Statute sayes that the lands devised shall be devised into three parts and that is to be understood of such an estate as may be divided but so cannot a Seigniory For put the case that the Lord held by a Hauke the whole Mannor shall descend and cannot be divided and so de catalla Fellonum Fenner contra For it seems to me that the seignory passeth and so it shall be if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne he shall say infra feodum suum and in reputation amongst men a seigniory is a Mannor for if a man makes a feoffment of a Mannor with livery where he hath no Mannor yet shall it passe 7 E. 3. Where a Mannor passeth by the name of Knights Fee And as to the intirenes of the seigniory it is easily answered for although the rent were entire yet it may be severed for a Rent Charge is entire yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed Walmesley For the Plaintiff the Question is if the Rent passeth by the name of a Mannor to the Devisees If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughters daughter yet this is good because in common speaking she is so called but here the words are not apt nor used in common speaking viz. That Rent should be taken for a Mannor and therefore it is voyd as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference that where the words have any affinity or likelihood to the Mannor then it will passe by the name of a Mannor As if a man deviseth his house and land by the name of a Mannor it shall passe But here being but a service it is otherwise Gawdy cont For if it the Rent passe not nothing shall passe which is a hard construction on a Will For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church And in Brett and Rigdens Casea man devised a Mannor in which he had nothing and after purchased the Mannor the devise is good And in 26 H. 6. feoffment 12. Land will not passe by deed by the name of a house but land will passe by the name of a Carue and a Carue by the name of a Mannor and I hold that the Rent in this case will passe by the name of the Mannor for a Mannor does consist of Demesnes services and rent may be called a Mannor aswell as a Carue and and the King gives it by the name of a Mannor to the Devisor and that is the reason that the Devisor calls it a Mannor And if you grant to me an Advowson by the name of the Church and Rectory and I devise the Rectory the Advowson and the Church will passe by the name of Rectory And in Plouden 194. A man did let his house and great demesnes rendring Rent and did devise to another all his Farme there the Devisee shall have all the Rent and the Reversion also Michaelm 29. 30. Bishop of Lincolnes Case Rot. 1528. 2200. IN a quare impedit brought by the King against the Bishop of Lincoln and Leigh the Incumbent The Case was The Bishop had an Advowson in gross and presented J.S. who took a second Benefice with cure whereby the first became void and continued so untill Lapse fallen to the Queen and after the title of Lapse fallen to the Queen the Bishop presented one J. who was inducted and by reason of Recusancy to pay Tythes was deprived and by the Statute 26 H. 8. the Church became void ipso facto whereupon the Bishop presented one Leigh within six months and now the Queen would present Fenner This Case is the same with Bosherulls lately adjudged But the Court said that here was a privation for Recusancy and therefore it would make a difference And afterwards Pasch 30 Eliz. Walmesley For the Queen said That if a Lapse be fallen to the Ordinary if the Patron doth present before the Bishop hath Collated he ought to receive his Clerk but where it is divolved to the King the Patron by no means can defeate the King but he may remove his Clerke at his pleasure but if such Incumbent be present after such Lapse and die then the title of the King is gone and his time passed by the act of God but in our Case the avoydance which does oust the King from his Lapse is avoidance by reason of Recusancy to pay Tithes which is the proper act of the Incumbent as is a resignation and no such avoydance being by the act of the party himself shall oust the King of his Presentation for in the 2 H. 9. In annuitie against an Abbot who resigns the Writ shall not abate for then the Plaintiff shall never have a good Writ So in our case if the King be outed of his Lapse by such devises he shall never have a Lapse for every one will usurp upon the Kings Lapse and will presently resign or misdemesn himself whereby to avoid the Lapse And in the 18 Ed. 4. the 19. By Pigot A writ brought against a Prior shall not abate although the Prior be not deposed for it is his own fault Fenner This Lapse is given the King by his prerogative but on this Condition that he take it in due time for so is the nature of things lapsed for if after a title accrued to the King he suffer usurpation and the Incumbent die his Lapse is lost for the nature of the Lapse is such that it must be taken at its time and where the title of the King is limited to a time there he shall not have his prerogative for a prerogative cannot alter estates As if the King grant a seigniory in gross rendring Rent and the Tenant to the Lord dies without heir whereby the tenant escheates the seigniory is extinct and the Rent of the King is gone aswell as it is in the case of a Common person And so if the King have a Rent feck for life out of my land if I die he cannot distreine in my land for the arrerages as he may in my life time And so where the Statute gives Annum diem vastum to the King yet he shall not have it after the death of the Tenant for life so if the King reserve a Rent upon a Lease to an Estranger and the stranger enters in respect of the land whereby his entire rent is suspended now the condition as to the King also is suspended during that time for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir and after this Rent comes to the King and the Grantee dies the Rent shall cease during the minority of his heir so that by all these cases the
a Report 34 Eliz. between Badinton and Hawle in the Kings Bench adjudged that if the Queens Copyholder be outed and a Lease be made for years by the Intrudor this Lessee shall not have an Ejectment if he be outed but he shall have an Action of Trespasse against any stranger The second exception was taken to the pleading because the Defendant pleaded in que estate del Lessee del Abbe without shewing how he came to the Estate And by the Court a good exception for he shall be compelled to shew how he came to an Estate in the terme inasmuch as it cannot be by loyall means vide 1. 2 Eliz. Dyer 171. that a Que Estate of a particular Estate of a terme is not good and 7 Eliz. Dyer 238. where the Plea was of a que Estate of a Termor and exception taken to it and the difference between it and a Freehold so in the 7 H. 6.440 it was agreed that H. could not convey an Interest by a que Estate of a particular Estate as Intail for life or years without shewing how he came by the Estate be it on the part of the Plaintiff or the Defendant The third exception was that the Defendant pleaded a Lease made by the Abbot and Covent by Indenture as it ought to be without saying Hic in curia prolat which exception was also clearly allowed by the Court for he is privy to it and therefore he ought to shew it And for these two exceptions but especially for the former Iudgment was given for the Plaintiff Mich. 36 and 37 Eliz. in C. B. Palmers Case Action on the case for words PAlmer an utter Barrester of Lincolns-Inn brought an Action on the Case against Boyer for these words Palmer being Steward to I.S. the Defendant in discourse had with I.S. said I marvail you will have such a paltry Lawyer for your Steward for he hath as much Law as a Jack a Napes And the Plaintiff shewed all the matter in the Declaration and that by reason of such words he was displaced of his Office Williams Serjeant did move in that the words were not That he hath no more Law then c. for then those words were actionable but that he hath as much Law as c. for which words no Action will lye But resolved by the Court that the Action will lye for the words are standerous and prejudiciall to his credit and by reason of them he was discharged of his Stewardship also an Action will lye for saying That he hath as much Law as a Jack an Apes or my Horse because they are unreasonable creatures but if he had said that he hath no more Law then I.S. that is not actionable although I.S. be no Lawyer And Iudgment was given for the Plaintiff Pasch 35 Eliz. in B. R. Audleys Case A Man brought an Action of Debt on an Obligation made by the Father of the Defendant in which Writ the Defendant was named Son and Heir apparent of the Obligor Iudgment was given against the Defendant whereupon he brought a Writ of Error for the Writ does imply that his Father was living for he is his Heire in truth and in fact if his Father be dead and not apparent To which was answered that that was but Surplusage which shall not abate the Writ as appeares by the Book of the 10 Edw. 3. But the Court held that Iudgment should be reverst for he ought to be named Heire as in debt against Executors he shall be named Executor And Iudgment was reverst Trin. 36 Eliz. in B. R. Downinghams Case Ejectment THe Defendant in an Ejectione firmae pleaded that the Lord of the Mannor did enter into the Land of a Copyholder by reason of forfeiture for Waste committed in suffering the houses to be uncovered by which the timber is become rotten and did not alledge in facto that the Custome of the Mannor is that such Waste is a forfeiture for it was said that although other Waste by the Common Law is a forfeiture yet this permissive Waste is not Sed non allocatur for all Waste done by a Coppholder is forfeitable 2. It was resolved that if a Coppholder made a Lease for yeares which is not according to the Custome of the Mannor yet this Lease is good so that the Lessee may maintain an Ejectione firmoe for between the Lessor and the Lessee and all other except the Lord of the Mannor the Lease is good and so hath it been severall times adjudged in this Court Trin. 36 Eliz. in B. R. Wisdomes Case Action on the case for words STich brought an Action on the Case for slanderous words against Wisdome the words were There is many a truer and honester man hanged and that there was a Robbery committed whereof he thought him to be one and that he thought him to be a Horse-stealer And it was moved in Arrest of Iudgment that these words were not actionable for it is not said in facto that he was in the Robbery or that he was a a horse-stealer in fact but onely by imagination that he thought he was such a one but Iudgment was given for the Plaintiff Trin. 36 Eliz. in B. R. Rot. 815. Palmers Case CHristopher Palmer brought an Ejectione firmae against John Humphrey and declared that one George Hanger the eighteenth day of May in the six and thirtieth year of Eliz. by his Indenture did demise unto him a certain peece of Land called the great Ashbroke and other peece of Land called Stocking and also divers other peeces of Land naming the peeces and of one Garden called Muchins Gardein and of another peece of Meadow called Michins Meade and of seven acres of arable Land for the terme of two years by vertue whereof the said Christopher entred untill the Defendant by force and armes c. did eject him and did set forth in his Declaration that the Defendant ejected him out of the said peeces of Land and yet did not expresse the contents thereof in certainty And upon not-guilty pleaded it was found for the Plaintiff and for the seven arable acres of Land and the Garden the Court gave their Iudgment that it was certain enough but as to the other peeces of land the Court was divided For Popham Gawdy held that it was certain enough being in an Ejectione firmae which is but in the nature of an Action of Trespasse and the damages are the principall and a man may bring an Action of Trespasse for a peece of land without any other certainty But Clench and Fenner were on the contrary for he ought to set forth his terme in the land and then to shew the contents thereof as well in an Ejectment as in a Precipe quod reddat by which land is demanded and a man shall have an Ejectione firmae de una visgata terrae but shall not have a Precipe quod reddat of one portion of land by Skeene and Hill 7 H. 4.40 9 H. 6.3
maneriis de Badmanshall and the question was If the Vitar by this Indowment shall have the third part of the Tythes growing upon the â—and of the Freeholders within the Mannor or not And it was said by the Court that a Mannor cannot be without Freeholders and inasmuch as they are to be charged with the payment of Tythes one and the other together shall be said to be the Tythes of the Mannor and so it was adjudged that the Vicar should have Tythes of the third part of the land of the Freeholders as well of the Demesnes and Copyholders Trin. 37 Eliz. Rot. 438. Willoughby against Gray A Venire facias did beare Teste out of the Terme and also there was no place mentioned in the Writ here the Visne should be impaunelled and after the Writ said Coram Justiciariis and did not say apud Westmonasterium and a tryall was had hereupon and Iudgment given which was prayed might be reversed for these causes But it seemed to the Court that notwithstanding all that was alledged it was good enough for although the Venirefacias was not good yet if the Distringas had a certain return and place therein And the Iury appeared and gave their Verdict so that a Verdict was had the Statute will aide the other defects as in the case adjudged between Marsh and Bulford where the Venire bore Teste out of the Term. But Fenner said that the Teste was in the Term but on the Sabboth day which was not Dies Juridicus Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem against Hopton Flam and Williams Hopton pleaded not guilty Flam pleaded that he was mis-named and demanded Iudgment c. Et quoad feloniam mahemium not guiltâ— de hoc ponit se super patriam praedict Kinton similiter And Williams pleaded no such man in rerum natura as Flam and demanded Iudgment of the Writ and as to the Mayhem and Felony not guilty Et de hoc ponit se super patriam c. And as to the other two pleas to the Writ Kinton demurred prayed that the Writ might be awarded him and a Venire facias to try the issue For Tanfeild urged that by pleading over to the felony he waved the plea to the Writ for there was a diversity between an appeal of Murther and of Mayhem for in Murther as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal yet of necessity he must plead over to the Murther because it is in favorem vitae or else if he will joyne in Demurrer upon the plea to the Writ he doth confesse thereupon the Felony and therefore he must plead over not guilty But in Mayhem it is otherwise for although the Declaration was for Felony yet is a Mayhem but a Trespasse onely and all are pruâ—cipalls and the life of the Defendant is not questioned but he shall onely render damages and therefore it he plead over to the Felony that is a waver of the plea and so a Venire faciaâ— ought to issue out to try if he be culpable or not and of this opinion were Popham Fenner and Gawdy clearly and agreed to the diversity between the appeal of Mayhem and Murther Mich. 38 and 39 Eliz. King against Braine A Man sells Sheep and warrants that the yare sound and that they shall be sound for the space of a year upon which Warrant an Action of the Case was brought and it was moved that the Action did not lye because the Warranty is impossible to be performed by the party because it is onely the act of God to make them sound for a year But Clench and Fenner on the contrary for it is not impossible no more then if I warrant that such a Ship shall return safe to Bruges and it is the usuall course between Merchants to warrant the safe return of their Ships Mich. 38 and 39 Eliz. Wentworth and Savell against Russell IN a Writ of Parco fracto the Plaintiffs declared that they were Tenants pro indiviso of a Mannor in Yorkshire and that the Defendant held of them certain lands as of their Mannor rendring Rent which Rent was behind and for which they distrained and impounded the Distresse and the Defendant broke the Pound and rescued the distresse and thereupon they brought this Action and the Defendant demurred on the Declaration because the Plaintiffs did not shew how they were Tenants pro indiviso or Tenants in Common or Coparceners But the Court ruled the Declaration to be good And Gawdy said that a Tenant in Common alone without his companion may have an Action De parco fracto And Iudgment was given for the Plaintiff Hil. 39 Eliz. POphamsaid that in Lancashire there is a Parish called Standish within which are many Townes and one of the Townes is called Standish And if a man seised of lands in the Town of Standish and also of land in the other Townes do let all his land in Standish onely his land within the Town of Standish doth passe and not all his land within the Parish of Standish in the other Townes For where a man speaks of Standish or of Dale it shal be intended to be a Town and not a Parish unlesse there be expresse mention of the Parish of Standish or of Dale Gawdy and Fenner on the contrary for the Grant of every man shall be taken strongest against himself and therefore all the land as well within the Parish of Standish as within the Town of Standish shall passe And Fenner said that when Dale is mentioned in any Precipe it shall be intended the Town of Dale because Towns are noted at the Common Law and not Parishes for Parishes were ordained by the Councell of Lyons but notwithstanding in Grants there shall be no such intendment but the intendment shall be according to the common usage and understanding of the Country and Country-men in favour of the Grantee and when a man speake of Standish or any such place it shall as well be intended to be a Parish as a Town Hil. 29 Eliz. Clarentius against Dethick CLarentius brought an Action of the Case against Dethick by the name of Dethick alias Garter The Defendant demanded Iudgment of the Writ for the Queen by her Letters Patents had created him King at Armes Et quod nuncuparetur Garter principalis Rex armorum and that he should sue and be sued by such name and because he was not sued according to his creation he demanded Iudgment c. Tanfeild prayed that the Writ might abate for this case had been here in the Court in question before where Dethick was indided by the name of Dithick onely and because he was not named according to his creation he pleaded that matter and the Indictment was quashed Gawdy I remember the case very well and it was adjudged at my first coming to this Court and in truth the Iudgment passed against my opinion which then and still is
that it was enacted by the Major of London and common Councel that if any Citizen takes the Son of an Alien to be his Apprentice that the Covenants and Obligations shall be void and he shewed that he was the Son of an Alien and became an Apprentice to the Plaintiff who is a Citizen and made the Covenants with him for his Apprentiship And demanded Iudgment And it was held no Bar for notwithstanding the Act the Covenant is good for it is the Act of the Defendant although the Act of the Common Councell be against it but the said Act may inflict punishment on any Citizen that breakes it And Iudgment was given for the Plaintiff Trin. 41 Eliz. in B. R. Knotts against Everstead LEssee for life the remainder for life the remainder in taile he in the reversion who had the fee does enter and enfooffs the Lessee for years and adjudged that by this Feoffment Nihil operatur Popham said that he who hath a term cannot license another that hath nothing in the land to make a Feoffment for he who hath the Freehold wants nothing but possession to make a good Livery but in this case he who makes the Livery had not the Freehold and therefore the license is void But Tanfeild said that if Lessee for life gives leave to a stranger to make Livery it is void but if he consent that the stranger shall make a Feoffment it shall amount to a Disseisin and the Feoffment is good Which was denied by the Court. And Clench said if a Lessee for ten years makes a Lease for one year to him in reversion there he in the reversion who hath the land for a year may make a Feoffment to the Lessee for ten years and it is good Trin. 41 Eliz. Moyle against Mayle MOyle brought an Action of Waste against Mayle and declared that he had leased to him a Mannor and a Warren and that he had destroyed a Cony-borough and subverted it and assigned otherwastes in cutting down certain Thornes Williams The Action of waste will well lye and said that a Warren consisted or two things of a place of Game and of liberty and to prove that a waste did lye for a liberty he cited the Statute of Magna Charta Cap. 5. in which a Warren is intended also the Statute of Marlebridge cap. 24. and the Statute Articuli super Chartas cap. 18. by which Statutes it is evident that a waste does lie for Warrens and a Warren is more then a liberty for a Writ lies Quare warrenam suam intravit and by the 12 H. 8. if Lessee of a Warren does break the Pale it is a waste also if Lessee of a Pigeon-house stop the holes so that the Pigeons cannot build a waste doth lye as it hath been adjudged Also if Lessee of a Hop yard ploweth it up and sowes Graine there it is waste as it hath been adjudged Also the breaking a Weare is waste and so of the Banks of a Fish-pond so that the water and fish run out To all which cases the Court agreed except to the principal For the Court held it was not waste to destroy Cony-boroughs for wast will not lye for Conies because a man hath not inheritance in them and a man can have no property in them but only possession and although by a speciall Law Keepers are to preserve the land they keep in the same plight they found it yet thiâ— does not bind every Lessee of land Walmsley The subversion of Cony-boroughs is not waste and it was usuall to have a waste against those who made holes in land but not against those who stop them up because therby the land is made better And it was said that to dig for stones was a waste unlesse in an ancient Quarry although the Lessee fill it up againe And Walmsley said that in Lancashire it is waste to dig Marle unlesse it be imployed upon the land And said it was not waste to cut thornes unlesse they be in a Wood stubbed and digged up by the roots but if they grow upon the land then they may be stubbed and it is no waste But to cut down Thorne-trees that have stood sixty or a hundred years it is waste Hil. 32 Eliz. in B. R. Sir George Farmer against Brook IN an Action of the Case the Plaintiff claimeth such a Custome in the Town of B. that he and his Ancestors had a bake-house within the Town to bake white bread and houshold-bread and that he had served all the Town with bread that no other could use the Trade without his license and that the Defendant had used the Trade without his license upon which the Defendant demuâ—'d Morgan This is a good Prescription and it is reason that a Prescription should bind a stranger vide 11 H. 6.13 A. prescribed to have a Market and that none should sel but in a Stall which A. had made and was to pay for the Stall and held there a good Prescription And the Arch-bishop of Yorks Case in the Register 186. is a good case A man prescribed that he had a Mill and he found a horse to carry the Corn thither and that therfore they ought to grind there and because they did not he brough his Action on the case Buckley contra It cannot be intended to have any commencement by any Tenure 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny adjudged not good and the case of the Arch-bishop was good because he had it ratione dominii tenuri And adjudged the principall case that the action will not lye 23 Eliz. in C. B. Farrington against Charnock KIng Henry the 8 granted Turbariam suam in D. at Farrington rendring rent sur 21. years and then the Lessee imployed part of it in arable land and relinquisht part of it in Turbary and then Q. Mary grants Totam illam TurbariaÌ„ before demised to Farrington and adjudged that that passed only which was Turbary and the other part that was converted into Tillage did not passe Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother and the Error assigned was that there was no warrant of Attorney of the Record And it was agreed by the Bar and Bench and adjudged error But the great point was if the Plaintiff could have a writ of Error The Case was Henry the Father had Henry his Son and three Daughters by one Venter and the Plaintiff by another Venter and died seised of the land intailed to him and the Heirs Males of his body Henry enters and makes a Feoffment the Feoffee is impleaded and voucheth Henry who looseth by default in the recovery and dies without issue and whether the Daughters which are Heirs generall or the Plaintiff which is Heir in tail shall have the Error Gawdy and Baker for the Defendant who said
the Reversion Warburton I conceive he shall have the Ayde 7 H. 4.2 where ayde is prayed against him in the Remainder and Reversion and and he cited a Manuscript 11 R. 2. direct in the point that the ayde would lye But the other Iustices cont for the Tenant for life hath as high an estate as he in the remainder and may plead all that the other may but if there be Tenant for life the remainder in Taile there he shall have ayde of the Tenant in Taile 23 H. 6.6 11 Edw. 3.16 If there be Tenant for life the remainder for life the remainder in Fee tenant for life shall have ayde of them both for else he in the remainder shall not come in to plead 11 E. 3. ayde 32. Where it is resolved that tenant for life shall have ayde of the Reversioner for life Hillar 28 Eliz. VVatkins against Astwick A Man makes a feofment on condition that if he his heirs or Executors do pay the Rent of 100 l. before such a day that he may re-enter the Feoffer dyes his heire within age the mother without any notice of the son requests J.S. that he would pay the money for her son And all this was found by speciall verdict but it was not found of what age the son was Clinch If the Iury had found that the son was of the age of 17 years the payment had been good Wray If a Bond be upon condition that the Obligor or his heirs should pay 100 l. and the Obligor dyes his heire within age I conceive payment by the Guardion or by some other friend is good And afterwards all the Iustices agreed That if the Infant were within the age of 14. years the tender of the money by his mother had been good but contra if he had been more than 14 years and because no age was proved here but that he was within age it shall not be intended that he was within the age of 14. years and therefore they advised the party to begin de novo and that it may be found that the Infant was within the age of 14. years Trinit 25. Eliz. Moris against Paget in C. B. Rot. 2215. IN a Replevin a speciall Verdict was found that Sir Francis Ascough was seised of the Mannor of Castor in Lincolne which Mannor extended it self into four Towns v z. Castor North Kelsey Dale â—ale and that there were demesne lands and Freeholders in each of the said Towns and that Moris the Plaintiff held the land where c by Fealty and suit of Court to the Mannor of Castor and the lands did lie in one of the Towns viz. in Norch Kelsey And Ascough being so seised sold to the Defendant Totum illud Manerium sive Dominium de North Kelsey cum pertinentiis in North Kelsey ac omnia ac singula Messuagia redditus Herriot and all other things used or reputed as parcell thereof with all Courts c. To have and to hold to the Vendee and his heires and Moris the Plaintiff and other freeholders in North Kelsey did attorne to the Vendee The Question was if the Vendee had the Mannor of North Kelsey or not Peryam He has not yet by the feofment and attornment all the Tenants and services are conveyed to him but not as a Mannor for a Mannor is made and incorporate by continuance of time and this entire Mannor of Castor cannot be divided no more than other liberties as if the King grant to three partners who have three Mannors a Leet or Warren and one of them makes a feofment the Feofee shall not have the Leet and heâ—tted Dyer 362. a. and he sayd if I grant my Mannor of â—except certain Demesn lands and services the feofee shall have the Mannor and I shall have the Lands and services in grosse and so if I have a Mannor that extends into two Towns and I grant my Mannour to you in one Town you shall have no Mannor but the lands and services in gross Windham Iustice cont For where he grants his Mannor of North Kelsey in North Kelsey there it shall be construed his Mannor in reputation Ander on agreed for although a Mannor cannot be created at this day yet is it not so intire but it may be divided Hillar 30. Elizab. Sir Thomas Howards Case A Man makes a Lease for years the 10th of May and then the Lessor bargains and sells this to another by Deed enroll'd bearing date the 10th of Aprill and it was entred to be conveyed the 10th of Aprill before but in truth it was delivered and acknowledged and enrolled afterwards And it was held that the bargaine was without remedy at the Common Law for he cannot plead that it was acknowledged or delivered after the date of the day of acknowledging it and so was the opinion of Rhodes Peryam and Windham Anderson being absent for he cannot aver that it was inrolled or acknowledged at another day then it is recodred because it is contrary to the Record for it is entred that it was acknowledged the 10 of Aprill and then if such a plea should be admitted it would shake most of the Assurances in England Note Shuttleworth put this case A man makes a Lease rendring Rent at two Feasts and if the Rent be behind at any of the said Feasts or 40. dayes after and no distress to be found that the Lessor shall re-enter the Lessor comes upon the ground the last day of the 40. and demands his Rent and because no distress was sound on the land at the time of his demand he entred But it was averred that always before this day there was sufficient distress and the question was if his entry were good Fenner and Rhodes said they had seen a Report of the same Ease 8 Eliz. That the distress ought to be on the Land on the last day yea at the last instant of the day which is a legall time to make a demand or else the Lessor may enter Walmsley The same Ease was resolved a year agoe in the Kings Bench between Ward and VVare But if it were and no distress to be found at any time within forty dayes there if there be a distress found at any time it is sufficient Vid. 1. Inst 202. a. 28 Eliz. VVood against Ash IN a Replevin the Ease was thus Puttenham made a Lease of Land with a Stock of Sheep for 20. years rendring Rent and the Lessee doth Covenant to render back to him at the expiration of the Lease 1000 Sheepe of the age of three or four years and that the Lessor grants all his Chattells and this stock of Sheepe to Elizabeth Vavafor the Defendants now wife but in Truth the Sheepe of the old stock were all spent and others supplyed part by increase and part by buying of other Sheepe Walmesley for the Defendant The grant made by the Lessor is good for the generall propertie does remain in him although that the Lessee hath a speciall
shall present for there is no reason the patron should for by his precedent presentment he hath dismist himself untill resignation or death as if a man lets land for another mans life he shall not have the land during the life of Cestuy que vie great mischief would be if it should not be so for els all the presentments that the King hath made shal be usurpations The second matter was that no presentment is pleaded against the King by the Patron for it is pleaded that the Parson was admitted and instituted but not that he was inducted but the Court held it good notwithstanding that omission But as to the first point the Court asked Williams if he could shew presidents that the King should have such presentment for they said that the usage by the Pope is no argument at all for that he used to usurpe many things Walmesley I conceive this custome began by the Popes usurpation but he said there is a Book in the time of Edâ— 2. where this point is argued and adjudged that the Patron shall present and not the King VVilliams shewed eight or nine Presidents in the time of H. 8. that the King used to present in such case but all of them were between spirituall persons And the Court said they did not regard those presidents for all spirituall persons were the Popes servants vid. 6 Elizab. 72.8 South against Whitewit IN a prohibition the case was thus the wife of VVhitewit had spoken scandalous words of South and therefore the was excommunicated by the high Commissioners and by Letters Missive a Pursevant came at twelve of the clock at night and broke the house of VVoâ—tewit and tooke the body of VVhi ewâ—… wife who was rescued wherefore VVhitewit her husband was called before the Commissioners and hereupon VVhitew t prayed a prohibition And the question was if a Pursevant could break a house by such Commission or not And it was agreed that by the Common Law neither the Pope nor any other spirituall Iudge had any thing to do with the body and goods of any one for only the sword spirituall belongs unto them VValmesley At the Common Law after Excommunication a Capias Excommunicaâ—um was awarded and I conceive this writ is of force at this day and is not taken away by the Statute of 5 Eâ—…z Kingsmâ—ll agreed for this Statute gives power onely to correct the spirituall law and to take away the authority of the Pope but gives the same means to execute it as before and he further said that the Statute that did erect the Court of Wards doth appoint a Seale belonging to it and other process according to the course of the Common Law and therefore by the same reason if this Statute of â— Eliz. intended to give them such authoritie they would have appointed a Seale also and a course according to the Common Law but as the course is here used a man may be robb'd in his house by a beggerly Pursevant which is no Officer known by the Law And so was the opinion of the Iustices Pasch 40 Eliz. Goosey against Pot in C. B. IN a Replevin the Case was thus two Hundreds were adjoyning together to two several Mannoure of two several persons and the avowant was seized of one of them and he prescribed that all the Tenants of the other Hundred have used to make suit to the Leet within his Hundred and also that the Lord of the other Hundred used to appear or to pay him 4 s. pro anno futuro and if it were not paid the Defendant prescribed that he and all those whose estates he hath have used to distreyn any Inhabitant within the Hundred for the same and therefore for 4 s. not paid he did avow the Distress whithin the Mannour of the Plaintiff who was one of the Inhabitants Williams A man may prescribe by a que estate in a Hundred for a man may have it by disseisin and there are divers presidents which the Prothonotaries have shewed me to warrant this in a Replevin for the seisin is the matter of the title And to this Littletons rule may be added that of all things which lye in grant and whereof a man cannot be disseised against his will a man shall not plead a que estate Kingsmall A que estate cannot be pleaded of a Hundred unless if be appendant to the Mannour and a second matter was moved in this Case viz. that he prescribed to distreyn the Cattle of a stranger for the essence of the Lord. Williams It is not good by the 41 Ed. 3. but by the 47 Ed. 3. for suit and service the Cattle of the Lord may be distreyned on any land within the Hundred Anderson I do agree to the Case of my Lord Dyer that the Cattle of a stranger cannot be taken for a Herriot Walmesley In the 12 of H. 7. it is said by Fineux that a Lord of a Mannour may inlarge his services by prescription and so the Cattle of a stranger may be taken but for a personal matter as for amercement in default of suit no stranger may be distreyned And afterwards agreed by all the Iustices that the strangers Cattle could not be distreyned Holt against Lister IN a Replevin the Case was thus he in the reversion after Tenant in Dower grants it over to the use of himself for life the remainder to his nert son in Tail the remainder to the use of himself in Fee and after this he levyes a Fine to the Plaintiff and his heirs of land which he claimeth de haered tate sua after the death of the Tenant in Dower The Plaintiff brought a Quid Juris clamat against the Tenant in Dower and upon non sum informatus Iudgement was given that the Tenant should attorn and now he prayed that she should not attorn for if she atterns she will torfeit her estate Walmesley If he in the remainder for life grants over by Fine it is no forfeiture for he gives no more right than he hath and so hath it been adjudged in the time of my Lord Dyer Glanvill I agree to that but in this Case he grants that which he hath de haereditate sua and this recital will make a forfeiture and then if the Tenant in Dower attorn this is a forfeiture Anderson This attornment is no forfeiture because it is by judgement of the Court. Walmesley I agree for the Grant it self is no forfeiture unless it be by reason of the recital but the Attornment shall have relation onely to the substance of the Grant And it was much disputed between Walmsley and Glanvill If Lessee for life of a Rent grants this in Fee by Fine if this be a forfeiture and Walmesley vouched a Iudgement that it was no forfeiture and Glanvill voucht 31 Ed. 3. Grant 60. to the contrary and 15 Ed. 4.9 by Littleton If Lessee for life of a Rent grants this by Fine in Fee it is a forfeiture by reason of the
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS
facias by the Queen against Allen. THe Case was A man recovers damages in an Action on the case and he assignes parcell of his debt to the Queen before execution and the Queen thereupon brought a Scire facias Manwood chief Baron and all the Court held cleerly that parcell or a Meyety of this debt could not be assigned over to the Queen See 22 H. 6.47 where parcell of a debt upon an Obligation was attached by a forren Attachment Beverley against the Arch-bishop of Canterbury Quare Impedit THomas Beverley brought a Quare Impedit against John Arch-bishop of Canterbury and Gabriel Cornwall the case was That the Queen being intituled to an Advowson by Lapse because that the Incumbent had two Benefices each of them being of the value of eight pounds per annum whereby the first by the Statute of 21 H. 8. became void and after the said Incumbent died and divers others were presented by the Patrons who died also whereby the Church becomes void againe If the Queen may now take her turn to present in regard she took not her turn when the first Lapse happened immediatly at the first avoidance was the question And after long and serious debate all the Iustices of the Common Pleas did resolve That the Queen shal not now have her Presentment but the Patron because the Queen hath such presentment by Lapse as the Bishop had and no other and could present but to the present avoidance then void and although Nullum tempus occurrit Regi yet we must distinguish it thus for where the King is limited to a time certaine or to that which in its self is transitory there the King must do it within the time limited or in that time wherin the thing to be done hath essence or consistence or while it remaineth for otherwise he shall never do it For if the Grantee of the next avoidance or Lessee Per auter vie be attaint here the King must take his interest and advantage during the time viz. during the life of Cestui que vie or within the years of the next avoidance or otherwise he shall never have it the same Law is where a second presentment is granted to the King and he does not present he shall not present after Shuttleworth we have an Outlawry against the Plaintiff whereupon Iudgment was staied But after Hil. 29 Eliz. The Queens Serjeants shewing that the Plaintiff was outlawed It was argued by Walmsley that that could not now come into debate for the plaintiff hath no bay in Court after judgment and it is but a surmise that the plaintiff is the same party Windham In a debt upon an Obligation the Serjeants may pray the debt for the Queen and yet it is but a surmise And the opinion of three Iustices was for Anderson was absent that the Writ to the Bishop ought to be staied but in what manner processe should be made if the Scire facias shall issue against the Plaintiff they said they would advise concerning the Course But Periam said that a Scire facias might have issued against the ancient Incumbent and then the Queen shall bring a Scire facias again because she had no presentation And the Scire facias was brought against Beverly Walmsley I conceive the Queen shall have no Presentation for although we have acknowledged our Presentment yet before execution we have but a right As if a Disseisee be outlawed he shall not forfeit the profits of his Land also he hath brought a Scire facias and a Scire facias lies not but by him that is party or privy Periam After that we have this Chattell it is forfeit by Outlawry Anderson The Iudgment that he shall recover shall not remove the Incumbent and then the Plaintiff hath but a right to which Periam and Walmsley agreed but as to the other point that the Queen shall not have a Scire facias for default of privity they saw no reason for in many Cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and then I am outlawed shall the Queen have this debt Walmsley If I recover in a Quare Impedit and dye who shall have the Presentment my Executor or my Heire To which no answer was made But the Court would take advice for the rarenesse of the Case And it was said to Walmsley that he might demur in Law if he thought the matter insufficient to which Walmsley agreed and did demur c. Annuity to a woman who marries and dies AN Annuity is granted to a woman for life who after marries the Arrears of the Annuity encur and the wife dies whereby the Annuity is determined It was adjudged that the husband shall have an Action of Debt at the Common Law for that an Annuity is more then a Chose in Action and may be granted over And it was agreed by the Court in this case That if a man grant an annuall Rent out of Land in which he hath no interest yet this is a good Annuity to charge the person of the Grantor in a Writ of Annuity 14 H. 4.29 A. Coke 4th Rep. 51. A. Bragg against Brooke Second deliverance LUcas Bragg brought a Writ of second deliverance against Robert Brook for taking his Cattell in a place called East Burlish in the County of Surrey the Case was That Sir Thomas Speck was seised of a Mannor containing in it severall Copyholds and the place where c. was Copyhold And the said Sir Thomas being so seised married and then died and the wife 5 Edw. 6. demands the third part of the Mannor for her Dower Per nomen centum Messuagium centum gardinum tot acr terrae prati c. And the wife had Iudgment to recover and the Sheriff assigned to her part of the Demesnes and parcell of the Services and of the Freeholders and Copyholders And it was resolved clearly that the Copy-holds did not passe by the assignment and that she could not grant a Copyhold for when she demanded her Dower it was at her election and liberty to demand either a third part of the Mannor or of the Messuages and when she demanded Per nomen Messuagiorum c. she cannot then have the Mannor nor can a Mannor be claimed unlesse by his name of Corporation as Anderson termed it and not otherwise And the Lands and Acres cannot be called Mannors and then the grant of a Copyhold by one who hath no Mannor cannot be good And so was the opinion of the Court and yet the Sheriff had assigned to her Demesnes and Services and all things which make a Mannor And 29 Ed. 3.35 If a Mannor to which an Advowson is appendant be delivered by the Sheriff in execution by the name of a Mannor cum pertinentiis the Advowson passeth also but it is otherwise if it be delivered in extent by the name of Acres Lands Meadow Wood c. Wakefeilds Case 28 Eliz. Rotulo
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
opinion he relied upon the intention of the Donors which ought to be observed For if the Habendum does crosse the Premisses it shall be void but a Remainder is good for the benefit of a stranger but a Rent cannot be reserved upon such a Gift during the foure degrees but after the Reversion is good if he do attorne to the Gâ—…ntee of the Reveâ—sion Windham Frank-marriage is not an Estate in taile for there wants the word Heires Coke lib. 1.103 So a Gift to a man semini suo 10 Ass 26. and after Meade â—greeâ— with Windham although the grounds of Frank-marriage were not observed yet that it was good for although there be no Tenure between the Donor and Donee yet is it a good Frank-marriage Dyer It is no good Frank-marriage because the usuall words are not observed and if the word Liberum be omitted it is not Frank-marriage neither is it good given to a man but it must be to a woman for a man cannot give land to a woman Causa matrimonii praelocuti And in this case the party ought to be of the blood of the Donor who by possibility may be inheritable to him and there ought to be a Tenure between them and an acquittall and if any faile it is no Frank-marriage and he said further that if it once takes effect as Frank-marriage and then the Donor grants the Reversion or the Reversion discends to the Donees yet it shall not be destroyed but shall remaine as an Estate in taile and not for life because it once took effect in the Donees and their issues and if land be given to a man in Frank-marriage the remainder in taile yet this shall not destroy the Frank-marriage and the Donee shall hold of the Donor and not of him in the remainder And if one give land in Frank-marriage the remainders to the Donees in taile yet is this a good Frank-marriage and if the Donor grants over his Services yet doth the Frank-marriage continue although the Donees attorn for they are incident to the Reversion and therefore the Grant is void but if the Reversion be granted the Services will passe and he concluded that the Husband had all and the Wife nothing because no Estate to her is mentioned in the Premisses and he could not construe the words to be the intent of the Donor for here is an expresse limitation of the fee to the Husband and his Heirs which cannot be controlled by intendment And after 25 Eliz. It was adjudged to be no Frank-marriage nor gift in taile but a Fee-simple And the Iustices said that the ancient Books were that where it took not effect as a Frank-marriage it should be in especiall taile yet those at this time are not Law But they agreed that this at one time took effect as Frank-marriage and by matter ex post facto may be made an Estate in taile Mich. 30 Eliz. Gibbs Case GIbbs brought an Action of Trover against Basil for a Gelding the Case was One Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and it was entred so in the Toll Book that Lister sold him The question was if this alteration of his name shall make any alteration of the property although the sale was in open Market Windham and Rhodes Iustices held this no good sale to bar the Plaintiff and grounded their opinion on the Statute of the 2 and 3 Phil. and Mar. cap. 7. which provides that no property of stollen Goods shall be altered that are sold unlesse the name and surname of the parties to the sale be written in the Toll-book And Shuttleworth moved that it should be in the Market and walked there for an houre together which is not set forth by the Defendant in his Bar but the Iustices said that such speciall plea need not to be but shall be intended Rouses Case IT was moved in this Case that if Tenant for terme Dauter vie does continue and hold in his Estate after the death of Cestuy que vie If he be a Disseisor and whether in pleading the plea ought to be seised and not possest Shuttleworth He was legally in at first and therefore cannot be a Disseisor 15 Ed. 4.41 A Freehold could not be gained where he came in by the agreement of the party and 12 Ass 22. Where the Husband and Wife were seised of a Freehold and after were divorced by Suit on the womans part whereby the woman is to have all the land yet if the Husband continue possession and dies seised this discent shall not take away entry because he was no Disseisor Gawdy He is Tenant at sufferance and no Disseisor and there it was moved that if Tenant at sufferance or a Disseisor makes Copies of Copyhold Lands if they be good or voidable And note that Wilde took here a diversity between a Termor that holds over and a Tenant at sufferance for in case of a Tenant at sufferance there is no Freehold taken from the Lessor which the continuance of possession doth not take from him but where the Tenant holds over his terme there the Freehold is disturbed and therefore there is a disseisin But at that present it seemed to the Iudges that there was no diversity But the next terme Godfrey moved that if Tenant for anothers life held over his Estate he had Feesimple and he granted that it was otherwise in some cases for if he claim to be Tenant at the Will of the Lessor he shall not gaine a Fee-simple For Littleton in his Chapter of Releases 108. saith that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold and such Occupyer claimeth nothing but at Will But in this case the Tenant claimes otherwise then at Will of the Lessor he does not claim any thing but at the Will of the Lessor as in the case of Littleton but claimes to hold over against the Will of the Lessor which is no Tenant at sufferance and 10 Ed. 4. If a man makes a Lease at Will and the Lessor dies and he continues possession and claims fee the Heire shall have a Mortdancester and 18 Ed. 4.25 If Cestuy que use dies and the Tenant continues in and the Tenant is impleaded the Lessor shall not be received and the reason is because there is no reversion in him but the Tenant hath it and 22 Ed. 4.38 by Hussey Iustice If a Termor holds over his Terme there an Estate in fee is confest to be in him by matter of Law but it is a deubt whether he be a Disseisor or not but it seemeth not for a Trespasse doth not lye against him before Regresse and in the 7 H. 4.43 If a Guardian holds the possession at the full age of the Heir or Tenant for years after his terme expired the Estate shall be judged in Fee And in our case he hath
therefore the Action shall continue And if a man be outlawed he may bring an Action as Executor and the Writ shall not abate Browne If I make I.S. my Attorney and he the Warrant of Attorney still continuing is made a Knight yet is not the Warrant of Attorney determined although the word Knight which is now part of his name be not in the Warrant therefore in this case the Writ is good Mich. 7 Eliz. NOte it was said by Browne that if H. does let the Cite of his Mannor with all his Lands to the said Mannor appurtenant hereby all the Demesne lands do passe but if it were with all the Lands appertaining to the said Cite nothing passeth but the Mannor-place Pasch 6 Eliz. A Man seised of the Mannor of Dale doth let the same with all the Members and Appurtenances to the same to have and to hold all the members of the said Mannor to the Lessee for terme of years Walsh and Weston were of opinion that this was a Lease for years of the Mannor onely and that the limitation of the word Members being after the Habendum was void But Dyer and Browne were of the contrary opinion And Browne said that when the Habendum is used by way of limitation it shall not be void As if he let his Mannor of Dale to have and to hold one acre parcell thereof for a terme of years the Lease is void for all but if there had been no Habendum but the Lease for years had been limited in the Premisses of the Lease that is good enough And if the Lease had been Habendum every part thereof that had been a good Lease of the Mannor for all the parts comprehend all the Mannor And Dyer said that the word Members shall be taken for the Townes and Hamblets wherein the Mannor hath Iurisdiction Note it was said by Dyer that if partition be made by the Sheriff although the Writ be not returned yet it is good enough and none of the parties shall except against it and so was the better opinion concerning the Estate of Culpeper and Navall in the County of Kent Sutton brought a Writ of Ravishment of a Ward against Robinson wherein it was resolved by Dyer Carus Weston and Benlowes That if the Tenant enfeoff his Lord and others all the Seigniory is extinct also if the Tenant does infeoff the Lord but of a Moyety yet is all the Seigniory extinct And Dyer said that if the Tenant does infeoff the Lord and a stranger to the use of another and his Heires and makes Livery to the stranger this is no extinguishment of the Seigniory but if the Livery were made to the Lord it is otherwise and yet is the possession instantly carried away to the stranger by the Statute of 2 H. 7.13 A man seised of lands devises the same to his Wife to dispose and imploy them for her self and her Son according to her will and pleasure Dyer Weston and Walson held that the Wife had a Fee-simple by the Intendment of the Will and the Estate is conditionall for ea intentione will make a Condition in a Devise but not in Grant vide Dyer 2â— 6 A woman Tenant in taile makes a Lease for one and thirty years and after takes a Husband who have issue the Husband being Tenant by the Curtesie surrenders the Heirs doth oust the Lessee and the Lessee brings an Ejectment And it was held that the Surrender was good and that the Privity was sufficient Mich. 40 Eliz. IN an Action of the Case for calling one Bastard Dyer and Walsh said an Action would lye but Browne on the contrary because it shall be tried in the Spirituall Court And Dyer said That at Barwick Assises a Formedon in the Discender was brought and one said that his Father by whom he claimed was a Bastard and thereupon he brought an Action against him for those words and recovered Catlin said That if Lands be given to a man and to the Heires he shall engender on the body of an English woman and he marries a French woman and she dies and then he marries an English woman that now this is a good Estate in special taile Pasch 7 Eliz. THe Prior and Monks of the Charter-house before the dissolution made a Lease for foure years reserving the ancient rent of twenty five Quarters of Wheat per annum and then the house was surrendered into the hands of King Henry the eighth and then the Lord Chancellor did let the said rent of twenty five Quarters of Wheat to I.S. for foure and twenty years And it came into question between I.S. and the Termor if this was warranted by the 27 H 8.28 Harper and Portrell it is not for the Statute is that they may make Leases of any Mannors Lands Tenements and Hereditaments for one and twenty years c. and this Wheat is neither Land Tenement nor Hereditament but a Chattell and shall be demanded in an Action of debt But the opinion of all the Court was that the Lease was good and they did agree that it was directly within the word Hereditaments for it may discend or escheat and the wife shall be endowed thereof Also upon a Lease of Corne a Rent may be referved for a man may reserve a Rent upon a Lease of a Rent and the Rent is not parcell of the Reversion but onely incident thereunto and the Lessor hath the same inheritance therein as he hath in the Reversion Trin. 7 Eliz. AN assurance was made to a woman to the intent it should be for her Ioynture but it was not so expressed in the Deed. And the opinion of the Court was that it might be averred that it was for a Ioynture and that such averment was not traversable and so was it in the case between the Queen and Dame Beaumont Winter brought an Action of the Case against Barnam for these words viz. Thou Murtherer Dyer and Walsh said that the Action would lye for there are some words that cannot be qualified as Murtherer Theef Extortioner false Knave and in such Case an Action will lye but contrary where such words are spoken in a jesting way Note by Dyer that the Lord Fitz-James late Lord chief Iustice of England did devise his land to Nicholas Fitz-James in taile with divers remainders over and in the same devise he devised divers Iewels and peeces of Plate viz. the use of them to the said Nicholas Fitz-James and the Heires Males of his body In this case it was the opinion of the Court that the said Nicholas had no property in the said plate but onely the use and occupation And the same Law where the Devise was that his Wife should inhabit in one of his houses which he had for terme of years during her life because the Wife takes no interest in the terme but onely an occupation and usage out of which the Executors cannot eject her during her life but Walsh held the contrary Hil. 8 Eliz. IF a Bishop
to pay the Rent to me because the receit is no wrong But it is otherwise in the first case for when the Tithes are set forth they are presently in the possession of the Parson so that when the Defendant takes them he is a wrong Seisor of them and therefore no account will lye against him And so was it adjudged in a case of a Mannor in London where one under colour of a Devise did occupy the Land for twenty years which Will afterwards was made void and thereupon he to whom the right of the land belonged brought an account and it was adjudged that it would not lye Harper An Account will lye against a Procter so that the Plaintiff may charge him as Procter and it is no plea for him to say he is no Procter no more then it is for a Guardian in Socage to say he is not Prochein amy Dyer there are three Actions of Account One against a Baily another against a Receiver the third against a Guardian in Socage And if an Account be brought against a man as Receiver he must be charged with the receipt of the money but if the Defendant pretends he is Owner of it it is contrary to the nature of an account and therefore he is not chargable in such Action but he may plead Ne unque son Baily pur account render for in an Account as my Brother Manhood said there must be privity But an Abator or an Intruder shall not be charged in an Account because they pretend to be Owners But in this case the Lessee may have an Action of Trespasse against him for the Tythes were immediatly upon the setting forth in the possession of the Lessee and by the Statute of the 31 H. 8.7 he may have an Ejectione firmae but an account will not lye in this case Mich. 14 Eliz. TEnant in Dower commits Waste and the Waste was assigned in this Case that the Lessee had destroyed a hundred Does of the Plaintiffs whether this was Waste or no was the question Dyer I think it no Waste unlesse she had destroyed all the Deer Manwood If a Lessee of a Pigeon house destroy all the old Pigeons except one or two yet it is a Waste and so is this although all be not destroyed Mich. 15 Eliz. A Man is indebted by Obligation in a hundred pounds to a Testator this Obligation is not Assets in the hands of the Executors untill it be recovered by them because it is but a Chose in Action but if in such case the Executor release the Debt now he hath determined the Action and hath made it Assets in his hands to the whole value of the Bond. Bliss against Stafford MArgaret Bliss who was in Remainder after an Estate in taile did bring an Action on the case against Edward Strafford for standring her Title in affirming that A. had issue one B. who is alive and the Defendant pleaded not guilty and the Action adjudged good by all But did abate for an exception to the Count. Pasch 13 Eliz. UPon the Statute of Recusancy made the 29. of Elizabeth Thomas Salherd and Henry Evered being committed of Recusancy for not paying twenty pounds for every month a Commission was awarded to enquire of their Goods and Lands in Suffolk to levy the said Debt and amongst other Lands certain Copyhold Lands were seised and being returned the parties came in and by way of plea did set forth that some of their Lands seised were Copyhold and did pray Quod manus Dominae Reginae amoveantur and hereupon the Queens Attorney demurred upon which the question was if Copyhold Lands were within the said Statute of the 29 Eliz. Snagge The Lands and Hereditaments which the Statute speaks of are such as are known by the Common Law and not by Custome for it I grant all my Lands Hereditaments in D. my Copyhold lands will not passe so that it seems to me Copyholds are not within the Statute Popham contra If Copyhold Lands are not within the Statute some persons shall be free and he held that Lands in ancient Demesne were within the meaning of the Statute although not within the words and he agreed that where a Grant is made of all my Lands and Tenements in D. that Copyhold Lands passe not because they cannot passe by such assurance and that Copyhold Lands were not within the Statute of Bankrupts if they be not particularly expressed and a Copyhold cannot passe by grant but by surrender But after great debate it was adjudged that Copyhold Lands are not within the Statuto by reason of the prejudice that may come thereby to the Lord who hath not committed any Offence and therefore shall not loose his Customes and Services Trin. 30 Eliz. IN the Case of Viscount Bindon it was holden that if a man hath Iudgment in Debt upon an Obligation and no execution yet he may commence another Action upon the same Obligation but otherwise of Contract 9 Ed. 4.51 A question was moved that if a man grants Vesturam terrae what doth passe and it was said by Clerk that one man may have the Vesture another the Soil Lord chief Baron he who hath Vesturā terrae cannot dig the Land And if many have a Meadow together viz. to be divided amongst them every year by lots how much every one shall have of grasse in such a place and how many in such a place and so to change every year according to the lots they have not a Freehold but onely vesturam terrae Dyer 285.6.14 H. 7.4 6. 21 H. 7.37 Dyer 375.6 13 H. 6.13 14 H. 8.6 In the Case of a Dean and Chapter the question was that if Lessee for years be rendring Rent with clause of re-entry for non-payment and then the Reversion or Rent be extended by a Statute or seised into the hands of the King for debt if the Lessee shall pay the Rent according to the extent and no breach of the Condition although he pay not the Lessor And the chief Baron held it was no breach of the Condition because he is now compellable to pay it according to the extent Caltons Case IT was moved by Serjeant Fenner and agreed by all the Barons that if the King make a Lease to A. rendring Rent and there the Lessee lets parcell hereof rendring Rent in this case the second Lessee shall not have the priviledge of the Exchequer to fly thither to be sued concerning this Land because that by such means all the causes in England may be brought into the Exchequer and hereupon Fenner said that he had demurred upon a Bill exhibited into the Exchequer Chamber by such a Lessee and prayed the Court that he might not answer and he was thereupon dismist Vpon not guilty pleaded the parties joyned issue and after evidence given and the Iury dismist from the Bar some of them had Apples and Figgs whereof the Court taking notice when they came to give their Verdict did examine them upon their
Deforceants Qui quidem finis fuit ad usus intentiones in Indentura praedict specificat by force whereof the said Thomas and Margaret were seised but the Iury found nothing of the Marriage whether it took effect or not and further found that William Pile and Philip his Wife had Primogenitam prolem a Daughter and then died and then Thomas Beale died and his Wife inter married with one Lamock who made a Lease to the Plaintiff who was ousted by Layton the Lessee of Philip Pile And hereupon it was moved by Gawdy Serjeant that inasmuch as the Marriage took no effect between Thomas and Margaret the uses cannot be in them but the Fine shall be to the use of the Conusor which was opposed by Walshey Serjeant who said that it was not like a Covenant in consideration of marriage to stand seised of such a Mannor for there if the considerations faile the uses faile also for the consideration onely is the sole and entire cause that makes the uses to arise but in this case the consideration is not materiall but the Fine effectuall without consideration of money paid and if a Feoffment be made to the use of I S. although no money be paid yet I.S. shall have the Land Windham The Cases differ much for here the Fine is not exprest to be levied to the use of Thomas and Margaret but to the uses and consents contained in the Indenture but he said that the common course was to limit the use to the Conusor untill the Marriage took effect and after as before was urged by Walmsley And the Iury found that Thomas and Margaret were seised accordingly Winham They are no Iudges to determine doubts in Law Rhodes Iustice Herein they have taken notice but of the matter in fact and he affirmed the difference put by Walmsley Windham The case de matrimon praelocut is stronger then this Case for the secret intention shall reduce the Land if the marriage take no effect And after the Court being full they all agreed to the difference put by Walmsley and also that the sale afterwards was not good by reason of this Limitation And Iudgment was given for the Plaintiff accordingly Hil. 26 Eliz. Britman against Stanford UPon a speciall Verdict the Case was A House Stable and Hay-loft were demised to one for yeares rendring foure and twenty pounds Rent per annum and foure and twenty pounds for an In-come quarterly by equall portions upon Condition that if any of the Rent or In-come be behind at the time it ought to be paid that then the Lease shall cease and determine The Lessee makes a Lease of the Stable to the Lessor and after part of the In-come is behind and unpaid and the Lessor enters for the Condition broken into the house And if this was a good entry was the question And Iudgment was given that the Condition was gone and void by reason of the Lessors taking part of the thing demised because a Condition is speciall and intire and not to be severed And in this Case Fenner said that a Grantee of a Reversion cannot take benefit of a collaterall Condition as in case of a grosse summe but in case of a Rent waste c. it was otherwise Mich. 29 and 30 Eliz. Rot. 2529. Doctor Lewin against Munday IN a Replevin by Lewin against Munday it was found by Verdict That a Fine was levied the 14th of Elizabeth between Lowla and Rutland Plaintiffs and Fook and seven others Deforceants of the Mannors of Gollochall whereby the Defendant did grant the Mannor to the Plaintiffs and the Heires of one of them who granted and rendred twenty pounds per annum to the said Fook and his Heires with a Distresse for non-payment Fook seised of the Rent makes a grant to a stranger in this manner That whereas a Fine was levied the 14. of Eliz. of the Mannor aforesaid and divers other lands c. and mistook the Mannor for he put the names of the Conusees in place of the Conusors and so e contra and that it was levied of the Mannor and divers other lands whereas the Fine was levied of the Mannor solely and that he did grant the said Rent granted unto him to the said stranger and his Heires And this grant was adjudged by Anderson who said that if one recite that he hath ten pounds of the grant of I.S. whereas it was of the grant of I.D. yet it is good Hil. 30 Eliz. Rot. 17.32 Hunts Case HUnt brought an Action on the Case against Torney and declared that he being seised of lands in Swainton in Norf. in fee Secundum consuetudinem Mannerii the Defendant did promise to the Plaintiff in consideration the Plaintiff would permit him to occupy the same for the space of five years that he would pay him at the Feast of All-Saints next coming and so yearly twenty pounds at the Feasts of the Annunciation and All-Saints by equall Portions during the terme aforesaid and alledged that he had injoyed the lands by the space of a year and half and so brought his Action on the Assumpsit And Anderson was of opinion that untill the five years were expired no money was to be paid because the Contract was intire But all the other Iustices on the contrary for the consideration was to pay a certain summe yearly which made severall duties and so severall Actions For by Periam if a man be bound to pay I.S. twenty pounds in manner and forme following viz. ten pounds at such a day and ten pounds at such a day in this case the Obligee cannot have an Action of Debt for the first before the day of payment of the last ten pounds be past because the duty in it self is an intire duty but if a man be bound to pay I.S. ten pounds at such a day and ten pounds at such a day here the Obligee shall have his Action for the first because the duty was in it self severall Anderson at another day said that if a man makes a Lease for ten years rendring Rent in that case he may have an Assumpsit for the Rent due every year So if I covenant with you to build you twenty houses the Covenantee shall have a severall action for each default Periam That Case of the Assumpsit is much to the purpose for an Assumpsit is in the nature of a Covenant and is indeed a Covenant without writing Rhodes cited this Case Gascoigne promised in consideration of a marriage of his Daughter with such a mans Son to give seven hundred marks and to pay a hundred marks every year untill all the sunun were paid and it was held clearly in this Court that a severall action might be brought upon every hindred pounds but because the action was brought for all the seven hundred marks before the seven years were out Iudgment was given against him for if a man be bound in a Bond of a hundred pounds to pay twenty pounds for so many years he
Rot. 610. Bond against Richardson In Debt the Defendant pleaded payment at the day and gave in evidence payment at another day before the day of payment and so was it found by the Iury in a speciall Verdict And Anderson said We are all agreed that Iudgment shall be given against the Plaintiff for payment before the day is payment at the day and Iudgment was given that the Plaintiff should be barred Willis against Whitewood A Man was seised of lands in Socage and made a Lease for years by Paroll and died his wife was Guardian in Socage to his Son and the Lessee accepted of a new Lease by Deed of the Guardian in Socage and then the Guardian died and a new Guardian entred and outed the Lessee and if the second Guardian could do this was the question Anderson It cannot be a surrender for a Guardian hath no Estate that may be surrendred but it is an extinguishment of the Lease and if a Woman Guardian in Socage takes Husbandâ— and dies the Husband shall not be Guardian in Socage Almeskey against Johnson JOhnson had a second deliverance returned which was returned Averia eloigniata c. whereupon he prayed a Withernam of the Cattle of the Plaintiff and it was granted and then came the Plaintiff and satisfied the Defendant his damages and charges and praid a Writ of Restitution to have his Cattle again taken in Withernam Fleetwood Cattle taken in Withernam are not repleiditable how then can you have your Cattle and then we shall not be paid for the meat And the Court held that the Cattle were not repleivisable but for satisfaction of damages he shall have restitution of the Cattle and so is the course which was confirmed by the Clarks And Walmesley cited 16 H. 6. Repleviâ—… to warrant this And as to the meat he had the use of the Cattle whereby it was reason he should sustain them And a Writ of Restitution was granied Mich. 31 and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood it was said that the Order called the Cistrenses Order hav a priviledge that they should pay no Tythes for the lands that Proprils manibus excolunt but if they let it to Farmers then they were to pay Tythes and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tythes was the question And it was said that the Queen and her Farmers also should hold the land discharged of Tythes as well as the particular persons of the Order should for the King cannot be a Husband and therfore his Farmers shall hold the land discharged so long as the King hath the Freehold in him although he make a Lease thereof for years at will but to if the King sell the land to another or the reversion to another then the Farmers shall pay Tythes Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumont that a Debt which is not naturally a Debt in it self but a Debt onely by circumstance may be assigned to the Queen As where a man is bound in a Bond to save another harmlesse and failes thereof the Obligation may be assigned to the Queen But in such case a present extent shall not be awarded but the Processe shall be onely a Scire facias against the party to see if he hath any thing to plead against it which note well And where a man recovers damages in an Action on the case parcell of the damages cannot be assigned to the King before execution for he must bring a Scire facias upon such Record And Manwood chief Baron held clearly that a moyely hereof could not be assigned over 22 H. 6.47 One was indicted of Treason at S. Edmundsbury Coram Justiciariis ad diversas felonias c. audiendas and after the Indictment made mention of Bury and did not say praedict and by the opinion of the Iustices the Iudgment was quasht Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert for saying that the Plaintiff was a Suitor to a Widow in Southwark and that he consened her of her money in procuring false witnesses to consen her And a Verdict found for the Plaintiff And in Arrest of Iudgment it was said that in the case of Kerby it was adjudged that Cousener will not beare Action and so was it adjudged in this case Mosse against Reade THe Defendant called him Theef and thou forgest a Deed and a Verdict was found for the Plaintiff and in Arrest of Iudgment it was said that Theef generally without saying of what nature specially will not bear Action But Wray chief Iustice denied that and said that it had of late been adjudged to the contrary and Gawdy against him But as to the words that he had forged a Deed adjudged that the Action will lye although it be not specially alledged what manner of Deed was forged Pasch 32 Eliz. COllings informed upon the Statute of buying of Tythes against Robert Davyes and Stock And it was said by Periam that although the words of the Statute be Pro termino diversorum annorum yet if a Lease be made but for one year yet is it within the penalty of the Statute Mich. 31 and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury and others and declared upon a Grant of the next avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance and upon this there was a Demur And the whole Court for the Demur for that such Letter was a mockery for the Grant was not good without Deed and Iudgment was given accordingly In Tymbermans Case it was said that if a Sheriff took one in Execution by force of a Capias although he return not the Writ yet an Action of Debt will lye against him upon an escape and Periam said it had been so adjudged Katherine Gilham brought an Ejectment as Administratrix to her Husband Quare determino eject bona catalla sua ibidem inventa cepit c. and a Verdict for the Plaintiff and it was alledged in Arrest of Iudgment that this word Sua shall not be intended her own Goods and not the Testators And the Court was of opinion that Sua shall be intended in such manner as Administrator and no otherwise And therefore Iudgment was affirmed Mich. 31 and 32 Eliz. Baldwin against Mortin USe to the Husband and Wife habendum to the Husband for thirty years the Wife shall take nothing thereby and this case was argued at the Bar and Bench and was called the Earl of Cumberlands case Fleetwood moved that an Action was brought against the Husband and his Wife and dit declare a trover of the Goods of the Plaintiff by the Wife which she converted to her own use and prayed
expounded as they are commonly taken and not to go to any strict construction of the words as Heirs in the Latine is used also for goods by the Civill Law but we use it only for lands and so Libra in Latine signifies a Weight and yet if I am bound in Vigint Libris if I forfeit my Bond I must pay money and not Lead or the like And so the word Puer is somtimes taken for a servant Claudite jam rivos pueri c. and the same reason that it may be intended for a Daughter may be for a Servant also Gawdy I suppose the Son shall have it and not the Daughter for although Pueri was taken for Male and Female yet now it is taken for Male in any Modern Author but to omit curiosity of words we ought to consider rather the intent of the parties and there are many circumstances to prove that he intended this to his Son and not to his Daughter for he made it for setling his Inheritance and it shall not be supposed that he intended his Daughter should have it Also where the case may be taken two waies the most usuall shall be intended as in case of a reservation of a Rent at Michaelmas that shall be intended at the chiefest Feast also in this case it shall be intended that he would advance the most worthy of his blood and therefore to that purpose the conveyance shall be expounded for if there be two I. S. and I give land to I.S. it shall be intended to my next Neighbour but if one be my Cosin although he dwells forty miles from me yet he shal have the land And to this Southcote accorded 31 Eliz. in B. R. Hone against Clerk A Woman Lessee for life takes Husband who by Indenture makes a Feoffment of the land to I.S. for these words Sciant per Servantes Richardum How Katherin uxor ejus dedisse I.S. unum messuagium habendum praedict I.S. heredibus suis ad solum opus usum of the said I.S. and his Heirs during the life of Katherine The question was if this was a forfeiture because the wife was Tenant for life and the Attorney argued that it was for the words Pro termino vitae Katherin are referred to the use only and not to the estate for by these words habendum to him and his Heirs the estate is limited and therefore it is a forfeiture but after comes the limitation of the use ad usum I.S. and his Heirs during the life of the woman and after the death of the woman the use remaines in the Feoffor and he cited the Lord Sturtons case in the beginning of the Queens Raign The Lord Sturton gave land to Clerk and his Heirs to the use of Clerk and the Heirs of his body and adjudged that it was not an estate in taile for the limitation of the estate was before in the Premises Coke on the contrary and said that those words For life of the wife are to be referred to the limitation of the Estate for if a double sense be in words such sense shall be taken as shall avoid all wrong and therefore it shall not be so expounded as that the Grant shall not take effect and that a forfeiture shall ensue 4 Ed. 2. and see a notable case for exposition of words and for relation of words and sentences 34 Ed. 3. Avowry 58.28 H. 8. Dyer Gawdy It is a forfeiture Clench said he would advise but afterwards it was adjudged a forfeiture for as Wray said the estate given was forfeit Mich. 36 37 Eliz. Bagnall against Porter in B. R. Rot. 353. A Man by Indenture bargains and sells his land and if the Bargainor pay 100 l. at such a day that then he shall be seised to the use of the Bargainor and his heirs and did assume to make such assurance for the security of the land as should be advised by the Councell of the Bargainor and the Bargainee bound himself in a Recognizance to performe the said Covenants And in debt upon the Recognizance it was shewn that the Bargainor paid the money at the day and had tendred to the Bargainee a Deed in which was comprised an acquittance of payment of the money and also a release of all his right and the Bargainee refused to seale it Coke was of clear opinion that he ought to have sealed it for it is necessary to have the Deed to mention payment of the money for otherwise the Bargainee and his heirs may claim the land for default of payment Gawdy of the same opinion and cited 19 Ed. 4. Popham The case is not so clear for if he had tendered an acquittance only there is no doubt but the Bargainee might refuse to seale it and by the same reason he may refuse when it is joyned to a thing that he is bound not to do viz. to seal the release but at last the matter was referred to Arbitration Hillar 37 Eliz. COke demanded this question A man having two Daughters his Heires does demise his Land to them in Fee What estate had they by this Demise For if a man deviseth Land to his eldest Son it is voyd and he is in by descent That it was holden by the Court that they shall hold by the Devise because that he gives another estate to them then descended for by the descent each of them had a distinct moyety but by the Devise they are Joyn-renants and the survivor shall have all And Fenner sayd If a man had Land in Burrow-English and Guildable Lands and devised all his Land to his two Sons and dyes both of them shall take joyntly and the younger shall not have a distinct moiety in the Burrow-English nor the elder in the Guildable Land but they are both Joyn-tenants Pasch 37 Eliz. Carrell against Read in B. R. Rot. 270. A Lease for years was made of divers Fenny grounds in Cambridge ss and the Lessee covenanted to defend the ground for being surrounded with water and to drain the water out of other lands that were demised to him in the said County And upon an Action of Covenant for not performing the Defendant pleaded that the Plaintiff had entred in the land demised And adjudged no plea by the Court because the Covenant was not in respect that the Lessee should enjoy the land nor was it a Covenant abhering to the land but to a collaterall thing but if it had been in respect of enjoying the land there it is a good plea to say that the Plaintiff had entred but where the thing to be done is collaterall it is otherwise and also if he did plead such plea yet it is not a bar unlesse he holds him out of possession Coke lib. 3.221 4 Ed. 3.29 the Lord shall not have a Cessavit after entry in parcel 10 Ed. 4.11.35 H. 6. Bar 162.19 Ed. 4.2 Trin. 37 Eliz. in B. R. Rot. 1076. Dogrell against Perks IN an Action of Covenant The Defendant pleaded
before the Inrolement land passeth to the Bargainee and the Bargainee hath a Freehold in him before the Inrolement and whereof his wife shall be endowed and if the Bargainor levies a Fine or acknowledge of Statute the Bargainee shall avoid them and deased the case of Morgan cited by the other side and cited the case of 6 Ed 6. where were two Ioynt-tenants and one of them bargained and sold his Moyety and then the other Ioyntenant died and then the Deed was inrolled there nothing passed but a Moyety but it seems in that case that by the Bargain and Sale the Ioynture is severed before the Inrolement so that there is no Survivorship but the Book speaks not of it and if a Bargainee be of lands held of the King without license of a alienation there the forfeiture to the King shall relate to the first delivery of the Deed. Warberton contra Before the Inrolement there is but a commencement of the Bargain and before all circumstances in the Deed mentioned are performed it is no Bargain and I hold the Deed shall have relation to the delivery to prevent all Charges Contracts but as to strangers it shall not have such relation If Tenant for life bargains and sells his land to another and his Heirs and then makes a Feoffment in fee to another before inrolement this is no forfeiture Anderson A release made to a Bargainee before inrolement is void then if this Scire facias be well brought no Act of the Bargainee shall avoid it Walmsley If there be a Bargainee and before the Inrolement the Bargainor enfeoffs him he is in by the Feoffment and not by the Bargain which proves that no estate is really in the Bargainee before Inrolement Kingsmill The reason of that is because it is out of the Statute for the Bargain and Sale was onely delivered and he said that the wife of the Bargainee in such case shall be indowed But the Court denied that and all agreed that the wife of the Bargainee before Inrolement shall not be indowed Kingsmill said that it was a usuall course in a Recovery to make the Bargainee Tenant of the Precipe And it was said by all the Iustices that if Tenant for life be impleaded the Bargainee of the Reversion after Inrolement shal be received and yet if hanging the Writ he purchase the Reversion he shall not And after many arguments it was adjudged that the Scire facias was not well awarded And Iudgment given for the Plaintiff 37 Eliz. in C. B. Day against Austin IN a Trespasse the Defendant justified the taking of a Furnace fixt to the earth because the Sheriff upon an intent sold it to him And by the Court it was held a good discharge for if a stranger takes my Horse and sells him a Trespasse will not lye against the Vendee but a Detinue But if one sells my Horse and a stranger takes him he is a Trespassor Walmesley and Beaumond Although such Furnace be fixed by the Termor yet he may take it away within the term but the Sheriff cannot attach it and the Termor may pull down a Wall made by him and it is not waste And at another day the case was recited to be thus The Lessee made a Furnace for the use of a Dyer and fixed it to the wall of his house and the Lessee being condemned in debt the Sheriff came to the Furnace and put his hands upon it and delivered it to the Defendant and the Lessee brought a Trespasse Glanvill A Furnace may be delivered in execution and the house never the worse but otherwise of the doors because the Lessee cannot be without them 42 Ed. 3.6 it is not waste to take away a Furnace 21 H. 6.26 said there that the Heir shall have such Furnace but this does not prove that it is not a Chattell but the cause wherefore the Heir shall have it it is because it is annext to the land as in the case of writings which are meer Chattels Beaumound It is doubly fixt to the land and to the wall and it is clear that the Sheriff cannot take it from the wall Dyer The diversity is when the Furnace is fixt to the middle of the house and when to the wall for the Termor may take it from the middle of the house but not from the wall for the wall is worse for taking it away and therefore it is waste And to this Owen agreed Pasch 35 Eliz. in B. R. Rotheram against Crawley Rot. 332. IN debt upon a Bond the case was Divers questions were made between the Plaintiff Lord and the Defendant Tenant concerning Relief whereupon they referred themselves to the Arbitrement of I.S. who did award that the Plaintiff should make a Release to the Defendant which was done of all Actions Duties and Amercements and then upon this Action brought by the Plaintiff for a collatterall thing the Release was pleaded in Bar. Coke Attorney The Plaintiff shall not be barred by this Release for Deeds ought to be expounded according to the intent of the parties and the intent of the party was to release no Duty but the Relief which was only in question this word Duties being interposed between Reliefs and Amercements shall be intended Duties of such nature as Reliefs and Amercements and no otherwise as it is in Dyer 23 Eliz. A man grants and to farm lets such land with wood this is no grant of the wood and yet there are words sufficient to passe the wood but being conjoyned with the words And to farm let it shall be expounded that it was not intended to have it be an absolute Grant But adjudged that it was a good Bar and Iudgment was given accordingly Hil. 37 Eliz. Goodway against Michell GOodway brought a trespasse against divers persons Quare clausum fregerunt duas Ramas perches of hedge fregerunt The Defendant by way of justification said that the place was in the Parish of Hadnam in Ely and that all the Parishioners time out of mind have used to have passage through the said Close in Rogation week to make their Perambulation of the Parish because that the Plaintiff hindred the Defendants as Parishioners Ramas sepes fregerunt whereupon the Plaintiff demurred Sperling The justification is not good for although Parishioners may justifie the having a way over my ground yet they cannot break the Hedges Also they have broken two Perches and two Gates which is excessive for a foot-path 15 H. 9.10.6 A Commoner cannot break all the hedge upon the land where he hath Common Savile cont All the Parishioners ought to go their Perambulation and being a great number they may well enough justifie for they are not compelled to keep the foot-path 6 Ed. 2. F.N.B. 185. b. Parishioners may pull down a wall that hinders them in their way to the Church and in the book of Entries there is a President where the Vicar and Parishiones did justifie an entry for
dissolved Williams But that is saved by the 3â— H. 8 for Annuities are exprest in the saving Anderson But this is an Annuity or Rent with which the land is charged Beaumond If it be any thing wherewith the land is charged it is saved but the person is only charged with this Annuity Walmsley But the 21 H. 7. is that an Annuity out of a Parsonage is not a meer personall charge but chargeth the Parson only in respect of the land And the Court would consider on the case Pasch 38 Eliz. in B. R. The Case of the Dean and Chapter of Norwich THe Case was A Church in which there had been a Parson and a Vicar time out of mind and the Parson used to have the great Tythes and the Vicar the small and for the space of forty years last past it was proved that the Parson had Tythes paid him out of a feild of twenty acres of Corne and now the feild is sowed with Saffron and the Vicar sued for the Tythes of Saffron in the Court Christian and the Parson had a Prohibition Coke I conceive the Parson shall have the Tythes for by the Statute of 2 H. 6. it is enacted that Tythes shall be paid as hath been used the last forty years and this hath been alwaies tythable to the Parson and although the ground be otherwise imployed yet the Parson shall have the Tythes and so was it in Norfolk in the Case of a Park where the Parson proscribed Pro modo decimandi to be paid three shillings fours pence for all Tythes rising out of the said Park and although the Park was after converted to arable yet no other Tythes shall be paid Popham It hath been adjudged otherwise in Wroths Case of the Inner Temple in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tythes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparkt Tythes shall be paid for Tythes are not due for Venison and therefore they are not Tythes in Specie And I conceive that Tythes of Saffron-heads shall be comprehended under small Tythes and although the Tythes of this Feild have been paid to the Parson yet it being converted to another use whereof no grosse Tythes do come the Vicar shall have the tythes and so if arable land be converted into an Orchard the Wicar shall have tythe of the Apples and so if the Orchard be changed to arable the Parson shall have tythes Quod Fenner concessit 36 Eliz. Higham against Deff IN a Trespasse the Case was That a Vicaridge by composition was indowed of the third part Omnium Bladorum decimarum of the Mannor of D. If he shall have tythes of the Freeholders of the Mannor was the question Johnson He shall not have them for a Mannor consisteth of two things viz. of Demesns and Services the Freeholders are neither parcel of the Demesnes nor the Services and therefore no parcell of the Mannor and this is proved in 12 Ass 40. a Rent-charge was granted out of a Mannor the Tenancy escheats it shall not be charged with the Rent Tanfeild contra For this word Mannor does extend to the Precincts of the Mannor and not to the Demesnes and Services onely and therefore if a Venire facias be awarded De viceneto Manerii de D. the Freeholders shall be returned also a survey of a Mannor shall be as well of the Freehold lands as of the Demesnes and if the King grants a Leet within the Mannor of D. all the Freeholders are bound to appear Fenner Grants ought not to be restrained to their strict words but are to be construed according to the intent of the parties Trin. 38 Eliz. in B. R. Ewer against Henden Rot. 339. IN an Ejectment the Iury found that I.S. being seised of a Capitall Messuage in the County of Oxford and also of a house and land in Walter in the County of Hartford makes a Lease for years of his house and land in the County of Hartford and then by Will does demise his house in the County of Oxon Together with all other his Lands Meadowes Pastures with all and singular their Appurtenances in Walter in the County of Hartford to John Ewer and whether the house in Walter in the County of Hartford does passe or not was the question Tanfeild The houses shall passe for if a man builds a house upon Black acre and makes a Feoffment of the acre the house shall passe and so if a man does devise una jugata terrae of Copyhold Land the house of the Copyhold does passe also for so is the common phrase in the Country and so if a man be rated in a 100 l. subsidy that does include houses and by the grant of a Tenement the house passeth but if a man demand a house in a Precipe there the house ought to be named Whistler contra It is true that if a man generally does devise his Land the houses passe but in this case the Devisee hath particularized his Land his Meadow and his Pasture and if he intended to have passed his houses he would have mentioned them as well as his Lande Fenner I am of the same opinion for this speciall numbring of particulars does exclude the generall intendment and if the Devisor had a Wood there that would dot passe by these words Popham contra For if a man sells all his Lands in D. his houses and woods passe by this word Lands and so was it agreed in a case which was referred to Dyer and Wray chief Justice and there reason was because that a Warrant of Attorney in a Precipe of a House Woods and Land is onely of Land which proves that land does comprehend all of them and therefore I conceive if a man does devise or bargain and sell all his lands in D. the Rents there shall passe for they were issuing out of the land But if a man be seised of three houses and three acres and he deviseth all his land in D. and one of his houses the other houses will not passe for his expresse meaning is apparant but here the words are in generall as to the lands in Walter and therefore the houses do passe But afterwards it was adjudged that the house did not passe for by the particular mentioning of all his Lands Meadowes and Pastures the house is excluded Pasch 4 Eliz. Hunt against King IN a Writ of Error upon a Iudgment given in the Common Pleas in a Formedon brought there the Case was Tenant in tail enfeoffs his Son and then disseiseth his Son and levies a Fine to a stranger and before the Proclamations passe the Son enters and makes a Feoffment to a stranger the Father dies and the Son dies and the Issue brings a Formedon The question was Whether by the entry of the Son the Fine was so defeated
Devise did occupy land for 20 years and after the Devise was adjudged voyd he that had right to the land brought an account against him and adjudged that it does not lye Harper contr For an account does lye against a Proctor and the Plaintiff may charge him as Proctor and it is no Plea for him to say that he did not occupy as Proctor no more than it is a Plea for him who occupies as Guardian to say he was not the prochein amy Dyer There are three Actions of Account 1. Against a Baily 2. Against a Receiver 3. Against a Guardian in socage and if an Account be brought against one as Receiver he ought to charge him with the receipt of money and I conceive that there ought to be a privity to charge one with the receipt of money but if one claim as Baily or as Guardian in socage he is chargeable in account but an Abator or a Disseisor is not because they pretend to be owners and in this case because by the setting forth the Tithes the property is in the Parson therefore he being Lessee for years he shall have an ejectione firma and not an Account Hillar 32 34 Eliz. Carter against Kungstead in C. B. Rotulo 120. IN a Trespass the Iury gave this special Verdict John Berry was seizin of the Mannour of Stapeley in Odiam and of other lands in Odiam and the 32 H. 8. suffered a common recovery of all his lands in Odiam Stapeley and Winkfield to the use of himself and his wife for life the remainder to the heirs males of his body quod â—lterius starent of the Mannour of Stapeley with the appurtenances to the use of himself for life the remainder to the heirs males of his body whereby they were seized prout Lex postulat The husband dyes the wife makes a Lease for 19 years and whether the Mannour of Stapeley were conveyed or not was the question Harris She shall have all for when the whole estate is limited at the beginning of a Deed it shall not be abridged afterwards Periam The estate is by way of use which shall be expounded according to the intent and will of the Limiter and if this had been done by will it is clear the woman should not have the Mannour of Stapeley Anderson If I devise my land to J.S. and afterwards by the same Will I devise it to J.D. now J.S. shall have nothing because it was my last Will that J.D. should have it But otherwise it is of a use for if I do limit an estate to the use of J.S. and in the last clause do limit the same estate to J.D. the limitation to J.D. is voyd for the repugnancy Periam As to the case of the Will I conceive it is voyd to both because it cannot be known who shall have it Anderson I am sure the Law hath been taken as I have said and there was a Case in the Vpper Bench where a man one day made part of his Will and another day made another part which was repugnant to the first part and adjudged that the last was good and the first voyd Periam I agree to this Case for here is a difference in time Anderson So is there in my Case for when I am writing my Will I am thinking how I shall dispose of my estate and it shall be intended that I have least advised concerning that which I have done last Walmesley A Vse is not to be compared to a Will for the Statute of 27 H. 8. hath made it an estate and then by the 19 of Edw. 3. If a man limits an estate at the beginning of a Deed he cannot after abridge it Periam I put this Case If a man covenants upon consideration to be seized to the use of himself for life and after to the use of his son but he further sayes that his meaning is his wife shall have it for her life this is not a voyd Clause but good to the wife and the Case was adjourned till next Term. And Harris argued again and said that a Vse was but matter of trust and for that it is apparent that the intention was that the wife should have nothing there is no reason that another construction should be made Walmesley The limitation of the Vse is but a declaration how the Vse shall be and does not give any thing and the opinion of the Court was against the Plaintiff who was Lessee of the woman and that the last Clause does countermand the first as to the Mannour of Stapeley Michael 31 32 Eliz. Brokesbyes Case in C. B. Rot. 18.15 BArtholomew Brokesby brought a Quare impedit and it appeared by his Declaration that the next avoydance was granted to him and one Humphrey Brokesby and then the Church became voyd and Humphrey did release to Bartholomew totum statum titulum c. and then Bartholomew being disturbed brought a Quare impedit in his name alone Harris The Plaintiff shall be barred for the other shall be named with him for the Release is voyd for when the Church becomes voyd it is a thing in action and of privity and confidence and cannot be released nor transferred Dyer 283. a. 28 H. 8.26 a. Where it is said that it cannot be granted over no more than an Executor may release his Executorship to his companion Beaumont In my opinion it is not a Chose in action but an interest which the Executors have and by the 14 H. 4. and 14 H. 6. If a man be seized of an Advowson in the right of his wife and the Church is voyd and the wife dyes yet the husband shall present which proves it is not a Chose in action for in the 49 Edw. 3.23 the husband shall not have an obligation that was made to his wife and in our case by this avoydance the Church is become an interest and a Chattell and therefore one Ioyntenant may release to another by reason of their privity although they have no possession Fenner The release is Totum Statum jus titulum but here he hath no estate nor possession and therefore the release is void And to prove that there is no estate nor possession it is proved by the pleadings of the grant of the next avoydance for he shews that the Church became voyd and that ea ratione pertinet ad ipsum presentare and not by force whereof he was possest and if none hath the advowson which becomes voyd and the Lord claymes the advowson yet he shall not have the present avoydance and as to the case of the Ioyntenants one cannot release to the other for default of possession for the release inanes by reason of their joynt possession which is out of them but release of the Demandant to the Vouchee is good by reason of the privity of Law that is betwixt them and in 11 H. 4. He who hath right after the Incumbent is instituted and inducted may confirme his
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
the attainder and she granted it to Bones and all actions demands and a scire facias was issued out in the name of the Queen And the principall case was adjourned but the Patentee had express words to sue in the name of the Queen although it was not so pleaded 43 Eliz. Pelling against Langden in B. R. Rot. 438. IN a trespass for breaking his Close and killing 100 Conies The Defendant justified because he had common time out of mind and because the Conies were damage Feasant in the place where he killed them The Plaintiff demurr'd and judgment given for the Plaintiff for Conies are beasts of Warren and profitable as Deer and are not to be compar'd to Foxes and vermine which may be kill'd but the Owner of the soil may keep Conies where the Common is aswell as other cattle also he may make Fish-ponds in the Common and the Commoner cannot destroy them Cook 5. Rep. 104. 22 H. 6.59 so it was adjudgâ—d Trinit 43 Eliz. Gresham against Ragge in B. R. Rot. 1295. IN trepass for entring into a house The Defendant pleaded that the Plaintiff was indebted to the Defendant in 100 l. and that he by the permission of the Plaintiffs servant the doores being open did enter to demand his debt Vpon which the Plaintiff demurred And adjudged for the Plaintiff For the servant of the Plaintiff could not licence any to enter into the house of his Mr. also a man cannot enter into anothers house to demand money unless the debtor be within the house Gawdy If it had been averred that the Plaintiff had been then in the house the Plea had been good Hillar 44. Eliz. Streetman against Eversley in B. R. IN an ejectment the Case was a Lessee for 80. years upon condition that if the Lessee his Executors or Assignes did not repairo the house within six weeks after warning that the Lease should be void the Lessee made a Lease for ten years who suffered J.S. to occupie the house and then the Lessor came to the said occupation of the house and at the house gave notice and said that the house was defective in reparations and did shew in what and so gave warning to have it repaired and after for default of reparations he entred and the Defendant as servant to the Lessee re-entred And his entry adjudged lawfull for notice given to J.S. who was but an Occupier of the house and not Lessee or Assignee of any interest of the terme was not sufficient but it ought to be to the person interessed in the terme who is liable to reparations Vid. Cooks 6. Rep. Greens case Also the notice at the house is not sufficient but it ought to be to the person of the Lessee and Popham agreed to this Trinit 1 Jacobi Shopland against Radlen in C. B. Rot. 853. IN a Replevin the question was when a Guardian in socage holds a Court in his own name and does grant Copies in reversion if this be a good Grant or not and adjudged to be good against the Heir Walmesley Dominus pro tempore of a Mannour may hold a Court and make a Grant of Copyholds but this is to be understood of perfect Lords which a Guardian is not but onely ad commodum haereâ—is and is rather a servant to the Lord than Dominus pro tempore and he cannot be called Dominus because he can neither grant nor forfeit his estate and hath nothing to do to meddle in the Mannour but to account for the profits and a Writ of Ward does not lye for the land but onely for the body Gawdy chief Justice Warburton and Daniel Justices to the contrary Who held that a Guardian in socage is Dominus pro tempore and that he hath interest in the land and may make a Lease thereof for years Commentar 293. and may avow in his own name 29 Ed. 3. Avowry 298. But a Guardian in socage cannot present to an Advowson because he cannot be accountable But Daniel Iustice said that the Guardian may present where the heir is not of years of discretion and a Guardian in socage shall have a Trespass and a ravishment of Ward 24 Ed. 3.52 and he hath the Ward by reason of looking to him and therefore he hath interest sufficient to keep Court and admit Copyholders who are not in by him but by the custome But a Bailiff of a Mannour hath no interest and therefore cannot make Grants and Copies but a Guardian hath interest provisione legis although it be such interest as cannot be forfeit and the heir cannot be at any prejudice for he shall have an account made to him of such Fines for the heir himself cannot grant them and the Law cannot compell the Guardian to occupy them neither can the Court be held in the name of the heir but the Guardian and therefore he may grant Copies And if a Guardian in socage hath such interest that he can make a Lease for years and his Lessee shall maintain an Ejectment a fâ—r â—…oti he may grant Copies Neither is it any argument at all to say that a Guardian in socage hath no interest because he cannot grant or forfeit his estase for the reason is because these things are annexed to his person And after Mich. 3 Jacob. it was adjudged that the Grant was good and shall binde the heir Vid. Keloway 46.6 37 Eliz. Brown against Hercey in C. B. Rot. 620. IT was found by office that J.S. who held the Mannour of D. of the King did dye without heir whereupon W.S. as heir to him did traverse the said Office and hereupon was at issue with the Queen if he were heir or not and depending this suit he made a Feoffment in Fee with a Letter of Attorney to make Livery and after it was found for him against the Queen and Iudgement given against the Queen but before the Writ of Amoveas manum the Attorney made Livery and adjudged good for it cannot be said that the heir at the time of the Feoffment had nothing or that the Queen at the time of the Livery was in possession for by the Iudgement given the possession of the Queen was utterly defeated and possession in the party before any amoveas manum sued out for that serves but to compell the Eschaetor to avoyd the possession it he hold the land after Iudgement Vid. Stanford praerogat 78. 10 Ass 2. 10 Ed. 3. and the difference is where the King is seized by title and where without title for when the King is seized by title and his title is determined he ought to make Livery to him that hath right but when he is seized without title and he who hath right hath Iudgement against him he may enter without Livery 5 Ed. 5. Quare impedit 34. But it was here said by Owen Iustice that if a man makes a Feoffment of White-acre with a Letter of Attorney to make Livery and then he purchase White-acre this is
for the goods themselves are not to be recovered in this action nor damages for them and so they are but collaterall to the action as in 10 Edw. 3.30 In a Rescous the Court was for taking of Cattle without shewing what Cattle and the Iury found them to be two horses and the Plaintiff had judgment where note that a verdict did help an insufficient Court and 22 Aâ—si 21 Ed. 3. a trespass was brought for taking away of Writings concerning land without shewing what they were or the quality of the land But otherwise in a detinue for Charters for there the Writings themselves are to be recovered The second and great doubt was when a man doth promise to another that if he will deliver the pawn he will pay the debt if this be a sufficient consideration to maintain an Assumpsit Foster Justice It is not for he that hath the pawne hath not such an interest in it as he may deliver it over to another or make a legall contract for it and that his delivery being illegall he cannot by his own wrong raise an action to himself and a man shall never maintain any action where the consideration is illegall and not valuable 9 Ed. 4. In an action on the Case the Defendant pleaded an accord and that he delivered the writing to the Plaintiff which concern'd the land and it was held no plea because the Plaintiff having land the writtings belonged to it And cited Reynolds Case where a man promised another 100 l. to solicite his business and it was holden that no action would lie for the money because the soliciting his business was illegall he being no man of Law Dier 355 356. Cook Warburton and Daniell cont Who said that the consideration was good legall and profitable and sufficient to maintain an assumpsit for he who hath goods at pawn hath a speciall property in them so that he may work such pawn if it be a Horse or Oxe or may take the Cowes milk and may use it in such manner as the owner would but if he misuseth the pawn an action lyes also he hath such interest in the pawn as he may assign over and the assignee shall be subiect to a detinue if he detaines it upon payment of the money by the owner as in the 2. assise Land was leased untill he had raised 100 l. he hath such interest as is grantable over And Foster agreed to this because he had power to satisfie himself out of the profits And it was agreed by the Court that if a man takes a distress he cannot work the distress for it is only the act of the Law that gives power to the distress for he hath no propertie in the distress nor possession in jure as in the 21 H. 7. Replevin A man hath returne Irreplevisable he cannot worke them for the Iudgment is to remit them to the pound ibid. remansurum vid. 13 R. 2 Brook 20 H. 7 1 a. 34 H. 8. Bâ— pledges 28.22 Edw. 4 11. goods pawned shall not be put into execution untill the debt be satisfied And it was agreed by Cook and Warburton that when a man hath a speciall interest in a thing by act in Law that he cannot work it or otherwise use it but contrary upon a speciall interest by the act of the partie as in case of a pawn Daniell There is difference between pawns which are chargeable to the parties as Cowes and Horses and things that are not chargeable and also there is a difference between pawnes that will be the worse by usage as Clothes c. For if the pawn be the worse by usage an action of the Case will lie against him that hath them pawned to him But contra of goods that are not the worse for usage Cook If I deliver goods to you untill you are promoted to a benefice you may use them which Foster denied And Iudgment was given for the Plaintiff and that they may be granted over and so a good assumpsit will lie 26 Eliz. Earl of Northumberlands Case THis case was privately argued before the Lord Treasurer because the parties agreed to refer themselves to the opinion of Wray and Anderson And the case was this the Earl of Northumberland devised by his will his Iewells to his wife And dyed possessed of a Collar of Esses and of a Garter of gold and of a Buckle annexed to his bonnet and also of many other buttons of gold and pretious stones annexed to his robes and of many other chains bracelets and rings of gold and pretious stones The question was if all these should passe by the devise under the name of Iewells And both Iustices did Resolve that the Garter and Collar of Esses did not pass because they were not properly Iewells but ensignes of Honour and State and that the Buckle in his bonnet and the buttons did not pass because they were annexed to his Robes and were therfore no Iewells But for all the other chaines rings braceletts and Iewells they passed by vertue of the said Will. Michaelm 40 41 Eliz. Sperke against Sperke in C. R. Rot. 2215. IN an ejectment the Case was this M. Sperke made a Lease of the land in question to William Sperke for 89. years if William should so long live the remainder after his death to the Executors or Assignes of the said William for 40. years afterwards William dyes Intestate and administration is committed to Grace Sperke his wife who entred clayming the 40. years and the Defendant clayming by another Lease entred upon him and he brought this action Aâ—dâ—…on Executor is as good a name of purchase as Heire is And I conceive the points in this case are two First if the Administrator be an assignee Secondly If the lease for 40. years be a Chattell vested in the Intestate in his life for if it be then his Administrator shall have it And as to the first I conceive that she is not assignee to take these 40 years For in the 19 Ed. 3. It is there said that Administrators are not assignees for administration is appointed by the ordinary and assignees must be in by the party himself and not by a stranger and therefore an Administrator cannot be an assignee as an Executor that comes in by the partie or as a husband for his wife Walmesley and Glanyâ—… accorded But Kingsmill cont for he said that although one could not be assignee in Deed without the act of the partie yet one may be assignee in Law by the act of the law And so the opinion of the â— Iustices to the first point was that the Administrator could not have it as assignee and as to the second point Anderson said that it could not vest for if a man have a Lease for life the remainder for 40. years the remainder is voyd because there is no person named to whom it is limited but if a man make a Lease for life and after his death to his lessee for
Court of Wards TEnant of the King by Knights service bargains and sells his land to Sir Henry Dimmock and his heirs and Sir Henry Dimmock dyes his heir within age and then the Deed is inrolled the question was if the King should have premier seisin Trist The King shall not because Sir Henry did not dye within his homage but the land was in the Bargainor as if there be a Bargainee of the reversion and the Tenant makes waste the Bargainee shall not have waste unless the Deed be introlled before the waste committed 3 Jacobi Bellingham against Alsop Bargainee before inrolment sells the land over and it was adjudged that the second bargain was voyd 10 Eliz. Mockets case Disseisee releaseth to the Bargainee of the Disseisor before inrolment and adjudged voyd 5 Eliz. in Pophams Case it was said that the Statute of inrolments had altered the Common Law for now by the delivery of the Deed no use is raised untill it be inrolled But all the Iustices held that the heir should be in Ward and pray premier seisin if he were of full age for the Statute sayes that no use shall be unless the Deed be inrolled but if it be inrolled it passeth ab initio and then the Bargainee shall be Tenant ab initio But it was also agreed by all the Iustices that the wife of Sir Henry shall not be indowed and that Rent paid to the Bargainor at the Rent-day incurr'd after the bargain is good and the Bargainee hath no remedy because it is a thing executed Trinit 12 Jacobi Cuddington against VVilkin in C. B. Rot. 924. IN an Action of the Case for calling the Plaintiff Thief the Defendant justified because the Plaintiff had stollen Sheep 37 Eliz. the Plaintiff replyed protestando that he had not stollen Sheep and pleaded the General Pardon 7 Jacobi upon which the Defendant demurred and adjudged for the Plaintiff for the Pardon had so purged and abolished the Offence that now he was no Thief 1 Ed. 3. Corone 15. 2 Ed. 3. Corone 81. 1 Assi 3. So if one call another Villain after he is infranchised And in one Baxters Case in Banco Regis it was adjudged that where a man was accused for Perjury and acquitted by Trial if he be afterwards called perjur'd he shall have his Action on the Case And Iudgement was given for the Plaintiff Seaman against Cuppledick IN a Trespass of Assault and Battery the Defendant justified in defence of his servant scil that the Plaintiff had assaulted his servant and would have beaten him c. and the Plaintiff demurr'd Yelverton The bar is good for the master may defend his servant or otherwise he may lose his service 19 H. 6.60 a. Crook Iustice The Lord may justifie in defence of his villain for he is his inheritance Williams contr The master cannot justifie but the servant may Justifie in defence of his master for he owes duty to his master 9 Ed. 4.48 Yelverton The master may maintain a plea personal for his servant 21 H. 7. and shall have an Action for beating his servant and also a man may justifie in defence of his cattle Cook A man may use force in defence of his goods if another will take them and so if a man will strike your cattle you may justifie in defence of them and so a man may defend his son or servant but he cannot break the peace for them but if another does assault the servant the Master may defend him and strike the other if he will not let him alone Williams It hath been adiudged in Banhams Case that a man cannot justifie a batterie in Defence of his soil a fortiori he cannot in defence of his servant vid. 19 H. 6.31 9 Ed. 4.48 Trinit 12. Jacob. Drury against VValler IN an action on the Case upon a trover and conversion of 200 l. delivered by the Plaintiff to the Defendant and upon not guilty pleaded the Question was if denyall by the Defendant to pay it upon request would beare this action And the case of Isaac was urged who brought an action of Trover c. for 200 l. in a bag and by verdict it was found that demand was made thereof and a deniall to pay it And by Dodderidge it was a Conversion Crooke accorded but Haughton doubted the case And Man Prothonotarie said that he remembred a president in the Case where it was resolved that in such case deniall of a horse was a conversion Haughton I remember an action of Trover was brought for a Trunk and it was ruled there that if one hath Timber in my land and he demands liberty to carry it off my Land and I deny it this is not a sufficient conversion Dodridge there is great difference in the Cases for a Horse or money cannot be known if they be used but Timber may Et adjournatur Michaelm 8 Jacobi Alfo and Dennis against Henning in B. R. Rot. 969. IN an action of Covenant the Case was thus Thomas Tavener by Indenture primo Jacobi did demise land to one Salisburie for 7. years and by the same Indenture Salisburie did Covenant grant condescend and agree with Taverner his heirs and assignes that he his Executors and Administrators should pay to Taverner his heirs and assigne 75 l. per annum And after Taverner demised the same land to Mary Taverner for life and he demised the reversion for 40. years to the Plaintiff if he so long lived and the tenant attorned and for rent due at the Feast of St Michaell he brought his action of Covenant And the first question was if this were a sum in gross because the Lessee covenanted to pay this as a Rent And resolved by Cook Chief Iustice and the Court that this is a good reservation of Rent for it is by Indenture and their intention was to have it as a Rent and the words of the Indenture shall be accounted to be his who may most properly speak them 26 H. 8.2 10 Eliz. 275. 22 H. 6.58 28 H. 8.6 And the Case between Whitchett and Fox in Replevin this terme where a man made a Lease for 99. years rendring rent and the Lessee covenanted by the same deed with the Lessor that he would not alien without his assent upon paine of forfeiture and after he aliened and the Lessor entred And it was held by the Court that this was a condition although the Plaintiff did covenant for being by Indenture they shall be the words of both and the words sub paena â—orisfacturae are the words of the Lessor The second point was if the assignee for 40 years may have a Covenant and it was held he might for it is for payment of rent and if the Lessee covenants to do any thing upon the land as to build or repaire a house there a covenant will lie for the assignee by the common Law but if it do not by the Common Law yet it is cleere that it will lie by the Statue of
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before Mâ—châ—e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. Fâ—steâ— did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas