found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without
case against Iohn Culpepper and Anne his wife for an Assumpsit made by Anne dum sola fuit And afterwards the Assumpsion is found by verdict And Davenport moved in arrest of Iudgement for that that there was not a sufficient consideration for whereas the wife was Administratrix to Goddard her first husband who was indebted to the Plaintiff for so the Plaintiff declared and that he intended to sue the wife as Administratrix and that the wife requested him that two might surveigh the account between her husband and the Plaintiff to which the Plaintiff assented and that two surveighed it accordingly when it appeared that the debt was due and that then the fore-acknowledgement of her husband to be so indebted In consideration of the premises assumed to pay the debt part at Michaelmas and the other part at a convenient time after But there is noe consideration to make her chargeable de bonis propriis as their purpose is to make her by their Declaration against her and not as Administratrix For it is not mentioned that in consideration that she had assetts or that the Plaintiff would forbear to sue her or otherwise c. So that the debt of her husband by the Assumpsit cannot be changed to her own debt And it is not like Banes case Co. Re. 9. 94. For there the Plaintiff was to forbear to sue him and for that assets is not requisite The like is Beeches case 15 Eliz. in that Court reported New Entries fol. 2. Richardson of the same opinion because there is not any consideration nought but the assent of the wise to the accompt which will hardly charge her de bonis propriis See Co. lib. 6 41. Pasch 3. Car. Com Banc. Thomas Ux. against Thomas Newark THomas and his wife brought Trespass against Tho. Newark for beating of the wife and taking of the goods of the husband only ad damnum ipsorum and afterwards the matter was found by verdict and it was moved that the Declaration was nought for the wife cannot joyn for a Trespass done to the husband alone but in a trespass done to the wife alone the husband ought to joyn and for that the Court awarded quod quereâ—… nil capiat per bill But it was said by Crook and Yelverton if baâ—…on and feme bring trespass for the beating the wife the husband may declare for a trespass done to him ad damnum ipsius c. But it was said by Hutton if two joyn in trespass for taking goods whereof they were joyntly possest one of them in an action cannot declare for taking of the goods of him alone Which was agreed by Crook c. Blackhall against Thursby ONe Blackhall petitions in the Court of Requests to compel Thursby Lord of the Mannor to admit him to a Copyhold surrendred to his use which he refused before to doe And also forbad one to whom the Copyhold was demised by Blackhall to pay him any rent Vpon which it was decreed that Thursby should admit him to a Messuage and 17 acres whereas the Copy was of a Messuage and 3 acres and also that Thursby should set forth the bounds of the Copyhold which he had defaced and removed and that he pay the rent Hitcham moved for a prohibition for he said it was more just for a Court of Equity to compel a Lord to admit his Copyholder for before admittance he cannot have an action and he has no remedy at the Common-law And so if a Copyholder removes or defaces the bounds of the Copyhold it is proper for such a Court to design them To which the Court agréed but they would not compell him to admit him to the Messuage and 17 acres where the Copy is but of thrée acres which would be unjust unless that the 3 would comprehend the other 14. But parcel or not parcel of Copyhold belongs to the Common-law to try But the Court denied the prohibition for that cause for the Iustices said that that admittance to 14 acres does not bind the title but it sets at liberty as to that But if they had decreed that he should be admitted and also enjoy it to him and his heirs then the Decree had been unjust and a prohibition for that But for part of the Decree which touch'd the rent It was agreed by the Court if Thursby receive the rents the decree was just that he should pay it but if he did not receive the rents nor take the profits but only forbad the Tenant to pay the rent and he would save him harmless Then if it was decreed that he should pay the rent a prohibition to that part should be granted And Harvey Iustice in that case said That he knew it to be adjudg'd that a surrender with the appurtenances would pass land And of a Messuage and 3 acres would pass more acres if divers Copies successively have been so And upon questioning of Blackhall by the Chief Iustice for saying that after there was a Decree in the Court of Equity an Order of the Common-bench could not supersede the Execution of it And Iustice Yelverton declared That when he was in the circuit at York a poor man who sued before him in forma pauperis was arrested by process from the Council of York And that upon notice of it he commanded a writ of privilege to be made for him but the Officer of the Council would not obey it upon which he claps in a Habeas Corpus returnable at a certain hour and the Officer came without the body and refused to deliver the prisoner and said that he had not power to controll the process of the Council And upon that he set a fine upon him of 40 l. and his Act was approv'd on by the whole Court. For every one that sues before the Assize ought to have free egress and regress and staying while his business was ended And afterwards the Lord President said to Yelverton that he would complain to the King and Privy Council of him for that he had transgressed his authority and power And the Court said that they would justifie it c. Smith against Doctor Clay HEnden moved for Doctor Clay Viccar of Hallifax that a prohibition might be granted to the High Commissioners of York For that that these Articles by one Smith were preferred against him c. First that he read the holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation Secondly that he did not doe his duty in preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry mornings to preach Thirdly that he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own house and put barm in the Cups that they were so polluted that the communicants of the Parish were loath to drink out of them Fourthly that he did not observe the last fast proclaimed upon the Wednesday but on the Thursday because it was an Holyday
the Civil Law And it was resolved First that the King by his Charter deprives the subject of his Liberty and Priviledge of Tryal As he cannot by his Letters Patents alter the nature of Gavelkinde Land but by prescription he may alter it in particular places As 9 H. 6. 44. In corpus cum causa to the Chancellor of Oxford was certified that the prisoner Pro extensione detentus fuit convictus And an exception was taken for that that he should have been indicted and convicted and it was answered that it was Mos Universitatis And by Hutton Iustice That custom was to be intended to be by prescription But so the Charter is confirmed by Act of Parliament it is as good Secondly that there is a good cause of action in the Chancellors Court. For Wilcocks who is one of the parties is a Scholar and the Charter was only made for the ease of Scholars that their Studies might not be interrupted by Sutes in other Courts But then he ought to be a Scholar resident in the Vniversity at the time of the Sute commenced there And he ought to be only one of the parties And for that if another be joyned with him he shall not have the priviledge or benefit of the Charter as it is 14 H. 4. 21. and by Richardson chief Iustice that is not a priviledge which may be waved for every person may Recusare jura introducta pro se But that it was an exempt Iurisdiction and differs where the priviledge goes to the person As if a Clerk in his Court will sue in another Court or suffer himself to be sued that is a Waver of the Priviledge Thirdly that a Proeedendo shall not be granted for that the Charter is not pleaded for the Iudges give Iudgement of the Record and the cause of their Iudgement ought to appear by pleading of the Record And also a prohibition is granted where by Demurrer or by Pleading and not by verbal surmise there ought to be a discharge And in the case of a prohibition It is not like the Case of 35 H. 6. 24. Where Conusans is one time allowed by Charter shewn and another Record there should be allowed without demand without other shewing But Yelverton Iustice to the contrary That it might be remanded upon pleading of the Charter And he said that there was a difference where the suggestion was upon matter of Fact as prescription c. Where an issue may be taken there it ought to be pleaded in writing which appears fully by the mean of the Court and not by suggestion Fourthly it was resolved that a prohibition may be granted in case where the Court cannot give other remedy for the ease of the Subject who is the party as it was adjudged in the Court of Requests Vpon the custom of London concerning Orphans a prohibition was granted and yet no remedy at Common Law was afterwards to be expected Trin 5. Car. Fawkner against Bellingham FAwkner against Bellingham in a Replevin The Avowry was for that that the Defendant was Lord of a Mannor and of Lands which were Chauntry Lands and held of him by Rent and other Services And after coming to the Crown by the Statute of 10 E. 6. cap. 14. Who granted it then over by Letters Patents c. And now the Lord distreins for Rent and avows that he had not seisin within fourty years And whether seisin was requisite for him who made the Conusans was the sole question in the Argument First for that that it is a new Rent created by the Statute of 1 E. 6. For when that Land is granted to the King by Parliament yet the King hath operation upon it and may dispose of it Secondly that the Land passed from the Priest and others by their assent confirming it And it is a Grant of the Seigniory by the Lord himself unless the saving hinder it But so by the Grant the Rent is extinguished And the saving is so a creation of a new Rent 1. rep 47. Altomeoods Case And there is diversity between a Rent-service viz. where the Tenant grants Land to the King and he grants that over He cannot distrein upon the Patentee for it is distinct from a Rent charge Stamford prerogat 75. Mich. 20. E. 3. 17. And so it is ordered by the Statute de Religione when he enters by Mortmain that he ought to revive the Services Stam. 27. If the King enters upon my Tenant there a Petition of Right lies Dyer 313. 10. rep 47. By the saving in the Statute of Wills c. A primer Seisin is given to the King de novo where he ought to have it before And then being a new Rent no Seisin is requisite Secondly the second reason is for that there is a new remedy and then no matter whether it be old Rent or new Rent Finchden A Rent granted out of White-acre and a distress out of Black-acre the Rent yet remains and there is one thing part of the Rent another of the remedy Because the Rent is only altered in quality Dyer 31. There our Case directly Now the Statute of Limitations is a Statute for the good of the Common wealth to settle inheritances and possessions And it should be expounded liberally Then if a scruple be of the Act it ought to be expounded benignly And so it is of all other Statutes which settle possessions Always shall be expounded favourably for the ease and benefit of the Tenant and Lord. And for that adjudged That a Copy-hold and Leases for years are within that Statute And the Statute of 32 H. 8. 11. rep 71. binds both King and Realm because it is for the publick good Owen against Price before BRamston argued for the Defendant I agree that Lease to be a Lease in remainder and I admit also that that Lease is warranted by the Statute 10 Eliz. For that that he is not punishable of waste And the case admits two questions whether it be a void Lease at Common Law And First In respect of the limitation Secondly there is not any Livery in the Case Wherefore first of all it had been said a Frank Tenement cannot pass from a day to come in case of a Grant 38 H. 6. 34. 8 H 7. Claytons Case 5. rep It had been agreed that a Livery made the first day by himself or by his Attorney should not be good And moreover if by his Attourney after the day if his Grant may be granted the same day it is not good And then I hold that the date of the Grant of Attourney is not material Trin. 43 Eliz. rot 402. Conibar It was resolved in such a Case as that is That the Livery is not good And the reason was that the Livery had not relation to the Deed which was void in Law Bucklers and Binsluns Case The release was made 1 May as this and executed by Attourney and by Attourney authorised the same day the second of May. And it was adjudged
demanded are material Because it is demandable in a Collateral place out of the Land charged Crook Grant of a rent and that I pay it at Michaelmas allwaies if it be demanded at my House there ought to be a demand And suppose it was to be demanded in such a place upon the Land I conceive the demand ought to be made accordingly Yelverton A Lease was made rendring a rent payable at such a day upon Condition that if the rent be not paid at such a day without demand That the Lessor may reenter And adjudged that no demand is now requisite For modus et conventio vincunt legem c. Sed adjurnatur Wolfes Case before THe Plaintiff was an Attorney who sued by attachment of Privilege And now the Court would not permit the amendment Because there was a material Error for it is to the disadvantage of the King For if the party be non-sute or a verdict passes against him the King shall have a Fine for false clamour and may recover them against the pledges But now where it is the Act of the Court or of the Clark or Attorny and not the party himself there may be amendment As warrant of Attorney may be entred after the Record removed And although that pledges were entred upon the Issue roll where it ought to have been upon the Imparlance roll But not on the contrary For the Issue roll is the inferiour Harvey If a Sute be by Bill as an Attorney being Defendant there are alwaies pledges entred in the Bill But if by Attachment also as so Then the Declaration is the Original Crook 12 Eliz. Dyer There Iudgement was reversed for want of Pledges And although that Case was before the Statute of 8 Eliz. yet that Statute does not ayd substantial Errors And in one Husseys Case in the Kings Bench That was adjudged for Error Wilknsons Case CRew moved that two were bound in a Statute and one dies his Heir within age That the extent shall demur Because that usura recurrit contra haeredem infra aetatem existentem And he cited 17 Ass 24. by Mawbrey And so it was agréed by the Court. And Richardson said That in that respect the Statute is an ill assurance Quod nota Waddingtons Case AYlâ—ff moved for a Prohibition for one Waddington for that that he was executor and was sued in the Councell of York upon an Obliligation for the payment of a Legacy And he alleges that a Lease which was put in the Inventory was aliened to him by the Testator in his life time And so the Question will be whether that should be Assets which ought to be tryed at the Common law And therefore prayed a Prohibition Richardson said The Councel of York have power of all Obligations And therefore having Iurisdiction of the principal they have Iurisdiction of the accessary Davenport It is seen that they may proceed upon an Obligation of all sums If they procéed Suo genere as in the Court of Equity But if a thing tryable at Common law as Assets or not Assets come they cannot proceed c. Richardson If a Sute be there for a Legacy and payment be pleaded they may try that But if they meddle in matter of Title then a Prohibition shall be granted Hutton There hath been many motions upon these Ecclesiastical Obligations for Prohibitions and allwaies they were denied And so it was in this Case Comins Case IN one Comins Case it was agreed by the Court That a Subiect may have a Forest But cannot have a Iustice Seat But he may have a Swanmark Court and the other Courts and a Commission to execute them Then a Forest in the hands of a Subject shall pay Tithes And it was agreed that in the hands of the King it is privileged And by Henden Davenport and Atthowe Sergeants It is only his personall privilege which extends to the Lessee of the King But not to the Feoffee And it was agréed That where the right of tithes comes in Question between a Parson and the Vicar who are both Ecclesiastical persons It shall be tryed by the Ecclesiastical Court But Richardson said the Books make a doubt Where it is between the Servant of the Vicar and the Parson But it seemed to him to be all one Margery Rivets Case before RIchardson Hutton and Harvey said That the Devastavit ought to be to Margery for Necessity sake For it cannot be intended otherwise For none can satisfie the Debt but Margery And the intention of the Replication was to charge her de bonis prop. for waste and no other can be intended to waste And the Case put of I. S. so being seised feoffavit There it is good without praedict I. S. But for the thing it ought to be Feoffavit inde 21 H. 7. There if W. S. be named again It shall be intended the same W. S. if there be not quidam I. S. and then otherwise and also it is much mended by the Replication For there it is ipsa Margareta non devastavit But Crook and Yelverton on the contrary according to their reasons before that no Issue is joyned And then the Statute does not ayd it For there is not any Nominative Case to which it may referre If it had been quo die Margery habens bona devastavit had been good But being bona habuit no Grammarian can make Construction of it And the Replication or Declaration ought to be certain to all intents 27 H. 6. 3. Wrotesleys Case In an information of Tithes It was said That the Defendant cognoscens him to be in sute being ruled that Congnoscens is not positively an affirmation but it ought to be cognovit And Iudgement was had upon it and yet after for that fault reversed 1 R. 3. There the Case was After verdict was entred that the Iury appeared et electi triati dicunt super sacramentum suum There it was reversed because it was not lurati and yet that was implyed by sacramentum strongly But Implications ought not to be allowed in Replicatious then we should introduce so many incertainties But by Crook Iudgement shall be given against the Plaintiff upon his own Replication For that that the waste is supposed after the Son came at full age and then the Administration that determines And Iudgement was given for the Defendant Roberts and others ROberts and others in East Greenwich were cited in the Spiritual Court to pay mony that the Wardens had expended in reparation of the Church And the Inhabitants alleged That the tax was made by the Church-wardens themselves without calling the Free-holders and also that the monys were expended in the re-edifying of Seats which belonged to their several Houses And they never assented that they should be pulled down And now that allegation was not allowed but sentence was given against them And then they appealed to the Arches where this allegation was also rejected And for that he prayed a Prohibition And the Court agreed That the
said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
years or but for 7 years And it seemed to Hutton that the Lease was confirmed but for 7 years But Richardson was of the contrary opinion and took a difference where they confirm the Estate and where they confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Land for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Sergeants at the Bar. And afterwards Hutton said That that was a good Case to be considered and to be moved again Jacobs's Case A Man was indicted at Newgate For that he feloniously vi armis had robbed a man in a certain Kings foot-way leading to London from Highgate And upon that he was arraigned found guilty And having his judgment he prayed his Clergy for that he was a Clark And the Iustices of Gaol delivery doubted if he should have his Clergy or not Because the Statute if any man be taken upon Felony committed on the High way he shall not have his Clergy But the Indictment was in this case that the Felony was done in alta via reg pedestri So that the words are not alta via regia nec in magna via regia nec in via regia For if that word pedestri had been put out of the Indictment he should not have had his Clergy clearly Some of the Iustices were of opinion that that word added in the Indictment made that he should not have his Clergy The Lord chief Baron of the contrary opinion Perkins against Butterfield HItcham moved to the Iustices If one takes Beasts Dammage feasant and impounds them in an House and leaves the Door open So that the Owner may sée them and give them sustenance And afterwards for default of Sustenance they dye in the Pound Whether he who distreyned them shall be charged or not Hutton when one takes Beasts Dammage feasant in his Land It is at his Election if he will impound them in an open place where the Pound is or in some place in his own Land And if he impound them in the common Pound and the Beasts dye the Owner has no remedy But if they be impounded upon the Soyl where they did the Dammage or in the Houses of him who distreyned them and they dye for want of Food In this he who took them shall be charged For the Common Pound is common to all Persons so that they may come to give them food Otherwise in this case For there the Owner cannot have notice where he hath made his Pound Richardson of the same opinion And I believe that the Owner shall have an action upon his Case against the Owner for the recovery of the value of his Cattell For trespass does not lye For the taking of them and the impounding was lawfull And it is reason that he should recover the value of them by an Action For if the Owner had come to have given them food the Terre-tenant would have an action against him Hitcham The taking of them is made a Trespass ab initio when the Beasts dyed in Pound Wimberly against Taylor et alios VVImberly had entred a Plaint in a Court Baron against two jointly for taking of his Goods And the Plaintiff had removed the Plaint by a Recordare joyntly as the Plaint is And now at this time the Plaintiff counts of taking of Goods severally So that it varies from the Plaint and the Recordare also And Ward moved that the Writ might abate And so it was adjudged by Hutton and the Iustices Wilkinsons Case IT was moved at the Bar If a Man makes a Lease for years to I. S. I. N. and I. D. If the aforesaid I. S. c. should so long live And now one of the Lessées is dead If the whole Lease should be determined or not was the Question And Hutton and Harvey said That it was without doubt that the Lease was determined by the death of one of them But if the words had been generally If the Lessées should so long live and had not named them Then perchance it should have béen more doubtfull The Executors of Tomlins's Case ATthowe demanded this Question of the Iustices A Lease is made for years the Lessée grants over his Estate and reserves to him and his Heirs during the term a certain Rent If the Executors or the Heir of the heir shall have that Rent And it séems to me that it shall enure to the heir well enough As a Grant made by the Grantee of the estate of the same Rent So the Heir shall take by the Grant Harvy May the Heir take Chattel as Heir to his Father And this Rent is but a Chattel And in the Book of Assise there is a Case where Lands are given to I. S. et uni haeredi suo et uni haeredi ipsius haeredis tantum And that was taken to be no Fee-simple Nor no such Estate that the Heir might claim as Heir to his Father But I am in doubt of your Case truly For which I will advise Hitcham Vpon that I have seen a Diversity Where Lands are given to I. S. et haeredi suo et haeredi haeredis I. S. In that Case he shall have a Fée-simple Otherwise it is where Lands are given to I. S. et haeredi suo There no Fee-simple passes Richardson There no Fee-simple passes in any of the Cases And it was said in the Argument That Lessee shall not have Trespass vi et armis against his Lessor Whiddon's Case A Man devises by his Testament to his Daughrer Jane all his Land in D. habendum sibi et haered de corpore suo legitime proc And by the same Testament he devises to his Daughter Anne all his Land in the tenure of I. S. in the County of Hertford Whereas in truth D. was in the County of Hertford and parcel of the Lands were in the tenure of I. S. Whether Jane shall have the Lands in D. in the tenure of I. S. by the first words Or Anne shall have them by the last words Harvey The Testator had given them by his first words to Jane Wherefore he cannot revoke his Gift and give it afterwards to another Daughter But all the Iustices were of the contrary opinion A Case of Executors IF Executors come to the Ordinary for to prove the Will He ought to prove it ex communi jure And that he may do without great examination of the Witnesses But if other Executors come afterwards to prove a later Will Then the Ordinary ought to be circumspect in the probation of that Will and to do it by proofs For that is de mero Jure And it is the better and of more effect by Atthowe Challoner against Ware A Man makes a Lease for years reserving a certain rent payable at the Feast of St. Michael And for default of payment at the said day and by the space of 40 daies after That
of the Demand cannot be made parcel of the Issue 31 Eliz. rot 1137. Com. Banc. Dennis Varneys Case There the Book was agreed If it be to be demanded generally it may be at any time if it be tunc petit otherwise For otherwise it would be a Rent-charge at one time and a Rent-seck at another And the Distress it self is the Demand As it is in Lucas Case If one be obliged to pay mony upon Demand The Action brought is a sufficient demand And Barkley Sergeant He shews in the Avowry that such a one was seised of 20 acres and grants a Rent out of them and others by the name of all his Lands in Rustock and Ollerton For that he said that Ollerton is not charged Because that it is not pleaded that he was seised of that But the whole Court on the contrary And that it is an usual manner of pleading And that it shall be intended that he was seised of Ollerton First the words are per scriptum c. he granted a Rent and then he pleads that per scriptum suum he gave a power to distreyn And then it shall be taken that it was not made by any other Deed and the Distress given by the second Deed shall not make the Rent a Rent-charge And he cited Buts Case Then if it be a Rent-seck and the Distress gives a nomine paenoe There ought to be an actual Demand and that upon the day as it appears by Maunds Case And Pilkintons Case 5 Rep. 5 Eliz. Dyer If it was a Rent-charge the Distress it self serves for a Demand As it was many times adjudged Secondly The words are If the Rent be in arrear any day of payment or 14 daies after The last instant of the 14th day is the legal time for demand of it And the words existent legitime petit ought to refer to the daies expressed immediately before As 39 H. 6. A man obliges that his Feoffees shall do such an Act si quisuerunt Those words shall have reference to the Feoffées And Dockwrays Case If a Man be obliged that his Children which he now hath so also existent Being words of the Present tence refer to the days now mentioned and otherwise there would be a great inconvenience For it cannot be intended the same tenant to be alwaies upon the Land Barrows Case 20 Eliz. A Feoffment upon Condition to re-enfeoff upon demand at such a place It cannot be demanded without notice to the Feossée For that that he shall not be compelled to be there alwaies expecting And the same inconvenience alwaies would follow If the demand should not be upon the day of payment by which c. Richardson If the Rent had béen granted out of 20 acres in Rustock and then he had granted by another Déed that he should destreyn in other Lands being in the same County or not and is the same That that is but a Rent-seck 10 Assise 21 Ass And the Distress is not but a penalty And if that Rent is granted by one Deed and the distress upon the Land by another Deed If it be not delivered at the same time then there shall be a Rent-charge and there shall be also a Rent-seck And when also it is said that ulterius he grants per scriptum suum and does not say praedict It shall be intended another Deed then without averment that it was delivered at the same time It shall be intended at another time But admit that it be a Rent-charge and that it issue out of Ollerton where the demand of it was Yet he ought to maintain that actually In Maunds Case The distress is a sufficient demand For it is not but to inable him to destreyn and that is where the demand is limitted generally But if a Rent be granted and if it be demanded of the person of the Gruntor he may destreyn Then there may be an actual demand that was adjudged As in the Court 15 Jac. Com. Banc. Iackson and Langfords Case and in one Armerys Case And in another upon the same point So if you will grant a Rent-charge demandable at a special and particular place If it was at another place than the Land charged Without doubt there ought to be an actual demand So if it be upon a special place from the Land charged or demanded for the distress ought to be pursued as the Grant is And that is upon such a demand But where it is restrained by the words of the Grant And the same Law is where you will limit the time of the demand If the Rent be granted payable at such a day and grants over that ad tunc being demanded there a legal and general demand will not serve But there ought to be an actual demand And also it is as much although not in express words for the sence and meaning carries it If it be arrear at such a day existent petit The demand ought to be at the day mentioned before If I be bound in Obligation the Condition to pay mony at such a day being demanded There ought to be a demand at the day of payment or there shall not be a forfeiture And now then there is not a demand at the time so no cause of distress And although the Verdict be found if it be collateral matter yet it will not help For when it appears upon the whole matter that there is not any Title to distreyn the Tryall will not help it And so Iudgement shall be given for the Plaintiff Hutton Harvy and Yelverton agreed That if it was a Rent-seck and the distress a penalty there ought to be an actuall demand at the time limited But in case of a Rent-charge although the demand is limited to be made upon parcell Yet they all held that a generall demand will serve And that shall be at any place at any time For Harvey said There is no oddes whether it is limited to be demanded generally or to be demanded upon Dale If it be material it ought to be observed in the one Case as well as in the other Stanleys Case IN one Stanleys Case in an Action of Battery Sir Thomas Crew moved for mitigating the dammages Where the Iudgement was given upon a non sum informatus and afterwards a Writ of enquiry of dammages But the Court said That in such Cases they never will alter the dammages And Crook said that he was once of Councel in an Action of Trespass pedibus ambulando in the Kings Bench in such a Case upon a Writ of enquiry of dammages 10 l. was given That he could never have a mitigation by the Court c. Outlary NOte it was said That an Outlary in the same term for error may be reversed in the Common Bench Or in any term if it be void upon any Statute As for want of Proclamations c. And an Outlary was reversed for that the Writ was praecipimus tibi where it should have been vobis to the Sheriffs of London
W. who died seised of the Lands which descended to his Vncle who was the Defendant Crawley Two things are required to maintain the action Whether the Defendant be heir Secondly who held lands by descent from the Obligor now is heir at Common law And now the heir by the Mannor shall be charged in debt as well as the Heir at Common law Dyer 228. All Brothers in Gavelkind shall be charged 11 H. 7. 12. The heir of the party of the mother shall be charged and so shall Bastardeign 4 E. 3. 14. Heir by Borrough-English And in this Case R. is not heir but by the Mannor Yet he shall be charged 32 Eliz. Dyer 368. by 4 the Iustices And the Defendant here had Lands by descent from the Obligor by which he shall be charged which was agreed by the whole Court But by Richardson It is not sufficient that he be heir in Blood and heir by the Mannor But he ought to have also Land to him by descent from the Obligor But here the Plea is that the Land descended to him immediately And for that you ought to have pleaded that the Obligor died and Lands descended to W. his Son and Heir who died without issue seised of the said Land which descended to R. his Vncle as Brother and heir to the Obligor Quod fuit concessum per totam Curiam Grays Case HEnden shewed cause that a prohibition should not be granted to the Ecclesiastical Court where the case was That one Brother had taken administration and the other would have distribution of the goods of the intestate And said that issues might enforce distribution of it And it is grounded upon Magna Charta cap. 18. Where there is a saving to the wife and the issues their reasonable part And upon the same reason that there may be a division between the issues so there may be between the Brothers but more remote degrees have no distribution And it is hard that one Brother shall have the whole estate and the others nothing And the Ordinary here is the most indifferent man to make distribution Hutton if the eldest son had lands descended to him and the youngest took Administration It is reason that the eldest shall have distribution And by him and Harvey a Writ de rationabile parte bonorum lies only where there is a custom And they said if it should be admitted that the Ordinary should distribute to the Brothers by the same reason he may to more remote degrees And he declared their opinions that many terms before they were against those distributions But they said That now the Ordinary would have an Obligation before they granted a Prohibition and they coloured their Obligation with the Statute of 31 E. 3. cap. 11. That an Administrator shall be count able to the Ordinary And Harvey said that be knew where a man that was rich died and the Ordinary had 600 l. to pious uses before he would grant administration But he said that in the time of Sir Iohn Bennet such an Obligation was questioned and they would not endure the tryal of it Hutton said that now for that that they could not distribute they might invent a new way scil divide the Administration As if the Estate be 400 l. they might grant Administration of the Goods of the value of 100 l. to the other But by him and Harvey That is illegally granted Doctor Wood and Greenwoods Case DOctor Wood libels against Greenwood in the Ecclesiastical Court for tithes of Wool Wood and Apples c. And he shews that he was Vicar there and that the 8 E. 1. there was a composition that the Parson should have the tithes of Grain and Hay praeterea the Viccar should have Alteraginum And for that that those tithes did not belong to the Viccar he prayed a prohibition And Henden objected that the Parishioner ought to set forth his tith and not dispute the Title of the Parson or Viccar But the Viccar ought to come in the Spiritual Court pro interesse suo but notwithstanding that and notwithstanding the Viccar refuses to claim those tithes that always within memory they have been paid to the Parson yet a prohibition was granted And in the end upon this Composition power is reserved to th◠Ordinary if any doubt or obscurity be in the composition to expound or determine it And if he please to encrease the part of the Viccar And there was not power of diminution As by Hutton It is also usual in such compositions And they say that the word Alteraginum shal be expounded according to the use As if wood had always been paid to the Viccar by vertue of this word so it shall continue otherwise if not And so it had been ruled in the Eschequer And upon that president it was ruled accordingly in this Court And by them wood is minuta decima as in the case of St. Albans it was ruled Sir Richard Dorrel against Blagrave SIr Richard Dorrell was Plaintiff in action of debt upon an Obligation of 400 l. against Blagrave who demanded oyer of the condition which was that if Blagrave fulfilled and kept all Covenants and agreements in an Indenture c. between him and the Plaintiff which on his part is to be performed and kept Then the Defendant pleads that he had performed all the Covenants on his part to be performed c. And the Plaintiff shews that Blagrave the elder by his Indenture granted a rent of 20 l. per annum to one that he intended to marry for her joynture which was to commence after his death And that it was out of all his lands in Watchfield And afterwards by the same Indenture he Covenants that he was seised of a good and perfect estate in Fee simple of lands and tenements in Watchfield to the value of 40 l. per annum And he assigns for breach that Blagrave was not seised of an Estate in Fée of the lands and tenements aforesaid in Watchfield Whereupon the Defendant demurred And Heidley moved two questions First that admitting the breach here well assigned yet the obligation is not forfeited And then when the Defendant is bound that he perform all Covenants on his part to be performed and not to the Covenants broken As if Lessee for years rendring a rent at Michaelmas and the Annunciation covenant to pay the rent at a day and afterwards he fail and then a Stranger is bound that he perform all Covenants c. That extends to the failer of payment which is past here in our case And by the whole Court not allowed For by such means all assurances of England should be deluded And now in this case the Indenture and the Obligation shall be sealed and delivered at the same time But if the Obligation had been sealed afterwards at another day yet it was allowed For by Richardson Suppose that the Condition of the Obligation recites the grant c. And the condition is that if the land
charged be to the value of 40 l. per an that will be a good condition and the Obligation shall be forfeit If the condition was that the Land was then of such a value it was presently a breach of the Condition The second matter was whether the breach was well assigned or not And Richards Yelvert held that the breach is not well assigned There are two things in the Covenant one of the Estate another of the value Here may be a breach to be assigned upon the Estate but then it ought to be general For the grant out of all his lands and tenements in Watchfield is not a conclusion to him who had lands and tenements in Watchfield then the Obligation is forfeited As if one be obliged to make a Feofment to I. S. of all his lands which he had by descent in D. If he had no lands there it is not a forfeiture So here But if the rent was granted out of particular land as out of the Mannor of D. There the grantor is included to say but that he was seised of the Mannor of D. which was granted As to this diversity the word praedictis had relation to lands and tenements in Watchfield for no lands were named But the material thing is the value c. And if praedict goes to all the Lands then the breach goes to more than the Covenant and then it is not met with But admit that it goes to all yet it is all one For the intention of the parties was that the value of 40 l. joynture per annum shall be mentioned But the Plaintiff does not mention the value And it is sure that the word praedict may goe to all the lands in Watchfield or to lands of 40 l. And if the Defendant had rejoyned he might have rejoyned generally scil That he was seised of lands in Watchfield in Fee simple and he is not forced to shew his particular estate in the lands And admitting they had gone to tryal upon that issue what might the Iurors find And if they had found the value it is nothing to the breach That is more than was in their charge and so void But Hutton and Harvey on the contrary and said that the breach is well assigned And Hutton took this difference That if the Covenant was that he was seised of such particular lands of such value The breach ought to be assigned in particular also but where it is that he was seised of lands of such a value the breach is now well assign'd here it is a recital of lands of the value of 40 l. per an to that predict has relation And it does not appear to us if he had more lands in Watchfield than of 40 l. per an But these things were agreed by all First that the antient pleading in the time of H. 6. is now changed and the general pleading of all Covenants in the Indenture in form although that the affirmative is good And the Plaintiff ought to shew the particular Covenant broken c. Secondly in the principal Case if the Plaintiff had replyed that he was not seised of lands and tenements in Watchfield in Fee-simple without praedict or deque fuit seise de nullis terris vel tenementis praedictis in Watchfield of the value of 40 l. in modo forma secundum formam conventionis is a good assignment of the breach And the Defendant forced to shew the particulars The Plaintiff discontinued the principal sute and begins again but that he might not doe without the license of the Court as they said Because that they might agree afterwards to give Iudgement Taylors Case TAylor was Plaintiff against Waterford in debt upon an Obligation and the Defendant demanded Oyer of the Condition quae legitur ei in haec verba If the Defendant should pay such costs as should be assist at the Assizes without shewing for what the Obligation should be void And the Plaintiff replies that post confectionem Obligationis Pasch .. 4 Car. Com. Banc. the aforesaid words were written upon the Obligation and the truth is that they were endorsed upon the Obligation by memorandum after the Delivery And Atthowe moved that the Plaintiff might not reply in that manner because that when Oyer of the condition was demanded that was entred for a condition and so was admitted by the Plaintiff And for that he is concluded to say the contrary But Serjeant Davenport replyed on the contrary And said first that the words of themselves will not make a condition It is Litletons case That some words doe not make a condition without a conclusion as what is contingent 39 H. 6. And admit that the words will make a condition yet they were written after delivery 3 H. 8. Kellways reports Hutton If there be an Obligation made of 20 l. if it be written upon the back of the Obligation before the sealing and delivery The intent of this Bond is to pay 10 l. for such costs That is no good condition Which Iustice Harvey only being present agreed And if any thing may be part of the condition it ought to be written before the sealing and delivery But it is no condition if it be written after And by them here is no conclusion but that the Plaintiff may plead that the words were written after sealing and delivery Termino Pasch Anno 5. Car. Regis Com. Banc. Mericke against King IN evidence to the Iury he who had purchased the land in question It was said by the Court he shall not be a witness if he claim under the same title Richardson said that the conveyance may be proved by other circumstances And the same reason was also agreed by the Court That if a Feoffment be made of a Mannor to uses that if the tenants have notice of the feoffment that although they have not notice of the particular uses their attornment to the Feoffees is good For the Feoffees have all the estate And Harvey said that so it was agreed in one Andernes's case Sir Richard Moors Case IT was said in evidence to the Iury. The case was that a man prescribes to have common in 100 acres and shews that he put his cattel in 3 acres without saying that those thrée acres are parcel of the 100 yet good And Hitcham said that so it was adjudged in this Court. And Richardson said it was an Huntingtonshire case Where a man alleged a custom to put his Horses c. And the custom was for Horses and Cows And adjudged good Hutton said there can be no exception to the Witness who is Cozen to the party to hinder his evidence in our law To which all agréed Clotworthy against Clotworthy THe case between Tenkely and Clotworthy was cited One grants an Annuity for him and his heirs to be paid annually at two usual feasts for 30 years which was to begin after the death of the grantor And it was agreed by all Richardson being absent that
action upon the case lies for retaining the servant of another And by them the retainer without being testimonial which is an offence against that Law is after the years of reteiner expired For so are the words of the Statute But they said that the Information was naught because that it does not appear that the Defendant did not retain him out of the Parish where they served before For the Statute says out of the City Town or Parish c. except he have a testimonial And the words secundum formam Statuti will not aid it And in the same Village or City c. The Statute does not require a testimonial because that there it was known c. And for these reasons after here said for the Plaintiff Iudgement was stayed if c. Jennings against Cousins IEnnings brought a Replevin against Cousins who avowes for damage feasant The Plaintiff replies that post captionam ante deliberationem he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum pleg c. Vpon which they demurred And by the whole Court the Replication is naught For Pilkintons Case was agreed to be good Law that the tender ought to be before pounding but any time before the impounding it is sufficient But here ante deliberationem implies that the Cattel were impounded and it is not shewn in certain that the tender was before And it was agreed in trespass That the Defendant may plead the Trespass to be involuntary and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute Whereupon Iudgement was given for the Defendant Butts against Foster THe Plaintiff in an Action upon the Case the Plaintiff declared That whereas he was a man of good fame carriage and behaviour and free from all blot or stain Yet the Defendant with purpose to draw his life in Question and traduce him amongst his Neighbours in presentia multorum c. crimen felonae ei imposuit ea occasione illum arrestari causavit et per spatium duarum dierum in custodia detineri coram Iohanni Pettyman uno Justic ad pacem c. duci procuravit nequisfime prosecutus est c. The Defendant pleads not guilty which was found for the Plaintiff And Hitcham moved in arrest of Iudgement that the Action would not lie And of that opinion was Hutton because that he did not proceed to indictment For there an Action of that lies in the nature of a Conspiracy But if an Action should lie here it would be a mischievous Case for by that every man would be deterred to question any person for felony And it was said by Hutton If one said You have broken the Peace and I will cause you to be arrested and procures a Warrant from a Iustice of Peace by which he is arrested No Action here will lye But Berkley on the other side said to the contrary and of that Opinion was Richardson Chief Iustice that the Action will well lye And by Richardson The Defendant ought to have justified that there was a Felony done and that he suspected him c. But he pleads not guilty And it does not appear by the Declaration what was done with the Plaintiff after he was brought to the Iustice of Peace and by that it shall be implyed that he was dismissed upon his examination And here the Plaintiff was imprisoned and carried before a Iustice of Peace which is an act done as well as in the case where there is an Indictment And an Attourney of the Court cited one Danvers and Webly's Case In that very case it was adjudged that the Action lay But it was adjourned to another day Champues Case OUnson makes his will gives 200 l. to Tho. Champues son of Jeremie Champues Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages or ages of 21 years And after wills that his Executor should enter into bond to the several parents to pay the several Legacies to the several Children at the ages of 21 years or their marriages And his Executor after his death gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage But in the Spiritual Court afterwards upon libell it was ordered that he pay the legacies presently Thomas being under age of tender years And for that Henden moved for a prohibition Richardson although the sute for a Legacy be properly in the Spiritual Court yet if there be an Obligation given for the payment of it it is not turned to a duty in the Common Law and then it is not tryable there This is one reason why a prohibition shall be granted Secondly another reason is because that they sentenced the payment of the Legacy against the Will and against Law and the Obligation here will not alter the case for it is given to another person not to the Legatee and then the Legatee notwithstanding the Obligation may sue in the spiritual Court But by Richardson it is all one for here the Will orders the Obligation to be made Which Hutton changing opinion and Harvey agréed For now because the Obligation is given if the sentence shall be given the party is liable to the Obligation also to perform that And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Executor to pay at the marriage or 21 years of age the several Legacies c. extends to the first Legacy of 200 l. to Thomas although it be coupled to the last Legacy which should be by a new and several Item And by that clause the intention of the Testator appears that the 200 l. which is given generally and no time of payment named It shall not be paid until marriage of 21 years of age And a prohibition was commanded to be granted NOte It was said by Richardson chief Iustice If a man had a way over the Land of another for his Cattel and upon the way he scares his cattel so that they run out of the way upon the land of the owner and the party who drives the Cattel freshly pursues them c. That in Trespasse he who had the way might plead this special matter in justification Green against Brouker and Greenstead IN Trover and reversion the Plaintiff declares That whereas he was possessed of a bag of hops and a bag of flax to the value of c. And that the Defendant found them and the third day of October converted them And the Defendants plead that Sandwich is an antient Village and that the custom of forrain attachment is used there as in London and that these goods were lost upon default in November and traverses absque hoc that they were guilty of any conversion in October Pasc 7 Car. Com. Banc. or any other time or day than the times before which are
good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
an advowson appendent be granted for life After the Lessee it becomes an Appendent again And so if a Mannor with the Advowson descend to two Copartners And the Advowson is allotted to one and the Mannor to the other If there the Sister who hath the Advowson die without Issue it is then appendant and yet there was a severance in perpetuity And Yelverton went to the Iustices of the Kings Bench to have their opinions And they all agreed that it was but a temporal disappendency during the life without doubt Bramston said the Mannor is granted and the Advowson by E. 6. to the Lord Saint Iohn to be held by several tenures The Mannor in Chivalry and the Advowson in soccage which is a strong presumpsion that the Advowson was in gross But the Iustices agreed that there may be several Services and yet the Mannor and the Advowson nor severed And a Mannor may be granted parcel to be held by one Tenure and parcel to be held by an other Tenure and yet remain intire And afterwards verdict was given for the Plaintiff c. Viner and his Wife against Lawson VIner and his Wife libells against Lawson in the Councell of York for a promise to pay 600 l. to the Wife for her Mariage And suggested that they could not precisely prove it by one witness that they might have remedy at the Common Law But Lawson denyed the promise upon his Oath and yet they proceeded and Lawson prayed a prohibition and it was granted For if it may be proved by some witnesses then it is tryable by an Action of the Case c. And so the Iurisdiction of the Common Law is ousted Abrees Case MOre of the Case which you saw before c. Henden argued that that release is but special and that it extends only to errors And first for that the intention of the parties is principally to be regarded And ex praecedentibus consequentibus optima fit interpretatio The precedent clause is only a release of errors and then the consequent suits And in the last clause release all Actions and suits of error before Secondly a release is particular and may be by inference of other words have a general sense yet particular construction shall be made Nisi impediatur sententia or intentio partium For that also Suits in the middle of the clause shall have relation to the other words And to that purpose is 28 H. 8. Dyer 19. A Grant to the Lessee that he shall have the Rues for hedges by the assignment of the Bayliff of the Lessor and for necessary fuel to burn And the opinion of the Court was that he should have the fewel also by assignment 9 E. 4. 43. 6. A man submits himself to the Arbitrament of I.S. de omnibus actionibus personalibus sectis querelis And it was ruled that that word personal refers to all And the Case in question is the very Case as that in reason 10 H. 7. 8. A man grants the Custody of his Park and all the Windfalls c. And it seemed there that the grant of Windfalls is absolute for that that the intent cannot be otherwise Pasc 36 Eliz. banc Roy. Betwéen Pidgeon and Gibson Norff. The Case upon the special verdict was in Trespass and Pidgeon the Father makes a feoffment to his younger son by which he grants thus Omnia illa messuagia mea tenementa in East Bockham that late were Patris mei and since in the Tenure of N. D. and C. And it was adjudged that that land did not pass by that Feoffment For where particular words are in the end the middle shall never be taken general And so also 8. rep 150. Althams Case There it was resolved that where it had particular words there all shall be of the same nature c. Thirdly expende circumstantias intentio nihil intelligetur which may be intended also in Suits more than in actibus For will you have Action particular and Suits general And so the intention appears in the first word Errors and the subsequent are but declaratory And although that Suits is lastly put in the second Clause yet there it is not but a surplusage And that which is not released by the first Suit cannot be by the second For it is not but a repetition of that which was before Richardson the words are All Writs Actions and Suits by error Without question it shall be intended but errors Or if it be so And all Actions and Suits of error It cannot extend but to errors Hutton In that release there is not any word of debt and therefore it seemed that the intention was not to release other actions but errors And it was adjudged in this Court in a Writ of Annuity A release was pleaded that the Plaintiff acquitted him of one payment for half of the year and released to him all Actions Suits and Demands And adjudged that that release does not bar him but of the arrearages of a year A Quid juris clamat IN a Quid juris clamat The Tenant was adjudged to Attourne And the question was whether he might Attourne without being sworn in Court to do fealty to his Lessor And Brownlow chief Prothonotary said That all the Presidents are that he shall Attourne and do fealty by which the Tenant was sworn to do fealty and the fealty was taken for an Authority Beare and Hodges Case MOre of Beare and Hodges Case you may see before Davenport said that a man cannot distrein upon an actual demand which ought to be to the person upon the Land And for that the distress is tortious and damages by the Common Law are given to him who made the Replevin But to the Avowant damages are only given by the statute of 7. H. 8. cap. 4. 21 H. 8. 19. Now the Rent is not in question for it was taken to pay it but the dammages and the Tenant had done all that he can and it is not reason that he pay any damages And the diversity between a Replevin and debt for Rent after such a tender That a local tender excuses the damages appears H. 4.4 Tidthorps Case 38. E. 3. 13. Debt An Obligation is indorsed to pay the money at Easter and he tenders it at the day to the Obligee who refuses it because he lives at another place And now because that no place was named for the payment the tender was good and shall excuse him without any other demand of the damages Littleton said that a tender of Homage excuses until a new demand 21 E. 4.4 And there a difference seemed to some between fealty and homage But Bryan said that a tender of fealty also until a new request to his person excuses damages because that fealty may be done by Attourney 22 H. 6.31 7 E. 4.4 puts the case of Rent to the same intent Cook Littleton 7. 28. Maunds Case The third resolution is a ground for our Case There it is said if Terre-tenant
tender a Rent seck upon the Land The Grantee cannot demand it upon the Land in the absence of the tenant that it ought to be to the person upon the land For what can the tenant do more than he hath done already And the Statute of Westminster 2. cap. 9. gives ease to the Tenant When the Lord distreins immoderately and unnecessarily For an immoderate distress may be the ruine of a tenant And therefore the Statute says Nec habeat Capitalis dominus potestatem distringendi tenentes in dominico suo dum praedict Tenens offerat ei servitia debita consueta 30. Ass Fitzher N. B. 69. G. If Cattel be distreined damage feasant and tender of sufficient amends is made The Distreiner is liable to damages for the detinue although not for the distress And to the same purpose is Cook lib. 8. 140. Carpenters Case 5. rep 76. Pilkintons Case c. The second question is whether a Bayliff without command of the Lessor when he had refused to take the Rent upon a Lawfull tender may distrein And it seemed that he cannot And the second resolution in Pilkintons Case came to that question That a tender of amends to a Bayliff amounts to nothing And the question upon a Herriot is Whether the Lessor may distrein without declaring his election and it seemed that he cannot For that is no Heriot which may be seized As the Case in one Woodland and Mantles Case there it is certain And because the Law vests it in him immediatly after the death of the tenant But so it is arbitrable and cannot vest before Election and also the Tenant does not know which he ought to provide before and declares his election And it was demanded for that it is not reasonable that he shall be lyable to a distress and cannot by any possibility prevent it 2 Rep. 36. Sir Rowland Howards Case I cannot finde any president where an Avowry is made upon a disjunctive reservation without allegation that he had declared his Election Although that the Lessor in that Case may distrein without declaring his election yet the Bayliff cannot for he cannot justifie as Bayliff for an Arbitrable thing without express command Acceptance of Rent by a Bayliff cannot alter the Tenancy For although that he had power in Law to receive the Rent yet he cannot by Law alter the Tenency by his acceptance without the Lords Command Dyer 222. A Bayliff may demand Rent but cannot enter for non-payment without express command And when he avows he cannot avow any thing which doth not appertain to his office And for that that it is an arbitrable thing which cannot be transferred from the person of the Lessor his Heirs or Assigns that distress is well taken c. If a Writ of Error was brought in this Court and the day of the return is long to delay the party as if it be more than the next Term the Court may award Execution quod nota c. Gammons Case ONe was obliged in the Ecclesiastical Court not to accompany with such a woman unless to Church or a Market overt And afterwards he was summoned to the Ecclesiastical Court to say whether he had broken his Obligation or not And Ayliffe moved for a prohibition which was granted For that that the forfeiture is a temporal thing And it does not become them in the Ecclesiastical Court to draw a man in examination for breaking of Obligations or for offences against Statutes Dame Chichley against Bishop of Ely DAme Dorothy Chichley brought a Quare impedit against the Bishop of Ely and Marmaduke Thomson And declared that Thomas Chichley was seized of the Advowson of the Church of Whiple in Cambridgeshire And presented Marshall and died seized and the Advowson descended to Thomas his son who by Indenture granted it to East and Angel and to their use and the use of the Plaintiff for life And he being seized of the Church it became void c. But Thompson pleads that he is Parson imparsonee ex praesentatione of the King And confessed that he was seized as aforesaid but that he was seized also of other Lands in Capite and dyed and that his son Thomas was and now is within age which is found by Office And so the King by his Letters Patents after avoydance presents Thompson who was instituted and inducted Absque hoc that Thomas Chichley granted by his Indenture to the use of his wife c. And the Plaintiff replies null teil record Vpon which the Defendant demurs Atthowe for the Defendant Although the Plaintiff may have a Writ to the Bishop when his Title is traversed And admit there be no Inquisition Yet the King may present before Office found 20 E. 4. 11. An Advowson being void is not but a Chattel and for that it is vested in the King without any Office And you may see many Cases to that purpose Richardson said If it be not by the Statute 32 H 8. The King may grant Wardship of Land before Office Atthowe Also there is Traverse upon Traverse which should not be Hendon argued for the Plaintiff And he says he is Parsona imparsonata and does not say before the purchase of the Writ For the Incumbent by the Statute of 25 E 3. cap. 7. cannot plead unless he be Incumbent ante diem impetratitrationis brevis unlesse he be Incumbent pendente lite he cannot plead c. Hutton If one be presented instituted and admitted before the Writ and inducted after and before his Pleader He may plead well And it was resolved by the whole Court That the pleading of the Parson was good without the words Ante diem impetrationis brevis And that all the Presidents are according to that But more afterwards c. Alice Readngs Case ALice Reading brought an Action upon the Case against I.S. And de-declared whereas she was a Maiden and had many Suitors the said I. S. said That Alice Reading was with childe and did take Physick to kill the Child Vpon which words divers men refused her And upon not guilty pleaded it was found for the Plaintiff Finch Recorder moved that those words were not actionable For that that it is not said precisely that she took Physick to kill the childe and that the Physick might have such an operation without her desire or purpose and also there is not any Suitor in special named And as it is in Anne Davyes Case 4 Rep. 16. 6. where it ought to be proved precisely to the Iury that such a one was Suitor and refused her But here there was no such proof And he alleged in the Case of Sell which was adjudged Where one declares that he endeavoured to mary a Woman and that she refused him upon slanderous words And it was adjudged against him For that that a Conatus is not sufficient but yet Iudgement was given for the Plaintiff without any reason alleged Cook lib. 4. 16. 6. The Lady Cockins Case The Case of a Recusant
the Replication cannot be taken by intendment and it cannot be amended For it is not vitium scriptoris nor is it so much as ipsa devastavit But if it had béen said that praedict Margery had Goods in her hands sexto Decembris et devastavit then it should have béen good Crook She said that she delivered Goods to another Administrator and then he replies that before that time devastavit It cannot be intended that any other Devastavit but the Wife And Hutton said that that séemed to him to be good But Yelverton replyed that it did not séem to him to be good and it cannot be intended Margery The Replication is the Title of the Plaintiff As upon a scire facias without a precedent Iudgement For the Duty of the Plaintiff is when the Defendant had confessed himself to be subject to his Charge one time As in debt upon Arbitrement and the other pleads no arbitrament made And in point of arbitrement to pay mony It is not sufficient for the Plaintiff to say That the mony was not paid at the day But he ought to affirm that the Defendant had paid it c. And so there also Margery is not named affirmatively in all the Replication For if her name had begun any sentence then she might be intended And although it be now after verdict yet the verdict will not help So it was adjourn'd for the present Robert Barret against Margaret Barret his Mother RObert Barret brought an action of debt against his Mother for an Obligation made to him the Condition whereof was thus That she shall perform all that part of her Husbands Will that of her part is to be performed and observed concerning the Goods c. And that she shall use occupy and enjoy all the Lands and Tenements to her demised according to the true intent and meaning of the Will The Defendant recites the Will which was that her Husband gave her one Messuage and Land for her life Excepting all the Timber Trees and Wood. And further will'd That she make no waste nor estrepment in the Houses Lands or Timber-trees nor her Assigns nor any other for her And further will'd That if she shall happen to do any such waste That then she shall pay to Robert Barret the double value of that to which the waste shall come or amount unto Being indifferently valued by two chosen by themselves And furthermore he willed That there ought to be forty load of Wood per annum taken for fewel upon the Land demised of such Trées which have been used to be lopped for 30 years before And so she pleaded that she performed the Covenant in all c. And the Plaintiff replies that the Defendant had decouped a Grove of Wood containing by estimation one moyety of an acre and 6 Elmes and 20 Beeches and Sallows and Maples and Thorns being of the age of 33 years Whereupon the Defendant demurred But Atthow argued for the Defendant and he said That there is not any breach of the Obligation alleged all Timber-trees are excepted And because when she cuts them there is no waste but a trespass to Robert And the Will is That she shall not do waste For if she had entred into other Lands and cut Trees out of the Lands of the demise that had not been a Forfeiture of the Obligation But it shall be objected That then that clause had been void if his intention shall not be construed of waste to be done in the Trees Then the second breach is not well assigned For the words are If she does waste that she pay the double value And then although that waste be done You ought to allege that she did not pay the double value for if she had paid it her Obligation is saved But Hitcham the Kings Sergeant on the contrary The breach is well assigned The Case rests upon the words of the Obligation and the intention of the Will and then the Intention will appear That she cannot commit waste in the Trees although it be excepted And I conceive it is within the words for it is that she occupy and enjoy the Lands demised as aforesaid Now if I grant my Land I ought to demise my Trees also And if I be obliged not to commit Estrepment in my Land If I pull down a House it is a forfeiture of the Obligation For if Tenent at will pulls down no waste lies against him But he shall be punisht by an action of the Case for it is destruction and waste at the Common law In any of the Houses Lands or Timber trees And what Timber trees may be meant But those are excepted when all are excepted Dyer 323. Pl. 29. After the Statute of 23 H. 8. Nothing was left in the Feoffees al use One would stand seised with his Feoffees to the use of I. S. And adjudged that that is a good demise of the Land Ed. 6. conveys the Manor of Framingham in fee farm and afterwards grants the Fee farm and the Grantee demises his Mannor of Framingham the Fée farm passed for that that it was usually called by that name And Thorntons Case 3 El. He gives all his Land that he purchased of I. S. And he did not purchase any of I. S. but I. S had conveyed it to I. D. of whom he had purchased And adjudged good Sir Edward Cleeres Case Co. lib. 6. 17. So there it ought to be of such waste as he in his apprehension esteemed to be waste But it may be objected that she did not pay the double value But I conceive That if you will that that be paid yet the Will is broken For if you will by one clause that she commits not waste and by another if she do that she pays the double value and she does not pay it she breaks two clauses That ought to be pleaded by you If the Statute prohibit a thing and if he offend against it that he shall pay c. I say that he may be indicted upon the very Prohibition So that you would shew this in excuse of Waste But I conceive that it is not excused upon the Statute of H 6. Richardson chief Iustice All the Obligation goes to the intention of the Will which may be collected by circumstances out of the Will And then the sir Elmes are meerly the others not the Sallows Maples Beeches and Thorns by which the intention is broken Now the Law will not allow that to be waste which is not any ways prejudicial to the Inheritance So when the Husband said she shall not commit waste It was not his intention to restrain her from that which the Law allows Thorns in some Counties are adjudged waste where Trees are scant But a Grove ordinarily is Vnder-wood And then if she committed waste the Husband took upon him to impose the penalty And although that she enter into an Obligation yet it is that she is restrained by the Will of her Husband and he intended it for a
Executor shall have the Land and yet the heir cannot have the rent Harvey In this Court it was the case of one Asham who had a purpose to enclose a Common and one Tenant was refractory wherefore Asham made him a Lease of the soil in which he had Common and afterwards he surrenders it again And it was agreed that the Common was suspended during the term Crook A Lease for years is by the contract of both parties and the surrender may revive the rent but by the surrender the arrearages shall not be revived And suppose that the surrender was by Indenture and a recitall of the grant that is a grant and then it is expresse that by the surrender their intent was that the rent should be revived 3 H. 6. A surrender determines the interest of all parties but of a stranger But it is determined to themselves to all intents and purposes Crook It was one Cooks Case against Bullick intrat 45 Eliz. rot 845. Com. ban It was there adjudged and this diversity was taken If one devise Lands in Fee and after makes a Lease for years of the same Lands to the Devisee to commence after his death it is a countermand of his will if the Lease was to commence presently it is no countermand and the reason is In the first case both cannot stand in Fee the Devise and the Lease But when the Lease commences immediately he may outlive the Lease And this Case is put upon the intents of the parties But Henden This Case is also adjudged If two Tenants in Common are and one grants a Rent charge the Beasts of the other are not distreinable But if a Tenant in Common takes a Lease for years of another his Cattel are discharged again But Yelverton and Hutton doubted that Case and so it was adjourned to be argued c. Thomsons Case THompson libells for delapidations against the Executors of his predecessor and Henden moved for a Prohibition for that that Thompson is not incumbent for his presentment was by the King ratione minoritatis of one Chichley and the King had not any such Title to present for where the King mistakes his Title his Presentment is voyd and he is no Incumbent 6 Rep. 26. Greens Case And Sir Thomas Gawdys Case where the King presented jure praerogat when he had another Title and the present Action was adjudged voyd and whether he is incumbent or not that shall be tryed But by the Court a Prohibition was denyed because that he was now incumbent And the Iudges would not take notice of the ill Presentment of the King But in case of Symony the Statute makes the Church voyd and then the Iudges may take notice of that and grant a Prohibition if the Parson sues for Tythes But if a quare impedit be brought and appears that the King had not cause of Presentment then a Prohibition may be granted which also was granted by all the other Iustices Richard Youngs Case RIchard Young was Demandant in a Formedon and admitted by Prochein amy and the Warrant was allowed by a Iudge and it was certified and entred in Gulstons Office in the Roll of Remembrance but it was not entred in the Roll as the course in the Common Bench is and after Iudgement is given for the Plaintiff And for that Formeden the Defendant brought a Writ of Errour and removed the Record and assigned it for Errour And before in nullo est erratum pleaded And Davenport moved that it might be mended for he said that there was a difference between that Court and the Kings Bench as it is in the 4 Rep. 43. Rawlins Case for the Entry of the Roll was Richard Young came et obtulit se per atturnat suum where it should have been proximum amicum And the Entry in the Remembrance Roll was That he was admitted per Gardianum Richardson said that all the Books are That an infant ought to sue by Prochein amy and defend by his Guardian and so is a Demandant But the Court agreed That that should be amended according to the Certificate As a speciall Verdict should be amended according to the Notes given to the Clerk And Davenport said that he would venture it although it was by Guardian for he held it all one if it were by Guardian or by Prochein Amy. See afterwards more of this The Vicar of Cheshams Case THe Earl of Devonshire had a Mannor in the Parish of Chesham in Buckinghamshire which extended to Latmos where there is a Chapell of Ease and the Vicar of Chesham Libells for Tithes against one of the Tenants of the Mannor And Henden moved for a Prohibition for that that the Earl prescribed that he and all his Tenants should be acquitted of all the Tythes of Land within Latmos paying 10. s. per. ann to the Chaplin of Latmos And he said that such a Prescription is good as it was adjudged in Bowles Case And a Prohibition was granted Wildshieres Case IT was agreed by the whole Court That for Executing of a Capias utlagatum or for a Warrant to Execute it or for a return of it no Fee is due to the Sheriff c. It was afterwards agreed upon an Habeas corpus sued by Wiltshiere who was imprisoned being under-Sheriff by the Lord Chamberlain for arresting Sir George Hastings Servant to the King upon a Cap. utlagat That he may well doe it upon the Servant of the King for it is the Sute of the King himself and he is sworn to serve it and there is no cause of the Commitment returned but only a recitall of the Commitment unless he was released by the Lord. And the Iudges took exception to that and said that it ought to be unless he can be released by the Law and said if no cause be returned they ought to dismisse the Prisoner And they ordered the Keeper to inform the Lord Chamberleiâ— and that their Opinion was and so was the Opinion of all the Iudges of England That he who procured the Commitment of the under Sheriff ought to pay all the Charges and Expences Quod nota Wentworth against Abraham THe Lord Wentworth brought an Action upon the Case against Abraham upon an Assumpsit and declares that the Defendant 1 die Maii Anno Dom. 1625. in consideration that the Plaintiff would permit the Defendant to re-enter in a Messuage and Croft in which the Defendant had dwelt before promised that he would pay to him 30. s. yearly during the time that he should enjoy it And that he permisit ipsum reentrare and that he should enjoy it a year and an half which ended at Michaelmas 1626. And for that he would not pay 45. s. he c. And upon non Assumpsit pleaded it was found for the Plaintiff And it was moved by Davenport in Arrest of Iudgement for that that the Assize is to pay 30. s. Annuatim then before the Action be determined nothing is due and the Plaintiff cannot divide the
the Feoffees shall make an Estate of the same lands to all his Sons except H. And if all his Sons dye without issue that then the remainder shall be to an Estranger Hutton said That because H. was not excepted in the last clause that he had an Estate Tayl. The Maior and Commonalty of Winchesters Case THe Bishop of Winchester grants to the Maior and Commonalty of the same City That they might Edifie in the vacant places of the same City and inhabit there And that Grant was confirmed by the Dean and Chapter and the Opinion of Hutton was That notwithstanding that Grant the soil is to the Bishop and by consequence the Houses Quia quioquid plantatur solo cedit solo And that grant does not enure but as a Covenant or Licence and not otherwise One Tomkins Case IT was said by the way That if a man be in Execution for the Debt of another man in the Fleet the King cannot take him into his Protection into his Wars out of Prison untill the Debt be paid because that he is in Execution for the said Debt and the letting him out of Prison is to let him out of the Execution which the Law will not suffer But if he was in Execution in the Fleet or other Prison for the Debt of the King there he may discharge him and take him into his Protection or into his wars for he may well discharge his own Debt Skore and Randalls Case THe Case was thus A Lease was made to Robert Chichester for 99 years to him his Executors Assigns or Administrators if Robert Chichester or John Bellew or James Bellew or any of them shall so long live yielding and paying therefore yearly and every year unto the said Randall his Heirs and Assigns the sum of 40. s. at the four most usuall Feasts and also yielding at or upon the death of Chichester Bellew or Bellew his or their best Beast in the name of an Herriot or 40. s. c. Provided that if Bellew or Bellew dye in the life of Chichester no Herriot to be paid after their deaths A Distress is taken upon Skore the Assign of Chichester for his own Beast Ashly The Question is whether his or their refer to Chichester Bellew or Bellew only or may refer to Executors and Assigns of Chichester the Lessée And so whether the Beasts of the Assignée may be taken for an Herriot And it séemed to him not for that that a Reservation ought to be taken strictly 27 H. 8. Comment 171. 21 H. 8. Dyer 45. So that if the words are words of Reservation or of Declaration which he will favour they shall not be extended further than the words c. Bing contrary And he conceived that the Lessee or his Executors before Assignment ought to pay the Herriot and afterwards the Assignee for he who took the benefit ought to sustein the burthen Sic transit res cum onere and none took the benefit but the Assignee or his Executors And that is so strange an intendment that in the Habend it is not named who shall yield or pay but it is intended he who had the land and that Herriot comes in in the render of the Rent and render does suppose a Prender And it is coupled with the reservation of Rent and it may be granted that the Tenant shall pay the Rent And then it immediately followes And also his or their best c. which then ought to be the Beast of him in possession Secondly The other Exposition should be impossible to be performed for none shall be charged but those that are either privy in contract or Estate and the Executors of Chichester are not privy to any and Bellewes are the persons only named by the limitation of the Estate and not any wayes privy It may be said that the Tenant shall pay the Beast of Chichester and so his Beast But no man may give the Beast of another And if it be said That he may buy him then the Property should be altered and it would be his own Beast Yielding his or their Beast It cannot be intended that Bellew or Bellew might yield but the Lease is granted to him his Executors or Assigns then his or their Lessee or their Executors or Assigns And you cannot have a forraign intendment of Bellew or Bellew Then the Exposition is good that the Herriot ought to goe with the Estate Hutton That Reservation is not of a thing that agrees with the Rent but it is of a collaterall matter and it is of a thing against common right and for that it ought to be taken strictly and to be the Beast of him that dyed for if it had been Yielding the best Beast of a stranger it had been good but thâ—…e is Election of the Herriot or of 40. s. Then by Assignment one part is become impossible for the Assignee cannot pay the Beast of Chichester but the Fourty shillings he may pay And because the Distress may be taken for the 40. s. therefore the Avowry is naught Richardson If Chichester dye Tenant then his Beast shall be paid And his Executors if the interest come to them shall cause that it be paid for Chichester made the Contract and that goes to his Executors but not to the Assigns And for the 40. s. that is demandable against the Executors of Chichester Yelverton The case is doubtfull but I incline that the Avowry is not good for the words in the Reservation of the Heriot are speciall If it had been said And also yielding after his and their death his or their best Beast There it would be the Beast of the Lessee his Executors or Assigns But also he had sever'd it from the Rent and had taken out of the course of the Estate for otherwise it concurred and went with the Rent But also he had made it collaterall for it is to be paid after the death of the stranger For his or their cannot be carried but to the persons named by the limitation And the Proviso explains that that it should not be payed after the death of the Assignee But if it had been rendring the best Beast after the death of the stranger It should be payed by him that had the Inheritance But he held for the 40. s. that the Executors shall not pay it Perryman against Bowden PErryman brought a Replevin against Bowden and Brown who made a Recognisance in the name of Bedle. And the Case was thus A rent is granted payable at Michaelmas and the Annunciation And if it be in arrear by 40 daies after any day of payment upon the demand at such a place he might distrain And it is not shewed that he demanded it And for that a demurrer Atthowe it is not requisite to shew a demand for the distress it self is a demand And it was adjudged in this Court If a Rent be granted and that he may without demand distreyn and good without demand And the words if it be
30 l. by the year to the use of Richard and Anne Daughter of the Bishop after mariage for their lives Which Lands and Tenements to the value of 30 l. per annum shall be appointed and limitted out by meets and bounds and put in writing before Hillary Term next and delivered to the use of Edward Thomas and Walter Thomas for their lives which were Vncles of Richard if Richard and Anne had Issue male When the Survivor of them dyes without Issue male or if all the Issue male dye without Issue male Then the use to Edward and Thomas to cease Also there be two Conditions the one Precedent the other Subsequent And the precedent Condition makes that a contingent Remainder But Atthow would have that settled without Issue born to Richard c. But if all their Issues dye before the Survivor It can never be setled For the words scil at the death of the Survivor c And then before the contingency happen it cannot be setled If the contingency had been void at the time of the limitations I agree it should be void Now if the particular Estate be contingent all that depends upon it is contingent also And Edward and Walter took nothing but after the death of the Survivor of Richard and Anne without Issue And then it is as in the Case of Cook 10. 85. A Feoffment to the use of A. for life and after the death of B. to the use of C. and his Heirs That Remainder is contingent Because that B. ought to dye in the life of A. or the Remainder shall never vest So also to Richard and Anne for their lives and after their deaths without Issue to Edward and Walter And if they ever take an Estate it ought to be after their deaths c. Secondly For the uses of the Residue To the use of Richard for life and if he dye living A. without Issue male ingendred of the body of A. Then to A. for life that is contingent then of the residue after the death of Richard to the use of Edward Walter if Richard had not issue of Anne at the time of his death Whether it vests after his death see before c. That is contingent also And it is contingent whether he will dye without Issue male As if a Feoffement be made to the use of one for life and if he had no Heir of his body to another in fee that is contingent during the life And he had not but an Estate for life by that limitation and then that is destroyed by the Fine also And now if nothing was in Edward nothing can be setled in his Son And then those contigent Remainders being destroyed there is a good estate in the Purchasors and this special verdict was not found for any doubt but for the intricacy of the Indenture And therefore he prayed Iudgement for the Defendant Harvey against Fitton HArvy the Administrator of Edward Fitton brought an Action of debt upon an Obligation of 200 l. against Edward Fitton and declares of Letters of Administration committed to him by the Archbishop of Canterby c. The Defendant says That the Intestate became possessed of Goods in Chester within the County of York And before the purchase of the Writ and after the death of the Intestate I. S. Chancelor of Chester committed Administration to Richard Fitton of all the goods c. And that he released to him and upon that de murs Bramston He doth not shew what person that Chancellor was or how he had that Authority to grant Administration quod fuit concessum per Cur. That for that it was naught And it was agreed that the Prerogative of Canterbury does not extend to York Dame Buttons Case DAme Button was Administratrix of Goods and Chattels of her Husband And the Sisters of the Husband would compell her in the Prerogative Court to make Distribution And after sentence given prays a Prohibition and divers causes were alleged But Richardson rejected all unlesse it was upon the Statute 21 H. 8. And upon that Statute he said that upon conference with the Iudges He conceived that it was in the discretion of the Court to grant a Prohibition in such Cases or not c. Hutton said That a Prohibition in such cases ought to be granted For he said if Sisters may come in for portions by Distributions where Cousins cannot And Sisters have not any colour to have Distribution For although that the Statute of Magna Charta cap. 18. extend a pueris Yet not All Freres or Sisters And the Ordinary although heretofore would compell an Executor to make Distribution yet now they never meddle with an Executor And hath not an Administrator the same power as an Executor And in Isabel Towers Case a Prohibition was granted For when they have executed their Authority one time lawfully they cannot make a Distribution Harvy to the same intent The Ordinary had not such a power upon the Goods of any especially where Administration is granted For then they have put the Property in the Administrator to pay debts c. And there may be a sleeping debt which by that means shall never be satisfied For if the Ordinary might grant Administration and afterwards make Distribution His Authority is not warranted and he does and undoes and so mocks the Statute In Flames Case it was said that if they are not permitted to make Distribution They will compell it before Administration shall be granted But they have not any such power for he ought to commit Administration if it be demanded And it was so in one Clarks case In which the whole Court was of opinion But Yelverton would not shew his op'nion in the power of the Ordinary But he consented to a Prohibition without other cause Iohn Owens Case Mich. 3. Car. Com. Banc. IOhn Owen lived apart from his wife And upon petition of the Wife to the Iustices of Assise for maintenance they refer'd it to the Bishop of Bangor who ordered that he should pay to his Wife 10 l. per annum which was afterwards confirmed by decree in the Councel of Marches of Wales And because that Iohn Owen disobeyed that Decree and did not pay the 10 l. per annum the Councel sent a Messenger to apprehend his body and caused his Goods and the profits of his Lands to be sequestred And Henden prayed a Prohibition for that that Alimony was not within their instructions Richardson demanded of him if they could grant Prohibitions If they meddle with a thing which belongs to Ecclesiastical power where they themselves have power Harvey was of the same opinion For this Court should preserve other Courts in order Yelverton said For the sequestration of the Lands they could not do that Richardson They have not any power to sell the goods The Ecclesiasticall Court is the proper Court for Alimony And if the person will not obey they cannot but excommunicate him And by Yelverton when that comes to them
it shall be lawfull to the Lessor to reenter without any demand of the Rent The Rent is in arrear by 40 daies after the Feast of Saint Michael and no demand of the Rent made by the Lessor Whereupon the Lessor entred If that Entry were lawfull was the Question And by Hutton it is not For a demand of the Rent is given by the Common law between Lessor and Lessée And notwithstanding the words without any demand it remains as it was before And is not altered by them But if the Rent had béen reserved payable at another place than upon the Land There the Lessor may enter without any demand But where no place is limitted but upon the Land otherwise it is Richardson to the contrary For when he had covenanted that he might enter without any demand The Lessée had dispensed with the Common law by his own Covenant As the Lessor might by his Covenant when he makes a Lease Sans impeachment dl waste He had dispenced with the Common law which gives the Action of Waste Harvey of the same opinion If a Man leases Lands for years with a Clause That if the Rent be in Arrear by forty daies after the day of payment That the term shall cease If the Rent be in arrear by the said forty daies after the day of payment The Lessor may enter without request Conyers's Case ONe Thompson makes a Lease for forty years to Conyers by Indenture and in the same Indenture covenants and grants to the Lessee That he shall take convenient House-boot Fire-boot and Cart-boot in toto bosco suo vocato S. wood within the Parish of S. And those Woods are not parcel of the Land leased but other Lands Atthow I would fain know your opinion if that Grant of Estovers out of an other place than was the Lease be good Also what Estate the Grantée of House-boot and Fire-boot shall have by that For the words are from time to time and hath limited no time in certain And lastly If the Lessée be excluded to have House-boot and Fire-boot in the Land leased or if he shall have in both places Also if the Executors by that Grant to the Lessee shall have House-boot and Fire boot And it was agreed by Hutton and Harvey That that Grant was good and that the Grantee shall have it during the Term. And that that grant does not restrain him But that he shall have house-boot and fire-boot in the land leased also Atthowe If there be no great Timber upon the land leased and the houses are in decay if the Lessor ought to find and allow to the Lessée sufficient Timber for the making the reparations or if the Lessée at his own costs ought to find the Timber for the reparations of the house Hutton said That the great Timber shall be at the costs of the Lessor if no Timber be upon the land leased nor no default be in the Lessee in suffering the great timber to go to decay or to putrifie And it was agréed if the Lessor cut a tree and carry it out of the Land That the Lessee may have an Action of Trespass And if Stranger cut a tree the lessee shall have an action of Trespass and recover treble dammages As the lessor should recover against him in an action of waste Wakemans Case A Man seised of a Mannor parcell demesn and parcell in service devises by his Testament to his wife during her life all the demesn lands also by the same Testament he devises to her all the services of chief Rents for 15 years And moreover by the same Testament he devises the same Mannor to another after the death of his wife And it was agreed by all the Iustices That the devise shall not take effect for no part of the Mannor as to the stranger untill after the death of the wife And that the heir after the 15 years passed during the life of the wife shall have the services and chief Rents Jenkins against Dawson IN a Formedon the Demandant makes his Conveyance in the Writ by the gift of I. S. who gave it to ◠D. er haeredibus de corp suo legitime procreat And shewes in the Writ that he was heir to the Son and heir of I. D. Son and heir of W. D. the Donee And Hitcham demanded Iudgement of the Writ for this Cause And the Court said that the Writ was not good for he ought not to make mention in the Writ of every heir as he does here But he ought to make himself heir to him who dyed last seised of the Estate Tayl as his Father or other Ancestor Also that word procreat ought not to be in the Writ but Exeuntibus But the Court thought that it might be amended And Harvey said If false Latin be in the Writ it shall be amended as if in a Formedon the Writ be Consanguineus where it should have béen Consanguineo Hutton and all the other Iustices said that that might be amended by the Statute Saulkells Case IN an Attaint the grand Iury appeared and the petit Iury and the parties also and one Rudstone Master of the Servant in the Attaint came to the Bar and there spoke in the matter as if he had been of counsell with his Servant Crawley said to him Are you a party to this Suteor for what cause do you speak at the Bar And he answered that he had done this for his Servant And if he had done any thing against the Law he knew not so much before Hutton You may if you did owe any mony to your Servant for his wages give to his Counsel so much as is behind of it and that is not maintenance Or you may go with your Servant to retein Counsel for him So that your Servant pay for his Counsel But that that you have done is apparent maintenance And the Kings Sergeant prayed That he may be awarded to the Fleet and pay a Fine And Hutton upon advise sent him to the Fleet. Wiggons against Darcy DArcy was in Execution upon a Statute Merchant and his Body and Goods were taken And the Conisee agreed that the Conisor should go at large and he went at large Atthowe moved If that were a discharge of the Execution or not And Richardson said it was For his imprisonment is for his Execution And if he release his imprisonment he releases his Execution And so if two men be in Execution for one Debt and the Plaintiff releases to one of them That is a release to both And so if one had two acres in Execution and the Plaintiff release the Execution of one of them It enures to both Harvey on the contrary opinion Yet I will agree That if a man be one time in Execution The Plaintiff shall not another time have an Execution For after a cap. ad satisfac an Elegit does not lye But in the Case where the Conisee does release the imprisonment only and not the Execution for it is
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
arrear that the Remainder shall be to a Stranger that Remainder is not good Hutton said that in my opinion my Brother Atthow spoke well and so it was affirmed Bateman against Ford. AN action of the Case was brought against Ford who had called the Plaintiff Thief and that he had stollen from him a yard of Velvet and a yard of Damask The Defendant said that he said that the Plaintiff had taken and bribed from him as much mony as he had for a yard of Velvet and Damask and justifies Hitcham said that the Iustification is not good For the words that he justifies do not amount to so much as to affirm a Felony in the Plaintiff where the Plaintiff counts that the Defendant slandered him of a Felony Hutton said What difference is there when you say that I have bribed your Horse and when you say that I have robbed you of your Horse Henden one may take Goods and yet it is not felony Termino Pasc Anno 4. Car. Regis Com. Banc. Norris against Isham IN an Eject firm by Norris against Isham These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case That an Eject firm cannot be of a Mannor Because that there cannot be an Ejectment of the Services But if they do express further a quantity of acres it is sufficient It was said by Crook Iustice and not denyed That if a Lease is made of 5 acres to try a Title in an â—…eject firm And of the 3 acres he will make a lease But in the other a he will not If the livery be in the 3 acres the other 2 does not pass Part of the Evidence was That the Countess of Salisbury being seised of the Lands in Question makes a Lease of them by words of Demise Bargain and Sale to Iudge Crook for a Month to begin the 29 September habendum a datu and it was deliveted the 3 of September And the same day he bargains and sells the Reversion Davenport Because that no Entry appears by the Lessees by vertue of the Demise he submitted to the Court If there was any such Reversion in the Grantor he bring in possession And this difference was a greed That if one demises Lands for years and Grants the Reversion before Entry of the Lessée The Grant is void As it is in Saffins Case Cook 5. 12. 46. But if a man bargain and sell for years and grants the Reversion before Entry of the Lessee it is good For the Statute transfers the Possession to the use As if a man bargain and sells in fee or for life and the Deed is inrolled The Bargainee is in possession of the Frank-tenement And so it is of a Lease for years which is a Chattell And by Crook In the Court of Wards that very point was resolved Davenport Also there are words of Demise and Bargain and Sale before which the Lessee had his Election to take by which he would As Sir Rowland Heyards Case is But by Hutton and it was not denyed He should be in by the Bargain and Sale before Election For that is more for his advantage Further the Evidence was That George Earl of Salisbury made a Lease of those Lands which were a Mannor And makes a Conveyance from himself for life with divers Remainders and then to the use of the Daughter or Daughters of the said George And the heirs males of thrir bodies the remainder to the heirs of the body of the said George c. and had 3 Daughters to whom the Remainder The first dyed without Issue the 2 d. dyed having Issue male the 3 d. bargains sells all her half part and pur part to Edw. Earl of Salisbury Who now being seised of a third part of the Estate of Inheritance and of the other two parts for his life and the lives of the 3 Daughters suffers a common recovery by the name of the moyety of the Mannor And the doubt was what passed Richardson By that there is not passed but the moyety of the third part Hutton Crook and Yeiverton were on the contrary opinion and said that by that All the third part passed also Yelverton If a man be seised of the mannor of Dale and buys half for life of another in fee and makes a Feoffment of the half of the Mannor The moyety which he had in Fee shall pass And there shall be a forfeiture for no part Which was agreed by the Court. If a man be seised of the third part and grants the moyety perhaps the moyety of the third part only passes But he is seised of all Richardson There are several Estates and moyety goes to that Estate which he had in the Mannor For when I grant more than I can grant that which passes passes Crook I had the third part of a Mannor and grant the moyety of the Mannor all my third part passes But in the Bargain and Sale the words were part et pur part Which as it was passed all And also the Covenant to the Lessor The Recovery was of the half part pur part And by Hutton Crook Yelverton All was intended to be recovered And then the word Moyety carries that tresbien Richardson That Indentures of Covenant much mends the Case Another Question upon the Evidence was Whether when a Bargain and sale is made of Lands And the Bargainee before inrollment makes a Lease for years and afterwards it is enrolled If the Lease now be good Richardson and Yelverton It shall be that although it be after acknowledgement and before inrollment yet it is naught And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case That if one sells in fee and before inrollment the Bargainee bargains and sells to another And afterwards comes an Inrollment That second Bargain and sale is void And an other Question was Pasc 4. Car. Com. Banc. If one makes a Lease for years by Indenture of Lands which he had not If the Iury be estopped to find that no Lease And by Richardson If the finding that no Lease be subject to an attaint But they should find the special matter And then the Iudges would judge that a good Lease And Sergeant Barkley cited Rawlins's Case Coo. 4. 43. to that purpose Crook and Hutton against him And Crook said That it was adjudged in London in Samms case That that is not an Estoppel to the Iury. Which was affirmed by Hutton And that they may find the special matter And then the Iudges ought to find that it is not a good Lease And Hutton said That there is a difference between a special Verdict and pleading in that case For in speciall pleading and Verdict is confost by all parties That he had not any thing in the Lease And then the Iudges gave Iudgment accordingly The King against Clough IN the case of a Quare impedit by the King against Clough before Richardson shewed how the Quare
the Issue Ganfords Case ONe Ganford was bound in an Obligation of 200 l. to Char. Rogers to pay him 100 l. But that was in trust to the use of Mary Watkins during her life and after to George Powell Powell cannot release that bond neither in Law nor Equity during the life of the Wife For then it destroys the use to the Wife As it was agreed But if it was to her benefit solely The Release is good in Equity Woolmerstons Case ONe libells against Woolmerston for the herbage of young Cattel â—…cil for a penny for every one And Hitcham moved for a Prohibition And said that he ought not to have Tithes If they are young Beasts brought up for the Cart or Plough And so it hath been adjudged As if a Parson prescribe to have Tithes for hedgeing stuff he cannot Because that he preserves the Land out of which he had Tithes And then a Parson libells for Tithes of an Orchard for that that it was a young Orchard And the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards For if the Custome be that he shall pay 4 d. for every Orchard It will reach to the new Orchard And then he libells for a Harth-penny for the Wood burnt in his House Hutton said the Harth-penny c. is more doubtfull For it is a Custome in the North parts to give an Harth-penny for Estovers burnt For which he prescribes to be free of every thing which comes to the Fire And in some parts by the Custome they had pasturage for the Tenth Beast or the tenth part of the Gains which is barrain for the time But he and Yelverton who only were present That no Tithes are due for them without Custome Hitcham they also will have Tithes for a thing before it comes to perfection which would be tithable afterwards But I agrée If he sells them before they come to perfection then the Parson will have tithes But by Hutton and Yelverton There may be a Custom to have every year a penny for them Sed adjournatur c. Viner against Eaton VIner against Eaton Where a Sute was betwéen them in the Spritual Court for striking in the Church which by the second branch of the Statute of 5 E. 6. cap. 4. It is excommunication ipso facto By which he surmised him incidisse in poenam excommunicationis And being granted if c. And Ashley shew'd cause why it should not issue viz. There ought to be a Declaration in the Christian Court of the Excommunication before any may prohibit him the Church Richardson said That their procéedings are not contrary to the Statute But stood with the Statute And it was said by Yelverton It is seen that there ought to be a Declaration in the Spiritual Court But the difference is where it is officium Judicii or ad instantiam partis they will give costs which ought not to be Hutton and Richardson If the party will not follow it none will take notice of it And they proceed to give costs Then a Hrohibition may be granted And if he be a Minister he ought to be suspended for an offence against that Statute And it ought to be first declared and so to excommunication And that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted Fox against Vaughan and Hall SIr Charles Fox was Plaintiff in a Replevin against Sir George Vaughan and Iacob Hall for taking of his Beasts in Rustock The Defendant was known as Bayliff of Tho. Vaughan at the day quod William Vaughan was seised of the place quo c. And being seised the 9th of Maii 10 Iac. by Indenture granted to Thomas Vaughan a Rent of twenty Nobles per annum out of the place in quo c. to commence after the death of Anne Vaugham for life payable at the Feasts of St. Michael and the Annunciation And if the Rent be in Arrear at any day of payment or fourteen daies after the demand at a place out of the Land scil his Capital Messuage in Orleton Then it should be lawfull for him to distrein And he shews that twenty Marks were in arrear And that 22 Iac. 22 Octob. He demands it at Orleton c. And the Plea in Bar was That the Grantor was not compos mentis at the time Vpon which Issue was taken But it appeared upon the evidence that at the time of the Grant Gaudebat lucido intervallo Whereupon it was found for the Defendant And Sergeant Barkley moved in arrest of Iudgement For that the Demand appears to be after the 14 daies And he took a difference where the Demand ought to be made upon the Land But there it may be demanded at any time And the Distress it self is a Demand As it was adjudged 20 Iac. in Skinners Case But otherwise it ought to be out of the Land Henden objected because the Issue was joyned That cannot be shewed Richardson Although there was Issue joyned Yet it appears that you cannot distreyn without demand if there be not actual demand of the Distress alleged It is illegal And for the matter he cited Maunds Case 7 Rep. 28. And he doubted if such a difference would hold Berkley This difference was taken by me before cited But lecto recordo the Demand is not ex tunc petito But if it be in arrear and required at the Capital Messuage upon which he demanded it does not refer to any place Richardson If there be a nomine poenae then it ought to be demanded strictly at a day And when it is to be demanded upon the Land it may be at any time For that that Littleton sayes That a Tenant is intended alwaies present upon the Land But when the Demand is to be made at an other day it is only to give notice and so it is demandable upon the Land Hutton by that exposition if he does not hit the demand upon the day he shall lose his Rent Richardson He had lost his Distress by that day only but not his Rent For if he demand it after upon the Land he may have an Assise Hutton you would make that partly a Rent-seck and partly a Rent-charge Harvey If the Rent be not gone but that he may have an assise Richardson It is a Rent-charge generally by the clause of the distress And for that he may have an Assise which is a remedy for a Rent-charge as well as a Distress Hutton If you may make it a Rent-seck you have lost the Rent-charge for ever If a Grantee of a Rent-charge or Rent-seck brought an annuity Richardson If he proceed to Declaration he had lost the Rent-charge Et adjournatur Note It was said if one comming upon an Attachment in any Court And the other does not put in Interogatories against him He shall be dimissed with costs and may
to be done every such assurance as the Council of the Obligee should devise when he should be thereunto required And it was shewn by Ward That the Obligee made such a request scil That the Obligor and his wife should levy a Fine If that Request were sufficient was the Question Hutton I think that the Request is not sufficient Because it is not pursuant according to the Obligation Richardson I think although the request be void for the wife and that she is not bound to make an assurance Yet the Obligor is bound to do it For against him the Request is good enough Thompson against Thompson IT was said by Hutton In debt against Executors if the Plaintiff had Iudgement against the Defendant and sued a levare fac de bonis Testatoris If the Sheriff upon that return a Devastavit the better form is upon that to award a scire fac against the Executor before that a fieri fac shall issue of their own goods For that writ of Execution is warranted by the first Iudgement which was but of the Goods of the deceased But now if there be issued a fieri fac de bonis testat si habuerint et si devastaverint de bonis propriis Then I will agree that upon that shall issue a Capias against the Executors ad satisfacieudum Dixson and his Wife against Blyth IN this Case a Question was demanded by Atthowe If a man seised in right of his wife leases for life the Remainder over in Fee And afterwards he and his wife recover the same Land in a Writ of Entry in the post against the Lessee for life If the Wife by that shall be remitted Hutton seemed that she shall be remitted As well as where a Feoffment is made to Baron and Feme For that Recovery countervails a Feoffment and no laches shall be adjudged in the Wife For the purchase of the Writ shall be adjudged the Act of the Husband only and not the Act of the Wife But it is good to be advised of that for peradventure she shall be estopped by the Record Bromefields Case IT was agreed by all the Iustices That if Tenant in tayl by Indenture upon consideration of mariage covenant with an other that certain persons should be seised to his use for term of his life and after his decease to the use of his Son and Heir apparent That by that Covenant there is not any use changed unless only during the life of Tenant in tayl Nortons Case before FInch Recorder said de comuni jure for Estovers burnt in an house tithes ought not to be paid by the Common law there was not any tithes paid for wood And although the Statute of 25 E. 3. gives a prohibition for timber yet Underwoods were discharged of tithes See Doctor and Student 171. It is express that Estovers are not tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the underwoods is waste And there is another case put where tithes of wood had not by the custom been paid neither ought they to be paid in law or conscience But that is not to be intended the conscience of every particular man Dawleys Case was resolved for the Wilde of Sussex and Michaelmas 13 Iac. Banc. Roy. in the case of Porter and Dike for the Wilde of Kent of the same prescription resolved to he good And so is the common experience that a whole County may prescribe so And the reason is for that that by the Common Law it was not due but by the consideration of Winchelsey Linwood 104. It was ordained to be paid For then the prelates imputed a great pestilence that then was for the negligence of paying tithes and appointed tithes of wood And the Commons were desirous to have the Statute of silva c. otherwise explained than the Clergy declares it For they say that they ought not to pay tithes of any wood that is of the growth of 10 years Hutton Wood is tithable in their nature and then there may be a custom to discharge them And the case of Harthpenny cannot be answered for if he sues for the penny a prohibition shall not be granted quod concessum fuit Crook and Yelverton But of things not tithable tithes of them cannot be sued without alleging a custom Crooke It is known that Harthpenny is good by prescription This Case is when there is not land belonging to the house so that the Parson is not answered for his tithes another way But when there are ten servants kept for the maintaining it Then by the Law of the land it appears that tithe ought not to be paid although custom had been alleged it is nothing to the purpose as if a custom is alleged to pay 4 d. for every acre in discharge of tithes and the verdict finds 3 d. no consultation shall be granted And so for wood to fence the ground or dry cattel to manure the ground Although custom be alleged there in discharge of it and found against the party yet no consultation shall be granted Hutton the herbage of barren Cattel is tithable because there is a custom which discharges those which are for the Cart. And he said that the Custom only makes that legem terrae And he cited Doctor Graunts Case He libels for tithe of an house and the party brought a prohibition and alleged modus decimandi c. And it was alleged in arrest of Iudgement as houses were not tithable de communi jure and yet a consultation was granted And there Cook put this case which I do not remember in the printed book that one libelled for tithes of trees and custom alleged and there was found no such custom in discharge yet it was ruled that no custom was granted Browne against Hancocke BRowne brought an action upon the case upon an assumpsit against Hancocke and declares that whereas the 10. of May 16 Iac. there were some controversies between Charls Nichols and the Brother of the Defendant concerning arrerages of rent and it was desired that Nichols would part with his term And 19 l. and a cloak and a gelding were offered to the lessee for his term which he refused Afterwards the Defendant in consideration that the Plaintiff would labour with Charles Nichols to take the offer and make an end between them Assumed that whatsoever the Plaintiff undertook for the Defendant he would perform and also save him harmlesse for any thing that he should doe in that businesse and then he said that he procured Charles Nichols to assign his term and to accept the cloak and gelding which the Defendant did not perform and allso that the Plaintiff covenanted with Charles Nichols to perform the agreement and obliged himself to that in 50 l. And that afterwards Charles Nichols filed a bill of debt for the money whereupon he compelled him to pay it and upon non assumpsit pleaded it was found for the Plaintiff and
three things were moved in arrest of Iudgement which Serjeant Barkely answered There was a covenant to enter into an obligation at Michaelmas and the Plaintiff shews that he entred before So he does not perform the consideration which he conceived to be a good performance For if a man be bound to doe an act or pay money at Michaelmas a payment before is good H. 7. 17. 2. pasc It is shewn that an action of Covenant was brought after And they say that upon his shewing covenant does not lie but debt but he said that the Plaintiff had his election here to have debt or covenant As in the Lord Cromwels case the words covenanted provided and agreed give advantage of a condition or covenant If a covenant had been sor 30 l. then debt only lyes But here it is to perform an agreement Thirdly that it appears within the declaration that the action of the case was 6 years before the action brought And so by the Statute of 21. Jac. the action does not lye I agree if the cause was 6 years before yet the breach was within the 6 years and that is the cause of action 6. rep 43. In a covenant there is the deed and the breach of the covenant and that is the cause of the action And therefore being matter in Deed an accord with satisfaction is a good plea to it 13. E. 4. Attaint is grounded upon matter of record but the false oath is the cause of it For that there also accord is a good plea So in our case the non performance by default was not at the time limitted which was before the 6 years but no action was brought against the Plaintiff untill within the six years And then he is not damnifyed untill within the six years 5 Rep. 24. Richardson For the two first exceptions he agreed with Barkley as to the third he said that there can be no action before the breach of the promise or covenant But the breach here is before the six years for the non performance of the agreement is a breach and a breach is a damnificationn In one Boughtons case the non payment is a damnification But all the question here was whether that ought to be pleaded but I conceive that it need not for by the Statute-law the action is taken away And it being a general law the court ought ex officio to taken notice of it For in that after verdict if it appears that there is no cause of action although the verdict be found for the Plaintiff he shall never have Iudgement And upon the matter that latches in time amounts to a release in law the proviso cannot ayd you For every man shall be intended without those disabilities for that that he would shew that he would have advantage of it And Crook of the same opinion for the reasons given before and said that although the Statute took away the Common law yet it is good law and done for the ease of the subject and for that shall be favoured as the Statute of limitations in all cases But he said the non performance was not a damnification before the action brought As if I be bound as for surety for A. who is bound to save me harmlesse Although he does not pay it at the day There is not a breach before the arrest or Iudgement For by the Iudgement the lands and goods are liable But for the arrest his body is troubled for that now the Scriveners put in such obligations that they save harmlesse the party and pay the money at the day But for the other matters in all he agreed and cited Richardson and Burroughs Case Where a payment before the day was adjudged a payment at the day Yelverton That is not found that there is any sufficient notice given to the Defendant by the Plaintiff of the agreement made which he ought to have And he agréed in omnibus with Richardson and said that Scriveners use things ex abundanti Richardson It is said habuit notitiam in the Declaration but does not say by whom Yet after verdict it shall be intended a good notice And although that Nichols had given the notice it is sufficient If there be a Lease for years upon condition that he doe not assign the other accepts the rent of the Afsignee before notice He shall not be bound by that acceptance before notice But if notice may be proved either by the Plaintiff or by any although it be by a meer stranger It is sufficient Yelverton denied that for he said That none but privies can give the notice of it as the case is Et adjournatur Denne and Sparks Case before RIchardson If a will be of lands and goods and that was the occasion of this will the revocation is only tryable at the Common Law But when the will is of goods only the occasion of it shall be tryed only in the Spiritual Court For it is incident to the probate of the will quod fuit concessum And he said that in the case before if the will be not revoked the devise is good at the time and the administration shall be granted as of his goods for the Law will not change the property of the residue after debts and legacies paid Crooke The case here is that the Testator makes his will of his lands and goods and devises the residue of his goods ut supra to his wise his Executrix who dies before probate Denne sues to be administrator as the goods of the first Testator and alleges revocation which because that his Proctor did not goe and swear that in fide Magistri sentence was given against him Vpon that he appeals in which there was the same Obligation and affirmed by the Oath of his Proctor Yet sentence was given against him And a prohibition ought to be granted for three reasons First For that the Will is of Lands and Goods and the occasion of that tryable here Secondly they offer injustice in giving the allegation Thirdly The Wife here dying before the probate the administration ought to be granted as of the goods of the Testator and not as of the wife And also they here would inforce Denne if he had the administration to take it cum testamento annex Which shall be an admittance by him that there was not any revocation Richardson for the first reason he agréed that the revocation shall be tryed by the common law But the goods here are only in question and all the usage and practice is that a prohibition shall be granted with a quoad the lands For the second That they will not allow the allegation If they will not pursue their rules and order of Iustice That is not a cause of a Prohibition but appeal for the third It is fit that there shall be an election if debts and Legacies are owing But it doth not appear here that there are any debts or Legacies to be paid but after Harvey agréed with Crook
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
the principal case Iudgement was given for the Plaintiff Iohn Costrell against Sir George Moor. JOhn Costrell and Ioan his wife brought an action upon the Case against Sir George Moor and declares That whereas the said Iohn and Ioan were seised of a Messuage and lands in right of his wife Ioan A man having land in right of his wife in trust they cannot both joyn in the action but the Husband only and that the said Iohn and Ioan and all their predecessors time out of mind c. had common in such a waste which is the soyle of the Defendant pro omnibus a veriis levantibus cubantibus c. and the Defendant had inclosed 20 acres of the said waste and made a fish pond of it there so that they could not take the profits as before with their cattel Vpon the general issue pleaded it was found for the Plaintiff And Crawley moved in arrest of Iudgement For that the prescription is ill made and that the Husband and wife cannot joyn in this action but the Husband might bring the action only And also where it is said that they cannot take the profits with their Cattel when the wife cannot have Cattel during the Coverture Richardson said the prescription is good and it would have been better if he said all those whose estate the wife had But this tantamounts and is as well in substance for that goes meerly to the estate of the Wife Trin 5 Car. Com. Banc. which was granted But for the second I doubt if the Wife may joyn in this Action If a man be seised in right of his Wife he may have Trespass for Trespass done upon the Land there the Wife shall not joyn for she cannot have the dammages if she survive And there is no difference between this Case and the principal Case It is Trespass on the Case and for the personal and temporary trespass and such for which the Wife should have the Action after the death of the Husband unless that the Defendant continue the Pond c. I agree if Battery be done to the Wife they both shall joyn for the Wife might have had the Action if she survived And so it was resolved in the Cooks of Grays-Inns Case they might joyn For the wrong was done to the Wife But here the Husband only lost the benefit of the Common and the wife could not take it with her Cattel For she had not any Cattel during the coverture And Yelverton also was of the same opinion But Hutton said In a Quare impedit the Husband and Wife shall joyn And yet the avoidance goes to the Executors of the Husband Hitcham In an Ejectione firm or ravishment of Ward the Feme joyns quod concessum fuit Yelverton said that in 4 E. 4. it is express that the Wife shall not joyn in trespass done upon the Land of the Wife for dammages shall be recovered in lieu of profits Moor against Everay MOor and his Wife brought dower against Everay To parcel he pleads non tenure and to the other parcel ne unque seise de dower which goes to the tryal and there the Tenant makes default and upon that a petit cape is awarded and now at a day in bank one Lumbard prays to be received upon the Statute of Gloucester to save his term c. But Henden alleged to the contrary First That Statute is not to this purpose in force by the Common law Tenant for years cannot falsifie 6 Rep. Periams Case Then because it was hard that a recovery should be had by Covin and the Lessee for years without remedy for his term the Statute of Gloucester was made which gives a receipt for the Lessee for years after the Statute 21 H. 8. was made which gives the Lessee power to falsifie The Common experience of the Court is If an habens facias seisinam issue there is not any saving of the term of Lessee for years Hil. 39 Eliz. in Bests Case A receipt was moved and denied For if the Lessee had a good term he might have trespass for entry upon him Littleton though says in his Chapter of Tenant for years that he shall be received Hutton The Statute of Gloucester aids them only who knew and had notice of the Recovery 21 H. 8. aids them who had not notice of it And it is better to prevent mischief than to remedy it after and as to that a final Bar. I was of Counsel in some Cases where the Lessee was received And if the Lease be not good the Lessor may avoid it by Plea scil Traverse or Demurer And I remember the issue taken upon the Term and found against the Termor And it was Mr. Fulhams Case against Sergeant Harris Sed adjournatur Fawkenbridges Case IT was moved he having Iudgement before to have costs where the Court doubted because that it was a special Verdict and the Statute of 23 H. 8. cap. 15. says That where a Verdict is found against the Plaintiff But in a special verdict it is neither found for or against But it may be said that when it is adjudged against the Plaintiff then it is found against him And 4 Iac. cap. 3. which gives costs in an Ejectione firmae had the same words if any verdict c. But it may be answered That as in Demurrer no costs shall be recovered no more in a special verdict For that the Plaintiff had a Prohibition causam litigandi And the Statute may be intended of vexatious Sutes c. But Brownlowe said that he had many times given costs upon the Statute of 4 Iacob For that the Prothonotaries were commanded to search Presidents The University of Cambridge THe Vniversity of Cambridge claimed by their Charter to be Clarks of a Market and that they had power by their Office to make orders and execute them And they made an Order that no Chandler should sell Candles for more than 4 d. ob the pound And because that one R. sold for 5 d. he was imprisoned and a Prohibition granted But it séemed that an Habeas corpus was more proper For he was not presented First For that they could not imprison without course of Law Secondly Because that as Clarks of a Market they have nothing to do with but Victuals and Candles are not Victuals The Sheriff of Surrey against Alderton THe Sheriff of Surrey returns a rescous against one Alderton That whereas there was a Iudgement had against B. and a fieri facias awarded upon that by vertue of his Warrant directed to R. to take the Goods of B. By vertue whereof such a day the said R. diversa bona catalla ipsius did levy and had them in his custody No rescous can be of Goods and one Alderton rescued them from the Bayliff contra voluntat ipsius Rich. The return is naught First For that that it is rescued from the Bayliff Secondly It is of Goods whereof a rescous cannot be returned Yelverton contrary in