dissolved Williams But that is saved by the 3â— H. 8 for Annuities are exprest in the saving Anderson But this is an Annuity or Rent with which the land is charged Beaumond If it be any thing wherewith the land is charged it is saved but the person is only charged with this Annuity Walmsley But the 21 H. 7. is that an Annuity out of a Parsonage is not a meer personall charge but chargeth the Parson only in respect of the land And the Court would consider on the case Pasch 38 Eliz. in B. R. The Case of the Dean and Chapter of Norwich THe Case was A Church in which there had been a Parson and a Vicar time out of mind and the Parson used to have the great Tythes and the Vicar the small and for the space of forty years last past it was proved that the Parson had Tythes paid him out of a feild of twenty acres of Corne and now the feild is sowed with Saffron and the Vicar sued for the Tythes of Saffron in the Court Christian and the Parson had a Prohibition Coke I conceive the Parson shall have the Tythes for by the Statute of 2 H. 6. it is enacted that Tythes shall be paid as hath been used the last forty years and this hath been alwaies tythable to the Parson and although the ground be otherwise imployed yet the Parson shall have the Tythes and so was it in Norfolk in the Case of a Park where the Parson proscribed Pro modo decimandi to be paid three shillings fours pence for all Tythes rising out of the said Park and although the Park was after converted to arable yet no other Tythes shall be paid Popham It hath been adjudged otherwise in Wroths Case of the Inner Temple in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tythes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparkt Tythes shall be paid for Tythes are not due for Venison and therefore they are not Tythes in Specie And I conceive that Tythes of Saffron-heads shall be comprehended under small Tythes and although the Tythes of this Feild have been paid to the Parson yet it being converted to another use whereof no grosse Tythes do come the Vicar shall have the tythes and so if arable land be converted into an Orchard the Wicar shall have tythe of the Apples and so if the Orchard be changed to arable the Parson shall have tythes Quod Fenner concessit 36 Eliz. Higham against Deff IN a Trespasse the Case was That a Vicaridge by composition was indowed of the third part Omnium Bladorum decimarum of the Mannor of D. If he shall have tythes of the Freeholders of the Mannor was the question Johnson He shall not have them for a Mannor consisteth of two things viz. of Demesns and Services the Freeholders are neither parcel of the Demesnes nor the Services and therefore no parcell of the Mannor and this is proved in 12 Ass 40. a Rent-charge was granted out of a Mannor the Tenancy escheats it shall not be charged with the Rent Tanfeild contra For this word Mannor does extend to the Precincts of the Mannor and not to the Demesnes and Services onely and therefore if a Venire facias be awarded De viceneto Manerii de D. the Freeholders shall be returned also a survey of a Mannor shall be as well of the Freehold lands as of the Demesnes and if the King grants a Leet within the Mannor of D. all the Freeholders are bound to appear Fenner Grants ought not to be restrained to their strict words but are to be construed according to the intent of the parties Trin. 38 Eliz. in B. R. Ewer against Henden Rot. 339. IN an Ejectment the Iury found that I.S. being seised of a Capitall Messuage in the County of Oxford and also of a house and land in Walter in the County of Hartford makes a Lease for years of his house and land in the County of Hartford and then by Will does demise his house in the County of Oxon Together with all other his Lands Meadowes Pastures with all and singular their Appurtenances in Walter in the County of Hartford to John Ewer and whether the house in Walter in the County of Hartford does passe or not was the question Tanfeild The houses shall passe for if a man builds a house upon Black acre and makes a Feoffment of the acre the house shall passe and so if a man does devise una jugata terrae of Copyhold Land the house of the Copyhold does passe also for so is the common phrase in the Country and so if a man be rated in a 100 l. subsidy that does include houses and by the grant of a Tenement the house passeth but if a man demand a house in a Precipe there the house ought to be named Whistler contra It is true that if a man generally does devise his Land the houses passe but in this case the Devisee hath particularized his Land his Meadow and his Pasture and if he intended to have passed his houses he would have mentioned them as well as his Lande Fenner I am of the same opinion for this speciall numbring of particulars does exclude the generall intendment and if the Devisor had a Wood there that would dot passe by these words Popham contra For if a man sells all his Lands in D. his houses and woods passe by this word Lands and so was it agreed in a case which was referred to Dyer and Wray chief Justice and there reason was because that a Warrant of Attorney in a Precipe of a House Woods and Land is onely of Land which proves that land does comprehend all of them and therefore I conceive if a man does devise or bargain and sell all his lands in D. the Rents there shall passe for they were issuing out of the land But if a man be seised of three houses and three acres and he deviseth all his land in D. and one of his houses the other houses will not passe for his expresse meaning is apparant but here the words are in generall as to the lands in Walter and therefore the houses do passe But afterwards it was adjudged that the house did not passe for by the particular mentioning of all his Lands Meadowes and Pastures the house is excluded Pasch 4 Eliz. Hunt against King IN a Writ of Error upon a Iudgment given in the Common Pleas in a Formedon brought there the Case was Tenant in tail enfeoffs his Son and then disseiseth his Son and levies a Fine to a stranger and before the Proclamations passe the Son enters and makes a Feoffment to a stranger the Father dies and the Son dies and the Issue brings a Formedon The question was Whether by the entry of the Son the Fine was so defeated
in purchasing the Inheritance by which the Terme is extinct shall bar the possibility which Reynald the Son hath to come upon the womans marriage 3. That a Lessee for years being in possession may take a Feoffment although it be by Deed and may take Livery after the delivery of the Deed and shall be deemed to be in by force of the Feoffment as in this case is pleaded although that the Lessee may take the Deed by way of confirmation and then the Livery is but Surplusage and void 4. It was resolved that this possibility which was in Reynald the Son to have the residue of the terme upon the inter-marriage which at the time of the Feoffment and of the Fine was but Dormant shall be accounted a former charge and before the Covenant because of the will which was before the Covenant and shall awake and have relation before the marriage As if Tenant in tail of a Rent purchaseth the Land out of which the Rent issueth and makes a Feoffment and covenants that the Land at that time is discharged of all former charges although this charge is not in esse but is in suspence as it is said 3 H. 7.12 yet if the Tenant in tail dye his Issue may distrain for this Rent and then is the Covenant broke for now it shall be accounted a former charge before the Feoffment Mich. 29 and 30 Eliz. in Com. Ban. Bretts Case Debt on â— Bond. BRett brought an action of Debt on a Bond against Averden and the Condition of the Bond was to stand to the Arbitrement of J.S. who did award that the Defendant should pay ten pounds to Brett and no time was limited to pay it The Defendant confest the Arbitrement but pleaded in Bar that the Plaintiff hath not required him to pay the money And the Plaintiff hereupon demurred Adjudged by the Court that it is no good plea for the Defendant at his perill ought to pay the money and the Plaintiff need not make any request wherfore Iudgment was given for the Plaintiff Trin. 29 Eliz. in Com. Ban. Bucknells Case Action for Robbery on the Statute of Winchestster BUcknell was robbed in a Hundred within the County of Bucks and thereupon brought his Action upon the Statute of Winchester because the Theeves were not taken And Not guilty being pleaded by the Inhabitants the Iury gave this speciall Verdict viz. That he was robbed the same day alleadged in the Declaration but in another place and within another Parish then that he hath alledged in the Declaration but that both the Parishes were within the said Hundred Vpon which they prayed the Iudgment of the Court whether the Inhabitants were guilty Adjudged by the Court for the Plaintiff for it is not materiall in what Parish he was robbed so it were within the same Hundred Hil. 30 Eliz. in Com. Banc. Rot. 904. Spittles Case Replevin SPittle brought a Replevin against Davis the Case was this Turk being seised of Land in Fee did devise parcell thereof to his youngest Son Proviso and it is his intent that if any of his Sons or any of their Issues shall alien or demise any of the said Lands devised before they shall attain the age of thirty years that then the other shall have the Estate and does not limit any Estate And then the eldest Son made a Lease before his age of thirty years and the youngest Son enters and afterwards and before the age of thirty years he aliens the Land he entred into by reason of the limitation the elder Brother re-enters and demised to Spittle the Plaintiff for three years who put a Horse into the ground and Davis by the commandment of the younger brother entred and took the Horse Damage-feasant and Spittle brought a Replevin And upon the whose matter there was a Remainder It was resolved 1. That this is a limitation and that the Estate shall be to such use as by the Will is directed untill there be an Alienation and upon Alienation the Land shall go to the other Brother 2. When the youngest Brother hath once entred for the Alienation then is the Land discharged of all Limitations for otherwise the Land shall go and come to one and the other upon every Alienation ad infinitum wherefore all the Iudges agreed that after the one Brother hath entred by reason of the limitation the Land is then for ever discharged of the Limitation made by the Will And Iudgment was given accordingly Michaells Case Debt on a Bond THomas Michaell brought an Action of Debt on a Bond against Stockworth and Andrews the Iury gave this speciall Verdict That the said Stockworth and Andrews did seale a Bond and delivered it to the Plaintiff as their Deed and after Issue joyned and before the Nisi prius the Seale of Andrews was taken from the Bond. Shuttleworth The Plaintiff shall be barred for it is one entire Deed and the Seale of one is wanting And admit in case it goes against us the Iudgment be reversed by Writ of Error the Plaintiff can have no Action on such Bond But it was adjudged to be a good Bond and Iudgment for the Plaintiff See the like case in Dyer Trin. 36 H. 8.59 A. Hillari 33 Eliz. in Com. Ban. Rot. 1315. Richmonds Case Debt for rent RIchmond brought an Action of Debt against Butcher the case was A man makes a Lease for years reserving Rent to him and his Executors and Assignes and during the terme the Lessor dies and his Heire who hath the Reversion brings an Action of Debt And it was urged that the Rent was incident to the Reversion and the Heire having the Reversion shall have the Rent also as incident to it as the case is in the 27 H. 8.16 If H. makes a Lease for years rendring Rent without saying any more words the Heire shall have this part because it shall go along with the Reversion So in the fifth of Edw. 4.4 If two Ioynt-tenants make a Lease for years rendring Rent to one of them yet the other shall have the Rent also although no mention were made of him so in the 7 H. 4.223 By the Court If I make a Feoffment in Fee rendring a Rent to me my Heires may distraine And if I grant over this Rent my Assignees in this case may distraine and avow so in this case an Action will lye for the Heire although he be not mentioned But adjudged to the contrary by the Court for when H. passeth Lands from himself the Law gives him liverty to passe them in such way and manner as he himself will and this liberty ought to take effect according to the expresse words for the Law will not extend the words further for the intent shall appeare by the words and then it cannot be here intended that his will was that his Heire shall have the Rent because the words are not sufficient to give it to his Heirs And therefore note a diversity when
that the Plaintiff could not have the Error but the Daughters who were the Heirs to Henry for an Action alwaies discends according to the right of land and it seems that the Heir in Burrow English shall have Error or Attaint and not the Heir at the Common Law which was agreed by all on both sides but it was said that this varies much from the present case for two reasons One because he came in as Vouchee which is to recover a Fee-simple and he shall render a Fee-simple in value which is discendable to the Heirs at the Common Law Secondly he hath no Estate-tail Bromley Solicitor and Plowden contra and laid this ground that in all cases where a recovery is had against one by erroneous processe or false verdict he which is grieved shall have redresse of it although he be not party or privy to the first Iudgment and therefore at the Common Law if a Recovery be had against Tenant for life he in the Reversion shall have Error of Attaint after his death and now by the Statute of R 2. in his life so in a Precipe if the Tenant vouches and the Vouchee looseth by default the Tenant shall have Error for the Iudgment was against him and he looseth his term and in the 44 Ed 4.6 in a Trespasse of Battery against two one pleads and it is found against him and the plea of the other not determined damages by the principall Verdict is given against them both which if they be excessive the other shall have an Attaint And Bromley said there could not be a case put but where he that hath the losse by the recovery should have also the remedy and Baker cited 9. H. 7.24.6 that if a Recovery be had against a man that hath land on the part of the Mother and he dies without issue the Heir of the part of the Father shall have the Error But Bromley and Plowden denied this case and that 3 H 4.9 it was adjudged to the contrary And Wray said to Baker that he ought not much to rely on that case for it was not Law and said that if Tenant for life makes a Feoffment and a Recovery is had against the Feoffee the first Lessor shall not avoid this Bromley there is no use for he may enter by forfeiture but in our case of whatsoever estate it be at the time of the recovery the right of the Estate-tail is bound and therefore it is reason that the Heir in tail shall avoid it Jeffrey of the same opinion and cited 17. Ass A Conusor makes a Feoffment and then execution is sued against the Feoffee by erroneous processe the Feoffee shall have the Writ of Error although he be not party to the first Record but the reason is because of his interest in the land And Bromley and Plowden said further that notwithstanding the Feoffee recovers against the Vouchee and the Vouchee recover over the land yet this recovery shall go to the Estate-tail And Iudgment was given for the Plaintiff Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry and after an Execution is sued against him at the suit of a common person and he is taken by force thereof and after he takes a Habeas Corpus out of the Kings Bench and Coke prayed that he might be discharged of this execution for where a man is attaint of Felony he hath neither Goods nor Lands and his body is at the Kings disposall and so is not subject to the execution of a common person 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary For although he be attaint of Felony yet may he be in execution for his own offence shall not aid him and so was it in Crofs case in the Common Pleas where a man being attaint of Felony was taken in execution at the suit of a common person and he escaped out of Prison and an escape was brought against the Sheriffs of London and a Recovery against him And at last by advise of the Court because he was indebted to many persons and to discharge himself from his Creditors intended to have a pardon for his life and so deceive them therefore he was committed to the Marshalsey upon this execution Trin. 42 Eliz. Malloy against Jennings Rot. 1037. IN a Replevin the Case was A man seised of land in fee is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff and then the Recognizance is forfeit and the Conuzee sues out a Scire facias against the Conuzor before the Deed was inrolled and had Iudgment to have Execution And the question was if the Bargainor was a sufficient Tenant against whom the Execution was sued Williams Serjeant The Bargainor was Tenant at the time of the Scire facias before inrolement and although it was inrolled after shall have relation to the first livery to prevent any grant or charge And if an Action be brought against an Executor as in his own wrong and the Suit depending he takes Letters of Administration this shall not abate the Writ So in our case the Bargainor was seised of the land when the Scrie facias was brought and if a man makes a Lease for life rendring Rent and then the Lessor bargains and sells the Reversion and before the Inrolement the Rent is behind and the Bargainer demands the Rent which was not paid and then the Deed is inrolled yet he cannot enter for the forfeiture which I have seen adjudged in the 28 H. 8. Dyer Disseisee of one acre makes a Release to the Disseisor of all his lands and delivers it as an Escroll to be delivered to the Disseisor and then he disseiseth him of another acre and then the Deed is delivered to the Disseisor yet the right in the second acre shall not passe And he much rolled on Sir Richard Brochets case 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seised the first day of May and it hapned that one Corbet had sold him land by Indenture the 24. day of April but the Deed was not inrolled untill the 24. day of May after And the question was if the Conuzor was bound to convey these lands or not and adjudged that he was not for inasmuch as the Deed was not inrolled the ffrst day of May he was not seised and great mischief would ensue if the Law should be otherwise for no man will know against whom to bring his Action for a Bargain and Sale before Inrolement may be done secretly Herne Serjeant The Bargainee is seised before Inrolement and by the Statute of 5 Eliz. which wills that none shall convert land used to tillage unlesse he puts other land to tillage within six months yet none will say that it is a breach of the Statute although Pasture be presently converted to tillage and he cited Chilburns cafe 6 Eliz. Dyer 229. that proves that
Statute sayes that the lands devised shall be devised into three parts and that is to be understood of such an estate as may be divided but so cannot a Seigniory For put the case that the Lord held by a Hauke the whole Mannor shall descend and cannot be divided and so de catalla Fellonum Fenner contra For it seems to me that the seignory passeth and so it shall be if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne he shall say infra feodum suum and in reputation amongst men a seigniory is a Mannor for if a man makes a feoffment of a Mannor with livery where he hath no Mannor yet shall it passe 7 E. 3. Where a Mannor passeth by the name of Knights Fee And as to the intirenes of the seigniory it is easily answered for although the rent were entire yet it may be severed for a Rent Charge is entire yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed Walmesley For the Plaintiff the Question is if the Rent passeth by the name of a Mannor to the Devisees If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughters daughter yet this is good because in common speaking she is so called but here the words are not apt nor used in common speaking viz. That Rent should be taken for a Mannor and therefore it is voyd as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference that where the words have any affinity or likelihood to the Mannor then it will passe by the name of a Mannor As if a man deviseth his house and land by the name of a Mannor it shall passe But here being but a service it is otherwise Gawdy cont For if it the Rent passe not nothing shall passe which is a hard construction on a Will For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church And in Brett and Rigdens Casea man devised a Mannor in which he had nothing and after purchased the Mannor the devise is good And in 26 H. 6. feoffment 12. Land will not passe by deed by the name of a house but land will passe by the name of a Carue and a Carue by the name of a Mannor and I hold that the Rent in this case will passe by the name of the Mannor for a Mannor does consist of Demesnes services and rent may be called a Mannor aswell as a Carue and and the King gives it by the name of a Mannor to the Devisor and that is the reason that the Devisor calls it a Mannor And if you grant to me an Advowson by the name of the Church and Rectory and I devise the Rectory the Advowson and the Church will passe by the name of Rectory And in Plouden 194. A man did let his house and great demesnes rendring Rent and did devise to another all his Farme there the Devisee shall have all the Rent and the Reversion also Michaelm 29. 30. Bishop of Lincolnes Case Rot. 1528. 2200. IN a quare impedit brought by the King against the Bishop of Lincoln and Leigh the Incumbent The Case was The Bishop had an Advowson in gross and presented J.S. who took a second Benefice with cure whereby the first became void and continued so untill Lapse fallen to the Queen and after the title of Lapse fallen to the Queen the Bishop presented one J. who was inducted and by reason of Recusancy to pay Tythes was deprived and by the Statute 26 H. 8. the Church became void ipso facto whereupon the Bishop presented one Leigh within six months and now the Queen would present Fenner This Case is the same with Bosherulls lately adjudged But the Court said that here was a privation for Recusancy and therefore it would make a difference And afterwards Pasch 30 Eliz. Walmesley For the Queen said That if a Lapse be fallen to the Ordinary if the Patron doth present before the Bishop hath Collated he ought to receive his Clerk but where it is divolved to the King the Patron by no means can defeate the King but he may remove his Clerke at his pleasure but if such Incumbent be present after such Lapse and die then the title of the King is gone and his time passed by the act of God but in our Case the avoydance which does oust the King from his Lapse is avoidance by reason of Recusancy to pay Tithes which is the proper act of the Incumbent as is a resignation and no such avoydance being by the act of the party himself shall oust the King of his Presentation for in the 2 H. 9. In annuitie against an Abbot who resigns the Writ shall not abate for then the Plaintiff shall never have a good Writ So in our case if the King be outed of his Lapse by such devises he shall never have a Lapse for every one will usurp upon the Kings Lapse and will presently resign or misdemesn himself whereby to avoid the Lapse And in the 18 Ed. 4. the 19. By Pigot A writ brought against a Prior shall not abate although the Prior be not deposed for it is his own fault Fenner This Lapse is given the King by his prerogative but on this Condition that he take it in due time for so is the nature of things lapsed for if after a title accrued to the King he suffer usurpation and the Incumbent die his Lapse is lost for the nature of the Lapse is such that it must be taken at its time and where the title of the King is limited to a time there he shall not have his prerogative for a prerogative cannot alter estates As if the King grant a seigniory in gross rendring Rent and the Tenant to the Lord dies without heir whereby the tenant escheates the seigniory is extinct and the Rent of the King is gone aswell as it is in the case of a Common person And so if the King have a Rent feck for life out of my land if I die he cannot distreine in my land for the arrerages as he may in my life time And so where the Statute gives Annum diem vastum to the King yet he shall not have it after the death of the Tenant for life so if the King reserve a Rent upon a Lease to an Estranger and the stranger enters in respect of the land whereby his entire rent is suspended now the condition as to the King also is suspended during that time for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir and after this Rent comes to the King and the Grantee dies the Rent shall cease during the minority of his heir so that by all these cases the
Estoppell otherwise if it were by Deed. Vid. 1 H. 7.12 Mich. 32 33 Eliz. Marshes Case in B. R. Rot. 1011. MArsh and his wife brought a Writ of Errour as Executors to Nicholson to reverse an Outlawry upon an Indictment of Felony pronounc'd against the Testator Altham of Grayes-Inne The sole point was whether the Executors may have a Writ of Errour and I hold that they may for if there be no heir it is great reason that the Executors should have it for otherwise the erroneous judgement cannot be at all reverst and every one shall have a Writ of Errour that is damaged by the erroneous judgement and Executors have right to the personal estate to have Errour For if a man recovers damages in a Writ of Cosenage and the land also and dyes his heir shall have Execution for the land and the Executors Execution for the damages by the 19 Ed. 4.5 43 Eâ— 3. 13 Ed. 4.2 If a man does recover my villain by a false Verdict the heir shall have an attaint for the villany and the Executors for the damages and a Writ of Errour shall be given to him to whom the right of the thing lost doth descend as it was adjudged in the Case of Sir Arthur Henningham and he cited two presidents in the point 1 Tâ—…ity 11 H. 8. Rot. 3. where an Administrator brought a Writ of Errour to reverse a Iudgement given in an exigent Vid. 2 Rep. 41. a. Cook contr In Natura Brevium 21 M. he sayes an Executor shall have a Writ of Errour upon a Iudgement given in Debt against the Testator and the heir shall have Error to reverse Outlawry in Felony and to restore him in his blood and he said that it was part of the punishment in Felony to have the blood corrupted sic filius portat iniquitatem patris and by reason of the attainder he cannot inherit any Ancestor wherefore he having the damage it is reason that he should reverse it And although Executors shall have a Writ of Errour for Chattels personal yet they shall not have one when they are mixt with things real 5 H. 7.15.18 Ed. 4. If Writings be in a Box the heir shall have the Box because real things are more regarded than personal Nevertheless in this Case the Writ of Errour is in a real Action for the Law sayes that it is in the same nature as in original action whereupon it is brought as if Errour be brought to reverse a Iudgement given in a personal action the Writ of Errour is personal and so in like manner is it real if the first action be real 47 Ed. 3.35 35 H. 6.19 23. and although the first action be mixt yet the Law does rather respect the reality 30 H. 6. Barr. 59. where two brought an assize and one did release and there it was said that although this were a mixt action yet it shall be according to the most worthy and that is the reality and 16 Assi 14. divers Disseisors being barr'd in an assize did bring a Writ of attaint for the damages and summons and severance was suffered for damages were joyned with the reality and Stanford 184. If a man be indicted before a Coroner quod fugam fecit if he after reverse the Indictment yet he shall have his goods for de minimis non curat Lex But note that the Iustices said that the fugam fecit was the cause of forfeiture of the goods and not the Felony And as to the presidents he agreed to the Case of the 18 H. 7. for an Executor shall have a Writ of Errour to reverse Iudgement given in an exigent for there nothing but the goods are forfeit 30 H. 6. Forfeiture 31. and for the president in 11 H. 8. it cannot be proved that the Outlawry was for Felony Vid. Rep. fol. 3. 33 Eliz. Lilly against Taylor in B. R. Rot. 467. MArsh seized of the land in question did devise this to Rose Lilly for life and if she fortun'd to marry and after her decease should have any heirs of her body lawfully begotten then that heir should have the land and the heirs of the body of such heir and for default of such issue the land shall revert to Philip Marsh his son and his heirs and the question was if the husband of Rose shall be Tenant by the curtesy or not and so if Rose had estate Tail or for life onely Godfrey She hath estate but for life and he cited a Case adjudged in Benlowes Reports 40 Eliz. where lands are devised to A for life and after his decease to the male children of his body and it was adjudged that the male children have an estate Tail by purchase and nothing by descent and so A had nothing but for life Gawdy agreed for she hath but for life and when she dyes her issue shall have it Popham agreed if the words were that if she had issue that he should have it But Clench held that she had an estate in Tail executed and that her husband shall be Tenant by the curtesy Fenner The issue is as a Purchaser for the Devisor intended that Rose should not have a greater estate than for life And also it was agreed by all the Iustices that a Devise to a man and his heir shall be accounted a Foe-simple for that the word heir is collective and so is the 29 Assi where land was given to a man and to the heir of his body uno haeredi ejusdem haeredis this is an estate Tail Popham He shall be Tenant by the curtesy and he agreed that heir of the body was a good name of purchase but if a Frank-tenement be limited to his Ancestor and by the same Deed it is also limited to his heir the heir shall be in by descent But Fenner on the contrary Pasch 38 Eliz. Bolton against Bolton Rot. 882. 582. TEnant for life being impleaded doth pray in aid of him in the Reversion who joyn and lose c. and the Tenant for life brings a Writ of Errour and the Record is removed and he in the remainder brings a Writ of Errour also De Recordo quod coram vobis residet and the question was upon which Writ of Errour the Iudgement should be reverst and it was objected that if it should be reverst by the Tenant for life that he in the remainder should be restored But Gawdy Fenner and Clench contr Who held that it should be reverst at his suit who first brings the Writ as in case of Interpleader it shall be alwayes upon the first Writ And notwithstanding the removing of the Record by the Tenant for life at the next term the Court said it was at their discretion to reverse this at suit of anâ— of the parties as they pleased and because they observed some indirect practices by him in the remainder it was reverst at suit of Tenant for life Pasch 5 Jacob. Sir Henry Dimmocks Case in the
Court of Wards TEnant of the King by Knights service bargains and sells his land to Sir Henry Dimmock and his heirs and Sir Henry Dimmock dyes his heir within age and then the Deed is inrolled the question was if the King should have premier seisin Trist The King shall not because Sir Henry did not dye within his homage but the land was in the Bargainor as if there be a Bargainee of the reversion and the Tenant makes waste the Bargainee shall not have waste unless the Deed be introlled before the waste committed 3 Jacobi Bellingham against Alsop Bargainee before inrolment sells the land over and it was adjudged that the second bargain was voyd 10 Eliz. Mockets case Disseisee releaseth to the Bargainee of the Disseisor before inrolment and adjudged voyd 5 Eliz. in Pophams Case it was said that the Statute of inrolments had altered the Common Law for now by the delivery of the Deed no use is raised untill it be inrolled But all the Iustices held that the heir should be in Ward and pray premier seisin if he were of full age for the Statute sayes that no use shall be unless the Deed be inrolled but if it be inrolled it passeth ab initio and then the Bargainee shall be Tenant ab initio But it was also agreed by all the Iustices that the wife of Sir Henry shall not be indowed and that Rent paid to the Bargainor at the Rent-day incurr'd after the bargain is good and the Bargainee hath no remedy because it is a thing executed Trinit 12 Jacobi Cuddington against VVilkin in C. B. Rot. 924. IN an Action of the Case for calling the Plaintiff Thief the Defendant justified because the Plaintiff had stollen Sheep 37 Eliz. the Plaintiff replyed protestando that he had not stollen Sheep and pleaded the General Pardon 7 Jacobi upon which the Defendant demurred and adjudged for the Plaintiff for the Pardon had so purged and abolished the Offence that now he was no Thief 1 Ed. 3. Corone 15. 2 Ed. 3. Corone 81. 1 Assi 3. So if one call another Villain after he is infranchised And in one Baxters Case in Banco Regis it was adjudged that where a man was accused for Perjury and acquitted by Trial if he be afterwards called perjur'd he shall have his Action on the Case And Iudgement was given for the Plaintiff Seaman against Cuppledick IN a Trespass of Assault and Battery the Defendant justified in defence of his servant scil that the Plaintiff had assaulted his servant and would have beaten him c. and the Plaintiff demurr'd Yelverton The bar is good for the master may defend his servant or otherwise he may lose his service 19 H. 6.60 a. Crook Iustice The Lord may justifie in defence of his villain for he is his inheritance Williams contr The master cannot justifie but the servant may Justifie in defence of his master for he owes duty to his master 9 Ed. 4.48 Yelverton The master may maintain a plea personal for his servant 21 H. 7. and shall have an Action for beating his servant and also a man may justifie in defence of his cattle Cook A man may use force in defence of his goods if another will take them and so if a man will strike your cattle you may justifie in defence of them and so a man may defend his son or servant but he cannot break the peace for them but if another does assault the servant the Master may defend him and strike the other if he will not let him alone Williams It hath been adiudged in Banhams Case that a man cannot justifie a batterie in Defence of his soil a fortiori he cannot in defence of his servant vid. 19 H. 6.31 9 Ed. 4.48 Trinit 12. Jacob. Drury against VValler IN an action on the Case upon a trover and conversion of 200 l. delivered by the Plaintiff to the Defendant and upon not guilty pleaded the Question was if denyall by the Defendant to pay it upon request would beare this action And the case of Isaac was urged who brought an action of Trover c. for 200 l. in a bag and by verdict it was found that demand was made thereof and a deniall to pay it And by Dodderidge it was a Conversion Crooke accorded but Haughton doubted the case And Man Prothonotarie said that he remembred a president in the Case where it was resolved that in such case deniall of a horse was a conversion Haughton I remember an action of Trover was brought for a Trunk and it was ruled there that if one hath Timber in my land and he demands liberty to carry it off my Land and I deny it this is not a sufficient conversion Dodridge there is great difference in the Cases for a Horse or money cannot be known if they be used but Timber may Et adjournatur Michaelm 8 Jacobi Alfo and Dennis against Henning in B. R. Rot. 969. IN an action of Covenant the Case was thus Thomas Tavener by Indenture primo Jacobi did demise land to one Salisburie for 7. years and by the same Indenture Salisburie did Covenant grant condescend and agree with Taverner his heirs and assignes that he his Executors and Administrators should pay to Taverner his heirs and assigne 75 l. per annum And after Taverner demised the same land to Mary Taverner for life and he demised the reversion for 40. years to the Plaintiff if he so long lived and the tenant attorned and for rent due at the Feast of St Michaell he brought his action of Covenant And the first question was if this were a sum in gross because the Lessee covenanted to pay this as a Rent And resolved by Cook Chief Iustice and the Court that this is a good reservation of Rent for it is by Indenture and their intention was to have it as a Rent and the words of the Indenture shall be accounted to be his who may most properly speak them 26 H. 8.2 10 Eliz. 275. 22 H. 6.58 28 H. 8.6 And the Case between Whitchett and Fox in Replevin this terme where a man made a Lease for 99. years rendring rent and the Lessee covenanted by the same deed with the Lessor that he would not alien without his assent upon paine of forfeiture and after he aliened and the Lessor entred And it was held by the Court that this was a condition although the Plaintiff did covenant for being by Indenture they shall be the words of both and the words sub paena â—orisfacturae are the words of the Lessor The second point was if the assignee for 40 years may have a Covenant and it was held he might for it is for payment of rent and if the Lessee covenants to do any thing upon the land as to build or repaire a house there a covenant will lie for the assignee by the common Law but if it do not by the Common Law yet it is cleere that it will lie by the Statue of
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 joynt-Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas
but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his â—isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further infâ—rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessioneÌ„ Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchangâ— and iâ— the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander bâ—ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents
Customes or Services and this is neither Rent Custome or Service for that of common right the Estrey belongs to the King and no common person may have it unlesse by grant or by prescription and the Statute is to be taken strickly for the Avowant for Damage-feasant or for Rent Charge should not recover Damage by this Statute before the Statute of 21 H. 8.19 where the Plaintiff hath remedy as it is holden in Dyer 141. B. But because divers Presidents were shewn out of the Common Pleas from time to time since the making that Statute that damages shall be recovered by the Avowant who avowes for Amercements c. it was said that it would be very difficult to controll so many Presidents Gawdy no great credit is to be given to such Presidents as passe sub silentio without any exception taken to them Another Error was assigned because the Iudgment was to have return averiorum predictorum whereas there was but one Guelding wherefore Iudgment was reversed and the Roll markt Trin. 36 Eliz. in B. R. Fulgeambs Case Trespass against the Constables of Cambridge FUlgeambe brought an Action of Trespasse against the Constables of Cambridge the Case was The Plaintiffs horses estrayed into Cambridgeshire and were thereupon Impounded in Cambridge and then one A. came with a Commission from the Lord Hunsdon Captaine of Barwick to take Horses to ride to Barwick and the Constables delivered to him the Plaintiffs Horses and then one of the Horses died And the opinion of all the Iustices was that the Action did well lye for the Constables cannot take Horses out of the Pound to deliver them to any by vertue of such a Commission Trin. 36 Eliz. in B. R. Tauntons Case Lease on condition COles made a Lease to Taunton for ninety nine years on condition â—hat if he demised it in other manner then in such manner as he let the same to him that then it should be lawfull for him to re-enter the Lessee devises it by his Will to his youngest Son Resolved that Rigore Juris this is a breach of the Condition for a Devise is an Alienation as is holden 31 H. 8 Dyer 6. and although Conditions shall be taken strickly yet not directly against the intent of the parties and the reasonable disposition of the words and therefore a Devise shall be intended to be within this word Demise yet it was said that it was very hard according to equity that the Estate should be lost For he intended by this Will to prefer one of his youngest Children and not to break the Condition and thought not it was any breach of the condition and for this cause some doubt was made of the Case but Hil. 38 Eliz. Iudgment was given as aforesaid Pasch 36 Eliz. in B. R. Rot. 41. Leighs Case Ejectment THe Queen being seised of lands as Dutchesse of Lancaster did make a Lease thereof to the Plaintiff the Lessee is outed by A. the Plaintiff makes a Lease to B. for years and B. being outed brought an Ejectione firmae 1. It was resolved that the Queen as Dutchesse of Lancaster cannot be disseised for although she be not seised in jure Coronae yet is it in Seisin of the Queen and cannot be taken away from her in respect of her person 2. Gawdy and Fenner held that the Lessee being outed the terme is turned into a Right and therefore it hath been adjudged that an Ejectment will lye as the case is in Dyer 29 H. 8. It Tenant in taile the reversion in the King suffers a Recovery although this shall not be to the prejudice of the Kings Reversion yet shall it bar the Estate-tail So if a Parson makes a Lease for years and the Patron and Ordinary confirme it and the Parson dies and during the Vacation the Lessee is outed he is hereby outed of his terme yet is not the Frank-tenement touched Clench on the contrary That he who is outed hath an Estate but at sufferance for he cannot have an Estate for years without a Lease and it is agreed he shall not have an Estate of Freehold by reason of the Reversion in the Queen and the possession of the Lessor shall maintain the possession of the Lessee as well as the possession of the Lessee shall keep the Freehold of the Lessor and if he have but an Estate at sufferance then cannot the Lease to B. he good For if Tenant at sufferance of a common person makes a Lease for years this is a Disseisin And Popham was of opinion with Gawdy and Fenner wherefore Iudgment was given for the Plaintiff I have seen a Report 24 Eliz. in the Kings Bench upon a Demurrer between Edmund Frough and Henry Dixe where the better opinion was That if one enters on the terme of the Queen he shall not thereby gaine any possession but notwithstanding the Termor may grant over his Terme but it was agreed that he shall have an Ejectione firmae for by Plawden an Assise will lye of a Mill where the water is divers for the possession of the Mill continues in him But the Justices doubted whether it was an Ejectment wherefore the parties did compound In the 4. H. 6. Intrusion If Lessee for life the Remainder in the King be outed he shall have an Assise Trin. 36 Eliz. in C. B. Rot. 134. Thurstons Case Ejectment GOffe brought an Ejectment against Thurston the Case was this The Abbot of Kingswold in Wiltshire being seised of Land in the 28th yeare of H. 8. did with consent of the Covent make a Lease for years by Deed indented and then the Abby came into the hands of H. 8. and from him to Edw. 6 and from him to the present Queen And it was pleaded that the Defendant hath the Lease and that Henry Thinne did intrude on the Defendant and made a Lease to the Plaintiff who being ejected by the Defendant brought this Action and on this matter the parties demurred 1. It was said that the Plaintiff cannot bring this Action inasmuch as Henry Thinne by his entry on Lessee for years the Reversion being in the Queen cannot gaine any possession so that nothing passeth by his Lease to the Plaintiff But the Court was against this for he is a sufficient Lessee to maintain an Action of Ejectment And it was adjudged in the Exchequer Chamber that the Queens Lessee for years being outed may have an Ejectione firmae which proves that he is put out of possession of his terme and this very point was in a manner agreed the last terme in the case of Norris Fenner If H. enters on the possession of the Queen and makes a Lease for years nothing doth passe and the Lessee cannot maintain an Ejectione firmae for he gains no possession at all but it is on the contrary heâ—e when he enters on the Queens Lessee Gawdy That is no difference for the Lessee for years of an Intrudor shall maintain at Ejectione firmae And I have seen
5 H. 7.9 And afterwards vide Mich. 37 38 Eliz. It was adjudged that this was good enough in an Ejectione firmae for there the damages are the principall but otherwise in a Precipe for there ought to be a certainty but in an Assise of Novel Disseisin it is good enough but afterwards Mich. 38 39 Eliz. the case was debated in the Exchequer Chamber by Writ of Error and the Iudgment was reversed Hil. 36 Eliz. in B. R. Rot. 34. Walters Case LOve brought an Action of Debt against Wotton who pleaded the Statute of Vsury in Bar and by reason of Mispleader it was awarded by the Court that the parties should plead De novo and this Award was entred in this manner viz. Et quia placitum illud in modo forma placitat est sufficiens in lege the Court awarded that the parties should replead and hereupon they pleaded and Iudgment for the Plaintiff and the Defendant brought a Writ of Error in the Exchequer Chamber which was certified accordingly And there Gawdy moved that the Record in this point might be amended and to have the Record certified de novo into the Exchequer Chamber for that the first Award is repugnant in it self for it is awarded that they shall replead because the Plea est sufficiens whereas it ought to be that they shall replead because est minus sufficiens as the paper books are and the opinion of the Court was that it could not be amended because that the fault is in the Iudgement it self which is the act of the Court and therefore cannot be amended Glanvill It is no Error in the Iudgment for the Iudgment is only that they shall replead but the Error is in the Iudgment to the Iudgment and may be well amended and of the same opinion was Popham Mich. 36 and 37 Eliz. in B. R. Rot. 579. Bartwrights Case BArtwright brought an Action of Debt upon a Bond against Harris the Condition was that if the Defendant did acquit discharge and save harmlesse the Plaintiff against an Obligation in which he and the Defendant were bound to I.S. in 601 l. that then the Obligation should be void The Defendant said that Bartwright was sued on this Obligation by I. S. and upon default I.S. had Iudgment to recover and that the Defendant before execution did deliver to the Plaintiff the 601 l. and hereupon the Plaintiff demurred Humbert It is no plea for he confesseth that the Plaintiff was not yet taken in execution yet inasmuch as he may be taken therefore his body goods and lands are liable to the execution and he hath not acquitted nor saved him harmlesse against the Bond of I.S. vide Dyer 186. And the Plaintiff had Iudgment c. Mich. 36 and 37 Eliz. in B. R. Rot. 25. Greyes Case GRey brought an action of Trespasse against Bartholmew the Case was A man did purchase divers Fishes viz. Carpes Tenches Trouts c. and put them into his Pond for store and then died The question was whether the Heire or the Executors should have the Fish Popham The Heire shall have the Deer in the Park and by the same reason the Fish Clench If the Fish be stolne it is Felony so that it appears there is a property in them vide 18 Ed. 4. 10 Ed. 4.14 22 Ass 98. that stealing of Tench out of a Pool is Felony by which it seems they are but Chattels Popham the Book is so and so is the Law but that is of stealing Fish out of a Trunk or some narrow place where they are put to be taken at will and pleasure but otherwise it is where they are put into a Pond Fenner He which hath the water shall have the Fish And Popham ex assensu curiae gave Iudgment for the Heire And in the principall case the Executors did take the Fish with Nets and the Heire brought a Trespasse and adjudged maintainable See what Chattels Executors shall have and what not in 21 H. 7.26 10 H. 7.6 30. an account will lye for Fish in a Fish-pond so in the 5 R. 2. Waste 97. an Action of waste did lye against Guardian in Chivalry for taking Fish out of a Pool by the Statute of Magna Charta but quaere if it lies against a Termor or Guardian in Soâ—age upon an Account for Fish 36 Eliz. in B. R. Rot. 767. Leighs Case LEigh brought an Ejectione firmae for a Chamber against Shaw the Case was A Lease was made of the Rectory of Chingford in Essex and of the Glebe excepting the Parsonage house saving and allowing to the Lessee a Chamber over the Parlor next the Church It was adjudged that the Lease of the Chamber was good for as well as a man by his exception may except part of a thing so as it shall be intended that it was never let or granted so in this case when he saies except the Parsonage house saving and allowing to the Lessee a Chamber this saving makes the Chamber as it were excepted out of it as if it had been leased so a saving out of a saving is as much as there had been no saving at all and then this Chamber not being excepted out of the Lease shall passe clearly by the Lease of the Rectory And Iudgment was given for the Plaintiff 37 Eliz. in B. R. Rot. 242. Wrights Case WRight brought a Writ of Error against the Mayor and Comminalty of Wickombe to reverse a Fine levied by his Ancestor of twenty acres of Land the Defendants in abatement of the Writ of Error did plead that the Plaintiff after the death of his Ancestor did disseise the Defendants of the Land and made a Feoffment to a stranger Iudgment c. The Plaintiff replied that they did re-enter upon him without that that he did enfeoff a stranger modo forma The Iury found that there was a Fine of twenty acres and that the Plaintiff being Disseisor of all made a Feoffment of six of the acres to a stranger Et si supra totam materiam c. And it was objected that the Record was intire and the Error is a Chose in Action and not a Chose in Droit and therefore cannot be divided but if it were a Chose in Droit it is otherwise as if a Disseisee of twenty acres releaseth all his right in five acres this doth extinguish all his right in the five acres so upon a Feoffment of parcell yet the right remaineth as to the remnant But of a Chose in Action which is meerly entire no apportionment can be as in the 31 Eliz. in the Kings Bench between Charnock and Wrothesley the case was Husband and Wife levied a Fine of the Wives Land and after because the Wife was within age they sued a Writ of Error to reverse the Fine The question was If this should be reversed as to the Wise onely or against the Husband according to the opinion of Belknap in the 50 Ed. 3. And after long debate it was resolved
that it should be against both for it is intire and cannot be affirmed in part and disaffirmed in another part And the Lord Norris case is very agreeable to this where Tenant for life did levy an erroneous Fine and then was attaint by Parliament and all the right which he had to any Land was given to the Queen and it was adjudged that there is no title of Error nor was it given to the Queen by this word Right and then if it be so the Title of Error is not of any right in the land but onely to the Suit and if it be a Suit it is a Suit intire for he cannot have severall Suits as is agreed in Sir Richard Knightleys case A man had judgment to recover 150 l. and did release 20 l. of it and after sued execution and the other brought an Audita querela upon the Releases and defeated all the execution But it is otherwise where such apportionment of such Suit is done by act in Law as in 7 Ed. 4. fol. ultimo The Sheriff levied parcell of the debt by Fieri facias yet shall he have an Action of Debt for the Residue upon the Record But in this case it is the act of the party himself that destroies his Suit for part of the Land for which it shall destroy the other suit for the Error is intire as to all the land and cannot be divided as in the 38 Ed. 3. and 12 H 6. if a false Verdict be found and the party greived does make a Feoffment of parcell he shall not have an attaint for any part So in the 19 H. 6. and the 39 Ass If he who hath cause to bring a Writ of Error or Attaint does take a Lease for years of parcell he doth suspend his Action and if he takes in fee it is quite gone But it was resolved by the Court that the Feoffment does not destroy the Title of the Writ of Dower for more then so much as a Feoffment was made of and thereupon they first took a difference between suspension and extinguishment of an Action for peradventure if he suspend his Action as to any part for any time this is a suspension unto all but extinguishment of part is a Bar to that part onely and Gawdy cited the case in 9 H. 6. where Iudgment was reverst for part only and it is not unusuall to have a Fine reversed for part as if a fine be levied of lands in ancient Demesne 47 Ed. 3.9 a. there by Parsley If there be Error in Law as to one parcell and Error in Fact as to another parcell the Iudgment as touching the matter of Law may be reversed Fenner He who hath Title to reverse a Fine or recovery by Writ of Error hath right in the Land and if he release all his right in the land the Error is extinct and the reason of the Lord Norris Case was not that the Title to the Error was an Action in privity annexed to the party to the Record and his Heires and cannot be transferred over to another no more then a Writ of partition between Coparceners or a Nuper obiit Popham He who hath Title to have the Writ of Error hath no Title to the Land although that thereby he be to be restored to the Lande for if the Land discend to one who hath Title to have the Writ of Error without doubt it shall not be accounted a remitter But as to the matter now in question he said that if two men bring a Writ of Error in the Realty and the Tenant plead the release of one this is a good Bar against both because the Error in the Record is released But if one who hath Title to a Writ of Error does make a Release of all his Right in one acre this is a Bar but for so much inasmuch as the Release is a Bar but as to the Restitution of the Land onely and no Release of Errors in the Record for by the Reversall of a Fine or Recovery the party may annihilate the Record and have Restitution of that which the Record before took from him and therefore it shall bar the Plaintiff And the opinion of all the Court was that the Fine should be reversed for that part of the Land onely whereof no Feoffment was made but for some defects in the Writ of Error Iudgment was stayed Mich. 37 and 38 Eliz. in B. R. Barnards Case SMith brought an Action of Debt upon a Bond against Barnard the Defendant pleaded that the Plaintiff was outlawed and a day was given him to bring in the Record at which day he made default Daniel moved that the Iudgment for the Plaintiff in this case should be that the Defendant should answer for that the plea of Outlawry was but a dilatory Plea and no Plea in Bar as appears 21 Ed. 4 15. but this difference was taken by the Court. In an Action of Debt upon a Bond Vtlary of the Plaintiff is a Plea in Bar and the reason is because all the Debts in specialties are forfeited to the Queen by reason of the Outlawry and because the Queen is to have them it is a good Plea in Bar But in a Trespasse or Debt upon a Contract the Outlawry is but to the abatement of the Writ and the Queen shall not have Debts upon simple Contracts but after the Outlawry pardoned the Plaintiff may have an Action for them again And because he failed to bring the Record at his day appointed the Plaintiff recovered vide Dyer 6 Eliz. 227 228. Hil. 32 Eliz. in C. B. Lord Dacres Case GRegory Lord Dacres was summoned to answer Richard Gawton in a Plea of Debt for 26 l. 14 s. and did declare that the Defendant did retain the Plaintiff to be his Bayliff of his Mannor of Moreford c. and to receive the Defendants money for a certain time and to do other businesses for the Defendant and to render an account and afterwards before one Launcelot Love the Auditor assigned by the Defendant the Plaintiff did account Super quo computo praefatus Richardus pro diversis costagiis expensis quae idem Richardus circa prosecutionem executionem negotiorum praefati Gregorii in surplusagiis in praedict 26 l. 14. s. erga ipsum Gregorium ultra omnes denariorum summas per ipsum Richardum ad ipsum dicti Gregorii recept permansisset And thereupon he brought his Action and the Defendant pleaded Nil debet and it was found for the Plaintiff and yet he had not Iudgment First because the Declaration was insufficient because the Plaintiff was not in Surplusage to the Defendant but the Defendant to the Plaintiff and so are all the Presidents directly and he ought to alledge he was in Service and that he had received Goods whereof no mention is made Secondly Because neither day nor place is alledged where the Auditor was assigned Pasch 33 Eliz. in C. B. Rot. 409. Owseleys Case ROger Owsely brought a
opinion he relied upon the intention of the Donors which ought to be observed For if the Habendum does crosse the Premisses it shall be void but a Remainder is good for the benefit of a stranger but a Rent cannot be reserved upon such a Gift during the foure degrees but after the Reversion is good if he do attorne to the Gâ—…ntee of the Reveâ—sion Windham Frank-marriage is not an Estate in taile for there wants the word Heires Coke lib. 1.103 So a Gift to a man semini suo 10 Ass 26. and after Meade â—greeâ— with Windham although the grounds of Frank-marriage were not observed yet that it was good for although there be no Tenure between the Donor and Donee yet is it a good Frank-marriage Dyer It is no good Frank-marriage because the usuall words are not observed and if the word Liberum be omitted it is not Frank-marriage neither is it good given to a man but it must be to a woman for a man cannot give land to a woman Causa matrimonii praelocuti And in this case the party ought to be of the blood of the Donor who by possibility may be inheritable to him and there ought to be a Tenure between them and an acquittall and if any faile it is no Frank-marriage and he said further that if it once takes effect as Frank-marriage and then the Donor grants the Reversion or the Reversion discends to the Donees yet it shall not be destroyed but shall remaine as an Estate in taile and not for life because it once took effect in the Donees and their issues and if land be given to a man in Frank-marriage the remainder in taile yet this shall not destroy the Frank-marriage and the Donee shall hold of the Donor and not of him in the remainder And if one give land in Frank-marriage the remainders to the Donees in taile yet is this a good Frank-marriage and if the Donor grants over his Services yet doth the Frank-marriage continue although the Donees attorn for they are incident to the Reversion and therefore the Grant is void but if the Reversion be granted the Services will passe and he concluded that the Husband had all and the Wife nothing because no Estate to her is mentioned in the Premisses and he could not construe the words to be the intent of the Donor for here is an expresse limitation of the fee to the Husband and his Heirs which cannot be controlled by intendment And after 25 Eliz. It was adjudged to be no Frank-marriage nor gift in taile but a Fee-simple And the Iustices said that the ancient Books were that where it took not effect as a Frank-marriage it should be in especiall taile yet those at this time are not Law But they agreed that this at one time took effect as Frank-marriage and by matter ex post facto may be made an Estate in taile Mich. 30 Eliz. Gibbs Case GIbbs brought an Action of Trover against Basil for a Gelding the Case was One Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and it was entred so in the Toll Book that Lister sold him The question was if this alteration of his name shall make any alteration of the property although the sale was in open Market Windham and Rhodes Iustices held this no good sale to bar the Plaintiff and grounded their opinion on the Statute of the 2 and 3 Phil. and Mar. cap. 7. which provides that no property of stollen Goods shall be altered that are sold unlesse the name and surname of the parties to the sale be written in the Toll-book And Shuttleworth moved that it should be in the Market and walked there for an houre together which is not set forth by the Defendant in his Bar but the Iustices said that such speciall plea need not to be but shall be intended Rouses Case IT was moved in this Case that if Tenant for terme Dauter vie does continue and hold in his Estate after the death of Cestuy que vie If he be a Disseisor and whether in pleading the plea ought to be seised and not possest Shuttleworth He was legally in at first and therefore cannot be a Disseisor 15 Ed. 4.41 A Freehold could not be gained where he came in by the agreement of the party and 12 Ass 22. Where the Husband and Wife were seised of a Freehold and after were divorced by Suit on the womans part whereby the woman is to have all the land yet if the Husband continue possession and dies seised this discent shall not take away entry because he was no Disseisor Gawdy He is Tenant at sufferance and no Disseisor and there it was moved that if Tenant at sufferance or a Disseisor makes Copies of Copyhold Lands if they be good or voidable And note that Wilde took here a diversity between a Termor that holds over and a Tenant at sufferance for in case of a Tenant at sufferance there is no Freehold taken from the Lessor which the continuance of possession doth not take from him but where the Tenant holds over his terme there the Freehold is disturbed and therefore there is a disseisin But at that present it seemed to the Iudges that there was no diversity But the next terme Godfrey moved that if Tenant for anothers life held over his Estate he had Feesimple and he granted that it was otherwise in some cases for if he claim to be Tenant at the Will of the Lessor he shall not gaine a Fee-simple For Littleton in his Chapter of Releases 108. saith that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold and such Occupyer claimeth nothing but at Will But in this case the Tenant claimes otherwise then at Will of the Lessor he does not claim any thing but at the Will of the Lessor as in the case of Littleton but claimes to hold over against the Will of the Lessor which is no Tenant at sufferance and 10 Ed. 4. If a man makes a Lease at Will and the Lessor dies and he continues possession and claims fee the Heire shall have a Mortdancester and 18 Ed. 4.25 If Cestuy que use dies and the Tenant continues in and the Tenant is impleaded the Lessor shall not be received and the reason is because there is no reversion in him but the Tenant hath it and 22 Ed. 4.38 by Hussey Iustice If a Termor holds over his Terme there an Estate in fee is confest to be in him by matter of Law but it is a deubt whether he be a Disseisor or not but it seemeth not for a Trespasse doth not lye against him before Regresse and in the 7 H. 4.43 If a Guardian holds the possession at the full age of the Heir or Tenant for years after his terme expired the Estate shall be judged in Fee And in our case he hath
to pay the Rent to me because the receit is no wrong But it is otherwise in the first case for when the Tithes are set forth they are presently in the possession of the Parson so that when the Defendant takes them he is a wrong Seisor of them and therefore no account will lye against him And so was it adjudged in a case of a Mannor in London where one under colour of a Devise did occupy the Land for twenty years which Will afterwards was made void and thereupon he to whom the right of the land belonged brought an account and it was adjudged that it would not lye Harper An Account will lye against a Procter so that the Plaintiff may charge him as Procter and it is no plea for him to say he is no Procter no more then it is for a Guardian in Socage to say he is not Prochein amy Dyer there are three Actions of Account One against a Baily another against a Receiver the third against a Guardian in Socage And if an Account be brought against a man as Receiver he must be charged with the receipt of the money but if the Defendant pretends he is Owner of it it is contrary to the nature of an account and therefore he is not chargable in such Action but he may plead Ne unque son Baily pur account render for in an Account as my Brother Manhood said there must be privity But an Abator or an Intruder shall not be charged in an Account because they pretend to be Owners But in this case the Lessee may have an Action of Trespasse against him for the Tythes were immediatly upon the setting forth in the possession of the Lessee and by the Statute of the 31 H. 8.7 he may have an Ejectione firmae but an account will not lye in this case Mich. 14 Eliz. TEnant in Dower commits Waste and the Waste was assigned in this Case that the Lessee had destroyed a hundred Does of the Plaintiffs whether this was Waste or no was the question Dyer I think it no Waste unlesse she had destroyed all the Deer Manwood If a Lessee of a Pigeon house destroy all the old Pigeons except one or two yet it is a Waste and so is this although all be not destroyed Mich. 15 Eliz. A Man is indebted by Obligation in a hundred pounds to a Testator this Obligation is not Assets in the hands of the Executors untill it be recovered by them because it is but a Chose in Action but if in such case the Executor release the Debt now he hath determined the Action and hath made it Assets in his hands to the whole value of the Bond. Bliss against Stafford MArgaret Bliss who was in Remainder after an Estate in taile did bring an Action on the case against Edward Strafford for standring her Title in affirming that A. had issue one B. who is alive and the Defendant pleaded not guilty and the Action adjudged good by all But did abate for an exception to the Count. Pasch 13 Eliz. UPon the Statute of Recusancy made the 29. of Elizabeth Thomas Salherd and Henry Evered being committed of Recusancy for not paying twenty pounds for every month a Commission was awarded to enquire of their Goods and Lands in Suffolk to levy the said Debt and amongst other Lands certain Copyhold Lands were seised and being returned the parties came in and by way of plea did set forth that some of their Lands seised were Copyhold and did pray Quod manus Dominae Reginae amoveantur and hereupon the Queens Attorney demurred upon which the question was if Copyhold Lands were within the said Statute of the 29 Eliz. Snagge The Lands and Hereditaments which the Statute speaks of are such as are known by the Common Law and not by Custome for it I grant all my Lands Hereditaments in D. my Copyhold lands will not passe so that it seems to me Copyholds are not within the Statute Popham contra If Copyhold Lands are not within the Statute some persons shall be free and he held that Lands in ancient Demesne were within the meaning of the Statute although not within the words and he agreed that where a Grant is made of all my Lands and Tenements in D. that Copyhold Lands passe not because they cannot passe by such assurance and that Copyhold Lands were not within the Statute of Bankrupts if they be not particularly expressed and a Copyhold cannot passe by grant but by surrender But after great debate it was adjudged that Copyhold Lands are not within the Statuto by reason of the prejudice that may come thereby to the Lord who hath not committed any Offence and therefore shall not loose his Customes and Services Trin. 30 Eliz. IN the Case of Viscount Bindon it was holden that if a man hath Iudgment in Debt upon an Obligation and no execution yet he may commence another Action upon the same Obligation but otherwise of Contract 9 Ed. 4.51 A question was moved that if a man grants Vesturam terrae what doth passe and it was said by Clerk that one man may have the Vesture another the Soil Lord chief Baron he who hath Vesturā terrae cannot dig the Land And if many have a Meadow together viz. to be divided amongst them every year by lots how much every one shall have of grasse in such a place and how many in such a place and so to change every year according to the lots they have not a Freehold but onely vesturam terrae Dyer 285.6.14 H. 7.4 6. 21 H. 7.37 Dyer 375.6 13 H. 6.13 14 H. 8.6 In the Case of a Dean and Chapter the question was that if Lessee for years be rendring Rent with clause of re-entry for non-payment and then the Reversion or Rent be extended by a Statute or seised into the hands of the King for debt if the Lessee shall pay the Rent according to the extent and no breach of the Condition although he pay not the Lessor And the chief Baron held it was no breach of the Condition because he is now compellable to pay it according to the extent Caltons Case IT was moved by Serjeant Fenner and agreed by all the Barons that if the King make a Lease to A. rendring Rent and there the Lessee lets parcell hereof rendring Rent in this case the second Lessee shall not have the priviledge of the Exchequer to fly thither to be sued concerning this Land because that by such means all the causes in England may be brought into the Exchequer and hereupon Fenner said that he had demurred upon a Bill exhibited into the Exchequer Chamber by such a Lessee and prayed the Court that he might not answer and he was thereupon dismist Vpon not guilty pleaded the parties joyned issue and after evidence given and the Iury dismist from the Bar some of them had Apples and Figgs whereof the Court taking notice when they came to give their Verdict did examine them upon their
Oathes and they who had eaten were fined five pounds and committed to the Fleet. And some of the Iustices did doubt if the Verdict were good and upon many Presidents had it was adjudged good and they relyed much on the President of the 12 H. 8. Rot. 102. where one of the Iury did eat before they were agreed and yet the Verdict was good And after a Writ of Error was brought and the Iudgment affirmed 20 H. 7.3 13 H 4.13 Pasch 27 Eliz. A Man gives land to I.S. in the Premisses Habendum to him and three others for their lives Et eorum diutius viventium successive The question was what Estate I.S. had and whether there be any occupancy in the case Coke hâ—ld that I.S. had but an Estate for his own life because he cannot have an Estate for his own and anothers life where the interest of both begin at one instant and the Habendum by no means can make a Remainder as if a Lease be made to one for life habendum to him and his first begotten Son this makes no remainder to the Son although some have held to the contrary so of a Lease to one for years habendum to him and another does not make any remainder to the other also the word Successive will not make a remainder as in the 30 H 8. Br. Joynt-tenant 53. Also one cannot have an Estate for life and for anothers life also in present interest for the greater doth drowne the lesse but if the greater be present and the other future as a Lease to him for life the remainder to him for anothers life or a Lease for life and three years over this is good but if a Lease be made for life and for years the Lease for years is drowned 19 Ed. 3. Surrender 8. where Tenant for life of a Mannor did surrender to him in the Reversion c. Gawdy If a Lease be made to one for life and so long as another shall live quaere what Estate he hath And as to the second point certainly there cannot be an Occupancy for if the Estate be void the Limitation is void also the Occupancy is pleaded Que un tiel and does not say Claymant comme occupant c. for if a man comes a hawking on Land he is not an Occupant and the Book of Entries is that he ought to plead it Clinch Iustice every Occupant ought to be in possession at the time of the death of the Tenant for otherwise the Law casts the Interest upon him in the Reversion But Gawdy and Chute denied this and after viz. 29 Eliz. the Case was moved again by Popham and he made three points 1. If the other three had a joynt Estate 2. If they had a Remainder 3. If there be an Occupancy And he was of opinion that they had nothing by the habendum for they were not named in the Premisses they cannot have a Remainder for the incertainty but if those three had been named in the Premisses habendum to them Successive as they had been named there they had a Remainder for there the certainty appeared 30 H. 8.8 Dyer 361. Also there can be no Occupancy during the lives of the other three but he agreed to the Book of the 18 Ed. 3.34 that a Lease for life the Remainder to him for anothers life was good And that if a Lease be made to I.S. and a Monk it is void to the Monk and the other hath all and that during the life of the Monk there can be no Occupancy And if I make a Lease to I. S. for the life of a Monk it is a good Lease And till the same terme Iudgment was given that they could take nothing in possession joyntly nor by way of Remainder and that no Occupancy could be in the Case and that I.S. had Estate for terme of his owne life onely Stile against Miles STile Parson did suggest that the Land was parcell of the Glebe of the Parsonage and that the said Stile did let the said Glebe being foure and twenty acres to Miles for years rendring thirteen shillings foure pence Rent and in a Prohibition the case was if Tythes were to be paid And Wray said that although it was parcell of the Glebe yet when it was leased out Tythes ought to be paid and if no Rent be reserved Tythes ought to be paid without question but there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tythes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Iustices took no regard of those words But Godfrey said that those words would discharge him but Wray on the contrary for that this Tythe is not issuing out of the Land but is a thing collaterall and if a Parson do release to his Parishioners all demands in the Land yet Tythes are not thereby released for such generall words will not extend to such a speciall matter And in the 15 of R. 2. Avowry 99. one held of another by ten shillings for all Services Suits and Demands yet the Tenant shall pay Relief because it is incident to the Rent and 8 Ed. 3.26 Mich. 29 Eliz. Rot. 2574. or 2375. Stephens against Layton IN an Ejectione firmae upon issue joyned the case in a speciall Verdict was that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife primogenito habend to them diutius eorum viventi successive for terme of their lives and then the Husband and Wife had issue a Daughter The question was if the Daughter had any Estate And three Iustices held that she had no Estate because she was not in being at the time of the Lease made and a person that is not in esse cannot take any thing by Livery for Livery ought to carry a present Estate where the Estate is not limited by way of Remainder 18 Ed. 3.3 17 Ed. 3.29 30. adjudged but it was said at the Bar that if the Estate had been conveyed by way of use it is otherwise And the said Iustices held clearly that the word Successive would not alter the case And the case was further found that William Beale and Sampson Beale did covenant with one Lendall that if Tho. Beale Son of Sampson Beale should marry Margaret the Daughter of the said Lendall if she would assent and also that the said Lendall did covenant that the said Margaret should marry the said Thomas if he would assent Pro quo quidem Maritagio sic tum postea habendo the said William Beale covenanted that he would make or cause to be made an Estate to the said Thomas and Margaret and to the Heirs of their bodies for the Ioynture of the said Margaret and it was further found that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Sampson Beale and William Beale
Rot. 610. Bond against Richardson In Debt the Defendant pleaded payment at the day and gave in evidence payment at another day before the day of payment and so was it found by the Iury in a speciall Verdict And Anderson said We are all agreed that Iudgment shall be given against the Plaintiff for payment before the day is payment at the day and Iudgment was given that the Plaintiff should be barred Willis against Whitewood A Man was seised of lands in Socage and made a Lease for years by Paroll and died his wife was Guardian in Socage to his Son and the Lessee accepted of a new Lease by Deed of the Guardian in Socage and then the Guardian died and a new Guardian entred and outed the Lessee and if the second Guardian could do this was the question Anderson It cannot be a surrender for a Guardian hath no Estate that may be surrendred but it is an extinguishment of the Lease and if a Woman Guardian in Socage takes Husbandâ— and dies the Husband shall not be Guardian in Socage Almeskey against Johnson JOhnson had a second deliverance returned which was returned Averia eloigniata c. whereupon he prayed a Withernam of the Cattle of the Plaintiff and it was granted and then came the Plaintiff and satisfied the Defendant his damages and charges and praid a Writ of Restitution to have his Cattle again taken in Withernam Fleetwood Cattle taken in Withernam are not repleiditable how then can you have your Cattle and then we shall not be paid for the meat And the Court held that the Cattle were not repleivisable but for satisfaction of damages he shall have restitution of the Cattle and so is the course which was confirmed by the Clarks And Walmesley cited 16 H. 6. Repleviâ—… to warrant this And as to the meat he had the use of the Cattle whereby it was reason he should sustain them And a Writ of Restitution was granied Mich. 31 and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood it was said that the Order called the Cistrenses Order hav a priviledge that they should pay no Tythes for the lands that Proprils manibus excolunt but if they let it to Farmers then they were to pay Tythes and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tythes was the question And it was said that the Queen and her Farmers also should hold the land discharged of Tythes as well as the particular persons of the Order should for the King cannot be a Husband and therfore his Farmers shall hold the land discharged so long as the King hath the Freehold in him although he make a Lease thereof for years at will but to if the King sell the land to another or the reversion to another then the Farmers shall pay Tythes Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumont that a Debt which is not naturally a Debt in it self but a Debt onely by circumstance may be assigned to the Queen As where a man is bound in a Bond to save another harmlesse and failes thereof the Obligation may be assigned to the Queen But in such case a present extent shall not be awarded but the Processe shall be onely a Scire facias against the party to see if he hath any thing to plead against it which note well And where a man recovers damages in an Action on the case parcell of the damages cannot be assigned to the King before execution for he must bring a Scire facias upon such Record And Manwood chief Baron held clearly that a moyely hereof could not be assigned over 22 H. 6.47 One was indicted of Treason at S. Edmundsbury Coram Justiciariis ad diversas felonias c. audiendas and after the Indictment made mention of Bury and did not say praedict and by the opinion of the Iustices the Iudgment was quasht Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert for saying that the Plaintiff was a Suitor to a Widow in Southwark and that he consened her of her money in procuring false witnesses to consen her And a Verdict found for the Plaintiff And in Arrest of Iudgment it was said that in the case of Kerby it was adjudged that Cousener will not beare Action and so was it adjudged in this case Mosse against Reade THe Defendant called him Theef and thou forgest a Deed and a Verdict was found for the Plaintiff and in Arrest of Iudgment it was said that Theef generally without saying of what nature specially will not bear Action But Wray chief Iustice denied that and said that it had of late been adjudged to the contrary and Gawdy against him But as to the words that he had forged a Deed adjudged that the Action will lye although it be not specially alledged what manner of Deed was forged Pasch 32 Eliz. COllings informed upon the Statute of buying of Tythes against Robert Davyes and Stock And it was said by Periam that although the words of the Statute be Pro termino diversorum annorum yet if a Lease be made but for one year yet is it within the penalty of the Statute Mich. 31 and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury and others and declared upon a Grant of the next avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance and upon this there was a Demur And the whole Court for the Demur for that such Letter was a mockery for the Grant was not good without Deed and Iudgment was given accordingly In Tymbermans Case it was said that if a Sheriff took one in Execution by force of a Capias although he return not the Writ yet an Action of Debt will lye against him upon an escape and Periam said it had been so adjudged Katherine Gilham brought an Ejectment as Administratrix to her Husband Quare determino eject bona catalla sua ibidem inventa cepit c. and a Verdict for the Plaintiff and it was alledged in Arrest of Iudgment that this word Sua shall not be intended her own Goods and not the Testators And the Court was of opinion that Sua shall be intended in such manner as Administrator and no otherwise And therefore Iudgment was affirmed Mich. 31 and 32 Eliz. Baldwin against Mortin USe to the Husband and Wife habendum to the Husband for thirty years the Wife shall take nothing thereby and this case was argued at the Bar and Bench and was called the Earl of Cumberlands case Fleetwood moved that an Action was brought against the Husband and his Wife and dit declare a trover of the Goods of the Plaintiff by the Wife which she converted to her own use and prayed
maneriis de Badmanshall and the question was If the Vitar by this Indowment shall have the third part of the Tythes growing upon the â—and of the Freeholders within the Mannor or not And it was said by the Court that a Mannor cannot be without Freeholders and inasmuch as they are to be charged with the payment of Tythes one and the other together shall be said to be the Tythes of the Mannor and so it was adjudged that the Vicar should have Tythes of the third part of the land of the Freeholders as well of the Demesnes and Copyholders Trin. 37 Eliz. Rot. 438. Willoughby against Gray A Venire facias did beare Teste out of the Terme and also there was no place mentioned in the Writ here the Visne should be impaunelled and after the Writ said Coram Justiciariis and did not say apud Westmonasterium and a tryall was had hereupon and Iudgment given which was prayed might be reversed for these causes But it seemed to the Court that notwithstanding all that was alledged it was good enough for although the Venirefacias was not good yet if the Distringas had a certain return and place therein And the Iury appeared and gave their Verdict so that a Verdict was had the Statute will aide the other defects as in the case adjudged between Marsh and Bulford where the Venire bore Teste out of the Term. But Fenner said that the Teste was in the Term but on the Sabboth day which was not Dies Juridicus Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem against Hopton Flam and Williams Hopton pleaded not guilty Flam pleaded that he was mis-named and demanded Iudgment c. Et quoad feloniam mahemium not guiltâ— de hoc ponit se super patriam praedict Kinton similiter And Williams pleaded no such man in rerum natura as Flam and demanded Iudgment of the Writ and as to the Mayhem and Felony not guilty Et de hoc ponit se super patriam c. And as to the other two pleas to the Writ Kinton demurred prayed that the Writ might be awarded him and a Venire facias to try the issue For Tanfeild urged that by pleading over to the felony he waved the plea to the Writ for there was a diversity between an appeal of Murther and of Mayhem for in Murther as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal yet of necessity he must plead over to the Murther because it is in favorem vitae or else if he will joyne in Demurrer upon the plea to the Writ he doth confesse thereupon the Felony and therefore he must plead over not guilty But in Mayhem it is otherwise for although the Declaration was for Felony yet is a Mayhem but a Trespasse onely and all are pruâ—cipalls and the life of the Defendant is not questioned but he shall onely render damages and therefore it he plead over to the Felony that is a waver of the plea and so a Venire faciaâ— ought to issue out to try if he be culpable or not and of this opinion were Popham Fenner and Gawdy clearly and agreed to the diversity between the appeal of Mayhem and Murther Mich. 38 and 39 Eliz. King against Braine A Man sells Sheep and warrants that the yare sound and that they shall be sound for the space of a year upon which Warrant an Action of the Case was brought and it was moved that the Action did not lye because the Warranty is impossible to be performed by the party because it is onely the act of God to make them sound for a year But Clench and Fenner on the contrary for it is not impossible no more then if I warrant that such a Ship shall return safe to Bruges and it is the usuall course between Merchants to warrant the safe return of their Ships Mich. 38 and 39 Eliz. Wentworth and Savell against Russell IN a Writ of Parco fracto the Plaintiffs declared that they were Tenants pro indiviso of a Mannor in Yorkshire and that the Defendant held of them certain lands as of their Mannor rendring Rent which Rent was behind and for which they distrained and impounded the Distresse and the Defendant broke the Pound and rescued the distresse and thereupon they brought this Action and the Defendant demurred on the Declaration because the Plaintiffs did not shew how they were Tenants pro indiviso or Tenants in Common or Coparceners But the Court ruled the Declaration to be good And Gawdy said that a Tenant in Common alone without his companion may have an Action De parco fracto And Iudgment was given for the Plaintiff Hil. 39 Eliz. POphamsaid that in Lancashire there is a Parish called Standish within which are many Townes and one of the Townes is called Standish And if a man seised of lands in the Town of Standish and also of land in the other Townes do let all his land in Standish onely his land within the Town of Standish doth passe and not all his land within the Parish of Standish in the other Townes For where a man speaks of Standish or of Dale it shal be intended to be a Town and not a Parish unlesse there be expresse mention of the Parish of Standish or of Dale Gawdy and Fenner on the contrary for the Grant of every man shall be taken strongest against himself and therefore all the land as well within the Parish of Standish as within the Town of Standish shall passe And Fenner said that when Dale is mentioned in any Precipe it shall be intended the Town of Dale because Towns are noted at the Common Law and not Parishes for Parishes were ordained by the Councell of Lyons but notwithstanding in Grants there shall be no such intendment but the intendment shall be according to the common usage and understanding of the Country and Country-men in favour of the Grantee and when a man speake of Standish or any such place it shall as well be intended to be a Parish as a Town Hil. 29 Eliz. Clarentius against Dethick CLarentius brought an Action of the Case against Dethick by the name of Dethick alias Garter The Defendant demanded Iudgment of the Writ for the Queen by her Letters Patents had created him King at Armes Et quod nuncuparetur Garter principalis Rex armorum and that he should sue and be sued by such name and because he was not sued according to his creation he demanded Iudgment c. Tanfeild prayed that the Writ might abate for this case had been here in the Court in question before where Dethick was indided by the name of Dithick onely and because he was not named according to his creation he pleaded that matter and the Indictment was quashed Gawdy I remember the case very well and it was adjudged at my first coming to this Court and in truth the Iudgment passed against my opinion which then and still is
that it was enacted by the Major of London and common Councel that if any Citizen takes the Son of an Alien to be his Apprentice that the Covenants and Obligations shall be void and he shewed that he was the Son of an Alien and became an Apprentice to the Plaintiff who is a Citizen and made the Covenants with him for his Apprentiship And demanded Iudgment And it was held no Bar for notwithstanding the Act the Covenant is good for it is the Act of the Defendant although the Act of the Common Councell be against it but the said Act may inflict punishment on any Citizen that breakes it And Iudgment was given for the Plaintiff Trin. 41 Eliz. in B. R. Knotts against Everstead LEssee for life the remainder for life the remainder in taile he in the reversion who had the fee does enter and enfooffs the Lessee for years and adjudged that by this Feoffment Nihil operatur Popham said that he who hath a term cannot license another that hath nothing in the land to make a Feoffment for he who hath the Freehold wants nothing but possession to make a good Livery but in this case he who makes the Livery had not the Freehold and therefore the license is void But Tanfeild said that if Lessee for life gives leave to a stranger to make Livery it is void but if he consent that the stranger shall make a Feoffment it shall amount to a Disseisin and the Feoffment is good Which was denied by the Court. And Clench said if a Lessee for ten years makes a Lease for one year to him in reversion there he in the reversion who hath the land for a year may make a Feoffment to the Lessee for ten years and it is good Trin. 41 Eliz. Moyle against Mayle MOyle brought an Action of Waste against Mayle and declared that he had leased to him a Mannor and a Warren and that he had destroyed a Cony-borough and subverted it and assigned otherwastes in cutting down certain Thornes Williams The Action of waste will well lye and said that a Warren consisted or two things of a place of Game and of liberty and to prove that a waste did lye for a liberty he cited the Statute of Magna Charta Cap. 5. in which a Warren is intended also the Statute of Marlebridge cap. 24. and the Statute Articuli super Chartas cap. 18. by which Statutes it is evident that a waste does lie for Warrens and a Warren is more then a liberty for a Writ lies Quare warrenam suam intravit and by the 12 H. 8. if Lessee of a Warren does break the Pale it is a waste also if Lessee of a Pigeon-house stop the holes so that the Pigeons cannot build a waste doth lye as it hath been adjudged Also if Lessee of a Hop yard ploweth it up and sowes Graine there it is waste as it hath been adjudged Also the breaking a Weare is waste and so of the Banks of a Fish-pond so that the water and fish run out To all which cases the Court agreed except to the principal For the Court held it was not waste to destroy Cony-boroughs for wast will not lye for Conies because a man hath not inheritance in them and a man can have no property in them but only possession and although by a speciall Law Keepers are to preserve the land they keep in the same plight they found it yet thiâ— does not bind every Lessee of land Walmsley The subversion of Cony-boroughs is not waste and it was usuall to have a waste against those who made holes in land but not against those who stop them up because therby the land is made better And it was said that to dig for stones was a waste unlesse in an ancient Quarry although the Lessee fill it up againe And Walmsley said that in Lancashire it is waste to dig Marle unlesse it be imployed upon the land And said it was not waste to cut thornes unlesse they be in a Wood stubbed and digged up by the roots but if they grow upon the land then they may be stubbed and it is no waste But to cut down Thorne-trees that have stood sixty or a hundred years it is waste Hil. 32 Eliz. in B. R. Sir George Farmer against Brook IN an Action of the Case the Plaintiff claimeth such a Custome in the Town of B. that he and his Ancestors had a bake-house within the Town to bake white bread and houshold-bread and that he had served all the Town with bread that no other could use the Trade without his license and that the Defendant had used the Trade without his license upon which the Defendant demuâ—'d Morgan This is a good Prescription and it is reason that a Prescription should bind a stranger vide 11 H. 6.13 A. prescribed to have a Market and that none should sel but in a Stall which A. had made and was to pay for the Stall and held there a good Prescription And the Arch-bishop of Yorks Case in the Register 186. is a good case A man prescribed that he had a Mill and he found a horse to carry the Corn thither and that therfore they ought to grind there and because they did not he brough his Action on the case Buckley contra It cannot be intended to have any commencement by any Tenure 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny adjudged not good and the case of the Arch-bishop was good because he had it ratione dominii tenuri And adjudged the principall case that the action will not lye 23 Eliz. in C. B. Farrington against Charnock KIng Henry the 8 granted Turbariam suam in D. at Farrington rendring rent sur 21. years and then the Lessee imployed part of it in arable land and relinquisht part of it in Turbary and then Q. Mary grants Totam illam TurbariaÌ„ before demised to Farrington and adjudged that that passed only which was Turbary and the other part that was converted into Tillage did not passe Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother and the Error assigned was that there was no warrant of Attorney of the Record And it was agreed by the Bar and Bench and adjudged error But the great point was if the Plaintiff could have a writ of Error The Case was Henry the Father had Henry his Son and three Daughters by one Venter and the Plaintiff by another Venter and died seised of the land intailed to him and the Heirs Males of his body Henry enters and makes a Feoffment the Feoffee is impleaded and voucheth Henry who looseth by default in the recovery and dies without issue and whether the Daughters which are Heirs generall or the Plaintiff which is Heir in tail shall have the Error Gawdy and Baker for the Defendant who said
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
If a Quare Impedit does lye of an Archdeaconary for it is but a function or dignity and therefore a Quare Impedit will not lie of an office of a Commissary but the 24 Ed. 3.42 is express in the point And 30 Edw. 3.21 a Qure Impedit did lye of a Priory And therefore notwithstanding this exception Iudgement was given for the the Plaintiff But there were two other doubts in the Case First If a Quare Impedit will lie for an Executor for disturbance done in vita Testatoris and that by the Statute of 4 Ed. 3.7 Snigge The action will lye by the Executors for in all Cases where damages are to be recovered they shall have an action by that Statute 11 H. 7.2 An action of trespass was brought for taking of goods in the life of the Testator but no action will lie for entrie into land in the life of the Testator for it ought to be such an action as will survive in damages and may be a damage to the Executor 7 H. 42. An ejectement lies for Executors upon an ejectment in the life of the Testator And if an ejectment be maintenable in which a Terme shall be recover'd it shall be also maintenable in a Quare Impedit in which a presentment may be recovered Drew cont At the Common Law Executors have no remedy for a personall wrong quia moritur cum persona for upon the death of the Testator Executors have no remedy for arrears of Rent at the Common Law but only the Statute of 32 H. 8. And it cannot be that the Executors in this case are within the Statute of 4 Ed. 3. For that Statute intends onely to remedy such things as are avaylable to the Testator and are assets to pay debts and although Executors may have a Quare Impedit that is intended of a disturbance fait al eux but contra if it be done in vita Testatoris Walmesley I conceive no actions will lie For the Statute gives an action for the taking of goods and such like things but here is no taking but only a disturbance which may be done by Parol Perryam Justice cont For the Statute says that they shall have an action of trespass for a trespass done to their Testator and not for taking goods so that the taking of goods is but by way of resemblance and not that they shall have an action of trespass for taking of goods onely Windham and Anderson agreed with Perryam and whereas it hath been said that this cannot be Assetts Put the case that the Testator had judgment to recover damages shall not that be Assetts and why may the damages here recovered be Assetts and why shall not the grant of the Advowson be Assetts in the hands of the Executor aswell as in the hands of the issue And so was the opinion of the Court. 32 Eliz. Foster and Wilson against Mapps in B. R. Rot. 71. THe Case on a speciall verdict was thus Mapps the Defendant made a Lease of the Parsonage of Broncaster by Indenture and Covenanted by the same Deed to save the Plaintiff harmless and indemnified and also all the proffits thereof and premisses against Philip Blount the Parson of Broncaster and hereupon a writ of Covenant was brought against Mapps and the breach assigned was that Blount had entred and ejected the Plaintiff And one point was if this shall be accounted the Deed of the Defendant because the Defedant delivered his part of the Indenture to the Plaintiff as his Deed but the Plaintiff did not deliver the counterpart to him But the opinion of the Court was that this was a good Deed of the Defendants and Gawdy said that the safest way had been to deliver his part as an Escroll to be his Deed when the Plaintiff delivered the Counterpaine But a great doubt was made in this case because it was not shewed that Blount entred by a Title and then he shall be taken to have entred by wrong and so the Covenant not broken for to save harmeless is only from legall harmes as it is in Swettenhams Case Dyer 306. Where the Warden of the Fleet suffered a prisoner to escape and took a bond of him to save him harmeless and then the Warden was sued upon an escape and thereupon he sued the Obligation and adiudged that the bond was not forfeit because the partie was not legally in execution and therefore the Warden could not be damnified for the escape Padsy cont The Diversitie is where the Covenant is generall and where it is speciall for in this case it being speciall to save harmeless from Blount he ought to defend against him his entry be it by good title or by wrong and so is Catesbies Ease Dyer 3.28 Where the Lessor covenanted that the Lessee should injoy his terme sine ejectione vel interruptione alicujus the Lessee brought an action of Covenant because a stranger entred and did not say he had any title and Iudgment was given for the Plaintiff Gawdy The Covenant is broke For if Blount disturbe him so that he cannot take the proffits this is a breach of the Covenant for hereby the Plaintiff is damnified 2 Ed. 4.15 where the Condition of a Bond was that the Obliger should warrant and defend the Obliged for ever and against all and the Defendant pleaded that he had such a Warrant and there it was held by Danby to be no plea because he cannot warrant unless the other be impleaded And there it was said by Danby and Needham that if the obligee be outed by a stranger who hath no title the Obligation is forfeit by reason of this word defend Wray agreed and said that this case was not like to the Ease of 26 H. 8.3 where the Lessor Covenanted to warrant the land to the Lessee for there he shall not have a Covenant if he be wrongfully outed but our case is to save harmeless which is of greater force than to warrant for to warrant Land is only upon the title but here be the Lessee outed by wrong or by title yet is the Covenant broken to which the other Iustices agreed Fenner Vouchf 18 Ed. 4.27 where a man is obliged to save J.S. harmless against me if I doe arrest J.S. although wrongfully the obligation is forfeit which the other Iustice denied And at last Iudgment was given for the Plaintiff Pasch 33 Eliz. Elmer and his wife against Thatcher in C. B. Rot. 1125. And Cooks 1. Inst 355. IN a Quod ei deforceat of a third part of an acre of Land whereof the wife was tenant in Dower The defendant confesed she was tenant in Dower but shewed how she committed waste Statut Westm 2. cap. 4. wherefore he brought his action of waste to which she appeared and pleaded nothing for which he had Iudgment to recover The Plaintiff said that no waste was committed and the Defendant Demurred Owen for the Defendant a Quod ei deforceat lies not in this case for such
are in my possession and they are evicted by the right Owner a Covenant will lye contra if I have not possession at the time of the letting them and if I let land and J.S. enter before the Lessee the Lessee cannot have a Covenant Quod nota Et ad journeâ—ur 35 Eliz. Scarret against Tanner in C. B. Rot 1458. IN a false Imprisonment the Defendant justified that he was High Constable of the Hundred of E. in the County of â—…p and that the Plaintiff made an affray within the said Hundred upon one Walm who came presently to the Defendant and told him of it and took his oath that he was in fear of his life whereupon the Defendant came to the Plaintiff and arrested him and carried him to Prison untill he could finde sufficient Sureties of peace Glanvill A Constable cannot arrest one to finde surety of the peace upon a complaint made to him unless he himself sees the peace broken 7 Ed. 4. Kingsmill contr For he is at Common Law Conservator pacis 12 H. 7.18 And how can he keep the peace if he may not compell them to finde surety 44 Ed. 3. Barr. 2â—2 If a man that is threatned complain to the Constable he may compell the party to finde surety for his good behaviour and may justifie the imprisoning him or putting him in the Stocks 22 Ed. 4.35 10 Ed. 4.18 where a Constable in such case may take a Bond. Anderson I grant that Constables are keepers of the peace at the Common Law and are to keep the peace as much as in them lyes and that is to take men that they finde breaking the peace and to carry them to a Iustice of peace to finde surety but the Constable cannot take security nor recognizance nor bail for he is not an Officer upon Record and if he do take a Bond how shall he certifie it and unto what Court Walmesley contr Who said that the Constable might take security by bond although not by recognizance or bail Beaumond A Constable may put him that breaks the peace within the Stocks but it must be where the breach of peace is committed in his view for he hath no authority to take an oath that a man is in fear of his life and then the foundation of his justification doth fail Owen The oath is not material for although he cannot take such oath yet his taking of surety is good and before Iustices of peace were made the peace was preserved by Constables and the Statute that creates Iustices does not take away the power of Constables and therefore he may justifie Sed adjournatur Pasch 38 Eliz. Worsley against Charnock in C. B. IN an audita quaerela the Case was thus The father and son were bound in a Statute-Merchant to Charnock who sued out an Execution against them and their lands were severally extended and they supposing that the Statute was not good because it was not sealed with both their seals according to the Statute they both brought a joynt audita querela and whether they could joyn in this Action or not was the question Warburton They shall not joyn for in all cases a man must make his complaint according to his grief and here their grief is several as it two men be imprisoned they shall not joyn in a false imprisonment The same Law in a Battery 8 Ed. 4. 18 H. 6. 10 Ed. 4. It J.S. hath goods of divers men they shall not joyn in a Replevin and 33 H. 6. two men shall not joyn in an audita quaerela unless the land in execution is in them joyntly and 29 Ed. 3. two joynt-Ioynt-tenants Infants alien they shall have several Writs of Cum fuit infra aeâ—atem But he confessed the Case in 30 Ed. 3. Fitzherbert audita quaerela where two men were in Execution and the Conusor did release to one and then to another by another Release yet both shall joyn in an audita quaerela but this is not Law and besides they cannot recover damages joyntly by reason of their several vexations and this Action being personal damages cannot be severed Vid. 2 Ed. 3. Execution 45. 9 Ed. 4.31 12 Ed. 4.6 Harris contra And as to the last reason the Book in the 20 of Elizabeth is that no damages shall be recovered in an audita quaerela which if it be Law then is the doubt at an end And whereas it hath been said that they shall not joyn because their griefs are several methinks there is no reason but that if he that survives shall be charged with the whole that they shall joyn also in their discharge for if their charge be joynt their discharge shall be joynt also And in the 34 H. 6. and 30 Ed. 3. where an audita quaerela may be brought joyntly and he resembled this to the Case of a Monstraverunt where if a Tenant in antient demesn be distreyned all the Tenants shall joyn because the grievance to one may be a grievance to all the rest Yelverton of the same opinion Tho suing of the Execution was the cause of the audita quaerela but not the ground for the ground was the Statute-merchant and therefore it is here brought according to the Statute Anderson If two men do me several Trespasses yet I may have a joynt Action against them and the death of one of them shall not abate the Writ but if two are Plaintiffs in a personal Action the non-suit of one shall be the non-suit of the other and in our case the Statute was joynt and also the Execution then if all the Writs are so the audita quaerela which is to discharge them shall be joynt also especially in this Writ where they are as it were Defendants and therefore he resembled this Case to a Writ of Errour or an Attaint brought by two joyntly and one is non-sued yet this shall not abate the Writ because they are in a manner Defendants Walmesley contr The Action ought to be brought according to the cause of the wrong and the wrong begun in suing the Execution and that was several and therefore the audita quaerela ought to be several also but if this Statute had been good and had been discharged by release or defeasance then the audita quaerela might be brought joyntly for then the ground of the execution was joynt but here is but a colourable Statute and the cause of the Action is not begun before the Execution sued Owen and Beaumond agreed and after by assent of Anderson Iudgement was given that they ought to have several Writs Note Pasch 36 Eliz. in B. R. Rot. 323. or 521. between Curteise and Overscot If A. did recover against B. by two several Iudgements whereby B. is in Execution it was adjudged that he shall not have one audita quaerela but two several Writs Pasch 37 Eliz. Sawer against Hardy in B. R. Rot. 254. IN an Ejectment the Case was this A woman was Lessee for forty years sub
not a good Feoffment for White-acre Michaelm 29. 30. Eliz. Knowles against Powell in Scaccario THe Queen seized in Fee made a Lease for years to one who was out-lawed at the time of the Lease rendring rent and after he was out-lawed again and before seizure comes out the general pardon of all Goods and Chattels forfeited and in this Case it was agreed that a man out-lawed was capable of a Lease from the Queen as Farmer to the Queen And Manwood said that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry and it was also agreed that a man out-lawed and pardoned had property in his goods Egerton Sollicitor said that in the 4 Eliz. it was adjudged in the Common Pleas that if the Queen made a Lease under the Exchequer-seal to begin immediatly after forfeiture surrender or expiration of a former term and the Lessee is out-lawed shat the second Lease shall not commence for it is a Royal forfeiture Trinit 41 Elizab. Ferrers against Borough in B. R. Rot. 185. UPon a special Verdict the Case was thus A man makes a Lease for years upon condition that if he paid 10 l. before Michaelmas that it should be lawfull for him to re-enter and before Michaelmas he lets the land to another by Indenture for years and then performed the Condition and entred the first Lessee brought a Trespass and it was adjudged that it does not lye Trinit 35 Elizab. Lambert against Austen in B. R. Rot. 185. IN a Replevin the Case was thus A man seized of land in Fee grants a Rent-charge out of it to A. for life with a Clause of Distress and then makes a Lease to B. for years and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. untill the 18 of Eliz. and the Grantee makes the Defendant his Executor and dyes the term of B. ends in the 33 Eliz. and then J.S. enters and makes a Lease to the Plaintiff the Executor of A. distreyns for the arrearages and the Plaintiff brings a Replevin Gawdy and Fenner This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years but out of the Free-hold and upon grant thereof as Littleton saith the Tenant of the Free-hold ought to attorn and not the Termor and so is it 9 H. 6. and if an Assize be brought for this Rent it ought to be brought against the Tenant of the Free-hold and all the Tenants of the Free-hold ought to be named in a Rent-charge by Cook 6 Rep. 58. but otherwise for a Rent-service for that is against the Termor onely and a Termor cannot give seizin of the Rent to maintain an Assize by Cook 6 Rep. 57. and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages because the estate is determined Cook 4 Rep. 49. but an Avowry is given by this Statute Onely so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relyed on this word demesn which ought to be intended of a Free-hold and of a Reversion upon a Lease for years it is pleaded quod seisitus in dominico suo c. and so cannot a Tenant for years say for which reasons it seemed to them that the Distress was well taken Clench contr For the Termor ought to pay it for he takes the profits of the land as if a Lease be made to a woman rendring Rent who takes husband and dyes the husband shall pay the Rent by the 10 H. 6. for he hath taken the profits and by the words of the Statute they are in the possession or seisin and seisin refers to the Tenant of the Free-hold and possession to the Tenant for years and the words are which ought immediatly to pay the Rent and so ought the Termor in our Case who is chargeable to the Distress of the Testator Popham chief Iustice of the same opinion The Distress is not well taken for he who hath the profits of the land ought to answer for the Rent Gawdy Although the Cattel of the Lessee be distreynable by the Testator that is onely because they are upon his land as a strangers Cattel may be so distreyned and therefore this proves not that the Lessee should pay the Rent And if a man grants a Rent-charge and lets the land at will afterwards the Rent is behind and the Grantee dyes and the Lease at will determines without question in that Case the Lessor is subject to the Distress of the Executor And in our Case if the Grantee had released to the Tenant for life this had extinguisht the Rent otherwise of a Release to Tenant for years Fenner If Tenant in Tail granta a Rent-charge and after makes a Lease for 21 years according to the Statute and dyes the Rent by the death of the Tenant in Tail is determined To which Gawdy agreed which proves that the Rent issues out of the Freehold Vid. Cook 5 Rep. 118. Hillar 37 Eliz. Butler against Ruddisley IN a Trespass the Defendant pleaded the Free-hold of Edward Devereux and so justified as his Bailiff without saying at his commandment the Plaintiff replyed that the said Edward was seized in Fee and made a Lease to him by vertue whereof he was possest absque hoc that the Lessor made the Defendant his Bailiff post dimissionem and hereupon the Defendant demurred Crook By this Lease a Free-hold passeth to the Plaintiff and then the Plaintiffs traverse is naught for he hath now traverst that the Defendant is Bailiff whereas he ought to traverse the Free-hold in the Lessor for that would have destroyed the justification of the Defendant And to prove that the Free-hold doth pass he cited the Case of Littleton where if a Lease be made to the husband and wife during Coverture they are Ioynt-tenants for life So in the 30 H. 6. a Lease to a woman dum sola vixerâ—t And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice or dummodo se bene gesserit all these are Free-holds And it is clear that a Tenant at will cannot assign over And also an estate at will is an estate at the will of both parties but here it is at the will of the Lessor onely when he will make a Bailiff Haughton contr An estate at will doth pass and not a Free-hold for here he hath not pleaded that Livery was made and Livery shall not be intended in this case unless it be specially alledged but if Livery had been made then he agreed that a Free-hold conditional had past and for the pleading of a Livery he took a difference that where an express estate either in fee or for life be pleaded there Livery shall be intended but where a Free-hold passeth by implication or operation of Law and not
that the wife is not in her former or antient estate but takes hereby a new estate for if Tenant for life grants his estate to J.S. and his heirs and J.S. grants a Rent and then re-grants an estate to the Tenant for life the Tenant for life shall be liable for the Rent Dyer 252. Harris contr For by the rendring of the estate by the Fine she shall be in her antient state and he cited the Case of Peter Cary here adjudged who being Tenant in T. the remainder to the Earl of Devonshire was attainted and then the King pardon'd him and gave him his land again and then he suffered a common recovery and thereby barred the remainder in the Earl of Devonshire But Anderson was against this Case and said that by the render the woman was in her antient estate and so the remainder discontinued and the entry of him in the remainder taken away Warburton The Fine does make no discontinuance for they give away but that which they may lawfully do and so is Bredons Case Cook 1 Rep. 67. and as to the common recovery it is out of the Statute of the 32 H. 8. because she remains party to the Fine and by the render upon the Fine they shall be as in by a new estate and then the recompence shall not be to the antient estate and therefore he in the remainder is not barred nor impeached by this Fine but he may enter within five years Kingsmill accorded for it is plain that by the render to the husband and wife they are in a new estate and the recompence shall go as to that and not to the antient estate but contr if it had been by way of voucher Walmesley accorded but notwithstanding the Fine and recovery the entry of him in the remainder is good and as to the woman it is clear that there is no discontinuance to him in the remainder in Fee for he in the remainder in Tail cannot discontinue because he is seized by force of the estate Tail as the 4 H. 7.17 Tenant in Dower and he in the reversion in Tail joyn in a Fine this is no discontinuance of the estate Tail because he was never seized and therefore it is a forfeiture in the Tenant for life although he in the remainder joyn'd with him by the 41 Ed. 3. but otherwise if Tenant for life and he in remainder in Fee joyn in a Fine Vid. Bredons Case 1 Rep. 76. Anderson I conceive he in the remainder may enter for all passeth from the Tenant for life and it is her Feoffment and the confirmation of the other and so the estate Tail being spent he in the remainder shall enter for forfeiture and the recovery shall be no bar because it was of another estate and also this title of entry for forfeiture shall not be barr'd by the common recovery no more than if a Feoffee upon condition does suffer a common recovery yet may the Feoffor enter for the condition broken and Iudgement was given for the Plaintiff so that his remainder was neither discontinued by the Fine nor his entry taken away by the Recovery 43 Eliz. Hall against VVood in C. B. IN an Action on the Case for a Trover and conversion of 40 l. on not guilty pleaded it was found for the Plaintiff Walmesley How can an Action lye for a Trover of money if it be not within a bag for this Writ supposeth a loss and when the money was lost how doth it appear that the money found is the same money that was lost Davies There are many presidents in the Kings Bench to prove that this Action will well lye for corn and money and I have been of Counsel in many of those Cases Warburton If the money were lost in view of a third person upon such Trover the Action will lye for there it may be proved that it was the money of the Plaintiff And Walmesley agreed And note that a president was shewn tempore 40 41 Eliz. inter Holloway and Higgs which was thus a master delivered to his servant 30 quarters of corn to be sold and the servant sold them and converted the money and the master brought his Action on the Case for the Trover and conversion against the servant who pleaded not guilty and it was sound against him and two things were moved in arrest of Iudgement first that the master was never possessed of the money and therefore could not lose it secondly because the money cannot be known and so non constat whether it was the money of the masters or no. But notwithstanding this Case Iudgement was given for the Plaintiff because the possession of the servant was the possession of the master and when the servant converts this to his own use by this the master loseth the property and is also a conversion in the servant Mich. 42 43 Eliz. Leeke against the Bishop of Coventry in C. B. Rot. 3579. IN a Quare impedit the Case was thus Langford and Bussy were Patrons of an Advowson to which they and their Ministers use to present by turn Langford presented according to his turn and his Clerk dyed and then Bussy presented in his turn also and his Clerk was deprived after which Langford grants his Advowson in Fee to Leeke the Plaintiff and then the Bishop without any notice does collate Dr. Babington who dyes after whose death the question was if Leeke should present or Bussy and Iudgement was given for the Plaintiff because that notwithstanding the Church was voyd by deprivation yet the Patron may transpose his Advowson over Bethell against Sir Edward Stanhop IN Debt against Sir Edward Stanhop as Executor to Francis Vaughan he pleaded that he is not Administrator and the said Vaughan gave 40 l. to his daughter within age with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors and then he dyed possest of the goods and the Defendant sold these goods which made him Executor in his own wrong and afterwards takes Letters of Administration Walburton I conceive the Plaintiff ought to have Iudgement for the Statute of 21 Eliz. of fraudulent conveyances annuls this gift of the Intestate because he did it to defraud his Creditors and then when he dyed it was assets in the hands of the Administrator And if a Testator have goods wrongfully taken from him out of his possession these are not Assets to the Executors or Administrators but if they be taken out of the possession of the Administrators or Executors they shall be Assets for they may take them again but for goods taken from the Testator they have but an Action But here the Administrator may take the goods which were given by the Intestate to defraud Creditors for the gift was voyd and therefore they shall be accounted Assets And as to the Action it is well brought for when a man does administer as Executor and then takes Letters of
Iustices Cook being against it that this is not within the Statute but they agreed that if one bought corn and thereof made meale or oat-meale and sold it that this was within the Statute for that is usuall and is no alteration and therefore remaines the same corn but starch is altered by a trade or science which is a mysterie and so it is not the same thing that was sold But Cook Chief Iustice contra And cited one Franklinghams Cass Michaelm 39 40 Eliza. in B. R. where one bought Barley and because it was of such Quantity that he could not make Malt of it in his own house he made Malt thereof in anothers house by his own servants And it was resolved First That the conversion of corn into Malt in his own house with an intent to sell it was within the Statute unless there be a saving for it Secondly Forasmuch as it was in anothers house he is out of the proviso and so within the penalty of the Statute And in Pasch 42 Eliz. between Reynolds and Gerret That if a Miller buyes corne and grinds it and sells it within his house this is within the Statute And in the Checquer Chamber in a writ of Errour there between Baron and Brise adjudged there that a Coster-monger who buyes Pippins to sell them again was out of this Statute because they are necessary victuall And divers exceptions were taken to the Information viz. where he saith Ligamen anglicè Starch whereas there is no such word but it is Ligumen and the anglicè will not help this mistake Cook 10. Rep. 134. and this exception was taken by Iustice Winch. But Warburton Iustice cont for Starch is a thing newly devised and there is no Latin word for it and therefore the anglice there is good Foster Iustice took an exception because the information concluded contra formam Statuti whereas it ought to have been contra formam Statutorum For this Statute was of force untill the 8 Elizab. and then was determined untill the 13th of Elizabeth and then it was revived so there are two Statutes but 't was agreed that where a Statute continued de tempore in Tempus and was never discontinued nor determined there it shall be said contra formam Statuti and this diversity hath been twice adjudged upon this very Statute viz. 9 Eliz. in Palmers Case and in the 35 Eliz. Warburton cont for the Information doth intend only the Statute of 5 Ed. 6 and 14. and he did recite the words thereof in his Information also this Statute only makes the offence and declares the manner of it and no other Statute makes any addition to it or increaseth the penalty but only revives it to endure in perpetuum But if a Statute doth prohibit a thing and another Statute gives a penalty there upon Information upon the penalty both Statutes ought to be recited and to conclude contra formam Statutorum vid. Commentar 206. Morgans Case And so the Statute of Vsury 37 H. 8. is revived the 13th Eliz. and an addition made to it there such inclusion ought to be contra formam Statutorum but where the Statute is only revived it is otherwise as the Statute of Perjury 5 Eliz. was continued untill the 14 Eliz. and then it was determined and 27 Eliz. was revived yet all informations upon that Statute are contra formam Statuti 5 Elizab. Cook This is no good exception and cited Talbot and Sheldens Case Hillar 33 Eliz. who were indited for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error the Iudgment was reversed because the penalty was demanded for the 10th Eliz. made the Offence and the 23 Eliz. gave the penalty but if the Information be for the offence only there it had been good See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good because the best shall be taken for the King Vid. 5 H. 7. 17. 8 Ed. 3.47 ◠Pasch 10 Jacob. VValler against the Deane and Chapter of Norwich IN an action of Covenant the Plaintiff declared on a Lease made from the Deane the Case was thus The Deane in the 38 Eliz. had made a Lease for 99. years to one Themilthorpe and then in the 42 Eliz. made a Lease to the Plaintiff for three lives rendring Rent with a Letter of Attorney to make livery and a Covenant to save the Plaintiff harmelesse against Themilthorpe afterwards the Attorney makes livery sc after Michaelmass which was a Rent day and he being disturbed by Themilthorpe brought this Covenant And two points were moved in the Case First Inasmuch as the Lease was voyd to Walter whether that the Covenant was voyd also Secondly If the livery made after the Rent day be voyd Hoghton Serjeant If the Covenant depended on the interest of the Lease as a Covenant to repay the thing devised or to pay rent these had been voyd because the Lease it self is voyd for they do immediatly depend upon the Lease but where the Covenant is for a thing collaterall as a Covenant that the Lessor is owner at the time of the Lease or that the Lessee shall enjoy it or shall be discharged and saved harmeless these Covenants being collaterall to the Lease and interest are good although the Lease be voyd and the 43 Ed. 3. proves this where a Lease was made by a Baron and Feme a Covenant by them shall not binde the wife contra where the Covenant concernes the interest as payment of Rent c. Also the Covenant was broken immediatly upon the sealing of the Lease to the Plaintiff And as to the second point he held it was a good livery because no time was limited in the Letter of Attorney Dodderidge Serjeant The Covenant is voyd because the Lease is voyd but contra if it had been a Covenant to enjoy for three lives and he relyed much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols cont The Covenant is good and yet in force for when an estate is created in which is implyed a Covenant in Law there if the estate be voyd the Covenant is voyd also but when there is an express Covenant in Deed there it is otherwise although the Lease be voyd or voydable as if he Covenant that the Lessee shall enjoy during the terme and the lessee resign yet is the Covenant good although the terme is gone And as to the second point The livery is good for untill the livery be made the lessor shall retaine his land and no Rent is due vid. Commentat 423. for by intendment the possession is better than the Rent And Cook agreed to this And the Iustices agreed with Nicholls Trinit 10 Jacob Barnes Case TEnant for life the Reversion in the Lessor a Formedon is brought against the tenant for life who prays in ayde of him in the remainder for life without him in
the Reversion Warburton I conceive he shall have the Ayde 7 H. 4.2 where ayde is prayed against him in the Remainder and Reversion and and he cited a Manuscript 11 R. 2. direct in the point that the ayde would lye But the other Iustices cont for the Tenant for life hath as high an estate as he in the remainder and may plead all that the other may but if there be Tenant for life the remainder in Taile there he shall have ayde of the Tenant in Taile 23 H. 6.6 11 Edw. 3.16 If there be Tenant for life the remainder for life the remainder in Fee tenant for life shall have ayde of them both for else he in the remainder shall not come in to plead 11 E. 3. ayde 32. Where it is resolved that tenant for life shall have ayde of the Reversioner for life Hillar 28 Eliz. VVatkins against Astwick A Man makes a feofment on condition that if he his heirs or Executors do pay the Rent of 100 l. before such a day that he may re-enter the Feoffer dyes his heire within age the mother without any notice of the son requests J.S. that he would pay the money for her son And all this was found by speciall verdict but it was not found of what age the son was Clinch If the Iury had found that the son was of the age of 17 years the payment had been good Wray If a Bond be upon condition that the Obligor or his heirs should pay 100 l. and the Obligor dyes his heire within age I conceive payment by the Guardion or by some other friend is good And afterwards all the Iustices agreed That if the Infant were within the age of 14. years the tender of the money by his mother had been good but contra if he had been more than 14 years and because no age was proved here but that he was within age it shall not be intended that he was within the age of 14. years and therefore they advised the party to begin de novo and that it may be found that the Infant was within the age of 14. years Trinit 25. Eliz. Moris against Paget in C. B. Rot. 2215. IN a Replevin a speciall Verdict was found that Sir Francis Ascough was seised of the Mannor of Castor in Lincolne which Mannor extended it self into four Towns v z. Castor North Kelsey Dale â—ale and that there were demesne lands and Freeholders in each of the said Towns and that Moris the Plaintiff held the land where c by Fealty and suit of Court to the Mannor of Castor and the lands did lie in one of the Towns viz. in Norch Kelsey And Ascough being so seised sold to the Defendant Totum illud Manerium sive Dominium de North Kelsey cum pertinentiis in North Kelsey ac omnia ac singula Messuagia redditus Herriot and all other things used or reputed as parcell thereof with all Courts c. To have and to hold to the Vendee and his heires and Moris the Plaintiff and other freeholders in North Kelsey did attorne to the Vendee The Question was if the Vendee had the Mannor of North Kelsey or not Peryam He has not yet by the feofment and attornment all the Tenants and services are conveyed to him but not as a Mannor for a Mannor is made and incorporate by continuance of time and this entire Mannor of Castor cannot be divided no more than other liberties as if the King grant to three partners who have three Mannors a Leet or Warren and one of them makes a feofment the Feofee shall not have the Leet and heâ—tted Dyer 362. a. and he sayd if I grant my Mannor of â—except certain Demesn lands and services the feofee shall have the Mannor and I shall have the Lands and services in grosse and so if I have a Mannor that extends into two Towns and I grant my Mannour to you in one Town you shall have no Mannor but the lands and services in gross Windham Iustice cont For where he grants his Mannor of North Kelsey in North Kelsey there it shall be construed his Mannor in reputation Ander on agreed for although a Mannor cannot be created at this day yet is it not so intire but it may be divided Hillar 30. Elizab. Sir Thomas Howards Case A Man makes a Lease for years the 10th of May and then the Lessor bargains and sells this to another by Deed enroll'd bearing date the 10th of Aprill and it was entred to be conveyed the 10th of Aprill before but in truth it was delivered and acknowledged and enrolled afterwards And it was held that the bargaine was without remedy at the Common Law for he cannot plead that it was acknowledged or delivered after the date of the day of acknowledging it and so was the opinion of Rhodes Peryam and Windham Anderson being absent for he cannot aver that it was inrolled or acknowledged at another day then it is recodred because it is contrary to the Record for it is entred that it was acknowledged the 10 of Aprill and then if such a plea should be admitted it would shake most of the Assurances in England Note Shuttleworth put this case A man makes a Lease rendring Rent at two Feasts and if the Rent be behind at any of the said Feasts or 40. dayes after and no distress to be found that the Lessor shall re-enter the Lessor comes upon the ground the last day of the 40. and demands his Rent and because no distress was sound on the land at the time of his demand he entred But it was averred that always before this day there was sufficient distress and the question was if his entry were good Fenner and Rhodes said they had seen a Report of the same Ease 8 Eliz. That the distress ought to be on the Land on the last day yea at the last instant of the day which is a legall time to make a demand or else the Lessor may enter Walmsley The same Ease was resolved a year agoe in the Kings Bench between Ward and VVare But if it were and no distress to be found at any time within forty dayes there if there be a distress found at any time it is sufficient Vid. 1. Inst 202. a. 28 Eliz. VVood against Ash IN a Replevin the Ease was thus Puttenham made a Lease of Land with a Stock of Sheep for 20. years rendring Rent and the Lessee doth Covenant to render back to him at the expiration of the Lease 1000 Sheepe of the age of three or four years and that the Lessor grants all his Chattells and this stock of Sheepe to Elizabeth Vavafor the Defendants now wife but in Truth the Sheepe of the old stock were all spent and others supplyed part by increase and part by buying of other Sheepe Walmesley for the Defendant The grant made by the Lessor is good for the generall propertie does remain in him although that the Lessee hath a speciall
shall present for there is no reason the patron should for by his precedent presentment he hath dismist himself untill resignation or death as if a man lets land for another mans life he shall not have the land during the life of Cestuy que vie great mischief would be if it should not be so for els all the presentments that the King hath made shal be usurpations The second matter was that no presentment is pleaded against the King by the Patron for it is pleaded that the Parson was admitted and instituted but not that he was inducted but the Court held it good notwithstanding that omission But as to the first point the Court asked Williams if he could shew presidents that the King should have such presentment for they said that the usage by the Pope is no argument at all for that he used to usurpe many things Walmesley I conceive this custome began by the Popes usurpation but he said there is a Book in the time of Edâ— 2. where this point is argued and adjudged that the Patron shall present and not the King VVilliams shewed eight or nine Presidents in the time of H. 8. that the King used to present in such case but all of them were between spirituall persons And the Court said they did not regard those presidents for all spirituall persons were the Popes servants vid. 6 Elizab. 72.8 South against Whitewit IN a prohibition the case was thus the wife of VVhitewit had spoken scandalous words of South and therefore the was excommunicated by the high Commissioners and by Letters Missive a Pursevant came at twelve of the clock at night and broke the house of VVoâ—tewit and tooke the body of VVhi ewâ—… wife who was rescued wherefore VVhitewit her husband was called before the Commissioners and hereupon VVhitew t prayed a prohibition And the question was if a Pursevant could break a house by such Commission or not And it was agreed that by the Common Law neither the Pope nor any other spirituall Iudge had any thing to do with the body and goods of any one for only the sword spirituall belongs unto them VValmesley At the Common Law after Excommunication a Capias Excommunicaâ—um was awarded and I conceive this writ is of force at this day and is not taken away by the Statute of 5 Eâ—…z Kingsmâ—ll agreed for this Statute gives power onely to correct the spirituall law and to take away the authority of the Pope but gives the same means to execute it as before and he further said that the Statute that did erect the Court of Wards doth appoint a Seale belonging to it and other process according to the course of the Common Law and therefore by the same reason if this Statute of â— Eliz. intended to give them such authoritie they would have appointed a Seale also and a course according to the Common Law but as the course is here used a man may be robb'd in his house by a beggerly Pursevant which is no Officer known by the Law And so was the opinion of the Iustices Pasch 40 Eliz. Goosey against Pot in C. B. IN a Replevin the Case was thus two Hundreds were adjoyning together to two several Mannoure of two several persons and the avowant was seized of one of them and he prescribed that all the Tenants of the other Hundred have used to make suit to the Leet within his Hundred and also that the Lord of the other Hundred used to appear or to pay him 4 s. pro anno futuro and if it were not paid the Defendant prescribed that he and all those whose estates he hath have used to distreyn any Inhabitant within the Hundred for the same and therefore for 4 s. not paid he did avow the Distress whithin the Mannour of the Plaintiff who was one of the Inhabitants Williams A man may prescribe by a que estate in a Hundred for a man may have it by disseisin and there are divers presidents which the Prothonotaries have shewed me to warrant this in a Replevin for the seisin is the matter of the title And to this Littletons rule may be added that of all things which lye in grant and whereof a man cannot be disseised against his will a man shall not plead a que estate Kingsmall A que estate cannot be pleaded of a Hundred unless if be appendant to the Mannour and a second matter was moved in this Case viz. that he prescribed to distreyn the Cattle of a stranger for the essence of the Lord. Williams It is not good by the 41 Ed. 3. but by the 47 Ed. 3. for suit and service the Cattle of the Lord may be distreyned on any land within the Hundred Anderson I do agree to the Case of my Lord Dyer that the Cattle of a stranger cannot be taken for a Herriot Walmesley In the 12 of H. 7. it is said by Fineux that a Lord of a Mannour may inlarge his services by prescription and so the Cattle of a stranger may be taken but for a personal matter as for amercement in default of suit no stranger may be distreyned And afterwards agreed by all the Iustices that the strangers Cattle could not be distreyned Holt against Lister IN a Replevin the Case was thus he in the reversion after Tenant in Dower grants it over to the use of himself for life the remainder to his nert son in Tail the remainder to the use of himself in Fee and after this he levyes a Fine to the Plaintiff and his heirs of land which he claimeth de haered tate sua after the death of the Tenant in Dower The Plaintiff brought a Quid Juris clamat against the Tenant in Dower and upon non sum informatus Iudgement was given that the Tenant should attorn and now he prayed that she should not attorn for if she atterns she will torfeit her estate Walmesley If he in the remainder for life grants over by Fine it is no forfeiture for he gives no more right than he hath and so hath it been adjudged in the time of my Lord Dyer Glanvill I agree to that but in this Case he grants that which he hath de haereditate sua and this recital will make a forfeiture and then if the Tenant in Dower attorn this is a forfeiture Anderson This attornment is no forfeiture because it is by judgement of the Court. Walmesley I agree for the Grant it self is no forfeiture unless it be by reason of the recital but the Attornment shall have relation onely to the substance of the Grant And it was much disputed between Walmsley and Glanvill If Lessee for life of a Rent grants this in Fee by Fine if this be a forfeiture and Walmesley vouched a Iudgement that it was no forfeiture and Glanvill voucht 31 Ed. 3. Grant 60. to the contrary and 15 Ed. 4.9 by Littleton If Lessee for life of a Rent grants this by Fine in Fee it is a forfeiture by reason of the
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two joynt-Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS
was upon the pleading Taylor being Lessee for years 9 Elizabeth did grant and assigne this to Ayer the Plaintiff The Defendant pleaded that before the grant made to Ayer sc 8 Elizabeth Taylor did grant and assigne his estate to the Defendant without traversing the gift made to the Plaintiff Williams There needs no traverse for being granted the 8 Elizab. it is impossible it should be granted 9 Eliz. 2 Edw. 6. and 1 H. 5. Anderson He ought to travers for it is impossible to confesse and avoyd a grant by confession that was granted to another before for if it were so the second grant is voyd and so being so confest here ought to be a travers Walmesley cont in 32 H. 6. it is sufficient to say that at another day c. there was another arbitrement c. for by that the first arbitrement is voyd in Law And it is a good plea in a Will that after that there was another Will made without Traversing and there is difference between Lands and Chattells for land may be gotten out of a man by wrong and therefore it may be that after the feoffment the Feoffor entred and it disseised the Feoffee and did infeoffe another but it cannot bâ— so here of a terme for years for no man can take it away from the Lessee by wrong Glanvill and Kingsmill cont There must be a Traverie for there ought to be a confession before there can be an avoydance but here he does not confess the grant but pleads matter that denies it being granted And at last Anderson gave Iudgment that he ought to Travers 42 Eliz. Rudd against Topsey in C. B. Rot. 135. IN a Quare Impedit The Iury found that Edward Capell was seised of an Advowson in Fee and did let it to the Defendant for years and during the Lease he presented the Defendant and the doubt was whether this were a surrender or an Extinguishment And it was held by all the Iustices that this could not be a surrender but is cleerly an extinguishment For if a man does present to his own Church as Proctor to another by this he looseth his advowson Nat. Br. 25.17 Ed. 33.24 H. 6. Hillar 42 43 Eliz. Forrest against Ballard Rot. 2480. AN Audita querela was brought upon a Statute which was acknowledged before a Maior who had no power to take it Anderson An Audita querela will not lie upon a voyd Statute But Kingsmill Walmesley and Warburton cont and Walmesley cited 〈◊〉 Br. 102. where an Audita querela was brougt upon a forg'd Statute and there it would lie upon a Statute made by Duress 20 Ed. 3.28 Trinit 40. Eliz. Goodrick against Cooper in C. B. Rot. 1259. IN a Replevin the Defendant justified for Rent granted to the Master and Schollers of Emanuell Colledge in Cambridge And the Iury found that one Spendelose being seised of the land where c. by his Deed did grant to the said Master and Fellowes a Rent Ch. of 40 l. per annum for ever and that Spendlose did seale his part of the Indenture and delivered it to the use of the Master and Fellowes to one J.S. to deliver it accordingly but there was no dead to shew their receit thereof and then they sealed the other part but they made no Attorney to deliver it and it was â—ound that the Rent was payd for divers years after VValmesley Although no Letter of Attorney were made yet it is good for by their sealing of the Counterpart there is a sufficient agreement to the grant As it a Reversion be granted to a Corporation by Deed although they cannot accept of this but by Attorney yet if they bring a waste this is a sufficient agreement to vest it in them Quod assi Justiciarii concesserunt And judgment was given for the Avowant Michaelm 43 44. Eliz. Claygate against Batchelor in C. B. Rot. 3217. IN debt upon a Bond of thirty pound the Condition was that if Robert Batchelor son to the Defendant did use the Trade of Haberdasher as Iourneyman servant or Apprentice or as a Master within the County of Kent within the Cities of Canterbury and Rochester within four years after the date that then if he pay twenty pound upon request the Obligation to be voyd And all the Iustices agreed that the condition was against Law and then all is voyd for it is against the liberty of a Free-man and against the Statute of Magna Carta cap. 20. and is against the Commonwealth 2 H 5. 5. And Anderson said that he might aswell bind himself that he would not go to Church And Iudgment was given against the Plaintiff Michaelm 43 44 Eliz. Dogget against Dowell in C. B. Rot. 65â— IN an action on the Case upon an Assumpsit The Plaintiff declared that at the request of the Defendant he had lent to him 30 l. the 10th day of May 5 Eliz. and the Defendant in consideration thereof viz. the second day of May aforesaid did promise and assume upon himself that he at the end of the yeare would lend the Plaintiff other thirty pounds for a year or give to him five pound It was said that the consideration is good for although the promise was made at another day yet is it in pursuance thereof so that in Law it shall be accounted all at one time and is not like to the case in Dyer 372. where the Master promised one who was bayle for his servant that he would save him harmless this is no consideration for the Ballment was of his own will and was executed before the Assumpsit but if the Master had first requested and afterwards assumed there it is good and so was it adjudged in the case of one Sydenham against Worthington Trinit 27 Eliz. Rot. 748. Where the request was before and the promise after and there it was a good Assumpsit VVarburton agreed And it is like as if I should say to you do such a thing and I will give you five pound this is no good contract But all the Iustices on the contrary for when at the first day the Plaintiff did lend to the Defendant thirty pound that was absolute and the speaking on the second day cannot have such reference to the first agreement that it shall be accounted all one Anderson If I say to one In consideration you will serve me for a year I will give you five pound here is no cause of action for the consideration is precedent and not mutuall and so judgment was entred for the Defendant Hillar 41 Eliz. VVentworth against VVright Rot. 2529. IN a Quare impedit two points were moved 1. If the Parson be made Bishop whether the Patron should present or the King by his prerogative VVilliams The King shall for before the Statute the Pope should present and the reason was because the Bishop had received his presentment gratis from the Pope and by the same reason the King now