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
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
was peritus in legibus Angliae and that he was retained to he of Councel and adjudged no good plea for he should alledge that he was Student for a certain time and was elected by the Benchers to be a Barrester And Iudgement was given for the Plaintiff Michaelm 41 42 Eliz. Swan against Gateland Rot. 3267 or 3667. IN a ravishment of Ward the Plaintiff demurred that T. B. was seized of land in socage and dyed and J B his son is of the age of two years and that the Guardianship belongs to him because he is next friend 〈◊〉 parâ—… maâ—…s J.B. viz. the brother of E.B. the infants mother The Defendant pleaded that E.B. the infants mother was his mother also and that he was begotten by one Gateland on the said E.B. and the said Gatelaâ—e dyed and the said E.B. did marry the said T.B. and had issue the infant and so concluded quod erat propinquior am cus absque hoc that the Plaintiff is propinquior amicus and upon this was a Demurr Hern for the Plaintiff The question is whether the uncle shall be Guardian in socage or the brother of the half blood and he said the uncle should have the Wardship because there is a more natural affection between the uncle and the infant than between the infant and the brother of the half blood and if there be not love he cannot be the procheme amy although in judgement of Law he be the next of kin 31 Ed. 3. Gawdy 157. In a Writ of Ward the Plaintiff declared that he was next of kin of the Plaintiff the mother of the infant and it was pleaded against him that the infants mother was alive but he replyed that the mother had made a Charter of Feoffment to the disherison of the infant and that she was attaint of Treason And in 15 Eliz. the brother who claimed the Wardship of his younger brother was also within age and therefore it was ruled that the uncle should have the Wardship because alterum â—…quâ—r regeâ—… qui seâ—psum nequit And 5 Ed. 6. the brother of the half blood is next of kin to whom administration shall be given before the mother for the Statute of 27 H. 8.15 sayes that the next of kin shall have it and the brother of the half blood is the next of â—in but Guardianship shall be given by the Law to the nearest friend and that is the uncle Williams contr For although the brother be but oâ— the half blood yet he shall have the Wardship for the brother is the next of kin to whom the inheritance cannot descend and the 31 Ed. 1. does not gainsay this for the mother was denyed the Wardship because she was attaint of Treason for the Law will not suffer that the infant shall be in Ward to any who may be suspected to do wrong to the infants land or to his person and therefore he shall not be in Ward to any that may inherit him for there is a suspicion that he may kill the infant And 5 Ed. 6. Brook Administration 47. it is agreed that the brother of the half blood is next of kin and that is the cause of the nearness of love and it cannot be intended that there should not be love between persons so nearly allyed And 30 Assi 47. a remainder was limited propinquioribus de sanguine and there it is agreed that the brother is next of blood Warburton contr The uncle shall have the Wardship for two causes for there is not such natural love between two brothers of the half blood as is between the uncle and the infant of the whole blood Also the Statute sayes that he shall be in custody parentum haeredis and therefore he ought to be in custody of those who are of most antient degree who are the parents but one brother cannot be parent to the other Walmesley contr For the brother is the procheine amy and so hath it been ruled in the time of the Lord Dyer in 7 Eliz. in C. B. for he ought to be in Ward to him that is next of blood and most remote in succession And the 5 Ed. 6. proves that he is next of kin and such nearness must needs procure love and although it sometimes happens that there is not such love yet this cannot alter the Law that alwayes intends amity and although the Statute of Mariebirdge speaks of parents that is intended of such as are of full age and of sound memory for if he be not then some other that is the next of kin shall have the Wardship and he told Warburton that he would shew him a report of such a Case where it was ruled accordingly before the Lord Dyer Hillar 43 Eliz. Peck against Charnell in C. B. Rot. 1703. IN an Ejectment upon a special Verdict the Case was this John Burly seized in Fee of land doth devise it to his wife for life the remainder to William Burly in tail the remainder to his next heir-male being of his sirname in Fee and dyes and then his wife does intermarry with William Burly who had the remainder in Tail and then they levyed a Fine come ceo c. to J.S. and by the same Fine J.S. rendred to the wife for life the remainder to the husband in Fee and then a common recovery was had against the husband and wife and that was to the uses contained in the Fine then the wife dyes and the husband dyes without issue and the right heir male of the sirname of the Devisor enters and makes a Lease to the Plaintiff who being outed by the Lessee of William Burly brought the Action Williams Here are two points first if this be a discontinuance â—y the wife secondly if the recovery barrs him in the remainder And as to the first point when woman tenant for life and he in the remainder in Tail being her husband do joyn in a Fine this shall not be a discontinuance of the estate Tail for by Littleton discontinuance cannot be by way of grant although it be in case of a Fine but ought to be by Livery And as to the second point Knivetons Case Bâ— 252. is express in the point that notwithstanding the common recovery yet the entry of him in the remainder is legal for as to the point of recovery a base Fee doth pass to the Conusee of the Fine which is rendred back again to the woman for life and her husband in Fee and by the Common Law there was no remedy for him in the reversion against a recovery had against Tenant for life 7 H. 7.12 5 Ed. 4.2 untill the Statute of Westminster the 2. which gives to him a Writ of ad terminum qui praeteriit and by the Statute of the 23 of H. 8. he may enter but now the question is whether this recovery will bar him in the remainder of his entry because the recovery was of another estate and not against his Tenant for life But I conceive
propertie To which it was answered that if the ancient stock of Sheepe were still it had been godd but it was not and therefore the grant is voyd Walmesley Although the first stock was changed yet the new stock does supply it and is in place thereof and shall be in the same condition as the other stock is and therefore the Lessor shall have propertie in it But the whole Court was against him for they said that the increase of the stock of Sheepe should be to the Lessee and the Lessor shall never have them at the end of the terme but they agreed that if the lease were of the stock with Lambs Calves and Piggs there the increase belongs to the Lessor And all the Court took this difference sc when a lease is made of dead goods and when of living for when the lease is of dead goods and any thing is added to them for reparations or otherwise the Lessor shall have this addition at the end of the terme because it belongs to the principle but in case of a stock of Cattle which hath an increase as Calves and Lambs there these things are severed from the principle and Lessor shall never have them for then the Lessor shall have the Rent and the Lessee shall have no profit Trinit 29 VViseman against Rolfe in in C. B. Rot. 1454. IN a Writ of right the Case was thus A man selfed of Land in Fee makes his will and gives to D. his wife such Land for life the remainder to T. his son and heires of his body and also gives to T. his son his Land in B. and also his Land in C. and also he gives his Land called Odyum to the seed of his son habendum all the demised premisses to his T. son and the heires males of his body The Question was it T. should have an estate in Taile in B. and C. or if the last words shall relate only to that which was last named Fenner for the Plaintiff For the last Clause is a new Clause and shall not be preferred to the first for it begins with a verbe viz. I give my Land called Odyum and therefore the limitation afterward shall be referred only to this And 10 H. 7.8 There was a grant by Dedi custodiam Parci Arbores vento prostrat The Grantee shall have the trees by this Clause and 14 Eliz. A man deviseth thus I give my Mannour of C. to my second son Item I give my Mannor of S. to my second son to have and to hold to him and to his heirs And by Dyer Welsh and Weston he had an estate but for life but Brown cont for if a Lease be made to A. B. and C. successively it is adjudged that they are Ioyntenants but if it be to them as they are named they shall have it one after the other and if a devise be to one and his heirs and after to another for life the Law will conster that the estate for life is to procede for that words of Relation in Wills shall be taken stricttly as if a devise be to A. and his heirs of his body and he does devise other land in Forma praedicta this shall be but for life Walmesley cont and said that this limitation did go to all whereof no limitation was made before for the rules of reason are uncertain and therefore such matters shall be expounded according to the best sense that may be and here the sense is most naturall to refer it to all and the word all imports this and the Case of the fourth of Elizabeth under favour accords with this viz. that the Devisee shall have Fee in both But if the Devise had been I devise D. to my son Thomas and also to him and his heirs the Mannor of S. there he shall have D. but for life And if a man devise to his 4. sons A. B. C. and D. to have to the persons last named to them and their heirs there all shall have Fee 19 Ed. 4. In a precipe of a house and an acre of land in three severall Towns and that the Defendant Ibidem ingressus est and did not say into the house and land and yet it was held good Periam and Rhodes He shall have an estate Taile in all and the relation shall be to all Anderson doubted at first but agreed afterwards and Iudgement was given accordingly 32 33 Eliz. Mathewson against Trott in C. B. Rot. 1904. UPon a speciall verduit the Case was this A man seised of land in soccage devised it to his yonger son and died seised the elder son enters and dies seised and his heir enters and the yonger son enters upon him the Question was if his entry be taken away by this descent VValmesley It is not and he compar'd this case to a title of entry for a condition broken or a Conusee of a Fine upon grant and render c. in which Cases no descent shall take away entry Anderson The Devisee hath interest presently and the land does not descend for the devise prevents the descent and the Freehold is presently in the Devisee and the Statute 32 H. 8. which gives power to Devise lands does make a Title in the Devisee as a Title of entry for condition of Mortmaine and the Devisee shall not have an ex gravi querela upon this Statute but he must enter Walmesley The Devisee hath not a Freehold presently for if it were so the Devisee at the Common Law ought not to sue an Ex gravi Querela but certainly if the freehold be in the Devisee his entry is taken away And afterwards Iudgment was given by Anderson that descent does not take away the entry of the Devisee but delivered no reason for it Hillar 33 Eliz. Mosgrave against Agden Rot. 2529. IN an action of the Case on a Trover and conversion of six barrells of Butter The count was that they came to the hands of the Defendant and after the trover they were impared and decayed ratione negligentis custodiae And the Court held cleerly that the action would not lie for he who finds goods is not bound to preserve them from putrefaction but it was agreed that if the goods were used and by usage made worse the action would lie 44 Eliz. Ayer against Joyner in C. B. Rot. 2529. IN a second Deliverance it was said by the Court that if Lessee for years does assign over his terme and yet continues possession that he hath but a naked possession and no interest nor estate but the estate and interest does remain in the grantee so that he may grant it over And Walmesley said that if the Lessee makes waste the Lessor may have an action of waste against him and there is a casâ— that if a man makes a Lease and the Lessee waves the possession and a stranger commits waste the Lessor shall have an action of waste against the Lessee but the principall question
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
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
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
not claimed to hold at Will for he hath done contrary for he hath made Copies By all the Iustices if Tenant at will or for years or at sufferance make a Lease for years this is a Disseisin and a Tenant at will doth thereby gaine a Freehold and thereby doth claim a greater Estate then he ought and so it is in this case 2. Admitting him to be Tenant at sufferance the question is if he may grant Copies and if whether they be good and it seems he may for no trespasse lies against him because he is Dominus pro tempore and it is not like a Copy made by an Abator or Disseisor for it hath been adjudged that Copies made by them are void but in this case his act of making Copies agrees with the Custome as in Grisbrooks case If an Administrator sells Goods and paies debts with the money and after he who is Executor proves the Will he shall never avoid this sale for that it was done according to the Will which the Executors were compelled to do So in the 12 H. 6. If a Baily cuts Trees and repaires an ancient Pale this is good and 6 R. 2. if he paies quit-rents it is good Coke He comes in by right and therefore is Tenant at sufferance and like this case is Dyer 35 H. 8.57 Lord Zouches case where Cestuy que use for life the remainder over in taile made a Lease for the terme of the life of the Lessee and dies and the Lessee continues his Estate And the opinions of the Iustices of both Benches were that he is but Tenant at sufferance Popham If a Mannor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet the Copies of Surrender made by such Devisee are good but contrary where new or voluntary Copies are made by him 7 Eliz. and in the Lord Arundells case a Feoffment in fee was made of a Mannor upon condition the Feoffee upon Condition grants voluntary Copies those are good Atkins on the contrary And he made a difference between a Tenant at will and a Tenant at sufferance for a Tenant at will shall have aid but so shall not the other as in the 2 H. 4. and a Release to one is good to the other not c. and when he holds over he doth assume an Interest which shall not be thought wrongfull for he is neither Abator nor Disseisor and therefore Dominus and therefore the Copies made by him are good 4 H. 7.3 Tenant at sufferance may justifie for Damage-feasant And all the Iustices held for the Plaintiff and that he that made the Copy was but Tenant at sufferance and not Disseisor and that he had no Fee And the Iudgment was to be entred unlesse the Defendant shewed better matter Trin 28 Eliz. Rot. 329. Smiths Case SMith assumed upon himselfe that when I. N was indebted to I.D. in an Obligation of forty pounds that if I.D. would not implead the said I.N. that then if the money were not paid at such a day that then he viz. the said Smith would pay the money Vpon which Assumpsit after the day I.D. brought his Action on the case and did set forth in his Declaration that he did not implead I.N. and it was moved by Kingsmill that he could not have this Action untill I.N. be dead for so long as he lives I.D. hath time to implead him As if a man promiseth another that he will be named in his Action that he hath against a third person and if the third person payes not the money at such a day then he will he cannot sue unlesse he shewes he hath discharged the other of the Obligation Clench It is implied that he will never implead him Shuttleworth Iustice not so for if hereafter he sue him contrary to his promise then the other who made the Assumpsit shall have his Action on the case and recover to the value of the sunâ—m in the Bond. And after the case was moved again and the Plaintiff brought the Obligation in Court and thereupon the Obligation was entred so that now the Plaintiff could not implead I. N in posterum for which Iudgment was entred for the Plaintiff 29 Eliz. Cosens Case COsen the Father had issue three Sons John George and Thomas John the eldest died in the life-time of his Father his Wife Enseint with a Daughter the Father makes a Devise in these words That if it shall please God to take to his mercy my Son Richard before he shall have issue of his body so that my Lands shall descend to my Son George before he shall be of the age of one and twenty years then my Overseers shall haue my Land untill George come to the age of one and twenty years If Richard who is yet living had an Estate in taile by these words was the question And all the Iustices agreed that it was a plain implication to make an Estate-taile in Richard the second Son 13 H. 7.17 29 Eliz. in C. B. Warrens Case WIlliam Warren brought an Action of Debt for forty pounds and in his Declaration confessed satisfaction of twenty pounds and hereupon a Writ of Error was brought in the Kings Bench and the Iudgment reversed For by his Declaration he had abated his owne Writ and he ought to have Iudgment according to his Writ and not to his Count. And Error was brought upon the Outlawry for if the first Record was reversed the Outlawry thereupon is reversed 4 and 5 Phil. Mar. BEnlowes Serieant moved this case a man seised of Lands and Teâ—ements in London devises them by these words I will and bequeath unto my Wife Alice my livelyhood in London for terme of her life By this Will the lands in London passe to the Wife by this word Livelyhood Nota for Brook Iustice said that it was in ancient time used in divers places of this Realm and had been taken for an Inheritance To which Dyer agreed Case of Slander BRook said that if a man speak many slanderous words of another he who is slandred may have an Action on the case for any one of these words and may omit the others But if a man write many slanderous things of another in a Letter to a friend an action upon the case will not lye for it shall not be intended that it is done to the intent to have it published Mich. 1 and 2 Eliz. N. Arch-bishop of York and I.B. Executors of the last Will and Testament of Thomas Duke of Norfolk did bring a Writ of Ravishment de Guard and then he was deprived by his own consent The question is if the Writ shall abate Benlowes It shall abate for if a Dean and Parson of a Church bring an Action for such a Custome and then resigne the Writ shall abate because it is their own Act. Dyer The Writ shall not abate for the Action is not brought in their own persons but in their Testators and
therefore the Action shall continue And if a man be outlawed he may bring an Action as Executor and the Writ shall not abate Browne If I make I.S. my Attorney and he the Warrant of Attorney still continuing is made a Knight yet is not the Warrant of Attorney determined although the word Knight which is now part of his name be not in the Warrant therefore in this case the Writ is good Mich. 7 Eliz. NOte it was said by Browne that if H. does let the Cite of his Mannor with all his Lands to the said Mannor appurtenant hereby all the Demesne lands do passe but if it were with all the Lands appertaining to the said Cite nothing passeth but the Mannor-place Pasch 6 Eliz. A Man seised of the Mannor of Dale doth let the same with all the Members and Appurtenances to the same to have and to hold all the members of the said Mannor to the Lessee for terme of years Walsh and Weston were of opinion that this was a Lease for years of the Mannor onely and that the limitation of the word Members being after the Habendum was void But Dyer and Browne were of the contrary opinion And Browne said that when the Habendum is used by way of limitation it shall not be void As if he let his Mannor of Dale to have and to hold one acre parcell thereof for a terme of years the Lease is void for all but if there had been no Habendum but the Lease for years had been limited in the Premisses of the Lease that is good enough And if the Lease had been Habendum every part thereof that had been a good Lease of the Mannor for all the parts comprehend all the Mannor And Dyer said that the word Members shall be taken for the Townes and Hamblets wherein the Mannor hath Iurisdiction Note it was said by Dyer that if partition be made by the Sheriff although the Writ be not returned yet it is good enough and none of the parties shall except against it and so was the better opinion concerning the Estate of Culpeper and Navall in the County of Kent Sutton brought a Writ of Ravishment of a Ward against Robinson wherein it was resolved by Dyer Carus Weston and Benlowes That if the Tenant enfeoff his Lord and others all the Seigniory is extinct also if the Tenant does infeoff the Lord but of a Moyety yet is all the Seigniory extinct And Dyer said that if the Tenant does infeoff the Lord and a stranger to the use of another and his Heires and makes Livery to the stranger this is no extinguishment of the Seigniory but if the Livery were made to the Lord it is otherwise and yet is the possession instantly carried away to the stranger by the Statute of 2 H. 7.13 A man seised of lands devises the same to his Wife to dispose and imploy them for her self and her Son according to her will and pleasure Dyer Weston and Walson held that the Wife had a Fee-simple by the Intendment of the Will and the Estate is conditionall for ea intentione will make a Condition in a Devise but not in Grant vide Dyer 2â— 6 A woman Tenant in taile makes a Lease for one and thirty years and after takes a Husband who have issue the Husband being Tenant by the Curtesie surrenders the Heirs doth oust the Lessee and the Lessee brings an Ejectment And it was held that the Surrender was good and that the Privity was sufficient Mich. 40 Eliz. IN an Action of the Case for calling one Bastard Dyer and Walsh said an Action would lye but Browne on the contrary because it shall be tried in the Spirituall Court And Dyer said That at Barwick Assises a Formedon in the Discender was brought and one said that his Father by whom he claimed was a Bastard and thereupon he brought an Action against him for those words and recovered Catlin said That if Lands be given to a man and to the Heires he shall engender on the body of an English woman and he marries a French woman and she dies and then he marries an English woman that now this is a good Estate in special taile Pasch 7 Eliz. THe Prior and Monks of the Charter-house before the dissolution made a Lease for foure years reserving the ancient rent of twenty five Quarters of Wheat per annum and then the house was surrendered into the hands of King Henry the eighth and then the Lord Chancellor did let the said rent of twenty five Quarters of Wheat to I.S. for foure and twenty years And it came into question between I.S. and the Termor if this was warranted by the 27 H 8.28 Harper and Portrell it is not for the Statute is that they may make Leases of any Mannors Lands Tenements and Hereditaments for one and twenty years c. and this Wheat is neither Land Tenement nor Hereditament but a Chattell and shall be demanded in an Action of debt But the opinion of all the Court was that the Lease was good and they did agree that it was directly within the word Hereditaments for it may discend or escheat and the wife shall be endowed thereof Also upon a Lease of Corne a Rent may be referved for a man may reserve a Rent upon a Lease of a Rent and the Rent is not parcell of the Reversion but onely incident thereunto and the Lessor hath the same inheritance therein as he hath in the Reversion Trin. 7 Eliz. AN assurance was made to a woman to the intent it should be for her Ioynture but it was not so expressed in the Deed. And the opinion of the Court was that it might be averred that it was for a Ioynture and that such averment was not traversable and so was it in the case between the Queen and Dame Beaumont Winter brought an Action of the Case against Barnam for these words viz. Thou Murtherer Dyer and Walsh said that the Action would lye for there are some words that cannot be qualified as Murtherer Theef Extortioner false Knave and in such Case an Action will lye but contrary where such words are spoken in a jesting way Note by Dyer that the Lord Fitz-James late Lord chief Iustice of England did devise his land to Nicholas Fitz-James in taile with divers remainders over and in the same devise he devised divers Iewels and peeces of Plate viz. the use of them to the said Nicholas Fitz-James and the Heires Males of his body In this case it was the opinion of the Court that the said Nicholas had no property in the said plate but onely the use and occupation And the same Law where the Devise was that his Wife should inhabit in one of his houses which he had for terme of years during her life because the Wife takes no interest in the terme but onely an occupation and usage out of which the Executors cannot eject her during her life but Walsh held the contrary Hil. 8 Eliz. IF a Bishop
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
expounded as they are commonly taken and not to go to any strict construction of the words as Heirs in the Latine is used also for goods by the Civill Law but we use it only for lands and so Libra in Latine signifies a Weight and yet if I am bound in Vigint Libris if I forfeit my Bond I must pay money and not Lead or the like And so the word Puer is somtimes taken for a servant Claudite jam rivos pueri c. and the same reason that it may be intended for a Daughter may be for a Servant also Gawdy I suppose the Son shall have it and not the Daughter for although Pueri was taken for Male and Female yet now it is taken for Male in any Modern Author but to omit curiosity of words we ought to consider rather the intent of the parties and there are many circumstances to prove that he intended this to his Son and not to his Daughter for he made it for setling his Inheritance and it shall not be supposed that he intended his Daughter should have it Also where the case may be taken two waies the most usuall shall be intended as in case of a reservation of a Rent at Michaelmas that shall be intended at the chiefest Feast also in this case it shall be intended that he would advance the most worthy of his blood and therefore to that purpose the conveyance shall be expounded for if there be two I. S. and I give land to I.S. it shall be intended to my next Neighbour but if one be my Cosin although he dwells forty miles from me yet he shal have the land And to this Southcote accorded 31 Eliz. in B. R. Hone against Clerk A Woman Lessee for life takes Husband who by Indenture makes a Feoffment of the land to I.S. for these words Sciant per Servantes Richardum How Katherin uxor ejus dedisse I.S. unum messuagium habendum praedict I.S. heredibus suis ad solum opus usum of the said I.S. and his Heirs during the life of Katherine The question was if this was a forfeiture because the wife was Tenant for life and the Attorney argued that it was for the words Pro termino vitae Katherin are referred to the use only and not to the estate for by these words habendum to him and his Heirs the estate is limited and therefore it is a forfeiture but after comes the limitation of the use ad usum I.S. and his Heirs during the life of the woman and after the death of the woman the use remaines in the Feoffor and he cited the Lord Sturtons case in the beginning of the Queens Raign The Lord Sturton gave land to Clerk and his Heirs to the use of Clerk and the Heirs of his body and adjudged that it was not an estate in taile for the limitation of the estate was before in the Premises Coke on the contrary and said that those words For life of the wife are to be referred to the limitation of the Estate for if a double sense be in words such sense shall be taken as shall avoid all wrong and therefore it shall not be so expounded as that the Grant shall not take effect and that a forfeiture shall ensue 4 Ed. 2. and see a notable case for exposition of words and for relation of words and sentences 34 Ed. 3. Avowry 58.28 H. 8. Dyer Gawdy It is a forfeiture Clench said he would advise but afterwards it was adjudged a forfeiture for as Wray said the estate given was forfeit Mich. 36 37 Eliz. Bagnall against Porter in B. R. Rot. 353. A Man by Indenture bargains and sells his land and if the Bargainor pay 100 l. at such a day that then he shall be seised to the use of the Bargainor and his heirs and did assume to make such assurance for the security of the land as should be advised by the Councell of the Bargainor and the Bargainee bound himself in a Recognizance to performe the said Covenants And in debt upon the Recognizance it was shewn that the Bargainor paid the money at the day and had tendred to the Bargainee a Deed in which was comprised an acquittance of payment of the money and also a release of all his right and the Bargainee refused to seale it Coke was of clear opinion that he ought to have sealed it for it is necessary to have the Deed to mention payment of the money for otherwise the Bargainee and his heirs may claim the land for default of payment Gawdy of the same opinion and cited 19 Ed. 4. Popham The case is not so clear for if he had tendered an acquittance only there is no doubt but the Bargainee might refuse to seale it and by the same reason he may refuse when it is joyned to a thing that he is bound not to do viz. to seal the release but at last the matter was referred to Arbitration Hillar 37 Eliz. COke demanded this question A man having two Daughters his Heires does demise his Land to them in Fee What estate had they by this Demise For if a man deviseth Land to his eldest Son it is voyd and he is in by descent That it was holden by the Court that they shall hold by the Devise because that he gives another estate to them then descended for by the descent each of them had a distinct moyety but by the Devise they are Joyn-renants and the survivor shall have all And Fenner sayd If a man had Land in Burrow-English and Guildable Lands and devised all his Land to his two Sons and dyes both of them shall take joyntly and the younger shall not have a distinct moiety in the Burrow-English nor the elder in the Guildable Land but they are both Joyn-tenants Pasch 37 Eliz. Carrell against Read in B. R. Rot. 270. A Lease for years was made of divers Fenny grounds in Cambridge ss and the Lessee covenanted to defend the ground for being surrounded with water and to drain the water out of other lands that were demised to him in the said County And upon an Action of Covenant for not performing the Defendant pleaded that the Plaintiff had entred in the land demised And adjudged no plea by the Court because the Covenant was not in respect that the Lessee should enjoy the land nor was it a Covenant abhering to the land but to a collaterall thing but if it had been in respect of enjoying the land there it is a good plea to say that the Plaintiff had entred but where the thing to be done is collaterall it is otherwise and also if he did plead such plea yet it is not a bar unlesse he holds him out of possession Coke lib. 3.221 4 Ed. 3.29 the Lord shall not have a Cessavit after entry in parcel 10 Ed. 4.11.35 H. 6. Bar 162.19 Ed. 4.2 Trin. 37 Eliz. in B. R. Rot. 1076. Dogrell against Perks IN an Action of Covenant The Defendant pleaded
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-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
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
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
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 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
make a Lease for years the second of May and the Dean and Chapter confirme it the first of May this is a good Lease after the Bishops death by Catlin and Southcote Wray How can a Lease be confirmed before it be made Catlin and Southcote The assent before is a good confirmation after Hil. 40 Eliz. AN Obligation wanted these words In cujus rei Testimonium and yet adjudged to be good 7 H. 7.14 Dyer 19 A. It was said by Catlin in the Star Chamber that if an Infant being a Feme Covert or other Infant does levy a Fine by grant and render to her or him in taile or for life and the Husband dye the Wife shall not have a Writ of Error because she is Tenant of the land and she cannot have a Writ of Error against her selfe so that she is without remedy so in the case of the other Infant Cardell Master of the Rolls in the case between Stinkley and Chamberlain said that when Executors had Goods of their Testator to dispose of to pious uses they cannot forfeit them for that they have them not to their own use but their power is subject to the controlement of the Ordinary and the Ordinary may make distribution of them to pious uses And it was said at the Bar that the Ordinary might make the Executors account before him and to punish them according to the Law of the Church if they spoile the Goods but cannot compell them to imploy them to pious uses Hil. 28 Eliz. IN an Action of Slander the words were Thou art an arrant Whore and hadst the French Pox. It was moved in Arrest of Iudgment that the words were not actionable because part of them relate to the time past but by the Court adjudged that the action is well brought because it is a discredit to the woman and thereby others will shun her company Trin. 31 Eliz. Inter Winter and Loveday IN this Case which was put by Coke it was agreed that a stranger as Cornwall in this Case was could not tender the money to be paid upon the Mortgage for it ought to be one who hath interest in the land and so was it in the 28 H. 8. between Whaydon and Ashford where the Mother ought to have made the tender for her Son within age and because it did not appear within the Verdict what age the Infant was whether he was of the age of fourteen years or more so that his Mother could be Guardian to him by reason of his Nurture or not It was awarded that she could not make a loyall tender In an Assumpsit for a hundred pounds the case was That the Defendant in consideration of a French Crown given him by the Plaintiff did assume and promise that if he did not such an act before such a time that then c. It was moved by Godfrey that the Plaintiff can onely recover so much as he is damnified by the French Crown and the like case was before the Chancellor where a Gentlewoman took the death of her Husband so heavily that she said she would never marry againe and her Son comforted her and said God will provide a new Husband and said that he would give her ten pounds to pay a hundred when she should marry which money she accepted of and then the Son brought an Assumpsit for the hundred pounds within half a year after she married And the matter was brought into the Chancery And the Master of the Rolls awarded ten pounds onely and said he would give never a penny more because it was unreasonable to bar a Gentlewoman from marriage The Lord Rich was seised of Hadley Park and of all the Tythes thereof and payed for the Tythes but one Buck in the Summer and a Doe in the Winter for thirty years past The Park was disparked and turned into arrable land and the Parson would not receive this Fee Buck and Doe but would have tythe Corne and thereupon brought him into the Spirituall Court and he brought a Prohibition And Carus and Catlin said that he need not pay other Tythes but Buck and Doe for although they be not tythable yet may they be paid by composition and he may not take them but they are to be delivered to him and in like manner Partridges and Pheasants in a Garden are not tythable yet may they be paid in lieu of Tythes and shall be brought dead to the Parson and although there be no Park yet may he give a Buck out of another Park and perhaps it may be made a Park agen Mich. 13 and 14 Eliz. NOte it was said by Dyer that an Adminiscrator durante Minoritate cannot bring an Action of debt for he is but as a Servant or Bailiff in such cases A Devise was made to the Major Chamberlaine and Governors of the Hospitall of Saint Bartholmews whereas they were Incorporate by another name yet the Devise held good by Dyer Weston and Manwood for it shall be taken according to the intent of the Devisor And Weston said that a Devise to A.B. a mans eldest Son is good although his name be not B. because the other words do make a sufficient certainty It was said That by the Grant Panagium Hoggs may eat the grasse but if a man grant his Acrons the Grantee must gather them and where Panagium is granted the Grantee may put in his Hoggs into the place granted If Tenant for years hold over his terme he is Tenant at sufferance and his descent shall not take away entrie But if Tenant for terme of anothers life holds over his terme he is an Intruder and his descent shall take away entrie Quod fuit concessum per Dyer A Court-Baron may be holden at any place within the Mannor but not out of the Mannor and so a Leete may be held in any place within the Liberty and Franchise and although no Court hath time out of mind been holden within the Mannor yet it is not thereby lost for it is incident to a Mannor of common right Coke L. 4.26.6.27 A. Mich. 14 and 15 Eliz. AN account was brought by Tottenham against Bedingfeild who pleaded Ne unques son Baily pur account render Gawdy prayed the opinion of the Court if the Action would lye And the Case was thus The Plaintiff had a Lease of a Parsonage and the Defendant not being Lessee nor claiming any interest took the Tythes being set forth and carried them away If the Lessor may have an account against such Trespassor was the question Manwood Iustice An Account will not lye because there is no privity and wrongs are alwaies without privity yet I will grant that if H. receive my Rents I may have an account against him for my assent to have him receive it makes a privity and when he hath received the Rent he hath not committed any wrong against me because it is not my money till it is paid and therefore in this case I may resort to my Tenant and compell him
was no apparance unlesse there were a Record But the Case in Court was ut supra Hil. 30. Eliz. IN an Ejectment by Dorothy Michell against Edmund Dunton the Case was A woman makes a Lease for years rendring Rent with a Covenant that the Lessee should repaire the house with other Covenants and then devised the same lands to the same Lessee for divers years more yeilding the like rent and under such Covenants as were in the first Lease the Remainder over in fee and dies and then the first Lease for years does expire and the Lessee continues in by force of the second Lease by vesture of the devise and repaires not the houses so that if the first Lease had been in being he had broke the Covenant If this shall be such condition as he in the remainder may enter was the question Shuttleworth It is a Condition for he cannot have a Covenant and then it shall be intended that iâ— is conditionall But by all the Court There appears no such intent for it appears that he holds under like Covenants Anderson The nature of a Covenant is to have an Action but not an entry and therefore there shall be no entry Shuttleworth To what end then serves these words under like Covenants Periam They are void And at last it was resolved by all the Iustices that the Will expressing that the first Lessee should have the Land observing the first Covenants it shall not be now taken to be a Condition by any intent that may be collected out of the Will for a Covenant and Condition are of severall natures the one giving Action the other entry and here the intent of the Will was that although the Covenants were not performed yet the Lessee should not forfeit his terme but is onely bound to such paine as he was at the beginning and that was to render damages in an Action of Covenant And Iudgment was given that the Plaintiff should be barred Mich 29 and 30 Eliz. Rot. 2449. THe Earle of Kent brought an Action of Debt upon a Bond against William Bryan which was indorsed with a Condition That if the Defendant did permit the Plaintiff his Executors or Assignes not onely to thresh Corn in the Defendants Barn but also to carry it away from time to time and at all times hereafter convenient with free egresse and regresse or else to pay eight pounds upon request c. that then c. And in truth the Defendant permitted the Corn to lye there two years in which time the Mise and Rats had devoured a great part of it and then the Defendant thresht it and the Earle therefore brought this Action And upon Demur it seemed to Walmsley that there was no forfeiture of the Bond because the Earl took not the Corn away in convenient time for convenient time is such as shall prejudice no person Quod fuit negatum per Justitiar and here is great prejudice to the Detendant because the Plaintiff did not carry away the Corn And he put many cases where things ought to be done in convenient time as in the 21 Ed. 4. where an Arbitrement ought to be performed in convenient time But the opinion of the Court was that he might come in covenient time although he comes long after and the words are not within convenient time Windham said That if the words had been within convenient time it would have made a difference Anderson If the words of the Condition had been that he should suffer the Plaintiff in time convenient to come and thresh and take away his Corn then perhaps he ought to send within a year according to Walmsleys saying but the words here are at all convenient times and that day that the Servant came was a convenient day to thresh and carry away and the words At all convenient times shall be construed that at any time when it pleaseth the Earl he may come unlesse it be night or Sabboth day and if the word convenient had not been mentioned then by the words from time to time and at all times after then the Earl may come at any time either in the day or night and that a hundred years after as he pleaseth and then the word convenient does restrain him that he cannot come but in the working daies but does not restrain any time in which he shall come but onely in conveniency of time which is at times of labouring and watching And so was the opinion of the Court ut supra An Action of Debt was brought upon a Lease for years the Defendant pleaded Nihil debet per patriam and did intend to give in evidence an entry of the Plaintiff before any Rent behind And by the Court he could not do it for it is contrary to the issue Hil. 30 Eliz. Rot. 904. Between Spittle and Davis IN a Replevin the case was One Turk seised of lands in fee devised parcell thereof to his eldest Son in taile and the other parcell to his youngest Son in fee. Provided and his intent was that if any of his Sons or any of their Issues do alien or demise any of the said lands before any of them comes to the age of thirty years that then the other shall have the Estate and does not limit what Estate and then one of the Sons makes a Lease for years before such age whereupon the other enters and before he comes to the age of thirty years he aliens that part into which he made entry and the other brother being the eldest enters and makes a Lease to Spittle the Plaintiff for three years and Davies by commandment of the younger brother enters and takes the house Damage-feasant and Spittle brought a Replevin And upon Demur it seemed to the Court that this was a limitation and by vertue of the Will the Estate devised to them untill they aliened and upon the alienation to go to the other upon such alienation the land is discharged of all limitations for otherwise the land upon one alienation shall go to one and upon another alienation shall go back again and so to and fro ad infinitum vide Dyer 14. 29. And afterwards all the Iudges agreed that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the Will And Iudgment was given accordingly Trin. 27 Eliz. Rot. 190. Carter against Lowe IN an Ejectment the Case was A Termor devised his terme to I.S. and made his Wife Executrix and died the Woman enters and proves the Will and takes Husband who takes a Lease of the Lessor and after the Devisee enters and grants all his Estate to the Husband and wife and herein two questions were moved 1. If by this acceptance of the new Lease by the Husband the term which the woman had to another use viz. to the use of the Testator shall be deemed a surrender And the opinion of the Court was clearly without argument that it
before the Inrolement land passeth to the Bargainee and the Bargainee hath a Freehold in him before the Inrolement and whereof his wife shall be endowed and if the Bargainor levies a Fine or acknowledge of Statute the Bargainee shall avoid them and deased the case of Morgan cited by the other side and cited the case of 6 Ed 6. where were two Ioynt-tenants and one of them bargained and sold his Moyety and then the other Ioyntenant died and then the Deed was inrolled there nothing passed but a Moyety but it seems in that case that by the Bargain and Sale the Ioynture is severed before the Inrolement so that there is no Survivorship but the Book speaks not of it and if a Bargainee be of lands held of the King without license of a alienation there the forfeiture to the King shall relate to the first delivery of the Deed. Warberton contra Before the Inrolement there is but a commencement of the Bargain and before all circumstances in the Deed mentioned are performed it is no Bargain and I hold the Deed shall have relation to the delivery to prevent all Charges Contracts but as to strangers it shall not have such relation If Tenant for life bargains and sells his land to another and his Heirs and then makes a Feoffment in fee to another before inrolement this is no forfeiture Anderson A release made to a Bargainee before inrolement is void then if this Scire facias be well brought no Act of the Bargainee shall avoid it Walmsley If there be a Bargainee and before the Inrolement the Bargainor enfeoffs him he is in by the Feoffment and not by the Bargain which proves that no estate is really in the Bargainee before Inrolement Kingsmill The reason of that is because it is out of the Statute for the Bargain and Sale was onely delivered and he said that the wife of the Bargainee in such case shall be indowed But the Court denied that and all agreed that the wife of the Bargainee before Inrolement shall not be indowed Kingsmill said that it was a usuall course in a Recovery to make the Bargainee Tenant of the Precipe And it was said by all the Iustices that if Tenant for life be impleaded the Bargainee of the Reversion after Inrolement shal be received and yet if hanging the Writ he purchase the Reversion he shall not And after many arguments it was adjudged that the Scire facias was not well awarded And Iudgment given for the Plaintiff 37 Eliz. in C. B. Day against Austin IN a Trespasse the Defendant justified the taking of a Furnace fixt to the earth because the Sheriff upon an intent sold it to him And by the Court it was held a good discharge for if a stranger takes my Horse and sells him a Trespasse will not lye against the Vendee but a Detinue But if one sells my Horse and a stranger takes him he is a Trespassor Walmesley and Beaumond Although such Furnace be fixed by the Termor yet he may take it away within the term but the Sheriff cannot attach it and the Termor may pull down a Wall made by him and it is not waste And at another day the case was recited to be thus The Lessee made a Furnace for the use of a Dyer and fixed it to the wall of his house and the Lessee being condemned in debt the Sheriff came to the Furnace and put his hands upon it and delivered it to the Defendant and the Lessee brought a Trespasse Glanvill A Furnace may be delivered in execution and the house never the worse but otherwise of the doors because the Lessee cannot be without them 42 Ed. 3.6 it is not waste to take away a Furnace 21 H. 6.26 said there that the Heir shall have such Furnace but this does not prove that it is not a Chattell but the cause wherefore the Heir shall have it it is because it is annext to the land as in the case of writings which are meer Chattels Beaumound It is doubly fixt to the land and to the wall and it is clear that the Sheriff cannot take it from the wall Dyer The diversity is when the Furnace is fixt to the middle of the house and when to the wall for the Termor may take it from the middle of the house but not from the wall for the wall is worse for taking it away and therefore it is waste And to this Owen agreed Pasch 35 Eliz. in B. R. Rotheram against Crawley Rot. 332. IN debt upon a Bond the case was Divers questions were made between the Plaintiff Lord and the Defendant Tenant concerning Relief whereupon they referred themselves to the Arbitrement of I.S. who did award that the Plaintiff should make a Release to the Defendant which was done of all Actions Duties and Amercements and then upon this Action brought by the Plaintiff for a collatterall thing the Release was pleaded in Bar. Coke Attorney The Plaintiff shall not be barred by this Release for Deeds ought to be expounded according to the intent of the parties and the intent of the party was to release no Duty but the Relief which was only in question this word Duties being interposed between Reliefs and Amercements shall be intended Duties of such nature as Reliefs and Amercements and no otherwise as it is in Dyer 23 Eliz. A man grants and to farm lets such land with wood this is no grant of the wood and yet there are words sufficient to passe the wood but being conjoyned with the words And to farm let it shall be expounded that it was not intended to have it be an absolute Grant But adjudged that it was a good Bar and Iudgment was given accordingly Hil. 37 Eliz. Goodway against Michell GOodway brought a trespasse against divers persons Quare clausum fregerunt duas Ramas perches of hedge fregerunt The Defendant by way of justification said that the place was in the Parish of Hadnam in Ely and that all the Parishioners time out of mind have used to have passage through the said Close in Rogation week to make their Perambulation of the Parish because that the Plaintiff hindred the Defendants as Parishioners Ramas sepes fregerunt whereupon the Plaintiff demurred Sperling The justification is not good for although Parishioners may justifie the having a way over my ground yet they cannot break the Hedges Also they have broken two Perches and two Gates which is excessive for a foot-path 15 H. 9.10.6 A Commoner cannot break all the hedge upon the land where he hath Common Savile cont All the Parishioners ought to go their Perambulation and being a great number they may well enough justifie for they are not compelled to keep the foot-path 6 Ed. 2. F.N.B. 185. b. Parishioners may pull down a wall that hinders them in their way to the Church and in the book of Entries there is a President where the Vicar and Parishiones did justifie an entry for
dissolved Williams But that is saved by the 3â— H. 8 for Annuities are exprest in the saving Anderson But this is an Annuity or Rent with which the land is charged Beaumond If it be any thing wherewith the land is charged it is saved but the person is only charged with this Annuity Walmsley But the 21 H. 7. is that an Annuity out of a Parsonage is not a meer personall charge but chargeth the Parson only in respect of the land And the Court would consider on the case Pasch 38 Eliz. in B. R. The Case of the Dean and Chapter of Norwich THe Case was A Church in which there had been a Parson and a Vicar time out of mind and the Parson used to have the great Tythes and the Vicar the small and for the space of forty years last past it was proved that the Parson had Tythes paid him out of a feild of twenty acres of Corne and now the feild is sowed with Saffron and the Vicar sued for the Tythes of Saffron in the Court Christian and the Parson had a Prohibition Coke I conceive the Parson shall have the Tythes for by the Statute of 2 H. 6. it is enacted that Tythes shall be paid as hath been used the last forty years and this hath been alwaies tythable to the Parson and although the ground be otherwise imployed yet the Parson shall have the Tythes and so was it in Norfolk in the Case of a Park where the Parson proscribed Pro modo decimandi to be paid three shillings fours pence for all Tythes rising out of the said Park and although the Park was after converted to arable yet no other Tythes shall be paid Popham It hath been adjudged otherwise in Wroths Case of the Inner Temple in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tythes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparkt Tythes shall be paid for Tythes are not due for Venison and therefore they are not Tythes in Specie And I conceive that Tythes of Saffron-heads shall be comprehended under small Tythes and although the Tythes of this Feild have been paid to the Parson yet it being converted to another use whereof no grosse Tythes do come the Vicar shall have the tythes and so if arable land be converted into an Orchard the Wicar shall have tythe of the Apples and so if the Orchard be changed to arable the Parson shall have tythes Quod Fenner concessit 36 Eliz. Higham against Deff IN a Trespasse the Case was That a Vicaridge by composition was indowed of the third part Omnium Bladorum decimarum of the Mannor of D. If he shall have tythes of the Freeholders of the Mannor was the question Johnson He shall not have them for a Mannor consisteth of two things viz. of Demesns and Services the Freeholders are neither parcel of the Demesnes nor the Services and therefore no parcell of the Mannor and this is proved in 12 Ass 40. a Rent-charge was granted out of a Mannor the Tenancy escheats it shall not be charged with the Rent Tanfeild contra For this word Mannor does extend to the Precincts of the Mannor and not to the Demesnes and Services onely and therefore if a Venire facias be awarded De viceneto Manerii de D. the Freeholders shall be returned also a survey of a Mannor shall be as well of the Freehold lands as of the Demesnes and if the King grants a Leet within the Mannor of D. all the Freeholders are bound to appear Fenner Grants ought not to be restrained to their strict words but are to be construed according to the intent of the parties Trin. 38 Eliz. in B. R. Ewer against Henden Rot. 339. IN an Ejectment the Iury found that I.S. being seised of a Capitall Messuage in the County of Oxford and also of a house and land in Walter in the County of Hartford makes a Lease for years of his house and land in the County of Hartford and then by Will does demise his house in the County of Oxon Together with all other his Lands Meadowes Pastures with all and singular their Appurtenances in Walter in the County of Hartford to John Ewer and whether the house in Walter in the County of Hartford does passe or not was the question Tanfeild The houses shall passe for if a man builds a house upon Black acre and makes a Feoffment of the acre the house shall passe and so if a man does devise una jugata terrae of Copyhold Land the house of the Copyhold does passe also for so is the common phrase in the Country and so if a man be rated in a 100 l. subsidy that does include houses and by the grant of a Tenement the house passeth but if a man demand a house in a Precipe there the house ought to be named Whistler contra It is true that if a man generally does devise his Land the houses passe but in this case the Devisee hath particularized his Land his Meadow and his Pasture and if he intended to have passed his houses he would have mentioned them as well as his Lande Fenner I am of the same opinion for this speciall numbring of particulars does exclude the generall intendment and if the Devisor had a Wood there that would dot passe by these words Popham contra For if a man sells all his Lands in D. his houses and woods passe by this word Lands and so was it agreed in a case which was referred to Dyer and Wray chief Justice and there reason was because that a Warrant of Attorney in a Precipe of a House Woods and Land is onely of Land which proves that land does comprehend all of them and therefore I conceive if a man does devise or bargain and sell all his lands in D. the Rents there shall passe for they were issuing out of the land But if a man be seised of three houses and three acres and he deviseth all his land in D. and one of his houses the other houses will not passe for his expresse meaning is apparant but here the words are in generall as to the lands in Walter and therefore the houses do passe But afterwards it was adjudged that the house did not passe for by the particular mentioning of all his Lands Meadowes and Pastures the house is excluded Pasch 4 Eliz. Hunt against King IN a Writ of Error upon a Iudgment given in the Common Pleas in a Formedon brought there the Case was Tenant in tail enfeoffs his Son and then disseiseth his Son and levies a Fine to a stranger and before the Proclamations passe the Son enters and makes a Feoffment to a stranger the Father dies and the Son dies and the Issue brings a Formedon The question was Whether by the entry of the Son the Fine was so defeated
that the Estate-tail was not barred Dyer The Estate tail is barred and made a difference where the Fine is defeated by entry by reason of the Estate-tail and where it is defeated by entry by reason of another estate-tail as in 40 Eliz. Tenant in tail discontinues and disseiseth the Discontinuee and levies a Fine to a stranger and retakes an Estate in Fee before the Proclamations passe the Discontinuee enters and then the Tenant in tail dies seised and adjudged that the Issue is not remitted for the Statute 32 H. 8. saies That a Fine levied of lands any way intailed by the party that levies the Fine shall bind him and so it is not materiall whether he were seised by force of the estate-Estate-tail or by reason of another Estate or whether he have no Estate And all the Iustices were of opinion that the Estate was barred for although the discontinue had avoided the Fine by the possession yet the Estate-tail remains concluded and the same shall not enter by force of the Estate-tail but by force of the Fee which he had by discontinuance Popham Avoidance of a Fine at this day differs much from avoidance of a Fine at the Common Law for it appears by the 16 Ed 3. that if a Fine at the Common Law be defeated by one who hath right it is defeated against all but at this day the Law is contrary for if a man be disseised and the Disseisor die seised his Heir within age and he is disseised by a stranger who levies a Fine and then five years passe the Heire shall avoid this by his nonage yet the first Disseisee is bound for ever for the Infant shall not avoid the Fine against all but only to restore the possession And therefore it was adjudged in the Lord Sturtons Case 24 Eliz. where Lands were given to him and his Wife and the Heires of him and he died and his Issue entred and levied a Fine to a stranger and before the Proclamations passed the Mother enters it was adjudged that the Issue was barred for the Wife shall not avoid this but for her own Estate And so if a stranger enters to the use of him who hath right this shall not avoid the Fine Fenner did agree to this and said that it had been so adjudged but all the Iustices agreed that the Estate-taile being barred the entry shall go to the benefit of him who hath most right to the possession and that is the discontinue and therefore the Plaintiff in the Formedon hath good Title to the Land but onely to the Fee and not to the Intaile for that is barred by the Fine 28 Eliz. in C. B. Rot. 2130. Gibson against Mutess IN a Replevin the Case was John Winchfeild was seised of Lands in Fee and by his Will did devise all his Lands and Tenements to Anthony Winchfeild and his Heires and before his death made a Deed of Feoffment of the same Lands and when he sealed the Feoffment he asked If this Feoffment will not hurt this last Will if it will not I will seal it And then he sealed it and made a Letter of Attorney to make Livery in any of the said Lands the Attorney made Livery but not of the Lands which were in question and then the Testator died And the question was if the Devisee or Heire of the Devisor should have the Land And it was said in behalf of the Heire that if the Testator had said It shall not be my Will then it is a Revocation Quod curia concessit But it was the opoinion of the Court that it appears that it was the intent of the Testator that his Will should stand and if it be not a Feoffment it is not a Revocation in Law although that the Attorney made a Livery in part so that the Feoffment was perfect in part yet as concerning the Land in question whereof no Livery was made the Will is good and the Iury found accordingly that the Land does not descend to the Heire Fenner cited a Case of Serjeant Jeffereys where it was adjudged that where one had made his Will and being demanded if he will make his Will doth say he will not that this is no Revocation Sir Wolston Dixy against Alderman Spencer 20 Eliz. in C. B. IN a Writ of Errour brought upon a Iudgement given in an Assize of Fresh-force in London The case was Sir Wolston Dixy brought an Action of Debt for rent arrear against Spencer upon a Lease for years made to him by one Bacchus who afterwards granted the reversion to Dixy and the Tenant attorned and for rent arrear Dixy brought an action c. The Defendant pleaded in Bar that before the Grant made to Dixy the said Bacchus granted it to him by parole according to the custome of London whereupon he demanded Iudgement if c. and the Plea was entred on Record and hanging the suit Dâ—xy brought an assize of fresh force in London and all this matter was here pleaded and it was adjudged a forfeiture of the Land and hereupon Spencer brought a Writ of Errour and assigned this for errour that it was no forfeiture Shuttleworth It is no forfeiture untill a Trial be had whether the reversion be granted or not as in wast the Defendant pleads that the Plaintiff had granted over his estate this is no forfeiture and in the 26 Eliz. in a Quid Juris clamat the Defendant pleaded that he had an estate Tail and when he came to have it tryed he acknowledged he had an estate but for life and that was no forfeiture But the Court said they could remember no such Case Walmesley It was so adjudged and I can shew you the names of the parties Periam Justice If there be such a Case we would doubt of it for there are Authorities to the contrary as the 8 Eliz. and 6 Rich. 2. Anderson If the Defendant in a Trespass prayes in aid of an estranger this is a forfeiture and if it be counter-pleaded it is a forfeiture and the denial alters not the Case Walmesley The Books in 15 Ed. 2. Judgement 237. and 15 Ed. 1. that Iudgement in a Quid Juris clamat shall be given before the forfeiture Andâ—rson In my opinion he may take advantage before Iudgement as well as after if the Plea be upon Record And so was the opinion of the Court. The Dutchess of Suffolks Case Pasch 4 5 Ph. Mary in C. B. IN a Quare impedit against the Bishop of Exeter the Writ was ad respondendum Andrew Stoke Dennisae Franciscae de Suffolk Uxori eâ—uâ— Benlowes demanded Iudgement of the Writ c. because she lost her name of dignity by marriage with a base man as it was adjudged 7 Ed. 6. Dyer 79. where Madam Powes and her husband brought a Writ of Dower and the Writ abated because she called her self Dame Powes whereas she had lost her dignity by marrying with her husband Stanford agreed for Mulier nobilis si
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
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
Writ is grounded upon a recovery by default in a reall action but a waste is a meere personall action And therefore in the 2 H. 4. in a waste against the husband and wife the wife shall not be received also it will not lie in this case because here is no default within the intent of the Statute for the Statute intends to relieve defaults after appearance and therefore all the Iudgment in this Writ is that the recovery was by default and if there was a default in pleading it is a default but not within the Statute Glanvill cont No waste is committed and so the recovery shall not bind for it appears in the 8 Ed. 4. by West That this action was provided instead of a Writ of right and there is no question but a Writ of right will lie here and this Writ is of the same nature And Mr Plowden in his Reading said that this action will lie upon a recovery upon a Writ of waste aswell as in other actions for the recovery is not upon the Inquiry of the Iury but upon default And it is also a reall action 7 Ed. 3. 28 Ed. 3.30 If the husband make default herein the wife shall be received Anderson There is no question but this action lies upon a recovery in waste but if this be a default within the Statute is a doubt for if this should be suffer d it were very mischievous for then contempts shall be favoured which was never the intention of the Statute and therefore it will not lie where there is a default after appearance Walmesley of the same opinion for this case differs much from the Statute of Glocester for this Statute gives remedy to a third person upon default of the particular Tenant and therefore upon this Statute the intent of the partie who makes default is more regarded than the manner of the default and therefore it shall be taken largely But here is default in the party himself and he shall have no favour against his willfull default for every nihil dicit is a confession of it self for thereupon it is supposed that nothing can be said Windham I hold that a Quod ei deforceat will not lie in a Writ of waste for the inquiry of the Iury is the cause of the Iudgment But he agreed that default within the Statute is intended such default that in it self is the cause of the Iudgment but here the Iudgment is given upon contempt and refusall of the party and therefore no favour Perryam This action cannot be compar'd to a writ of right which is grounded upon the right and not on the Iudgment but the form in the Quod ei deforceat is set down in the Statute which ought to be observed and the Statute gives this action upon a default and here is no default for it cannot be a default where the partie appears and hath no day in Court but he doubted much if it lay in awrit of waste because the damages are the principall but as the case is here it will not lie And to prove that a nihil dicit is a confession he cited Pepyss Ease in the Comentaries 438. And at last Iudgment was given that the Writ would not lye Pasch 35 Elizab. James against Portman WIlliam James and Thomas James Ioyntenants for life of a lease made by Portman William James doth assent covenant and agree that Thomas James occupy all the land alone and sow it with his own Corn After the land is sowed Thomas James dyes William James the survivor grants the Corne to Portman who takes it and the Plaintiff as executor to Thomas brought an action of trespass Ewens for the Defendant one Ioyntenant cannot make a Lease to his companion no more than one may infeof the other by reason they have joynt possession 10 Ed. 4.3 2 R. 2. Extinguishment 3. Also the words here are not sufficient to make a Lease but admitting this yet the survivor shall have the corn of that part which belongs to him for by this Lease the Ioynture is severed and then the Survivor shall have that which grows on his part For it two Ioyntenants sowe their land and one of them letts his moytie for years and he who did not let dyes the other shall have the corn as Survivor Pyne cont Although one Ioyntenant cannot inteof another because he cannot make livery because he hath possession before yet may he Release to his companion and so may he make a Lease for years for there is no need of any livery and by the 22 H. 6.43 If one Ioyntenant infeofs another this shall enure by way of confirmation And 14 H. 6.10 One Ioyntenant may put out his companion by this means for he may clayme a Lease from him and then a Release and if it be a good Lease then the Executors shall have it Popham The action is good for one Ioyntenant may make a Lease to the other although he cannot infeof for a Lease is but a contract And 11 H. 6.33 one Ioyntenant commanded the other to occapy all and in a trespass he was compelled to plead this as a Lease and then if one Ioyntenant does sow all and dyes the other shall have the Corne by Survivor and it is not as in case where a man hath an estate determinable upon uncertainty for there his Executors shall have the Corn but in our case the Survivor had contracted with his companion and thereby had bound himself not to meddle with the land and the other bestowed great costs in manuring and sowing the Land and therefore the Executors shall have the Corn. Fenner agreed but doubted whether one Ioyntenant could make a Lease to the other but said that by the contract he had excluded himself from the proffits and by the 39 Ed. 3.27 one Ioyntenant may have an account against the other And he said that if I agree that you shall sow my Land with me you shall gain no interest in the land and yet you shall have the corne And one Ioyntenant may distreyn for himself and as Bayly for the other And the Cause was adjourned and afterwards viz. Hillary 36 Eliz. the case was repeated And Gawdy said That if there be two Ioyntenants and one grants to the other that he may sow the Land yet may the other occupie with him for these words do not transfer any sole interest but if he sayes that he shall occupy all the Land and shall sow it solely this does exclude him from having any interest with him Popham Agreed because this is but a contract and so of a Lease for years Gawdy If one Ioyntenant sayes to the other that he will not occupie the Land with him or that he will not put in his Cattle this does not transfer any interest but that he may occupie with him and so in this case if it had not been said that he should occupy solely Popham of the same opinion for where he sayes he will not occupy
himself to infeof the Obligee of all the Land which he hath by descent of his Father there he may plead that he hath no Land from his Father for all may be Released although the Releasor hath no right but a feofment cannot be made of land which a man hath not Pasch 38 Elizab. Holcombe against Rawlins in B. R. Rot. 401. IN a trespass Quare Clausum fregit with a continuando from the 31 Elizab. to the 36. the Defendant pleaded that J.S. was seised in Fee and made a Lease to him c. The Plaintiff replyed that long time before J.S. was seised he himself was seised untill the said J.S. did disseise him and J.S. being so seised did make the Lease to the Defendant for years whereupon the Plaintiff reentred Tanfield It appears by the Plaintiffs Replication that the Defendant was in under the title of J.S. viz. the Lessee of the Disseisor of the Plaintif and therefore he cannot be a Trespassor to the Plaintiff notwithstanding his regress 34 H. 6 30. 37 H. 6 35. 2 Edw. 4 17. 13 H. 7.15 Atkinson contra At the Common Law the Disseisee being out of possession shall not recover any damages but only against the Disseisor and not against any other that comes to the land afterwards and for this cause the Statute of Glocesteâ— was made But at the Common Law when the Disseisee re-enters he is remitted as if he had not been out of possession at all and he shall have a trespass against the meane occupiers as in the 4 H. 7. A man was restored to his land by Parliament as if he had never been out of possession at all and he shall have a trespass against the occupiers that are in by title aswell as here he had against the Kings Patentee Gâ—wdy If a Disseisor be disseised and the first disseisee enter he shall have a trespass against the second Disseisor And Popham and Fenner agreed but Clench cont But at last adjudged for the Plaintiff vid. Cook 11. Rep. fol. 57. Lyfords Case to the contrary Pasch 37. Eliza. VViseman against Baldwin in B. R. Rot. 341. IN a writ of errour to reverse a judgment given in the Common Pleas the Case was thus Râ—chard Baldwin did demise his land in Taile upon condition that the Devisee should pay to J.S. 20. l. and if he failed of the payment that then the land should remain to J.S. and his heires for ever and whether this be a Condition in Law that the heir shall take advantage of or a limitation of the estate so that J.S. shall take advantage was the Question Gawdy It is a limitation and not a condition as is apparent in Dyer Wilfoâ—ds Case 7.128 and Pewis and Scholasticas Case in the Comentaries and there is great diversity between an estate in Law and a devise in which the intent of the Devisor is to be observed and here if this shall be taken for a condition the intent of the Devisor is defrauded Clench agreed For this should be as a new devise to J.S. and not as a remainder as a devise to a Monk the remainder to J.S. the remainder is not good as a remainder but as a new devise Fenner of the same opinion and said it had been so adjudged in this Court in an Attournies Case of Devonshire and also in Sir Edward Cleeres Case Gawdy The received opinion of all learned Lawyers hath been such as hath been said viz. that to the end the intent of the Devisor should be observed it shall be a limitation Then I put this Case A man deviseth his Land to J.S. upon condition and for non-payment be devises that his Executors shall sell the Land if J.S. faile of the payment it is cleere that the Executors may sell the Land Godfrey I agree because the Executors have nothing devised to them but only an authority given them by the Will to sell Gawdy But when the Executors have sold the Vendee is in by the Devisor and then it is no other than a devise to one in Fee on condition of payment c. and if he fail then to another And the three Iustices agreed but because the Chief Iustice was absent it was adjourned to another day at which time Fenner said that he had spoken with â—…wen one of the Iustices of the Common Pleas who said he never agreed to the Iudgment but in case of a perpetuity And therefore the Iudgment in the Common Pleas was reverst The Earl of Lincolne against Fisher THe Steward of the Leete being in Court did say in Fisher who was resident within the precinct of the Leet that he must be sworn for the Queen to make presentments at the said Court. To which Fisher replyed in saying I ought to be sworn you lie For which Fisher was fined at the Court 20 l. And the Earl who had the Leet brought his action for the same Yelverton The action will not lie for he is not finable for such words for they are no disturbance to the Court nor hindrance of Iustice for this word you lie in ancient speaking is no more than to say you do not say true Gawdy agreed that the action would not lie But Fenner Clench and Popham cont For this is a misdemeanor for which the defendant is finable for every Leet is the Queens Court and a Court of Iustice to which respect and reverence ought to he given and these words are in great contempt to the Court and the authority thereof which is supreme And Posito that he should here say to the Iudge of a Court when he delivered his opinion in any Case Mr. Iudge you lie without question he may be fined and imprisoned and as it is of a Iudge here so is it of a Iudge of any inferiour Court because it is a Court of Iustice And Popham said That if any misdemeaned himself in the Leet in any outragious manner the Steward may commit him And Gawâ—y changed his opinion Wherefore the Plaintiff had judgement to recover Pasch 36. Eliz. Allens Case A Scire facias issued out in the name of the Queen to shew cause why execution of a debt which is come to the Queen by the attainder of J.S. should not be had The Defendant pleaded that the Queen had granted over this debt by the name of a debt which came to her by the attainder of J.S. and all actions demands c. upon which the Plaintiff demurr'd And the question was if the Patentee might sue for this in the name of the Queen without speciall words And two presidents were cited that he may 1 Pasch 30 Eliz. rot 191. in the Exchequer where Greene to whom a debt was due was attainted and the Queen granted over this debt and all actions and demands and a â—câ—re facias was sued for him in the name of the Queen also in the 32 Elâ—z rot 219. Mabb of London was indebted by bond and the debt came to the Qu. by
21. years that is good and the Executor shall have it as in right of his Testator But where a man makes a Lease for years or life the remainder after his death for 40. years to his Executors the Executors shall have it as purchasors for this word remainder divides it from the Testator and makes the Executors purchasors Walmesley Glanvill and Kingsmill cont And their chief reason was from the intent of the parties and their intent was that the Lessee should have an estate during life for it is to him for 89. years if he so long live and because by common intendment he cannot survive those years their intent was that his Executors should have it after his death and that the certainty of the time might be known it was limited for 40. years And W lmsley said that the Administrator could not have this by purchase for when a man takes by purchase he must be named by an apt name of purchase by which he may be known as if there be tenant for life the remainder to the right heirs males of J.S. and J.S. hath issue two sons and the eldest hath issue a daughter and J.S. dies this daughter shall never take any estate because she is not heir male she hath no name of purchase and therefore here the Administrator cannot take by purchase for the Administrator comes in by the ordinary and therefore cannot be an assignee And at last Iudgment was given That the Administrator should hold it as a thing vested in the Intestate Michaelm 41 42 Eliza. VVhite against Gerish in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent The case was this Two persons did joyne in leavying a fine to J. S in Fee â—ur coâ—…ns de droit come ceo c. J.S. by the same Fine renders the Lands to one of the Conusors in taile reserving Rent and further would quod tenementa preâ—…cta remanerent to the other who is the avovee Walmesley The Rent shall passe as if a man grants land for life and also grants quod tenementa predicta remaneâ—unt to another these words Quod tenementa predicta do make a grant of the reversion and also these renders are as severall Fines and so it shall be taken as a grant in Taile rendring Rent and after a grant of the reversion Glanvill accorded Warburton If a man makes a gift in Taile rendring rent the remainder over in Fee the Donor shall have the Rent and not he in the remainder Walmesley That is true in a grant but not in a Fine Anderson If a man makes a gift in Taile rendring rent and at the same instant grants the Reversion and the Deeds are delivered accordingly this shall passe as a reversion And after it was adjudged to be a grant of the reversion and that the rent passeth Crawleys Case IN Replevin the case was thus A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth and if the Rent were determined was the Question Walmsley The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoynd with the possession whereby the Rent it self is carryed to J.S. whereby J.S. hath an absolute estate for his life and the life of the grantees is not materiall as if Rent be granted to two for the life of J.S. if he does not grant over the rent their lives are not materiall And if they grant over and dse the Rent shall not cease but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie otherwise if it were before the Statute of use quod fuit concessum per curiam Pasch 41 Eliz. Shaw against Sherwood Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill and the Bill was thus I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Elizâ—beth Shaw equally to be divided which said sum I acknowledge my self to have received to the use aforesaid and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and Eâ—…zabeth Walmesley Two points are here First if this be a Debt to cestuy que use or to him who gave it Secondly if it be divided so that each of them shall have an Action for 20 l. And as to the first he held that it was a debt to him for whose use the money was delivered and as to the second that they shall have a debt as of several debts by reason of these words equally to be divided Kâ—…gâ—…m Here is no Obligation for the words are not obligatory but onely an acknowledgement of the receipt Glanyâ—ll accorded Walmesley When he acknowledged the receipt to both their uses without question such Receiver is a Debtor And agreed by the Court that admitting it was a Debt that then it shall be a divided Debt and not joynt Quod nota Lane against Cotton IN Debt upon a Bond on condition to pay 20 l. within a month after the Obligee had a son that did or could speak the Lords Pâ—…er in English that he could be understood the Plaintiff pleaded that he had a son qui loqui potuiâ— praecationem Domini uâ—intelligâ— potuerit and the Defendant demurr'd because it was pleaded that he had a son qui loqui potui for that is a secret ability that cannot be known Kingsmill The plea is good and shall be tryed as in case of a Writ of non comâ—…s mentis Glanvill accorded for it may be proved by the testimony of those who have heard him speak and if he ever spoke it it is good evidence that he had ability to speak Walmesley contr Because it is a secret thing it cannot be tryed Kingsmill A man is bound in a Bond to give me 20 l. when the River of Varâ— is novigable it is a good plea to say that the River is navigable without saying that some have navigated upon it Herâ— Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop who had pleaded that the Parishioners were Welshmen and that they could not understand English and that the Clerk he presented could not understand Welsh and the Patron pleaded that the Clerk could speak Welsh and upon Demurr it was adjudged a good issue and that such matter might be tryed Anderson The issue is good and it is at the election of the party to plead quod loqui potuit vel loquutus est And if I am obliged to you to give you a 100 l. when I am able to go to Pauls this may â—e tryed although in facto I never went to Pauls and if I am able I shall pay the money And he cited Broughtons Case where in Maintenance the Defendant pleaded that he
the wife is at large to have the twelve pound and her Dower also But the Court held that she could not have her joynture for by the recovery of the Dower her joynture is barred for the Rent was given her in recompence of her Dower so that it cannot be intended that she shall have Rent Dower also wherefore it was adjudged that her entry on the Land was not good 30 31 Eliz. The King against the Bishop of Canterbury and Hudson Rot. 1832. IN a Quare impedit Hudson the Incumbent did plead that King Edw. the 4th did grant the Rape of Hastings Et bona catalla Fellonum Fugitivorum ategat of all Residents and non-residents within the said Rape to the Earl of Huntington And pleaded that John Ashborne was seized of the Mannor of Ashborne and of the advowson appending to it and held the same of the Earl of Huntington as of his Rape of Hastings and that the said John Ashborn was outlawed during which the Incumbent of the said Church dyed and the Earl presented the said Hudson Shut I conceive this avoydance does not belong to the Earl by reason of this grant for by the same Patent libertie is given to the said Earl his heirs to put himself into possession and of such things as he cannot put himself into possession they will not passe and here this is a thing in action which by these words will not passe 19 H. 6.42 by the grant de Catalla Fellonum obligations do not passe VValmesley Stanford in his prerogative saith that by the words Bona catalla the King shall have the presentation to the Church of him that is outlawed or Attaint and by the same reason he may grant it by such a name and although the party cannot seise such a thing yet it shall passe 39 H. 3.35 Rent for years shall passe by the grant of bona Catalla Periam It will passe by these words for it is an ancient grant for in that time the Patents of the King were not so specially penned as now they are Anderson I conceive the avoydance will not passe by thse words for within this word bona moveables are contained both dead and living and Avoydance is no Chattell nor right of Chattell Quod Peryam negavit c. Mich. 37 38 Eliz. Townsend against VVhales IN an Ejectment the Iury found that J.S. was seized of land in possession and also in reversion for terme of life and made a Devise by these words That his Executors take the profit of all his Lands and tenements Free and Copy for ten years for the payment of his debts and Legacies and after the end of the said ten years that all the aforesaid lands and tenements with their appurtenances should be sold by his Executors or one of them and the silver to be bestowed in the performance of his Will or by the Executors of his Executors or any of them and then one of the Executors dyed within the ten years and the two surviving Executors did grant all aswell in possession as in reversion to House who made a Lease to the Plaintiff And two points were resolved 1. That the Executors may grant the reversion 34 H. 6. for by these words Free and Copy his intent appears that all should be granted 2. That although one of the Executors died yet the other two Executors may sell Anderson If such bevise had been at the Common Law and one Executor had refused the two others could not sell but if one die the survidors may sell the land for there the authority doth survive Which difference the other Iustices agreed to And at another day Anderson said there was difference where the Devise is that Executors should sell his and the money divided between them there if one die the others shall not sell but otherwise here because the money is the performance of his will Walmesley The sale by the two Executors is good for it is said the Executors or any of them c. And Beaumond agreed Wherefore judgment was given for the Plaintiff Note that there were two verdicts in this case and the first only found that the Executors shoull sell after the ten years and that one dyed and the other two did sell within the ten years and the opinion of the Court was that the sale was voyd but in the 39 and 40 Eliz. all the whole will was found and Iudgment given ut supra The Earle of Rutlands Case Roger Earl of Rudand and John Maners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland brought an action on the case against Isabell Countess of Rutland And Declared for divers Iewells and goods c. that came to the hands of John Earl of Rudand as Executor to the said Edward and the said John the 10th of July 29 Eliz. did casually loose them which after came to the hands of the Defendant licet saepius requisita she would not deliver them to the said John in his life time nor to the said Plaintiffs after his death but knowing the goods did belong to the Plaintiffs in D. in the County of Notingham converted them to her proper use And a verdict for the Plaintiff And it was moved often in arrest of Iudgment but all the Iustices agreed that the action of Trover and converversion would lie by the Executors upon the Satute of the 4 Ed. 3. upon a conversion in vita Testatoris and so hath it been adjudged in the Kings Bench and although the Statute mentions onely a Writ of trespass that is only put for example Also they all agreed that the sole cause of action to the Conversion for it there were no conversion they shall be put to their Detinue therefore the great doubt did arise because the day and time of the conversion was not shewed for perhaps it was after the Writ and before the Declaration And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said That all Iustices of the Common Pleas and of Serjeants Inne in Fleet-street besides Peryam Chief Baron were of opinion that Iudgment should be given for the Plaintiffs for that some of them held that the day of the Conversion is not materiall to be shewn and others that of necessity as this case is it shall be intended that the conversion was in the Plaintiffs time wherefore Iudgment was entredfor the Plaintiffs but a Writ of Errour was brought and the Case much debated Michaelm 38 39 Eliz. Carew against Warren in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in antient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland who rendred to Gunter in Fee who devised the reversion to his wife for life the remainder in Fee and dyed And then the Lord of Andover which is an ancient Mannor by an
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS
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