich. 2. Anderson If the Defendant in a Trespass prayes in aid of an estranger this is a forfeiture and if it be counter-pleaded it is a forfeiture and the denial alters not the Case Walmesley The Books in 15 Ed. 2. Judgement 237. and 15 Ed. 1. that Iudgement in a Quid Juris clamat shall be given before the forfeiture Andâ—rson In my opinion he may take advantage before Iudgement as well as after if the Plea be upon Record And so was the opinion of the Court. The Dutchess of Suffolks Case Pasch 4 5 Ph. Mary in C. B. IN a Quare impedit against the Bishop of Exeter the Writ was ad respondendum Andrew Stoke Dennisae Franciscae de Suffolk Uxori eâ—uâ— Benlowes demanded Iudgement of the Writ c. because she lost her name of dignity by marriage with a base man as it was adjudged 7 Ed. 6. Dyer 79. where Madam Powes and her husband brought a Writ of Dower and the Writ abated because she called her self Dame Powes whereas she had lost her dignity by marrying with her husband Stanford agreed for Mulier nobilis si
reason appears that the nature of the Lapse is to be taken hac vice and the King must take it then or not at all and where it is objected that by this means every Lapse may be taken from the King I conceive that far greater inconvenience will be to the Patrons on the other side for when a Lapse is devolded to the King and a stranger presents if then the true Patron may not present untill the death of such Incumbent perhaps the Incumbent will resign or be deprived and a stranger shall be presented again and again in like manner and so by this means the Patron shall never continue his advowson for by the Couin between the stranger and the neglect of the King to take his Lapse the Incâ—mbent shall never die And afterwards in this term it was adjudged that such usurpation shall not take away the Lapse from the King because the avoydance accrued by the act of the Incumbent Cook ib. 7.27 a. Hillary 29 Eliz. Lassell's Case LAssell brought an action of debt upon an obligation the Defendant pleads that the condition was that he should personally appear before the Iustices and set forth how he was taken by a Latitat by the Plaintiff who was Shiriff who took this obligation upon his deliverance and urged the Statute of 23 H. 6. and said that the obligation was not according to the Statute And by the Opinion of three Iustices Anderson being absent If it were in such an action wherein a man may appear by Atturney then it is void And the Plaintiff shewed a Iudgment given in the Kings Bench wherein in such case Iudgment was given for the Sheriffs and it was between Seekford and Cutts 27. 28. Eliz. Rot. 373. And the next Terme it was moved again Anderson The Obligation is voyd for when an express form is limited by the Statute no variance ought to be from it But the other three Iustices were against him for they held that he ought to appear in his proper person in case of a Latitat Anderson I deny that for Latitats have not been of above 60 years continuance Vid. Cook lib. 10. Beufages Case and his first Institutes 225. a. Pasch 25 Eliz. Kayre against Deurat in C. B. Rot. 603. IN a Waste the Plaintiff declared how the Defendant was seized in Fee and made a Feoffment to the use of himself for life the remainder to the Plaintiff in Fee after which he committed waste The Tenant said that he was seized in Fee without that he made a Feoffment as the Plaintiff declared and upon issue joyned it was found that the Defendant was seized in Fee and that he made a Feoffment to the use of himself for life of J.S. without impeachment of waste the remainder ut supra and whether this was the Feoffment which the Plaintiff alledged they prayed the advice of the Court. Anderson Chief Justice If the impeachment of waste be not part of their issue then the Verdict is voyd for that point and that which is found more than their issue is voyd 33 H. 6. the Defendant pleaded that he was not Tenant of the Free-hold and the Iury found that he held joyntly with another there the Plaintiff shall recover And then at another day it was said by the Iustices that the Iury had found such an estate as was alledged by the Plaintiff and although that they further found this priviledge to be dispunisht of waste which upon the matter proves that the Plaintiff hath no cause of action yet because the Tenant may choose whether he would take hold of this priviledge or not the Iury cannot finde a thing that is out of their Verdict and whereof the Defendant will not take advantage by pleading and for this cause their Verdict was voyd 7 H. 6.33 21 H. 7.12 where one pleaded in Bar a Feoffment and traversed the Feoffment and hereupon they were at issue and the Iury found that he had enfeoffed the Tenant after the Fine levyed to the Plaintiff this cannot be found because it is out of their issue 31 Assi 12. and Iudgement was given for the Demandant Hillar 29 Eliz. Michell against Donton in C. B. Rot 639. IN an Ejectment a man makes a Lease rendring Rent with a Covenant that the Lessee shall repair the houses with other Covenants and Conditions of re-entry for not performance and then he devised the same land to the same Lessee for divers years after the first years expired yielding the same Rent and under the same Covenants as in the former Lease and he devised the remainder in fee to the Plaintiff and the first Lease expires and the Defendant being possest by force of his second Lease doth not repair the houses and if the Plaintiff might enter was the question Shuttleworth In as much as he devised the land under the same Covenants as the first Lease was and the first was with Covenants and Conditions the second shall be so also the rather because he deviseth the remainder over so that the Devisee cannot take advantage of the Covenants but of the Conditions he may and the second Lease is conditional But the whole Court was against him Shuttleworth To what purpose then are these words in the Devise Under the same Covenants Periam They shall be voyd And by all the Iustices the intent of the Will was not that the Lease should be conditional for Covenants and Conditions differ much for the one gives an action but not the other but the intent was that he should perform the Covenants upon pain to render damages in a Writ of Covenant Bottenham against Herlakenden 29 30 Eliz. in C. B. Rot. 1620. HErlakenden was seized of land and devised the same to the Plaintiff for years the remainder to his wife for life Proviso that the Plaintiff should pay to the woman 20 l. per annum and if he failed of his payment c. wherefore the woman entred and if this shall be called reservation or reversion was the question Anderson A man cannot make a Reservation on a Devise Periam A man may to himself and his heirs but not to a stranger Anderson Every Devisee is in in the sier by the Devisor and why shall not this then be a reservation to the Devisor and a grant of the reversion to the woman Gawdy Wherefore cannot a man devise land reserving rent when by the Statute 32 H. 8. he may devise at his pleasure Periam Because his pleasure must correspond with the Law Anderson If I devise land to another reserving rent to me and my heirs and then devise the reversion he shall have the rent as incident to the reversion and the Iudges were divided wherefore c. 29 Eliz. Glover against Pipe in B. R. Rot. 838. IN debt upon a Bond the Condition was that where Glover the Plaintiff had a Copyhold of inheritance and had leased it to the Defendant if the Defendant should not commit any manner of waste and
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
the words are in the negative which will not exclude him of his interest but in the Case at Bar they will because they are in the affirmative so That he shall occupy the Land solely And Iudgment was given for the Plaintiff Pasch 3. Eliz. Woodward against Nelson in B. R. WOodward Parson of Wotton in consideration of 120 l. payd by Bretman one of his Parishioners did accord and agree with him that he and his assignes should be discharged of Tythes during the time that he should be Parson Bretman made a Lease to Nelson Woodward did libell against him for Tythes and Nelson prayed a prohibition upon the said contract And it this was sufficient matter for a prohibition was the Question because it was by word only and without writing which amounts only to a cause of action upon a promise for Bretman but no action for his lessees neither can this amount to a Release of Tythes for as Tythes cannot be leased without Deed so they cannot be released or discharged without Deed. Gawdy Justice Tythes cannot be discharg'd without Deed unless by way of contract for a sum of money and he cited the 21 H. 6.43 Fenner for that year in which the discharge was made it was good by way of discharge without Deed because the Parson for that year had as it were an Interest but such discharge can have no continuance for another year for default of a Deed and so a promise being no discharge it is no cause of a prohibition But Gawdy held as afore And about this time Wray Chief Iustice dyed and Popham succeeded and the same day he was sworn Cook moved this Case again And the Court held that the agreement being by parol was not good And Fenner then said that without writing the agreement could not be good between the parties but for one year And the Court awarded a consultation But upon search made no Iudgment was entred in the Roll. Trinit 35 Eliz. Dr. Foord against Holborrow in B. R. Rot. 367. IN an Action of Debt upon a Bond the case was Dr. Drury to whom the Plaintiff was Executor made a Lease to Holborrow of the Mannour of Golding for years and Holborrow the Lessee entred into a Bond that if he his Executors or Assigns did pay to Anne Goldingham widow the sum of 20 l. for 17 years if the said Goldingham should so long live and so long as Holborrow the Lessee or any claiming by or under the said Holborrow shall or may occupy or enjoy the said Mannour of Goldingham and then Holborrow surreudred his Lease to the Obliges praecextu cujus the Defendant pleaded quod non occupavit nec potuit occupare c. wherefore he did not pay the said sum to Anne Goldingham and the Executor of the Obligee brought an Action of Debt upon this Obligation Johnson for the Defendant The term is gone for he cannot occupy after the surrender and also the Obligee is a party to the cause why it is not performed and therefore he shall take no advantage 4 â— 7.2 But the whole Court was against him for he to whom the surrender is made cometh in quodammodo by him and is his Assignee for he shall be subject to the charge that was before the surrender and also the Defendant shall be bound by these words in the Obligation viz. so long as he shall or may and although these words were not inserted yet he shall pay the annuity for where the first Cause does commence in himself he shall not have advantage thereby but otherwise where he is not party to the first Cause As if two Ioynt-tenants with Warranty make a partition the Warranty is gone because they are parties to the act which made the extinguishment but if one makes a Feoffment of his part the Warranty as to the other remains 11 Ed. 4.8 and in the Case at Bar the Obligor made the surrender and therefore he is party and the first cause and there is a diversity when the thing to be done is collateral and when not for if a Lessee does oblige himself to do a collateral thing as payment of money there he ought to do it although that he surrender for although the Obligee do accept of the surrender yet no act is done by him to hinder the performance of the condition but where the Obligee does any act to hinder the performance of the Condition the Condition is saved as if the Lessee be bound to the Lessor to suffer J.S. to enter into a Chamber during the Lease and he surrenders to the Obligee who will not suffer J.S. to enter the Obligation is saved and Iudgement was given for the Plaintiff 36 Eliz. Bedford against Hall in B. R. IN an Action of Covenant wherein the Plaintiff declared that the Defendant did devise and grant to him certain land with all his goods contained in a certain Inventory for 20 years and said that in the Inventory amongst other things were five Cows which the Defendant seized and that one J.S. took them away as his proper goods as indeed they were and hereupon he brought this Action Fenner The Action will not lye for no interest in the Cows doth pass to the Lessee by this Lease neither was there any right to them in the Lessor As if I demise to you the land of J. S. by these words Dem si concessi and you enter and J S. re-enters no Covenant lyes against me And so in the 11 H. 4. a Prebend made a Lease for years and resigned now is the term of the Lessee quite destroyed and if after he be outed by a new Prebend yet he shall have no Action of Covenant And so is it 9 Eliz. Dyer â—57 Lessee for life makes a Lease for years and dyes the Lessee shall not have a Covenant if he be outed by him in the reversion because he is not in as a Termor at the time of the disturbance But if in the principal Case the Lessor had been possest of the goods although by a wrong title and the Owner had seized them then a Covenant would lye And so if a Disseisor makes a Lease and the Disseisee re-enters the Lessee shall have a Covenant Gawdy If a man lets lands wherein he hath no estate together with his goods although the land will not pass yet the goods do and if a man lets goods for a year and re takes them within the year no Covenant will lye for the property was never in the Lessee Câ—…câ— If a man lets anothers goods to me by Deed if I seize them and the Owner re-takes them a Covenant will lye and so will an Action on the Case if it be without Deed 42 Assi 8. If I be in possession of anothers goods and sell them a deceit lyes against me by the Vendee and so is the Book of Ass 42.8 conâ—ra where the Vendor hath not possession at the time of the sale And if I sell goods by Deed which
the attainder and she granted it to Bones and all actions demands and a scire facias was issued out in the name of the Queen And the principall case was adjourned but the Patentee had express words to sue in the name of the Queen although it was not so pleaded 43 Eliz. Pelling against Langden in B. R. Rot. 438. IN a trespass for breaking his Close and killing 100 Conies The Defendant justified because he had common time out of mind and because the Conies were damage Feasant in the place where he killed them The Plaintiff demurr'd and judgment given for the Plaintiff for Conies are beasts of Warren and profitable as Deer and are not to be compar'd to Foxes and vermine which may be kill'd but the Owner of the soil may keep Conies where the Common is aswell as other cattle also he may make Fish-ponds in the Common and the Commoner cannot destroy them Cook 5. Rep. 104. 22 H. 6.59 so it was adjudgâ—d Trinit 43 Eliz. Gresham against Ragge in B. R. Rot. 1295. IN trepass for entring into a house The Defendant pleaded that the Plaintiff was indebted to the Defendant in 100 l. and that he by the permission of the Plaintiffs servant the doores being open did enter to demand his debt Vpon which the Plaintiff demurred And adjudged for the Plaintiff For the servant of the Plaintiff could not licence any to enter into the house of his Mr. also a man cannot enter into anothers house to demand money unless the debtor be within the house Gawdy If it had been averred that the Plaintiff had been then in the house the Plea had been good Hillar 44. Eliz. Streetman against Eversley in B. R. IN an ejectment the Case was a Lessee for 80. years upon condition that if the Lessee his Executors or Assignes did not repairo the house within six weeks after warning that the Lease should be void the Lessee made a Lease for ten years who suffered J.S. to occupie the house and then the Lessor came to the said occupation of the house and at the house gave notice and said that the house was defective in reparations and did shew in what and so gave warning to have it repaired and after for default of reparations he entred and the Defendant as servant to the Lessee re-entred And his entry adjudged lawfull for notice given to J.S. who was but an Occupier of the house and not Lessee or Assignee of any interest of the terme was not sufficient but it ought to be to the person interessed in the terme who is liable to reparations Vid. Cooks 6. Rep. Greens case Also the notice at the house is not sufficient but it ought to be to the person of the Lessee and Popham agreed to this Trinit 1 Jacobi Shopland against Radlen in C. B. Rot. 853. IN a Replevin the question was when a Guardian in socage holds a Court in his own name and does grant Copies in reversion if this be a good Grant or not and adjudged to be good against the Heir Walmesley Dominus pro tempore of a Mannour may hold a Court and make a Grant of Copyholds but this is to be understood of perfect Lords which a Guardian is not but onely ad commodum haereâ—is and is rather a servant to the Lord than Dominus pro tempore and he cannot be called Dominus because he can neither grant nor forfeit his estate and hath nothing to do to meddle in the Mannour but to account for the profits and a Writ of Ward does not lye for the land but onely for the body Gawdy chief Justice Warburton and Daniel Justices to the contrary Who held that a Guardian in socage is Dominus pro tempore and that he hath interest in the land and may make a Lease thereof for years Commentar 293. and may avow in his own name 29 Ed. 3. Avowry 298. But a Guardian in socage cannot present to an Advowson because he cannot be accountable But Daniel Iustice said that the Guardian may present where the heir is not of years of discretion and a Guardian in socage shall have a Trespass and a ravishment of Ward 24 Ed. 3.52 and he hath the Ward by reason of looking to him and therefore he hath interest sufficient to keep Court and admit Copyholders who are not in by him but by the custome But a Bailiff of a Mannour hath no interest and therefore cannot make Grants and Copies but a Guardian hath interest provisione legis although it be such interest as cannot be forfeit and the heir cannot be at any prejudice for he shall have an account made to him of such Fines for the heir himself cannot grant them and the Law cannot compell the Guardian to occupy them neither can the Court be held in the name of the heir but the Guardian and therefore he may grant Copies And if a Guardian in socage hath such interest that he can make a Lease for years and his Lessee shall maintain an Ejectment a fâ—r â—…oti he may grant Copies Neither is it any argument at all to say that a Guardian in socage hath no interest because he cannot grant or forfeit his estase for the reason is because these things are annexed to his person And after Mich. 3 Jacob. it was adjudged that the Grant was good and shall binde the heir Vid. Keloway 46.6 37 Eliz. Brown against Hercey in C. B. Rot. 620. IT was found by office that J.S. who held the Mannour of D. of the King did dye without heir whereupon W.S. as heir to him did traverse the said Office and hereupon was at issue with the Queen if he were heir or not and depending this suit he made a Feoffment in Fee with a Letter of Attorney to make Livery and after it was found for him against the Queen and Iudgement given against the Queen but before the Writ of Amoveas manum the Attorney made Livery and adjudged good for it cannot be said that the heir at the time of the Feoffment had nothing or that the Queen at the time of the Livery was in possession for by the Iudgement given the possession of the Queen was utterly defeated and possession in the party before any amoveas manum sued out for that serves but to compell the Eschaetor to avoyd the possession it he hold the land after Iudgement Vid. Stanford praerogat 78. 10 Ass 2. 10 Ed. 3. and the difference is where the King is seized by title and where without title for when the King is seized by title and his title is determined he ought to make Livery to him that hath right but when he is seized without title and he who hath right hath Iudgement against him he may enter without Livery 5 Ed. 5. Quare impedit 34. But it was here said by Owen Iustice that if a man makes a Feoffment of White-acre with a Letter of Attorney to make Livery and then he purchase White-acre this is
Iustices Cook being against it that this is not within the Statute but they agreed that if one bought corn and thereof made meale or oat-meale and sold it that this was within the Statute for that is usuall and is no alteration and therefore remaines the same corn but starch is altered by a trade or science which is a mysterie and so it is not the same thing that was sold But Cook Chief Iustice contra And cited one Franklinghams Cass Michaelm 39 40 Eliza. in B. R. where one bought Barley and because it was of such Quantity that he could not make Malt of it in his own house he made Malt thereof in anothers house by his own servants And it was resolved First That the conversion of corn into Malt in his own house with an intent to sell it was within the Statute unless there be a saving for it Secondly Forasmuch as it was in anothers house he is out of the proviso and so within the penalty of the Statute And in Pasch 42 Eliz. between Reynolds and Gerret That if a Miller buyes corne and grinds it and sells it within his house this is within the Statute And in the Checquer Chamber in a writ of Errour there between Baron and Brise adjudged there that a Coster-monger who buyes Pippins to sell them again was out of this Statute because they are necessary victuall And divers exceptions were taken to the Information viz. where he saith Ligamen anglicè Starch whereas there is no such word but it is Ligumen and the anglicè will not help this mistake Cook 10. Rep. 134. and this exception was taken by Iustice Winch. But Warburton Iustice cont for Starch is a thing newly devised and there is no Latin word for it and therefore the anglice there is good Foster Iustice took an exception because the information concluded contra formam Statuti whereas it ought to have been contra formam Statutorum For this Statute was of force untill the 8 Elizab. and then was determined untill the 13th of Elizabeth and then it was revived so there are two Statutes but 't was agreed that where a Statute continued de tempore in Tempus and was never discontinued nor determined there it shall be said contra formam Statuti and this diversity hath been twice adjudged upon this very Statute viz. 9 Eliz. in Palmers Case and in the 35 Eliz. Warburton cont for the Information doth intend only the Statute of 5 Ed. 6 and 14. and he did recite the words thereof in his Information also this Statute only makes the offence and declares the manner of it and no other Statute makes any addition to it or increaseth the penalty but only revives it to endure in perpetuum But if a Statute doth prohibit a thing and another Statute gives a penalty there upon Information upon the penalty both Statutes ought to be recited and to conclude contra formam Statutorum vid. Commentar 206. Morgans Case And so the Statute of Vsury 37 H. 8. is revived the 13th Eliz. and an addition made to it there such inclusion ought to be contra formam Statutorum but where the Statute is only revived it is otherwise as the Statute of Perjury 5 Eliz. was continued untill the 14 Eliz. and then it was determined and 27 Eliz. was revived yet all informations upon that Statute are contra formam Statuti 5 Elizab. Cook This is no good exception and cited Talbot and Sheldens Case Hillar 33 Eliz. who were indited for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error the Iudgment was reversed because the penalty was demanded for the 10th Eliz. made the Offence and the 23 Eliz. gave the penalty but if the Information be for the offence only there it had been good See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good because the best shall be taken for the King Vid. 5 H. 7. 17. 8 Ed. 3.47 ◠Pasch 10 Jacob. VValler against the Deane and Chapter of Norwich IN an action of Covenant the Plaintiff declared on a Lease made from the Deane the Case was thus The Deane in the 38 Eliz. had made a Lease for 99. years to one Themilthorpe and then in the 42 Eliz. made a Lease to the Plaintiff for three lives rendring Rent with a Letter of Attorney to make livery and a Covenant to save the Plaintiff harmelesse against Themilthorpe afterwards the Attorney makes livery sc after Michaelmass which was a Rent day and he being disturbed by Themilthorpe brought this Covenant And two points were moved in the Case First Inasmuch as the Lease was voyd to Walter whether that the Covenant was voyd also Secondly If the livery made after the Rent day be voyd Hoghton Serjeant If the Covenant depended on the interest of the Lease as a Covenant to repay the thing devised or to pay rent these had been voyd because the Lease it self is voyd for they do immediatly depend upon the Lease but where the Covenant is for a thing collaterall as a Covenant that the Lessor is owner at the time of the Lease or that the Lessee shall enjoy it or shall be discharged and saved harmeless these Covenants being collaterall to the Lease and interest are good although the Lease be voyd and the 43 Ed. 3. proves this where a Lease was made by a Baron and Feme a Covenant by them shall not binde the wife contra where the Covenant concernes the interest as payment of Rent c. Also the Covenant was broken immediatly upon the sealing of the Lease to the Plaintiff And as to the second point he held it was a good livery because no time was limited in the Letter of Attorney Dodderidge Serjeant The Covenant is voyd because the Lease is voyd but contra if it had been a Covenant to enjoy for three lives and he relyed much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols cont The Covenant is good and yet in force for when an estate is created in which is implyed a Covenant in Law there if the estate be voyd the Covenant is voyd also but when there is an express Covenant in Deed there it is otherwise although the Lease be voyd or voydable as if he Covenant that the Lessee shall enjoy during the terme and the lessee resign yet is the Covenant good although the terme is gone And as to the second point The livery is good for untill the livery be made the lessor shall retaine his land and no Rent is due vid. Commentat 423. for by intendment the possession is better than the Rent And Cook agreed to this And the Iustices agreed with Nicholls Trinit 10 Jacob Barnes Case TEnant for life the Reversion in the Lessor a Formedon is brought against the tenant for life who prays in ayde of him in the remainder for life without him in
the Reversion Warburton I conceive he shall have the Ayde 7 H. 4.2 where ayde is prayed against him in the Remainder and Reversion and and he cited a Manuscript 11 R. 2. direct in the point that the ayde would lye But the other Iustices cont for the Tenant for life hath as high an estate as he in the remainder and may plead all that the other may but if there be Tenant for life the remainder in Taile there he shall have ayde of the Tenant in Taile 23 H. 6.6 11 Edw. 3.16 If there be Tenant for life the remainder for life the remainder in Fee tenant for life shall have ayde of them both for else he in the remainder shall not come in to plead 11 E. 3. ayde 32. Where it is resolved that tenant for life shall have ayde of the Reversioner for life Hillar 28 Eliz. VVatkins against Astwick A Man makes a feofment on condition that if he his heirs or Executors do pay the Rent of 100 l. before such a day that he may re-enter the Feoffer dyes his heire within age the mother without any notice of the son requests J.S. that he would pay the money for her son And all this was found by speciall verdict but it was not found of what age the son was Clinch If the Iury had found that the son was of the age of 17 years the payment had been good Wray If a Bond be upon condition that the Obligor or his heirs should pay 100 l. and the Obligor dyes his heire within age I conceive payment by the Guardion or by some other friend is good And afterwards all the Iustices agreed That if the Infant were within the age of 14. years the tender of the money by his mother had been good but contra if he had been more than 14 years and because no age was proved here but that he was within age it shall not be intended that he was within the age of 14. years and therefore they advised the party to begin de novo and that it may be found that the Infant was within the age of 14. years Trinit 25. Eliz. Moris against Paget in C. B. Rot. 2215. IN a Replevin a speciall Verdict was found that Sir Francis Ascough was seised of the Mannor of Castor in Lincolne which Mannor extended it self into four Towns v z. Castor North Kelsey Dale â—ale and that there were demesne lands and Freeholders in each of the said Towns and that Moris the Plaintiff held the land where c by Fealty and suit of Court to the Mannor of Castor and the lands did lie in one of the Towns viz. in Norch Kelsey And Ascough being so seised sold to the Defendant Totum illud Manerium sive Dominium de North Kelsey cum pertinentiis in North Kelsey ac omnia ac singula Messuagia redditus Herriot and all other things used or reputed as parcell thereof with all Courts c. To have and to hold to the Vendee and his heires and Moris the Plaintiff and other freeholders in North Kelsey did attorne to the Vendee The Question was if the Vendee had the Mannor of North Kelsey or not Peryam He has not yet by the feofment and attornment all the Tenants and services are conveyed to him but not as a Mannor for a Mannor is made and incorporate by continuance of time and this entire Mannor of Castor cannot be divided no more than other liberties as if the King grant to three partners who have three Mannors a Leet or Warren and one of them makes a feofment the Feofee shall not have the Leet and heâ—tted Dyer 362. a. and he sayd if I grant my Mannor of â—except certain Demesn lands and services the feofee shall have the Mannor and I shall have the Lands and services in grosse and so if I have a Mannor that extends into two Towns and I grant my Mannour to you in one Town you shall have no Mannor but the lands and services in gross Windham Iustice cont For where he grants his Mannor of North Kelsey in North Kelsey there it shall be construed his Mannor in reputation Ander on agreed for although a Mannor cannot be created at this day yet is it not so intire but it may be divided Hillar 30. Elizab. Sir Thomas Howards Case A Man makes a Lease for years the 10th of May and then the Lessor bargains and sells this to another by Deed enroll'd bearing date the 10th of Aprill and it was entred to be conveyed the 10th of Aprill before but in truth it was delivered and acknowledged and enrolled afterwards And it was held that the bargaine was without remedy at the Common Law for he cannot plead that it was acknowledged or delivered after the date of the day of acknowledging it and so was the opinion of Rhodes Peryam and Windham Anderson being absent for he cannot aver that it was inrolled or acknowledged at another day then it is recodred because it is contrary to the Record for it is entred that it was acknowledged the 10 of Aprill and then if such a plea should be admitted it would shake most of the Assurances in England Note Shuttleworth put this case A man makes a Lease rendring Rent at two Feasts and if the Rent be behind at any of the said Feasts or 40. dayes after and no distress to be found that the Lessor shall re-enter the Lessor comes upon the ground the last day of the 40. and demands his Rent and because no distress was sound on the land at the time of his demand he entred But it was averred that always before this day there was sufficient distress and the question was if his entry were good Fenner and Rhodes said they had seen a Report of the same Ease 8 Eliz. That the distress ought to be on the Land on the last day yea at the last instant of the day which is a legall time to make a demand or else the Lessor may enter Walmsley The same Ease was resolved a year agoe in the Kings Bench between Ward and VVare But if it were and no distress to be found at any time within forty dayes there if there be a distress found at any time it is sufficient Vid. 1. Inst 202. a. 28 Eliz. VVood against Ash IN a Replevin the Ease was thus Puttenham made a Lease of Land with a Stock of Sheep for 20. years rendring Rent and the Lessee doth Covenant to render back to him at the expiration of the Lease 1000 Sheepe of the age of three or four years and that the Lessor grants all his Chattells and this stock of Sheepe to Elizabeth Vavafor the Defendants now wife but in Truth the Sheepe of the old stock were all spent and others supplyed part by increase and part by buying of other Sheepe Walmesley for the Defendant The grant made by the Lessor is good for the generall propertie does remain in him although that the Lessee hath a speciall
was upon the pleading Taylor being Lessee for years 9 Elizabeth did grant and assigne this to Ayer the Plaintiff The Defendant pleaded that before the grant made to Ayer sc 8 Elizabeth Taylor did grant and assigne his estate to the Defendant without traversing the gift made to the Plaintiff Williams There needs no traverse for being granted the 8 Elizab. it is impossible it should be granted 9 Eliz. 2 Edw. 6. and 1 H. 5. Anderson He ought to travers for it is impossible to confesse and avoyd a grant by confession that was granted to another before for if it were so the second grant is voyd and so being so confest here ought to be a travers Walmesley cont in 32 H. 6. it is sufficient to say that at another day c. there was another arbitrement c. for by that the first arbitrement is voyd in Law And it is a good plea in a Will that after that there was another Will made without Traversing and there is difference between Lands and Chattells for land may be gotten out of a man by wrong and therefore it may be that after the feoffment the Feoffor entred and it disseised the Feoffee and did infeoffe another but it cannot bâ— so here of a terme for years for no man can take it away from the Lessee by wrong Glanvill and Kingsmill cont There must be a Traverie for there ought to be a confession before there can be an avoydance but here he does not confess the grant but pleads matter that denies it being granted And at last Anderson gave Iudgment that he ought to Travers 42 Eliz. Rudd against Topsey in C. B. Rot. 135. IN a Quare Impedit The Iury found that Edward Capell was seised of an Advowson in Fee and did let it to the Defendant for years and during the Lease he presented the Defendant and the doubt was whether this were a surrender or an Extinguishment And it was held by all the Iustices that this could not be a surrender but is cleerly an extinguishment For if a man does present to his own Church as Proctor to another by this he looseth his advowson Nat. Br. 25.17 Ed. 33.24 H. 6. Hillar 42 43 Eliz. Forrest against Ballard Rot. 2480. AN Audita querela was brought upon a Statute which was acknowledged before a Maior who had no power to take it Anderson An Audita querela will not lie upon a voyd Statute But Kingsmill Walmesley and Warburton cont and Walmesley cited 〈◊〉 Br. 102. where an Audita querela was brougt upon a forg'd Statute and there it would lie upon a Statute made by Duress 20 Ed. 3.28 Trinit 40. Eliz. Goodrick against Cooper in C. B. Rot. 1259. IN a Replevin the Defendant justified for Rent granted to the Master and Schollers of Emanuell Colledge in Cambridge And the Iury found that one Spendelose being seised of the land where c. by his Deed did grant to the said Master and Fellowes a Rent Ch. of 40 l. per annum for ever and that Spendlose did seale his part of the Indenture and delivered it to the use of the Master and Fellowes to one J.S. to deliver it accordingly but there was no dead to shew their receit thereof and then they sealed the other part but they made no Attorney to deliver it and it was â—ound that the Rent was payd for divers years after VValmesley Although no Letter of Attorney were made yet it is good for by their sealing of the Counterpart there is a sufficient agreement to the grant As it a Reversion be granted to a Corporation by Deed although they cannot accept of this but by Attorney yet if they bring a waste this is a sufficient agreement to vest it in them Quod assi Justiciarii concesserunt And judgment was given for the Avowant Michaelm 43 44. Eliz. Claygate against Batchelor in C. B. Rot. 3217. IN debt upon a Bond of thirty pound the Condition was that if Robert Batchelor son to the Defendant did use the Trade of Haberdasher as Iourneyman servant or Apprentice or as a Master within the County of Kent within the Cities of Canterbury and Rochester within four years after the date that then if he pay twenty pound upon request the Obligation to be voyd And all the Iustices agreed that the condition was against Law and then all is voyd for it is against the liberty of a Free-man and against the Statute of Magna Carta cap. 20. and is against the Commonwealth 2 H 5. 5. And Anderson said that he might aswell bind himself that he would not go to Church And Iudgment was given against the Plaintiff Michaelm 43 44 Eliz. Dogget against Dowell in C. B. Rot. 65â— IN an action on the Case upon an Assumpsit The Plaintiff declared that at the request of the Defendant he had lent to him 30 l. the 10th day of May 5 Eliz. and the Defendant in consideration thereof viz. the second day of May aforesaid did promise and assume upon himself that he at the end of the yeare would lend the Plaintiff other thirty pounds for a year or give to him five pound It was said that the consideration is good for although the promise was made at another day yet is it in pursuance thereof so that in Law it shall be accounted all at one time and is not like to the case in Dyer 372. where the Master promised one who was bayle for his servant that he would save him harmless this is no consideration for the Ballment was of his own will and was executed before the Assumpsit but if the Master had first requested and afterwards assumed there it is good and so was it adjudged in the case of one Sydenham against Worthington Trinit 27 Eliz. Rot. 748. Where the request was before and the promise after and there it was a good Assumpsit VVarburton agreed And it is like as if I should say to you do such a thing and I will give you five pound this is no good contract But all the Iustices on the contrary for when at the first day the Plaintiff did lend to the Defendant thirty pound that was absolute and the speaking on the second day cannot have such reference to the first agreement that it shall be accounted all one Anderson If I say to one In consideration you will serve me for a year I will give you five pound here is no cause of action for the consideration is precedent and not mutuall and so judgment was entred for the Defendant Hillar 41 Eliz. VVentworth against VVright Rot. 2529. IN a Quare impedit two points were moved 1. If the Parson be made Bishop whether the Patron should present or the King by his prerogative VVilliams The King shall for before the Statute the Pope should present and the reason was because the Bishop had received his presentment gratis from the Pope and by the same reason the King now
shall present for there is no reason the patron should for by his precedent presentment he hath dismist himself untill resignation or death as if a man lets land for another mans life he shall not have the land during the life of Cestuy que vie great mischief would be if it should not be so for els all the presentments that the King hath made shal be usurpations The second matter was that no presentment is pleaded against the King by the Patron for it is pleaded that the Parson was admitted and instituted but not that he was inducted but the Court held it good notwithstanding that omission But as to the first point the Court asked Williams if he could shew presidents that the King should have such presentment for they said that the usage by the Pope is no argument at all for that he used to usurpe many things Walmesley I conceive this custome began by the Popes usurpation but he said there is a Book in the time of Edâ— 2. where this point is argued and adjudged that the Patron shall present and not the King VVilliams shewed eight or nine Presidents in the time of H. 8. that the King used to present in such case but all of them were between spirituall persons And the Court said they did not regard those presidents for all spirituall persons were the Popes servants vid. 6 Elizab. 72.8 South against Whitewit IN a prohibition the case was thus the wife of VVhitewit had spoken scandalous words of South and therefore the was excommunicated by the high Commissioners and by Letters Missive a Pursevant came at twelve of the clock at night and broke the house of VVoâ—tewit and tooke the body of VVhi ewâ—… wife who was rescued wherefore VVhitewit her husband was called before the Commissioners and hereupon VVhitew t prayed a prohibition And the question was if a Pursevant could break a house by such Commission or not And it was agreed that by the Common Law neither the Pope nor any other spirituall Iudge had any thing to do with the body and goods of any one for only the sword spirituall belongs unto them VValmesley At the Common Law after Excommunication a Capias Excommunicaâ—um was awarded and I conceive this writ is of force at this day and is not taken away by the Statute of 5 Eâ—…z Kingsmâ—ll agreed for this Statute gives power onely to correct the spirituall law and to take away the authority of the Pope but gives the same means to execute it as before and he further said that the Statute that did erect the Court of Wards doth appoint a Seale belonging to it and other process according to the course of the Common Law and therefore by the same reason if this Statute of â— Eliz. intended to give them such authoritie they would have appointed a Seale also and a course according to the Common Law but as the course is here used a man may be robb'd in his house by a beggerly Pursevant which is no Officer known by the Law And so was the opinion of the Iustices Pasch 40 Eliz. Goosey against Pot in C. B. IN a Replevin the Case was thus two Hundreds were adjoyning together to two several Mannoure of two several persons and the avowant was seized of one of them and he prescribed that all the Tenants of the other Hundred have used to make suit to the Leet within his Hundred and also that the Lord of the other Hundred used to appear or to pay him 4 s. pro anno futuro and if it were not paid the Defendant prescribed that he and all those whose estates he hath have used to distreyn any Inhabitant within the Hundred for the same and therefore for 4 s. not paid he did avow the Distress whithin the Mannour of the Plaintiff who was one of the Inhabitants Williams A man may prescribe by a que estate in a Hundred for a man may have it by disseisin and there are divers presidents which the Prothonotaries have shewed me to warrant this in a Replevin for the seisin is the matter of the title And to this Littletons rule may be added that of all things which lye in grant and whereof a man cannot be disseised against his will a man shall not plead a que estate Kingsmall A que estate cannot be pleaded of a Hundred unless if be appendant to the Mannour and a second matter was moved in this Case viz. that he prescribed to distreyn the Cattle of a stranger for the essence of the Lord. Williams It is not good by the 41 Ed. 3. but by the 47 Ed. 3. for suit and service the Cattle of the Lord may be distreyned on any land within the Hundred Anderson I do agree to the Case of my Lord Dyer that the Cattle of a stranger cannot be taken for a Herriot Walmesley In the 12 of H. 7. it is said by Fineux that a Lord of a Mannour may inlarge his services by prescription and so the Cattle of a stranger may be taken but for a personal matter as for amercement in default of suit no stranger may be distreyned And afterwards agreed by all the Iustices that the strangers Cattle could not be distreyned Holt against Lister IN a Replevin the Case was thus he in the reversion after Tenant in Dower grants it over to the use of himself for life the remainder to his nert son in Tail the remainder to the use of himself in Fee and after this he levyes a Fine to the Plaintiff and his heirs of land which he claimeth de haered tate sua after the death of the Tenant in Dower The Plaintiff brought a Quid Juris clamat against the Tenant in Dower and upon non sum informatus Iudgement was given that the Tenant should attorn and now he prayed that she should not attorn for if she atterns she will torfeit her estate Walmesley If he in the remainder for life grants over by Fine it is no forfeiture for he gives no more right than he hath and so hath it been adjudged in the time of my Lord Dyer Glanvill I agree to that but in this Case he grants that which he hath de haereditate sua and this recital will make a forfeiture and then if the Tenant in Dower attorn this is a forfeiture Anderson This attornment is no forfeiture because it is by judgement of the Court. Walmesley I agree for the Grant it self is no forfeiture unless it be by reason of the recital but the Attornment shall have relation onely to the substance of the Grant And it was much disputed between Walmsley and Glanvill If Lessee for life of a Rent grants this in Fee by Fine if this be a forfeiture and Walmesley vouched a Iudgement that it was no forfeiture and Glanvill voucht 31 Ed. 3. Grant 60. to the contrary and 15 Ed. 4.9 by Littleton If Lessee for life of a Rent grants this by Fine in Fee it is a forfeiture by reason of the
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS