Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
in tayl the issue should be barred After which Statute as I intend the Law was such that when Tenant in tayl levied a Fine of such a thing as he might discontinue and the Fine executed in possession allthough the words of the Statute were Ipso jure sit nullus yet the issue was put to his Formdone but if it were a Fine Executory then by the death of the Tenant in tayl the issue was remitted and the Fine voyd But now by the Statute of 4 Hen. 7. the Law is made otherwise and for that here it is to be granted that he cannot discontinue the estate tayl because the reversion is in the King as it was now lately adjudged in the Exchequer in the case of Gillebrand ergo here the estate doth not pass to the Feoffees by the first Fine when he took an estate again to himself for life the remainder to the Lord Seymer in Fee but a Fee simple determinable then when the Lord Seymer was attainted Queen Mary had such an estate as the Lord Seymer had which was a Fee determinable and she had another Fee absolute in jure Coronae After when he sued by Petition he did not shew to the Queen what estate he had nor what estate the Queen had but that it was to the disinherision of him and his heirs then the Queen grants reversionem inde adeo plene libere integre as she had it or as it came to her by the Act of Parliament And I think when the Queen gives by generall words she doth not give any special Prerogative And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla c. and 9 Eliz. 268. in Dyer the case of the Dutchy of Cornwall 8 Hen. 6. the King pardons all Felonies this is no pardon of the Outlawry and especially when the Queen hath two interests it shall be construed beneficially for the Queen as 9 Edw. 4. Grant of an Office where the Grantee was no denison see there Baggots Assise and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion upon the life of one of them And further the case in Dyer where Queen Mary grants in Manerium de Bedminster in Com. Somerset 5. 13 El. fol. 306. a. Then Sir the Patent is that the Queen intendens dare congruum remedium in praemissis c. and when he iueth to the Queen by Petition Petition certain all titles ought to be in the Petition 3 Hen. 7. 1 H. 7. a Latin case the case of the corody and this is in nature of a Petition therfore ought to be certain then the Patent is Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratione actus Parliamenti c. aut in manibus suis existunt vel existere deberent c. and they are not to be expounded so largely as to make the reversion to pass for if those words ratione c. were before admanus suas c. or after in manibus suis existunt then it cannot be intended but the reversion shall not pass to Bainton Now when in manibus suis existunt come after these words References ratione c. for references are to be intended according to the meaning of the parties Devise 29 lib. Ass 14 Eliz. Dyer Devise of all Acres except a Lease for 30 years And those words aut existere deberent ought to have some relation ergo it ought to be intended quae in manibus suis existunt ratione attincturae c. and this will not make any grant of the reversion For the meaning of the Queen was because Bainton had no recompense of the other Lands No use to give him these for no use was in him by the covenant of Seymer as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Seymer For the other matters I think that A. Baynton is not Tenant in tayl by the grant again but admit him so yet he cannot discontinue neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine things which are not touched doe not pass as Commons Rents Wayes Claim per lessee purâ—ans alit postea si soit en post c. Br. Fines 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case 21 Eliz. that Lessee for yeares need not to make claim within five years and vouched the opinion of Br. tit Fines 121. accordingly that the issue shall not be barred And as the King is privileged so are his possessions allthough that afterwards they come into a subjects hands Generall restraint And where one hath a special Grant allthough a general Restraint come after if he doe not speak specially of this the Grant shall be good in many cases as 19 Hen. 6. fol. 62. the Parson of Edingtons case Br. Patents 16. and the case of the Abbot of Waltham 21 Ed. 4. fol. 44. Br. tit Exemption 9. in 19 Hen. 8. it was doubted if the issue of a common person should be barred ergo the issue in tayl the reversion being in the King is not barred And the Statute of 32 Hen. 8. is generall as well for those which were of the gift of the King as others and therefore afterwards there was another Statute made which excepted those which were of the gift of the King as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception if it were a bar before by the Statute of 4 H. 7. And for authority I have a report delivered me by a Sage antient in the Law that in 16 17 El. in Jacksons case where Lands were given in tayl the remainder to the King in fee the Tenâ—nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court Difference per enter rem reversion in le Roy. this was a bar but the Court then sayd that otherwise it should be if the reversion were in the King as our case is wherefore seeing there is neither discontinuance nor bar in the case his entry is congeable and the Action not maintainable Walmisley to the contrary I will agree that it is not any discontinuance yet he may admit him out of possession if he will as in 18 Edw. 3. Where Tenant in tail the Reversion in the King makes a Lease for life and hath two Daughters and died and Lessee for life was impleaded and upon his default the two daughters prayed to be received and so they were and as me seemeth the Petition made by him to the Queen shall not prejudice or hinder the Grant ex mero motuâ— and vouched 3 H. 7. fol.
Plaintif replyed that it was made upon good consideration and traversed the delivery of the Copperas which was an evill issue clearly Issue misâ—oyned and it was found for the Plaintif and this was alleged in arrest of judgement and yet for that there was an issue tryed allthough it was mis-joyned the exception was disallowed and judgement was given for the Plaintif 16. AN Action of Debt was brought upon the Statute of Purveyors Issue because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty and it was moved that this was an evill issue for he ought to have pleaded nil debet and the Court commanded him to plead nil debet 17. WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild Ayd prier who was Tenant for life and they were at issue and the Venire fac issued in Michaelmas Term and now this Term the Defendant prayed in ayd which he sayd he ought not to doe beâ—â—use they have furceased their time for they ought to pray it when the Venire facias is awarded or otherwise they shall not have it and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion that he ought then to pray it or not at all 18. A Writ of Error was brought upon a judgement given in London â—orfeiture and this was the case Sir Wolstan Dicksey Alderman brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus who afterwards granted the reversion to Dicksey and the Tenant attorned and the rent was behind c. Spenser pleaded in bar that before the grant of the reversion to Dicksey Bacchus was seised and shewed the custom of London to make inrolments of deeds indented and then shewed that before the bargain to Dicksey he bargained the reversion to him by paroll and so demanded judgement si actio c. and this plea was entered upon record and hanging this suit Dicksey entred into the Land for a forefeiture of the term because he had claimed a Fee simple and Spenser re-entered with force and his servant with him but not with force and thereupon Dicksey brought an Assisse of fresâ— force against them in London and all this matter was there pleaded adjudged that it was a forfeiture of the term the Jury gave damages and the Court increased them and the judgement trebled as wel the damages increased as the others and allso the Iudgement was quod praedicti defendentes capiantur c. Increase of damages and thereupon Spenser brought a Writ of Error and assigned Error in the point of the Judgment because it was no forfeyture And allso because the Damages increased by the Court were trebled And allso because the judgment was Capiantur where but one was a Disseisor with force therfore it should be Capiatur Shuttleworth There is no forfeyture made by this Plea before triall had thereof Wast For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another this is no forfeyture so in Cleres case if he say that another is next Heir this is no forfeyture Quid juris clam And in 26 Eliz. here was a case in a quod jurâ—s clamat the Defendant pleaded an Estate tayl and after at the Assises he confessed but an Estate for Life and yet this was no forfeiture Curia None of us do rememember any such case here Walmisley Surely the case is so and I can shew you the names of the parties Anderson I will not believe you before my self and I am sure that I never heard of any such case Peryam If any such case had been here we would have made a doubt therof for ther are Authorities against it as in 8 Eliz. 6. R. 2. Plesingtons case Shuttleworth Allso theyhave said that the fresh force was brought infra quarentenam silicit quadraginta septimanas Quarentenae Scilicet a surplusage and the quarentena is but 40 dayes Curia That is no matter for the silicet is but surplusage and so no cause of Error Shuttleworth If a man disseise another without force he shall not be taken and imprisoned and therefore for this cause the Judgement is erroneous and allso the costs encreased are trebled and therefore erroneous Aydin Trespass and cited 22. Hen. 6. 57. Anderson In an Action of Trespass If the Defendant pray aid of a stranger this is a forfeiture and if it be counterpleaded yet it is a forfeiture then shall the deniall thereof make any change in the case surely no Proper acts in my opion And I say that Acts which come from himself are forfeitures Collaterall but Collaterall Acts Difference as in the case of Wast are not Walmisley In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him the Judgement shall be but that he shall Attourn And allso he cited 3 Ed. 3. 33 Ed. 3. 18 Ed. 3. 36 Hen. 6. 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall Quid juris clamat Anderson If one who hath no Reversion bring a quid juris clamat against Tenant for life this is a forfeiture of his Estate and as you have said if in VVast the Tenant plead the Feoffment of the Plaintif or non dimisit true it is that these are no forfeitures for you know well enough that a Feoffment is no Plea and then it is void and to say non dimisit is no forfeiture Peryam The Judgement given in Plesingtons case is not well given for it ought to have been quod pro seisina sequatur si volunt as in the case of Saunders against Freeman and he cited 10 Edw. 3. fol. 32. to that intent Wyndam The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented and he sheweth that his bargain was by parol and therefore void and then no forfeiture as if in Trespass a man prays ayd as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void Praying in ayd Anderson Allthough that it be so yet the pleading is that he bargained the Reversion and then this is good by parol in London therefore there is no doubt in that point Walmisley The Books in 15 Ed. 2. 25 Ed. 3. Importâ— that Judgement ought to be given before any forfeiture can be Forfeiture before Judgement Curia Without doubt he may take advantage thereof before Judgement as well as after if the plea be entred upon record Wyndam For the point of capiantur the Book is in 2. lib. Ass Pl. 8. Br. imprison 30. in 9. lib. Ass 12. lib. Ass Pl. 33 Br. imprison 40. Anderson Two may be Disseisors Present Disseisor absent Differance
without consideration and so here But the Justices held the contrary and that the consideration is good for in considerations praemissorum is in consideration of the Mariage as well as of the refusall of the Father and allso it was alleged that Garbrey was Cosen German to Brown and therefore c. Anderson If a communication be between two and the Father promise to make a Joynture and a stranger say that if the Father will not then he will doe it this is a good consideration and there is no necessity to be so curious in the consideration for that is not traversable Consideration executory traversable But Cook sayd that if it be Executory then it is traversable Another Error Cook assigned because they had not alleged a not performance in the Father for the promise of the Father was to make a Feoffment to the use c. and they averre that allthough that he did not make a gift in tayl which cannot be the same thing which the Father should doe for an estate to use in tayl and a gift in tayl is not all one But the Justices held it good for by the Statute of 27 H. 8. the use is executed and so the estate executed Also the Declaration was that he had not made a gift in tayl secundum agreamentum praedictum But Cook moved that it should not be good for if a man be bound to make an estate to another in the per and he make it in the post this is no performance and here by the Statute he is in in the post and the not performance is alleged to be because he did it not in the per and saith that he which is in by the Statute shall not vouch for he is in in the post and he cited Winters case which was not denyed but Peryam said that considerations in actions upon the Case and Conditions are not all one 9. IN the Kings bench the case was such Coppyhold John Kipping being a Copiholder devised it to his Wife for life the Remainder to VVilliam his son in Fee and made a Surrender to that use and the Wife is admitted generally Generall admittance now if this be an admittance of him in Remainder also was the question And Godfrey argued that it was not for it is not like to the case of descent where the reversion should have descended for in this case VVilliam cannot Surrender before admittance but he agreed that one which hath it by discent may surrender before admittance for in that case it shall be said possessio fratris Surrender but when it is by purchase then that cannot be surrendred whereof admittance ought to be Meseu because the Lord ought to have a fine of him therefore he likened it to the case in 18 E. 4. where the Mesne graunts the Mesnality for life the remainder in fee and the Tenant attornes to the Tenant for life if he had cause of acquittance against the Mesne this shall not be an attornment to him in remainder so here if this shall be good to him in remainder then is the Lord without remedy for his fine Vesting of a remainder But Cooke the famous Utter-Barrister argued to the contrary for the Remainder vested when the particular estate vested or els it shall never vest but it shall not be void ergo it is excuted when the particular estate c. And therefore he said clearly that an admittance of the particular Tenant is an admittance of him in Remainder and that the Lord cannot have his fine if it be agreed that the Heir may surrender before admittance Scire facias upon a fine and yet the Lord ought to have a fine of him And in 7 Ric. 2. Fitzherbert scire facias 3. where Tenant for life sueth execution this is an execution for him in Remainder Audita quaerela And in Fitzherbert Na. Br. fol. 201. where one deviseth for life the Remainder in tayl and an ex gravi querela was sued this shall serve as well for Tenant in Remainder as for Tenant for life Attornment and 18 Ed. 4. 7. and the time of Ed. 4. Fitzherbert Attorn 21. that attornment to the Tenant for life is good to him in Remainder and VVeldons case in the Commentaries Assent to the Devisee that assent to the Devisee for life is an execution of the devise to him in the Remainder 11. THe case of the Resceit was moved again Resceit and Shuttleworth said that he cannot be resceived because he is named in the Writ And said that he had searched all the books and there is not one Case where he which is named in the Writ may be resceived Anderson What of that Reason shall not we give judgement because it is notadjudged in the bookes before wee will give judgement according to reason and if there bee no reason in the bookes I will not regard them Shuttleworth Hee is at no mischief here for in 33 H. 6. the Tenant came at the grand cape and said that he had nothing Nihil habet and the Court said that it was no plea for if he hath nothing he can lose nothing And so here if he be ousted where he hath good right Reentrie he may re-enter and falsify the recoverie Peryam But he shall be put out of possession which is a mischief and remedied by the Statute Shuttleworth I hold clearly that a Termer cannot falsify at the Common Law because a term was not regarded Peryam The books doubt thereof but Anderson seemed to assent to Shuttleworth and that the Covyn shall be traversable which Peryam denyed clearly and said that he ought to averr the Covyn 12. A Man was condemned in an action of Debt and brought an Audita querela upon a release Supersedeas and had a supersedeas Peryam If the Sherif take him before that he hath notice of the Writ although it be after the Teste yet it is well done but otherwise of an Utlary But Fenner and Walmisley held to the contrary and Fenner said that he had seen a President to the contrary 13. AN Action upon the Case was brought against Mathew late Under-Sheriff of Hampshire Declaration double that where an Execution was directed to him by vertue whereof he had taken goods to the value of the execution and sold them for less and that he hath not retorned the Writ and upon this Declaration the Defendant demurred in law because it was alleged to be double But Fenner held the contrary said that an Action upon the Case is like to an Action of Covenant where a man may shew all the covenants broken Curia If the one matter be depending upon the other it shall not be double and here all is Dependance is not double for not retourning of the same Writ Wherefore Fenner said that he would not amend his Declaration let the other Demur if he would sed quaere for
in the Fleet Appearance was brought to the Common place bar by habâ—as corpus to the intent to have him appear to an Originall in debt brought against him And being demanded by Goldesburg Clark whether he were the same party against whom the Originall was brought confessed it but denied to appear to the Action Brâ—â—keâ— Prothonotary said the Court ought to record his appearance confessing himself to be the same person but the whole Court said this was no appearance whereby he was remanded to the Fleet And Tamworth the Plaintif proceeded to the outlary against him 2. PRice brought an Action of Trover against Sir Walter Sands Frandulent deeds Trin. xxxviii Eli. And this was for finding of Corn. And the first point of the case was That a man had a Lease in Reversion and granted it to another by fraud and his Grantee granted that over to Sir Walter Sands bona fide And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void per the Statute of 27 Eliz. or not was the question Harris Serjeant It seemeth the Grant to Sir Walter Sands to be good And not within the Statute of 27 Eliz. For 33 Heâ— 6. 28. If a man make a Feoffment in Fee by Collusion to the intent to defraud the Lord of the Wardship And after this Feoffee by Collusion make a Feoffment over bona fide Now the Lord is without remedy for the Collusion is gone And in this case there is an ignorance in Sir Walter Sands the which is not willfull and for that it is not punishable Notice But if the other had taken the profits so that the purchaser might have notice there it should be otherwise The â— cause was non constat whether the Grant were before the Statute of 27 Eliz. or not For if it were before then the party shall not answer the mean profits Allso a third matter is ten yeares of the Term was granted for money But when he granted the Residue of the Term and no Consideration expressed Consideration expressed then there shall be no consideration intended And if there were no Consideration given he is not holpen by the Statute For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid Et non constat that any thing was paid by the Plaintif Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute Allso here the party is charged with a speciall fraud And the other saith that it was made bona fide And this is a good course of pleading without any Traverse per 4 Ed. 4. 24. 3. HUgh Hall brought an Action upon his case for words and declared Slander that where he himself was robbed of divers parcels of Cloth per quendam ignotum and made his integrity and indeavour to apprehend the said thief praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone viz. Hugh Hall hath received three parcells of his Cloth again of the thief And if I receive any hurt henceforth I will charge him with it And by Judgement of the Court the words are not actionable 4. THe Lady VVilloughby Wife to the late Sir Francis VVilloughby Caveat sued in the Chancery as Administratrix of her said Husband against Percivall Willoughby which had maried one of the Daughters of the said Sir Francis And the Defendant pleaded that before any Administration commited to the said Plaintif he himself put in a Caveat in the Spirituall Court hanging which Caveat she hath attained these Letters of Administration Appeal whereby the Defendant hath appealed 〈◊〉 which appeal is not yet determined for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix And it seemed to Egerton then Lord Keeper of the great Seal that the Defendants plea is good to stay the suit untill the appeal be determined But not to be dismissed out of the Court Appeal Erâ—â—â— Difference no more than an excommunication And he said there is difference between an appleal in Spirituall Law and a Writ of Error in our Law For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter but not for the costs and for to prove that he cited 2 R. 2. Quare impedit 143. vide 27 H. 6. Gaud. 118. 2 M. 105. Dyer 7 Eliz. 240. 5. IN the Chauncery a speciall Verdict was retorned upon an extent Execution uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—e the Remainder in Tail and the Tenant in Remainder in Tail made a Statute Staple and after granted his Remainder And after the Tenant for life died 〈◊〉 Bull 〈◊〉 and the Grantee of the Remainder entered And whether Execution shall be sued of this land upon the said Statute insomuch that the said land was never in Demeasne in the hands of the Coâ—â—so◠〈◊〉 â—ames 〈◊〉 and so not extendable in his hands was the question And Sr. Thomas Egerton Lord Keeper of the great seal said that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life For to a Remainder are no services due nor incident and for that it is termed Seck But a Reversion hath services incident and those may be extended and by consequence the Reversion when it commeth in possession Bâ—t it seemed unto him that all was one for one may charge a Remainder when it happeneth aswell as a Reversion and a Statute is in the nature of a charge Cook the Queenes Attourney said there was no question in the Case for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question for if he in the Remainder make a lease for yeares to commence at a day to come Yet if he grant over his Remainder the Grantee shall hold that charged with his lease And every Statute is a charge Executory By which the said Lord Keeper awarded that there should be a liberate made to the Conusee upon the retorn above 6. OVerton brought an action of Debt against Sydall Debt by a Successor against an Executor after assignment And the case was that Prebendary made a lease for yeares rendring rent and the Lessee died and the Executors of the Lessee assigned over the Term and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over and the opinion of three Justices was that the action would not lye But Popham the chief Justice held the contrary For the Successor is privie to the Contract of the predecessor And so the Executor to the contract of the Testator
dyed and if the estate of Tho. was determined by the death of Nich. was the question Johnson There are two points in the case the first if by this word Assignee an Occupant shall have the land and I think he shall not And the second point is when a lease is made to one and his Assignees for his own life and the lives of two others if now his own life confound the other two lives for that that it is greater to the Lessee than the other two lives and he said the Lessee hath no estate but for his own life and when he dyed the state is determined and to prove that he cited the opinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie without impeachment of Wast the remainder to him for his own life that now he is punishable of Wast for that that when the remainder is limited unto him for his own life Wast against the surviving Joyntenant this drowneth the estate pur auter vie which was in him before And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast and one of them purchase the Fee simple and dye now his heir shall have Wast against the Survivor And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane Cook è contra And the case is no more but that a lease is made to one and his Assignes for his own life Remainder for years to the tenant for life and for the lives of two others and I think that all may stand together for a man may have an estate for his own life the remainder for yeares and both may stand together in him simul semel for that that albeit that the Lessee may not have that during his own life yet he may dispose of that and by that means shall have the benefit and so in this case and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant and the inconveniencies shall be exceeding many in this case if the estate doth not endure for all their lifes for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years and usually Tenants in tayl make such leases as these be and for that the generality of the case ought greatly to be regarded and there was a case adjudged in the Common place between Chambers and Gostock Chambers against Gostock where a lease was made to two for their lives and the life of a stranger and one of the Lessees dyed and the Survivor granted the land for his life and the life of the stranger Burdels case and it was no forfeiture and allso it was Burdels case in the Common-place 32 Eliz. where a lease was to him for his own life and the lives of two others and a good lease for all their lives Occupant And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor Gawdy The cases put by Mr. Johnson are not like to the case in question The greater estate preceding the less both may stand and I will agree them for here the greater estate precedeth the lesser I hold that a lease made to one for his life the remainder to him for anothers life is good for he may it grant over and so I think in this case that so long as any of the lives remain living that the estate remains Fenner I am of the same opinion for I think that the state pur auter vies is in the party to dispose at his pleasure so Judgment was given for the Defendant 87. HArding brought an Action of Trover of goods against Shâ—rman Visne and declared of a Trover at D. in the County of Hunt The Defendant pleaded that he bought the goods of one I. S. at Roiston in the County of Hertford in open Market and demanded Judgement The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Huntington by fraud and Covin And after bought them again at Roiston as the Defendant supposeth the Defendant rejoines that he bought the same goods bona fide at Roiston Absque hoc that he bought them by fraud apud D. in Com. Hunt Glanvile pleaded in arrest of Judgement that the Visne ought to be of both Counties Gawdy seemeth to agree but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties therefore Gawdy gave Judgement for the Plaintif for by this speciall Traverse the buying at Roiston shall not come in question 88. PAyton being High-Sherif Keep harmless brought Debt upon an Obligation against his under-Sherif and the Condition was to perform all Covenants in a pair of Indentures conteined and one Covenant was that the under-sherif shall keep all the Prisoners committed to him untill they be delivered by the Law and allso to save Mr. Payton harmless of all escapes made by the said Prisoners And the Defendant pleaded performance of all Covenants Godfry The Plea is not good for one part is in the Affirmative and the other in the Negative By which the Defendant ought to plead that the Plaintif non fuit damnifieatus and so was the opinion of the Court by which day was given to the Deâ—endant to amend his plea. 89. A Man brought an Action of Trespass for entring into an house and breaking of his close in Dale Variance between the declaration and the new assignment or the title of the Plaintif The Defendant said that the said house and close in which the Trespass is supposed to be done conteins twenty Acres and is at the time of the Trespass supposed was his Freehold And the Plaintif replyed quod locus clausa in quo supponitur transgressio est anum messuagium and makes him a Title to it To which the Defendant pleaded non Cul. And it was found for the Plaintif and for that that the Plaintif by his Replication made to him Title but to a messuage and doth not maintain his Declaration which was for the messuage and the close therefore it was awarded quod querens nihil capiat per Billam sed quare if this do not amount to a discontinuance of the close onely and so helped by the Verdict 90. THomas Allen brought a Writ of Debt against William Abraham upon an Obligation bearing date in October Counterbond for an Obligation allready forfeited The Condition was that whereas the sayd Thomas Allen at the request of the above bounden William Abraham standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May the which May was before the
Priority which is not corporall neither ought it to be put in view in Assise and 21 Hen. 6. a. Tenant of the Land shall Attorn upon the grant of a rent charge and 33 Ed. 3. Priority shall hold place when the remainder falleth and not when it is granted 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then Sir when the foundation out of which the rent is issuing is gone the rent is allso gone and therefore let us see what authority Tenant in tayl hath in the remainder At the Common Law there was no Formdone in descender or remainder and the Statute of W. 2. cap. 1. provides but for two persons viz. he in reversion and the issues but Formdone in remainder is taken by the equity 50 Ed. 3. If Tenant for life be the remainder in tayl to another the remainder in fee to the Tenant for life and he makes wast Wast Bargain de remain Tenant in remainder shall punish him and Fitzh nat br fol. 193. a. Cui in vita by a wife which was Tenant in tayl upon the alienation of her husband And I think that if he in remainder bargain his remainder that it is voyd and he cannot grant to another that he shall dig in the soyl for by 2 Hen. 7. he in reversion cannot doe so 12 Ed. 4. Recovery suffered shall bind the issue 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Tenant for life Nul attaint pur tenant in rem then in this case he in remainder cannot enter and the Grantee shall not be in a better estate than his Grantor and then if he shall never enter frustra est illa potentia qua nunquam reducitur in actum The reason for the grant is good for when Tenant in tayl dyeth without issue he in remainder shall be in by the first gift in proof whereof is 33 Hen. 6. he in remainder shall be in ward Ward and in 11 Hen. 4. in Formdone in descender Formdone he shall say that the possession was given to his father Prebendary And a Prebendary cannot charge before induction Ioyntenants But if two Jointenants be and the one charge all and the other disclaimeth the charge is good from the beginning And the Recoverer here is not under the charge for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened yet is he a meer stranger and in by another title 10 Ed. 3. If two Jointenants be Charge per Ioyntenant and the one charge this is good conditionally that he which chargeth shall survive And if Tenant pur auter vie charge and die occupans shall hold it discharged So in this case for he is not in of this possession Moreover there is a mischief if this charge be good for then the Land may be charged by two severall persons at once which shall not be suffered but yet if cestui que use charge and the Feoffees charge both are good for the one is by the Common Law Charge per cest que use Feoffees 28 Ed. 3. 10. b. and the other by the Statute Law So if Lessee for years charge and he in reversion charge and after Lessee for years surrender but this is in severall respects and I put this case for Law Ch. per lessee per enreversion that if he in the remainder bind himself in a Statute Merchant Stat. Merch. per test en rem ne charge le poss this shall not charge the possession And if in this case he will grant the rent over none ought to Attorn and therefore voyd and Littleton saith that he in remainder shall not falsifie No attornment Falsifying and 26 Hen. 8. the Grantee of lessee for years shall not falsifie for the nature of falsifying is properly to find a fault wherefore it should not be good and what fault can he find in this case surely none Successor lie per confession 4 Hen. 7. 1. a. 20 Hen. 6. Abbot confesseth an Action the Successor is bound And further it is within the Statute of 27 El. for fraudulent deeds and we need not to plead the covin for the Statute is generall Fraudulent faits and vouched Wimbish case in the Comentaries and so the Replevin is maintainable And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea and allege the Covin Et adjornatur untill Michaelmas Term following because there were so many Demurrers hanging to be argued in Trinity Term next But afterwards judgement was given against the Rent charge 12. KIng Hen. 8. gave certain lands to Sir Edward Bainton Trespass Knight and to the heirs males of his body engendred who had issue Andrew and Edward and dyed Andrew afterwards convenanted with the Lord Admirall Thomas Seymer that he would convey an Estate of those Lands to himself for life the remainder to the Lord Seymer in Fee and in like manner the Lord Seymer convenanted to convey an Estate of other Lands to himself for life the remainder to Andrew Bainton in Fee Afterwards Andrew Bainton levyed a Fine and executed the estate according to the covenant on his part Afterwards the Lord Seymer before performance of the covenant on his part was attainted of High Treason and all his Lands forfeited to King Edward the sixth who dyed without issue and the Lands descended to Queen Mary to whom Andrew Bainton sued by Petition and shewed how she had those Lands to the disinherison of him and his heirs and Queen Mary by her Letters Patents ex certa scientia ex merâ— motu c. granted to Bainton all those Lands and Tenements which he had covenanted to convey to the Lord Seymer and all reversions thereof in as ample manner as she had them Et ulterius ex uberiori gratia sua she granted all reversions claims and demands qua ad manus suas devenerunt ratione c. aut in manibus suis existunt aut existere deberent Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee and dyed without issue then Edward Bainton entred and Segar brought his Action of Trepass Puckering It seemeth that the entry of Edward Bainton is congeable and so the Action not maintainable First let us see what passeth by this Grant of Queen Mary to Andrew Bainton and then whether a Fine levyed by Tenant in tayl the reversion being in the Queen be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations and therefore but a discontinuance and remains but as at the Common Law At the Common Law before the Statute of Dâ—nis conditionalibus a Fine levyed was a bar to all men for all Inheritances were Fee simples then by that Statute it was ordained Quod neque per factum neque feofamentum of the Tenant
me for the reason wherefore he shall be barred is because the recompence goeth according to the Estate which the Wife had and then it is reason that he shall be barred but in the same case if the Husband survive it is said in the same Book that the Issue shall be at large for that the recompence goeth to the Survivor but let it be as it may be the reason of the case is for the recompence And I think Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries Recovery had against Husband and Wife where the Wife had nothing all the recompence shall be to the Husband 10 Edw. 3. Dower brought against husband and wife Dower and the husband vouch to warranty c. 38 Ed. 3. Praecipe against Tenant in tayl 8 Eliz. in Dyer fol. 252. where the husband was tenant for life the remainder to the wife in tayl the remainder in fee to a stranger and a recovery suffered and about 15 El. was a case in the Exchequer where lands were given to Norrice and his wife and to the heirs of the body of Norrice Remainder the remainder in fee to a stranger and a recovery suffered against Norrice he in remainder was attainted and Norrice and his wife were dead before and by the opinion of Sanders then chief Baron Recompences the moity shall be forfeit by the atteynder And recompences are but as exchanges Exchange executed and Bracton calleth them Excambia and I think if an exchange be executed in the one part and not in the other it is not good and so I think the recovery shall be no bar 8. IN a Writ of Dower brought Joynture Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture upon condition that she should make her election with in three moneths after his death and she made her election to have the Joynture and now she had brought her Writ of Dower against the heir by covin Covin and he hath confessed the Action to the intent that Thynne who had a lease for yeares of the first husband should lose his term and prayed ayd of the Court. Fleetwood for the demandant There is not any such Joynture as you speak of for that which was given to the wife was but a lease for yeares and that you know cannot bar her of her Dower Rodes Justice If the case be so then is there no cause to bar her of her Dower for a lease for years cannot be a Joynture Ease for years Quod Peryam concessit clearly and sayd that the Joynture ought to be a freehold at the least or otherwise it is no bar to the Dower whereby Gawdy moved another matter De Term. Mic. An. Reg. Eliz. xxviij xxix 1. AN Action upon the case was brought for calling the Plaintif false perjured Knave Jeofayle the Defendant justified because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside where in truth he had notso done The Plaintif replyed de injuriâ— sua propria absque tali causa the Action was brought in London and there it was tryed for the Plaintif and great damage found and this matter was alleged in Arrest of Iudgement because the triall was in London whereas the Perjury was supposed to be made in the Exchequer Triall locall The Court said that the matter is tryable in both Counties and it was answered again London cannot joyn that London cannot joyn with any other County Anderson Then is your Issue vitious for when an Issue is tryable by two Counties if they cannot joyn then ought you to make such an Issue as may be tryed by one onely And by all the Court this ought to have been tryed in Middlesex for there the Perjury is supposed to be committed whereupon the Issue is taken Peryam to the Serjeant of the Plaintif See if you be not ayded by the Statute of Jeofayles Walmisley It hath been allwayes taken that if the triall be evill it is not ayded by the Statute of Jeofayles Peryam Then are ye without remedy for you shall have no judgement Et sic fuit opinio Curiae 2. GAwdy came to the Bar Joyntenancy and shewed how a man devised his lands to his two Sons Partition and their heirs and they had made partition by word without writing 18 Eliz. 350. Tota Curâ—a What question is there in it the partition is naught without doubt Rodes It hath been adjudged here that if the partition be of an estate of inheritance it is not good by paroll Joyntenant by devise Gawdy But I think that when a man deviseth his lands to his eldest Son and his youngest Son in my opinion they are Tenants in common because the eldest son shall take it by descent Peryam But I think not so for if a man make a gift in tayl to his eldest son Devise in tayl of an heir the remainder in fee c. Is not he in by the devise Gawdy This is another case Peryam In my case he shall take by the devise for the benefit of the issues and in your case he shall it take by the devise for the benefit of the survivor and therefore I think that they are Joyntenants Anderson There is but small doubt but that they shall be Joyntenants and there is authority for the case And this at length was the opinion of the whole Court 3. IN an Action of Debt for Rent Apportionment it was sayd by Anderson If a man make a lease of years reserving rent and the Lessee for years make a feoffment in fee of parcell of the land the rent shall be apportioned 4. FEnner came to the Bar Alien and sayd to Anderson that in his absence he had moved this case An Alien born purchaseth Lands and before office found the Queen by her Letters Patents maketh him a denison and confirms his estate the question is who shall have the lands Anderson The question is if the Queen shall have the lands of an Alien before office found Fenner True it is my Lord. Anderson I think they are not in the Queen before office and then the confirmation is good Rodes It seemeth that he shall take it onely to the use of the Queen Neis purchase lands and then the confirmation is voyd Fenner In 33 lib. Ass is this case If the Neise of the King purchase lands and takes a husband who hathâ— issue by her and she dye he shall be tenant by the curtesie Anderson and all the Court denied that case of the Neise Fenner I have heard lately in the Exchequer that an English man and an alien purchased lands joyntly Joynt purchase by an alien and the alien dyed it was adjudged that the other should have all by surviving Anderson and all the Court Surely this cannot be Law
possession of the land 11. BRet Plaintif against Shepheard Apparaâ—ce the Condition of the Obligation was to appear at his Suit in the Kings-bench and upon Condition performed pleaded Triall by the Record the issue was found for the Plaintif And now he spake in arrest of judgement for that the triall ought to have been by the Record and not by the Country And so was the opinion of the Court But Radford Pregnotary said that the triall was good enough for it may be that he appeared there and yet there is no Record made thereof to whom it was answered that then it is no appearance if it be not recorded and Radford replied suppose that there is not any such suit there how then can it be recorded but the rule of the Court was ut supra for then the Obligation seemeth to be single 13. THe case of Calgate against Blyth was now again argued by Fletewood for the Plaintif And first he said that the limitation by the Wife is not good for which he took this ground that alwaies when a man shall gain a fee simple by matter of conclusion of Record that he shall be seised to his own use And here the Husband had a fee by conclusion by the fine and therefore his limitation good only Carill And there upon he put a case reported by Carill who was a grave man Fine levied and very learned in the law That if Husband and Wife levy a fine to B. who rendereth to them again for life the reversion shall remain in the Conisor to his own use Also he put another case put by Baldwin in the time of H. 8. Grant of all Estate that a man seised in right of his Wife grants totum statum suum to another the grantee shall have it no longer than during the life of the Husband if his Wife overlive him but if she have issue by him then he shall have it during the life of the Husband absolutely Fine And if two tenants in common inâ—eoff B. Feâ—ffâ—â—ent in see to their use they are then tenants in common of this use Diffâ—â—â—nâ—â— per Tenants â—n common but if they levy a fine to B. to their use then they are Joyntenants And in Queen Maries time a parson of a Church by licence of his patron and ordinary levied fi Parson levies a Fâ—e a fine of a portion of his Rectory and it was adjudged that it shall be to his own use in his naturall capacity Bishops the same law is if a Bishop levy a fine and he cited 1â— H. 4. 1. the first case and so he prayed judgment for the plaintif Anderson chief justice rehearsed the case and first he said that the Wife without her Husband cannot limit the use without doubt And here the case is no more but whether the husband may limit the use without the privity of his Wife and I think it a strong case that he cannot Notice of a use If Husband and Wife have an use and they grant it over to one who hath notice of the Use this shall be to the use of the Wife again What a use is and he defined an Use to be an intent and trust to convey lands and cited 6. H. 7. and that when the interest of the inheritance is in the Wife Fine if Husband and Wife levy a fine this shall be to to the use of the Wife for the use ariseth out of them which give the land and not by the Conises or Feoffees for they neither grant nor give the use Feoffment by he Husband alone and then it shal be to the use of the Wife again But if the Husband alone make a Feoffment this shall be to his own use and the Wife after his death shall be driven to her action And if the wife had been privy or assenting to the limitation Assent without naming although she had not been named yet it should be a good limitation but the Jury have found that she was not privy And a case was here adjudged Indenture after a fine levied that where a fine was levied and the limitation made after by Indenture that this shall be to the use of the Indenture if there be no other against it but in this case it is found expresly by the Jury that shee never agreed which doth impugn that which otherwise should be intended then now the case is no otherwise but that a fine is levyed and no use is limited but if the fine had been levied Silence is an agreemâ—ni the Husband only limited the use and nothing els had been done against it then it should have been to the use limited by the Husband because it should have been intended that the Wife had consented thereunto and so I think judgment shal be given against the Plaintif Windham I am of the same opinion and it seemeth that their difference and disagreement in the limitation is the cause that both the limitations are void First let us see who hath auctority to limit the use surely the principall owner of the land hath the principall auctority to limit the use and here the Wife is the principall owner What a use is and therefore hath chief power to dispose of the use And Sr. the use is the chief profit and commodity of the land and cannot be severed from the land no more than the shadow from the body and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use and not the use to the possession for the use is the principall for by the common law by bargain sale enrolled the land shall pass without livery Bargain and sale for this was a contract for the use and then the law shall make the land to pass The Law erects the use and whithersoever the use is now carried the land and possession shall follow but when the Law carrieth the use it is to the owner and proprietary of the Land The mothers heir For if a man seised of Lands on the part of his Mother levy a fine thereof the use shall pass according as the land shall because the law carrieth the use And here the Wife cannot limit the use without her Husband and therefore that is void but yet it is good to this intent to shew her disagreement Silence Consent And if the Husband limit the use and she doth not disagree the law intendeth that she consenteth thereunto because she hath joined in the fine Sale in London by Husband and Wife And therefore in London sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent or if she do not disagree And although that she shall not be examined concerning the use yet the Law will not have her defrauded of her land by joyning in the fine without her consent to the use for by that meanes
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance Gawdie The Obligation is void for in so much as the Obligee hath not tendred to him any acquittance therefore he hath tolled from him the election whereof he shall not take advantage Fenner è contra for the election is not in the Partie for the making â—o the acquittance resteth in the will of the Obligee and so the Obligor hath no election Popham was of the same opinion 56. IF a Sheriff doe execute his Writ the same day that the Writ is retornable Execution of a writ done the day of the retorn it is a good execution per Yelverton and he cited these cases A Judgement given in a quare impedit 18. Eliz. and the Writ of dammages was executed the same day that it was retornable and this matter pleaded in arrest of judgement and notwithstanding the partie had judgment and if a capias ad satisfaciendum goe forth and the Sheriff take the Partie the same day that the Writ is retornable and send him into the Court who will say that this is not a good execution 57. WOodcock brought an Action of Debt against Heru Assets Executor of I. S. The Defendant pleaded that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing And if this Plea be good or not is the question Fenner The Plea is good without question Gawdie I have heard divers learned men doubt of that for if the Testator were bound in a Statute to perform Covenants which are not yet broken and it may be they will never be broken and then he shall never be chargeable by this Statute and yet he shall never be compelled to pay any debts which will be a great inconvenience And again I think there will be a greater mischief of the other part for put the case if the Executors doe pay this debt and the Statute is broken after he shall be chargeable by a devastavit of his own proper goods the which will be a greater inconvenience 58. BRough against Dennyson brought an Action for words Slander viz. Thou hast stoln by the high-way side Popham The words are not actionable for it may be taken that he stole upon a man suddenly as the common proverb is that he stole upon me innuendo that he came to me unawares And when a man creepeth up a hedge the common phrase is he stole up the hedge Fenner When the words may have a good construction you shall never construe them to an evill sense And it may be intended he stole a stick under a hedge and these words are not so slanderous that they are actionable 59. A Copy-holder was not upon his Land to pay his rent Forfeiture of a copy-hrld when the Lord was there to demand it And whether this were a forfeiture or not was the question Fenner It is no forfeiture if there were not an express denyall for the non-payment here is but negligence the which is not so hainous an injurie as a willfull denyal for it may be that the Copy-holder being upon the Land hath no money in his purse and therefore it shall be a very hard construction to make it a forfeiture But if he make many such defaults it may be it shall be deemed a forfeiture Popham If this shall not be a forfeiture there will grow great danger to the Lord and the Copy-holders estate was of small account in ancient time and now the strength that they have obtained is but conditionally to wit pay their rent and doing their sevices and if they fail of any of these the Condition is broken and it seemeth cleer if the rent be payable at our Lady day Demand after the day and the Lord doth not come then but after the day to demand the rent there is no forfeiture 60. THe Case was that there was Lessee for life Sir Henry Knevit against Poole interest of Corn. the Remainder for life and the first Lessee for life made a lease for years and this Lessee was put out of possession by a stranger and the stranger sowed the Land and the first Lessee for life dyed and he in remainder for life entred into the Land and leased it to Sir Henry Knevit and who should have the corn was the question Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder shall have the corn for the reason for which a man which hath an uncertain estate shall have the corn is for that he hath manured the land and for that it is reason that he that laboureth should reap the fruit but he said that the stranger that sowed the land shall not have the corn Lease of ground sowed because his estate begun by wrong for if a man make a lease for life of ground sowed and before severance the Lessee dyed now his Executor shall not have the corn Assignment after sowing concess per Popham cont per Gawdy for that they came not of the manurance of their Testator so it is if the Lessee for life sowe the land and assign over his interest and dye now the Assigne shall not have the corn cansa qua supra and for this reason in our case neither the Executors of the first Tenant for life nor the Lessee of the first Tenant for life shall have the corn here for that it comes not by their manurance and the stranger which sowed them he shall not have them Vncertainty necessarie unnecessary difference for albeit he manured the land and howbeit his estate was defeasable upon an uncertainty yet he was a wrong doer and the incertainty of his estate came by his own wrong for which the law will never give any favour to him and for that when he in remainder for life entreth it seemeth that he shall have the corn for he hath right to the possession and the corn are growing upon the soile and by consequence are belonging to the owner of the soile but it hath been said that here there was no trespasse done to him in remainder and for that he shall never have the corn Sir as to that I say if an Abator after the death of the Ancestor enter and sowe the land Abator soweth and after the right heire enter in this case the heire shall have the corn and yet no trespasse was made to him and it hath been adjudged in this Court where a man devised land sowed to one for life and after his decease the remainder to another for life and the first Tenant entred and dyed before severance and he in remainder entred that there he in remainder shall have the corn and by consequence the same Law shall be in our case Godfrey è contra and he argued that the Lessee for yeers Devise of land sowne of the first Lessee for life
shall have the corn for if Lessee for life leaseth for years and this Lessee for yeers sowe the land and the Lessee for life dye now the Lessee for yeers shall have the corn by reason of his right to the land at the time of his sowing and never lawfully devested by any Act done by himself and he denyed the cases put by Mr. Tanfield and so concluded Gawdie The lessee for yeers of the Tenant for life shall have the corn and he denyed some of the cases put by Mr. Tanfield for in the case where Tenant for life sowes the land and after assigns over his esttae now if Tenant for life dye the Assigne shall have the corn as well as the Executors of the Tenant for life if he had not assigned over his estate But I agree the case of the devise for life of land sowed with the remainder for life for there he in remainder shall have them and the laches of the not entry of the Lessee for yeers shall not prejudice him Lessee for years ousted for it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted and after the Tenant for life dye yet the Lessee for yeers shall have trespasse with a continuando for all the mean profits The which proves that they belong to him so is it in 38. H. 6. Lessee at wil ousted If Lessee at will be ousted and after the Lessor dye now the Lessee shall have a trespasse with a continuando without regress for when he may not enter Regress the law supplyeth it and the mean profits do belong to him And by consequence in this case the corn belongeth to the Lessee for yeers Ground let for life after sowing of the Tenant for life Popham Sir Henry Knevit shall not have the Corn for if a man lease for life ground which is sown and the Lessee dye now the Lessor shall have the Corn and not the Executors of the Lessee for life And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life of ground sowed and the Tenant for life dye that he in Reversion shall have the Corn Disseisor sow the land of tenant for life And if a Disseisor sow the land of Tenant for life and the Tenant for life dye now the Executors of the Tenant for life shall have the Corn and not the Disseisor nor he in Reversion and by consequence the Lessee for years of the first Lessee for life in this case Fenner was of the same opinion and after it was adjudged that Knevit should have the land and that Poole should have the Corn because of his possession 61. RAme sued a Prohibition against Patteson Prohibition for Dotards and the question was if Trees which are above the age of twenty years become rotten and are cut down for fuell shall pay Tyths or not and the opinion of the Court was that they shall not for Tythes are payable for an increase and not for a decrease and being once privileged in regard of hie nature this privilege shall not be lost in regard of his decrepitage 62. PArtridge brought an Action of Debt against Naylor upon the Statute of 1 2 P. M. 12. Empounding For taking of a Distress in one County and driving it into another and the case was that three men distreined a flock of Sheep and them impounded in severall places and if every of them shall forfeit a hundred shillings severally or but all together a hundred shillings Common place The Court was divided for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings and treble damages but Walmisley thought that every one should forfeit a hundred shillings and he put a difference between person and party for many persons may make but one party 63. BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts Erroneous Judgement in London was a forfeiture of their Liberties but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated and was made finable as in Chester if they give an erroneous Judgement they shall forfeit an hundred pound for these inferior Courts which have peculiar Jurisdictions ought to do justly for if these Courts shall not be restrained with penalties Justice will be neglected and before the Statute of 28 Ed. 3. those of London might not reform Errors in London 64. NOta per Doctor Amias in the Lord Souch his case Caveat if a Church become voyd and a stranger enters a Caveat with the Register of the Bishop that none be instituted to that Church untill he be made privy thereunto and the Bishop before that he have notice of the Caveat institutes an Incumbent the Institution is meerly voyd in the Spiritual Law for the Register ought to notifie the Caveat to the Bishop and his negligence in that shall not prejudice him that entered the Caveat and if the Bishop have notice of the Caveat and gives day to him that puts that in and before that day he institutes an Ineumbent this is meerly voyd for the entering of the Caveat is as a Supersedeas in our Law 65. THornton brought an Action upon an Assumpsit against Kemp Day of payment and declared that the Testator was indebted to him in ten pound and in consideration that the Plaintif would give day to the Defendant being Executor to pay that until Michaelmas he assumed to pay that in facto dicit that he hath given day and yet the Defendant hath not that payd The Defendant pleaded in bar that post praedictam assumptionem factam and before Michaelmas the Plaintif did arrest him for the same Debt and demands Judgement and upon that the Plaintif demurred Gawdy When he hath given to him day of payment usque ad Michaelmas allbeit he arrest him before that time yet if he do not receive the money before Michaelmas the consideration is performed Fenner I deny that for to what purpose is the giving of day of payment untill Michaelmas if in the mean time he may sue him Popham I agree with my brother Gawdy for insomuch that he onely forbears the payment untill Michaelmas and doth not promise to forbear to sue him the payment is forborn if the money be not received 66. SHerington â—ued a Prohibition against Fleetwood Parson de Orrell Prohibition in Com. Linc. for that that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments and the now Plaintif being Defendant in the Spirituall Court pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture and for this payment he had been discharged of payment of Tythes for all Agistments in that land Payment for one thing shall not discharge another Popham This payment of money for Milch
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good
still for in 31 Edw. 3. an advowson descended to three persons and the youngest is in ward to the King and he granted it to Queen Philip his Wife Advoson to 3 parceners and she granted it over to the Earl of Arundell who granted it to the eldest parcener the Church became voyd the King had the presentation for when the King was possessed of the wardship of the youngest he was intitled to present for all and when he granted the ward over this did not devest the title of the two eldest which was vested in him before and 37 Hen. 6. the Grant of the King upon a false suggestion is voyd False suggestion and in Littleton he shall have account against Executors and yet the Law is clear Account that an Action of Account will not lie against Executors so for all those Reasons Judgment shall be given for the Plaintif Several reserâ—ations Fenner to the contrary And first I agree that they are severall reservations and so is the case which hath been remembred in 8 Ed. 3. A Lease was made of eight Acres of land reserving eight shillings of rent viz. for every Acre 12 d. thiâ— is severall and to that which hath been sayd that the condition is a proviso I deny that for a proviso Provisio quid sit as me seemeth either is in the affirmative that a thing shall be done or in the negative that it shall not be done but here it is neither directly affirmative nor negative and therefore they have found it without commission Agreement but I confess that agreement extends to rent 22 Hen. 6. 14 Hen. 8. then the Jury which was of Mtdlesex have found the four usuall Feasts in London viz. St Johns c. and this as it seemeth they cannot doe because it is a thing in another County especially they being but an Inquest of Office Further they have found that 37 s was behind at one Feast and this is impossible for then the entire rent should amount to 7 l. And further the Lessors have purchased the reversion before the return of the Inquisition and Commission and then the Queen cannot be intitled because she hath not the Freehold for it hath been adjudged here that if a man fell his lands and afterwards makes livery thereof and after inrolls the sale this shall not have relation to the date of the deed because it takes effect by the livery which was before the inrolment And 8. Edw. 3. Feoffment puis atteynder A man attainted of Treason makes a feoffment of his land after he is restored yet he shall not have the land yet if he had not made the feoffment he should have been restored to the land with the mean profits Then if the King grants the reversion if he shall have the condition remaining and I think not for the King hath it by express words of the Statute as the Prior had it and if the Prior had granted parcell of the reversion De percell de Reversion the entire condition had been gone and the King shall be in the same case for Cessavit is given by the Statute of Westminster 2. cap. 21. eodem modo as in the Statute of Gloucester cap. 4. This doth not ly of an estate tayl no more than a Cessavit by the Statute of Glouc. 8 Ed. 2. And so I think Judgement shall be given for the Defendant De Term. Trinitat Anno xxviij Eliz. Reg. 1. ROdâ—s Justice Judgement shall be given for the Plaintif First I agree that they are severall rents and yet this question doth not goe to the overthrow of the Action in proof whereof both great reason and authority is copious For if the Lessor had entred into parcel this had not suspended the entire rent or if the reversion of parcel thereof were granted this shall carry no more than that which is granted so it was held by the Justices when it was granted to Cordall Parcel entred into And 2 Hâ—n 6. if I reserve an entire rent and the Lessee will pay but parcell c. 17 Ed. 3. fol. 52. by Sharde 11 Ed. 3. lib. Ass If I make a Lease of two Acres reserving for the one Acre x. s to me and to mine heirs and for the other Acre x. s generally And Dyer fol. 308. b. Lib. Ass pl. 23. If three Coparceners be and rent be reserved for equality of partition but one Scire fac shall be brought for it is brought but upon one record 1. Scire fac and Littleton pl. 316. but one action of debt for Tenants in common but severall Avowries so I hold that they be severall rents in this case and yet but one condition And for that let us see if by grant of parcel the entire condition be gone In the case of a common person it is all gone as it was adjudged here in Hill last where a man makes a Lease for years reserving xx l. for rent Sum in gross and rent reserved upon cond and allso a sum in gross of xxvl was to be paid to the same Lessor upon condition if the rent or sum in gross were behind then a re-entry to be made Afterwards the Lessor took an Estate back again of parcell of the term the sum in gross was not payd and it was adjudged that he shall not take advantage by the condition for when he took an estate back again the rent was suspended and then for the sum in gross he shall not re-enter because the condition was entire Cond entire but all though that the case of a common person be so yet the Princses case differs for she shall have her Prerogative and for the Preheminence which the Queen shall have I referre you to the argument of Iustice Weston in the case of the Lord Barkley Coment And that the Queen shall have her Prerogative in a condition I will remember the case of the Abesse of Sion 38 Hen. 6. 21 Hen. 7. the King may make a feoffment in fee upon condition that the Feoffee shall not alien Feoffment in fee upon cond reservation and 2 Hen. 7. 35 H. 6. he may reserve a rent to a stranger and 21 Eliz. the Queen grants her debt to another and he in reasonable time will not prosecute the Queen may take it again gain Grâ—â—t of a debt and may sue And allso Cranmers case where King Hen. 8. gave lands to the use of him for life and after to the use of his Executors for twenty yeares Rent charge after atteynder after he was attainted the Queen shall have this rent as a rent charge and yet she had the reversion before And in reason it seemeth the Queen may apportion her condition for if this condition by the grant to Cordall shall be avoyded four principles shall be overthrown for it is a principle That the King shall not be deceived in his grant 2.
charges except Rents and Services which shall be due after c. to the chief Lord And afterward he made and levyed a fine And after the Wife maried and then the Son entred and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares Walmisley It seemeth that Judgement shall be given for the Plaintif because it was not discharged at the time of the Feoffment For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age Com. fo 539. after at his full age the Son shall have it so that there it was chargable to the Entry of the Son hereafter And here allthough that it be not presently charged yet when there is a charge arise the Covenant is broken And for that in 8 Eliz. a man bargains and sells Land Rent charge future and Covenants that it shall be discharged of all charges and he had granted a Rent before to begin twenty years after when the Rent begins it shall be said a breach And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land c. And so I think Judgement shall be given for the Plaintif Fenner to the contrary and here the Term was extinct by the grant end sale and then the Feoffment void and therefore no charge and thereupon no charge at the time of the Feoffment and for that he cited 42 Ed. 3. 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed c. so here in that she took nothing by the Feoffment there was no charge at the time of the Feoffment And this possibility of a remainder doth not make an interest and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 Resceit upon Cond where Tenant for life lets the Land to one upon condition that if he dye in the life of the Lessor that it shall retourn to the Lessor c. upon such a matter he may be received and he cited for that the case of Wheler 14 Hen. â— fol. 17. and a title suspended is no title 3 Hen. 7. 12. 30 Ed. 3. Lease for life upon condition that if the Rent be behind then he shall retain the Land c. and he said that the opinion of Bâ—omley in Fulmerstons case was contrary thereunto but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso And so it seemed to him that the Plaintif shall be barred 18. THE case of Fr. Ashpool was moved again by Fenner Hue and cry and it seemed to him that the Plaintif ought to make Hue and cry for as he said it hath allwaies been the manner of pleading and allso it hath been allwaies parcell of his issue to prove Allso he argued that he should not have remedy by the Statute post occasum solis For Stamford saith expresly that if a man be robbed in the day that he shall have remedy and the day shall be said but from the rising of the Sun to the fall thereof for the words of the Statute are that the Gates of the walled Towns shall be shut ab occasu usque ad ortum solis and then if the Gates be shut and that walled Town be within a Hundred how can they make Hue and cry And the case in 3 Ed. 3. is not like to this case Fresh suit by the Hundreders for there it was enquired and found of the Dozen Anderson The fresh suit mentioned in the Statute ought to be made by the Inhabitants and not by the parties and I am of your opinion that Hue and cry was at the Common Law but what of that But look the Statute and there is no word of Hue and cry And the Statute of 28 Ed. 3. is an exposition of that Statute and there is no mention thereof but Fresh suit is there mentioned which ought to be made by the Inhabitants And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort as men may safely travell without robbing And for the night Sir wee ought to construe it as it is most reasonable and about the setting of the Sun is the common time of robbing and therefore if this shall not be intended by the Statute nothing shall be intended and allthough the walled Towns cannot persue Walled Towns may keep the waies yet they may keep the waies so that no robberies shall be committed and this is both day and night as I think And if a man be slain in the robbery so that no Hue and cry can be made I doubt not but the Country shall answer for the robbery A man is robbed slain and bound and so if he be bound And if Hue and Cry ought to be when ought it to be For if a man be bound two dayes together he had as good make no Hue and cry as make Hue and cry afterwards and yet I hope you will agree that this man shall be relieved by the Statute which case was agreed by all the Court. Peryam The day without doubt is after the Sun-set Day after Sun-set Rodes cited the case of waging Battail in an Appeal in Stamford And so by agreement of all the Justices Judgement was entred for the Plaintif but Fenner sayd privately that in his conscience it was against the Law yet notwithstanding all the Judges were clear in opinion and the Serjeants of the other part allso So that it seemed to the Judges that no Hue and Cry is necessary by the party for they all agreed that the Country ought to be kept so that no Robberies be committed And Anderson and Rodes affirmed precisely that it is not necessary and the other agreed in the reason thereof and sayd that it is not mentioned in the Statute but sayd that the waies ought to be kept so that men may travell safely or otherwise it is against the Statute 19. IN a Writ of False Judgement brought against the Mayor Tryall Sherifs Citizens and Commonalty of Norwich it was moved where the Issue shall be tryed and per Curiam it shall not be tryed there but yet the Action may be used there And in the same case it was demanded Summons if the Sherif may summon himself and the Court answered that he could not and Peryam sayd that so it hath been adjudged here many times 20. THe â—ast day of the Term the matter of Lassels was moved again and it seemed to Anderson that the Obligation is voyd in that there is an express form limited by the Statute and this varying from the form in substance is voyd for in his opinion he excludes the
party from his advantage given him by the Statute But all the other Justices held opinion against him for they sayd that a man ought to appear in proper person upon a Latitat which Anderson denyed and sayd that the Latitats are not but of threescore yeares continuance which the other day Peryam had affirmed and he seemed to mislike with the Latitats And the Serjeant moved for their resolution in the case Anderson All my Brethren are of opinion against me wherefore take your judgement accordingly And so judgement was entred for the Plaintif 21. GAwon brought Debt upon an Obligation against White Traverse with condition that if the Defendant suffer the Plaintif his Tenants and Farmers to enjoy such a Common that then c. And the Defendant pleaded conditions performed and the Plaintif assigned for breach that he did not suffer A. B. his Tenant to enjoy c. Absque hoc that he performed the condition And it was sayd by the Court that this Traverse was not good no more than if one be bound to perform the covenants in an Indenture and the Defendant pleads that he hath performed all generally if the Plaintif assign his breach he shall not say further Absque that the Defendant hath performed the covenants for so much he had sayd before But Walmisley would have put a difference between the cases because in the one there were divers covenants to be performed but not so here Anderson If a man plead a Plea which is sufficient of it self and take a traverse allso you will grant that this Plea is not good quod fuit concessum and this Plea had been sufficient of it self onely quod fuit concessum ergo the traverse was not good without question Et sic opinio totius Curiae 22. GOverstone brought a Replevin against B. Rent charge who avowed the taking for a Rent charge granted to him by the Duke of Suffolk And this was the case The Duke was seised of three parts of a Mannor and granted a Rent charge to the Avowant And one Pole was seised of the fourth part and Hatcher purchased the Dukes three parts and the part of Pole allso and demised a fourth part to the Plaintif but the Serjeants could not agree whether it was Poles fourth part or otherwise the fourth part generally and as it seemed to the Court if it were the fourth part of Pole then the Avowry is not maintainable but otherwise if it were the fourth part generally And after in Michaelmas Term the case was rehearsed again and it was that he demised eandem quartam partem to hold at will And all the Justices agreed that it shall be discharged because it was never charged allthough once he might have distreined in all the Mannor Vnion of possession for that then there was no fourth part for all was alike in the hands of the purchaser but now when the fourth part is in the hands of a stranger it is no reason that it shall be charged Walmisley But the Tenant at will hath nothing but the profits by the way of taking Tenant at wil. and not any land but if Hatcher had made a Feoffment then I agree that it shall be discharged â—eryam And as well shall Tenant at will take the profits in his own right as long as the will doth continue wherefore judgement was given for the Plaintif 23. LEssee for years Wast the reversion in fee to Constance Foster and the Lessee granted over all his term and interest to A. B. Pasch 18 El. reserving and excepting all trees growing in and upon the premisses Rot. 420. the Lessee makes wast and destruction in the trees and C. F. brought Wast against the assignee and if this action will lye or no was the question wherein it was disputed whether this exception and reservation made by the Lessee be good or no for if the reservation be voyd then the action will lye well against the Assignee and thereupon these cases were put to shew both what interest the Lessor and Lessee have in the Trees viz. 33 Hen. 8. 2 Hen. 7. 42 Ed. 3. 21 Hen. 6. 46. 27 Hen. 6. Wast in Slatham 2 Eliz. fol. Danseyes case 7 Hen. 6. 12 Ed. 4. but to prove the reservation voyd Fenner took this ground That thing which a man cannot grant he cannot reserve and the Lessee cannot grant the Trees ergo he cannot reserve them And afterwards judgment was given for the Plaintif for default of pleading on the part of the Defendant but for the matter in Law two Judges were against the other two so that they could not agree De Term. Mic. An. Reg. Eliz. xxix xxx 1. AN action of Debt was brought by Bret against Andrews upon an Obligation indorced with condition to stand to the arbitrement of A. B. Request who did arbitrate that the Defendant should pay to the Plaintif xxâ—l and appointed no certain day of payment and the Defendant in pleading confessed the arbitrement but he sayd further that the Plaintif did never require him to pay it and thereupon the Plaintif demurred in Law and upon reading of the Record the Court held clearly that it was no plea because the Defendant at his peril ought to make payment within convenient time and the Plaintif needeth not to make any request And Anderson commanded to enter judgment accordingly 2. FEnner moved this case Possibility of Interest a man deviseth lands to his Wife for term of her life and if she live untill his sonne come to the age of 24 yeares that then he shall have the lands and if she dye before he come to that age that then I. S. shall have it untill his sonne come to that age and dyed then I. S. dyed before the wife and after she dyed before the sonne came to 24 years if the Executors of I. S. shall have the land untill the sonne come to that age or no was the question And the opinion of all the Court was that they shall not have it because their Testator had never any interest vested in him Fenner But here was a possiblity of an interest Curia But that is not sufficient Rodes cited the case of Bret and Rigden in the Commentaries Grant Anderson If I grant you that if you pay me xxl. at Easter then you shall have an Annuity of xl s to you and your heirs if you dye before Easter now your Heir shall never have it and so in this case 3. THatcher recovered in an Assise of Novel disseisin against Elmer for Lands in Hackney in Middlesex Redisseisin and after Elmer re-disseised him and Thatcher re-entred and Elmer disseised him again And Fleetwood moved the Court if Thatcher may have re-disseisin because that after action accrued to him he had re-entred Anderson What is the Judgement in this Action Judgement Surely it is not that he shall recover any land but double damages and that the
stand seised to the use of Adams untill he made default of paiment of the said sum and then they should stand seised to the use of the Queen untill she were satisfied and payed and then to the use of Adams and his Heirs And after Adams by deed enrolled sold the Land to a stranger in Fee and after the said stranger failed in paiment of the said yearly sum whereby the Queen seised the Land and so continued untill she was satisfied now the question was who should have the Lands Adams or the Bargainee Anderson Ifyou will take the case according to the words it is short tell me what Estate had Adams by this Limitation Puckering A Fee determinable Anderson How then can the Bargainee have it when the Estate is determined Puckering But the Fee was limited to Adams and his Heirs Possibility cannot be granted nor released Anderson This is but a possibility which cannot be granted over And if I were a Chancellor Adams should not have the Land but upon the words I tell you my mind alii Justie conticuerunt 3. DAniel Bettenham Plaintif against Debora Harlackendon Reversion upon a devise the case was this one Harlack was seised and deviseth it to the Plaintif for years the Remainder to the Defendant being his Wife for life and provided that the Lessee should pay the Wife xx l. a year for Rent at two Feasts and after the Plaintif failed of payment wherby the Wife entred for the Condition broken Anderson Wherefore may not a man make Reservation upon a Devise Peryam A man may reserve to himself or to his 〈◊〉 but this is to a stranger Anderson Every man which takes by a Devise is in in the per by the Devisor quod fuit concessum wherefore then shall not this be as a Reservationto the Devisor and as a grant of the Reversion to the Wife Gandy If it shall be a firm in gross Sum in gross yet I think that she ought to demand it which she hath not done Anderson and Rodes denyed that case clearly and that the contrary hath been adjudged Anderson If I Devise Lands to a man for years rendring Rent to me and mine Heirs Devise of a Reversion after a Term. And after I Devise the Reversion he shall have the Rent as incident to the Reversion Peryam This may be agreed but the cases are not like adjornatur 4. IN debt by Rostock Waging of Law the case was that the Plaintif and another made a Contract with the Defendant and the Plaintif alone brought the Action and Walmisley moved the Court if the Defendant may wage his Law for it is not the same Contract and he cited 20 Hen. 6. account before Auditors where it was but before one Auditor he may wage his Law 35 Hen. 6. is an express case in the point And so was the opinion of the Court Anderson absente 5. A Writ of Entry sur diss Voucher was brought by Sir Thomas Sherly against Grateway who vouched one Brown and he entred into the Warranty saving to himself a Rent issuing out of the same Land and this was allowed by the Court and the Voucher was in a Writ of entry for a Common Recovery to be had 6. EDward Smith brought his Action of the case against Winner Slander for words viz I was robbed of goods to the value of 40. l. they were stollen by Smith and his Houshold ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo and the issue was found for the Plaintif And the Defendant spake in arrest of Judgement because S. alone brought the Action But all the Court said that the Action is well brought for the slander is severall And Peryam that if 〈◊〉 a man say that three have robbed him Vno flatu and name them uno 〈◊〉 every of them may have a severall Action 7. IN an Assise by Thatcher where he was Redisseised Redisseisin the Redisseâ—â— was found in part and thereupon the Court was moved if Redisseisin will lie in as much as it is not but of part and the Writ is if he be Redissesitus de â—odem teneâ—â—nto then Redisseisin lieth but the Court held that Redisseisin lieth of part and that he shall recover damages as they are assessed by the Jury and not by the 〈◊〉 Then it was moved if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith that the ancient Expositors have taken it that it doth not lie there because it is not coram lustic itinerant but all the Court held the contrary And Walmisley said that there be Writs in the Register accordingly 8. THe Earl of Kent brought debt upon an Obligation indorced with Condition Time convenient that if the Defendant do permit the Plaintif his Exâ—cutorâ—s and Assignes not onely to thresh the Corn in the Defendants Barn but allso to cary it away from time to time and at all times hereafter convenient with free Egress and Regress or else to pay 8 l. upon request that then c. and in truth the Defendant permited the Corn to be there two years in which time Mice and Rats had devoured much of it and then the Defendant threshed the Residue and the Earl brought his Action and there was a demurrer entred Walmisley the Bond is not forfeit for the Earl hath not taken it out in time convenient for he ought to take it in time convenient and time convenient is that which is not prejudiciall to any person which the Justices privily denyed and here it is a prejudice to the Defendant if the Plaintif will not carry away his Corn and thereupon he cited many cases that things shall be done in time convenient Arbitrement as in 21 Ed. 4. arbitrement ought to be made in time convenient Anderson Your cases are by act in Law but here you have bound your selves and the Condition is at time convenient and if he will come in the night or on the Sabbath day this is no convenient time but allthough that he come in a long time after yet it may be at time convenient and the words are not within time convenient and so was the opinion of the Court. And Windham said that if it had been within time convenient there would have been a difference 9. MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit Trespass and Assigned the place in sixteen Acres of Land called Churchclose Contents of a new assignment and the Defendant pleaded not guilty and the Jury found a speciall Verdict that Churchclose conteyneth fixty Acres whereof those sixteen were parcell and that diverse men were seised of divers other parcells of the said close and that Hare only was seised of the said sixteen Acres in which c. exposuit eas to the three other Plaintifs to be sown and that he should find half the seed and they three should find the other
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
Will shall be good Rodes If a man make his Will and after do become non compos mentis and then live three or four years after Long life maketh difference it is no reason that such a Will shall be good and he cited 3 Edw. 3. it in Northt for this case Gawdy If the Proviso in the Statute of Wills had not been then every Will made by a Feme-Covert should have been good Tota Curia That is nothing so for allthough the Proviso had not been Reasonable construction yet the Statute should have had a reasonable construction But for the principall case the Court was not yet resolved After at another day Gawdy moved the case again and held strongly that by taking of a Husband this is not Countermanded and cited 2 R. 2. and then during the Coverture she hath sâ—bmitted her Will to her Huâ—band For by 3 Ed. 3. it in Roteland she cannot devise to her Husband whereby he concluded that the VVill is good Shuttleworth to the contrary because she hath no ability at the time when it should take perfection and every Will ought to have three things Inception Progression and Consummation And he cited Bret. and Rigdens case Anderson I am of my first opinion that this VVill is not good for I think this Countermand by the Wife is sufficient â—â—uâ—termand by one not of found mind and if non compos mentis say that he doth revoke his Will this is a sufficient Countermand And whereas it hath been said that a Feme-Covert hath no VVill Sir that is not so for she hath a Will in many cases Wills of feâ—e 〈◊〉 as if she be Executrix she may make a gift c. So if I be bound to do such an Act if such a Feme-Covert will consent in this case if the Husband onely consent it is not sufficient but the Wife ought to assent allso And if this Will shall be good then this mischief will ensue that after a Will is once made the partie shall have no power to controll it Controlement therefore I think the Will is not good Wyndham I am of the same opinion For a Will is not perfect untill after the death of the Devisor No countermand and when she is disabled at the time of her death the Law saith that such a Will is void But I think that a Feme-Covert cannot Countermand her Will for the same reason which doth disable her to make a Will doth allso disable her to Countermand that which is made before for by 3 Edw. 3. Consummation which was cited before she cannot devise to her Husband and by the same reason she cannot Countermand that which is devised to her Husband but because the Wife was not a person able at the time of the Consummation thereof therefore it is not good Marâ—iage no countermand Peryam to the same intent First the Mariage is not any Countermand and for the case in 2 R. 2 I think it good Law And I have allwaies taken this diversity that if a woman grant the Reversion after Tenant for years Reversion and before Attornment had she take a Husband that this is a Countermand but if that it be a Reversion after Tenant for life then it is no Countermand For in the first case his Title of Tenant by the Curtesie begun by the intermariage Allthough that it was not consummate before issue had And it seemeth a clear case that a Feme-Covert cannot Countermand a Will for she cannot make a Will And whereas it hath been said by my Lord that a woman hath a will Will by customâ— or by some by-matter true it is but that is either by custom or by reason of some by-matter as in the cases put But VVills ought to take effect at the time of the death and if then she be disabled it is not good for it is not consummate before as if there be Husband and VVife and the Husband be seised of Lands in Fee and levy a Fine thereof and then dye and after the levying of the Fine five yeares pass yet she shall not be Barred but if after the death of the Husband five yeares pass she is barred by a Fine because her title was not conmsumate untill after the death of the Husband whereby c. Rodes to the same intent for if I devise the Mannor of Dale as it is iu the Com. for c. and then have nothing in it but afterwards purchase it Perfection now it shall pass which proveth that the perfection of a Will is at the time of the death and in 39 H. 6. a man devised lands and before his death was disseised Disseisin after Will nothing passed by the Will because it was no Will untill death and here in our case because she was disabled at the time of her death it is void Anderson Then let judgement be entred accordingly 17. A Proclamation was directed to the Sherif of Cheshire against John Hockenhall Proclamation and the Writ was retorned Tale die ad comitat meum tent in le Shirehall c. Dyer fol. 206. proclamationem feci ac eodem die ad generalem Sessionem c. proclamationem feci c. And now this matter was pleaded in avoidance of the Utlary to reverse it because those proclamations were made one day whereas the Writ was tribus seperalibus diebus c. And the Sherif was amerced to forty shillings for his evill retorn And at another day he was amerced to other forty shillings because he had retorned divers Writs in Secretary hand Secretary hand And commandment was then given to the Custos brevium to receive no Writs retorned in Secretary hand for the Court said that writing in Secretary hand would be so worn in a dozen yeares that no man can read it 18. HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd â—â—perdict Common intendment Hen. Gooderd de London Tayler Trin. 30. Eliz. And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper dicti H. G de Lond. Rot. 2â—03 Barber Chirurgeon whereupon the Plaintif demurred And the Defendant did not aver that the said G. Tayler G. Barber Chirurgeon was allone person and they also omitted this word praedictum And whether this were good or no was the doubt And it seemed to the Justices that it was not good although it was alleged that it shall be intended all one person and then if a plea in bar be good to common intent it is good enough And therupon John Pastons case was cited in 21 H. 7. Where it was Westmonasteriuâ— doth not say praedictum Common intent what it is yet it shall be intended the same VVestm mentioned before Whereunto the Court answered that here by common intent he shall not be intended the same person but
view of the Record it appeared that no originall was certified and therefore could not be amended 33. EJectione firme inter Bulleyn Bulleyn Devise Cook Attorney Generall The case is that Simon Bulleyn being cestui que use before 27 H. 8. Devised to his Wife certain Land for her life that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost Limitation and if he dyed without issue that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost and if he dye without issue of his body then his two Daughters A. and B. shall have the land paying the value thereof to the Executors of his Wife and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly The chief question and knot of the case is whether Robert Bulleyn the Devisee hath an estate tayl or not and he sayd it seemed to him he had but an estate tayl and for that we are to see whether the payment ought to precede or is subsequent to the estate and I think it is subsequent to the estate For the words are my sonne Robert shall have my laud ten pound under the price it cost and so by the words he ought to have the land before any payment and I think he shall have the land by course of limitation Limitation and if he doe not pay the money that R. B. shall have the land as Heir by limitation Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters and devised his land to his eldest daughter paying to the youngest ten pound there the eldest had all the land till she failed of payment of the ten pound and then it was adjudged that the youngest should have the moity by way of limitation Vellock Heymonds case And 32 Eliz. it was adjudged in this Court inter Vellock Heymond where a man devised Burrongh English land to the eldest brother paying to the youngest ten pound and after the elder failed of payment and the youngest entered by way of limitation And in this case these words that Robert my son shall have my land ten pound under the price it cost will make a condition as well as if he had sayd paying ten pound and to prove that he cited Sir Edward Cleres case Sir Edward Cleres case that these words upon trust and confidence will not make a Condition by reason that the Devisor had a speciall trust and confidâ—nce in the Devisee but it is otherwise here and in this case the estate of necessitie ought to precede the payment for it is appointed that the payment shall be made to the Executors of the woman and so if the estate doe not precede the payment then during the life of the woman the Devisee shall have no estate for during her life she cannot have Executors and so by consequence can there be no payment Allso the words of the Will are I desire my Feoffees to make an estate at the request of my Wife so that his meaning was plain that there should be an estate made in the life of the Wife for after her death she may not make request but it hath been sayd that the state should be Fee simple for that the words are that he shall have the land ten pound under the price it cost and so these words paying shall carry the Fee simple And as to that I say that it shall not against an expressed estate Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life the remainder to C. F. and to the heirs Males of his body and if he dye without heirs of his body the remainder over and it was taken clearly that the generall limitation if he dyed without issue of his body shall not alter the speciall tayl for that the intent is apparent and allso he cited Claches case and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman so that if it were a condition subsequent he may not make payment to himself but shall have the land discharged of the condition by reason of the impossibility as if the woman had dyed intestat there is no person to whom the payment ought to be made and so the Devisee is discharged of the condition Allso in this case the Devisee being eldest sonne may not forsake the Devise and take by descent as in 3 Hen. 6. 46. it is for the benefit of him in remainder but if he might waive he may not waive in pais as 13 Rich. 2. Joyntenancy is adjudged And allso when he enters at the first he is seised by the Devise for he hath no other right for if he might waive he in remainder shall not take Et adjornatur but the Court seemed to lean that the estate should be a Fee simple 34. BUry brought an Action upon his case for words against Chappell Slander viz. He hath been in Fowlers Tub innuendo the Tub of one Fowler a Chirurgeon in which Tub no person had been but those which were layd of the Pox I will not say of the Pox but he lay in the Tub that time that Lagman his Wife was layd of the Pox and tell thy Master his hair falls from his head and he is a pilled Knave and a Rascall Knave and a Villain and no Christian and thinks there is neither heaven nor hell and adjudged that the Action is not maintainable 35. A Man is arraigned of Felony and acquitted Flight for Felony but it is found that he fled for the Felony he shall not lose his goods that he had at that time of his flying but at the time of the acquittall tit Coronae Fiâ—zh 296. Bro. tit relation 31. 3 Ed 3. 36. WIlkinson brought Error upon a Judgment given against him in the Common place Variance between emparlance and judgment roll for date of the Obligation And the case was that in Debt brought against Wilkinson in the Common place upon an Obligation bearing date 1â— die Novembris the Defendant imparled and in the next Term the Plaintif declared a new prout patet upon an Obligation bearing date 12. Februarii and upon nihil dicit had judgment And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended Gawdie Fenner said it could not be amended but the Lord Popham and Clinch said it might be amended 37. SKelt brought an Assumpsit against Wright and declared that the Defendant in consideration of 10l assumed to make two lights into one New triall and upon non assumpsit pleaded they were at issue and the Record of nisi prius was to make two lights and one where it ought to be into one and upon that at the nisi prius the
by Verdict tryed for the Plaintif And Gerrard pleaded in arrest of Judgement for that there is no bail entred for the bail is for Gerrat and his name is Gerrard Cook Attorney He may be known both by the one name and the other For in Norfork there is a Knight which in Common speech is called Barmeston but his right name is Barnardiston And if he by the name of Barmeston put in bail in this Court it is good being knowen by the one and other and so it seemed the Court did incline for the dangerousness of the President For otherwise every man impleaded may give a false name to his Attorney by which he will be bailed and then Plead that in arrest of Judgement but Judgement was giuen for the Plaintif 49. IN debt upon an Obligation Notice of a retorn from beyond sea the Condition was that if the Obligee retorned from beyond Sea before the 22 of Aprill and the Obligor pay to the said Obligee 200. l. before the twenty seventh of Aprill then the Obligation to be void Otherwise to stand in force Cook moved that the Obligee ought to give notice to the Obligor of his retorning from beyond Sea before the two and twentith day of Aprill or otherwise the Obligor is not bound to pay him the money For when a thing resteth in the will of another to be done and the time is uncertain when it shall be done Then notice ought to be given to him which ought to do the thing as 18 19 Eliz. 354. placiâ— 32. 17 Eliz. A man made a Lease for years And after made a new Lease to Commence after determination Forfeiture or Surrender of the first Lease with clause of Re-entry for non payment of the Rent And after the Lessor took a secret surrender of the first Lessee and after that surrender a Rent day incurred and the Rent was not paid by the second Lessee and yet adjudged that his Estate is not void because the other ought to give him notice of the Surrender Gawdy The case is not alike for 8 Edw. 4. a man ought to take notice of an Abitrement Fenner It shall be as dangerous for the Obligee if he ought to give notice as for the other to take notice 50. STafford brought an Action of Trespass against Bateman Distress for issues for of a strangers beasts Levant for taking of a Cow The Defendant said that the Land where the Trespass was supposed to be made is the Land of one Iohn Dean The which I. D. hath lost iiij l. issues to the Queen and there came a Warrant out of the Exchequer to the now Defendant being undersherif to levy the said iiij l. in the Lands of the said I. D. And because this Cow was Levant and Couchant within the said Land he took her as lawfull was for him to doe Gawdy Fenner The Sherif may not take Beasts of a stranger in the Land of him that hath lost issues to the Queen Popham By way of distress he may take Beasts of a stranger if they be Levant and Couchant upon the Land of him that hath lost issues but not to sell them and so to levy the Issues 51. ERror was brought by An. Latham Error upon a Judgement given against him in a Writ of Debt in the Common place and the Error assigned was for that the Originall Writ was purchased against him by the name of A. L. nuper de London Yeoman alias A. L. de Sherbâ—â—â— in Com. Ebor. Variance in the alias no error Yeoman And upon that the said An. L. appeared and pleaded and was condemned and after a Capias ad satisfaciend issued against him by the name of A. L. nuper de L. Yeoman alias A. L. de Shelbâ—â—â— in Com. Ebor. Yeoman and so he assigned the variance between the first Originall and the Capias ad satisfaciendum Shelbone for Sherbone but for that this variance was not in the first name but in the first Addition therefore it was adjudged no Error by the opinion of the Court. 52. LAugford and Bushy did present by turns to the Advowson of Norwinkfield Quare imp Langford presented one A. which was instituted Pasch 43 Eliz and inducted and dyed Bushy presented one C. which C. was lawfully deprived by the Bishop of Coventrey and Lichfield without giving any notice to Langford who had the next turn The Bishop made Collation and after Collation Langford sold his moity to Lee Collation before notice and Lee to the Earl of Shrewsburie The question was whether by the Collation Langford hath lost his turn The Court seemed to incline that by the Collation the turn is lost for if it had been by usurpation it had been lost without any question And yet it seemeth that upon deprivation the Patron ought to have notice Vide Statut. de 13 Eliz. 53. YElverton the Queens Serjeant demanded the opinion of the Court Devise if a man be seised of land in Fee and have two Daughters onely and deviseth his land to his Daughters in Fee if now the two Daughters shall be Joyntenants or take by descent as parceners and the opinion of the Court was that they are in by the Devise and not by descent and so they shall be in as Joyntenants and not as Parceners but otherwise it shall be if there were but one Daughter and the Father devise the land to her so if he devise the land to his Son and Heir in fee. 54. NEcton and Sharp Executors of Throward sued a Prohibition against Gennet and others Prohibition for a Legacy and the case was that one that had a Legacy devised unto him sued the now Plaintifs being Executors for the sayd Legacy in the Spiritual Court and the Executors there pleaded that the Testator in his life time made a certain Obligation sufficient in Law to J. S. the which is not yet satisfied and the Spirituall Court would not allow this Plea for which he had a Prohibition Makin Attorney of Essex sayd to me that this is the second case in question of this point but he doubted that the pleading was so vitiouâ— that the matter in Law would not come in question Executors represent the person of their Testator and therefore if a release be made by one of them Action confessed by one Executor by admittance this shall bind all and so if an Action is brought against one Executor where there be divers Executors and he admit the Writ and confess the Action this shall bind all the goods of the dead as well as if they were all named Per Hâ—rn 55. GReningham brought an Action of Debt upon an Obligation against Ewer Election The Condition was that if the said Ewer doe deliver unto the said Greningham certain Obligations which the said Ewer hath of the sayd Greninghams or else doe seale such a release as the said G. shall devise before Mich. that then c. The Defendant
if this deniall was a Conversion they prayed the discretion of the Court. Fenner I think that the deniall is a Conversion Denial is a Conversion for when I lose my goods and they come to your hands by finding and you deny to deliver them to me I shall have an Action of Trespass against you as 33. Hen. 6. is Keeping is an Administration And the very keeping of goods by an Executor shall be counted as an Administration and by the same reason the deniall here shall be counted a Conversion Gawdy I am of the same opinion for by 2 of Hen. 7. If I deliver to you Cloth to keep and you keep it negligently I shall have detinue or an Action upon the case at my pleasure and by 20 Hen. 7. if a Baker contract for Corn and the party do not deliver it at the day the party may have Debt or an Action of the case Tanfield There was a case in this Court 30 Eliz. for the finding and Conversion of a horse But here was no request made by the Plaintif to deliver the horse For which Judgement was given against the Plaintif Curia This is not like our case for the request and deniall makes all the wrong in this case Adjornatur 80. WIseman brought a Writ of Error against Baldwin Limitation upon a Judgement given in Trespass in the Common place upon a speciall Verdict which was that Baldwin was seised of 24 Acres of Land and made his Will and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years upon Condition that he should pay 20. l. to the Daughter of the Devisor And if he shall happen to dye before his age of 24 years then he willed that Richard his eldest Sonne shall have the same Land upon Condition that he should pay to the said Daughter 20. l. And he willed further by the said Will that if both his Sonnes failed of payment of the said 20. l. to his Daughter that the said Land should remain to his Daughter And after this Devisor died and Henry his younger Son entred after the age of 24 years and did not pay the said 20. l. to the Daughter and Richard the eldest Son did enter upon him and whether his entry were lawfull or not was the question Cook Attorney said it was a meer Limitation and no Condition and by consequence the entry of the eldest Sonne is not lawfull and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son upon Condition of payment of a certain sum of money to his Daughter as our case is The Remainder over to another of his youngest Sonns and the first Devisee entred and did not pay the money and he in Remainder took advantage of that and so in our case by the Devise Richard is to have nothing if Henry the youngest Son did not die before 24 yeares and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor And therefore the entry of the eldest Son is not lawfull Godfery I think it is a meer Condition for so are the words And then when the word subsequent limit a Remainder to the Daughter for default of payment that is not good and he denyed the case cited out of Justice Dallison for he said he was dead long before An. 9 Eliz. Gawdy I take the case of 29 Hen. 8. 33. to be a Limitation and no Condition for there a man devised to the Prior and Covent of St. Bartholomewes Ita quod reddant decano capitulo sancti Pauli 16. l. per An. And if they failed of paiment that their estate should cease and that the Land should Remain to the said Dean and Chapter and their Successors And it seemeth there that the Dean and Chapter for non payment shall not enter But I think the contrary and I think in this case it is a Limitation and no Condition A remainder and a recovery may be created by one deed Fenner If I make a Lease for life upon Condition with Remainder over may my Heir enter for the Condition broken Godfry Yes Sir Fenner Nay truly for then he shall defeat the Remainder which is well limited by me before the which I may not do and this is the reason if I make a Lease for life upon Condition and after grant the Reversion over that before the estate the Condition was gone for that if I re-enter I shall defeat my own grant Gawdy Per 29. Ass If a man devise to one upon Condition that if he shall be a Chaplin to remain over to a Corporation and the Tenant was made Chaplin by which the Heir entred and an Assise was adjudged maintainable against him for his entry was not lawfull Clinch The intent of the Devisor appears that for default of payment the Daughter shall have the Land and therefore the Sonne shall not enter And Wilcocks case in this Court was that a man seised of a Copyhold in the nature of Burrough English surrendred that to the use of his Will and by his Will devised the Land to his eldest Sonne upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred and his entry was adjudged lawfull Gawdy Wee three are agreed that it is a Limitation and no Condition by which the first Judgement was reversed 81. PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband Assumpsit of the testator and declared that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land he assumed to pay to him 100. l. And the Defendant demurred in Law for that the Action is not maintainable against any Executor upon an Assumption of the Testator Popham For the Contrariety of opinion in this Case between the Judges of the Common-place and us we will make it an Exchequer-Chamber case and so try the Law 82. ONe Jackson prayed a Prohibition Prohibition for a Parsons lease and shewed for his Cause thâ— the Parson sued him in the spirituall Court for tithes And ho wt the Statute of 13 El. cap. 20. c. That if any Parson make a Lease for years of his Parsonage and absent himself by the space of 80 daies that the Lease shall be void And the Parson shall forfeit the profits of his benefice for a year and the Statute of 14 Eliz. cap. 11. c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice or to take any Benefice or to take the profits and fruits thereof shall be adjudged of such force and Validity as Leases made by the same persons of benefices and not otherwise and after the
Statute of 18 Eliz. cap. 11. c. appoints that the Ordinary after complaint made and sentence given against any such incumbent whereby he ought or shall lose one years profits of his Benefice shall grant Sequestration to one of the inhabitants of the same Parish as he shall think meet And upon default there in by the Ordinary that it may and shall be lawfull to every Parishoner where the Benefice is to retein and keep his or their tithes and likewise for the Church-wardens to enter and take the profits of the Glebe lands and other Rents and duties of every such Benefice to be imployed to the use of the poor and he shewed how that the Parson made a Covenant and a Bond that he would permit I. S. to take the profits of his Benefice for a year And whether this were such a Lease for which the Parson ought to forfeit the profits ut super he prayed the opinion of the Court and it seemed to them it is not the reason seemeth to be because he doth not aver him to be absent above 80 daies in the same year 83. PEr Popham If a man find my horse Conversion and after ride him and then delivers the horse unto me and I bring an Action of Trover for the Conversion It is no plea that you have delivered the horse to me before the Action brought for you ought to answer to the Conversion 84. CHesson brought an assumpsit against D. K. Abatement of debt and declared that where I. S. was indebted to him in 64l The Defendant in consideration that the Plaintif would abate 10l parcell of the said Debt and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael and the Plaintiff in facto saith that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue per quod actio accrevit The Defendant pleaded in Barre That after the said day given and before Michaelmas scil tali die the Plaintiff entred a plaint in London for the Debt aforesaid of 64. l. Arrest before the day given for payment and then caused the said I. S. to be arrested and demanded judgement si actio Tanfield The Declaration is sufficient for you have delared that you have abated part of the debt but you have not shewed how that was defaulked and therefore not good for we may take issue upon that if we will and if a man be bound in an Obligation to discharge me of certaine rent it is no plea for him to say that he hath me discharged without shewing how for that that I may take issue upon thaâ— Also to the second matter the Plaintiff ought not onely to give day of payment but also to forbeare to molest I. S. untill the day be come Cook to the contrary And as to the first poiut it seemeth that the discharge ought to be upon the entring into bond Bond for parcell of a contract for if a man make a Contract for 10. l. and after enter into bond for 5 l. parcell of that all the Contract is gone as appears per 3. H. 4. And as to the second point I think the promise is broken by the Defendant for that he did not enter into Bond the next day after the assumption made Gawdie I doubt whether the Declaration be good or not for it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for it may not be intended a defaulking in Law but of a defaulking indeed and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act himselfe And 17. Eliz. A man was bound to allow ratifie and confirm a term for yeers And it is no Plea to say that he hath that confirmed But he ought to shew how because every Confirmation must be by Deed but if the Declaration were good then perchance the Barre would not be good And howbeit that Mr. Attorney hath said that there is a breach for not entring into Bond yet the Plaintiff may not sue Every discharge to be by writing if he have not performed his promise Fenner It will be hard to make the Declaration good for when one promiseth to defaulk his debt this shall be intended a lawfull discharge which cannot be otherwise than by writing and per 20. E. 3. Accompt If a man be bound to acknowledge a Statute For the intent must also be performed and he doth acknowledge the same but yet keeps the same in his own hands this is no performance And as to the second point when one promiseth in confideration of one thing to doe another there ought to be performance of the first as if a man be bound to make a new Pale Disturbance of the consideration as 9. Edw. 4. 20. 15. Edw. 4. 2. 3. is having the old pale for his labour there if the old pale be taken from him he is not bound to make the new pale Popham I am of the same opinion 85. DIxon brought an Action upon the case against Adams Assumpâ—it in consideration that a man will voluntarily do that act which otherwise he should have been compelled to doc and declared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉 for the said I. S. in the said suit and the said Adams recovered in the said suit and after sued forth a Scire facias against the said Dixon being bail whereupon the said Adams in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation in which the said I. S. was bound unto him and upon which the first action was brought and the judgement thereupon had and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant Sed â—radictus defend promissionem assumptionem suas minime curans hath not assigned over to the Plantiff the said Obligation and Judgement per quod act accrevit and Judgement was given for the Plaintiff for the consideration was holden good 86. ROsse brought an Ejectione firme against Thomas Ardwick Limitation and the case was such that one Norwood was seised in see and leased to one Nicholas Ardwick and his Assignes for his own life and for the lives of Thomas Andrew and John Ardwick and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will and
the Defendant divers Suits of Apparell that is to say a Sattin Dublet and Hose with silver and gold lace and one velvet Jerkin and Hose and one fustian Dublet and cloth Hose to-his own proper use the Defendant promised to pay to the Plaintif forty pound when he should be required The Defendant pleaded that tempâ—re assumptionis he was within age and the Plaintif replyed that at the same time the sayd Defendant was servant and attending upon the Earl of Essex in his chamber and that this Apparel was delivered unto him for his necessary apparel during the said time of his said service and upon that the Defendant demurred and the Court caused the Declaration to be read openly in Court to see of what degree the Defendant was of his Addition and upon reading of the Record it appeared by the Declaration that the Defendant was there written Gentleman for which the Court agreed clearly that Sattin with gold and silver lace or Jerkin or Hose of Velvet are not necessary Apparel for a Gentleman Severa prises good in a declar and so an Infant is not bound to pay for such Apparell and therefore the Action for so much will not lye but for the residue to wit for the Dublet of fustian and Hose of cloth it seemeth the Action is well maintainable for the prices of every of them is set down severally in the Declaration Satisf of parcel Popham The Plaintif in his Declaration hath confessed he is satisfied of part of his contract but non constat for what part of the clothes the mony received was payd that is whether for the necessary or unnecessary Gawdy Truly it shall be intended for the necessary Apparel 100. GOodale brought an Information against one Butler Non-residence upon the Statute of 21 Hen. 8. cap. 13. for not being resident upon his Benefice whereof he was Parson by the space of six moneths for which the Defendant ought to forfeit for every moneths absence 10. l. And it was found by speciall Verdict that the Defendant had demissed his Parsonage-house to another excepting one chamber for himself And within the same Parish had hired another house and there kept Hospitality and was allwaies dwelling there And whether this be a Non-residence within the Statute for that he doth not dwel within the Parsonage-house but inhabiteth within the Parish in another house is the question Clinch Fenner were of opinion that if he be resident within his Parish albeit he doth not dwel within the Parsonage-house that yet this is a sufficient residence within the Statute for the Glebe land and other profits within the Parish makes the Benefice Beneficium for a Benefice is derived of this word Beneficium the which is a profit or a commodity and if he be resident in any part of his Parish he may well enough execute all the Functions Spirituall and Temporall and keep Hospitality to relieve his Parishioners and these were the chiefest points that the makers of the Statute intended to provide for Proviso And Fenner sayd the Proviso helpeth not and that the words of the Statute are That every Spirituall person ought to be resident at in or upon his Benefice in the disjunctive and if that be performed in any of those points then that sufficeth Cont. per Popham 68. But if the words were that he shall be resident upon his Benefice there peradventure he ought to dwell in the Parsonage-house onely Popham and Gawdy to the contrary For Residence is a commorancy and where he hath his Tithes that is a profit but yet it is no Benefice intended by the Statute for when the Statute saith that he shall be resident upon his Benefice this shall be expounded upon the Parsonage-house for the Statute may not be so unreasonably construed that only will compel the Parson to be resident in any other place of the Parish than where he hath his house And for that Colthurst and Beâ—ishins case in the Comment 20. Le Prior of Bath was seised of a Grange or Farm called Barton near Bath in Fee and he and the Covent leased that by Deed indented to H. B. and to his Wife for life the remainder to W. B. their Son for his life si ipse inhabitare vellet residens esse omnino de super praedict Grangium And if it shall be intended in this case that the Lessee may be resident upon any other place than in the Grange-house then by possibility the intent of the Lessor might be defeated utterly which was that the Grange-house should be repaired Allso a reason that moved the makers of the Statute to be of opinion to make the Parsons resident was for that by this means the Parsonage-house should be well kept in reparations Reparations and should not be left to the successor in Delapidations And the Proviso in the end of the Statute will not help the matter Proviso for the Proviso is that it shall be lawfull for any Spirituall person to take to farm any Mansion-house having but an Orchard or Garden in any City Burrough or Town so that by that they have no liberty of Non-residence by colour of the sayd Proviso Absence compulsary And Popham sayd if a man be Non-resident by compulsion that is not within the Law And if a Parson purchase a parcell of Land within his Parish and dwell upon that he purchased and lease out his Parsonage-house this is a means to make the Parsonage-house to come to destruction and ruin And the meaning of the Law-makers was Three things provided for by the Statute to provide for three things For Hospitality for Divine service and to prevent Delapidations and so in this case the Defendant is within the penalty of the Statute And to that my brother Fenner hath sayd That these words in at or upon will make a difference truly that is not so for those words are all of one substance in this case Et adjâ—rnatur 101. NOta that in a Scire fac between Fâ—e and Balton of the County of Norfolk it was holden by Popham and Gawdy Fieri facias executed but not returned and not denyed by any if a Fieri fac goe forth to a Sherif and he levy the Debt of the goods of the Defendant but doth not retorn his Writ if the Plaintif after sue another Scire fac against the Defendant upon the Judgement he may plead this matter and the Plaintif shall be put to his remedy against the Sherif for the sale of the Defendants goods by the Sherif is good and not to be defeated and so is a good Plea in bar of the other Execution otherwise the Defendant shall be put to a great mischief vide 20 Hen. 6. 24. 29. 19 Edw. 3. Scire facias 44 E. 3. 18. Quaere if he shall not have an audita querela if the Plaintif take out a new Scire facias within the year 102. NOta per Mr.
as primo Mar. 100 is Then if the Sherif inquire of one term and sell another as our case is the term sold was never found by our Inquisition and for that the sale not good quod Fenner concessit yet the Lord Popham sayd that if it had been found by the Inquistion generally that he is possessed of such land for term of divers years adhuc ventur which they have prised to such a sum this had been good insomuch as they have not any means to come to the knowledge of the certainty of the term But when by Inquiry a Term in particular is found Que estate refers as well to the estate as to the person they may not vary from that and sell another and he sayd that these words Cujus statum Henrici Fry shall be referred as well to the state precedent found as to the person of Fry And so is the common intendment in pleading of a que estate And he said to Mr. Tanfield that if he had taken any note of their first opinions that he should raze that out of his Book again and after the parties agreed in Court that Hauger should give to Fry 200 Marks more for his term and then Fry should make assurance to him of the term for confirmation of the sale 106. NOta per Cook Attorney Generall Difference between Feoffmenâ— to an use and covenant to raise an use If a man Covenant in consideration of naturall love to his son to stand seised of certain Land to the use of himself for life the Remainder to the same son in Fee with a Proviso that it shall be lawfull for himself to make Leases for 21 years or three lives Now he may not make such Leases notwithstanding this Proviso being by way of Covenant to raise the use And so it hath been resolved Contra Peradventure if it were by way of Feoffment to uses After Mr. Walter said that now lately in one Sharingtons case it was adjudged in this Court upon a Writ of Error That if a man Covenant with his Eldest son in consideration of naturall love A proviso with speciall limitaâ—n good to stand seised to the use of himself for life the remainder to his Eldest Son in tail with Proviso that he himself might make Leases to his second son or to any other of his kindred for 21 years or 3 lives and he made Leases to him accordingly this was holden good for they to whom the Leases are made are within the consideration to wit of the blood and for that the use may well rise to maintain those Leases But if the Proviso had been to make Leases to any man howbeit that after he made Leases by force of that to his second son These Leases are void for they are not within the consideration of the Covenant by Intendment of Law at the first for the Law at the beginning adjudged the Proviso meerly void quod nota 107. RObinson brought Debt upon an Obligation against May Counterbond the Condition was that the Defendant should discharge or save harmless the Plaintif of an Obligation for which the Plaintif as surety with the now Defendant was bound to I. S. The Defendant by way of bar pleaded Vsury that the Obligation made to I. S. by him and the Plaintif was upon a corrupt and usurious bargain and pleaded the Statute of Usury and concluded sic non daâ—â—ificatus It was moved at the bar that this was no plea for the Condition is that the Defendant shall discharge or save harmless c. And the Plaintif was impleaded by I. S. for that debt and hath paid the condemnation Tanfield Contra For if this shall not be allowed for a good plea the Statute of usury will be utterly defeated For by a compact between the surety and the Usurer the surety shall pay the usurer and the surety by that counterbond shall have double recompence against the Principall which will be mischievous But the whole Court held the plea not good sed quare 108. HObbs sued an Audita querela in the Kings Bench against Tedcastle Audita querela for a speciall bail and upon a demurer the case was recited by Moor of the Temple to be this Tedcastle sued a bill of debt in this Court against one Hallaway in Custodia Marescali which found bail the said Hobbs and an another which entred bail according to the common course of bail And after Hallaway was condemned in the said Action and then the said Hallaway died without paying the condemnation or rendring his body to Prison for which a scire facias was sued against the bail and upon two nihils retorned Execution was awarded against them Whereupon they sued this Audita querela supposing that the death of Hallaway hath discharged the bail Moor argued for the Plaintif that the bail ought to be discharged upon the matter for Hallaway had Election to discharge the bail by paying the condemnation or rendring of his body to Prison Now by the Act of God it becomes impossible to perform the one to wit to yield his body to prison And therefore the Law will discharge him of the other and by consequence his bail And that he proved by Arundells case 9 Eliz. 262. 6. 7 Eliz. 231. Sir Edw. Walgraves case Popham Quemodo constat here but that there was convenient time after the Judgement to perform the one or the other Kemp Secondary The course is allwaies here after Judgement to award a Capias against the Defendant and if upon that he do not render himself or pay the condemnation then to sue Execution against the bail and not before but here there was never any Capias awarded against Hallaway the Defendant in his life time Popham Gawdy Fenner This seemeth very reasonable not to sue Execution against the bail untill a default be retorned against the Principall and the recognisance of the bail which is that the Principall shall yield himself c. is intended to be upon Process awarded against him But no Process was awarded against him in his life and now it is impossible that he should yield himself to Prison being dead Iudgement and therefore the bail is discharged And so they awarded Judgement for the Plaintif in the Audita querela 109. MAtures brought an Action of Covenant against Westwood And the case was such Covenant for an assignee of a reversion for years Adams Lessee for 20 years made a Lease for 10 years of the same Land to Bowes by indenture whereby Bowes did Covenant at the end of his Term of ten years to avoid and to leave peaceable possession to Adams his Executors or Assignes Adams granted over his Reversion to Matures the now Plaintif The question is if the Plaintif by the Statute of 32 Hen. 8. cap 34. as Assignee may maintain an Action of Covenant for his Covenant broken or not Nota that this case was moved divers times And first it was moved if
say they shall take that as Legatees and not as Executors in respect of the 100. l. which they are to have to then proper use 126. NOta Second deliverance if a man have Judgement to have Retorn upon a Nonfuit in a Replevin and the Plaintif bring a second Deliverance this is a Supersede as of the Retorn yet the Defendant in the first Replevin shall have a Writ to enquire of the damages which shall not beestaid by the second Deliverance but if he have Iudgement in the second Deliverance then shall be retorn Irreplevisable and shall recover damages 127. STitch against Wisdom Thoughts are not to be uttered an Action upon the case was brought for words viz he did better than many an honest man did For there is many a truer and honester man hang'd and there was a Robery committed whereof I think him to be one and I verily think him to be an Horse-stealer and upon non Cul. pleaded It was found for the Plaintif and pleaded in arrest of Judgement for that it is not expresly affirmed that the Plaintif was one of the Robbers neither that he was a Horse-stealer precisely but that he thought him to be one and thought is free for every man and no slander but this notwithstanding Judgement was given for the Plaintif for thoughts tending to slander may not be uttered 128. NOta per Gawdy Felony That a man may be accessary to the stealing of his own goods As if he confederate with an other to steal goods from his Bayly to the intent to charge his Baily this is Felony 129. THynn brought Debt against Cholmley for 300. l. Arrerages of a nomine poenae Nomine poene against an Assignee And declared of a Lease for years made by him to one Ager rendring Rent and if default of payment be made of the said Rent at any day Trin. 36. E. rot 842. in which it ought to be paid Quod tunc toties the said Ager his Executors and Assignes shall pay iij. s iiij d. pro quolibet die donec praedictus reddit so behind shall be satisfied And shewed how the Rent was behind and not paid by the space of two years but did not shew that he demanded the Rent Jackson The sum demanded is by computation more than should be true But it seems that the Plaintif intends to have every iij. s iiij d. doubled for every day that the Rent is behind And if that be his intent then he demands too little Demand for in 2 years that will be infinite Gawdy He shall have but iij. s iiij d. for every day Fenner I think that he ought to make a demand of the Rent Or otherwise he shall not have the nomine poene Gawdy Nay truly no more than in Debt upon an Obligation and he cited 21 Hen. 6 21. Edw. 4. 22. Edw. 4. Fenner Not like for in debt upon an Obligation it is a duty but otherwise of Rent and it was agreed that it lies against the Assigne in this case 130. HArbin against Barton A Jointenants Lease to begin after his death The case was that two Jointenants for life the one made a Lease for 80 years to begin after his death and after died And whether the Lease is good against the Survivor or not is the question Gawdy said that the Lease was good and cited 2 Eliz. 187. Popham Fenner è contra After this Lease was adjudged a good Lease by all the Judges of England for every Jointenant hath interest during his life and the life of his companion Ewdalls case For it was Ewdalls and Paramores case 31. Eliz. Where a Lease was made to the Father during his life and the life of two of his Sons The Father assigned over and adjudged to continue after the death of the Father The like between Gutter Locrofts and between Orwin and others 131. Baddock against Ja. S. and declared in an Action upon the case for words Insufficient declar for words quod in praesentia diversorum leigiorum dixit de praefat quer haec verba Anglicana viz. Thy Father praedictum quer innuendo is a thief for he stole my sheep The Defendant justified the words and at the Assisâ—s it was found for the Plaintif and exception was taken in arrest of Judgement For that it is not shewed in the Declaration Substance Form in a Declaration that the words were spoken to the son of the Plaintif Gawdy I think it is good for that the Defendant hath Justified the words spoken of the Plaintif tota Cur. è contra But if the Declaration be uncertain in form yet the bar may make it good But if the Declaration want substance as in this case it doth there the bar cannot make it good 132. RObert Sharples and Grace his Wife Debt brought Debt upon an Obligation against N. Hankinson the Obligation boar date xiij die Octobris An. xxxj Eliz. The Condition was if N. H. did pay viij l. of lawfull money c. in the year of our Lord God 1599. At or upon the 13th day of October which shall next ensue the date herof The Defendant pleaded that the day of payment was not come Gawdy I think the day of payment is the 13th day of October next after the date of the Obligation And that these words in the year of our Lord God 1599. are meerly â—oid Fenner Justice I think that the payment shall be in the year of our Lord 1599. For when a certainty appears allbeit afterwards an incertainty come yet that shall not hurt the certainty but the first certainty shall stand and the incertainty shall be void And in this case the An. Do. 1599. is sufficicient certainty and therfore the subsequent words are void Popham I think that the payment shall be the 13 day of October prox post An. Dom. 1599. For the words are that the Obliger shall pay viij l. of lawfull money of England in the year of our Lord God 1599. And if the payment shall be before this time none may know but by the spirit of Prophecie what money shall be current in England that year before the year come and it is impossible to pay that before and if I am bound to enfeoff before Easter Impossible condition void him that comes first to Pauls upon Michaelmas day next this is void because it is impossible 133. BOyer brings a Writ of Error against Jenkings Teste of the Venire mistaken and the Error assigned was for that the suit was commenced 35 Eliz. And the Venire fac to try this issue bore Teste 33 Eliz. Gawdie a Venire fac which bears Teste 33 Eliz. cannot possible be to try an issue in 35 Eliz. which is two years after and therefore here is no venire fac and so holpen by the Statute of 18 Eliz. after Verdict Tunfield This very case was Yorks case adjudged in this Court that it was not holpen by