adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
only the Tenant of the Freehold but by the Statute Tenant by Statute Merchant or Elegit may have an Assise if the Incumbent hanging the writ die and the disturber present again that writ lyes by Journes account upon the first disturbance and alwayes in a Declaration in a Quare impedit you must lay a Presentation in him from whom you first derive your Title or under some from whom he claimeth otherwise it is not good The Bishop cannot grant a Sequestration in no Case but where the Church is void but if the Clerk be instituted and inducted no Sequestration lieth CVppel versus Tansie Trin. 16 Jac. rot 3210. Quare impedit brought for the Church of Bleby the Issue was that there was no such Church and the Venire was de visu de Bleby and the Exception was because it was not of the Body of the County but the Exception was salved because in the Declaration it was alledged that one died at Bleby aforesaid and it was held that every place alledged shall be intended to be a Town and by the user of the writ it is presumed in Law to be a Parish and then if there be a Parish and a Town if the Venire facias be either of the Parish or Town it is good and it is a good Writ to demand Manerium de D. with the appurtenances Severall Quare impedits may be brought against severall Defendants as one against the Bishop and another against the Patron and Incumbent but if J. S. brings a Quare impedit against A. B. that A. B. cannot have a writ against the said J. S. if a Quare impedit abates within the six moneths the Plaintiff may bring another writ but if the Plaintiff be non-suit within the six moneths he cannot have a new writ because the Defendant upon Title made hath a writ to the Bishop and for that cause a new writ will not lie COmber versus Episcopum Cicester al. Trin. 6 Jacobi rotulo 1629. The issue in a Quare impedit was if S. Rose by covin between him and Comber and Rivers did resign into the hands of the said Bishop if the King hath Title of lapse and a resignation be made by fraud and one admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a writ for the King but otherwise it is upon matter of Evidence the King shall loose his presentation as well by resignation as by Death where he hath Title to present by lapse and doth not except the resignation be by fraud and where an avoidance is by Statute there needeth not notice to be given to the Bishop LOrd Say versus Episcopum de Peterborrow Mich. 30 Jacobi rotulo 2601. The Imparlance and the demurrer entred Hill 7. Jacobi rotulo 3458. The Case was Tenant in Tail grants the Advowson to others to the use of himself and his wife and the Heirs males of the Husband and the Husband dies and the wife survives and the Lord Say marries the woman and brought the Quare impedit the estate is determined by the death of Tenant in Tail and Judgement was given for the Bishop upon a Demurrer in a Quare impedit if any of the Defendants do barr the Plaintiff the Action is gone WAllop versus Murrey Trin. 8. Jacobi rotulo 3905. The Church became void by resignation and a presentation upon the proviso in the Statute of 21 H. 8. for the Kings Chaplains The Kings Chaplains might have three Benefices with license nay he may give to them as many as he will being of his own gift Judgement for the Plaintiff if the Incumbents Plea be found for him he shall never be removed although other Pleas be found for the Plaintiff by the whole Court Pasch 9. Jacobi If the writ abate for Form you shall never have a writ to the Bishop nor where it appears that you have one Title DOminus Rex versus Emerson Trin. 8. Jac. rot 1811. The question was where the King had Title to present to a Church by reason of ward-ship and after livery and before the King doth present under the Seal of the Court of Wards the King doth present by his Letters patents under the great Seal of England and the Clerk is admitted instituted and inducted whether the Clerk shall be removed or no and the Court held that he should not and Judgment that the Plaintiff nihil capias per breve he that getteth it first by the Court of Wards or great Seal shall have it there needeth no recitall in the grant A common person by his letter or his word may make a presentation to a Benefice to the Bishop the King may present by word if the Ordinary be present for a presentment is but a commandement if the King under any Seal present it is good It is best to plead the King presented generally and not to plead it by Letters Patents for it is the worst way and judgment was given for the Defendant and Mich. 10. Jacobi it was held by the whole Court that a presentment under the great Seal to a Church parcell of the Dutchy of Lancaster is good and needeth not to be under the Dutchy Seal CRanwell versus Lister The Defendant had been Parson for three years and pleaded plenarty generally by six moneths of the presentation of one Stiles a stranger to the Writ And the Court held the Plea to be nought because the Defendant shewed no Title in Stiles NEedler versus Winton and Needham Hill 12. Jacoci rotulo 1845. In a Quare Impedit the Case was Husband and Wife bargain and sell Land to the King this is as good as a Fine being found if it was delivered to the King but not entred of Record if it was made and delivered it was good but if the King should before it be delivered grant it out it had been void being not enrolled of record for the King in consideration of the bargain and sale of the Husband and Wife before the Deed inrolled did grant to them the Parsonage of Horsham in this case the Wife is bound as strong as by Fine and the King made the grant between the date of the deed and before inrolment If the Kings Clerk be once inducted the K. cannot remove his Clerk at the common Law before the Statute of 34. H. 8. If a Quare Impedit were brought against the Patron and Clerk the Patron might confess the Action and so prejudice the Clerk therefore by the Statute the Clerk being inducted he may plead that he is Parson impersoned and so defend himself GLaswick versus Williams Hill 9. Jacobi rotulo 854. A Quare Impedit brought of the Rectory of I. Stoneley one of the Tellers in the Exchequer was indebted to Queen Eliz. And it was found that he was seised of a Mannor ad quod c. in fee and sold it to the Plaintiff who brought a writ to
against the surviving Donee of houses and Lands to him demised and agreed that the Writ was good but it was a question if the Count shall be generall or of a halfe only notwithstanding that both the parties were Tenants in Common of the reversion Michaelmas 1611. 9. Jacobi in the Common Bench. Ralph Bagnall against John Tucker after 83. TRINITY 9. or Micaelmasse 8. Jacobi Rot 3648. The Case was Copy-holder for life remainder for life purchaseth the Frehold and levies a Fine with Proclamations made five yeares-passe and then he died if the remainder were bound by the Fine or not was the question and it seemes that it shall not be Barr for he is not turned out of possession in right So if a man hath a Lease for remainder for yeares and the first Lessee for yeares purchase the free-hold and levie a Fine with Proclamations and five yeares passe this shall not barr the remainder for yeares insomuch that this was Interest of a Tearme and remaines an Interest as it was without any alteration and it was not turned to a Right And yet it was agreed that the Statute of buying of pretenced rights extends to Copy-holds See Lessures Case 5. Coke 125. See Pasche 1612. for the Judgement Note if an Attorney of this Court be sued here by Bill of Priviledge he ought not to find Bayle But if he be sued by Originall and comes in by Capias then he ought to find Bayle In covenant upon a Lease made by the Dean of Norwich Predecessor to the Dean that now is and the then Chapter of the Foundation of Ed. 6. King for injoying of Land devised to the Plaintiff for three Lives discharged of all incumbrances and also to accept surrender of the same Lease and to make a new and for breaking of covenant the same Dean and Chapter in such a yeare of the Raine of H. 8 had made a lease for years not determined by which the lands devised were incumbred upon which the Defendant demurred And Hutton Serjeant for the Defendant argued that the Lease was by the Statute of 13 of Eliz. as to the successor of the Dean which made it for that it was a Lease for years in being at the time of the making of that as it is resolved in Elmers Case upon the Statute of 1 Eliz. if a Bishop makes a Lease for years and after makes a Lease for life the Lease for life is void to the Successor and so it is in the case of Dean and Chapter and though that the words of the Statute are generally that such a Lease shall be void to all intents purposes and Constructions yet he intended that it shall not be voyd against the Bishop himselfe as it was resolved in the case of the next Advowson by the Bishop in Singletons Case cyted in Lincolne Colledge Case 3. Coke 59. b. And he intended if the Lease be voyd against the Successors that then the covenants also are void as it is agreed in the 28 H. 8. 28. Dyer 189. 190. and he cited one Mills case to be adjudged in the 29 and 30. Eliz. in the Kings Bench that if a Parson make Lease and avoid by non-Residence the Covenants also are void as well as the Lease and also he intended that the Lease for life was void insomuch that it was to be executed by a Letter of Attorney and the Attorney had not made livery till after two Rent dayes were past and for that the Livery was not good for when a man makes a Lease for life rendring Rent with Letter of Attorney to make livery here is an implyed condition that Livery shall be made before any day of payment be incurred and it is as much as if a man had made a Lease for life without any Letter of Attorney to make Livery before such a day there if the Attorney do not make Livery before the day but after the Livery is void insomuch as it is contrary to the Condition so in the case here for if Livery made be after a Rent day it may be made after twenty and so immediately before the end of the Tearme and if the Rent be void for this cause the Covenants also are void and if a man bargain and sell his Mannor and the Trees growing upon it the Trees do not passe without Inrollment insomuch that it was the intent of the parties that it should so passe and for that they do not passe without the Mannor also he intended that the Count is repugnant insomuch that that containes that the last Lease for life was made in the time of Ed. 6. and after by the Dean and Chapter of the foundation of Ed. 6. and after that containes that the same Dean and Chapter have made a former Lease in the time of H. 8. Which cannot be if the Dean and Chapter were of the Foundation of Ed. 6. and for that the Count ought to have contained the alteration of the foundation as in case of prescription as in Tringhams case 4. Coke 38. Wyat Wilds Case 8 Coke 79. 2. and 3. Phil. and Mary Dyer 124. A good Case and he intended that a declaration ought to have precise certainty as in 8. and 9. Eliz. 254. Dyer for a thing which cannot be presumed shall not be intended as it is agreed in Pigotts Case 5 Coke 29. a. otherwise of Plea in Barr for that is sufficient if it be good to common intent also he intended that there is variance between the Count and the Covenant for the declaration is that the Dean and Chapter covenanted with the Plaintiffs the Covenant is generall that is that the Dean and Chapter covenant and doth not say with who and for that the Count also shall not be good and so he concluded and prayed Judgment for the Defendant Haughton Serjeant for the Plaintiff intended that the Covenants shall not be voyd notwithstanding that the Lease it self be voyd he intended that a lease made by a Parson shal be good against himself but it shall be voyd by his death to the Successor but a Lease made by a Dean and Chapter shall be void to the Dean himself and the Covenant shall be in force notwithstanding that the Lease be void insomuch that the Covenants are collaterall and have not any dependance upon the Lease but to the inherent Covenants which depend upon the Lease and the Estate as for Reparations and such like shall be voyd by the avoidance of the Lease but he intended that Covenant to discharge the Land from incumbrances doth not depend upon the Interest but it is meerly collaterall and for that it shall not be void and with this difference he agreed all the Cases put of the other part as in 45 Ed. 3. 3. Lease was made to the Husband and Wife the Husband dies the wife accepts the Land and shall not be charged with collaterall Covenants notwithstanding that shee agrees to the Estate insomuch that they do not depend
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
to seal and he refused and upon such Refusall the Plaintiff brought his Action and a Verdict was given for the Plaintiff and Serjeant Yelverton moved in Arrest of Judgement that the Plaintiff ought not to have Judgement for he said that the Defendant was not bound and compellable to seal that Obligation because it was not in Law any Assurance but a collateral thing and the whole Court agreed that and therefore being the Action was brought for refusing to seal the Obligation and Letter of Attorney and the Judgement according it ought to be arrested but Cock said that Judgement ought not to be arrested for the Premises of the Delaration it appeared that he refused to seal the Letter of Attorney and thereupon concluded that it should not be arrested and Fennor said that the Letter of Attorney was not any such Assurance as the Law required in such Case for when he had made the Surrender it should be accounted the Surrender of him that made the Assurance and he said he should make a present Assurance of it but Tanfeild was of another opinion and said that when the Surrender was made it shall be said to be the immediate Surrender of him that made the Letter of Atturney and such an assurance as the Law required and Yelverton Justice said the Letter of Atturney was lame for this cause the Letter of Atturney was made to one for the surrendring of such a Copy-hold and did not say in the Letter of Atturney for him and in his name for otherwise the Copy-hold might be the Copy-hold of him that surrendred by vertue of the Letter of Atturney and then he should surrender his own Copy-hold but Tanfeild was of another opinion because he said in the Letter of Atturney that he did constitute and appoint and in his stead and place put such a one which words in his stead and place are as full as if he should have said in his name HOllingworth versus Huntley Pasch 5 Jacobi An Action of Debt brought upon an Obligation the Condition amongst many other things contained that the Husband and Wife being Lessees for life of certain Lands that if the said Husband and Wife should levy a Fine to an estranger at the Costs and Charges of an estranger and also that they should levy a Fine of other Lands that they also held for their lives to an estranger and at their Charge then c. the Obliger sayes that the Husband and Wife did offer to levy the Fine if the estranger to whom the Fine was to be delivered would bear their Charges the Obligee demurres and it was adjudged for the Plaintiffe because the levying the second Fine had not any reference to the other because they are two distinct sentences and these words and also make them so Man versus Somerton Pasch 5. Jacobi The Plaintiffe being Parson of Henley brought an action of Debt for six hundred pounds upon the Statute of 〈◊〉 6. for not setting forth Tithe of Wood and the Plaintiffe shews that the Defendant had cut down two hundred loads of Wood to the value of two hundred pounds and saith the tenth part of that did amount to two hundred pounds and so he brought his action for six hundred pounds upon the Statute and the Plaintiffe was nonsuit for one fault in his Declaration for whereas he names the price of the Wood to be two hundred pounds it was mistaken for it should have been two thousand pounds for he demanded more for the tenth part then the principall is by his own shewing and Tanfeild Justice held that Beech by the common Law is not Timber and so it was adjudged in Cary and Pagets Case and it was held that Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckingham-shire for there it is reputed Timber but in a plentifull Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid for such wood Silva cedua for which Tithes shall be paid is under the growth of twenty years but Tithes shall be paid for such wood which is not Timber which is above the growth of twenty years PErcher versus Vaughan Trin. 5. Jac. An action of Debt brought upon an Obligation for six pounds thirteen shillings eight pence The Defendant demands Oyer of the Obligation and imparles and after an imparlance the Defendant comes and sayes there was variance between the Plaintiffes writ and the Obligation for it appeared by the Obligation that the Defendant was obliged in viginti nobilis and so his action ought to be brought according to the Obligation and demands Judgement if the Plaintiffe ought to have his action the Plaintiffe demurres and it was argued by the Plaintiffes counsell first that it was no variance for it was said that twenty nobles and six pounds thirteen shillings eight pence were all one in substance if a man be bound to pay a hundred nobles and brings his action for fifty marks it is not variance 34 H. 8. 12. and 4 E. 3. Fitzherbert Title varians 102. agrees to that but if a man be obliged to pay certain money in Flemish money he ought to shew the performance of that strictly 9 Ed. 4. 49. and the Plaintiffes counsell said that it was variance it could not be shewed after an Imparlance in Marks Case Co. 5. 74. and said the conclusion of the Defendants Plea to demand Judgement of the Plaintiffe ought to have his action was not good for this Plea was not in barr of the action but in abatement of the Writ and Yelverton Justice agreed to that and he said when the Obligation was in viginti nobilis it shall be intended twenty nobles and good Tanfeild said that when there is no good and apt Latine words for a thing no unapt Latine word is put in the Bond for that thing the Bond is void as when a man is bound in quinque libris it it was adjudged in Mich. Term 5 Jac. that the Obligation was void because there was a fit Latine word and that was quinque and so it was adjudged in the Lord Danvers Case where the Indictment for one blow super capud and it was held void because it was an unapt word and there was a fit and apt word to wit Caput and VVilliams agreed to this for he said it was adjudged in the common Pleas between Pencrosse and Tout a man was bound in a Bond in viginti literis when it should have been viginti libris and adjudged void for the same cause but after in Hillary Term the Plaintiffe had Judgement because in one Dictionary nobilis was a Latine word for six shillings eight pence VEntris versus Farmer Trin. 5. Jacobi A Lease was made for years rendering Rent payable at a place of the Land and the Court was moved whether a Demand of the Rent may not be made upon the Land but denied by the
folio 367. To the contrary is not Law two Tenements in Common joyne in a Lease for years to bring an Ejectment and declare that whereas they did demise the Tenements and it was held nought for it is a severall Lease of moities and if they had declared that one of them had demised one moity and the other another moity it had been good WIlson versus Rich Pasch 44. Eliz. The Husband and Wife joyn in a Lease by Indenture to A. rendring Rent and this is for years and make a Letter of Attorney to seal and deliver the Lease upon the Land which is done accordingly A. brings an Ejectmentand declares upon a Demise made by the Husband and Wife and upon Evidence to the Jury ruled by Popham Fenner and Yelverton that the Lease did not maintain the Declaration for a Woman covert could not make a Letter of Attorney to deliver a Lease upon the Land although Rent was reserved by the Lease and so the Warrant of Attorney is meerly void and the Lease is onely the Lease of the Husband which is not made good by the Declaration by the opinion of the Court. STretton versus Cush Pasch 1. Jacobi J. L. leased a House for fourscore years in which Lease there is one Condition that the Lessee his Executors and Assignes should keep and maintain the House in reparation and if upon lawfull warning given by the Lessor his Heires and Assignes c. to enter the Lessee for fourscore years leases the House to A. for thirty years and A. leases it to Wilmore for fifteen years the Assignee of the Reversion came to the House and seeing it in decay gave warning to Wilmore then possessed of that House to repair it which was not done within six Moneths by reason whereof the Assignee entred for the Condition broken and upon a Not guilty pleaded the matter before recited was found by a special Verdict and adjudged against Sir William Wade the Assignee of the Reversion for the warning given to Wilmore to repair who was but an under tenant was not good for he was not Assignee of the terme nor had but a pety interest under the grand Lease upon whom no Attorney could be made for the Rent nor any Action of Waste brought against him for there wanted the immediate privity and in this Case there is a difference to be taken between a rent and a Condition for reparations for the Condition is meerly collateral to the Land and meerly personal and therfore warning is not of necessity to be given at the House but notice of Reparations ought to be given to the person of the Lessee who had the grand interest And a Difference is to be taken between a time certain in which a thing is to be done and a time incertain for in the Case of Rent reserved at a Day certain Demand thereof must be made upon the Land onely because the Land is the Debtor for Popham said that if the Lessor should come and demand his Rent and there should meet with J. S. a stranger and should say to J. S. Pay me my Rent this is no good Demand of the Rent having mistaken the person who is chargeable with it but in this Case one general Demand of Rent without reference to any person who is not chargeable is good And he was of opinion that if a man lease Land rendring Rent for a year whensoever the Lessor should demand it in this Case the Lessor come and demand it before the end of the year his Demand upon the Land is not good except the Lessee be there also for the time being incertain when the Lessor will demand it he ought to give notice to the Lessee of it And if the Lessor come to the Lessee in person and demands the Rent yet it is not sufficient for although notice is to be given the Lessee in person yet the Land is the Debtor and therefore the Law ties the Lessee to the Land as to the place in which he shall be paid but if the Lessor stay nntill the eud of the year then the Lessee at his peril ought to attend upon the Land to pay it for the end of the year is time of payment prescribed by the Law which was granted and Judgement was given for the Plaintiff CLerk versus Sydenham Pasch 4. Jacobi An Ejectment brought by the Plaintiff of a Lease made of Land by P. and B. and Not guilty pleaded and the Evidence of the Defendants part was by reason of a Lease of the Land in Question made by the Abbot of Cleeve before the Dissolution to W. D. and Jo. his Wife and F. their Daughter for their Lives by Indenture and by the same Indenture the Abbot covenants grants and confirmes to the three Lessees that the land should remain to the Assignee of the Survivor of them for ninety years Fr. survived and took to Husband one Hill who the 20 Eliz. grant their Estate for life to J. S. and all their interest in the Remainder and all their power for all the term and this by mean Assignements came to the Defendant and whether any interest passed in Remaindor by the Lease of the Abbot was the Question and by all the five Judges it was held to be a good interest in possibility and to be reduced into a certainty in the person of the Survivor as where Land is given to three and the right Heirs of the Survivor this is a good limitation of the Inheritance presently but it is in expectancy untill the Survivor be known for then the Fee is executed in him And Popham vouched a Case in his experience 17 Eliz. in which Serjeant Baker was of Counsel and it was a Lease was made to Husband and Wife for life and for forty years to the Survivor of them the Husband and Wife joyn in Grant of this Interest and although it be certain one of them shall survive yet the Grant is void because at the time of the Grant there was not any interest but onely a possibility in either of them and although in the Case in Question the Remainder is not limited to any of the three Lessees but to the Assignee of the survivor yet the Court was of opinion that this was not a bare nomination in the survivor to appoint what person he pleased but a terme and an interest and Popham took this difference if a Lease be made to J. S. for life and after his death to the Executors and Assignes of J. S. this is an interest in J. S. to dispose of it but if it had been limited to J. S. for life and afterwards to the Executors and Assignes of J. D. here this is a bare power in J. D. and his Executors because they are not parties or privies to the first interest which was agreed and it was also agreed that whether it was an interest or a word of nomination it was all saved to the party by the Statute of
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
may take the power of the County to make a replevin upon the plures replevin a replevin will not lye of deeds or charters concerning Land and no return habend lyes upon a justistification and if a discontinuance be after a second deliverance the return habend shall be irreplegiable And if the Defendant after an advowry will not gage deliverance he shall be imprisoned for the contempt no disclaimer lies upon a justification but upon an advowry And if the replevin was sued by writ and the Sheriffe return thereupon that the cattell are not to be found then a withernam shall be awarded against the Defendant and if a nihil be returned then a capias alias plur withernam and thereupon an Exigent and if hee do at the return of the exigent find pledges to make deliverance and be admitted to his Fine then the Plaintiff shall declare upon an uncore detent and goe to tryall upon the right of the cause of distress and if it be found for the Plaintiff he shall recover his costs and dammages And if for the Defendant he shall have a return habend But if upon the return of the Plures repleg the Defendant appear then no withernam lies but he must gage deliverance or be committed and the Plaintiff shall count against him upon an uncore detent and so proceed to the rightfull taking of the distress And if it be found for the Plaintiff if the Cattell be not delivered he shall recover the value of the goods and costs and dammages if for the Defendant costs and dammages and a return habend WIlkins versus Danre Trin. 6. Jacobi rotulo 930. The Defendant avowed a rent charge granted to his Father in fee with a clause of Distress the Plaintiff demands Oyer of the deed which was a grant of the rent to one and his heirs to hold to him his Heirs Executors and Assigns to the use of the said H. and his Assigns during the life of a stranger And whether it was in fee or for life was the question and whether the habendum be contrary to the premises or do stand with the estate If the habendum had been to him and his Heirs during his own life this had been void but it was held otherwise for a strangers life and no occupancy can be of a rent CHappell versus Whitlock Mich. 6. Jac. rotulo 1316. The question was upon a liberty in the deed to make Leases provided they shall not exceed the number of three lives or twenty and one years and the lease was made for 80. years if two live so long if he make a Lease absolute it must not be above twenty and one years but in this case it is uncertain MAnning versus Camb Pasch 7. Jacobi rotulo 341. in Replevin the Defendant avows damage fesant by reason of a devise made to the Advowant by will for one and twenty years by one Lockyer who was seised of the Land in fee The Plaintiff saith that true it is that Lockyer was seised in fee of the Land in question and by the said Will devised the Land to the said D. for the said years in confidence only to the use of it if she should remain unmarried and afterwards and before the taking dyed thereof seised J. L. being then Sonne and Heir of the said Lockyer after whose death the Land descended to the said J. as Son and Heir c. after whose death the Legatees entred into the Land and were thereof possessed to the use and confidence above said the reversion belonging to the said J. L. And the woman took Manning to her Husband by reason wherof the said term devised by the said L. to the said A. and J. to the use and confidence above-said ended the said being under the age of 14. years to wit of the age of two years by reason whereof the custody of the Heir did belong to the Husband and Wife by reason whereof they seised the Heir and entred into the Land and maintained their count the Defendant confessed the Will and the devise for years in confidence and further that after the term he devised the Land to his sonne in fee and a demurrer The condition must go to the estate and not to the use COuper versus Fisher Trin. 6. Iac. rotulo 513. The Defendant as Administrator of Foster advows for rent reserved upon a Feofment made in fee of the Mannor reserving rent in fee to the Feoffer in the name of a Fee-farm-rent with a clause of Distress for the not paying of it and that the rent did desend to the issue of the Feoffer And for the rent due to the Heir the Feoffer in his life advows the Plaintiff in his barre to the Advowry saith that neither the intestate nor his Ancestors nor any other whose estate the said T. hath in the rent were ever seised of the same rent within forty years then last past before the taking c. And a demurrer pretending that he ought to alledg seisen in the Advoury with forty years And it was held by the whole Court that the seisin is not to be alledged being it was by deed made within the time of prescription neither is the seisin but where the seisin is traversable there it must be alledged and in no other case and the Judgment was given for the Advowant Mich. 8. Jacobi An Advowry was made for an amerciament in a Court leet and shews that he was seised of the Mannor in Fee and that he and all c. have had a Court leet and the Plaintif traverses that he was seised of the Mannor in Fee and the Court held If the Defendant had a reputed Mannor it would maintain the Avowry though he had indeed no Mannor in truth REynolds versus Oakley The Defendant avows for rent reserved upon a lease for life and the Plaintiff shews that the place in which c. did adjoyn to the close of the Plaintiff and that the Cattell against the Plaintiffs will did escape into the other close and that he did presently follow the Cattell and before he could drive them out of the close the Defendant did distrain the Plaintiff's Beasts And whether the Distress were lawfull or not was the question And the Court held in this case because the Beasts were always in the Plaintif's possession and in his view the Plaintiff would not distrein the Cattell of a stranger but if he had permitted the Beasts to have remained there by any space of time though they had not been levant and couchant the Lessor might have distreyned the Beast of a stranger BLown versus Ayer Hill 40. Eliz. rotulo 1610. In a Replevin the question was upon these words to wit the said Abbot and Covent granted to the said R. that he and his Assigns Fierboot Cart-boot and Plowboot sufficient by the appointment c. without making wast under the penalty of forfeiting the devise whether those words make a condition or no and
village is in question or could come in Issue yet it was resolved by the whole Court but him that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was were a chief Pledge at the Court or no for to have cheif pledges doth properly belong to a Leet which Leet is within the village and therefore they of the Mannor cannot have so good knowledge of the matter as they of the Mannor and village together and therefore they all ought to have been of both as in the Case of Common or a way from one village to a house in another village this ought to be tried of both villages and so also of the Tenure of Land in D. held of the Mannor of Sale the triall must be as well of the village where the Land lies as of the Mannor of which the Land is holden as it was adjudged Hill 45. El. in the then Queens Bench in the Case between Lovlace and and Judgement was reversed and see 6 H. 7. and Arundels case in my Lord Cooks Reports BVrglacy versus Ellington Burglacy brought a Replevin against Ellington for the taking of his cattell c. the Avowant pleads that one W. B. was seised of the place in which c. in his Demesne as of Fee and being so seised died by reason whereof the Land descended to one Crist. his Daughter and Heir who took to Husband the Avowant the Plaintiff in his Barr to the Avowry confesses that W. B. was seised and that it descended to C. who took to Husband the Avowant but he further said that the 16 of April primo Jac. the Husband and Wife by their Deed indented and inrolled did bargain and sell the same Land unto one Missenden and a Fine levied by them and that M. the 30 of James bargained and sold it to F. M. in Fee and he being so seised licensed the Plaintiff to put in his cattell the Avowant replies if in the said Bargain and Sale made by the Husband and Wife a Proviso was contained that if the said Ellington should pay one hundred pounds a year after then c. and pleaded the Statute of 13 Eliz. of usury with an averment that the profits of the Land were of the value of twelve pounds by the year the Plaintif rejoyned that true it is there is such a clause in the Indenture but he further said that before the sealing of the Indenture it was agreed by word that the said Ellington should have and receive the profits and not the Plaintif and thereupon the Avowant demurres and the Case was thus Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid and that the Bargainee should have the profits the bargainor enters as upon a void Sale because of the statute of usury for by the Proviso â—he is to have the hundred pounds and ten pounds for the forbearance and by the Law he is to have the profits and the which did amount above ten pounds by the hundred the bargainee to avoid the usury pleaded an agreement by word before the sealing of the Bargain and Sale and the question arising upon this was if the Bargainee might plead this verball agreement for the avoiding of the Deed which did suppose the contrary and Moore of Lincolns â—nne counsell was of opinion that he could not put that maxime that every thing must be dissolved by that by which it is bound and his whole argument depended upon that and he cited divers Cases as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there but the whole Court without any argument were of opinion that he might plead the verball agreement and avoid the usury and first they all agreed that when a Deed is perfected and delivered as his Deed that then no verball agreement afterwards may be pleaded in destruction thereof as it is in the Cases put but when the agreement is parcell of the Originall contract as here it is it may be pleaded and secondly otherwise it would bring a great mischief being the custome so to do by word but if it had been expressed within the Deed that the Bargainee should have the profits and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it for it is an usurious contract and therefore the whole court gave Judgement for the Plaintif that he might well plead the agreement Actions of Trespass and Battery JOhnson versus Turner Trin. 44 Eliz. Trespasse brought for breaking the Plaintifs house and the taking and carrying away his goods the Defendant justifies all the Trespasse the Plaintif as to the breaking of the House and taking the goods and the matter therein contained demurres upon the Defendants Barr the Defendant joins in demurrer in this form to wit because the Plaintif aforesaid as to the breaking of the House and taking the goods is sufficient demands Judgement and Judgement given in the Common Pleas for the Plaintiff and a Writ to inquire of Damages upon which Damages are assessed for the breaking of the House and taking the goods and whether the subsequent words to wit and the matter therein contained go to the whole matter in the Barr to wit to the carrying of the Goods away also for when the Defendant joyned in Demurrer with the Plaintiff he joyned specially to wit to the breaking of the House and taking the Goods but nothing of the carrying them away and so as to the carrying of them away nothing is put into Judgement of the court yet the Writ to inquire is for the whole and the Judgement also and the carrying of the Goods away being parcell of the matter and for which greater Damages are adjudged and that being not put into the Judgement of the Court by the Demurrer therefore the Judgement is erronious for there is a discontinuance as to the carrying of the Goods away which is part of the matter and this businesse concerned Mr. Darcy of the privy chamber concerning his patent for Cards PVrrell versus Bradley Pasch 1 Jacobi The Plaintif declares in Trespass wherefore by force and Arms such a day the Defendant did assault him and one Mare price six pounds from the person of the Plaintiffe then and there did take and Yelverton moved for the Defendant in arrest of Judgement and the Declaration was not good for the Plaintif did not shew any property in the Mare for he ought to have that it was his Mare or the Mare of the Plaintif for as it is laid in the Declaration the words may have two intendments that the property of the Mare was to the Defendant and then the taking was lawfull or that the property was in the Plaintif and then the taking was wrongfull and it being indifferent to whether it shall be taken most strongly against the Plaintif for his
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
opinion without argument Coke cheif Justice that the agreement is void to a Woman married for then she was married to a Husband whom in her life she could not contradict and a Devise upon Condition that if she conclude or agree as this Case is is void for it is a bare communication upon which the Inheritance doth not depend and so he said it hath been twice adjudged 6 in Corbets Case and Germins Case and Arscots Case and Richells Case in Littleton it was upon condition that he should not alien and this was adjudged to be void but yet if the condition were if he alien and not if go about or intend or conclude or agree as in the case at the Bar for there is no such case in all our Bookes as this Secondly For that that the Words are if they do any act that then the Estate shall cease and this is repugnant for when the Act is done then the Estate tayle is Barred and cannot cease but if it had been but a Feoffment then the right had remained and he said that such a condition had been void before the Statute of Donis Conditionalibus when it was but Fee simple Conditionall be it a Condition or a Limitation and he said that Scholasticas Case is of Fine which is only discontinuance till the Proclamations are past and if dead before may be avoided by Remitter in Germins and Arscotts Case the Condition was that if he go about or indeavour and this was adjudged to be void though that it be in devise in respect of the uncertainty and he said that the agreement or conclusion is so uncertain and may be well compared to that for here the Estate shall cease by the agreement as well as it may cease by the going about also he seemed that the Freehold cannot cease without entry for if use cannot cease without entry as he intends much lesse a Free-hold cannot though it be by Devise and he seemed that it shall be no limitation but a Condition and Judgment accordingly if cause be not shewed the next Tearm and in Trinity Tearme then next insuing this Case was argued againe by Dodridge Serjeant of the King for the Plaintiff and he said that there are three questions to be disputed First If it be a good limitation Secondly If the recovery be a breach of that Thirdly Admitting that it may be broken if the agreement of the Husband and the wife shall be said to breake it and to the first he seemed that it is a limitation and not a condition and such a Limitation that well might be with the Law and that it is a Limitation it is agreed in Scholasticas Case Commentaries and the reason of the Judgment there is that if the intent of the Devisor appears that another shall take benefit of that and not the Heire that then it shall be but a limitation and not a Condition and he in remainder shall take benefit of that and for that in the principall case Mary the Eldest Daughter to whom the Remainder was limited shall take benefit of that and with this agrees the case of Fitz. Na. Bre. Ex gravi querela last case that if a man devises Lands to his Wife for life upon condition that if she marry that the Land shall remain over and after she marryes and he in Remainder sues by Gravi querela by which it appears that it is a limitation and not a condition and with this agrees 2. and 3. P. and M. 127. Dyer Jasper Warrens Case where a man devises land to his Wife for life upon condition to bring up his Sonn Remainder over and agreed to be a limitation and not a condition and so he concluded this first point that it is a limitation and not a condition Secondly that it is a lawfull limitation for there is not any repugnancy in that as it is in Corebts before cited for there are no words of going about for he agreed that this is absolutely uncertain and void and so is Germin Arscots case where ther is not only a going about but repugnant going about for he ought to go about and before discontinuance and then his Estate shall be void from the time of the going about and before discontinuance but here it is upon conclude and agree plainly and apparently and conclude and agree is issuable and a Jury may try that and it will not invegle any man but the Law will not suffer Issue upon such uncertainty as going about or purposing but Attornements and Surrenders are but agreements and yet are Issuable And so in the principall case and in Mildmayes Case 6 Coke it is agreed that a condition that a Tenant in taile shall not suffer a Recovery is void for Recovery is not restrained by the Statute of Westminster 2. but here it is not so but in generall that he shall not conclude or agree to alien or discontinue but that which cannot be a condition good in the particular may be good in the generall as Littletons Case gift in taile upon condition that he should not alien is good otherwise of Fee simple with which 10 H. 7. 11. and 13 H. 7. 23. 24. accordingly Thirdly That it is a breach of the limitation Condition that alienation and discontinuance be by Recovery which is a lawfull act and it is a priviledge incident to the Estate taile and though that the agreement was made by the Husband and the Wife during the Coverture and so should be if the Husband and the Wife had levied a Fine see 10 H. 7 13. Condition that if the condition had been expressed that they should not levy a Fine had been void and here this verball agreement betwixt the Husband and the Wife and the third person shall be for Forfeiture of their Estates for this is the agreement of the Wife as well as of the Husband as it appears by Becwithes Case 2. Coke before cited where the Husband and the Wife agree to levy a Fine and that the Fine shall be to the use of the Connusee this is good declaration of the use though that it be of the Land of the Wife and during the Coverture and cannot be avoided by the Wife after the death of her Husband for it was the agreement of the Wife though it be not by any Indenture to declare the use of the Fine so many acts in the Country made by the Husband and the Wife shall be intended the act of the Wife as well as of the Husband as in the 17 Ed. 3. 9. The Abbot of Peterboroughs Case the Husband and Wife granted Rent for equality of partition and this shall binde the Wife after the death of the Husband for it is her act as well as the act of the Husband and shall be intended for her benefit and so here by the Recovery the Wife shall be Tenant in Fee simple which was Tenant in taile before and 34 Ed. 3. 42. feoffment to a married Wife upon
a good condition for this doth no wrong nor is repugnant to the Estate given or leased And secondly he argued that admitting it is a good condition yet here is no act done to operate conclusion or agreement which might make a forfeiture for he sayd that Mildmayes case was an expresse condition that Tenant in tayl should not suffer common recovery the which he might lawfully do at the common Law and he was not restrayned by the Statute of Donis conditionalibus which was doubted till 12 Ed. 4. but here he intends that the agreement and conclusion in this case shall make no forfeiture in respect that the Wife in whom the Estate was marryed at the time of the making and then when her Husband joynes with her it shall be sayd the agreement of the Husband and not the agreement of the Wife and yet he aagreed the case in 20 H. 8. b. Dyer 1. that if a man makes a Lease for yeares upon condition that the Lessee his Executor or Assignes shall not alien and there if the Wife executrix and her second husband alien that this shall be forfeiture insomuch that there the condition followes the Estate and is inherent to it but here the agreement is collaterall and personall and this depends upon the Estate as if condition be that a woman shall not beate J. S. and she takes a Husband which beats him this shall not be forfeiture for the condition is annexed to the person of the wife and for that the beating of the Husband shall be no breach of the condition but the wast of the Husband is the Wast of the Wife also for that followes the Estate and is not personall so he agreed that acts made by a Wife married the which she is compellable to do are good as partition between Coparceners as it is sayd by Littleton or Administration of Goods by Executor or Administrator or to make attornement so of things made for her benefit as accepting an Obligation or the bringing of an action of Wast upon a Lease made by him are also good but here the agreement and conclusion made by her and her Husband are for the disadvantage of the Wife and for that they are meerly voyd as to the Wife as in 3 H. 6. 19. 50. Contract is made with the Husband and Wife and they joyne in debt upon that and the writ abated insomuch that the contract to the Wife is void and shall be intended to be made with the Husband only and so in Russells case 5 Coke 27. b. It is agreed that a marryed Wife cannot do any thing as Executrix to the prejudice of her Husband so in 45 Ed. 3. 11. Lease was made by Husband and wife and they covenanted to make suerties and after the Husband dies and the Wife accepts the Rent and she shall not be bound by her Covenant insomuch that this was Colaterall to the Estate and if it be so that the agreement made by the married Wife is void to her then it is no agreement and by consequence no forfeyture of the Estate Also he intended that the conclusion of the condition for the words of the condition depends only upon the agreement and conclusion and not upon any Act made So that the suffering of any Act doth not make any matter in the case nor is to the purpose and also the Replication relies only upon the agreement so that the Recovery is not materiall And he intended that it is a condition and that it cannot be Limitation insomuch that the words are that the Estate shall cease as if such person had not been named in the Will and so that the Estate shall cease as if he had been dead which are words of Defeazance only and not of Limitation for he doth not appoint the Estate to continue so long And also the words are repugnant for it cannot make the Estate void as if he had not been named for this is only the office of an Act of Parliament to make a man to be dead to one and to be alive to another purpose and so he concluded and praied Judgement for the Defendant Nicholls Serjeant for the Plaintiff argued that it is a matter sufficient upon which Judgement shall be given for the Plaintiff and he first considered the words of the Condition that is if the devisees by themselves or by any other shall make any conclusion or agreement c. This shall be a forfeyture as in 28 H. 8. 13. Dyer 65. Where a Lease was made to the Husband and Wife Proviso that if they are disposed to sell and alien the Tearme that the Lessor shall have the first offer and agreed that if that be a Condition and the Wife survive the Husband notwithstanding that it was not her Deed but the Act of the Husband she shall be bound by that insomuch that her Estate is bound with that and this was the pleasure of the Lessor and she cannot hold it otherwise then it was given and 47. Ed. 3. 12. If a man makes a Lease for yeares to the Husband and Wife and after outs them they shall joyne in a Covenant and so 48. Ed. 3. 18. They joyne in a Fine yet there the Husband only brings Debt for the money notwithstanding that it be the Land of the Wife which was sold and 38. Ed. 3. 9. If the Husband and the Wife joyne in Covenant See 45. Ed 3. 11. b. Where they joyne in Lease and also to make further assurance and the Husband and the Wife also charged with that and so in the 20. H. 6. 25. Feoffment was made to a woman sole upon condition and after she takes a Husband which breakes the Condition so in 35. assis 11. A woman sole makes a Feoffment upon condition to re-enfeoff upon request and after takes a Husband and then makes request and good and if it be so in these cases then in this case the Wife shall not be received to say the agreement was made against her will and for this see the Statute which gives Cui in vita to the Woman where the words are to whom she in her life could not contradict And after this agreement if the Husband give warrant of Attorney to suffer Recovery this is sufficient as it is agreed in 4. Ed. 3. and in 6. Coke 41. Mildmayes Case is agreed That if a man make a Feoffment to a Husband and a Wife upon condition that they shall not alien it is good to restraine alienation by which it apeares that if they Joyne in Feoffment that this shall be forfeyture and yet this is the Feoffment of the Husband only So here the agreement of them notwithstanding it is the Act of the Husband yet insomuch that it is against the expresse words of the Condition this shall be breach of the Condition and he intended that the words of the Condition amount to as much as if he had said that neither the Daughter sole nor the Daughter with another
Daughter or with another person shall make agreement and the other person of necessity shall be intended her Husband and so this agreement by the Husband and the Wife is within the words of the Condition And also he saith that it is argued in Becwiths Case 2. Coke that a married Wife may declare a use of a Fine which is levied of her Inheritance and if the Husband declare uses the Wife may controlle them And if an Estate be conveyed with power that the Husband with the assent of his Wife may revoke that the assent of the Wife to such revocation is good So if Proviso be that a married Wife only without her Husband may make revocation of uses and declare new this is good and revocation made by the Wife and declaration of new uses are very good and he agreed that in matters of Record the Husband cannot prejudice the Wife without her consent as Warrant of Attorney upon a Quid Juris Clamat or Per que servitia or other Act which concernes her Inheritance as in 9. H. 6. 52. 46. Ed. 3. 11. 43. Ed. 3. 5. and 27. H. 8. If a married Wife joyne with her Husband in a Feoffment of her owne Land rendring Rent and after the Husband dies and the Wife accepts the Rent this shall bind her which proves that it was her Feoffment as well as the Feoffment of the Husband Secondly he considered the words of the Condition which are Conclude and agree c the which he intended not to be so uncertaine as going about but they are Issuable and triable as it is agreed in 5. Ed. 4. 6. Com. 56. a. Wyrbish and Taylbois Case consent to a Ravishment within the Statute of 6. R. 2. is Issuable and triable so of consent and agreement within this Condition for though that the words are consent and agree yet it ought to be otherwise an Act subsequent that is reconvey suffer or other such Act or agreement shall not be forfeyture for to make Elopment which shall be a forfeyture of Dower there ought first to be consent but that is not sufficient but there ought to be also departure from the Husband and then the Law adjudges upon all the Act So here when it is an agreement and another Act subsequent which is executed then the Law shall judgeupon altogether and for that this agreement consists of two parts first when the Wife upon the motion of the Husband concludes and agrees to do the Act which is the beginning of the agreement and then when the Husband and the Wife upon that joyne in Deed indent as in this case this is a consummation and makes a breaking of the condition and this is not like the condition in Myldmaies Case where every going about ought to breake that as if he goe to Councell to be advised upon his Estate Thirdly he intenâ—ed that the condition is not repugnant to the Estate in respect that an other thing is to be done before the forfeyture and after the concluding and agreeing for the Wife remaines in Seisin after the agreement till the Recovery or other Act be executed And also he argued that before the Statute of 4. H. 7. of Fynes Tenant in tayl might be restrained of alienation of his Estate for untill that he could not Barr the Issue in tayl So at this day he intended that a gift in tayl upon condition that he shall levie a Fine without proclamations this is good and out of the power which is given to Tenant in tayl to Barr the Estate tayl by the levying of a Fine And levying of a Fine without proclamations is only a discontinuance and so tortious so when a Condition doth not extend to all acts but only to all unlawful acts and for that it doth not extend to a Recovery for that is a lawfull Act as it is agreed in Scholasticas Case 10. H. 7. 10 11. H. 7. 6 7. 21. H. 7. and 28 H. 8. Leomans Case If an ecclesiasticall person hath a Tearme with this condition that he shall not alien and after comes the Estate which inflicts punishment upon him for keeping of a Farme and yet it seemes it is a good condition But so upon the Statute of 4. H. 7. of fines If aman hath agift in tayl with condition that he shal not alien And after the Statute of 4. H. 7. is made which inables him to barr the Estate tayl by fine yet he intended that the condition should restraine him from all unlawfull Alienations And he intended as well as such a condition annexed to a Lease for life is good so is it being annexed to an Estate tayl for as well as it is in one case for the preservation of the reversion So is this in the other case and as in 6. Eliz. Dyer 227. Grant of Rent Proviso that it shall not charge the person of the Grantor shall not extend to the Executors of the Grantor but shall be determined by the death of the Grantor And so as a condition that a married Wife or an Infant shall not alien is good insomuch that this is wrong so he intended that if this were a good condition at the Common Law that Tenant in tayl shall not alien the Estate by 4. H. 7. and 37. H. 8. doth not inable Tenant in tayl to make alienation against such condition And it hath been agreed that if a man make a Feoffment in fee of the Mannor of D. And after makes a gift in tayl of the Mannor of S. upon condition that the Donee shall not alien the Mannor of D. this is a a good condition and in the 21. H. 7. 12. it is agreed that if a man make a Feoffment Causa Matrimonij Prolâ—cuti and after Divorce is sued there the free-hold shall be devested out of the Husband without entry And also he intended that a man might make a thing by devise the which he could not make by Act executed as Authority to sell his Lands to his Executors it good and yet in all cases of Authorities by Acts executed the Authority shall cease with the life of the party And for that there shall be one Law of devises and another Law of Acts executed by the party in his life as 29. assis 17. and Fitz. Na. Bre. in ex gravi querela last case the particuler Estate being created by devise ceases and remainder takes effect And then to the exception that the estate shall cease and remaine to him which had the next remainder the which is repugnant as it was intended and so is Jermy and Arscotts Case But here the words are that the Estate shall cease as if the party to which that is limited were dead without Issue from the time of the Contract and agreement and the remainder to him which hath the next remainder and not the Issue of him which made the forfeyture and also this Remainder from the time of the agreement and conclusion and not from the time of the Act
this shall passe for him which pleads the demise of the Mannor Then if in Judiciall proceeding the Law makes such favourable construction to make that passe by a Mannor which is no Mannor in truth because it hath been usually known by the name of a Mannor then it seemes to him a Fortiore that no more beneficiall construction shall be made in conveiances which allwaies shall be construed to the intent and meaning of the parties and so it seemes to him that the Common remaines and Crooke Yelverton and the cheife Justice Flemming conceived that in reason he shall have the Common but they did not give any absolute opinion as to that But Williams Justice to the contrary and that the Lessee for yeares cannot have more then he contracted for in his Lease and then the Vsitatum void and the Lessees have taken that by wrong And this Grant having reference to a void and wrongfull usage is not good and it is adjourned Hillary 7. Jacobi 1609. In the Kings Bench. Stydson against Glasse Stydson brought an Ejectione Firme against Glasse and upon speciall Verdict the case was this that is That one Holbeame was seised of the Land in question in Fee and made a Lease for life to Margret Glasse and after covenanted with John Glasse Husband of the said Wife Lessee that before such a day he would Levie a Fine to A. B. and to the Heires of A. of the same Lands which Fine should be to the use of the said Glasse for sixty yeares to begin after the death of the said Margeret Glasse with Proviso within the same Indentures that if the said Holbeame at a certaine day should pay to the said John Glasse a hundred pounds that then the Lease should cease and then of that the Conusees should stand seised to the use of the said John for his naturall life and after the said Holbeame disseised the said Margeret Glasse the Lessee and made a Feoffment to the use of himselfe and one Alice with whom he intended to marry and to the Heire of their two bodyes begotten the remainder to the right Heires of the Feoffor and after the sayd Feoffor and Alice intermarried and after the said Holbeam tendred a hundred pound to the sayd John Glasse the Lessee for years and after the sayd John Glasse assigned over his Tearme and after the sayd Holbeam by Deed indented and inrolled bargained and sold the said Land to the said John Glasse and his Heir and after Iohn Glasse dyed and the Inheritance discended to the said Margeret Glasse Lessee for life the Conusor dies his Wife enters and lets to the Plaintiff the Defendant enters upon him and the Plaintiff re-enters and brings Trespass against the Defendant which justifies as servant to the Assignees of the Tearm and if upon all the matter c. And it was argued by Nicholls Serjeant for the Plaintiff and he moved three points in the case First if by this feoffment upon such condition as this is had been Extinct at the Common Law or remaines to the Feoffor notwithstanding the feoffment for if he have interest in the Land then it is extinct by the Livery for it is given of the Feoffor and past out of him and yet the Feoffee cannot have and for that it is extinct but if it were but Authority as in 15 H. 7. Authority to sell the land of the Devisor then the Authority remaines and is not extinct by the Feoffment of the land so power of Revocation to a stranger which is but authority is not extinct by a feofment Albaines case Coke 112. a. But if it be right in Interest then it is extinct by the feofment as power of revocation to the Party himself resolved to the point in Albains case so of Title to a Writ of Deceit 38 Ed. 3. So of a title to be Tenant by the Curtesie 9 H 7. 1. But by 42 Edw. 3. by a Feoffment made by a Parson of Land of his Rectory the Tythes of that Land are not extinct but remaines notwithstanding the Feoffment for that it was collaterall to the title of the Land as the Cases of Authority are which were put before then if this power to alter a Lease by payment of a hundred pound be not any right nor Interest but a collaterall power and the authority not extinct by the Feoffment but remaines but admitting that it is in nature of an ordinary Condition and that before the Statute it should be extinct by the Feoffment for that it is the gift of the Feoffor and yet it is not transferable to the Feoffee If now by the Statute of 32 H. 8. which inables Grantees of reversions to take advantage of Conditions if the condition be not transferred to the Feoffees and so over to he to whose use that then by consequence this remaines to the Feoffor which was the he to whose use and then the tender of the money after well may alter the Lease it seems that so for before the Statute if a Lease for yeares had been made upon condition to cease and after the Lessor enters upon the Lessee and makes a Feoffment and the Lessee re-enter and breakes the condition the Feoffee shall take advantage of that condition being by way of ceasing of an Estate so after the Statute the Feoffee of the Lessor shall take advantage of the condition of Re-entry and of every other condition annexed to the reversion as well as of one condition to cease before the Statute and as well that every Grantee shall doe since the Statute for though that he comes in by Feoffment which is wrong to the Lessee yet after the re-entry the Lessee is in nature of a Grantee And he cyted the Case of Clyfford Error 7. Ed. 6. to be that Lessor entred upon his Lessee and made a Feoffment if the Lessee re-enter the Rent and the Condition are revived againe and the Feoffee shall have both see Cliffords Error 7. Ed. 6. Dyer the last case and 1. M. Dyer 96. 43. but there is not any such matter and for that it seemes that he hath another report of this case of Cliffords Error or otherwise he meant some other case and not Cliffords Error so is our case the condition being inherent to the reversion shall passe with the reversion be that by grant or feoffment and when the reversion is revived by the entry of the Lessee the condition shall be revived also and it is the more strong insomuch that the Condition is that upon the payment of the money the Lease for years shall cease and not that the Lessor shall re-enter that such Feoffee shall take advantage of a condition by way of ceasing of that at the Common Law 2. point and for the second point he would not argue against that that he took to be cleer and for that he conceived the Law to be against his Clyent in this point though that after the Disseisin and Feoffment the free-hold could not accrue
and void in it self this Clause doth not supply that For this is but notification to the Officers of the Queen that they should be attendant to the said Earl For though that the Intent of the Queen was that the Earl of hutland should execute this office by Deputy yet this intent shall not make the grant good for though that the Intent of a common person be apparent within the Deed yet this intent shall not make a voyd grant good 19 H. 6. 20 H. 6. 22 H. 6. 15. Grant to 2. Et heredibus with warranty to them and to their Heirs this clause of warranty though it were the intent of the parties apparent yet it was not sufficient to make the grant which was voyd good and so it is in 9 H. 6. 35. Abbot by his deed in the first person grants a Tenement and the Grantee in the third person renunciavit totum Commune quod habuit in uno tenemento and though that in this Grant the Intent of the parties is apparent yet this Intent shall not make the Grant which is void in it self to be good So if a man makes a Lease for life to the Husband and Wife and after grants the reversion of the Land that the Husband held for tearm of life that grant of the Reversion is void though that the Intent was apparent 13 Edw. 3. Grants 63. And so in Patent of the King grant to a man and heredebus masculis suis is void though that the Intent also is apparent that he should have an estate tayle 18 H. 8. b. Estates 84 But admitting that the Grant may be supplyed by the last words that is that in the last Grant the words are officia predicta and in the clause of Assistance yet these words may be supplyed for there are two other Grants in which there is expresse mention that the Patentee may exercise it by Deputy and so the words shall have full Interpretation Reddendo singula singulis And hee conceived that the Writ shall abate for that that it contains Vi armis And also the Declaration for the Jury have not found any disturbance at all And he agreed that in some cases Trespasse Vi armis well lyes as it is Fitzh Na. Bre. 92. 86. as where it is actuall taking 45 Ed. 3. 30. 44 Edw. 3. 20. where trespasse Vi armis is maintainable against a Miller for taking of Toll against the Custome for here is actuall taking and 8 R. 2. 7. Hosteler 7. In an action of Trespasse Vi armis against an Host for that that certain evill persons have taken the money of the Plaintiff and good But where there is not any actuall taking there the Writ ought not to containe Vi armis for for not scowring of a Ditch or stopping of Water as it is 43 Ed. 3. 17. But for casting of Dung into a River action of Trespasse Vi armis lyes 12 H. 4. But for burning of a house it doth not lye Vi armis 48 Ed. 3. 25. And so for turning of water-course 3 H. 4. 5. But in this case there is but disturbance with a word and commandement to hold a Court and no Court held nor no Proclamation made and so no disturbance at all 16 Edw. 4. 11. one hath the office of a Parkership and another man was bound that he should not disturbe And in debt upon the Obligation he pleaded that the Obligor hath threatned to disturb him and adjudged that this is no breaking of the Condition for there is no disturbance and in 2 Ed. 3. 25. and 40. Quo minus by Jeffery Scorlage where the King grants to the Mayor of Southampton the Customes of the same Towne and in quo minus for taking of them it was adjudged that words are no assault but there ought to be an act done But in this Case is nothing found but words and no act done but it is found that after the Defendants held the Courts But that doth not appear if it were against the will of the Earl of Rutland or not and so concludes that the action is not mayntainable And this case was argued again in Trinity Tearm next ensuing by the Justices Danyel being dead but I was not present at the argument of Foster and Warburton Justices but I heard the arguments of Walmsley Justice and Coke chiefe Justice And first Walmesley conceived that the Grant was good and that the Earl of Rutland by this Grant might exercise his Office by Deputy and this only in respect of the quality of his person for the Patentee is a Noble man which hath been employed as an Embassador of the King into other Realms and this Grant of this Office being amongst others varies from them for this wants the word exercendum which is contained in the others and also the office of a Steward is too base for an Earl to execute for the Steward is but as a Clark and not a Judge for he shall not be named in a Writ of false Judgment nor shall hold plea of any actions but under 40. s. for that it is not fit nor convenient that an Earl should exercise such a bas Office in Person For if Recovery here be pleaded it shall be tryed by the Country 1 Edw. 3. And the Steward shall not give Judgment but the Suitors and no tryall shal be by Verdict but by waging Law and the fee of the Stewardis but a 1 d. for every Plaint And for that it was not the Intent of the Queen that the Earl should exercise such a base office in person and her Intent is apparent for that that the word Exercise is not contained in the Patent And the Intent of the Queen is to be considered for the other Offices are fit to be executed by the Earl for the exercising of them is but a matter of pleasure as in hunting in the Forrests and Parks of the Queen and for that if these Grants have not contained words of deputation the Earl ought to exercise them in person according to Littleton And Noble men are not to be used as common people for they are not to be Impannelled of a Jury and Capias doth not lye against him by which he cannot be outlawed and for that he shall not be bound to sit in such a base Court as this base Court is And all this matter is wel declared and expounded in the last clause of the Patent where the words are Et ulterius volumus mandamus quod omnes c. Sint intendentes auxiliantes c. Where the words volumus in Patents of the King to amount to as much as concedimus or a Covenant which is all one with a Grant as in 32 H. 6. The King releases all his right in an Advowson Nolentes that the Patentee shall be grieved or disturbed and adjudged that this shall amount to a Grant and so the word Volumus in the principall case and also he conceived that the
Berwick Gaol for stealing of a Mare and other Beasts and after a Verdict for the Plaintiff it was moved in Arrest of Judgement that the words were not actionable and so it was adjudged for that he did not directly say the Plaintiff was a Thief but onely implied Hill 15. Iac. rotulo An Exception taken to a Declaration in Trover brought by an Administrator because he declares that whereas he was possessed of divers Goods and Chattels as of his own proper Goods and should have said as was pretended as of the Goods and Chattels of the intestate at the time of his Death but the Exception was over-ruled by the Court. Exception to an Action of the case brought and the Plaintiff declares that whereas the Plaintiff had delivered the Defendant unum statum salis Anglicae a Bushel of Salt pretending that statum had another proper signification but because it was shewed to the Court that statum by one Dictionary was Latine for a Bushel Judgement was given for the Plaintiff In Trover it is usual to prove no more but that you requested the Goods and the Defendant refused to deliver them this is a Conversion When a Justification arises upon a Sale then I need traverse no more but the place alleadged and not go to the whole County but where it is a transitory Trespass as for Battery taking of Goods and the like then the whole County must be traversed CAtford versus Osmond Mich. 16. Jac. rotulo 1063. Action of Trover brought for two Steers the Defendant being an Attourney of the Common-pleas justifies the taking as Under-sheriff by reason of Process from the Exchequer to levy of the Occupiers of the Lands of divers persons in a Schedule in the said Writ named the Debts therein specified and doth not recite the Schedule and he being Under-sheriff took the Steers in the Land of the Plaintiff which was lately one Stones who was Debtor to the King in 59. s. being behinde upon the Land and Exception was taken for that it was not directly alledged that the Land such a Day was the Land of the said S. The Writ commanded to levy the summs in the said Schedule mentioned and if they could not to take their Bodies and it was adjudged a good Warrant to levy of the Occupiers of the Lands that were the said S. 59. s. COles versus Flaxman Hill 14. Jac. rotulo 2175. Action of the case brought for disturbing the Plaintiffs Common The Defendant pretends Title to the Common by reason of Common appurtenant to certain customary Land of part of which he conveys a Title to himself but not of the whole and the Question was whether it were Common appurtenant or appendant and if appurtenant it could not be divided KEymes versus Moxham Trin. 15. Jac. rotulo 559. Action of the case brought for a promise made at C. for the Delivery of a Mare which the Plaintiff delivered the Defendant to plow his ground in P. And shews the Defendant did so excessively and immoderately labor and work the said Mare that the Mare died The Defendant confesses the promise and that the Mare at the time of the Delivery was infirm and that he worked her moderately and traverses the excessive labouring of the Mare and after a Verdict it was moved in Arrest of Judgement that it was mis-tried because the Venn was of C. which was naught and there was no place alleadged where the excessive labouring was for the Venn ought to come from that place where the laboring was HArbin and his Wife versus Green Trin. 14. Jac. rotulo 2263. Action upon the case brought for not grinding his Corn at the Plaintiffs Mill and shews that the Bishop of Salisbury was seised of four customary Mils called A. in his Demesne as of Fee in right of his Bishoprick and prescribes that all Inhabitants and Residents within the City of Salisbury holding any ancient Mesuages of the said Bishop in right of his Bishoprick were time out of minde used and ought to grinde all their Corn whatsoever spent in their houses or exposed to sale in the said City at the said Mils of the said Bishop and no where else without the licence of the said Bishop and to pay Toll therefore to the said Bishop his Successors Bishops or their Farmors for the time being and in consideration thereof the Bishop his Successors or Farmors for the time being of the said Mils time out of minde have been used and accustomed at their own charges from time to time to keep and maintain a Servant expert in grinding as well by night as day there attending to grinde their Corn as soon as conveniently might be and the Plaintiff shews that such a Day the Defendant was and yet is an Inhabitant in one ancient Mesuage in the said City held of the Bishop and so possessed intending to deprive the Plaintiff of the profit of his Mill did such a day grinde divers sorts of Corn in other Mils without the Bishops leave to his damage of c. The Defendant pleads Non cul The Jury finde the Defendant guilty for a longer time then the Plaintiff had interest in the Mill and gave Damages intire and upon a Motion in arrest of Judgement adjudged naught GResley versus Lother and his Wife Executrix of R. B. and declares that communication was had between the Testator in his life and the Plaintiff concerning a Marriage to be had and solemnized between one T. B. son and heir apparent of the said R. B. and Jane Daughter of the Plaintiff and heir apparent of John F. deceased the said Testator such a Day and Year in consideration that the Plaintiff at the special instance and request of the said R. B. then and there would agree that the said T. B. should marry the said J. promised to pay 20. l. and adjudged a good consideration GOwland versus Mason Hill 17. Jac. rotulo Action of the case for these words I charge him with Felony for taking of money out of the pocket of Henry Sparry and I will prove it and the Court was divided in opinion whether the words would maintain an Action or no. SMith and his Wife versus Stafford Executor of Stafford Hill 15 Jac. rotulo 906. Action of the case brought upon a promise made to the Woman when she was sole in consideration the Woman would marry the Testator he promises that if the Woman should over-live the Testator that then he would leave her worth 100. l. and they averr that she did marry him and after the Husband died and did not leave her worth 100. l. and the Defendant pleads Non assumpsit and found for the Plaintiff and it was moved in Arrest of Judgement that by the Inter-marriage the Promise was drowned and released Three Judgeâ—…r the Plaintiff and one for the Defendant The like Observations in Actions of Covenant DRury versus Allen al. Mich. 6. Jac. rotulo 926. Action of Covenant
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
the Plaintiff shews that the Rector of M. had 2. parts of the Tithes in 3. parts to be divided that the Vicar of the same place had the third part of the Tithes and layeth this by Prescription as to the manner of the taking the Tithes shews further how the Parson Vicar by several Leases had demised the Tithes to him so he being Proprietor of the Tithes the Defend sowed 10. Acres within the Parish to wit Wheat Rie c. carried it away without setting forth the Tithe to his Damage c. And upon a Nil debet per patriam pleaded it was found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff had in that Action comprised severall Actions upon the Statute and that it appeared by his own shewing for the Plaintiff claimed not the Tithes under one Title but under the severall Tithes of Parson and Vicar and Fennor Justice held they could not joyn and no more could the Plaintiff who claimed severally under them and it seemed to him that the Parson could not have this Action against severall Tenants for not setting forth their severall Tithes because he could not comprehend two Actions in one but the whole Court besides held the contrary for although the Parson and Vicar could not joyn in this Case because they claim their Tithes severally by divided Rights yet when both their Tithes are conjoyned in one person as it is in the Plaintiffe then the the Interest of their Title is conjoyned also in one and it suffices generally to shew the Plaintiffe is a Farmer or proprietor of the Tithes without saying of what Title for it is but a personall action grounded meerly upon a contempt against the Statute for not setting forth Tithes and also Tithes are not demanded by this Action although the Title may come in debate yet it was agreed by all the Judges that the Plaintiffe should recover his Tithes in dammages and shall not demand them again by any suit after a recovery in this Action which Mark. BErket versus Manning Pasch 3 Jacobi Action of Debt brought against the Defendant as Administrator of J. S. The Defendant pleads fully administred the Plaintiffe replies that himself had assets and it should have been that the Defendant had assets and this was moved in arrest of Judgement but amended by the Court being the Clerks misprision onely as where it is entred predict Defend similiter and it should have been predict quer similiter and this hath been often amended by the Court. PAler versus Hardman Pasch Jacobi Hardman and his wife Executrix J. H. brought an Action of Debt in the common Pleas against Paler and as that they should restore a tun of Iron to the value of twelve l. and declare upon a Bill for the delivery of the said tun of Iron within such a time and that the Defendant had not delivered it to the Plaintiffes dammage of c. and upon non est fact pleaded it was found for the Plaintiffe and Judgement was given that the Plaintiffe should recover the Tun of Iron or the value of the same and if he should render the tun then by the oath c. should inquire what the tun of Iron was worth and before any return of the writ to inquire of the dammages the Plaintiffe in the common Pleas takes out a Capias upon the Judgement and on Exigent upon that and the Defendant brings a writ of Error and it was adjudged erroneous for two causes first because the Judgement was in the disjunctive that the Plaintiffe should recover the tun of Iron and if not the value thereof so in detinue as it appears by the Judgement in this Case that the Plaintiffe may choose whether he will have the Iron or the value thereof which he cannot do for if the iron be to be delivered he shall recover that onely but if it be not to be delivered then the value and not as before Secondly for that the Judgement is not perfect untill the writ to inquire be returned with issues to the Sheriffe to distrain the Defendant to render the Iron and also to inquire of the value and before the return thereof nothing in certain appears One which to ground any writ of Execution for the Judgement comprehends no certainty but is to be made certain by the return of the writ to inquire with the whole Court granted CArpenter versus Collins Mich. 3 Jacobi An Action of Debt brought by the Plaintiffe for rent arere and declares upon a Lease made to the Defendant at Will to be held from Mich. as long as both parties should agree yeelding and paying three pounds yearly and shews that Collins entred and occupied from the Feast c. unto the Feast of Mich. and upon nil debet plenius the Jury foundthat J. Norrington had issue a Son and a daughter and Devises that his Son shall have his Land at the age of twenty four years and gives forty pounds to his Daughter to be paid her at the age of two and twenty years an further wills that the Plaintiffe should be his Executor and should repair to his houses and have the oversight and doing of all his Lands and moveable Goods untill the severall ages aforesaid and after dies and Carpenter the Executor makes the Lease before mentioned and the Jury further find that the Son died but find not at what age he was at his death but that the Daughter at the Sons death was nineteen and no more and find the Lease made by the Plaintiffe and that the Lessee by force thereof entred and continued possession from Michaelmas for one year and more and find that within that year the Daughter entred and that the Defendant atturned to the Daughter and refused to continue Tenant to the Plaintiffe and by Fennor Yelverton and W. Judgement was given against the Plaintiffe for the Plaintif took no interest in the Land by the Will for the oversight and doing of his Lands shall be intended but in Right of the Heire and to his use because the Testator though not his Son of discretion and government untill the age of twenty four years and in the mean time appointed his Executor to oversee and order the Land to the profits of the Heâ—â—e that wanted discretion 28 H. 8. D. 26. where it is declared that J. S. shall have as well the governing of c. as the disposing setting letting and ordering of his Lands and by the Court held that J. S. had them onely to husband for the profit of his children and no otherwise but he was of opinion that the Plaintif had an estate in the Land upon a limitation determinable at the Sons age of four and twenty years and it appears not at what age he died being not found by the verdict therefore it is incertain and the Entry of the Daughter lawfull for the limitation looks but to the age of the Sonne and
whole Court for they said that the Demand must be made at the place of payment although it be of the Land FIeld versus Hunt Mich. 5. Jacobi Hunt in VVorcester Court obtained a Judgement after a Verdict in Debt upon a Contract for twenty Sheep and after it was removed by a Writ of Error into the Kings Bench and generall Errors assigned but upon opening the Errors it was shewed the Court that there was no Declaration in VVorcester Court for the Declaration was thus Raphael Hunt complains against H. Field of a Plea that he render to him twenty pounds which he owes unto him and unjustly detains and whereof the same Plaintift by M. his Attorney whereas the said Defendant c. and by Fennor VVillams and Cook it is no Declaration for Default of this word Dicit and the sense is imperfect and although Yelverton objected that a Declaration is sufficient if it be good to a common intent and Quer. being writ short it may be Queritur and then it is and whereof the same complaines but the Court held that would not help for it is not certain to whom the word Idem should refer whether to the Plaintiff or Defendant and of the two it should rather refer to the Defendant which is the next Antecedent and the Court held it matter of substance which is wanting and therefore naught but if it had been 4. and whereof the same Raphael quer being writ short it had been good for because the party Plaintiff is certainly named and then Quer. could have no other sense then Queritur and Judgement reversed which mark HArrison versus Fulstow Mich. 5. Jacobi The Plaintiff brought Action of Debt for fourscore and six pounds in the Common Pleas against T. Harrison and the Capias was continued accordingly against T. Harrison but the Plur. capias was against William Harrison which was the very name of the Defendant and that was but for fourscore and five pounds which varied from the first Entry and William Harrison appeared upon the Exigent and the Plaintiff declares against William and he pleads and they are at Issue by the name of William and a Verdict for the Plaintiff and Judgement accordingly against William and upon a Writ of Error it was assigned for Error that the Original did not maintain the Proceedings for the Original is against Tho. and the Proceedings against William and the Plaintiffs Counsel would have excused it because the Judgement being against William and the Original against Tho. as it is certified it cannot be the Original against William and so the Judgement against William being without Original it is aided by the Statute after a Verdict but the Court held it to be Error for there is great Difference between no Original and a naughty Original for the want of an Original is helped but not a vitious Original and Judgement was reversed for upon Diminution alleadged that this Original was certified as the Original in that Suit or else there was no Obtulit at all LOthbury versus Humfrey Mich. 5. Jacobi Lothbury and his Wife Administratrix of VV. R. brought an Action of Debt as Administrator upon an Obligation of forty Marks dated 4. April 38 Eliz. made by the Defendant to the Intestate 1. the Defendant pleades that Ridge the Intestate October the first Jacobi made his Will and made the Defendant his Executor and devised the Obligation and the Money therein contained to one H. Son of the Defendant and died after whose Death the Defendant takes upon him the burthen of the Executorship and administers divers Goods of Ridges and that he is ready to aver this to which Plea the Plaintiff demurrs generally and adjudged for the Plaintiff for the Defendants Plea is not good without a Traverse that Ridge died intestate For the Action is brought as Administrator and they count upon a dying intestate and that being the ground of the Action ought to be traversed as it is 9 H. 6. 7. Debt brought against one as Administrator of J. and counts that J. died intestate the Defendant pleads that J. made his Will and made him Executor and held no Plea without a Traverse and the same Law 7 H. 6. 13. Debt brought against one R. Executor of R the Defendant pleads that R. died intestate at such a place and held no Plea for if the Plaintiff maintain that R. made the Defendant Executor and the other say that R. died intestate at such a place this makes no Issue and therefore the Defendant ought to traverse that R. died intestate without that that he made him Executor and 4 H. 7. 13. the very Case in question is adjudged that such a Plea in Barr is not good without a Traverse to wit to say without that that R. died intestate according to the 3 H 7. 14. and this was agreed by the whole Court without Argument CHeyney versus Sell Mich. 5. Jac. Cheyney as Executor of Cheyny brought an Action of Debt upon an Obligation against Sell the case was that the Testator had put himself as an Apprentice to Sell for seven years and Sell bound himself to pay to his Apprentice his Executors or Assignes 10 l. at the time of the end or determination of his Apprentiship the Apprentice serves six years and then dies and it was moved by Towse that the Money was due at the time of his Death because then his Apprentiship ended for he said if a man make a Lease for one and twenty years to another and oblige himself to pay to the Lessee ten pounds at the end and expiration of his Term and within those years the Lessor infeoffes the Lessee so the term expires and the ten pounds should be paid instantly but Cook denied that Case because the Lessee hastened the end of his terme but he said that if a man lease Land to another for seven years if the Lessee should so long live and the Lessor oblige himself to pay ten pounds at the end of his terme and he die within seven years there he was of opinion the Money was presently due upon his Death but in the principal case the whole Court held the chief Justice being absent that the Obligation was discharged and that the Money should notbe paid WIllot versus Spencer Mich. 9. Jacobi The Plaintiff brought an Action of Debt for Tithes of Wood upon the Statute of 2 E. 6. and Forster argued that Judgement ought not to be given for the Plaintiff because the Plaintiff did not shew in his Plaint that he was Parson for he ought to bring his Action according to that name that he claimed the Tithes by and this ought to be expressed in the Queritur and therefore if a man bring his Action to recover any thing as Heir Executor or Sheriff he ought to name himself so in the Queritur 30 H. 6. 9 H. 4. but Towse said the same Exception was taken between Merrick and Peters and disallowed Fleming Justice said
Arbitrator for else the Bond remaines as single and so in this Case the Defendant pleads that the Arbitrator made an Award and that it was delivered by the Arbitrator but whether it was delivered in writing or under his hand according to the Submission is not pleaded and therefore it is no Answer to the Plaintiff for he hath not pleaded an Award made according to the Condition and therefore the Bond is single Yea Cook argued for the Defendant and said that the Plaintiff by the Demurrer had confessed that the Arbitrator had made no Award as the Defendant had pleaded and then he shal never have Judgement for if it may judicially appear to the Court that the Plaintiff had no Cause of Action he shall never have Judgement and that the Plaintiff ought to have averred and joyned with a Traverse of that the Defendant pleaded to wit that the Arbitrator had made an Award and delivered it in writing under his hand and seal without that c. and as to the other matter of the Trespasse the same Day and so he might have demanded Judgement for his Plea doth but amount to the general Issue that the Arbitrators made no Award but Yelverton answered that it could not be pleaded in any other manner then he had pleaded it because he could not traverse it because the Defendant himself had pleaded that he made an Award and although the Demurrer confesse all matters in Deed yet they are such onely as are well pleaded as Burtons Case 5. Rep. 69. And also although the Award pleaded cannot be intended the same Award specified in the Condition yet the Plaintiff had good cause of Action and all the Court Fleming being absent were of opinion that the Plaintiff ought to recover for the Reasons before alleadged but as for that point whether the Controversie that grew in the morning should be arbitrated because there cannot be a fraction of Dayes it was not argued nor any opinion of the Court delivered onely Cook cited 5 E. 4. 208. that the Arbitrator ought to arbitrate of that because the Condition was of all matters untill the making the Obligation WHeeler versus Hayden Trin. 11. Jacobi W. Parson of the Church of A. brought an Action of Debt against the Defendant for Arrerages of Rent and declared upon a Lease made to the Defendant for four years if the Plaintiff did so long live and continue Parson c. and upon a Non demisit pleaded the Jury found an especial Verdict to wit that the Plaintiff had leased it to the Defendant for four years if the Plaintiff shall so long live onely and whether this Verdict was found for the Plaintiff or Defendant was the Question and Cook Serj. seemed that it was found for the Plaintiff for the main matter was that he should lease it if he so long lived and the subsequent words are of no effect because they contained no more then by the Law was before spoke of for the Law sayes that if he be non-resident or if he resign or be deprived that the Lease shall be determined like to the 30. Ass 8. A Lease to two and the longest Liver of them and the 17 E. 3. 7. A. A Lease to one of Land and a House for years and that the Lessee may make good profit of it this last Clause in both is idle and Dallidge was of the same opinion but Yelverton against them for the Plaintiff had intituled himself to the Action by such a Cause and if he fail in that it is his folly and shall not recover for the Lease upon which he declared had two Determinations the first by Death the second by removing and the Jury had found the Lease onely upon the first Determination and therefore various in substance and therefore the Jury have found against the Plaintiff as if a Lease be made by Baron and Feme if they shall so long live continue married both of them ought to be found Haughton to the same purpose for when a Parson makes a Lease if he shall so long live he doth take upon himself that he will do no Act by which the Lease shall be determined but onely by his Death for otherwise an Action of Covenant will lie against him but if the other Clause be added to wit and shall so long continue Parson then he may resign or be non-resident without danger and so there is great difference between the Verdict and Declaration and it was adjourned the Court being divided in opinion Dower MIch 6. Jacobi Dower may be brought as well against the Heir himself as against the Committee of the Ward but if an Infant be in Ward to a Lord in Chivalry the Dower shall be brought against the Guardian in Chivalry If Dower be brought against one who is not Tenant of the Free-hold the Tenant before Judgement shall be received and upon Default of the Tenant and after Judgement he may falsifie MIch 9. Jac. Dower demanded of the third part of Tithes of Wooll and Lamb in three several Townes and it was demanded of the Court how the Sheriff should deliver Seisin and the Court held it the best way for the Sheriff to deliver the third part of the tenth part and the third tenth Lamb Videlicet the thirtieth Lamb. In Dower against the Lord Morley the Tenant at the Day of taking of the Inquest after the Jury had appeared and before the Jury were sworn made Default and a Pety Cape was awarded and the Tenant at the Day in Banck informed the Court that the Tenant is but Tenant for Tenant for Life and that the Reversion is in one P. who at the Return in Banck ought to be received to save his Title and the Court appointed him at the Return of the Pety Cape to plead his Plea HIH. 13. Jacobi Allen and his Wife Demandants versus Walter in Dower of a Free-hold in Munden Magna Munden Parva B. the Sheriff returned Pleg de prosequend J. D. R. R. And the Names of the Summoners J. D. R. F. And after the Summons made and by the space of fourteen Dayes and more before the Return of the said Writ at the most usual Church Door of Munden Magna where part of the Tenements lay upon the 27. of October being the Lords Day immediately after Sermon ended in that Church he publikely proclaimed all and singular things contained in that Writ to be proclaimed according to the Form of the Statute in that behalf made and provided L. P. Ar. Vic. And Exception was taken to the Return because Proclamation was not made at the Doors of the Churches where the Lands lay and the Court held it not necessary but it was sufficient to make Proclamation at any of the Churches but the Return was insufficient because he said that he had caused to be proclaimed all and singular in that Writ contained and sayes not what and the Demandant released his Default upon the grand Cape CLefold versus
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
were his Masters and part his own proper Goods and found guilty as to his own Goods and a special Verdict as to the Goods of his Master and Judgement for the Plaintiff COnstable versus Inhabitant in dimid Hundred de VValsham in Comitat. Essex Trin. 15. Jacobi rotulo 2244. The Action wabrought for a Robbery the Defendant is found guilty and it was alleadged in Arrest of Judgement that the Action would not lie because it was not brought against the whole Hundred and it was answered on the Plaintiffs behalf that the half Hundred is a Hundred by it self and the Court held the Writ should have been brought against them in this manner Inhabitantes in Hundredo de W. called the half Hundred of Waltham but the Writ was held good for the Writis so shall be intended to be brought against the men inhabiting in the half hundred of W. Judgement for the Plaintif in a special verdict the Jury found that the robbery was done upon the Sunday and it was held in the Kings Bench that the Hundred was liable NOrris versus Inhabitantes in Hundredo de G. Hill 14. Jacobi rotulo 431. And the Plaintiff declares upon a Robbery done the ninth day of October An. 13 Jacobi And the Originall bears Teste the ninth of October 14 Jacobi and after a Verdict Serjeant Harvey moved to stay the Judgement because the Writ was not brought within one year after the Robbery done according to the forme of the Statute of 27 Eliz. And the Court held it a good Exception CAmblyn versus Hundredum de Tendring Trin. 15. Jacobi rotulo 1952. The Plaintiff in his Declaration had mistaken to alleadge the very Day of the Robbery for he shewed the Robbery to be committed in October where in truth it was committed in September and the Court was moved that the Record which was taken out for Triall but never put in might be amended for the notice given to the Hundred as the Record is would appear to be before the Robbery and they granted that it should be amended Actions in Partition THe Process in Partition are Summons Attachment and Distress and the Process are returnable from fifteen Dayes to fifteen Dayes and if the Writ be brought against two or more several Essoines will lie but no View and the Sheriff upon the Distress is compellable to return the value of the Land from the teste of the Original untill the Return thereof and if the Writ be against two or more Deâ—eâ—â—iants and onely one appears the Plaintiff cannot declare against him untill the residue of the Defendants appear and Partition lies by the Statute of 31 H. 8. cap. 32. between Joint-tenants Tenants in Common Tenants for Life or for years but at the Common Law Partition was onely between Coparceners his Petit. is no Plea in Partition and in this Action there are two Judgements the first is that Partition shall be made and if the Plaintiff die after the first Jugement and before the second Judgement the Writ shall not abate but his Heir shall have a Scire facias against the Defendants to shew cause why Partition should be made and a Writ of Partition will not lie of the View of Frank Pledges and the Death of one of the Defendants abates the Writ And note the Plaintiff may have a general Writ but a special Count and if the Defendant confess part and plead Quod non tenet insimul pro indiviso for the residue the Plaintiff may have Judgement upon the Confession and a Writ to make Partition upon the Confession before the Triall and afterwards try the Issue for the residue or else he may respit his Judgement upon the Confession untill the Issue be tried but this is dangerous for if the Plaintiff be non-suit at the Assise then the whole Writ will abate and if the Sheriff return the Tenant summoned when in truth he was not an Action of Deceit lies not but an Action upon the Case because the Plaintiff shall not recover the Land by default and you shall never have a Writ of Partition against one where he cannot have one against the other thirteen men joyn in a purchase of a Mannour the Conveyance was of the moity to one of them in Fee and the other moity to the other twelve men in Fee the twelve make a Feoffment to one of twelve several Tenements and Land and that Feoffee makes twelve several Feoffments to those twelve men now the thirteenth man which had the other moity bringeth one Writt of Partition against them all pretending that they held insimul pro indiviso and by the opinion of the whole Court it would not lie but he ought to have brought several Writs and Mich. 6. Jacobi in Partition because both of them are in Possession he that is not prohibited may cut down all the Trees and no Estrepment will lie COcks versus Combstoks The Plaintiff declares that one A. was seised in Fee and demised for years to J. and L. and to the Plaintiff for term of Life and one of them demised to one of the Defendants for years the Defendant as to part pleads that he did not demise and the other pleads Non est informat and a Demurrer to the Plea of Non demisit because it is but argumentative Quod non tenet insimul and it was adjudged a naughty Plea a Writ of Error lies in Partition upon the first Judgement before the Writ be returned MIll versus Glemham The Defendant pleads that he before the purchasing of this Writ had brought a Writ of partition for the same Land against the Plaintiff which yet depends and demands Judgment if the Plaintiffs Writ were brought And the Court held that the Writ last brought is well brought for if the first Plaintiff will not proceed upon his Writ and the Defendant shall confess the Action yet the Defendant cannot sue a Writ to make partition upon that Plaintiffs Writ and therefore it is reasonable that the Defendant in the first Action may sue out a Writ to make partition and that the Defendants plea is naught and the last Writ is well prosecuted Actions upon Quare Impedit THe Process in this Action are Summons Attachment and Distress peremptory by the Statute of Marlborough cap. 13. the Sheriff must summon the Defendant by good summoners and return their names upon the original Writ and not return common summoners as John Doo and Richard Roo for a Writ of deceit lyeth in this Writ if the summons were not made indeed The Writs hereupon are returned from 15. days to 15. days The summons upon the first Writ may either be made at the Church door to the person of the Defendant And although a nihil be returned upon the first summons Attachment and Distress yet if the Defendant make default upon the Distress a Writ shall goe to the Bishop upon the title made by the Plaintiff but at the common Law
although his Estate be ended And the like if a Lease be granted to a Woman so long as shee shall live sole or shall behave her selfe wel if shee commit Waste the Writ shall be brought in the Tenet ad terminum vite and the Count shall be speciall If Tenant in Dower grants over his Estate to a Stranger and commits Waste yet the Action lyes against the Tenant in Dower but otherwise it is if the Heire grants over his Estate And the like for Tenant by the Curtesie If Waste be brought against two and one appear upon the Distringas and the other make default the Plaintiff shall have a Writ to inquire of the Waste but shall declare against him that appears for a man shall not recover by moities in Waste as one shall recover in a Precipe quod reddat against two for in waste the Land shall not be lost by default by an Action tryed and if a waste be committed between the Judgement and Execution a writ shall be awarded to inquire of the waste but Quaere thereof If a woman while she is sole commits waste and marries the writ shall be that the woman while she was sole committed waste and if Tenant in Tail in remainder brings an Action of waste against Tenant for life the writ may be which he holds of the Tenant in Tail although they hold of him in the Reversion in Fee and so it was adjudged Pasch first James that the writ was good An Action of waste lies against Executors for waste for waste committed by the Testator and if a man have Land in the Right of his Wife and waste is committed and the woman dies now no Action of waste lies against the Husband after the death of the wife In waste if the Term be ended and nothing be recovered but damages there a concord with satisfaction is a good plea and if the Lease for years determines pending the writ the Plaintiff shall recover nothing but damages and not the place wasted The Defendant may disclaim in his Action if he that hath the fee pleads no waste done this is a forfeiture of his Estate the Defendant may plead no waste done and give in Evidence that the Tenements at the time of the Demise were ruinous ancient Demesne is no Plea in Waste If a Guardian in Socage in the Right of his wife commits waste the writ shall be brought against the Husband onely Mich. 27. Ed. 1. rotulo 329. If an Action of waste be brought against the Husband and wife and the Husband appear upon the Distringas and the wife maketh default this shall be the default of both of them Mich. 20. H. 4. rotulo 393. the Plaintif may abridge the waste assigned in part so that he aabridges not the whole as if writ be of waste in houses and wood he may abridge part of the assignment in the houses and woods but not the whole and if Issue be joyned for part and demurrer for another part the Issue may be tryed before the Demurrer adjudged If an Indenture to raise uses upon good consideration be made and he that hath the Estate for life commits waste he to whom the reversion is limited by the same Indenture may have a generall writ of waste by saying generally that he hath demised it or a speciall writ at his pleasure and Mich. 27 H. 7. it was held by all the Judges that it is an ill return for the Sheriff to return upon a writ to inquire that he hath commanded his Bailiff because the Sheriff is both Officer and Judge which power cannot be committed to the Bailif of the Liberty and the writ is a Non omittas in it self but Quaere for there are divers Presidents against it the Lessee may cut down Trees for the repairing of houses when the Lessor is bound by covenant to repair and doth not and it is no good Plea for the Lessee in waste brought against him by his Lessor to say generally that he hath nothing in the Reversion but he must shew how the Reversion is not of him but upon a grant of the Reversion and waste be brought by the Grantee nothing in Reversion is a good Plea Upon no waste pleaded the Defendant cannot give in Evidence that the Tenements were sufficiently repaired before the writ brought If an Issue arises iâ— a forreign County the Jury shall not be examined of the view and if the Jurors be not examined of the View when they should be examined it is Error If my Father leases Land for term of life the writ of Waste shall be of houses c. which the said A. Father to him demised and so in a Writ of waste of a Lease made by my Predecessor but if the Abot or the Son himself bring the writ it shall be of Houses which he holds for a Term c. if waste be made sparsim in a Close or wood the Plaintiff shall recover the whole Close or wood and the treble value shall be levyed by Fieri facias or Elegit and not by Capias because a Capias lies not upon the Originall the Sheriff may take a Posse Comitatus to stay the Tenant from doing of waste upon an estrepment Two Tenants in Common one of them makes a Lease for years to the other An Action was brought against Tenant for years by him in the Reversion the Case was that the Lessorafter the Lease made granted another Lease in Reversion for yeares and this matter pleaded in abatement pretending that the Lease in Reversion was an impediment against the Plaintiff inbringing his Action but otherwise adjudged for if a Lease be made for life the Remainder for years and waste be committedby Tenant for life notwithstandingthe Lease for years in remainder waste lies SKeate against Oxenbridge and his wife Trin. 12 Jac. rotulo 849. waste brought of Lands and Gardens in L. of which E. K. was seised in his Demesne as of Fee and being so thereof seised after the fourth of February 27 H. 8. thereof infeoffed E. S. and others to the use of the said E. S. dead and of the said E. for Term of their lives and the longest liver of them and after the decease of the said E. S. and the said E. then to the use of the Heirs of the body of the said E. S. to be begotten upon the body of the said E. of which said E. S. dead the now Plaintiff is Son and Heir begotten on the body of E. committed waste and in the Declaration he shewed the Feoffment made to the Feoffees and the habend to them and their Heirs and because the word Heirs was omitted in the writ exception was taken but because it was in the Declaration it was adjudged good and note in this Case the woman was received upon the default of the Husband and pleaded to Issue If the Feoffees have but an Estate for life then they cannot convey an Estate in Fee simple over SAunders against Marwood H. 41. El. rot
H. 6. 3. This priviledge by the canon which gives that shall be taken strictly And so is the opinion of their own expositors see Panormitan Canon 37. So that there is an apparant difference between that and the lands which came to the King by the statute of 31. H. 8. For by that the King is discharged of paiment of tythes and so are his Patentees It seems to me that the construction of the Cannon may be in another course different from the rules of the common law as it was ajudged in Buntings case that a woman might sue a Divorce without naming her Husband very well and 11. H. 7. 9. The pleading of the sentence or other act done in the spiritual Court differs from the pleading of a temporall act done in temporall Courts and 34 H. 6. 14. a Administration was committed upon condition that if the first Administrator did not come into England that he should have the Administration which is against the Common Law for there one authority countermands another and 42 Ed. 3 13. A Prior which hath such priviledge to be discharged of Tithes makes a Feoffment and his Feoffee payes Tithes to the Prior and this was of Lands which were parcell of the possessions of Saint Johns of Jerusalem and upon that he inferred that this priviledge is personall and if it be so it is determined by dissolution of the order as it is determined in 21 H 7. 4. That all Parsonages impropriate to them by the dissolutions are become prsentable and so of these which were annexed to the Templers for these shall not be transferred to Saint Johns though that the Lands are 3 Ed. 1. 11. By Herle accordingly Fitz. Natura Brevium 33 K. and 35. H. 6. 56. Land given in Frankalmaine to Templers and after transferred to Hospitallers of Saint Johns the priviledge of the Tenure is paid and so shall it be in case of Tithes being a personall priviledg that shall not be transferred to the King and to the Statute of 32. H. 8. The generall words of that do not extend to discharge the Land of Tithes though that the Statute makes mention of Tithes if there be not a speciall provision by the Statute that the Lands shall be discharged and this appears by the words of the Statute of 31 H. 8. where the general words are as generall and beneficiall as the words of this Statute and yet there is aspeciall provision for the discharge of the payment of tithes by which it appears that the generall words donot discharge that and so the generall words of 1 Ed. 6. are as larg and beneficiall as the generall words of the Statute of 31 H. 8. And yet this shall not discharge the Land of payment of Tithes and this compared to the Case of the Marquesse of Winchester of a writ of Errour that that shall not be transferred to the King by Attainder of Land in taile for treason by the Statute of 26 H. 8. or 33 H. 8. And so of rights of action and so it was adjudged in the time of H. 8. that if the founder of an Abby which hath a Corrody be attaint of Treason the King shall not have the Corrody and he agreed that the Hospitall of Saint Johns of Jerusalem is a house of Religion for this is agreed by Act of Parliament and the word Religion mentioned in the Statute more then seventeen times and also it seems to him that the Statute of 31 H. 8 shall not extend to that for this gives and establishes Lands which come by grant surrender c. And that shall not be intended those which come by Act of Parliament no more then the statute of 13 Eliz. extends to Bishops 1. and 2. Phillip and Mary Dyer 109. 38. The statute of Westminster the 2. chap. 41. Which gives Contra formam collationis to a common person founder of an Abby Priory Hospital or other house of religion without speaking expresly of a Bishop and yet it seems that this extends to an alienation made in Fee simple or Fee taile by the Bishop 46 Ed. 3. Forfeiture 18. But it is resolved in the Bishop of Canterburies Case 2 Coke 46 that the statute of 31 H. 8. shall not extend to these lands which come to the K. by the statute of 1 Ed. 6. to make them exempt from paying of Tithes and to the Case in 10. Eliz. that is but an opinion conceived and that the Prior hath this priviledge from Rome and that the Farmer shall pay Tithes and the question was in the Chancery and upon consideration of the statute of 31 H. 8. It seems that the Patentee himself shall be discharged as long as by his own hands he tills it and the statute of 32. H. 8. Upon which the state of the question truly consists was not considered and also it was not there judicially in question And to the case of Spurling against Graves in Prohibition consultation was granted for that that the statute was mistaken and so the award was upon the form of the pleading only and not upon the matter and so he concluded and prays consultation Houghton Serjeant to the contrary and he agreed that it is a personall priviledg and if the Order of St. Johns had been dissolved by death that then the priviledg shall be determined and this appears by the Stat. of 2. H. 4. 4. before cyted and also the case of 10. Eliz. Dyer 277. 60. did doubt of that but he relyed upon the manner words of pleading that is that Hospitallers are not held to pay Tithes it is as a reall composition made betwixt the Lord and another Spirituall person of which the Tenants shall take advantage as it is resolved in the Bishop of Winchesters case Also as if a man grant a Rent charge if the Grantee dye without Heir the grant is determined But if the Grantee grant that over and after dyes without Heir yet the Rent continues 27. H. 8. Or if Tenant in tayl grant Rent in fee and dies the grant is void But if he after suffers a recovery or makes a Feofment the Rent continues good till the Estate taile be recontinued as it is resolved in Capels case So here the order of Templers hath been determined by death the priviledg hath been determined but insomuch that the Land was transferred by Parliament to the King this continues Also the words of the Statute of 32. H. 8. are apt not only to transfer all the Interest which the Pryor had in his Lands but also his Priviledges and Immunities to the King and he agreed it is not material if the words Tythes are mentioned in the Statute or not But the word upon which he relyes and which comprehends this case is the word Priviledg which takes away the Law for where the Law binds them to pay Tithes the priviledg discharges them And the words of the Statute are taken in the most large extent that is all Mannors c. Priviledges
of the King for the Plaintiff and day given for the argument of that till the next tearm Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe LEwes Tresham was Plaintiff in waste against John Lambe the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow the which he had let to the Defendant for years in Rushton in the county of Northampton and sowed it with Woade and prayed Estrepement upon the Statute of Glocester chapter 13. And upon examination it appears that the Lands let was pasture and Meadow the Pasture was Ridge and furrow but had been mowed and used for meadow for diverse years and that the Defendant plowed and sowed that with Woade but this which had been ancient meadow he used that as Meadow and did not convert that to Arable Land but the Judges would not grant any Estrepement to the Pasture for that it was Ridge and furrow and it was no ancient meadow although that had been mowed time out of minde c. But to the ancient Meadow they granted a writ of Esterpement but Foster seemed to be of another opinion for that that it was to sow Woade for that that it is against common Right and the fume and smell of that is offensive and infectious but if it had been to sow Corne he agreed as above and for the executing the Writ of Estrepement they all agreed that the Sheriff ought to take if need be the power of the County against those which made the waste hanging the Action and may commit them if they will not obey him for the words of the Statute are that you shall cause to keep which shall be intended in safety But if Lessee for years trench or draine that is no Wast as it was now of late times adjudged where if the Lessee takes any of the reasonable Bootes that the Law allowes that it shall be no Waste nor Estrepement shall be granted see Fitzherberts Natura Brevium 59. m. If a man devise Land to his Executors for years this is assetts but if he devise that his Executors shall sell his Lands or devise his Lands to his Executors to be sold this shall be no assets untill the Lands are sold and the money for which the land shall be sold shall be assetts A Record of Nisi prius in an Action of Debt upon an obligation with condition to pay such a sum of Money at such a Feast next after the date of the obligation and the day of the date of the obligation was omitted in the Record of the Nisi prius so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date and by all the Justices that was no perfect Issue and for that the Justices of Nisi prius have no power to proceed upon it and for that it shall not be amended otherwise if it had been a good Issue though that another thing had been mistaken see Dyer 9. Eliz. 260. 24. And see before the same Tearm here The King pardoned a man attaint for giving a false verdict yet he shall not be at another time impannelled upon any Jury for though that the punishment were pardoned yet the Guilt remaines Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade THE case was the King was seised of a Mannor where there were diverse Copy-holders for life and was also seised of eight Acres of Land in another Mannor in which the Copy-holders have used time out of minde c. To have common and after the King grants the Mannor to one and the eight Acres to another and a Copy-holder puts in his beasts into the eight Acres of Land and in trespasse brought against him by the Patentee of the eight Acres he prescribes that the Lord of a Mannor and all those whose estate he hath in the Mannor have used time out of minde c. For themselves and their Copy-holders to have Common in the said eight Acres of Land and further pleaded that he was Copy-holder for his life by grant after the said unity of possession in the King and so demanded judgment if action against which the said unity of possession was pleaded upon which the Defendant demurrs and all the Justices seemed that though that prescription was pleaded that the common was extinct but it seems also to them that by speciall pleading he might have beene helped and save his common for this was common Appendant see 4. Coke Tirringhams Case 37. 6. Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert IN Debt upon an obligation with condition to be and perform an Arbitrement to be made the Arbitrators award that the Defendant should make Submission and should acknowledge himself sorry for all transgressions and words at or before the next Court to be held in the Mannor of P. And for the not performance of that Award the Plaintiff brought this Suit and the Defendant in Barr of this pleads that at the said next Court he went to the Court to make his submission and to acknowledge himself greived according to the Award and was there ready to have performed it but further he saith that the Plaintiff was not there to accept it upon which the Plaintiff demurred and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part and for that that the Plaintiff was not there ready to accept the Defendant was discharged for this submission is personall and to the intent to make them freinds and for that both the parties ought to be present But Walmesley and Warburton seemed that it might have been very well made in the absence of the Plaintiff as well as a man may submit himself to an Arbitrement of a man which is absent for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words which he hath made and spoken and it was not argued but adjourned till the next tearme and the Justices moved the parties to make an end of that for that it was a trifling Suit Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund and subscribed that with the name of Edward and in Debt brought upon that he pleads it is not his Deed and it seemes to all the Justices that he might well plead that for it appears to them that he is not named Edmund and the originall against him was Command Edward otherwise Edmund and this was not good for a man cannot have two Christian names and if judgment were given against him by the name of Edmund and the Sheriff arrest him by Capias that false imprisonment lies against him But if he have a name given to him when he was christened and another when he was confirmed he shall be called and known by the name given unto him at the time
he had notice of the words which his Brother spoke but that this ought to be specially averred and the Count contained that the Defendant justified the aforesayd scandalous words to be true as in these English words following That which my Brother c. and it seemes that this was not sufficient Michaelmas 1611. 9. Jacobi In the Common Bench. Sir Richard Buckley against Owen Wood. NOte It was sayd to be adjudged between these parties that if a man exhibits a Bill in the Srarr Chamber which containes diverse slanderous matters whereof the Court hath no Jurisdiction that an Action upon the Case lyeth so if the Plaintiff affirme his Bill to be true action upon the Case lyeth upon that as it was adjudged upon that as it was adjudged in the same Case Michaelmas 9. Jacobi 1611 in the Common Bench. Patrick against Lowre IN Trespasse the Defendant justifies for that that he was seised of a House with the Appurtenances and prescribes to have Common in the place c. for all manner of Beasts Levant Couchant upon the sayd House and good prescription notwithstanding it doth not containe certaine number and it shall be intended for so many of the Beasts which may be rising and lying down upon the said House and if he put in more they may be distrayned doing Damage and so is the usage and prescription in all Burroughs that is to prescribe to have the Common by reason of the House but the matter upon which Nicholls the Serjeant which moved it insists was the uncertainty that is what shall be sayd rising and lying down upon a House for he thought beasts could not be rising and lying down upon a House unlesse that they are upon the top of the House but to that it was resolved that infomuch that here the common was claymed to the House it shall be intended that it was a curtillage belonging to the House and if it be not that ought to be averred of the other party and then the Beasts shall be intended to be rising and lying upon the Curtladge and if it had been alledged yet it shall be intended so many of the Beasts which may be tyed and are usually to be maintained and remaining within the House for it was agreed that rising and lying down shall be intended those Beasts which are nourished and fed upon the Land and may there live in summer and winter and also Beasts cannot be distrained if they be not rising and lying down upon the Land and receiving food there for some reasonable time but some thought that beasts could not be rising and lying down upon a house without a Curtilage Note that it was agreed that all proceedings in inferiour Court after a Writ of Priviledge delivered out of this Court are void and before no Judge and if they award Execution this Court will discharge the party of Execution Note that a Fine was levyed between Charles Lynne and VValter Long and the Foote of the Fine was Longle and it was amended Michaelmas 9. Jacobi 1611. In the Common Bench. Hamond Strangis Case THe Father for a valuable consideration infeoffs his eldest son and Heir and adjudged that this was not within the statute of those who infeoff their eldest Sons nor a valuable consideration In Avowry the Defendant avowes upon the person of the Plaintiff in a Replevin and the Plaintiff traverses the Tenure upon which they are at issue and at the Nisi prius it is found for the Plaintiff and agreed that this was aided by the Statute of Ieofailes for this is out of the statute of 21 H. 8. and as it was at the common Law or if the Defendant avow upon the person of a stranger the stranger hath no plea but out of his fee which was mischeivous the which was aided by the statute of 11 H. 8. 19. for he thought he would have traversed the Seisin The Teste of a Venire facias was the twelfth of June returnable tres Trinitatis which was the same day that the Teste was and after Verdict it was moved to be amended and to be made according to the Roll the which was done accordingly see 7 Ed. 4. for returning of Distring as which was amended after Verdict and Crompton one of the Prothonotaries sayd that a Venire facias bare date in the vacation after the Tearm returnable in the Tearme before and it was amended according to the Roll and the principall case was the Roll was upon the entering of the issue therefore you shall cause to come here twelve good and lawfull men who neither c. within three weeks of Michaelmas and the return of the Venire facias was made accordingly Michaelmas 9. Jacobi 1611. in the Common Bench. John Weekes Plaintiff Edward Bathurst Defendant ALSO in Ejectione Firme upon the Joyning of the Issue the Defendant pleads not Guilty and it was entred and the aforesaid Lessor likewise where it should have been and the aforesaid Plaintiff likewise and it was amended See this Case afterwards here the Case was the Defendant pleads that he is not guilty as the aforesaid Weekes which was the Lessor above against him hath declared and upon this he puts himself upon the Countrey and the aforesaid Weekes likewise where it should be the aforesaid John likewise and after verdict upon solemne argument this was amended by Coke Warburton and Foster and Foster cited 11. H. 7. 2. 26. H. 6. to be directly in the point and 14. Ed. 3. Amendment 46. Ed. 3. Amendment 53. and Warburton seemed that first that is Wekes for the aforesaid Wekes c. Is not materiall and the last shall be amended insomuch that this doth not alter any matter of substance Coke seemed that this was amendable the same Tearme by the Common Law if it were before Issue see 5 Ed. 3. 7 H. 6. Which was immediately before the statute of 22 Ed. 4. but in another tearme it was not amendable by the Common Law nor the statute of 14 Ed. 3. doth not extend to that for this doth not extend to a Plea Roll 46 Ed. 3. 13. accordingly but the statute of 8 H. 6. extends to any misprision in the Plea Roll or in the Record and makes that amendable 26 H. 6. Amendment 32. 9 and 10. Eliz. Dyer 260 261. And the difference is where there there is an Issue that gives power to the Justices of Nisi prius to try that then another Misprision shall be afterwards amended and he said that it was adjudged between Sir William Read Lezure in the Exchequer that a Commission of these words and the aforesayd Plaintiff likewise shall not be amended but in the principall case here they all agreed that it shall be amended and it was amended accordingly Michaelmas 1611. 9. Jacobi in the Common Bench. Prowse against Worthinge Leonard Loves Case IN an Ejectione firme speciall Verdict the case was this Leonard Loves the Grand-Father was seised of a
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ— 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâ—ment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
executed for then it would be too late for then the Estate is transferred to another as it was in the cases put by Anderson in Corbetts Case But here all the Estate limited to him which made the forfeyture shall be determined and also he intended that the Reason that the Replication containes that the parties being in actuall possession are only to satisfie the words of the Condition And so he concluded and praied Judgement for the Plaintiff In dower the Demandant recovered Dower of tenths of Wool and Lamb and how execution shall be made was the question And the Justices intended that the Sheriffe might deliver the tenths of every 3 yard land and assign the Yard Lands in certain Bâ—t after it was conceived that this would be uncertain and unequall and for that the Sheriffe was directed to deliver the third part of all in generall and yet the first was agreed to be good but onely in respect of Inequalities as in dower of a Mill the third Toll dish and of a Villayne the third dayes work as in 23 H. 8. And it was also agreed that the Sheriffe may assign this dower without a Jury It was moved if an Attachment be granted against a Sheriffe for contempt after he is removed out of his Office and the Justices intended that not insomuch that now he is no Officer and for that he cannot be now fyned and without fyne they did not use to Imprison but the Judges would be advised to see the Presidents of the Court in such a case Mâ—chaelmas 1611. 9. Jacobi in the Common Bench. Kemp and Philip his Wife James and Blanch his Wife Plaintiffs against Lawrere and Trollop and the Wife of Gunâ—er Executrix during the minority of the Wives of the Plaintiffs THe case was An Executrix during the nonage for so it was and not Administratrix that is shee was ordained Executrix till the Wives of the Plaintiffs came to their full age or were marryed and then they should be Executrixes And this Executrix during the minority brought an action of Debt and recovered and before Execution the women Executrixes took Husbands and brought Scirefacias upon the Record to have Execution upon the Judgment against these Defendants as Ter-tenants which pleaded specially that they had nothing in the Free-hold nor in the Land but only a lease for yeares and that the free-hold was in another stranger upon which Plea the Plaintiffs demurred in Law And Nicholls Serjeant for the Plaintiffs that there is the difference betwixt this Executor and an Administrator during the minority as in 26 H. 8. 7. a. if an Administrator have Judgment and dyes before Executors or other have sued out their Letters of Administration they shall have no execution of this Judgement insomuch as he comes in paramount the first Administrator and as immediate Administrator to the first Intestate as it is agreed in Shelleys case So the Administrators of one Executor shal not have execution of a Judgment given for the Executor as it is resolved in Brudenels case 5 Coke the 9. b. And in 21 Edw. 4. It is agreed if two are made Joynt-Executors and one of them dies the other shall be sole Executor to the Testator and if hee make his Executor and dyes his Executors shall be Executors to the first Testator And also there is in Fox Gretbrooks Case in the Com that one may be Executor for certain years and another after and this differs from the other cases for in this case all these Executors were in privity one to another but in the other case one comes paramount the other But here they are all made by the first Testator and the Will And he cyted the 2 Case in the Lord Dyer and 18. and 32 Edw. 3. there cyted where a Purchasor brought a Writ of Errour and was not privy to the first Record And Grantee of a Reversion brought a Scire facias against Conusee of a Statute-Merchant alledging that he had received satisfaction So if a Parson of a Church recovers an Annuity and after the Church is appropriate to a house of Religion the Soveraign of the said house shall have a Scire facias And so if union be made of two Benefices and yet in all these cases there was no privity to the first Judgement so he in reversion shall have Errour in Attainâ— upon Judgment against his Lessee for life and the Reason is given in Brudenels Case that is they which may have prejudice may have scire facias and it is not like where two Joynt-tenants are and one makes a Lease for years and dyes the other shal have the Rent insomuch that he comes in by survivorship and not in privity But here the Executors come in in privity as in case of two Executors are joyntly one â—yes the other which survives shall have Execution of Judgement given for them for Administrator during the nonage is only to the use commodity and profit of an Executor and of a Testator so that he being Executor to the Testator he shall have execution And to the second that is that the Defendants have nothing but for yeares and that the free-hold is to a stranger he intended that this is not good yet he agreed that in scire facias where a free-hold is to be recovered speciall non-tenure is a good plea as in 8 Edw 4. 19. and 8 H. 6. 32. but not of the contrary and there also generall non-tenure is no plea But here where the free-hold is not to be recovered nor one nor the other is a Plea for it may be averred that the Defendant hath a release from him that hath the reversion and as in 14 H. 4. 5. in scire facias to accompt against an Executor who pleads that the Testator was never his Bayliffe to give an accompt and yet it is agreed that this hath been a good plea for the first Defendant and this is the reason that it was not taken nor was allowed for a good plea in the 11 H. 4. 11. Insomuch that this amounts to non-tenure and in 44. and 45. Eliz. Mich. Rot. 834. it was adjudged in Scire facias where the Defendant pleads that he was not Tenant of the Free-hold and adjudged no plea And so he said it was adjudged in the case of All-soules Colledge in Scire facias to have execution of a Judgment in Ejectione firme and the Defendant in the Scire facias pleads that he was but Lessee for years and adjudged no Plea insomuch that nothing was to be recovered but only the tearm and not the Free-hold and so he concluded and prayed Judgement for the Plaintiff in Scire facias Harris Serjeant argued to the contrary and he intended that the Return of the Sheriffe is void insomuch that the Writ commanded him to give notice to the Tenants of the Land in Fee-simple and hee did not return that those which he had returned were Tenants of the Land in Fee-simple and
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
and fees c. And further granted the Herbage and Paunage and have not found that this was granted by the same Letters Patents and then if this be not granted by the same Letters Patents then there is not any grant of this to the Earle of Rutland because there is no receitall of the Patent by which the Herbage and Paunage was granted to Markham The fourth errour was that they have erred in point of Law and to that the point is but this the King grants the Herbage and Paunage of a Park to one for life and after reciting that grant and that the Patentee is alive grants that to another and doth not say when that shall begin and it seems to them that the Argument for the Plaintiffes in the Writ of errour that this was a voyd grant and so the Judgment erronious but I have not the Report of the Arguments of the Conncellors at the Barr but only of the Judges which moved two other errours in the case not moved by the councell at the Barr and Crooke Justice rehearsed the case as before And to the first errour he conceived that this is no errour and that for two reasons First He tooke a difference betweene a thing which abates the Writ by Plea as if a man brings an Assise against another and mesne between verdict and Judgment the Plaintiff dies this matter shall abate the Writ without Plea and for that if Judgment be given upon such verdict the Judgment is erronious but in our case an entry doth not abate the Writ without pleading that and now as this case is this cannot be pleaded being between Verdict and Judgment and for that it shall not be assigned for Errour see 19 Assise 8 Where this difference is taken and agreed Secondly Admit that this entry might have abated the Writ in Facto without Plea yet there is no such entry alledged which might abate the Writ in Facto without Plea for the entry is alledged that the Earl of Rutland entred to hunt and kild a Buck and took a shoulder of that for his fee and it seems that this is no such entry that shall abate the writ for he hath now entred to another purpose to hunt the which he could not do but the entry ought to have been alledged that he entred to keep for in every entry the intent of the Entry is to be regarded and to this purpose he cited the case of Assise of Freshforce Com. 92. and 93. Where entring into the Seller hanging the Assise of that to see the Antiquity of the House there was no Entry to abate the Writ and the case of 26 Assise 42. where the Disseisee hanging the Assise comes and sets his foot upon the Land but takes no profits and adjudged that he should recover notwithstanding so in this case the intent is not shewed that is that he entred to keep possession but to hunt nor was it such entry which should abate the writ and to that which is sayd that he kild a Buck and took the shoulder of that for his fee this doth not help for if that had been a Buck which he might to have kild by vertue of his Office he ought to have shewed his warrant for otherwise a Parker cannot kill a Buck if not that it be for his fee and then he shall have the Buck and not a shoulder only also it is alledged that he took a shoulder and doth not say the best shoulder or the right shoulder and this ought to be shewed in certain And so for he first Errour he couceived that this is no cause to reverse the Judgment and to the challenge he sayd that he would speake to that at the last and for that he now spake to the errours supposed in the grant And first to Markhams Grant where the Jury found the Queen Eliz. granted to him the keeping of the Park and by the same Letters Patents grant the fees and Wages and further granted by her Letters Patents and doth not say Easdem the Herbage and Paunage it seems to him that this is very well for two reasons First insomuch that there is a copulative which is this word Et and also a Relative which is this word Vlterius and this word conjoynes the matter precedent with the subsequent and the word Vlterius hath necessary relation to the same Letters Patents and so Ex precedentibus subsequentibus the Iury hath well found the matter Secondly these words are supplied in the second Patent for there the Jury have found that the Queene hath granted that to Marham by the same Letters Patents and so for these two reasons he concluded that this is no Error to reverse the Judgement And to the Patent made to the Earle of Rutland it seemes to him also that this is very good and all that he said in effect was that in construction of the Patents of the King such exposition is to be made that if any reasonable meaning may be conceived they shall not be defeated but shall stand good And so he said in our case that it is necessarily intended that this was also to begin after the Estate of Markham determined and for that good And he said that a man ought not to make a curious and captious interpretation of the Kings Patents for Talis Interpretatio injure Reprobatur And to the challenge that seemed unto him a principall challenge and this not being allowed where it ought to be allowed this is an error as it is said 8. of Assises 23. and for this error it seemes to him that the Judgement shall be reversed and to that he said he relied much upon the book of 11 H. 4. 25. which takes a difference between Debt and Trespasse for battery for the booke saith that a man may demand his Debt without giving occasion of any malice But Battery is an evill Action and there the book is resolved that it shall be a principall challenge and so he saith in Trespasse this being with force and Armes that c. And in 8. H. 5. in a Assise the Tenant challenges the array because he had an Action of Trespasse hanging against the Sheriff And there the array was affirmed because it appeares that the Defendant had brought this Action by Covin against the Sheriff which case proves as he said that if there be not any Covin this is a principall challenge and 38 H. 6. 7. accordingly and the case 28. Assise 11. where the Defendant in Assise challenged a Juror because he had an Action of Trespasse hanging against him and was outed by award and in 21. Ed. 4. 12. it is said where there is an apparent favour or apparent displeasure there shall be principall challenge and certainly though the Law may intend that a man may lawfully demand his right and without malice yet it appeares that the nature of men is perverse and froward and few Actions are begun without apparent displeasure especially
was Error and for this cause and another exception to the Record which was not much materiall he reversed the Judgment And at another day Flemming cheife Justice rehearsed the case and this argued and to the first matter he conceived First That it is no such entry that abates the Writ Secondly Admitting that it were yet this cannot be assigned for Errour And to the first matter he took this ground That every entry which may abate a writ ought to be in the thing demanded and for that he sayd if a man brings an Assise of Rent or common and hanging this Assise he enters into the Land this is not any Entry which will abate the Writ and he sayd that the Park and the keeping of the Park are two distinct things and for that the entry into one that is the Park will not abate the Writ for the keeping of that and to that which is sayd that he took a Fee that is a shoulder of a Buck that doth not make any matter for two reasons First he hath not shewed a Warrant he had to kill the Buck. Secondly the taking of the fee is no entring into the Office but the excercising of that but admit that this were an entry or the thing it self yet he sayd every entry into the thing shall not abate the Writ and to that he sayd that if this entry of the Earl of Rutland to hunt was no such entry that shall abate the Writ for his office was not to hunt and for that his entry being to another purpose it shall not be sayd an entry to abate the Writ and for that he cited a case which hath been cited as he sayd by Justice Yelverton that if a man have Common in the Land of J. S. between the Annunciation of our Lady and Michaelmas and the Commoner brought an Assise of his Common and at Christmas put in his Beasts and this shall not be any entry to abate his Writ for it cannot be intended for the same Common which case is agreed to be good Law and he cited the case put by Brooke in Assise of Freshforce before remembred Com. 93. Where hanging a Formedon the Tenant pleads in abatement of the Writ that the Demandant hath entred after the last continuance and upon the evidence it appears that many were cutting wood upon the Land and the Demandant comes into the Land to them and warnes them upon the perill that might ensue to them that they should do no more then they could do by Law and this was found no entry Also the case of 26. Assise before cited by Justice Crooke and he sayd that the Statute of Charta de Foresta chapter 11. willeth that every Arch-Bishop Bishop Earl or Baron comming to the King by his command and passing by his Forrest c. Was licensed to take one Beast or two by the sight of the Keeper c. Put case then that the King had sent for the Earl of Rutland and he had passed through this Park and had killed a Buck had this beene an entry to abate this writ Quasi diceret non for this was entry to another purpose so he sayd in the principall case the entry to hunt and so no entry to abate the Writ but admitting that this had been an entry which would abate the writ then let us see if this entry hath so abated the writ being Mesne between the Verdict and the Judgment it cannot be assigned for errour and to that he agreed the diversity before taken by Crooke and Williams where the writ is abated by Plea and without plea and he cited a Judgment in the Kings Bench between Jackson and Parker 2 Eliz. where in Ejectione firme the Plaintiff entred Mesne between Verdict and Judgment and this was assigned for Errour in the Exchequer Chamber and the Judgment notwithstanding affirmed and he sayd that if Memorandum had been made of it or if a Jury had found it and it had been prayed that that might be Recorded yet this had not been materiall and that that be not assigned for Errour And to the matter moved by my Brother Williams that there should be a variance between the plaint and the Title he conceived that there is no such variance that shall make the Judgment errronious and to that he examined the matter First that the Assise was of a Free-hold in Clepsom and his title is made of the parke of Clipson that that cannot be otherwise intended but that of necessity it ought to be the same park For first there is but one park by all the Record Secondly the plaint saith De parco predicto which hath reference to Clepsom park and there is but one park put in view by all the record Fourthly It shall be so taken according to the common speaking Fiftly when he hath made his plaint of the custody of the park of Clepsom and of the Herbage and paunage of the park aforesaid called Clepsom these words called Clepsom are but Idle and Trifles and that which is but Surplusage shall not annoy Also he said that J. and E. are letters which do not much differ in pronunciation and they are all one as I and he shall be pronounced as hi and he cited the Book of 4 H. 6. 26. Where in Debt variance was taken between the writ and the Obligation that is Quatuordecem pro Quatuordecim and this variance was not materiall but that the writ was awarded good and so he conceived that in this case the variance of Clepsom and Clipsom shall not be such a materiall variance that shall make the Judgment erronious and to the title First to Markhams grant that is where the Jury have found Quod ulterius concessit c. And doth not say Per easdem he held that good without scruple and this for the necessary relation that this had to any thing before granted for he sayd that this should be a strange and marvelous patent which begun in such a manner that is Et ulterius Rex concedit c. And there was not any thing granted before And for that he cited the case of 11 Ed. 4. 2. where Debt was brought upon an Indenture against the Abbot of Westminster and the Indenture was between the Abbot of the Monastry of the blessed Mary of Westminster and rehearsed divers Covenants for performance of which Covenants the Abbot of Westminster bound himself in twenty pound and doth not say that the aforesayd Abbot and yet good for it shall be intended the same Abbot for he is party to the Deed and the case of 10 H. 7. 12. Where in Assise of Common the plaintiff makes his plaint of Common appurtenant to his Free-hold in D. and shews for Title that he was seised of a Messuage and of a Carve of Land in D. to which the Common is appurtenant and that he and his Ancestors and all those whose Estates c. have used Common of pasture with ten Beasts and exception
47 Edw. 3. 17 Edw. 4. and 21 H. 7. that have been remembred to the contrary is only that it is reason that the Plaintiff should have the same process which was at the Common Law and there was not any such processe as Capias in debt at the Common Law and 21 H. 7. may be understood that the Elegit was not returned and so no record of that And 50 Edw. 3. a man may recover in Debt and pray Elegit and after brings Debt upon the Record but it doth not lye And he agreed to the Book of 23 H. 6. For there the Defendant was bound in an Obligation to make satisfaction of Debt and hee dyed in Prison and this cannot be satisfaction according to the Condition And in the Case of Fitz. Nat. Brev. the same doubt of that and this was the more strong case then the case at the Barr and if he doubted of that is the cause that he doubts also And cyted Williams and Cuttis case Rot. 88. in the point where the reason of the Judgment was for that that the Plaintiff had his plain and full satisfaction and saith that it was apparent difference between that and Blunfields case for there was 2 Defendants and here if one dyes there shall be no satisfaction and so these reconciled And so if a man be taken upon a Statute Merchant and dyes in execution that shall not be satisfaction for this is speciall processe given by statutes And 14 H. 7. 1. If a man being in Execution escape he shall not be taken againe and in the 14 H. 7. in debt upon an Obligation Capias profine was awarded and the Defendant taken by that And the Plaintiff prayed that he might be in Execution for his debt also and could not for that he had sued Fierifacias and it doth not appear if the Sheriff have that executed or not And so he concluded that the Judgment should not be revived by the Scire facias against the Executors and that Judgment shall be given for the Defendants in the Scire facias Walmsley Justice accordingly He specially observed the forme of the Writ which suggests quod executio adhuc restat facienda c. And to that the Defendants in the Scire facias plead that Capiás was awarded at the suit of the Plaintiff and upon that the Defendant was taken in execution and there dyed by which it appears that the words and suggestion of the Writ was answered directly and upon that the strongly relyed and then said that there were 3 ways to have Execution that is by Fieri facias Capias and Elegit And there is a speciall order to be observed in the suing of that for a man may have Fieri ficias and if the Defendant have not goods may have Elegit or Capias But if he make his Flection to have Capias he cannot have Fieri facias nor Elegit or if he sue Elegit he cannot have a Fieri facias nor Capias In 33 H. 6. and 44 Edw. 3. which have been cyted the Plaintiff sues Elegit and after that would have sued Capias supposing that he had not accepted the Elegit but of the other part it was said that the Sheriff had made Execution of it the which he could not contradict it And if the Plaintiff had Fieri facias and goods delivered to him in Execution and the Writ returned he shall not have a second Execution and so if Elegit executed and returned 14 H. 7. 15 H. 7. and said that Executions are tickle things for if the party escape he delivers himselfe out of Execution and the Plaintiff shall not have other Execution against him for that he hath had one Execution 2 Edw. 4. And so if a man sues a Writ of Priviledg out of Parliament and by that is delivered out of Execution he shall not be taken again And so if a man be delivered upon a Writ of Error for when the Party hath made his Election to take processe against the body it was his folly that he made such Election for though that death be the act of God yet for that that statutum est omnibus semel mori and for that God hath done no wrong for he hath but performed his Eternall Decree and for that it is not the act of God only but the folly of the party to make such Election and the Book of 47 Edw. 3. by Percy is but his opinion and more other Books are against that and 〈◊〉 H. 6. Danby and Prisot are against Lacon and though that the death of the Party in Execution is no satisfaction in rei veritate yet in Law it is satisfaction for that that the party hath no other remedy the Writ in the Register is certiorari ad faciendum in omnia singula que secundum legem consuetudinem fieri c. And there is not any Law nor Custome to warrant any such Course and here is not any other proceedings upon it But if he may have a Writ of Scire facias ostensurus quare satisfactionem habere non debet then it may be that the Defendant's ought to give another answer but for that that there is not any such Writ it seems that Judgment shall be given for the Defendants Coke chief Justice seemed the contrary and he agreed with Foster and he said that it is vexata et spinosa questio for the Books vary and great arguments have been made of both parts There are three things considerable 1. Reasons 2. Authorities 3. Answers of Objections And for the Reasons First he considered in whom the default is for which the Plaintiff shall lose his Debt 2. That the Debt remains after the body is taken in Execution 3. If the body taken in Execution be satisfaction 4. If the dying in Execution be a discharge 5. The Mischiefs if so they shall be And to the Objections First Escape which is the wrong and act of the Party it is no satisfaction nor discharge and here is the act of God and election of the party 2. Execution by Elegit If Lands be extended upon that this is no satisfaction And so if he be delivered by a Writ of Error and so in this case And for the first the fault was in Jackeson for he did not keep his day in the Condition and upon this was sued then he pleaded a false plea and upon that Judgement was given against him in all which actions the default was in the Defendant and no default in the Plaintiff for he took the Body which is the visible execution not in satisfaction but to satisfie and the Defendants have not pleaded fully administred but confesse that they have Assets and there is more reason that the Plaintiff shall be satisfied then the Executors keep the goods to their own use for it is Summa Injustitia nocentem habere totum lucrum innocentem totum damnum Second reason was that it is no satisfaction for the Defendant to dye
Nota. If I command one to do a Trespass an Action will lie against him Wife not bound to perform Covenants of the Lessee Nota. No Action for small Tithes Administration granted during minority not within the Statute 21 H. 8. Nota. Ordinary cannot make a Divident of themselves Legacy of Land shall not be sued for in Court Christian Nota. For Tithes Nota. Nota. Recitall shall not inlarge the Grant Nota. Money paid by an Executor upon a usurious Contract is a Devastavit Proportiament of Rent No Attornement necessary for Acts in Law Nota. For Tithes Nota. Note how far Proof extends Nota Difference Nota. Nota. Nota. Nota. Copy-hold land extendable upon Statute of Bankrupt Being a member of the Cinque Ports will not free one from Arrest Difference of things that are in Prender and that are in Render Nota. Omission in awarding the venire of these words Quoad triand c. held good Local things shall not be made transitory A Tales prayed by the Defendant upon the Plaintiffs Distring in another Terme but denied If Chamberlain of Chester make an ill Returne the Sheriff shall be amerced No Distress in a Court Baron but by Prescription Actions upon penal Statutes not within the Statute of Jeofailes Nota. Judges not meddle with matters of fact Nota. Information against three and two appear may declare against those two Nota. Return of a Sheriff insufficient upon a Statute Merchant for omitting that he had no other Lands c. Nota. A Statute first acknowledged shall be preferred before a Judgement afterwards retained The case of Villainage within the Statute of Limitation Nota in Elegit Two Inquisitions taken at several Dayes by several Juries upon one Writ naught Nota. All Goods and Chattels bound by the Teste of the Elegit and cannot be sold afterwards Audita Quaerela and Bail put in in the Chancery and held good The Act of E. 6. for Dissolution reaches onely to such that are regular Nota. Nota. Nota. Nota. Deed of Gift for things in Action Supersedeas granted because Capias ad satisfaciendum was not returned Nota. Nota. A Juror who hath appeared cannot be passed by and to swear others Goods cannot be sold upon a Levari facias in a Court Baron without a Custome Sheriff returned but 21. upon a Venire facias and naught Nota. Judgement that it was a good Devise The property is not altered upon the Sheriffs taking of goods upon a Fieri facias but remains in the Defendant Nota. Alien born no Plea in a Writ of Error Nota. Issue cannot be bastarded after Death Nota. Where the principal is omitted cannot be supplied by Writ Nota. King could not grant precedency in publique things Nota. Ancient Demesne tried by Doomesday Book The Venire facias was Album Breve and denied to be amended Lessee at will cannot grant over his Estate Note difference between Tenant at will and sufferance Nota. One committed bailed being no cause expressed Attorneys name put out of the Roll for a mis-demeanour Nota. Nota. Nota. Writ of Entry filed after the Death of the Tenant Ordinary to place and displace in the Church Fraud shall never be intended except apparent and found Nota. High Commission nothing to do with matters of instance for Tithes Nota. Nota Master shall not be corporally punished for his Deputies Offence Nota. Nota. Nota. One at seventeen years old may be an Executor No new notice needs if the Attorney be living If no place of Payment be in a Will must be a Request Nota. Warrant of Attorney filed upon a motion after Writ of Error brought and Error assigned Nota. Warrant of Attorney filed after Writ of Error by Order of Court Attornement of an Infant is good An Attorney ought to have no Priviledge as on Attorney Husband shall pay for his Wives Clothes though bought without his privity A mans Wife or Infant cannot be examined One Bond cannot overthrow the other Exceptions to an Award pretending the Arbitrators had exceeded their Authority but adjudged good Judgement for the Defendant for insufficiency in the Count. Judgement ' for the Defendant upon a by-law The Defendant at his perill ought to make Payment If part of a Condition be to be performed within the Realm and part without ought to be triable here Defendant pleaded six Judgements in Barr and two found to be by fraud and Judgement for the Plaintiff The Sheriff cannot break open the outward Door to do Execution but that being open he may break open any other Exception taken to the Defendants Plea Nota. Debt lies for Money levied by the Sheriff upon a Levari Nota. Nota. Exception taken because the Venire facias was of the Town and not of the Parish but ruled good Creditor administred and is sued ought to plead fully administred generally Debt brought for 60. l. tr be paid at the Return of a Ship from New-found-land to Dartmouth onely 50. l. lent is not Usury Plea made good by Verdict Nota. Judgement against both of the Testators Goods and Damages of him that appeared onely Nota. Nota. If no time of Payment in an Award due upon Demand Though two appear by one Supersedeas yet they may vary in Plea The Imparlance amended after Triall upon the Attorneys Oath Nota. Bene case A Servant hired to serve beyond Sea may have his Action in England Nota. Nota. Outlary in the Executor no Pled Outlary in the Testator in Barr adiudged naught A wrong man of the same name offers to wage his Law Lessor and Lessee for years one Assignes his terme and the other grants his Reversion Grantee of the Reversion shall have Action of Debt against the Assignee Nota. Nota. Default of the Clerk amended and afterwards upon advice made as it was at first A Bill to pay Money upon Demand must lay a special Demand Amendment of Issue Roll by the Imparlance Roll. Estoppell Repleader awarded Money due upon a Mortgage payable to the Heir and not to the Executor Money to be paid fifteen Dayes after return c. he proving his being there Court divided which proof shall be precedent or subsequent Condition that an Vnder-Sheriff shall not intermeddle with Executions of such a value held void Judgement arrested because the whole matter laid was found and part was not actionable Bail discharged upon the principals rendring his Body in another Terme after a case returned Quaere An Award good in part and naught for part and Breach assigned in the good part and held good If the Plaintiff be non-suit yet no Cost upon the Statute of Perjury Nota. Amendment of the Imparlance demed after Error brought A thing out of the Submission awarded and void Nota. Defendant wage his Law upon a Recovery in a Court Baron A man cannot send his Apprentice beyond Sea except he go with him Vpon a nul tiel Record though some Variances yet the Debt and Damages agreeing Judgement for the Plaintiff Bond taken to appear in the Court of Request void Return of the Habeas
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he