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
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
nupserit ignobili desinit esse nobilis Brookes There is a difference where a noble woman marries a noble man of less noble degree than she is and when she marries one that is not at all noble for in the first case the shall hold the dignity of her second husband but in the last case she shall retain her antient dignity And so it was observed where the Marquis of Dorâ—eâ— had two daughters the elder was married to the Lord Audley and the youngest to a Gentleman and the eldest took place alwayes as wife to a Baron but the youngest kept her place as a Marquisses daughter Dyer I was a Counsel in the Case of the Lady Powes already mentioned and she would by no means lose her dignity and an Herauld was brought into Court that said she had such dignity although it was held clearly on the contrary by our Law by Montague and Hales and the Writ did abate Stanford A noble man loseth his honour by his own act as by attaint and so hath the woman here by taking such husband and the nobility of such woman is lost also by attainder Brookes said That he knew where the sons of a Duke and Marquiz had a trespass brought against them for hunting a Park by the name of Squires and it was good wherefore it was said to Benlows that he must plead to the Writ Pasch 4 5 Ph. Mary in C. B. A Feme sole having the custody of the land and body of an Infant took husband and she and her husband did tender convenient marriage to the Infant which he refused and married himself elsewhere and at his full age entred into the land if it be necessary that both shall joyn in a Writ of forfeiture upon the marriage or that the husband alone shall have it was the question Brown Justice Both shall joyn and so is it ruled in a Book Dyer contr The husband alone shall have this Writ for he may discharge it or release it and by the 5 Ed. 3.14 6. the husband alone may have a Writ of Trespass and if the wife have an advouson and a stranger present the husband alone shall have a Quare impedit and the same Law is where the woman hath a Rent and the husband distreyns and Rescous is made the husband alone shall have a Rescous Prideaux The Wardship of a Ward and Land is a thing real and the Survivor shall have it and not the Executors of the Baron and if an Action be accrued before marriage as if a Bond be made to her before marriage she shall joyn with her husband in the Action upon the Bond but if a right to an Action does accrew after marriage there she shall not joyn as here the right of the husband does not accrew untill marriage for the Action is not in respect of the Wardship but of the tender and refusal and his marriage elsewhere all which do accrew after the Coverture Stanford If a man bring a Quare impedit for an Advowson which he hath in right of his wife and hath Iudgement to recover and dyes the wife shall present and not the Executors of the husband so if he recover in a Trespass the wife shall have execution for the damages Prideaux If a Lease be made to a woman and a Rent reserved â—…mine poenae and she takes husband and the Rent is behind both shall joyn in the Action for the pain Dyer This Action is grounded upon a real Covenant Stanford Damages recovered in a Trespass are not real yet the wife shall have them if the husband dye before Execution Dyer The Trespass is done to the inheritance of the wife and therefore she shall have damages and in 43 Ed. 1. Statham The husband alone brought a ravishment of a Ward for a Ward he had in right of his wife and the Writ held to be good but there it is said that otherwise it is in right of a Ward and if they joyn in a Writ of ravishment of Ward and recover and the husband dye before Execution his Executors shall have Execution and not the wife but it is said there Quaere and at last it was agreed that the Action should be allowed but the surest way is to have bosh joyn Pasch 6 Eliz. Powtrells Case in C. B. IN an Ejectment the case was a woman-tenant in Tail did make a Lease for 31 years and took husband and had issue the wife dyes and the husband is tenant by the curtesy and surrenders to the heir who puts out the Lessee who brings this Action Dyer I doubt whether this surrender be good for tenant by the curtesy is but in reversion and hath nothing in possession and it is dubious how he can surrender Weston and Brown He may surrender for a term or franktenement may be surrendred to him that hath the estate in reversion or remainder if it be not a mean estate as tenant for life the remainder for life the remainder in fee the first tenant for life cannot surrender to him that hath the fee. But the great point of the Case was if the issue could avoyd the Lease during the life of the tenant by curtesy and the Court held he could not for the tenant is in as a purchaser And by Walsh and Carus If tenant by the curtesy grants over his estate and then enters into religion the Grantee shall have his estate during the tenants natural life Quod omnes concesserunt and it was said also that if the heir had been impleaded during the life of the tenant by curtesy he shall not have his age quod fuit concessum Mich. 14 15 Eliz. Tottenham against Bedingfield IN an Account the Defendant pleaded he was never his Baily for to render account Gawdy prayed the opinion of the Court if the Action would lye for otherwise he would not trouble the Court. The Case was the Plaintiff had a Lease of a Parsonage and the Defendant being no Lessee nor claiming any interest takes the Tithes being set forth and carries them away if the Plaintiff could have this Action was the question Manwood It will not lye for an account lyes where there is privity but wrongs are alwayes without privity but I agree that it one receive my rents I shall have an account against him for by my consent afterwards I do make a privity for although that he hath received the Rent he hath not done wrong to me inasmuch as it is not my money untill it be paid to me but otherwise it is where a man disseiseth me of land for that is meerly a wrong and so is it in this case for when the Tithes were set forth by the Parishioners the Law sayes they are in the possession of the Parson and therefore when the Defendant took them away he does it wrongfully and therefore no account will lye against him and so was it adjudged in Londâ—… in the Case of one Monax who under colour of a
reason appears that the nature of the Lapse is to be taken hac vice and the King must take it then or not at all and where it is objected that by this means every Lapse may be taken from the King I conceive that far greater inconvenience will be to the Patrons on the other side for when a Lapse is devolded to the King and a stranger presents if then the true Patron may not present untill the death of such Incumbent perhaps the Incumbent will resign or be deprived and a stranger shall be presented again and again in like manner and so by this means the Patron shall never continue his advowson for by the Couin between the stranger and the neglect of the King to take his Lapse the Incâ—mbent shall never die And afterwards in this term it was adjudged that such usurpation shall not take away the Lapse from the King because the avoydance accrued by the act of the Incumbent Cook ib. 7.27 a. Hillary 29 Eliz. Lassell's Case LAssell brought an action of debt upon an obligation the Defendant pleads that the condition was that he should personally appear before the Iustices and set forth how he was taken by a Latitat by the Plaintiff who was Shiriff who took this obligation upon his deliverance and urged the Statute of 23 H. 6. and said that the obligation was not according to the Statute And by the Opinion of three Iustices Anderson being absent If it were in such an action wherein a man may appear by Atturney then it is void And the Plaintiff shewed a Iudgment given in the Kings Bench wherein in such case Iudgment was given for the Sheriffs and it was between Seekford and Cutts 27. 28. Eliz. Rot. 373. And the next Terme it was moved again Anderson The Obligation is voyd for when an express form is limited by the Statute no variance ought to be from it But the other three Iustices were against him for they held that he ought to appear in his proper person in case of a Latitat Anderson I deny that for Latitats have not been of above 60 years continuance Vid. Cook lib. 10. Beufages Case and his first Institutes 225. a. Pasch 25 Eliz. Kayre against Deurat in C. B. Rot. 603. IN a Waste the Plaintiff declared how the Defendant was seized in Fee and made a Feoffment to the use of himself for life the remainder to the Plaintiff in Fee after which he committed waste The Tenant said that he was seized in Fee without that he made a Feoffment as the Plaintiff declared and upon issue joyned it was found that the Defendant was seized in Fee and that he made a Feoffment to the use of himself for life of J.S. without impeachment of waste the remainder ut supra and whether this was the Feoffment which the Plaintiff alledged they prayed the advice of the Court. Anderson Chief Justice If the impeachment of waste be not part of their issue then the Verdict is voyd for that point and that which is found more than their issue is voyd 33 H. 6. the Defendant pleaded that he was not Tenant of the Free-hold and the Iury found that he held joyntly with another there the Plaintiff shall recover And then at another day it was said by the Iustices that the Iury had found such an estate as was alledged by the Plaintiff and although that they further found this priviledge to be dispunisht of waste which upon the matter proves that the Plaintiff hath no cause of action yet because the Tenant may choose whether he would take hold of this priviledge or not the Iury cannot finde a thing that is out of their Verdict and whereof the Defendant will not take advantage by pleading and for this cause their Verdict was voyd 7 H. 6.33 21 H. 7.12 where one pleaded in Bar a Feoffment and traversed the Feoffment and hereupon they were at issue and the Iury found that he had enfeoffed the Tenant after the Fine levyed to the Plaintiff this cannot be found because it is out of their issue 31 Assi 12. and Iudgement was given for the Demandant Hillar 29 Eliz. Michell against Donton in C. B. Rot 639. IN an Ejectment a man makes a Lease rendring Rent with a Covenant that the Lessee shall repair the houses with other Covenants and Conditions of re-entry for not performance and then he devised the same land to the same Lessee for divers years after the first years expired yielding the same Rent and under the same Covenants as in the former Lease and he devised the remainder in fee to the Plaintiff and the first Lease expires and the Defendant being possest by force of his second Lease doth not repair the houses and if the Plaintiff might enter was the question Shuttleworth In as much as he devised the land under the same Covenants as the first Lease was and the first was with Covenants and Conditions the second shall be so also the rather because he deviseth the remainder over so that the Devisee cannot take advantage of the Covenants but of the Conditions he may and the second Lease is conditional But the whole Court was against him Shuttleworth To what purpose then are these words in the Devise Under the same Covenants Periam They shall be voyd And by all the Iustices the intent of the Will was not that the Lease should be conditional for Covenants and Conditions differ much for the one gives an action but not the other but the intent was that he should perform the Covenants upon pain to render damages in a Writ of Covenant Bottenham against Herlakenden 29 30 Eliz. in C. B. Rot. 1620. HErlakenden was seized of land and devised the same to the Plaintiff for years the remainder to his wife for life Proviso that the Plaintiff should pay to the woman 20 l. per annum and if he failed of his payment c. wherefore the woman entred and if this shall be called reservation or reversion was the question Anderson A man cannot make a Reservation on a Devise Periam A man may to himself and his heirs but not to a stranger Anderson Every Devisee is in in the sier by the Devisor and why shall not this then be a reservation to the Devisor and a grant of the reversion to the woman Gawdy Wherefore cannot a man devise land reserving rent when by the Statute 32 H. 8. he may devise at his pleasure Periam Because his pleasure must correspond with the Law Anderson If I devise land to another reserving rent to me and my heirs and then devise the reversion he shall have the rent as incident to the reversion and the Iudges were divided wherefore c. 29 Eliz. Glover against Pipe in B. R. Rot. 838. IN debt upon a Bond the Condition was that where Glover the Plaintiff had a Copyhold of inheritance and had leased it to the Defendant if the Defendant should not commit any manner of waste and
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
that the wife is not in her former or antient estate but takes hereby a new estate for if Tenant for life grants his estate to J.S. and his heirs and J.S. grants a Rent and then re-grants an estate to the Tenant for life the Tenant for life shall be liable for the Rent Dyer 252. Harris contr For by the rendring of the estate by the Fine she shall be in her antient state and he cited the Case of Peter Cary here adjudged who being Tenant in T. the remainder to the Earl of Devonshire was attainted and then the King pardon'd him and gave him his land again and then he suffered a common recovery and thereby barred the remainder in the Earl of Devonshire But Anderson was against this Case and said that by the render the woman was in her antient estate and so the remainder discontinued and the entry of him in the remainder taken away Warburton The Fine does make no discontinuance for they give away but that which they may lawfully do and so is Bredons Case Cook 1 Rep. 67. and as to the common recovery it is out of the Statute of the 32 H. 8. because she remains party to the Fine and by the render upon the Fine they shall be as in by a new estate and then the recompence shall not be to the antient estate and therefore he in the remainder is not barred nor impeached by this Fine but he may enter within five years Kingsmill accorded for it is plain that by the render to the husband and wife they are in a new estate and the recompence shall go as to that and not to the antient estate but contr if it had been by way of voucher Walmesley accorded but notwithstanding the Fine and recovery the entry of him in the remainder is good and as to the woman it is clear that there is no discontinuance to him in the remainder in Fee for he in the remainder in Tail cannot discontinue because he is seized by force of the estate Tail as the 4 H. 7.17 Tenant in Dower and he in the reversion in Tail joyn in a Fine this is no discontinuance of the estate Tail because he was never seized and therefore it is a forfeiture in the Tenant for life although he in the remainder joyn'd with him by the 41 Ed. 3. but otherwise if Tenant for life and he in remainder in Fee joyn in a Fine Vid. Bredons Case 1 Rep. 76. Anderson I conceive he in the remainder may enter for all passeth from the Tenant for life and it is her Feoffment and the confirmation of the other and so the estate Tail being spent he in the remainder shall enter for forfeiture and the recovery shall be no bar because it was of another estate and also this title of entry for forfeiture shall not be barr'd by the common recovery no more than if a Feoffee upon condition does suffer a common recovery yet may the Feoffor enter for the condition broken and Iudgement was given for the Plaintiff so that his remainder was neither discontinued by the Fine nor his entry taken away by the Recovery 43 Eliz. Hall against VVood in C. B. IN an Action on the Case for a Trover and conversion of 40 l. on not guilty pleaded it was found for the Plaintiff Walmesley How can an Action lye for a Trover of money if it be not within a bag for this Writ supposeth a loss and when the money was lost how doth it appear that the money found is the same money that was lost Davies There are many presidents in the Kings Bench to prove that this Action will well lye for corn and money and I have been of Counsel in many of those Cases Warburton If the money were lost in view of a third person upon such Trover the Action will lye for there it may be proved that it was the money of the Plaintiff And Walmesley agreed And note that a president was shewn tempore 40 41 Eliz. inter Holloway and Higgs which was thus a master delivered to his servant 30 quarters of corn to be sold and the servant sold them and converted the money and the master brought his Action on the Case for the Trover and conversion against the servant who pleaded not guilty and it was sound against him and two things were moved in arrest of Iudgement first that the master was never possessed of the money and therefore could not lose it secondly because the money cannot be known and so non constat whether it was the money of the masters or no. But notwithstanding this Case Iudgement was given for the Plaintiff because the possession of the servant was the possession of the master and when the servant converts this to his own use by this the master loseth the property and is also a conversion in the servant Mich. 42 43 Eliz. Leeke against the Bishop of Coventry in C. B. Rot. 3579. IN a Quare impedit the Case was thus Langford and Bussy were Patrons of an Advowson to which they and their Ministers use to present by turn Langford presented according to his turn and his Clerk dyed and then Bussy presented in his turn also and his Clerk was deprived after which Langford grants his Advowson in Fee to Leeke the Plaintiff and then the Bishop without any notice does collate Dr. Babington who dyes after whose death the question was if Leeke should present or Bussy and Iudgement was given for the Plaintiff because that notwithstanding the Church was voyd by deprivation yet the Patron may transpose his Advowson over Bethell against Sir Edward Stanhop IN Debt against Sir Edward Stanhop as Executor to Francis Vaughan he pleaded that he is not Administrator and the said Vaughan gave 40 l. to his daughter within age with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors and then he dyed possest of the goods and the Defendant sold these goods which made him Executor in his own wrong and afterwards takes Letters of Administration Walburton I conceive the Plaintiff ought to have Iudgement for the Statute of 21 Eliz. of fraudulent conveyances annuls this gift of the Intestate because he did it to defraud his Creditors and then when he dyed it was assets in the hands of the Administrator And if a Testator have goods wrongfully taken from him out of his possession these are not Assets to the Executors or Administrators but if they be taken out of the possession of the Administrators or Executors they shall be Assets for they may take them again but for goods taken from the Testator they have but an Action But here the Administrator may take the goods which were given by the Intestate to defraud Creditors for the gift was voyd and therefore they shall be accounted Assets And as to the Action it is well brought for when a man does administer as Executor and then takes Letters of
Iustices Cook being against it that this is not within the Statute but they agreed that if one bought corn and thereof made meale or oat-meale and sold it that this was within the Statute for that is usuall and is no alteration and therefore remaines the same corn but starch is altered by a trade or science which is a mysterie and so it is not the same thing that was sold But Cook Chief Iustice contra And cited one Franklinghams Cass Michaelm 39 40 Eliza. in B. R. where one bought Barley and because it was of such Quantity that he could not make Malt of it in his own house he made Malt thereof in anothers house by his own servants And it was resolved First That the conversion of corn into Malt in his own house with an intent to sell it was within the Statute unless there be a saving for it Secondly Forasmuch as it was in anothers house he is out of the proviso and so within the penalty of the Statute And in Pasch 42 Eliz. between Reynolds and Gerret That if a Miller buyes corne and grinds it and sells it within his house this is within the Statute And in the Checquer Chamber in a writ of Errour there between Baron and Brise adjudged there that a Coster-monger who buyes Pippins to sell them again was out of this Statute because they are necessary victuall And divers exceptions were taken to the Information viz. where he saith Ligamen anglicè Starch whereas there is no such word but it is Ligumen and the anglicè will not help this mistake Cook 10. Rep. 134. and this exception was taken by Iustice Winch. But Warburton Iustice cont for Starch is a thing newly devised and there is no Latin word for it and therefore the anglice there is good Foster Iustice took an exception because the information concluded contra formam Statuti whereas it ought to have been contra formam Statutorum For this Statute was of force untill the 8 Elizab. and then was determined untill the 13th of Elizabeth and then it was revived so there are two Statutes but 't was agreed that where a Statute continued de tempore in Tempus and was never discontinued nor determined there it shall be said contra formam Statuti and this diversity hath been twice adjudged upon this very Statute viz. 9 Eliz. in Palmers Case and in the 35 Eliz. Warburton cont for the Information doth intend only the Statute of 5 Ed. 6 and 14. and he did recite the words thereof in his Information also this Statute only makes the offence and declares the manner of it and no other Statute makes any addition to it or increaseth the penalty but only revives it to endure in perpetuum But if a Statute doth prohibit a thing and another Statute gives a penalty there upon Information upon the penalty both Statutes ought to be recited and to conclude contra formam Statutorum vid. Commentar 206. Morgans Case And so the Statute of Vsury 37 H. 8. is revived the 13th Eliz. and an addition made to it there such inclusion ought to be contra formam Statutorum but where the Statute is only revived it is otherwise as the Statute of Perjury 5 Eliz. was continued untill the 14 Eliz. and then it was determined and 27 Eliz. was revived yet all informations upon that Statute are contra formam Statuti 5 Elizab. Cook This is no good exception and cited Talbot and Sheldens Case Hillar 33 Eliz. who were indited for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error the Iudgment was reversed because the penalty was demanded for the 10th Eliz. made the Offence and the 23 Eliz. gave the penalty but if the Information be for the offence only there it had been good See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good because the best shall be taken for the King Vid. 5 H. 7. 17. 8 Ed. 3.47 ◠Pasch 10 Jacob. VValler against the Deane and Chapter of Norwich IN an action of Covenant the Plaintiff declared on a Lease made from the Deane the Case was thus The Deane in the 38 Eliz. had made a Lease for 99. years to one Themilthorpe and then in the 42 Eliz. made a Lease to the Plaintiff for three lives rendring Rent with a Letter of Attorney to make livery and a Covenant to save the Plaintiff harmelesse against Themilthorpe afterwards the Attorney makes livery sc after Michaelmass which was a Rent day and he being disturbed by Themilthorpe brought this Covenant And two points were moved in the Case First Inasmuch as the Lease was voyd to Walter whether that the Covenant was voyd also Secondly If the livery made after the Rent day be voyd Hoghton Serjeant If the Covenant depended on the interest of the Lease as a Covenant to repay the thing devised or to pay rent these had been voyd because the Lease it self is voyd for they do immediatly depend upon the Lease but where the Covenant is for a thing collaterall as a Covenant that the Lessor is owner at the time of the Lease or that the Lessee shall enjoy it or shall be discharged and saved harmeless these Covenants being collaterall to the Lease and interest are good although the Lease be voyd and the 43 Ed. 3. proves this where a Lease was made by a Baron and Feme a Covenant by them shall not binde the wife contra where the Covenant concernes the interest as payment of Rent c. Also the Covenant was broken immediatly upon the sealing of the Lease to the Plaintiff And as to the second point he held it was a good livery because no time was limited in the Letter of Attorney Dodderidge Serjeant The Covenant is voyd because the Lease is voyd but contra if it had been a Covenant to enjoy for three lives and he relyed much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols cont The Covenant is good and yet in force for when an estate is created in which is implyed a Covenant in Law there if the estate be voyd the Covenant is voyd also but when there is an express Covenant in Deed there it is otherwise although the Lease be voyd or voydable as if he Covenant that the Lessee shall enjoy during the terme and the lessee resign yet is the Covenant good although the terme is gone And as to the second point The livery is good for untill the livery be made the lessor shall retaine his land and no Rent is due vid. Commentat 423. for by intendment the possession is better than the Rent And Cook agreed to this And the Iustices agreed with Nicholls Trinit 10 Jacob Barnes Case TEnant for life the Reversion in the Lessor a Formedon is brought against the tenant for life who prays in ayde of him in the remainder for life without him in
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
but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his â—isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further infâ—rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessioneÌ„ Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchangâ— and iâ— the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander bâ—ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents
that the Plaintiff could not have the Error but the Daughters who were the Heirs to Henry for an Action alwaies discends according to the right of land and it seems that the Heir in Burrow English shall have Error or Attaint and not the Heir at the Common Law which was agreed by all on both sides but it was said that this varies much from the present case for two reasons One because he came in as Vouchee which is to recover a Fee-simple and he shall render a Fee-simple in value which is discendable to the Heirs at the Common Law Secondly he hath no Estate-tail Bromley Solicitor and Plowden contra and laid this ground that in all cases where a recovery is had against one by erroneous processe or false verdict he which is grieved shall have redresse of it although he be not party or privy to the first Iudgment and therefore at the Common Law if a Recovery be had against Tenant for life he in the Reversion shall have Error of Attaint after his death and now by the Statute of R 2. in his life so in a Precipe if the Tenant vouches and the Vouchee looseth by default the Tenant shall have Error for the Iudgment was against him and he looseth his term and in the 44 Ed 4.6 in a Trespasse of Battery against two one pleads and it is found against him and the plea of the other not determined damages by the principall Verdict is given against them both which if they be excessive the other shall have an Attaint And Bromley said there could not be a case put but where he that hath the losse by the recovery should have also the remedy and Baker cited 9. H. 7.24.6 that if a Recovery be had against a man that hath land on the part of the Mother and he dies without issue the Heir of the part of the Father shall have the Error But Bromley and Plowden denied this case and that 3 H 4.9 it was adjudged to the contrary And Wray said to Baker that he ought not much to rely on that case for it was not Law and said that if Tenant for life makes a Feoffment and a Recovery is had against the Feoffee the first Lessor shall not avoid this Bromley there is no use for he may enter by forfeiture but in our case of whatsoever estate it be at the time of the recovery the right of the Estate-tail is bound and therefore it is reason that the Heir in tail shall avoid it Jeffrey of the same opinion and cited 17. Ass A Conusor makes a Feoffment and then execution is sued against the Feoffee by erroneous processe the Feoffee shall have the Writ of Error although he be not party to the first Record but the reason is because of his interest in the land And Bromley and Plowden said further that notwithstanding the Feoffee recovers against the Vouchee and the Vouchee recover over the land yet this recovery shall go to the Estate-tail And Iudgment was given for the Plaintiff Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry and after an Execution is sued against him at the suit of a common person and he is taken by force thereof and after he takes a Habeas Corpus out of the Kings Bench and Coke prayed that he might be discharged of this execution for where a man is attaint of Felony he hath neither Goods nor Lands and his body is at the Kings disposall and so is not subject to the execution of a common person 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary For although he be attaint of Felony yet may he be in execution for his own offence shall not aid him and so was it in Crofs case in the Common Pleas where a man being attaint of Felony was taken in execution at the suit of a common person and he escaped out of Prison and an escape was brought against the Sheriffs of London and a Recovery against him And at last by advise of the Court because he was indebted to many persons and to discharge himself from his Creditors intended to have a pardon for his life and so deceive them therefore he was committed to the Marshalsey upon this execution Trin. 42 Eliz. Malloy against Jennings Rot. 1037. IN a Replevin the Case was A man seised of land in fee is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff and then the Recognizance is forfeit and the Conuzee sues out a Scire facias against the Conuzor before the Deed was inrolled and had Iudgment to have Execution And the question was if the Bargainor was a sufficient Tenant against whom the Execution was sued Williams Serjeant The Bargainor was Tenant at the time of the Scire facias before inrolement and although it was inrolled after shall have relation to the first livery to prevent any grant or charge And if an Action be brought against an Executor as in his own wrong and the Suit depending he takes Letters of Administration this shall not abate the Writ So in our case the Bargainor was seised of the land when the Scrie facias was brought and if a man makes a Lease for life rendring Rent and then the Lessor bargains and sells the Reversion and before the Inrolement the Rent is behind and the Bargainer demands the Rent which was not paid and then the Deed is inrolled yet he cannot enter for the forfeiture which I have seen adjudged in the 28 H. 8. Dyer Disseisee of one acre makes a Release to the Disseisor of all his lands and delivers it as an Escroll to be delivered to the Disseisor and then he disseiseth him of another acre and then the Deed is delivered to the Disseisor yet the right in the second acre shall not passe And he much rolled on Sir Richard Brochets case 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seised the first day of May and it hapned that one Corbet had sold him land by Indenture the 24. day of April but the Deed was not inrolled untill the 24. day of May after And the question was if the Conuzor was bound to convey these lands or not and adjudged that he was not for inasmuch as the Deed was not inrolled the ffrst day of May he was not seised and great mischief would ensue if the Law should be otherwise for no man will know against whom to bring his Action for a Bargain and Sale before Inrolement may be done secretly Herne Serjeant The Bargainee is seised before Inrolement and by the Statute of 5 Eliz. which wills that none shall convert land used to tillage unlesse he puts other land to tillage within six months yet none will say that it is a breach of the Statute although Pasture be presently converted to tillage and he cited Chilburns cafe 6 Eliz. Dyer 229. that proves that
Statute sayes that the lands devised shall be devised into three parts and that is to be understood of such an estate as may be divided but so cannot a Seigniory For put the case that the Lord held by a Hauke the whole Mannor shall descend and cannot be divided and so de catalla Fellonum Fenner contra For it seems to me that the seignory passeth and so it shall be if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne he shall say infra feodum suum and in reputation amongst men a seigniory is a Mannor for if a man makes a feoffment of a Mannor with livery where he hath no Mannor yet shall it passe 7 E. 3. Where a Mannor passeth by the name of Knights Fee And as to the intirenes of the seigniory it is easily answered for although the rent were entire yet it may be severed for a Rent Charge is entire yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed Walmesley For the Plaintiff the Question is if the Rent passeth by the name of a Mannor to the Devisees If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughters daughter yet this is good because in common speaking she is so called but here the words are not apt nor used in common speaking viz. That Rent should be taken for a Mannor and therefore it is voyd as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference that where the words have any affinity or likelihood to the Mannor then it will passe by the name of a Mannor As if a man deviseth his house and land by the name of a Mannor it shall passe But here being but a service it is otherwise Gawdy cont For if it the Rent passe not nothing shall passe which is a hard construction on a Will For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church And in Brett and Rigdens Casea man devised a Mannor in which he had nothing and after purchased the Mannor the devise is good And in 26 H. 6. feoffment 12. Land will not passe by deed by the name of a house but land will passe by the name of a Carue and a Carue by the name of a Mannor and I hold that the Rent in this case will passe by the name of the Mannor for a Mannor does consist of Demesnes services and rent may be called a Mannor aswell as a Carue and and the King gives it by the name of a Mannor to the Devisor and that is the reason that the Devisor calls it a Mannor And if you grant to me an Advowson by the name of the Church and Rectory and I devise the Rectory the Advowson and the Church will passe by the name of Rectory And in Plouden 194. A man did let his house and great demesnes rendring Rent and did devise to another all his Farme there the Devisee shall have all the Rent and the Reversion also Michaelm 29. 30. Bishop of Lincolnes Case Rot. 1528. 2200. IN a quare impedit brought by the King against the Bishop of Lincoln and Leigh the Incumbent The Case was The Bishop had an Advowson in gross and presented J.S. who took a second Benefice with cure whereby the first became void and continued so untill Lapse fallen to the Queen and after the title of Lapse fallen to the Queen the Bishop presented one J. who was inducted and by reason of Recusancy to pay Tythes was deprived and by the Statute 26 H. 8. the Church became void ipso facto whereupon the Bishop presented one Leigh within six months and now the Queen would present Fenner This Case is the same with Bosherulls lately adjudged But the Court said that here was a privation for Recusancy and therefore it would make a difference And afterwards Pasch 30 Eliz. Walmesley For the Queen said That if a Lapse be fallen to the Ordinary if the Patron doth present before the Bishop hath Collated he ought to receive his Clerk but where it is divolved to the King the Patron by no means can defeate the King but he may remove his Clerke at his pleasure but if such Incumbent be present after such Lapse and die then the title of the King is gone and his time passed by the act of God but in our Case the avoydance which does oust the King from his Lapse is avoidance by reason of Recusancy to pay Tithes which is the proper act of the Incumbent as is a resignation and no such avoydance being by the act of the party himself shall oust the King of his Presentation for in the 2 H. 9. In annuitie against an Abbot who resigns the Writ shall not abate for then the Plaintiff shall never have a good Writ So in our case if the King be outed of his Lapse by such devises he shall never have a Lapse for every one will usurp upon the Kings Lapse and will presently resign or misdemesn himself whereby to avoid the Lapse And in the 18 Ed. 4. the 19. By Pigot A writ brought against a Prior shall not abate although the Prior be not deposed for it is his own fault Fenner This Lapse is given the King by his prerogative but on this Condition that he take it in due time for so is the nature of things lapsed for if after a title accrued to the King he suffer usurpation and the Incumbent die his Lapse is lost for the nature of the Lapse is such that it must be taken at its time and where the title of the King is limited to a time there he shall not have his prerogative for a prerogative cannot alter estates As if the King grant a seigniory in gross rendring Rent and the Tenant to the Lord dies without heir whereby the tenant escheates the seigniory is extinct and the Rent of the King is gone aswell as it is in the case of a Common person And so if the King have a Rent feck for life out of my land if I die he cannot distreine in my land for the arrerages as he may in my life time And so where the Statute gives Annum diem vastum to the King yet he shall not have it after the death of the Tenant for life so if the King reserve a Rent upon a Lease to an Estranger and the stranger enters in respect of the land whereby his entire rent is suspended now the condition as to the King also is suspended during that time for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir and after this Rent comes to the King and the Grantee dies the Rent shall cease during the minority of his heir so that by all these cases the
not a good Feoffment for White-acre Michaelm 29. 30. Eliz. Knowles against Powell in Scaccario THe Queen seized in Fee made a Lease for years to one who was out-lawed at the time of the Lease rendring rent and after he was out-lawed again and before seizure comes out the general pardon of all Goods and Chattels forfeited and in this Case it was agreed that a man out-lawed was capable of a Lease from the Queen as Farmer to the Queen And Manwood said that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry and it was also agreed that a man out-lawed and pardoned had property in his goods Egerton Sollicitor said that in the 4 Eliz. it was adjudged in the Common Pleas that if the Queen made a Lease under the Exchequer-seal to begin immediatly after forfeiture surrender or expiration of a former term and the Lessee is out-lawed shat the second Lease shall not commence for it is a Royal forfeiture Trinit 41 Elizab. Ferrers against Borough in B. R. Rot. 185. UPon a special Verdict the Case was thus A man makes a Lease for years upon condition that if he paid 10 l. before Michaelmas that it should be lawfull for him to re-enter and before Michaelmas he lets the land to another by Indenture for years and then performed the Condition and entred the first Lessee brought a Trespass and it was adjudged that it does not lye Trinit 35 Elizab. Lambert against Austen in B. R. Rot. 185. IN a Replevin the Case was thus A man seized of land in Fee grants a Rent-charge out of it to A. for life with a Clause of Distress and then makes a Lease to B. for years and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. untill the 18 of Eliz. and the Grantee makes the Defendant his Executor and dyes the term of B. ends in the 33 Eliz. and then J.S. enters and makes a Lease to the Plaintiff the Executor of A. distreyns for the arrearages and the Plaintiff brings a Replevin Gawdy and Fenner This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years but out of the Free-hold and upon grant thereof as Littleton saith the Tenant of the Free-hold ought to attorn and not the Termor and so is it 9 H. 6. and if an Assize be brought for this Rent it ought to be brought against the Tenant of the Free-hold and all the Tenants of the Free-hold ought to be named in a Rent-charge by Cook 6 Rep. 58. but otherwise for a Rent-service for that is against the Termor onely and a Termor cannot give seizin of the Rent to maintain an Assize by Cook 6 Rep. 57. and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages because the estate is determined Cook 4 Rep. 49. but an Avowry is given by this Statute Onely so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relyed on this word demesn which ought to be intended of a Free-hold and of a Reversion upon a Lease for years it is pleaded quod seisitus in dominico suo c. and so cannot a Tenant for years say for which reasons it seemed to them that the Distress was well taken Clench contr For the Termor ought to pay it for he takes the profits of the land as if a Lease be made to a woman rendring Rent who takes husband and dyes the husband shall pay the Rent by the 10 H. 6. for he hath taken the profits and by the words of the Statute they are in the possession or seisin and seisin refers to the Tenant of the Free-hold and possession to the Tenant for years and the words are which ought immediatly to pay the Rent and so ought the Termor in our Case who is chargeable to the Distress of the Testator Popham chief Iustice of the same opinion The Distress is not well taken for he who hath the profits of the land ought to answer for the Rent Gawdy Although the Cattel of the Lessee be distreynable by the Testator that is onely because they are upon his land as a strangers Cattel may be so distreyned and therefore this proves not that the Lessee should pay the Rent And if a man grants a Rent-charge and lets the land at will afterwards the Rent is behind and the Grantee dyes and the Lease at will determines without question in that Case the Lessor is subject to the Distress of the Executor And in our Case if the Grantee had released to the Tenant for life this had extinguisht the Rent otherwise of a Release to Tenant for years Fenner If Tenant in Tail granta a Rent-charge and after makes a Lease for 21 years according to the Statute and dyes the Rent by the death of the Tenant in Tail is determined To which Gawdy agreed which proves that the Rent issues out of the Freehold Vid. Cook 5 Rep. 118. Hillar 37 Eliz. Butler against Ruddisley IN a Trespass the Defendant pleaded the Free-hold of Edward Devereux and so justified as his Bailiff without saying at his commandment the Plaintiff replyed that the said Edward was seized in Fee and made a Lease to him by vertue whereof he was possest absque hoc that the Lessor made the Defendant his Bailiff post dimissionem and hereupon the Defendant demurred Crook By this Lease a Free-hold passeth to the Plaintiff and then the Plaintiffs traverse is naught for he hath now traverst that the Defendant is Bailiff whereas he ought to traverse the Free-hold in the Lessor for that would have destroyed the justification of the Defendant And to prove that the Free-hold doth pass he cited the Case of Littleton where if a Lease be made to the husband and wife during Coverture they are Ioynt-tenants for life So in the 30 H. 6. a Lease to a woman dum sola vixerâ—t And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice or dummodo se bene gesserit all these are Free-holds And it is clear that a Tenant at will cannot assign over And also an estate at will is an estate at the will of both parties but here it is at the will of the Lessor onely when he will make a Bailiff Haughton contr An estate at will doth pass and not a Free-hold for here he hath not pleaded that Livery was made and Livery shall not be intended in this case unless it be specially alledged but if Livery had been made then he agreed that a Free-hold conditional had past and for the pleading of a Livery he took a difference that where an express estate either in fee or for life be pleaded there Livery shall be intended but where a Free-hold passeth by implication or operation of Law and not
the Reversion Warburton I conceive he shall have the Ayde 7 H. 4.2 where ayde is prayed against him in the Remainder and Reversion and and he cited a Manuscript 11 R. 2. direct in the point that the ayde would lye But the other Iustices cont for the Tenant for life hath as high an estate as he in the remainder and may plead all that the other may but if there be Tenant for life the remainder in Taile there he shall have ayde of the Tenant in Taile 23 H. 6.6 11 Edw. 3.16 If there be Tenant for life the remainder for life the remainder in Fee tenant for life shall have ayde of them both for else he in the remainder shall not come in to plead 11 E. 3. ayde 32. Where it is resolved that tenant for life shall have ayde of the Reversioner for life Hillar 28 Eliz. VVatkins against Astwick A Man makes a feofment on condition that if he his heirs or Executors do pay the Rent of 100 l. before such a day that he may re-enter the Feoffer dyes his heire within age the mother without any notice of the son requests J.S. that he would pay the money for her son And all this was found by speciall verdict but it was not found of what age the son was Clinch If the Iury had found that the son was of the age of 17 years the payment had been good Wray If a Bond be upon condition that the Obligor or his heirs should pay 100 l. and the Obligor dyes his heire within age I conceive payment by the Guardion or by some other friend is good And afterwards all the Iustices agreed That if the Infant were within the age of 14. years the tender of the money by his mother had been good but contra if he had been more than 14 years and because no age was proved here but that he was within age it shall not be intended that he was within the age of 14. years and therefore they advised the party to begin de novo and that it may be found that the Infant was within the age of 14. years Trinit 25. Eliz. Moris against Paget in C. B. Rot. 2215. IN a Replevin a speciall Verdict was found that Sir Francis Ascough was seised of the Mannor of Castor in Lincolne which Mannor extended it self into four Towns v z. Castor North Kelsey Dale â—ale and that there were demesne lands and Freeholders in each of the said Towns and that Moris the Plaintiff held the land where c by Fealty and suit of Court to the Mannor of Castor and the lands did lie in one of the Towns viz. in Norch Kelsey And Ascough being so seised sold to the Defendant Totum illud Manerium sive Dominium de North Kelsey cum pertinentiis in North Kelsey ac omnia ac singula Messuagia redditus Herriot and all other things used or reputed as parcell thereof with all Courts c. To have and to hold to the Vendee and his heires and Moris the Plaintiff and other freeholders in North Kelsey did attorne to the Vendee The Question was if the Vendee had the Mannor of North Kelsey or not Peryam He has not yet by the feofment and attornment all the Tenants and services are conveyed to him but not as a Mannor for a Mannor is made and incorporate by continuance of time and this entire Mannor of Castor cannot be divided no more than other liberties as if the King grant to three partners who have three Mannors a Leet or Warren and one of them makes a feofment the Feofee shall not have the Leet and heâ—tted Dyer 362. a. and he sayd if I grant my Mannor of â—except certain Demesn lands and services the feofee shall have the Mannor and I shall have the Lands and services in grosse and so if I have a Mannor that extends into two Towns and I grant my Mannour to you in one Town you shall have no Mannor but the lands and services in gross Windham Iustice cont For where he grants his Mannor of North Kelsey in North Kelsey there it shall be construed his Mannor in reputation Ander on agreed for although a Mannor cannot be created at this day yet is it not so intire but it may be divided Hillar 30. Elizab. Sir Thomas Howards Case A Man makes a Lease for years the 10th of May and then the Lessor bargains and sells this to another by Deed enroll'd bearing date the 10th of Aprill and it was entred to be conveyed the 10th of Aprill before but in truth it was delivered and acknowledged and enrolled afterwards And it was held that the bargaine was without remedy at the Common Law for he cannot plead that it was acknowledged or delivered after the date of the day of acknowledging it and so was the opinion of Rhodes Peryam and Windham Anderson being absent for he cannot aver that it was inrolled or acknowledged at another day then it is recodred because it is contrary to the Record for it is entred that it was acknowledged the 10 of Aprill and then if such a plea should be admitted it would shake most of the Assurances in England Note Shuttleworth put this case A man makes a Lease rendring Rent at two Feasts and if the Rent be behind at any of the said Feasts or 40. dayes after and no distress to be found that the Lessor shall re-enter the Lessor comes upon the ground the last day of the 40. and demands his Rent and because no distress was sound on the land at the time of his demand he entred But it was averred that always before this day there was sufficient distress and the question was if his entry were good Fenner and Rhodes said they had seen a Report of the same Ease 8 Eliz. That the distress ought to be on the Land on the last day yea at the last instant of the day which is a legall time to make a demand or else the Lessor may enter Walmsley The same Ease was resolved a year agoe in the Kings Bench between Ward and VVare But if it were and no distress to be found at any time within forty dayes there if there be a distress found at any time it is sufficient Vid. 1. Inst 202. a. 28 Eliz. VVood against Ash IN a Replevin the Ease was thus Puttenham made a Lease of Land with a Stock of Sheep for 20. years rendring Rent and the Lessee doth Covenant to render back to him at the expiration of the Lease 1000 Sheepe of the age of three or four years and that the Lessor grants all his Chattells and this stock of Sheepe to Elizabeth Vavafor the Defendants now wife but in Truth the Sheepe of the old stock were all spent and others supplyed part by increase and part by buying of other Sheepe Walmesley for the Defendant The grant made by the Lessor is good for the generall propertie does remain in him although that the Lessee hath a speciall
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
facias by the Queen against Allen. THe Case was A man recovers damages in an Action on the case and he assignes parcell of his debt to the Queen before execution and the Queen thereupon brought a Scire facias Manwood chief Baron and all the Court held cleerly that parcell or a Meyety of this debt could not be assigned over to the Queen See 22 H. 6.47 where parcell of a debt upon an Obligation was attached by a forren Attachment Beverley against the Arch-bishop of Canterbury Quare Impedit THomas Beverley brought a Quare Impedit against John Arch-bishop of Canterbury and Gabriel Cornwall the case was That the Queen being intituled to an Advowson by Lapse because that the Incumbent had two Benefices each of them being of the value of eight pounds per annum whereby the first by the Statute of 21 H. 8. became void and after the said Incumbent died and divers others were presented by the Patrons who died also whereby the Church becomes void againe If the Queen may now take her turn to present in regard she took not her turn when the first Lapse happened immediatly at the first avoidance was the question And after long and serious debate all the Iustices of the Common Pleas did resolve That the Queen shal not now have her Presentment but the Patron because the Queen hath such presentment by Lapse as the Bishop had and no other and could present but to the present avoidance then void and although Nullum tempus occurrit Regi yet we must distinguish it thus for where the King is limited to a time certaine or to that which in its self is transitory there the King must do it within the time limited or in that time wherin the thing to be done hath essence or consistence or while it remaineth for otherwise he shall never do it For if the Grantee of the next avoidance or Lessee Per auter vie be attaint here the King must take his interest and advantage during the time viz. during the life of Cestui que vie or within the years of the next avoidance or otherwise he shall never have it the same Law is where a second presentment is granted to the King and he does not present he shall not present after Shuttleworth we have an Outlawry against the Plaintiff whereupon Iudgment was staied But after Hil. 29 Eliz. The Queens Serjeants shewing that the Plaintiff was outlawed It was argued by Walmsley that that could not now come into debate for the plaintiff hath no bay in Court after judgment and it is but a surmise that the plaintiff is the same party Windham In a debt upon an Obligation the Serjeants may pray the debt for the Queen and yet it is but a surmise And the opinion of three Iustices was for Anderson was absent that the Writ to the Bishop ought to be staied but in what manner processe should be made if the Scire facias shall issue against the Plaintiff they said they would advise concerning the Course But Periam said that a Scire facias might have issued against the ancient Incumbent and then the Queen shall bring a Scire facias again because she had no presentation And the Scire facias was brought against Beverly Walmsley I conceive the Queen shall have no Presentation for although we have acknowledged our Presentment yet before execution we have but a right As if a Disseisee be outlawed he shall not forfeit the profits of his Land also he hath brought a Scire facias and a Scire facias lies not but by him that is party or privy Periam After that we have this Chattell it is forfeit by Outlawry Anderson The Iudgment that he shall recover shall not remove the Incumbent and then the Plaintiff hath but a right to which Periam and Walmsley agreed but as to the other point that the Queen shall not have a Scire facias for default of privity they saw no reason for in many Cases she shall have a Scire facias upon a Record between strangers Anderson If I recover in debt and then I am outlawed shall the Queen have this debt Walmsley If I recover in a Quare Impedit and dye who shall have the Presentment my Executor or my Heire To which no answer was made But the Court would take advice for the rarenesse of the Case And it was said to Walmsley that he might demur in Law if he thought the matter insufficient to which Walmsley agreed and did demur c. Annuity to a woman who marries and dies AN Annuity is granted to a woman for life who after marries the Arrears of the Annuity encur and the wife dies whereby the Annuity is determined It was adjudged that the husband shall have an Action of Debt at the Common Law for that an Annuity is more then a Chose in Action and may be granted over And it was agreed by the Court in this case That if a man grant an annuall Rent out of Land in which he hath no interest yet this is a good Annuity to charge the person of the Grantor in a Writ of Annuity 14 H. 4.29 A. Coke 4th Rep. 51. A. Bragg against Brooke Second deliverance LUcas Bragg brought a Writ of second deliverance against Robert Brook for taking his Cattell in a place called East Burlish in the County of Surrey the Case was That Sir Thomas Speck was seised of a Mannor containing in it severall Copyholds and the place where c. was Copyhold And the said Sir Thomas being so seised married and then died and the wife 5 Edw. 6. demands the third part of the Mannor for her Dower Per nomen centum Messuagium centum gardinum tot acr terrae prati c. And the wife had Iudgment to recover and the Sheriff assigned to her part of the Demesnes and parcell of the Services and of the Freeholders and Copyholders And it was resolved clearly that the Copy-holds did not passe by the assignment and that she could not grant a Copyhold for when she demanded her Dower it was at her election and liberty to demand either a third part of the Mannor or of the Messuages and when she demanded Per nomen Messuagiorum c. she cannot then have the Mannor nor can a Mannor be claimed unlesse by his name of Corporation as Anderson termed it and not otherwise And the Lands and Acres cannot be called Mannors and then the grant of a Copyhold by one who hath no Mannor cannot be good And so was the opinion of the Court and yet the Sheriff had assigned to her Demesnes and Services and all things which make a Mannor And 29 Ed. 3.35 If a Mannor to which an Advowson is appendant be delivered by the Sheriff in execution by the name of a Mannor cum pertinentiis the Advowson passeth also but it is otherwise if it be delivered in extent by the name of Acres Lands Meadow Wood c. Wakefeilds Case 28 Eliz. Rotulo
that it should be against both for it is intire and cannot be affirmed in part and disaffirmed in another part And the Lord Norris case is very agreeable to this where Tenant for life did levy an erroneous Fine and then was attaint by Parliament and all the right which he had to any Land was given to the Queen and it was adjudged that there is no title of Error nor was it given to the Queen by this word Right and then if it be so the Title of Error is not of any right in the land but onely to the Suit and if it be a Suit it is a Suit intire for he cannot have severall Suits as is agreed in Sir Richard Knightleys case A man had judgment to recover 150 l. and did release 20 l. of it and after sued execution and the other brought an Audita querela upon the Releases and defeated all the execution But it is otherwise where such apportionment of such Suit is done by act in Law as in 7 Ed. 4. fol. ultimo The Sheriff levied parcell of the debt by Fieri facias yet shall he have an Action of Debt for the Residue upon the Record But in this case it is the act of the party himself that destroies his Suit for part of the Land for which it shall destroy the other suit for the Error is intire as to all the land and cannot be divided as in the 38 Ed. 3. and 12 H 6. if a false Verdict be found and the party greived does make a Feoffment of parcell he shall not have an attaint for any part So in the 19 H. 6. and the 39 Ass If he who hath cause to bring a Writ of Error or Attaint does take a Lease for years of parcell he doth suspend his Action and if he takes in fee it is quite gone But it was resolved by the Court that the Feoffment does not destroy the Title of the Writ of Dower for more then so much as a Feoffment was made of and thereupon they first took a difference between suspension and extinguishment of an Action for peradventure if he suspend his Action as to any part for any time this is a suspension unto all but extinguishment of part is a Bar to that part onely and Gawdy cited the case in 9 H. 6. where Iudgment was reverst for part only and it is not unusuall to have a Fine reversed for part as if a fine be levied of lands in ancient Demesne 47 Ed. 3.9 a. there by Parsley If there be Error in Law as to one parcell and Error in Fact as to another parcell the Iudgment as touching the matter of Law may be reversed Fenner He who hath Title to reverse a Fine or recovery by Writ of Error hath right in the Land and if he release all his right in the land the Error is extinct and the reason of the Lord Norris Case was not that the Title to the Error was an Action in privity annexed to the party to the Record and his Heires and cannot be transferred over to another no more then a Writ of partition between Coparceners or a Nuper obiit Popham He who hath Title to have the Writ of Error hath no Title to the Land although that thereby he be to be restored to the Lande for if the Land discend to one who hath Title to have the Writ of Error without doubt it shall not be accounted a remitter But as to the matter now in question he said that if two men bring a Writ of Error in the Realty and the Tenant plead the release of one this is a good Bar against both because the Error in the Record is released But if one who hath Title to a Writ of Error does make a Release of all his Right in one acre this is a Bar but for so much inasmuch as the Release is a Bar but as to the Restitution of the Land onely and no Release of Errors in the Record for by the Reversall of a Fine or Recovery the party may annihilate the Record and have Restitution of that which the Record before took from him and therefore it shall bar the Plaintiff And the opinion of all the Court was that the Fine should be reversed for that part of the Land onely whereof no Feoffment was made but for some defects in the Writ of Error Iudgment was stayed Mich. 37 and 38 Eliz. in B. R. Barnards Case SMith brought an Action of Debt upon a Bond against Barnard the Defendant pleaded that the Plaintiff was outlawed and a day was given him to bring in the Record at which day he made default Daniel moved that the Iudgment for the Plaintiff in this case should be that the Defendant should answer for that the plea of Outlawry was but a dilatory Plea and no Plea in Bar as appears 21 Ed. 4 15. but this difference was taken by the Court. In an Action of Debt upon a Bond Vtlary of the Plaintiff is a Plea in Bar and the reason is because all the Debts in specialties are forfeited to the Queen by reason of the Outlawry and because the Queen is to have them it is a good Plea in Bar But in a Trespasse or Debt upon a Contract the Outlawry is but to the abatement of the Writ and the Queen shall not have Debts upon simple Contracts but after the Outlawry pardoned the Plaintiff may have an Action for them again And because he failed to bring the Record at his day appointed the Plaintiff recovered vide Dyer 6 Eliz. 227 228. Hil. 32 Eliz. in C. B. Lord Dacres Case GRegory Lord Dacres was summoned to answer Richard Gawton in a Plea of Debt for 26 l. 14 s. and did declare that the Defendant did retain the Plaintiff to be his Bayliff of his Mannor of Moreford c. and to receive the Defendants money for a certain time and to do other businesses for the Defendant and to render an account and afterwards before one Launcelot Love the Auditor assigned by the Defendant the Plaintiff did account Super quo computo praefatus Richardus pro diversis costagiis expensis quae idem Richardus circa prosecutionem executionem negotiorum praefati Gregorii in surplusagiis in praedict 26 l. 14. s. erga ipsum Gregorium ultra omnes denariorum summas per ipsum Richardum ad ipsum dicti Gregorii recept permansisset And thereupon he brought his Action and the Defendant pleaded Nil debet and it was found for the Plaintiff and yet he had not Iudgment First because the Declaration was insufficient because the Plaintiff was not in Surplusage to the Defendant but the Defendant to the Plaintiff and so are all the Presidents directly and he ought to alledge he was in Service and that he had received Goods whereof no mention is made Secondly Because neither day nor place is alledged where the Auditor was assigned Pasch 33 Eliz. in C. B. Rot. 409. Owseleys Case ROger Owsely brought a
opinion he relied upon the intention of the Donors which ought to be observed For if the Habendum does crosse the Premisses it shall be void but a Remainder is good for the benefit of a stranger but a Rent cannot be reserved upon such a Gift during the foure degrees but after the Reversion is good if he do attorne to the Gâ—…ntee of the Reveâ—sion Windham Frank-marriage is not an Estate in taile for there wants the word Heires Coke lib. 1.103 So a Gift to a man semini suo 10 Ass 26. and after Meade â—greeâ— with Windham although the grounds of Frank-marriage were not observed yet that it was good for although there be no Tenure between the Donor and Donee yet is it a good Frank-marriage Dyer It is no good Frank-marriage because the usuall words are not observed and if the word Liberum be omitted it is not Frank-marriage neither is it good given to a man but it must be to a woman for a man cannot give land to a woman Causa matrimonii praelocuti And in this case the party ought to be of the blood of the Donor who by possibility may be inheritable to him and there ought to be a Tenure between them and an acquittall and if any faile it is no Frank-marriage and he said further that if it once takes effect as Frank-marriage and then the Donor grants the Reversion or the Reversion discends to the Donees yet it shall not be destroyed but shall remaine as an Estate in taile and not for life because it once took effect in the Donees and their issues and if land be given to a man in Frank-marriage the remainder in taile yet this shall not destroy the Frank-marriage and the Donee shall hold of the Donor and not of him in the remainder And if one give land in Frank-marriage the remainders to the Donees in taile yet is this a good Frank-marriage and if the Donor grants over his Services yet doth the Frank-marriage continue although the Donees attorn for they are incident to the Reversion and therefore the Grant is void but if the Reversion be granted the Services will passe and he concluded that the Husband had all and the Wife nothing because no Estate to her is mentioned in the Premisses and he could not construe the words to be the intent of the Donor for here is an expresse limitation of the fee to the Husband and his Heirs which cannot be controlled by intendment And after 25 Eliz. It was adjudged to be no Frank-marriage nor gift in taile but a Fee-simple And the Iustices said that the ancient Books were that where it took not effect as a Frank-marriage it should be in especiall taile yet those at this time are not Law But they agreed that this at one time took effect as Frank-marriage and by matter ex post facto may be made an Estate in taile Mich. 30 Eliz. Gibbs Case GIbbs brought an Action of Trover against Basil for a Gelding the Case was One Porter stole this Gelding from the Plaintiff and sold him to the Defendant in open Market by the name of Lister and it was entred so in the Toll Book that Lister sold him The question was if this alteration of his name shall make any alteration of the property although the sale was in open Market Windham and Rhodes Iustices held this no good sale to bar the Plaintiff and grounded their opinion on the Statute of the 2 and 3 Phil. and Mar. cap. 7. which provides that no property of stollen Goods shall be altered that are sold unlesse the name and surname of the parties to the sale be written in the Toll-book And Shuttleworth moved that it should be in the Market and walked there for an houre together which is not set forth by the Defendant in his Bar but the Iustices said that such speciall plea need not to be but shall be intended Rouses Case IT was moved in this Case that if Tenant for terme Dauter vie does continue and hold in his Estate after the death of Cestuy que vie If he be a Disseisor and whether in pleading the plea ought to be seised and not possest Shuttleworth He was legally in at first and therefore cannot be a Disseisor 15 Ed. 4.41 A Freehold could not be gained where he came in by the agreement of the party and 12 Ass 22. Where the Husband and Wife were seised of a Freehold and after were divorced by Suit on the womans part whereby the woman is to have all the land yet if the Husband continue possession and dies seised this discent shall not take away entry because he was no Disseisor Gawdy He is Tenant at sufferance and no Disseisor and there it was moved that if Tenant at sufferance or a Disseisor makes Copies of Copyhold Lands if they be good or voidable And note that Wilde took here a diversity between a Termor that holds over and a Tenant at sufferance for in case of a Tenant at sufferance there is no Freehold taken from the Lessor which the continuance of possession doth not take from him but where the Tenant holds over his terme there the Freehold is disturbed and therefore there is a disseisin But at that present it seemed to the Iudges that there was no diversity But the next terme Godfrey moved that if Tenant for anothers life held over his Estate he had Feesimple and he granted that it was otherwise in some cases for if he claim to be Tenant at the Will of the Lessor he shall not gaine a Fee-simple For Littleton in his Chapter of Releases 108. saith that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold and such Occupyer claimeth nothing but at Will But in this case the Tenant claimes otherwise then at Will of the Lessor he does not claim any thing but at the Will of the Lessor as in the case of Littleton but claimes to hold over against the Will of the Lessor which is no Tenant at sufferance and 10 Ed. 4. If a man makes a Lease at Will and the Lessor dies and he continues possession and claims fee the Heire shall have a Mortdancester and 18 Ed. 4.25 If Cestuy que use dies and the Tenant continues in and the Tenant is impleaded the Lessor shall not be received and the reason is because there is no reversion in him but the Tenant hath it and 22 Ed. 4.38 by Hussey Iustice If a Termor holds over his Terme there an Estate in fee is confest to be in him by matter of Law but it is a deubt whether he be a Disseisor or not but it seemeth not for a Trespasse doth not lye against him before Regresse and in the 7 H. 4.43 If a Guardian holds the possession at the full age of the Heir or Tenant for years after his terme expired the Estate shall be judged in Fee And in our case he hath
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
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
that the Action might be against the Husband onely because that the woman could not convert them to his own use during the Coverture but onely to the Husbands use And the opinion of the Court was that the Writ was good against them both and that the conversion was in nature of a Trespasse and so the Action would well lye Mich. 32. and 33 Eliz. Kent against Wichall IN a Trespasse Quare clausum fregit herbam conculcavit the Defendant pleaded that he tendied sufficient amends to the Plaintiff and he refused the same and demanded Iudgment c. And upon a Demurrer the opinion of the Court was that this is no plea in Trespasse but in a Replevin it is a good plea Sed non dierunt causam diversitatis 21 H. 7.30.9 H. 7.22 F.N.B. 69. G. 31 H. 4.17 Drew demanded of the Court that whereas Edmund Leusage had bound himself in an Obligation by the name of Edward Leusage if this was good or not and it seemed to the Court Quod non est factum and Anderson and Walmesley said expresly that it was void 34 H. 6.19 6. Dyer 279 21 H. 7.8 Sir John Arrundell and his Wife brought a Quare Impedit against the Bishop of Glocester and others who pleaded in Bar that William Sturton was seised of a Mannor to which the Advowson was appendant and bound himself in a Statute-merchant of two hundred pounds to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present Note it was said by the Iustices of the Common Pleas that if a man promise another that he shall have a Lease in his land for eight years or it is agreed amongst themselves that one shall have a Lease of the others land for eight yeares that is no lease of the land but onely a Contract and Agreement but if one promise another that he shall have his land for eight years or openly agree that one shall have the others land for eight years this is a good lease for eight years by force of the agreement A. came before the Major of Lincolne and acknowledged a Statute-merchant and the Seal of the Major was not put to it and it was adjudged that the Statute was not good but a man may sue upon it as an Obligation because the Seal of the party is to it Pasch 36 Eliz. IN a Waste the Case was that a Lessee for yeares purchased Trees growing upon the land and had liberty to cut them within eighty yeares and after the said Lessee purchased the inheritance of the land and devised it to his Wife for life the Remainder to the Plaintiff in see and made his Wife Executrix and died who after married with the Defendant who cuts the Trees whereupon the Action is brought And by opinion of all the Court the Action was maintainable for although the Trees were once Chattels yet by the purchase of the Inheritance they were united to the land and Iudgment was given for the Plaintiff accordingly Pasch 36 Eliz. UPon an Exigent the Sheriff returned that after Divine Service he made proclamation and did not say that there was no Sermon and therefore the Iudges held that the return was not good for by the Statute if there be a Sermon in the Church the Sheriff shall make his proclamations after the Sermon and if there be no Sermon then after Divine Service and because it did not appeare whether there were any Sermon or not the opinion of the Court was ut supra It was said that a man shall not aver against a Postea in the Kings Bench or the Common Pleas to say that it was contrary to the Verdict nor shall he be received to say that the Iudges gave a Iudgment and the Clarks have entred it contrary to their Iudgment but otherwise is it in Court Barons or other base Courts not Courts of Record 10 Ed. 3.40 35 and 36 Eliz. Newman against Beaumond IF the Ordinary grants the Administration of the Goods of B. to A. and after grants the Administration to R. this second Grant is an appeale of the first without any further sentence of repeale for the Administrator is but a servant to the Ordinary whom he may charge at any time In an Action of Debt on a Bond bearing date the nineth of July the Defendant pleaed a Release of all Actions the same day usque diem dati ejusdem scripti and it was adjudged that the Obligation was not discharged because the Release does exclude the nineth day on which it was made Mich. 37 and 38 Eliz. Rot. 211. Holman against Collins HOlman brought a Writ of Error against Collins upon a Iudgment given in the Court of Plymmouth in the County of Devon the case was Collins was possessed of a peece of Ordnance and in Consideration that he would tender this to Holman for to put into his Ship which was then going to Sea and that Collins would stand to the hazard of losing it The said Holman did assume upon himself and did promise to give Collins certain Goods which he should gain by the Voyage and after the said Ship did return laden with certain Goods and for non-satisfaction the said Collins brought his Action on the Assumpsit and had Judgment to recover And Crook assigned these Errors 1. That the Stile of the Court was not good for it was Curia Dominae Reginae Burgi praedict tent coram Majori de Plymmouth without saying secundum consuetudinem villae praedict and he who is Iudge of the Court ought to be either by Patent or Prescription and then for not expressing the stile of the Court nor by what authority they held their Court it is error and he cited the case in the Lord Dyer 262. and a Iudgment 30 Eliz. Rot. 32. given in the very point Another Error was that no day was prefixed for the Defendant to appear but generally ad proximam curiam which is Error although it be held every munday And for these Errors Iudgment was reversed Trin. 28 Eliz. Rot. 948. Mercer against Sparks MErcer had Iudgment to recover against Sparks in the Common Pleas upon an Action of the Case for words and Sparks brought a Writ of Error in the Kings Bench and assigned for Error that the Plaintiff did not expresse in the Declaration that the Defendant spake the words malitiose but it was adjudged that it was no Error because the words themselves were malicious and slanderous wherefore Iudgment was affirmed Savacres Case IT was adjudged in the Common Pleas that if a Baron or others mentioned in the Statute of 21 H 8. take divers Chaplaines which have many benefices and after they discharge their Chaplaines from their Service they shall retain their Benefices during their lives and if the Baron takes others to be his
Chaplaines they cannot take many Benefices during the lives of the others which are beneficed and discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplaines In an Action of false Imprisonment brought against the Maior Citizens Sheriffs and Commonalty of Norwich it was moved where the Issue should be tried And by the Court the Issue shall not be tryed there and in the same case it was moved whether the Sheriff could summon himself and it was answered by the Court that he could not and Periam said that so it had been after adjudged Mich. 29. and 30 Eliz. IN an Avowry adjudged by the Court Anderson being absent that in an Avowry it is sufficient for the Avowant to say Son Franktenement but if the Plaintiff traverse it it is no plea without he makes to him a Title that is the difference of pleading Son Franktenement on the part of the Avowant and on the part of the Plaintiff And Welson said that so were all the Presidents that it is no plea to traverse the Bar in the Avowry without making Title And Periam said that it is no Title to plead De son seisin demesne but he must make out his Title Paramount his Seisin Demesue Mich. 29 and 30 Eliz. Bloss against Holman JOhn Bloss brought an Action of Trespasse Quare vi armis for taking of his Goods against Holman and the Defendant pleaded not guilty and the Iury gave a speciall Verdict viz. That the Plaintiff at the time of the Trespasse was of the Mystery of the Mercers and that at that time the Defendant was his Servant and put in trust to sell his Goods and Merchandizes in Shopa sua ibidem de tempore in tempus and that he took the Goods of the Plaintiff named in the Declaration and carried them away and prayed the advice of the Court if the Defendant were culpable or not and upon the Postea returned Shuttleworth prayed Iudgment for the Plaintiff And the doubt was because the Declaration was Quare vi armis because it appeared that the Defendant had custody of the Goods but Shuttleworth doubted whether he had Custody and cited the case of Littleton viz. If I give my Sheep to Compasture c. and he kills them an Action of trespasse lies and the Iustices held that in this case the Action did well lye and Periam said that the Defendant had onely an authority and not custody or possession and Iudgment was given for the Plaintiff 3 H. 7.12.21 H. 7.14 And Windham said that if he had imbezelld his Masters Goods without question it was felony Quod fuit concessum Anderson absente and the Law will not presume that the goods were out of the possession of the Plaintiff and the next day came the Lord Anderson and rehearsed the case and said that the Defendant had neither generall nor speciall property in the Goods for it is plaine he could have no generall property and speciall he had not for he could not have an action of Trespasse if they were taken away then if he had no property a trespasse lies against him if he take them so if a Shepheard steal Sheep it is felony for he hath no property in them wherefore he gave Iudgment accordingly Mich. 29 and 30 Eliz. Rot. 1410. Cooke against Baldwin A Lease was mate for one and twenty years to one Truepenny and Elizabeth if she and he or any Child or Children between them lawfully begotten should so long live and then they were married and the Wise died without Issue If the Lease be determined or not was the question And it was moved that it was determined because it is conjunctive if he and she c. and now one of them is dead without issue and it is not like the case of Chapman where a man covenants to enfeoff one and his Heires for it is impossible to enfeoff his Heires he living and therefore in that case it shall be taken for a disjunctive and if I make a Lease for years to two if one of them dye the other shall have all because they take by way of interest but it a Lease be made to two during the life of one of them if one dye the Lease is gone Quod fuit concessum And here the meaning is that the Lease shall be determined if one of them dye Rhodes Iustice The meaning is against you for by the word or which comes after it appears that they are to have their lives in it Anderson By the words it is plain that after the death of one the Lease is determined and that which moves me to think it was so intended is because it was intended as it seems to me to be a Ioynture for the wife which was made by them before marriage and then if by the death of one it should be gone and she have nothing could not be the meaning To which the other Iustices assented And all the Iudges agreed that the Lease was not determined by the death of one and Iudgment given accordingly Mich. 29 and 30 Eliz. IN a Quare Impedit by Sir Thomas Gorge Knight against the Bishop of Lincolne and Dalton Incumbent the Case was That a Mannor with the Advowson appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question And all the Iustices held clearly that the avoidance would not passe because it was a Chatiell vested And Periam said that in case of a common person without question an Advowson appendant would not passe by such Grant for if the Father dye it shall go to his Executor but if it be an Advowson in grosse in case of a common person there is some doubt But in the principall case all the Iudges held ut supra and said that so it was in 9 Ed. 3.26 Quare Impedit 31. And in Dyer in the case of the Church of Westminster but F.N.B. is contrary 33 N. Mich. 29 and 30 Eliz. Rot. 728. HOuse and Elkin brought an Action of Debt upon an Obligation made to them against Roger Grindon as Sheriffs of London upon condition of appearance at a certain day in the Kings Bench The Defendant pleaded that he being arrested by a Precept out of the Kings Bench appeared at the day And upon this they were at issue to be tried by the Country And a Repleader was awarded because it was triable by Record for although the Sheriff do not return the Processe yet the Defendant ought to come into the Court at the day and there speciall entry shall be made of his appearance And so was it adjudged this terme in the Case between Bret and Shepheard But Bradford Prothonotary said it was well enough for it may be that he appeared there and there was no Record of it To which it was answered that it
that when he is sued as King at armes in such case wherein his Office or other thing belonging to his Office comes in question then he ought to be named according to his Patent but when he is sued as I.S. then it is sufficient to name him by his proper name Popham Vpon the creation of any Deanery which is ordained and granted by Patent of the King the Dean shall sue and be sued by the name of Dean of such a place yet if such Dean doth sue or is sued about any matter concerning his naturall capacity it is not necessary to name him Dean Fenner But this is a name of dignity and by his installation is made parcell of his name and if a man be made a Knight in all Actions he shall be so named wherefore it seemed to him that the Writ ought to abate Et Adjournetur Hil. 37 Eliz. Hugo against Paine HUgo brought a Writ of Error against Paine upon a Iudgment given in the Common Pleas upon a Verdict the Error assigned was That one Tippet was returned in the Venire facias but in the Habeas Corpus and the Distringas he was named Tipper and so another person then was named in the Venire tryed the issue Curia Examine what person was sworne and what was his true name to which it was answered that his name was Tippet according to the Venire facias and that he was summoned to appeare to be of the Iury and he inhabits in the same place where Tipper was named and that no such man as Tipper inhabited there and therefore it was awarded by the Court that the Habeas Corpus and Distringas should be amended and his true name put in and Iudgment was affirmed c. Hil. 38 Eliz. Rot. 944. Rainer against Grimston RAiner brought an Action of the case against Grimston in the Kings Bench for these words He was perjured and I will prove him so by two Witnesses without speaking in what Court he was perjured and the Plaintiff had Iudgment and upon Error brought by the Defendant it was moved that the words were not actionable But in the Exchequer Chamber the first Iudgment was affirmed Hil. 39 Eliz. Rot. 859. Chandler against Grills IN a Trespasse the parties were at issue and a Venire facias was awarded on the Roll returnable Octabis Trinitat and the Venire was made six daies after the day of Octabis returnable at a day out of the terme and the Distringas was made and the Iury Impanelled and a Verdict and Iudgment for the Plaintiff And in a Writ of Error brought this matter was assigned And the first Iudgment affirmed for this is aided by the Statute being it is the default of the Clark and the case was cited between Thorne and Fulshaw in the Exchequer Chamber Mich. 38 39 Eliz. where the Roll being viewed and the Venire not good it was mended and made according to the Roll being that which warrants it and is the act of the Court and the other matter but the mistake of the Clarks But if the Roll were naught then it is erroneous because the Venire is without warrant and no Record to uphold it and so was it held in the case of Water Hungerford and Besie Hil. 39 Eliz. During against Kettle DUring brought an Action against Kettle after a Tryall by Verdict in London and in Arrest of Iudgment it was alledged that the Venire facias is Regina vicecomit London salut praecipimus tibi quod c. where it should be praecipimus vobis c. But ruled by the Court that this Venire being as it were a Iudiciall Writ that ought to ensue the other proceedings it was holden to be amendable and so it was accordingly Pasch 39 Eliz. East against Harding IT was moved Whether if a Lord of a Mannor makes a Lease for years after a Copyholder commits a Forfeiture the Lessee for years shall take advantage hereof and it was said by Popham that the Feoffee or Lessee shall have advantage of all Forfeitures belonging to Land as in case of Feoffment and the like but on the contrary for not doing of Fealty Mich. 39 Eliz. Collins against Willes THe Father makes a promise to Willes that if he would marry his Daughter to pay him 80 l. for her portion but Willes demanded a 100 l. or else did refuse to marry her wherupon the daughter prayed her Father to pay the 100 l. and in consideration therof she did assure him to pay him 20 l. back again The 100 l. is paid and the marriage took effect And the Father brought his Action on the case against the Husband and Wife for the 20 l. Gawdy and Fenner said that the Action would lye but Popham held the consideration void Mich. 39 and 40 Eliz. Penn against Merivall IN an Ejectment the Case was If a Copyholder makes a Lease for years which is a forfeiture at the Common Law and after the Lord of a Mannor makes a Feoffment or a Lease for years of the Freehold of this Copyhold to another if the Feoffee or Lessee shall take advantage hereof was the question Popham He shall not for the lease of the Freehold made by the Lord before entry is an assent that the Lessee of the Copyholder shall continue his Estate and so is in nature of an affirmance and confirmation of the Lease to which Clench and Fenner agreed and therefore upon motion made by Yelverton Serjeant and Speaker of the Parliament Iudgment was given Quod querens nihil caplat per Billam Mich. 6 Eliz. ONe enters a plaint in a base Court to pursue in the nature of a writ of entry in the Post and had Summons against the party untill such a day at which time and after Sun-set the Steward came and held the Court and the Summons was returned served and the party made default and Iudgment given the question was If the Iudgment was good Dyer Welch and Benlowes held the Iudgment good although the Court was held at night and Dyer said that if it were erroneous he could have no remedy by Writ of false Iudgment nor otherwise but onely by way of petition to the Lord and he ought in such case to do right according to conscience for he hath power as a Chancellor within his own Court Lane against Coups IN an Ejectment by John Lane against Coup and the Plaintiff declared on a Lease made by William Humpheston the Case was William Humpheston being seised of land in see suffered a common recovery to the use of himself and his wife for life the remainder Seniori puero de corpore Gulielmi Humpheston and to the Heirs Males of the body dicti senioris pueri Plowden One point is that when a remainder is limitted Seniori puero in tail if Puer shall be intended a Son or a Daughter also and methinks it shall be intended a Son onely for so are the words in common and usuall speech and words in Deeds ought to be
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 it was enacted by the Major of London and common Councel that if any Citizen takes the Son of an Alien to be his Apprentice that the Covenants and Obligations shall be void and he shewed that he was the Son of an Alien and became an Apprentice to the Plaintiff who is a Citizen and made the Covenants with him for his Apprentiship And demanded Iudgment And it was held no Bar for notwithstanding the Act the Covenant is good for it is the Act of the Defendant although the Act of the Common Councell be against it but the said Act may inflict punishment on any Citizen that breakes it And Iudgment was given for the Plaintiff Trin. 41 Eliz. in B. R. Knotts against Everstead LEssee for life the remainder for life the remainder in taile he in the reversion who had the fee does enter and enfooffs the Lessee for years and adjudged that by this Feoffment Nihil operatur Popham said that he who hath a term cannot license another that hath nothing in the land to make a Feoffment for he who hath the Freehold wants nothing but possession to make a good Livery but in this case he who makes the Livery had not the Freehold and therefore the license is void But Tanfeild said that if Lessee for life gives leave to a stranger to make Livery it is void but if he consent that the stranger shall make a Feoffment it shall amount to a Disseisin and the Feoffment is good Which was denied by the Court. And Clench said if a Lessee for ten years makes a Lease for one year to him in reversion there he in the reversion who hath the land for a year may make a Feoffment to the Lessee for ten years and it is good Trin. 41 Eliz. Moyle against Mayle MOyle brought an Action of Waste against Mayle and declared that he had leased to him a Mannor and a Warren and that he had destroyed a Cony-borough and subverted it and assigned otherwastes in cutting down certain Thornes Williams The Action of waste will well lye and said that a Warren consisted or two things of a place of Game and of liberty and to prove that a waste did lye for a liberty he cited the Statute of Magna Charta Cap. 5. in which a Warren is intended also the Statute of Marlebridge cap. 24. and the Statute Articuli super Chartas cap. 18. by which Statutes it is evident that a waste does lie for Warrens and a Warren is more then a liberty for a Writ lies Quare warrenam suam intravit and by the 12 H. 8. if Lessee of a Warren does break the Pale it is a waste also if Lessee of a Pigeon-house stop the holes so that the Pigeons cannot build a waste doth lye as it hath been adjudged Also if Lessee of a Hop yard ploweth it up and sowes Graine there it is waste as it hath been adjudged Also the breaking a Weare is waste and so of the Banks of a Fish-pond so that the water and fish run out To all which cases the Court agreed except to the principal For the Court held it was not waste to destroy Cony-boroughs for wast will not lye for Conies because a man hath not inheritance in them and a man can have no property in them but only possession and although by a speciall Law Keepers are to preserve the land they keep in the same plight they found it yet thiâ— does not bind every Lessee of land Walmsley The subversion of Cony-boroughs is not waste and it was usuall to have a waste against those who made holes in land but not against those who stop them up because therby the land is made better And it was said that to dig for stones was a waste unlesse in an ancient Quarry although the Lessee fill it up againe And Walmsley said that in Lancashire it is waste to dig Marle unlesse it be imployed upon the land And said it was not waste to cut thornes unlesse they be in a Wood stubbed and digged up by the roots but if they grow upon the land then they may be stubbed and it is no waste But to cut down Thorne-trees that have stood sixty or a hundred years it is waste Hil. 32 Eliz. in B. R. Sir George Farmer against Brook IN an Action of the Case the Plaintiff claimeth such a Custome in the Town of B. that he and his Ancestors had a bake-house within the Town to bake white bread and houshold-bread and that he had served all the Town with bread that no other could use the Trade without his license and that the Defendant had used the Trade without his license upon which the Defendant demuâ—'d Morgan This is a good Prescription and it is reason that a Prescription should bind a stranger vide 11 H. 6.13 A. prescribed to have a Market and that none should sel but in a Stall which A. had made and was to pay for the Stall and held there a good Prescription And the Arch-bishop of Yorks Case in the Register 186. is a good case A man prescribed that he had a Mill and he found a horse to carry the Corn thither and that therfore they ought to grind there and because they did not he brough his Action on the case Buckley contra It cannot be intended to have any commencement by any Tenure 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny adjudged not good and the case of the Arch-bishop was good because he had it ratione dominii tenuri And adjudged the principall case that the action will not lye 23 Eliz. in C. B. Farrington against Charnock KIng Henry the 8 granted Turbariam suam in D. at Farrington rendring rent sur 21. years and then the Lessee imployed part of it in arable land and relinquisht part of it in Turbary and then Q. Mary grants Totam illam TurbariaÌ„ before demised to Farrington and adjudged that that passed only which was Turbary and the other part that was converted into Tillage did not passe Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother and the Error assigned was that there was no warrant of Attorney of the Record And it was agreed by the Bar and Bench and adjudged error But the great point was if the Plaintiff could have a writ of Error The Case was Henry the Father had Henry his Son and three Daughters by one Venter and the Plaintiff by another Venter and died seised of the land intailed to him and the Heirs Males of his body Henry enters and makes a Feoffment the Feoffee is impleaded and voucheth Henry who looseth by default in the recovery and dies without issue and whether the Daughters which are Heirs generall or the Plaintiff which is Heir in tail shall have the Error Gawdy and Baker for the Defendant who said
this very cause prescribed as we do in this case so they may prescribe in a way or other thing of easement or pleasure 7 Ed. 4.26 a. 15 Ed. 4.29 a. Anderson There is no question but Parishioners may justify their going over any bodies land in their Perambulation Warberton Parishioners shall not prescribe in an easement as in â—y way to the Church Owen The books make a difference between things of interest as in common for in such things Parishioners cannot prescribe and things of easement as a waste for in such things a man may prescribe Anderson It is plain that Parishioners cannot prescribe for none may prescribe but those that have perpetuall continuance and therefore Tenant for years or for life or Parishioners cannot prescribe but must be aided by custome Walmsley of the said opinion for there is no descent or succession in Parishioners And Iudgment was given for the Plaintiff Trin. 37 Eliz. in B. R. Norton and Sharp against Gennet Rot. 178. A Prohibition was sued by the Plaintiffe as Executors to I.S. who surmised that the Defendant sued them in the Court Christian for a Legacy of 200 l. and that the Testator had goods but to the vale of 350 l. and set forth how he was Keeper of the Prison of Ludgate that he was bound to A. and M. Sheriffs of London to discharge and save harmlesse the same Sheriffs from all escapes which bond was to the value of a 1000 l. And shewed that one Holmes was taken by a Capias utlegatum at the suit of a stranger and how the Testator suffered him to escape whereupon an action of debt was brought against the Sheriffs and a Iudgment whereby the Obligation made to them by their Testator is forfeit and pleaded riens intermaines and because the Court Christian would not allow this plea they prayed a Prohibition upon which Coke Attorney-generall demurred And it was agreed by Gawdy Iustice Coke and Tanfeild that if the Bond to the Sheriff be not forfeit then is the Surmise good and the Legacy shall be paid But Fenner said to Coke Quomodo probas Who answered The difference is when a bond is made by the Testator for payment of money in a Suit at the Court Christian for a Legacy such a bond is a good plea although the bond be not forfeit as in the 9 Ed. 4.12 13. for the Condition of the Bond is part of the Bond and a duty but otherwise it is where the Condition is collaterall for the performance of Covenants but in our case the Condition is not broken as is supposed for the Capias utlegatum issued the 25 of Eliz. and so the Arrest meerly void for every Capias ought to be returned the next term after the Teste 21 H. 7.16.6 8 Ed. 4.4 6. Sed alii contra But after a Consultation was moved for if a Recovery was afterwards had against the Executors And it was answered that it was not the course to make a Bond to the party but to the Court But Fenner said that it such course be allowed no Legacy would be paid And Iudgment was given that a Consultation should be awarded if the Legatee would enter into a Bond to the Executor to make restitution if c. or otherwise not Hil. 38 Eliz. in B. R. Haddon against Arrowsmith IN an Ejectment the case was The Queen being Lady of the Mannor of Winterburne in the County of Berks by her Steward did license a Copyholder for life to make a Lease for three years if he should so long live the Copyholder did make a Lease generally to the plaintiff for three years who being ejected brought this Action Stephen The Action will not lye because the Copyholder hath not pursued his licence for license or authority must be pursued very strictly as well in form as substance 10 H. 7. license to enfeoff by Deed or license to impark 300. acres he cannot enfeoff by paroll or impark but 100. acres and it was resolved the last Terme in the Exchequer that if the King license his Tenant to alien he cannot alien to one in tail the remainder to the Donor in fee And so in our case where he makes a Lease for 3. years absolutely he hath not performed his license Gawdy contra for when his license is to make a Lease for yeares if he so long live these words If he so long live are but Surplusage for the Law saies that if Copyholder for life makes a Lease for years and dies the Lease is determined and therfore the clause in the License is no more then the Law saies and so is void Quod suit concessum per totam curiam Fenner The Condition in the License is meerly void for the Lord gives nothing by the License but only doth dispence with the forfeiture and the Lessee is in by the Copyholder and not by the Lord for the Lord cannot condition with him in his License Clench The Lord may license on Condition as where the Lord doth licence his Copyholder on condition that the Lessee shall repair the house or shall not cut Trees for otherwise the Copyholder may cut them and the Lord hath no remedy for his License is a dispensation of the forfeiture Popham contra A Condition to a License is void as a License to make a Lease for years on condition that he pay 20 l. the second year this is void for the reason given by my brother Fenner for the license does not give a right but only executes it as a Livery or Attornment but a Limitation to such License is good as license to alien for two years he cannot alien for three but in our case the Condition the Limitation made by the Lord is void and the difference is between a Copyholder in fee and a Copyholder for life for if the Lord doth license his Copyholder in fee to make a Lease for three years if he so long live and he makes a Lease absolutely this is no forfeiture for this Lease shall be a good interest against the Heir of the Copyholder but otherwise of a Copyholder for life And Iudgment was given for the Plaintiff Pasch 38 Eliz. in C. B. Bishop of Rochesters Case THe Bishop of Rochester brought a Writ of Annuity against the Deane and Chapter of Rochester and declared of an Annuity by Prescription from the Prior of S. Andrewes of Rochester which Priory was dissolved the 28 H. 8. 31 H. 8. their possessions were committed by the King to the Dean Chapter of Rochest Anderson The Annuity does not remain for an Annuity chargeth the party and not the possession and therfore when the Corporation is dissolved which is the person the Annuity is gone Walmesley But in 2 H. 6 9. it is said there If a Priory be charged with an Annuity the Annuity shall continue although it be charged to an Abby Anderson That is true for there the Corporation is changed only but here it is
Devise did occupy land for 20 years and after the Devise was adjudged voyd he that had right to the land brought an account against him and adjudged that it does not lye Harper contr For an account does lye against a Proctor and the Plaintiff may charge him as Proctor and it is no Plea for him to say that he did not occupy as Proctor no more than it is a Plea for him who occupies as Guardian to say he was not the prochein amy Dyer There are three Actions of Account 1. Against a Baily 2. Against a Receiver 3. Against a Guardian in socage and if an Account be brought against one as Receiver he ought to charge him with the receipt of money and I conceive that there ought to be a privity to charge one with the receipt of money but if one claim as Baily or as Guardian in socage he is chargeable in account but an Abator or a Disseisor is not because they pretend to be owners and in this case because by the setting forth the Tithes the property is in the Parson therefore he being Lessee for years he shall have an ejectione firma and not an Account Hillar 32 34 Eliz. Carter against Kungstead in C. B. Rotulo 120. IN a Trespass the Iury gave this special Verdict John Berry was seizin of the Mannour of Stapeley in Odiam and of other lands in Odiam and the 32 H. 8. suffered a common recovery of all his lands in Odiam Stapeley and Winkfield to the use of himself and his wife for life the remainder to the heirs males of his body quod â—lterius starent of the Mannour of Stapeley with the appurtenances to the use of himself for life the remainder to the heirs males of his body whereby they were seized prout Lex postulat The husband dyes the wife makes a Lease for 19 years and whether the Mannour of Stapeley were conveyed or not was the question Harris She shall have all for when the whole estate is limited at the beginning of a Deed it shall not be abridged afterwards Periam The estate is by way of use which shall be expounded according to the intent and will of the Limiter and if this had been done by will it is clear the woman should not have the Mannour of Stapeley Anderson If I devise my land to J.S. and afterwards by the same Will I devise it to J.D. now J.S. shall have nothing because it was my last Will that J.D. should have it But otherwise it is of a use for if I do limit an estate to the use of J.S. and in the last clause do limit the same estate to J.D. the limitation to J.D. is voyd for the repugnancy Periam As to the case of the Will I conceive it is voyd to both because it cannot be known who shall have it Anderson I am sure the Law hath been taken as I have said and there was a Case in the Vpper Bench where a man one day made part of his Will and another day made another part which was repugnant to the first part and adjudged that the last was good and the first voyd Periam I agree to this Case for here is a difference in time Anderson So is there in my Case for when I am writing my Will I am thinking how I shall dispose of my estate and it shall be intended that I have least advised concerning that which I have done last Walmesley A Vse is not to be compared to a Will for the Statute of 27 H. 8. hath made it an estate and then by the 19 of Edw. 3. If a man limits an estate at the beginning of a Deed he cannot after abridge it Periam I put this Case If a man covenants upon consideration to be seized to the use of himself for life and after to the use of his son but he further sayes that his meaning is his wife shall have it for her life this is not a voyd Clause but good to the wife and the Case was adjourned till next Term. And Harris argued again and said that a Vse was but matter of trust and for that it is apparent that the intention was that the wife should have nothing there is no reason that another construction should be made Walmesley The limitation of the Vse is but a declaration how the Vse shall be and does not give any thing and the opinion of the Court was against the Plaintiff who was Lessee of the woman and that the last Clause does countermand the first as to the Mannour of Stapeley Michael 31 32 Eliz. Brokesbyes Case in C. B. Rot. 18.15 BArtholomew Brokesby brought a Quare impedit and it appeared by his Declaration that the next avoydance was granted to him and one Humphrey Brokesby and then the Church became voyd and Humphrey did release to Bartholomew totum statum titulum c. and then Bartholomew being disturbed brought a Quare impedit in his name alone Harris The Plaintiff shall be barred for the other shall be named with him for the Release is voyd for when the Church becomes voyd it is a thing in action and of privity and confidence and cannot be released nor transferred Dyer 283. a. 28 H. 8.26 a. Where it is said that it cannot be granted over no more than an Executor may release his Executorship to his companion Beaumont In my opinion it is not a Chose in action but an interest which the Executors have and by the 14 H. 4. and 14 H. 6. If a man be seized of an Advowson in the right of his wife and the Church is voyd and the wife dyes yet the husband shall present which proves it is not a Chose in action for in the 49 Edw. 3.23 the husband shall not have an obligation that was made to his wife and in our case by this avoydance the Church is become an interest and a Chattell and therefore one Ioyntenant may release to another by reason of their privity although they have no possession Fenner The release is Totum Statum jus titulum but here he hath no estate nor possession and therefore the release is void And to prove that there is no estate nor possession it is proved by the pleadings of the grant of the next avoydance for he shews that the Church became voyd and that ea ratione pertinet ad ipsum presentare and not by force whereof he was possest and if none hath the advowson which becomes voyd and the Lord claymes the advowson yet he shall not have the present avoydance and as to the case of the Ioyntenants one cannot release to the other for default of possession for the release inanes by reason of their joynt possession which is out of them but release of the Demandant to the Vouchee is good by reason of the privity of Law that is betwixt them and in 11 H. 4. He who hath right after the Incumbent is instituted and inducted may confirme his
this is voyd And after viz. 31 Eliz. It seemed to all the Iustices that the consideration was not good and therefore the contract voyd But if goods he delivered to an Infant to be re-delivered if Afterwards his Executor assumeth to re-deliver them this is good Gawdy in the 13 H. 6. If a man be indebted in a simple Contract and dye and his Executors assume to pay the debt it is good but â—his seems to be contrary to the Law for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Caâ—e 10 H 6. where an Infant brought an Action of Trespass and submitted himself to an arbitrement this shall binde him at his full age and this was agreed by the Court but differs much from the Case at Bar for when an Infant commits a Trespass he is chargeable in an Action of Trespass and shall lose damages but it is not so here Wherefore Iudgement was given that the Plaintiff should be barred Mich. 30 Eliz. Stanton against Chamberlain Rot. IN an Action of Debt upon a Bond upon non est factum pleaded the Iury found that the Defendant sealed the Bond and cast it on the Table and the Plaintiff came and took up the Bond and carried it away without saying any thing and if this shall amount to a Delivery by the Defendant to the Plaintiff was the question And it was resolved by all the Iustices that if the Iury had found that he had sealed the Bond and cast it on the table towards the Plaintiff to the intent that the Plaintiff should take it as his Deed who took the Bond and went away that had been a good delivery or that the Plaintiff after the sealing and casting on the table had taken it by the commandment or consent of the Defendant but because it is found that the Defendant onely sealed it and cast it on the table and the Plaintiff took it and went away with it this is not a sufficient delivery for it may be that he sealed it to the intent to reserve it to himself untill other things were agreed and then if the Plaintiff take it and go away with it without the Defendants consent that will not make it the Descendants Deed. But it was said that it might be accounted to be the Defendants Deed because it is found that he sealed it and cast it on the table and the Plaintiff took it c. and it is not found that the Defendant said any thing and therefore because he did not say any thing it will amount to his consent Nam qui tacet consentire videtur But to this it was answered that it is not found that the Defendant was present when the Plaintiff took it and if the Defendant had sealed and cast the Bond on the Table when the Plaintiff was not there and then the Defendant went away and then the Plaintiff came and took it away then clearly it is not the Deed of the Defendant Hill 31 Eliz. Beron against Goodyne IN an Ejectment the Case was the King was seized of lands in Fee and a stranger intruded and the King grants this land to J. S. in Fee and the Intruder continues possession and dyes seized The question was if this descent shall take away the entry of I.S. Johnson It shall not for none will affirm that an Intruder shall gain any thing out of the King but that the land shall pass to the Patentee and the continuance of the Intruder in possession and his dying seized shall not take away the entry for he cannot be a Disseisor because he gained no estate at the beginning as if a Guardian continues possession after the heir is of full age he is no Disseisor nor shall gain any estate And 10 Ed. 3.2 where a tenant of the King dyes his heir within age and a stranger enters and after the heir is of full age dyes seized this shall not take away the entry of the heir Cook contr By his continuance of possession he shall be accounted a Disseisor and the Free-hold out of the Patentee for another estate he cannot have for tenant at sufferance be is not for he comes in at first by a title as in the 12 Assi The Dona's in Frank-marriage are divorced and the husband continues the possession and so where a Lessee continues possession after the death of the tenant for life these are tenants at sufferance and the Patentee hath a Free-hold in Law which is taken away by descent and denyed there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2 where a Fine was levyed per conusans de droit come ceo c. if before the Conusee enters a stranger enters and dyes seized the entry of the Conusee is barr'd So is it where an Advowson is granted to J.S. and his heirs and a stranger usurps the Grantee hath no remedy And if a man deviseth land to J.S. and before he enters a stranger doth enter and dyes seized the entry of the Disseisee is taken away and so it is in our case But a further day was given Cook to shew cause why Iudgement should not be given against him Hillar 31 Eliz. Suttons Case in C. B. Rot. 533. IN an Ejectment the Iury gave a special Verdict that the Defendant nihil habens in terra did make a Lease thereof to the Plaintiff by Indenture according as the Plaintiff had declared and then the Defendant entred on the Plaintiff and whether this entry be good was the question Walmesley for the Defendant Iurors are sworn ad veritatem dicendum and therefore they shall not enquire of Estoppels because it is not in evidence But the whole Court was against him who held that the Iury might finde a matter that is not shewed in evidence for by Anderson in an Assize they may finde a Release although it be not given in evidence and he and Periam held that the Plaintiff ought to have Iudgement for that there was a good Lease between the parties and if Rent were reserved an Action of Debt would lye Windham contr For it is onely an Estoppell between the parties but the Court is at liberty and are not estopped when the truth appears to them and it is a Maxim in Law that he who hath nothing in the land cannot make a Lease and then the Plaintiff hath no cause of Action And afterwards viz. 32 Eliz. Anderson and Periam were expresly for the Plaintiff for whereas it hath been said that it was a Lease by Estoppell they held it was not so for that in Debt the Rent should be recovered And Anderson said If I levy a Fine of your land to you for years if you be put out I shall have an Assize but Windham was of opinion with Walmesley wherefore Periam said we will have the opinion of the other Iustices in the Exchequer Chamber wherefore c. Trinit 30 Eliz.
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
for the goods themselves are not to be recovered in this action nor damages for them and so they are but collaterall to the action as in 10 Edw. 3.30 In a Rescous the Court was for taking of Cattle without shewing what Cattle and the Iury found them to be two horses and the Plaintiff had judgment where note that a verdict did help an insufficient Court and 22 Aâ—si 21 Ed. 3. a trespass was brought for taking away of Writings concerning land without shewing what they were or the quality of the land But otherwise in a detinue for Charters for there the Writings themselves are to be recovered The second and great doubt was when a man doth promise to another that if he will deliver the pawn he will pay the debt if this be a sufficient consideration to maintain an Assumpsit Foster Justice It is not for he that hath the pawne hath not such an interest in it as he may deliver it over to another or make a legall contract for it and that his delivery being illegall he cannot by his own wrong raise an action to himself and a man shall never maintain any action where the consideration is illegall and not valuable 9 Ed. 4. In an action on the Case the Defendant pleaded an accord and that he delivered the writing to the Plaintiff which concern'd the land and it was held no plea because the Plaintiff having land the writtings belonged to it And cited Reynolds Case where a man promised another 100 l. to solicite his business and it was holden that no action would lie for the money because the soliciting his business was illegall he being no man of Law Dier 355 356. Cook Warburton and Daniell cont Who said that the consideration was good legall and profitable and sufficient to maintain an assumpsit for he who hath goods at pawn hath a speciall property in them so that he may work such pawn if it be a Horse or Oxe or may take the Cowes milk and may use it in such manner as the owner would but if he misuseth the pawn an action lyes also he hath such interest in the pawn as he may assign over and the assignee shall be subiect to a detinue if he detaines it upon payment of the money by the owner as in the 2. assise Land was leased untill he had raised 100 l. he hath such interest as is grantable over And Foster agreed to this because he had power to satisfie himself out of the profits And it was agreed by the Court that if a man takes a distress he cannot work the distress for it is only the act of the Law that gives power to the distress for he hath no propertie in the distress nor possession in jure as in the 21 H. 7. Replevin A man hath returne Irreplevisable he cannot worke them for the Iudgment is to remit them to the pound ibid. remansurum vid. 13 R. 2 Brook 20 H. 7 1 a. 34 H. 8. Bâ— pledges 28.22 Edw. 4 11. goods pawned shall not be put into execution untill the debt be satisfied And it was agreed by Cook and Warburton that when a man hath a speciall interest in a thing by act in Law that he cannot work it or otherwise use it but contrary upon a speciall interest by the act of the partie as in case of a pawn Daniell There is difference between pawns which are chargeable to the parties as Cowes and Horses and things that are not chargeable and also there is a difference between pawnes that will be the worse by usage as Clothes c. For if the pawn be the worse by usage an action of the Case will lie against him that hath them pawned to him But contra of goods that are not the worse for usage Cook If I deliver goods to you untill you are promoted to a benefice you may use them which Foster denied And Iudgment was given for the Plaintiff and that they may be granted over and so a good assumpsit will lie 26 Eliz. Earl of Northumberlands Case THis case was privately argued before the Lord Treasurer because the parties agreed to refer themselves to the opinion of Wray and Anderson And the case was this the Earl of Northumberland devised by his will his Iewells to his wife And dyed possessed of a Collar of Esses and of a Garter of gold and of a Buckle annexed to his bonnet and also of many other buttons of gold and pretious stones annexed to his robes and of many other chains bracelets and rings of gold and pretious stones The question was if all these should passe by the devise under the name of Iewells And both Iustices did Resolve that the Garter and Collar of Esses did not pass because they were not properly Iewells but ensignes of Honour and State and that the Buckle in his bonnet and the buttons did not pass because they were annexed to his Robes and were therfore no Iewells But for all the other chaines rings braceletts and Iewells they passed by vertue of the said Will. Michaelm 40 41 Eliz. Sperke against Sperke in C. R. Rot. 2215. IN an ejectment the Case was this M. Sperke made a Lease of the land in question to William Sperke for 89. years if William should so long live the remainder after his death to the Executors or Assignes of the said William for 40. years afterwards William dyes Intestate and administration is committed to Grace Sperke his wife who entred clayming the 40. years and the Defendant clayming by another Lease entred upon him and he brought this action Aâ—dâ—…on Executor is as good a name of purchase as Heire is And I conceive the points in this case are two First if the Administrator be an assignee Secondly If the lease for 40. years be a Chattell vested in the Intestate in his life for if it be then his Administrator shall have it And as to the first I conceive that she is not assignee to take these 40 years For in the 19 Ed. 3. It is there said that Administrators are not assignees for administration is appointed by the ordinary and assignees must be in by the party himself and not by a stranger and therefore an Administrator cannot be an assignee as an Executor that comes in by the partie or as a husband for his wife Walmesley and Glanyâ—… accorded But Kingsmill cont for he said that although one could not be assignee in Deed without the act of the partie yet one may be assignee in Law by the act of the law And so the opinion of the â— Iustices to the first point was that the Administrator could not have it as assignee and as to the second point Anderson said that it could not vest for if a man have a Lease for life the remainder for 40. years the remainder is voyd because there is no person named to whom it is limited but if a man make a Lease for life and after his death to his lessee for
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
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
Court of Wards TEnant of the King by Knights service bargains and sells his land to Sir Henry Dimmock and his heirs and Sir Henry Dimmock dyes his heir within age and then the Deed is inrolled the question was if the King should have premier seisin Trist The King shall not because Sir Henry did not dye within his homage but the land was in the Bargainor as if there be a Bargainee of the reversion and the Tenant makes waste the Bargainee shall not have waste unless the Deed be introlled before the waste committed 3 Jacobi Bellingham against Alsop Bargainee before inrolment sells the land over and it was adjudged that the second bargain was voyd 10 Eliz. Mockets case Disseisee releaseth to the Bargainee of the Disseisor before inrolment and adjudged voyd 5 Eliz. in Pophams Case it was said that the Statute of inrolments had altered the Common Law for now by the delivery of the Deed no use is raised untill it be inrolled But all the Iustices held that the heir should be in Ward and pray premier seisin if he were of full age for the Statute sayes that no use shall be unless the Deed be inrolled but if it be inrolled it passeth ab initio and then the Bargainee shall be Tenant ab initio But it was also agreed by all the Iustices that the wife of Sir Henry shall not be indowed and that Rent paid to the Bargainor at the Rent-day incurr'd after the bargain is good and the Bargainee hath no remedy because it is a thing executed Trinit 12 Jacobi Cuddington against VVilkin in C. B. Rot. 924. IN an Action of the Case for calling the Plaintiff Thief the Defendant justified because the Plaintiff had stollen Sheep 37 Eliz. the Plaintiff replyed protestando that he had not stollen Sheep and pleaded the General Pardon 7 Jacobi upon which the Defendant demurred and adjudged for the Plaintiff for the Pardon had so purged and abolished the Offence that now he was no Thief 1 Ed. 3. Corone 15. 2 Ed. 3. Corone 81. 1 Assi 3. So if one call another Villain after he is infranchised And in one Baxters Case in Banco Regis it was adjudged that where a man was accused for Perjury and acquitted by Trial if he be afterwards called perjur'd he shall have his Action on the Case And Iudgement was given for the Plaintiff Seaman against Cuppledick IN a Trespass of Assault and Battery the Defendant justified in defence of his servant scil that the Plaintiff had assaulted his servant and would have beaten him c. and the Plaintiff demurr'd Yelverton The bar is good for the master may defend his servant or otherwise he may lose his service 19 H. 6.60 a. Crook Iustice The Lord may justifie in defence of his villain for he is his inheritance Williams contr The master cannot justifie but the servant may Justifie in defence of his master for he owes duty to his master 9 Ed. 4.48 Yelverton The master may maintain a plea personal for his servant 21 H. 7. and shall have an Action for beating his servant and also a man may justifie in defence of his cattle Cook A man may use force in defence of his goods if another will take them and so if a man will strike your cattle you may justifie in defence of them and so a man may defend his son or servant but he cannot break the peace for them but if another does assault the servant the Master may defend him and strike the other if he will not let him alone Williams It hath been adiudged in Banhams Case that a man cannot justifie a batterie in Defence of his soil a fortiori he cannot in defence of his servant vid. 19 H. 6.31 9 Ed. 4.48 Trinit 12. Jacob. Drury against VValler IN an action on the Case upon a trover and conversion of 200 l. delivered by the Plaintiff to the Defendant and upon not guilty pleaded the Question was if denyall by the Defendant to pay it upon request would beare this action And the case of Isaac was urged who brought an action of Trover c. for 200 l. in a bag and by verdict it was found that demand was made thereof and a deniall to pay it And by Dodderidge it was a Conversion Crooke accorded but Haughton doubted the case And Man Prothonotarie said that he remembred a president in the Case where it was resolved that in such case deniall of a horse was a conversion Haughton I remember an action of Trover was brought for a Trunk and it was ruled there that if one hath Timber in my land and he demands liberty to carry it off my Land and I deny it this is not a sufficient conversion Dodridge there is great difference in the Cases for a Horse or money cannot be known if they be used but Timber may Et adjournatur Michaelm 8 Jacobi Alfo and Dennis against Henning in B. R. Rot. 969. IN an action of Covenant the Case was thus Thomas Tavener by Indenture primo Jacobi did demise land to one Salisburie for 7. years and by the same Indenture Salisburie did Covenant grant condescend and agree with Taverner his heirs and assignes that he his Executors and Administrators should pay to Taverner his heirs and assigne 75 l. per annum And after Taverner demised the same land to Mary Taverner for life and he demised the reversion for 40. years to the Plaintiff if he so long lived and the tenant attorned and for rent due at the Feast of St Michaell he brought his action of Covenant And the first question was if this were a sum in gross because the Lessee covenanted to pay this as a Rent And resolved by Cook Chief Iustice and the Court that this is a good reservation of Rent for it is by Indenture and their intention was to have it as a Rent and the words of the Indenture shall be accounted to be his who may most properly speak them 26 H. 8.2 10 Eliz. 275. 22 H. 6.58 28 H. 8.6 And the Case between Whitchett and Fox in Replevin this terme where a man made a Lease for 99. years rendring rent and the Lessee covenanted by the same deed with the Lessor that he would not alien without his assent upon paine of forfeiture and after he aliened and the Lessor entred And it was held by the Court that this was a condition although the Plaintiff did covenant for being by Indenture they shall be the words of both and the words sub paena â—orisfacturae are the words of the Lessor The second point was if the assignee for 40 years may have a Covenant and it was held he might for it is for payment of rent and if the Lessee covenants to do any thing upon the land as to build or repaire a house there a covenant will lie for the assignee by the common Law but if it do not by the Common Law yet it is cleere that it will lie by the Statue of
the 32 H. 8. And the Court held that an Assignee of part of the reversion might take advantage of the condition or covenants so that he hath part of the reversion of all the thing demised And Cook Chief Iustice said that the opinion of Mourson 14 Eliz. 309. a. is good Law Pasch 36 Eliz. Butler against Archer IF two Ioyntenants be of land holden by Herriot service and one dies the other shall not pay Herriot service for there is no change of the tenant but the survivor continues tenant of the whole land But if a man seised of land in Fee makes a feofment to the use of himself and his wife and the heires of their two bodyes begotten the remainder to the right heires of the husband and the husband dyes a Herriot shall be paid for the ancient use of the reversion was never out of the husband Michaelm 29 30 Elizab. Stephens Case in C. B. IN an Ejectment the Case was Sir William Beale made a Lease by Indenture to William Pile and Philip his wife et primogenito proli Habendum to them and the longer liver of them successively during their lives and then the husband and wife had issue a daughter And it was holden by three of the Iustices that the daughter had no estate for that she was not in esse at the time of the grant Michaelm 30 31. Eliz. Lewin against Mandy in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent which was pleaded to be granted by Lovelace and Rutland by Fine to Stukeley and his heires who being seized thereof did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland upon which a Fine was levyed by which Fine the said Lovelace and Rutland amongst other things did grant a rent of 20 l. out of the Mannor of D. and other Lands to the said Stukely who granted it to Hoveden under whom the Defendant claymes in Taile The Question was if this were a good grant because there are many misrecitalls in the Indenture for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants in truth they were Plaintiffs and Stukely and the others Defendants and whereas he recited that the said grant was made to him it was made to him and his heires also he said that the said Rent Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted and that only out of the Mannor of D. and not out of other Lands Anderson If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good And at last it was adjudged that the grant was good Note that Fenner at this time said that it had been resolved by Anderson and Gawdy and other Iustices very lately That if the Kings Tenant dies his heir within age yet the heir at full age before livery sued may bargain and sell by Deed inrolled or make a Lease for years and it is good but if he makes a feofment or leavie a fine â—ur conusance de droit come ceo c. this is voyd because it cannot be without intrusion upon the King Trinit 39 Eliz. Oldfeild against VVilmore in C. B Rot. 2715. IN Debt upon a Bond to performe the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof the Defendant pleaded performance the Plaintiff replyed that he had not payed the money and the Defendant demurred Walmesley for the Plaintiff For although the award be in the disjunctive yet forasmuch as it is voyd as to one part now upon the matter it is single and on the non payment of the ten pound is forfeit 17 Ed. 4.5 Windham and Rhodes held that the Plaintiff should have pleaded so much of the award as was for it is a thing intire and the Law will adjudge that one is only to be done because the other is contrary to the Law Anderson and Peryam The plea is good for a man shall not be compelled to shew a voyd matter and although the Defendant had caused the two strangers to be bound the obligation is broken for as to this arbitrement it is meerely voyd and at another day the Plaintiff had judgment Goodridge against VVarburton IN an Ejectment The Iury gave a speciall verdict that Francis was seised of the land in Tayle and suffered a Recovery to the use of him and his heirs and afterwards did devise the same lands to his wife Margery untill his daughter Prudence came to the age of 19. years and then that Prudence should have the Land to her and the heirs of her body upon condition to pay twelve pound per annum to the said Margaret during her life in recompence of her dower and if she failed of payment then Margaret should enter and hold the Land during her life and afterwards it shall go to Prudence as before And after this John Francis the heire did reverse this recovery by a Writ of Errour and entred upon Margaret and she brought her Writ of Dower and was indowed of the third part and then she levyed a Fine of that third part to the said John Francis and he infeoft Tyndall who made the Lease to Goldsing and then Margaret marryed Warburton and Prudence came to the age of 19. years the Rent of twelve pound is not payd and Warburton and his wife entred and Goldsing brought this action VValmesley By the recovery of the third part in the Writ of Dower the Rent of twelve pound which was in recompence thereof is gone For at the Common Law if a woman recover in Dower she hath waived that which was assigned to her in lien of her Dower as in case of Dower ad ostium Ecclesiae and 10 Edw. 4. If the husband discontinues the Land of his wise and she brings a Writ of Dower she is concluded to have a Cui in vita Shuttleworth cont By this recovery the estate taile is revived yet as this case it is is not materiall for because he entred without a sult he is a Disseisor and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11 And I conceive that the Dower will not conclude her of the twelve pound per annum for it is not a Rent and the title to have the Land for her Ioynture for non-payment the Rent was not in esse at the time of the recovery of her Dower but afterwards as if a Lease he made to a woman who marries the Lessor who dies within the terme and the wise enters this shall not conclude her Dower after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land and so it cannot be a Ioynture and therefore
Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before Mâ—châ—e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. Fâ—steâ— did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall