one of them dyed before partition yet their heirs should hold severally according to the intent of the Will for otherwise the Surviver should hold place which against the will of the Devisor Northens Case A Man seised of a Mannor having all the Goods of Felons de se within the same Mannor and makes a Lease for years of parcell of the same Mannor to a man and afterwards makes another Lease of the same Lands to commence after the determination surrender or forfeiture of the first Lease The first Lessée was a Felo de se the Lord Lessor of the Mannor enters into the lands Leased as forfeit and the second Lessée ousts him and it séemed to Crook that the Entry was lawfull enough Harvey said That the Lessor to whom the Frank-Tenement belonged entring into the land the Frank-Tenement drowned the lesser Estate and the Lease for years is extinct in the Frank-Tenement And it was said That therefore the first Lease extinguisht But if before that the Lord had aliened the Mannor saving to him the liberty and after had entred for the Forfeiture the second Lessée could not enter for it is not any determination of the first Lease Crook said That if the Lessor infeoffed the first Lessée of the Mannor that is a determination of the first Lease and the second Lessée may enter The Bishop of Winchester against Markham THomas Bishop of Winchester brought an Action upon the Statute of West 1 cap. 4. de scandalis magnatum against Markham for that he preferred a slanderous Bill against him before the President of the Councel surmising that he was a covetous and malicious Bishop And the Opinion of the Court was That the words were sufficient to maintain the Action A man seised of a Mannor held in Chivalry devises two parts of it to two men in severalty and all the Remnant he devises to his heirs in Tayle the remainder over in Fée Hutton said It seems to me that the devise is voyd for the third part to the heir for he might devise the two parts by his Testament and he had done all that he could doe by the Statute and then the devise of the third part is out of the warranty of the Statute for it is not reason that by the limitation of the third part the which he could not doe that the devise of the residue which was one time good shall be defeated which Harvey granted but Crook to the contrary for although the two parts were devised by the premisses of the Testament and the third part in the end of it yet in operation of Law the one part is not before the other but the will is intire and took effect in all its parts at one and the same time by the death of the Devisor By which it seemed for the benefit of him in the remainder that he shall take the third part devised to him for if a man seised of three Acres of land held in Chivalry and devises them severally to three severall persons in Fee the heir shall have the third part of every of the three Acres and not the Acre last devised which Hutton granted So also for the benefit of a third person he ought to be judged in the third part as a Purchaser and not of an Estate by descent and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder there he might choose to be in of the Estate limited by the Devise or as heir Hutton I doubt of that for the Book is not agreed 3 H. 6. Wilkinsons Case THe Baron seised of lands makes a Feoffment upon condition to enfeoff him and his wife for life the remainder over to a stranger in Fee Atthow demanded if the Feoffee shall be bound to make the Feoffment before request made by the Baron Hutton and Crook thought that a request ought to be made by the husband And because the particular Estate which is the foundation of the remainder limited to the stranger ought to be made to the husband who is party to the condition and it is his will to take the Estate for life or refuse it and the Feme is at his will But if the Baron dyes then it behooves him to make the Feoffment to the wife without request because she is a stranger to the condition by Act in Law And so where she dyes also before the Feoffment the Estate ought to be made to him to whom the remainder is limited without any request Yelverton But if the condition was to re-enfeoffe the Feoffor and a stranger there it behoves the Feoffee to tender the Feoffment to the stranger for he had not notice of the condition and he ought to be party to all the Estate And by the Livery made to him the Feoffor shall take well enough Waterton against Loadman VVaterton makes a Feoffee to the use of Loadman in Fee to the use of another in Tayle the remainder to his right heirs in Fee Cestui que use in Tayle dyes the first Feoffees enter for to recontinue the use Crook said That when Tenant in Tayle in use makes a Feoffment nothing passes but for his own life For it had been agreed where cestui que use pur vie makes a Feoffment in Fee for it was not a Forfeiture of his Estate because nothing passed but for his life then when the Feoffee dyes during the life of cestui que use in Tayle that cannot be any descent of the Fee but as an Estate for life the which determines by the death of cestui que use in Tayle And all the Iustices were of the same Opinion for the descent was when he had not any Title of entry for by the Feoffment he had a Title during the life of cestui que use in Tayle Wherefore during his life they could not enter nor make continuall claim But if the descent had been after the death of cestui que use in Tayl then otherwise it shall be for they had a Title to enter before the descent and by their laches they are told of that Hutton seemed That the Feoffees cannot enter in that case for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl for by the Feoffment the Estate of the Fee simple which was to their right heirs passes clearly and it is lawfully in the Feoffee Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate where they shall be seised of a Fee simple also and so there shall be two Estate of Fee simple of the same land which is inconvenient But the Iustices said That cestui que use in Tayl had no other remedy unless by the Entry of the Feoffees Harris against Marre A Man seised of certain lands in Fee makes a Feoffment in Fee to his use and afterwards makes his will by which he devises That
the evidence of the party or by others by his procurement in the same manner As it was in an appeal upon a fresh sute at the Common-law It was said by all That although the custome was of Burgage lands in soccage Yet if the Lands came by gift or otherwise to tenure in Chief or service of Chivalry That that now changes not the Custome which alwaies goes with the Land and not with the tenure As the Lands in Gavelkind by the Custome are soccage tenure Yet if they are changed to service of Chivalry the Custome is not altered But that all the heirs shall inherit It was agreed by all That if sir persons compass and imagine to levy war against the King And there is an agreement betwéen them that two shall do such an act in such a Country and the other two another act in such a County And so divers acts by divers in several Counties for to assemble the people against the King And after two do the Act according to their purpose and assemble the people and the other do nothing Yet the Act done by two upon the agreement is Treason in all But otherwise it is if there had been only a compassing c. and not any agreement and afterwards one of them does the act unknowing to the others there it is not Treason but in those that doe the fact and not in the others As it happened in the Case betwéen the King and an other Wilkins against Thomas IT was adjudged upon good advise That if an Infant he impleaded by any precipe of his Lands And loses by defending Now he shall have a Writ of Error And because that he was within age at the time of the Iudgement it shall be reversed And the Infant shall be restored to all that he lost As it happened in the Case of John Ware against Anderson and others in the County of York lost while they were infra aetatem Where it appeared that they appeared by their Guardian admitted to them by the Court to the Grand cape and that they were within age But there was an inspection by Nurses and Friends and they were found not to be within age John Symons against Thomas Symons NOte it was said by all the Iustices That if the Disseisee enter upon the Feoffee or Lessee of the Disseisor That he shall not have an Action of the Trespass for the same Trespass against the Feoffee or Lessee Because that they come in by a Title And at Common law before the Statute of Gloc. No dammages for mean occupation against the Feoffee or Lessee Bromleys Case IF a man steal goods and be arraigned upon an Indictment of felony and the goods are valued to 6 s. and the Iury upon their verdict say That he is guilty of the said goods but that the value was but 6 d. That is a good verdict And the Iustices shall vanish him as for patty Larcenny In the same manner it is If a man be arraigned for willfull murther and the Iury find it but Manslaughter That is a good verdict by all the Iustices Pease against Thompson A Man seised of Lands in see makes a feoffment from that day to divers to the use of his Wife for her life and after to the use of the heirs of the body of the Feoffor The Feme dies and the Feoffor makes a Lease for years and dies Now her Issue shall not avoid that Lease because a man cannot have Heirs in his life So that at the time of the death of the Feme there was none to take by the remainder And for that the Feoffor had the fee the Lease is good and shall bind the Heir As if a Lease be made for life the Remainder to the right Heirs of I. S. and I. S. dies in the life of the Lessee then the remainder is good otherwise not but it shall revert But otherwise it shall be peradventure in such a Case in a demise Hillary 3 Car. Com. Banc. Skore against Randall SKore brought Debt against Randall and recovered and had execution by Elegit and it was found by the Inquisition that the Defendant was seised of the moyety of a Messuage and Lands for life and other Lands in right of his Wife And the Sheriff returns that virtute brevis et deliberat feci meditatem omnium praemissorum cum pertinentiis c. Nec non duo pomaria nec non unum clausum vocat c. And that he had delivered the moyety of the Lands in right of his Wife and his Chattells and recites them and that Elegit was filed And the Question was whether he might have a new Elegit Because that the Sheriff ought to have delivered to him the moyety of the moyetic of the Lands held in Ioint-tenancy So that the Tenent by Elegit might be Tenant in Common for a fourth part with the Ioynt tenants as it was agreed But also by that Delivery he had but in effect the eighth part For the other Ioynt-tenants may occupy the Land delivered with him in Common Richardson said For part of the Lands and goods in right of his Wife the return is good And being filed he cannot have a new Election For if part shall be evicted you cannot have a new Extent upon the Estate But if it had been in the Genitive Case Duorum pomorariorum c. it had been good But it was granted by the Court That the Plaintiff makes a surmise that the Sheriff male se gessit in the Execution of that Elegit and then he may have a new Elegit at his peril c. Edward Thomas against John Morgan et al. EDward Thomas brought an Ejectione firmae against Morgan Kemmis and others and upon Not guilty pleaded a speciall Verdict was given to this effect for Morgan and Kemmis for the other some were dead before issue and the other not guilty and they found a Iudgement dated 12 Sept. 23 Eliz. and deliver'd the 15 Iunii next ensuing Which was between the then Bishop of St. Davids of the one part and Richard Thomas of the other part And it was in consideration of a Marriage to be had between him and the Daughter of the Bishop That before the end of Hillary Term next ensuing he would levy a Fine of all those Lands and all the other lands in Mountmouth and that should be to Thomas Morgan and Roger Sise of Lincoln-Inne And that he suffered a recovery with double voucher to the uses in the Indenture But the words are that the Conusees should stand seised to the use And by Atthowe the Recovery is idle for the uses shall be executed and then there shall be no Tenant to the Precipe viz. That of all the Lands mentioned in the Indenture Morgain and Sise shall stand seised to the only uses hereafter c. that is to say They shall be seised of in part of the Lands and Tenements that is so much thereof as shall amount to the clear value of
30 l. by the year to the use of Richard and Anne Daughter of the Bishop after mariage for their lives Which Lands and Tenements to the value of 30 l. per annum shall be appointed and limitted out by meets and bounds and put in writing before Hillary Term next and delivered to the use of Edward Thomas and Walter Thomas for their lives which were Vncles of Richard if Richard and Anne had Issue male When the Survivor of them dyes without Issue male or if all the Issue male dye without Issue male Then the use to Edward and Thomas to cease Also there be two Conditions the one Precedent the other Subsequent And the precedent Condition makes that a contingent Remainder But Atthow would have that settled without Issue born to Richard c. But if all their Issues dye before the Survivor It can never be setled For the words scil at the death of the Survivor c And then before the contingency happen it cannot be setled If the contingency had been void at the time of the limitations I agree it should be void Now if the particular Estate be contingent all that depends upon it is contingent also And Edward and Walter took nothing but after the death of the Survivor of Richard and Anne without Issue And then it is as in the Case of Cook 10. 85. A Feoffment to the use of A. for life and after the death of B. to the use of C. and his Heirs That Remainder is contingent Because that B. ought to dye in the life of A. or the Remainder shall never vest So also to Richard and Anne for their lives and after their deaths without Issue to Edward and Walter And if they ever take an Estate it ought to be after their deaths c. Secondly For the uses of the Residue To the use of Richard for life and if he dye living A. without Issue male ingendred of the body of A. Then to A. for life that is contingent then of the residue after the death of Richard to the use of Edward Walter if Richard had not issue of Anne at the time of his death Whether it vests after his death see before c. That is contingent also And it is contingent whether he will dye without Issue male As if a Feoffement be made to the use of one for life and if he had no Heir of his body to another in fee that is contingent during the life And he had not but an Estate for life by that limitation and then that is destroyed by the Fine also And now if nothing was in Edward nothing can be setled in his Son And then those contigent Remainders being destroyed there is a good estate in the Purchasors and this special verdict was not found for any doubt but for the intricacy of the Indenture And therefore he prayed Iudgement for the Defendant Harvey against Fitton HArvy the Administrator of Edward Fitton brought an Action of debt upon an Obligation of 200 l. against Edward Fitton and declares of Letters of Administration committed to him by the Archbishop of Canterby c. The Defendant says That the Intestate became possessed of Goods in Chester within the County of York And before the purchase of the Writ and after the death of the Intestate I. S. Chancelor of Chester committed Administration to Richard Fitton of all the goods c. And that he released to him and upon that de murs Bramston He doth not shew what person that Chancellor was or how he had that Authority to grant Administration quod fuit concessum per Cur. That for that it was naught And it was agreed that the Prerogative of Canterbury does not extend to York Dame Buttons Case DAme Button was Administratrix of Goods and Chattels of her Husband And the Sisters of the Husband would compell her in the Prerogative Court to make Distribution And after sentence given prays a Prohibition and divers causes were alleged But Richardson rejected all unlesse it was upon the Statute 21 H. 8. And upon that Statute he said that upon conference with the Iudges He conceived that it was in the discretion of the Court to grant a Prohibition in such Cases or not c. Hutton said That a Prohibition in such cases ought to be granted For he said if Sisters may come in for portions by Distributions where Cousins cannot And Sisters have not any colour to have Distribution For although that the Statute of Magna Charta cap. 18. extend a pueris Yet not All Freres or Sisters And the Ordinary although heretofore would compell an Executor to make Distribution yet now they never meddle with an Executor And hath not an Administrator the same power as an Executor And in Isabel Towers Case a Prohibition was granted For when they have executed their Authority one time lawfully they cannot make a Distribution Harvy to the same intent The Ordinary had not such a power upon the Goods of any especially where Administration is granted For then they have put the Property in the Administrator to pay debts c. And there may be a sleeping debt which by that means shall never be satisfied For if the Ordinary might grant Administration and afterwards make Distribution His Authority is not warranted and he does and undoes and so mocks the Statute In Flames Case it was said that if they are not permitted to make Distribution They will compell it before Administration shall be granted But they have not any such power for he ought to commit Administration if it be demanded And it was so in one Clarks case In which the whole Court was of opinion But Yelverton would not shew his op'nion in the power of the Ordinary But he consented to a Prohibition without other cause Iohn Owens Case Mich. 3. Car. Com. Banc. IOhn Owen lived apart from his wife And upon petition of the Wife to the Iustices of Assise for maintenance they refer'd it to the Bishop of Bangor who ordered that he should pay to his Wife 10 l. per annum which was afterwards confirmed by decree in the Councel of Marches of Wales And because that Iohn Owen disobeyed that Decree and did not pay the 10 l. per annum the Councel sent a Messenger to apprehend his body and caused his Goods and the profits of his Lands to be sequestred And Henden prayed a Prohibition for that that Alimony was not within their instructions Richardson demanded of him if they could grant Prohibitions If they meddle with a thing which belongs to Ecclesiastical power where they themselves have power Harvey was of the same opinion For this Court should preserve other Courts in order Yelverton said For the sequestration of the Lands they could not do that Richardson They have not any power to sell the goods The Ecclesiasticall Court is the proper Court for Alimony And if the person will not obey they cannot but excommunicate him And by Yelverton when that comes to them
arrear that the Remainder shall be to a Stranger that Remainder is not good Hutton said that in my opinion my Brother Atthow spoke well and so it was affirmed Bateman against Ford. AN action of the Case was brought against Ford who had called the Plaintiff Thief and that he had stollen from him a yard of Velvet and a yard of Damask The Defendant said that he said that the Plaintiff had taken and bribed from him as much mony as he had for a yard of Velvet and Damask and justifies Hitcham said that the Iustification is not good For the words that he justifies do not amount to so much as to affirm a Felony in the Plaintiff where the Plaintiff counts that the Defendant slandered him of a Felony Hutton said What difference is there when you say that I have bribed your Horse and when you say that I have robbed you of your Horse Henden one may take Goods and yet it is not felony Termino Pasc Anno 4. Car. Regis Com. Banc. Norris against Isham IN an Eject firm by Norris against Isham These things happened in Evidence to the Iury. First it was cited by Richardson and Hutton to be Hurtltons Case That an Eject firm cannot be of a Mannor Because that there cannot be an Ejectment of the Services But if they do express further a quantity of acres it is sufficient It was said by Crook Iustice and not denyed That if a Lease is made of 5 acres to try a Title in an â—…eject firm And of the 3 acres he will make a lease But in the other a he will not If the livery be in the 3 acres the other 2 does not pass Part of the Evidence was That the Countess of Salisbury being seised of the Lands in Question makes a Lease of them by words of Demise Bargain and Sale to Iudge Crook for a Month to begin the 29 September habendum a datu and it was deliveted the 3 of September And the same day he bargains and sells the Reversion Davenport Because that no Entry appears by the Lessees by vertue of the Demise he submitted to the Court If there was any such Reversion in the Grantor he bring in possession And this difference was a greed That if one demises Lands for years and Grants the Reversion before Entry of the Lessée The Grant is void As it is in Saffins Case Cook 5. 12. 46. But if a man bargain and sell for years and grants the Reversion before Entry of the Lessee it is good For the Statute transfers the Possession to the use As if a man bargain and sells in fee or for life and the Deed is inrolled The Bargainee is in possession of the Frank-tenement And so it is of a Lease for years which is a Chattell And by Crook In the Court of Wards that very point was resolved Davenport Also there are words of Demise and Bargain and Sale before which the Lessee had his Election to take by which he would As Sir Rowland Heyards Case is But by Hutton and it was not denyed He should be in by the Bargain and Sale before Election For that is more for his advantage Further the Evidence was That George Earl of Salisbury made a Lease of those Lands which were a Mannor And makes a Conveyance from himself for life with divers Remainders and then to the use of the Daughter or Daughters of the said George And the heirs males of thrir bodies the remainder to the heirs of the body of the said George c. and had 3 Daughters to whom the Remainder The first dyed without Issue the 2 d. dyed having Issue male the 3 d. bargains sells all her half part and pur part to Edw. Earl of Salisbury Who now being seised of a third part of the Estate of Inheritance and of the other two parts for his life and the lives of the 3 Daughters suffers a common recovery by the name of the moyety of the Mannor And the doubt was what passed Richardson By that there is not passed but the moyety of the third part Hutton Crook and Yeiverton were on the contrary opinion and said that by that All the third part passed also Yelverton If a man be seised of the mannor of Dale and buys half for life of another in fee and makes a Feoffment of the half of the Mannor The moyety which he had in Fee shall pass And there shall be a forfeiture for no part Which was agreed by the Court. If a man be seised of the third part and grants the moyety perhaps the moyety of the third part only passes But he is seised of all Richardson There are several Estates and moyety goes to that Estate which he had in the Mannor For when I grant more than I can grant that which passes passes Crook I had the third part of a Mannor and grant the moyety of the Mannor all my third part passes But in the Bargain and Sale the words were part et pur part Which as it was passed all And also the Covenant to the Lessor The Recovery was of the half part pur part And by Hutton Crook Yelverton All was intended to be recovered And then the word Moyety carries that tresbien Richardson That Indentures of Covenant much mends the Case Another Question upon the Evidence was Whether when a Bargain and sale is made of Lands And the Bargainee before inrollment makes a Lease for years and afterwards it is enrolled If the Lease now be good Richardson and Yelverton It shall be that although it be after acknowledgement and before inrollment yet it is naught And by Yelverton and Crook it was so adjudged in Bellingham and Hortons Case That if one sells in fee and before inrollment the Bargainee bargains and sells to another And afterwards comes an Inrollment That second Bargain and sale is void And an other Question was Pasc 4. Car. Com. Banc. If one makes a Lease for years by Indenture of Lands which he had not If the Iury be estopped to find that no Lease And by Richardson If the finding that no Lease be subject to an attaint But they should find the special matter And then the Iudges would judge that a good Lease And Sergeant Barkley cited Rawlins's Case Coo. 4. 43. to that purpose Crook and Hutton against him And Crook said That it was adjudged in London in Samms case That that is not an Estoppel to the Iury. Which was affirmed by Hutton And that they may find the special matter And then the Iudges ought to find that it is not a good Lease And Hutton said That there is a difference between a special Verdict and pleading in that case For in speciall pleading and Verdict is confost by all parties That he had not any thing in the Lease And then the Iudges gave Iudgment accordingly The King against Clough IN the case of a Quare impedit by the King against Clough before Richardson shewed how the Quare
himself from all rights as concerning himself yet the Donor shall by force of this Statute which at the Common law he could not And if the Donor will release all his right in the Land to the Donee after a discontinuance by Feoffment his release though it will extinguish no right to the very Land yet it will extinguish Rents which proves that the Donee by his Feoffment cannot dismiss himself of all his right but that by the Statute of West his alienation is disabled as to that but that the Donor may avow for the Rent But wheresoever Tenant in tayl suffers a Recovery or levies a Fine the Rents together with the entayl ceases And the answer as to that is imperfect to resemble it to the Case of tenant in see simple doth alien and yet the Lord may avow upon him for the Cases have no resemblance for as Littleton well distinguisheth when Tenant in fee hath departed with his whole Estate he is no more Tenant to the Lord to avow upon though the Lord if he Will may avow upon him for the arrerages and if the Lord after future alienation release to him all his rights in the Land the Release is void to release the Rents and Services in all which it differs materially from the other Case and it is an equall proportion of the Law That when the Lord aliens his signory the Tenant is to he acquainted that all Arrearages may be paid that he may have no after-reckonings for after notice and the Arrerages paid the avowrie vanisheth Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him thereby allowing a right to remain in him against his Feoffment The Case is more difficult because during the Feoffor there can be no motion of that right neither by the Feoffor who hath hard himself nor his Issue because his Right is not yet come yet let me put this Case upon the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice If Tenant in tayl Iointress make a Feoffment the person to whom the land doth belong after her death may enter and hold it according to his right Now till such Entry there is a discontinuance but when the Issue enters he is an Heir intayl et quasi eins per discent But now generally when Tenant in tayl hath made a Feoffment and dies the Heir shall bring a Formedon in the Discender and shall count that descendere debet from that Ancestor that made the discontinuance performam doni and therefore the Writ saith discendit jus it is as much devenit jus It is true that regularly a Feoffment bars all former rights and future rights yet respect to be had to Estrangers Albanies Case 2 Rep. Archers Case 1 Rep. 66. 9 H. 7. And therefore in Archers Case Lands were demised to one fore life remainder to his first Heir male Tenant for life made a Feoffment in fee and died his next Heir was barred of his right for ever by the Feoffment A man seised of Land by right of his Wife makes a feoffment in fee and then the Estate is made back to the Wife she is thereby remitted and her Husband shall never be Tenant by the Courtesie and therefore well resolved if Tenant in tayl discontinue and levy fine with Proclamations is no bar to the Estate tayl Now this Case is irregular because it standeth by Act of Parliament which is able to make the same Act good to one purpose or person and void or voidable to another as the Statute of Ecclesiastical persons and binds the party but is void or voidable against the Successors and shall nevertheless when they enter be in by succession And that there is still a right remaining in the Tenant in tayl appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly and therefore note Cuppledikes Case If Tenant in tayl with divers remainders over make a Feoffment and Feoffee vouch not the Feoffee Tenant in tayl in possession but the first in Remainder by the Statute the Feoffees are not bound but are remitted and Maunsells Case there is cited where one recovery is a bar to 3 several Intayls with double voucher And this is called jus extinguendi which he could not extinguish and discharge if not in him and in his power and therefore there is no cause to frame Abeyances needless and in vain but the Law allows not nor admits not but in Cases of necessity as in the vacancy of Bishops Parsons and other Ecclesiastical persons or the like Remainders to right Heirs upon Freehold abeyances are not allowed but where the original Estate required them or where the consequences of Estates and Cases do require them As for the first in Case of single Corporations Bishops Deans and Parsons which must dye and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living Or Secondly in Case of congruity as if a man gives a Warranty and die his Heir in ventre sa mere may not be vouched but if there be Heir he may be vouched and a Vouchee may take and plead a Release quasi tenens or may lease a Fine to the Defendant of the Land in Question But for Estates that of their own nature and origination creation are perfect and intire as this Estate entayl is the Law permits not vain affected abeyance or fictions by the voluntary Act of the party as this to no good which should preserve a right to serve the Heir and to defraud the King which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession Vses being but a kind of abeyance and shift to kéep the profits to the use and defraud the King and Lords of their Escheats and them that had a right to know against whom to bring their Actions Littleton was confounded in himself when he made an abeyance of totum statum suum and yet made an Estate for life which is condemned in Walsinghams Case by the Iudges Again though fictions take place amongst common person the King is not bound by fictions and therefore the King is not bound by his remainders by recompence feigned upon a common recovery warrant collateral binds not the King but warranty with real and actual Assets nor the King is not bound by Estoppels of his own recitall certa scientia as it is in Altenwoods Case And I hold plainly that as the Land in possession is distinctly and literally given to the King so the right is as literally directly and plainly given to the King by discharge of that ancient right whereof formerly it was bound for when the Statute saith that the King should have the Lands saving the right of all persons other than the Offenders and their Heirs and such as claim to their use it is plain that the eye of the Statute was not
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
Rent 5 R. 2. Annuity 21. Debitum Judex non leperat Then when it does not appear that the Action lyes for the 15. s. for the half year and the Iury assessed Damages intirely it is voyd as 10 Rep. 130. Osborns Case And it appears that by his computation of time it is not a year and an half from the time of the Assumpsit made Richardson said That it is not secundum ratum for then he might divide the Rent and no day is limited for the payment of it for if a Lease be made for two years or at will paying annually at Michaelmas 30. s. and the Lease is determined after half of the year although that it be by the Lessee himself he cannot make any Rent But Yelverton said that that is not a Rent but a collaterall sum And debt does not lye for that And in the Declaration it is said Quod permisit ipsum reentrare and does not say what time which was nought by all but Hutton And it ought to be also that he did de facto re-enter Hutton said There being it is said So long as you shall occupy the Land you shall pay annually c. That he may demand half of the year But the whole Court against him and so Pro hoc tempore judgement was stayed Grange and his Wife against Dixon A Lease was made by Baron and Feme and another Feme and the Lessee Covenants by the same Indenture to find sufficient mans meat and horse meat to the Baron and Feme and to the other Feme or to their Servants at their coming to London at his house in Southwark The Baron and Feme dye and the other Feme takes an husband The Opinion of the Iustices was that he was not bound to find sustenance for the husband but only for the wife or for her servants and not for both at one and the same time because the Covenant was in the disjunctive But it was doubted if he shall find them Victualls for one meal only at their coming or for all the time of their staying there Johnson against Williams and Uxor IT wad said If an Obligation be made by a Feme sole and afterwards she takes an husband and an Action of debt be brought upon that Obligation against the Baron and Feme and they deny the Deed the Baron shall be taken for the Fine as well as the wife for the wife had nothing whereof to pay the Fine And so in Trespasse against Baron and Feme dum sola fuit and they are both found guilty both shall be taken for the Fine which the Prothonotaryes agreed Jeakill against Linne IN a Writ of Covenant the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale by which the Defendant Covenanted to pay him the Rent the which he had not payed And the Defendant said that before any day of payment of the said Rent incurred one A. Ordinary of the same place sequestred the said Parsonage for non payment of the first fruits Iudgement If an Action c. And by the Court that is not a Plea for he does not shew that any Act was done by the Plaintiff himself in his default Nor he does not confesse and avoid the interest of the Lessor as to say that the Lessor was a disseisor and made a Lease to him after that the disseisee re-entred and so he might confesse and avoid the Lease notwithstanding the Deed indented But he cannot say that the Lessor had nothing at the time of the Lease made And if the Defendant had been bound in an Obligation for the payment of the said Rent in debt brought upon that that should not have been a Plea for he had bound himself to pay the said Rent And the occupation is not materiall where the Lease is for years or for life But otherwise of a Lease at will Davies against Fortescue IF a man it was said be seised of a Mannor whereof there are divers Copy-holders admittable for life or for years and he Leases the Mannor to another for term of life the Lessor may make a Demise by Copy in reversion to commence after the death of the first Copy-holders and that is good enough But the custome of some Mannors is to the contrary and that is allowed Doyly an Infants Case A Man seised of Lands makes a Feoffment in Fee by Deed indented rendring a Rent with a clause of Distresse and afterwards he is bound in a Statute and the day is incurred Vpon which an Execution is awarded to the Conusee and upon the Extent the Sheriff returns that the party was dead and that he had extended the said Rent And the heir of the Conusor being within age because the Rent was extended during his nonage brought an Audita querela and Hutton said That it is maintainable enough because there is an Exception in the Writ of Extent That if Land be descended to any Infant that the Sheriff shall surcease to extend And although that Writ issued against the party himself who made the Conisance yet when it appears by the return of the Sheriff that he is dead the Infant shall be aided by an Audita querela or otherwise the Extent shall be void which is made upon the possession of the Infant Jeffryes Case IN a Formedon the Plaintiff counts of a gift to his Father and to his heirs of his body ingendred during the life of I. S. and makes the descent to him during the life of I. S. And Yelverton seemed that the Writ is good enough for a Tayle may be made so determinable as well as a Fee simple And if a man Warrant Lands to the Feoffee and his heirs against him and his heirs during the life of I. S. That he had a Fee simple in the Warranty determinable upon the life of I. S. So here Warberlyes Case IN a Writ De valore maritagii it was moved by Henden If the Lord shall recover his Damages according to the value of the Land held of him only or according to all his Lands held also of others And Hutton and Crook said that the value of the Marriage shall be accounted as well in respect of the lands held of him as of other lands held of other Lords by Posteriority or in Soccage for there the woman by the Marriage to him shall be more advanced And the better the advancement is the better is the Marriage of the heir and the person more to be esteemed Norbery against Watkins ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided so that they shall have part and portion alike If by that they have a Ioynt-tenancy or a Tenancy in common was the Question because there was an Act to be done for making the division And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants But Harvey said That upon such a gift made to them if the
stollen from him and that was sold in a Scriveners Shop Resolved that there was no change of the property For by intendment if a man had Drapery stollen from him he would not seck it there So if a man fells stollen Plate and sells it in the High street under his Cloak It does not change property And if a man sells a thing in a Silkmans Shop in London the Curtain being drawn That does not change the property And now to the principal Case Although he said that he was a Goldsmith and that that was his Shop It is not necessary to be intended that he used the Trade of a Goldsmith in it And that ought to be averred For every Shop is a Market overt for these Causes only which appertain to the same trade Williams against Bickerton VVIlliams brought an action upon the Case against Bickerton for saying He hath forsworn himself and I le teach him the price of an Oath for I will have his Ears cropt And it séemed that it lay For although it was not said at the beginning where it was that he forswore himself Yet by the circumstance it shews that he was in such a place for which it was punishable And M. 29 30 Eliz. Dantsleys Case Thou art a Pillary Knave remember that thou hast deserved the Pillary and the Action maintainable And the Plaintiff paid the Box for his Iudgement Bradyes against Johnson BRadye brought an Eject firm against Johnson and declared upon a Lease of Land habend a die dat Indentur praedict And does not speak of any Indenture before And for that the Declaration adjudged naught And so it was betwéen Bell and March. And this same term between Spark Where it was shewed quod concessit per eandem Indent Where he had not spoke of any Indenture before Lowen against Cocks IN Debt by Lowen against Cocks the Case was thus A man seised of an house in St. Edmonds Parish in Lumbard-street in London devises it to his wife for life the remainder to his Son George and if he dye without Issue then to Iohn and Thomas his Sons equally and to their Heirs The wife dyes George dyes without Issue l. and T. make a Lease for years rendring 5. l. to the one and 5. l. to the other l. devises the reversion to his wife and dyes and for that Rent the Action was brought by the Wife And the Question was if they shall be Ioynt or Tenants in Common For if joynt the devise of the Reversion is void And Secondly If by any Act which makes partition viz. the several Limitations of the rent to them If séemed to Hutton that they are Tenents in Common By reason of that word equally which in it self makes a Division In 33 Eliz. in Boucher against Marsh It was held that where a man devises Lands to three Children equally to be divided they are Tenents in Common And so it was 14 lac in case of Goods And it is clear as it is said If a Man devise 100 l. to two equally the Executors shall pay 50 l. to the one and 50 l. to the other For if that word equally does not make tenancy in Common it shall be all otherwise void And every word of a Will ought to be of some force And in these Cases the word divided was not the force of the matter but only equally And it was the Case of a Shepheard in the Courts of Wards Where a man devises that after the death of his Son all my woods shall remain equally to his Daughters and their Heirs of their bodies And it was there held by Dyer and Manwood that they were Tenents in Common If Parceners agrée to hold by That is sufficient partition And if the one Ioyntenant confirms to the other that does not give any thing but severs the Ioynture Harvey to the contrary First They are Ioint For Ioynture is the greatest equality for every one is seised by himself and the one hath as much of the profits as the other And so equal interest and equal benefit to the Survivor 6 E. 6. in Dyer A difference was taken between a Demise to two when it is said equally divided That they shall be Tenents in Common If equally to be divided they shall be joynt But it was never adjudged 17 Eliz. A man having 3 Sons devises Lands to them equally to be divided The Question was what estate they had For if the younger had not a fee they could not have an Estate equal with the eldest for he had a fee. Resolved that they shall have a fee-simple and also that they shall be Tenents in Common And held that to be divided and divided was all one And it was held also that the word divided makes the Tenancy in Common and not equally 2. As to that reserve of 50 l. to the one and 50 l. to the other clearly being a joynt Lease and a joynt reversion And the Rent as accessary to the reversion and shall not change the nature of it Yelverton They are Tenents in Common A Will shall be construed according to the intent of the Testator And exposition shall be made of the words to supply his intent Tomlins's Case IT was agreed by all That if one sojourn in the House of another and the House is broken in the night and the Stranger robbed in the House without being put in fear of his life In law He that robbed shall have his Clergy notwithstanding the Burglary For it is out of the Statute of 5 6 of E. 6. cap. 9. Dicksons Case AT Sergeants Inne in Chancery lane this Question was debated If a man steal Goods and the very Owner makes fresh sute to take the felon So that he waives the Goods and flies And before the Owner comes the Goods are seised as Goods waived and af-the Owner comes and challenges them Now if he shall have them or they shall be forfeited was the Question And it was held by Harvey and Crook That they are not at all forfeited for that the Owner had done his endeavour and pursued from village And that the Goods shall not be said to be waived but where it cannot be known to whom the property is Hutton Chief Iustice and Yellerton said That Goods waived shall be said those which are stollen and that the Felon being pursued for danger of apprehension waives and flies Now if they are seised before that the Owner comes the property is presently altered out of the Owner in the Lord although that he made fresh sute If that Sute was not within the view of the Felon allwaies But they all agreed if the Felon do as not flye but is apprehended with the Goods That then the Owner shall have his Goods without Question Or if the Owner comes and challenges the Goods before seisure and after the flight of the Felon Harvey said The Statute of 21 H. 8. cap. 13. does not remedy any thing as to the restitution of the Goods stollen But upon
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
up a Chamber but that was the knavery of the Inne-keeper he being then in contention with an Inn-keeper in the Parish and that in divine service he thrust open the door of Wrights seat and said that he and his wife would sit there in disturbance of divine service And for that a prohibition was prayed and granted for the high Commission cannot punish non-residency nor breaking the seat in divine service And the other were things for which he shall be bound to his good behaviour and the complaint ought to be to the Ordinary c. Hall and Blundells Case before DAvenport said This Parson being presented by Simony is disabled to this Church for ever and cannot he presented to this Church again although another avoidance As it was adjudged in the Lord Windsors case But it was said by Richardson if he had said absque hoc that he was in ex praesentatione of Sir George it had béen good Which was granted Henden Two exceptions had béen taken First that the Incumbent does not shew what estate or interest the King had to present him which does not need if the King brought a Quare impedit then it is a good answer to say That he is in of his presenting But if it be brought by a Stranger then he ought to shew the title in his presentment And he alleged the Statute of 25 E. 3. Which inables the Incumbent to plead by writ of the Law 41 Eliz. There was a Quare Impedit brought for the Church of Danel A presentation was pleaded by the King without making a title and it was admitted good And in many cases it is more safe not to make a title Secondly Because that he pleaded a presentation by the King he is disabled As to that he said that before he be convicted of Symony he may be presented But by Crook in Sathers Case That if he be presented before conviction yet it is a void presentment And it was so agréed by the Court and they resolved the plea was naught because he enswers nothing to the Symony for the protestation is not any Answer Wherefore judgement was given for the Plaintiff Denne against Burrough DEnne against Burrough alias Spark in a prohibition it was agréed by Yelverton and Crook the other Iustices being absent If a man makes his will and makes his wife Executrix and devises the residue of his goods after debts and legacies payed to his Executrix His wife dies before probate that now because that the Executor had election to have them and dies before he did so All the Goods belong to the Administrator of the first Testator But otherwise by Henden If there was a Legacy of a particular thing Quaere what difference Newton against Sutton RIchard Newton and Iames Elliot against Sutton in debt upon an Obligation to perform Covenants in an Indenture There was a Covenant that the Defendant ought to do such an act thing or things as the Plaintiff or his Council learned should devise for the better assurance of certain Lands by himself to the Plaintiff and said that a Counsellor advised him to have a Fine And upon the Declaration there was a Demurrer And upon the opening the Case Crook and Yelverton being only present agreed That it ought to have been pleaded that a writ of Covenant was shewn and the tender of the note of the Fine is not sufficient But the breaking of the Covenant ought to be laid after the Dedimus potestatem sued by the Plaintiff And upon their advise the action discontinued without costs Sacheverills Case before ATthowe said that the action lies For a Lease made by Tenant for life is a Lease derived out of all the Estates and not as a Lease made in Remainder But he who made the Lease had a Reversion in possibility of a Reversion and for that he might joyn with him who had the Inheritance in that Action 27 H. 8. Tenant for life and he in Reversion joyn in a Lease for life And Tenant for life the place wasted and he that had the inheritance the treble dammages And in this Case had but a possibility of the Reversion and yet for that possibility they joyn in waste And it is all one whether there is but a possibility of reversion or a reversion If Tenant for life and he in remainder in fee make a Lease for years they joyn in waste and the reversion does not hinder Because that the Lease is derived out of both And the Lessee shall make attendance first to one and then to the other 13 H. 7. 17. And if it be upon such a Lease or Covenant which is not collateral but goes with the Land the Tenant for life shall have the benefit of them during his life and the other after But if one makes a Lease for life rendring a Rent and grants the Reversion to one for life the Remainder to another in fee Where the lease issues out of the whole reversion Yet the division by reversion being by the party himself they shall joyn in an action 22 H. 6. 24 b. Tenant in fee makes a Lease for life and their grants the reversion to A. and B. and the Heirs of B Waste is committed and they joyn in waste And yet this Statute which comes to our Case is made after the Lease And in this case if he who had the Inheritance his Son and the Survivor should joyn in waste For the Law makes the division of the reversion If Baron seised in right of his wife and they joyn in a Lease for years or for life rendring a Rent the wife dies the Husband being intitled to be Tenant by the courtesie it is now his Lease and he shall have the Rent And the Book séems that he and the Heir shall have an Action of Waste For the Law makes that division If Tenant in fée makes a Lease for years and takes a wife and dies and the Feme recovers Dower That Lease is not dispunishable with the devision by the Act of Law and that Lease is derived out of all the Estates and it is all one as if they had all joyned Admitting that the words were that the said Henry had Authority to make Leases for lives And that that makes it as effectual and as good as if all had joyned Then it will be agreed that it is the Lease of all As if I give Authority to make a Lease of my Land It is my Lease and ought to be made in my name and so the Authority is good against all those And if the Covenants had not béen collateral Iacinth shall have benefit of them For although they are not parties to the Lease yet the Law makes them so And as they shall have those benefits which grow by the Reversion so they shall have the waste also It will be objected this Lease by Henry is derived out of the first Fine and the Conusees shall stand seised to that use I agree if it be meerly without
to be done every such assurance as the Council of the Obligee should devise when he should be thereunto required And it was shewn by Ward That the Obligee made such a request scil That the Obligor and his wife should levy a Fine If that Request were sufficient was the Question Hutton I think that the Request is not sufficient Because it is not pursuant according to the Obligation Richardson I think although the request be void for the wife and that she is not bound to make an assurance Yet the Obligor is bound to do it For against him the Request is good enough Thompson against Thompson IT was said by Hutton In debt against Executors if the Plaintiff had Iudgement against the Defendant and sued a levare fac de bonis Testatoris If the Sheriff upon that return a Devastavit the better form is upon that to award a scire fac against the Executor before that a fieri fac shall issue of their own goods For that writ of Execution is warranted by the first Iudgement which was but of the Goods of the deceased But now if there be issued a fieri fac de bonis testat si habuerint et si devastaverint de bonis propriis Then I will agree that upon that shall issue a Capias against the Executors ad satisfacieudum Dixson and his Wife against Blyth IN this Case a Question was demanded by Atthowe If a man seised in right of his wife leases for life the Remainder over in Fee And afterwards he and his wife recover the same Land in a Writ of Entry in the post against the Lessee for life If the Wife by that shall be remitted Hutton seemed that she shall be remitted As well as where a Feoffment is made to Baron and Feme For that Recovery countervails a Feoffment and no laches shall be adjudged in the Wife For the purchase of the Writ shall be adjudged the Act of the Husband only and not the Act of the Wife But it is good to be advised of that for peradventure she shall be estopped by the Record Bromefields Case IT was agreed by all the Iustices That if Tenant in tayl by Indenture upon consideration of mariage covenant with an other that certain persons should be seised to his use for term of his life and after his decease to the use of his Son and Heir apparent That by that Covenant there is not any use changed unless only during the life of Tenant in tayl Nortons Case before FInch Recorder said de comuni jure for Estovers burnt in an house tithes ought not to be paid by the Common law there was not any tithes paid for wood And although the Statute of 25 E. 3. gives a prohibition for timber yet Underwoods were discharged of tithes See Doctor and Student 171. It is express that Estovers are not tithable because they are not renewing every year and it is parcel of the Inheritance for to destroy all the underwoods is waste And there is another case put where tithes of wood had not by the custom been paid neither ought they to be paid in law or conscience But that is not to be intended the conscience of every particular man Dawleys Case was resolved for the Wilde of Sussex and Michaelmas 13 Iac. Banc. Roy. in the case of Porter and Dike for the Wilde of Kent of the same prescription resolved to he good And so is the common experience that a whole County may prescribe so And the reason is for that that by the Common Law it was not due but by the consideration of Winchelsey Linwood 104. It was ordained to be paid For then the prelates imputed a great pestilence that then was for the negligence of paying tithes and appointed tithes of wood And the Commons were desirous to have the Statute of silva c. otherwise explained than the Clergy declares it For they say that they ought not to pay tithes of any wood that is of the growth of 10 years Hutton Wood is tithable in their nature and then there may be a custom to discharge them And the case of Harthpenny cannot be answered for if he sues for the penny a prohibition shall not be granted quod concessum fuit Crook and Yelverton But of things not tithable tithes of them cannot be sued without alleging a custom Crooke It is known that Harthpenny is good by prescription This Case is when there is not land belonging to the house so that the Parson is not answered for his tithes another way But when there are ten servants kept for the maintaining it Then by the Law of the land it appears that tithe ought not to be paid although custom had been alleged it is nothing to the purpose as if a custom is alleged to pay 4 d. for every acre in discharge of tithes and the verdict finds 3 d. no consultation shall be granted And so for wood to fence the ground or dry cattel to manure the ground Although custom be alleged there in discharge of it and found against the party yet no consultation shall be granted Hutton the herbage of barren Cattel is tithable because there is a custom which discharges those which are for the Cart. And he said that the Custom only makes that legem terrae And he cited Doctor Graunts Case He libels for tithe of an house and the party brought a prohibition and alleged modus decimandi c. And it was alleged in arrest of Iudgement as houses were not tithable de communi jure and yet a consultation was granted And there Cook put this case which I do not remember in the printed book that one libelled for tithes of trees and custom alleged and there was found no such custom in discharge yet it was ruled that no custom was granted Browne against Hancocke BRowne brought an action upon the case upon an assumpsit against Hancocke and declares that whereas the 10. of May 16 Iac. there were some controversies between Charls Nichols and the Brother of the Defendant concerning arrerages of rent and it was desired that Nichols would part with his term And 19 l. and a cloak and a gelding were offered to the lessee for his term which he refused Afterwards the Defendant in consideration that the Plaintiff would labour with Charles Nichols to take the offer and make an end between them Assumed that whatsoever the Plaintiff undertook for the Defendant he would perform and also save him harmlesse for any thing that he should doe in that businesse and then he said that he procured Charles Nichols to assign his term and to accept the cloak and gelding which the Defendant did not perform and allso that the Plaintiff covenanted with Charles Nichols to perform the agreement and obliged himself to that in 50 l. And that afterwards Charles Nichols filed a bill of debt for the money whereupon he compelled him to pay it and upon non assumpsit pleaded it was found for the Plaintiff and
open Pound if they dye the Distreyn is chargeable 75 A demand before a Distress if the Demand is out of the Land if not then see 86 Where Damages shall not be mitigated 93 Where a Demand ought to be certain and where not 109 On a Devastavit a Writ de bonis propriis issues 110 If a Debtee mary Debtor what becomes of the Debt see 120 In what Cases A must declare tam pro domino rege quam pro seipso 122 Double delay not allowed 126 E DElay in arrear of Error not hinder Execution 17 If a Sheriff remove his Prosoner out of the County without command It is Escape 34 Where he permits him to go for his pleasure Escapes lies ibid. Ne unque Executor found against him upon a Scire fac shall be only de bonis testat 48 Eject firm lies against Tenant at Will if he leases for years 73 If the Conisee permits the Conisor being in execution to go at large be an Escape 79 Excommunication to strike in the Church 86 If an Executor dies before probate the Goods belong to the Administrator of the first Testator 105 A Rent upon Condition reserved to the Executors goes to the Administrator 115 If a devise be void if no Executor be made 118 Ejectments do not lie of a Mannor 146 In Ejectment he ought to shew the certain quantity of Land 176 Antient Demesn is a good Plea in Ejectments 177 F A Franktenement cannot pass from a day to come 29 Feoffment to the use of a Stranger ought to be tendered to him 56 Denyal of the Rent a Forfeiture 6 A Subject may have a Forest but not a Justice Seat 60 No Clergy for Felony committed upon the high way otherwise upon the foot way 75 In a Formedon he ought to make himself heir to him who died seised last of the E-Estate tayl 78 Felony to take Pidgeons out of a Dove-coat 149 Fieri Facias no Bar to the Capias although part of the debt be satisfied 159 I INdictment quassavit for incertainty 35 Upon a Judgement if the Money be paid to the Attorney it is good but otherwise of a Scrivener 48 Inne-Keeper ought to say in his Action transiens hospitavit 49 If Land be descended to an Infant the Sheriff shall surcease his extent 54 59 Iudgement had against an Infant may be reversed 65 Judgement reversed for want of Pledge 59 Imparlance roll may be amended 143 Infans habeat eandem actionem possessoriam qualiter antecessor 160 An issue mistaken cannot be amended 164 K IF the King enters upon any Tenant a Petition of right lies 29 The King cannot take a man in execution out of Prison to his wars causa vid. 57. L VVHether a Lease to two be determined by the death of one 85 Whether a Grant of Estovers out of another place than was the Lease be good 78 Libell for the Seat in a Church 94 Where upon a Lease the Heir shall be estopped and where not 91 Libell for Tithes of two pecks of Apples 100 M VVHat things go to the making of a Feme sole Merchant 9 Where inter-mariage is but a suspension of a promise 12 An action brought in consideration of a mariage 50 How a Lord shall recover in a Writ de valore maritagii 55 O FOr what Causes an Outlawry may be reversed 93 P IN Partition no dammages are to be recovered 34 Prescription for Sallery of a Vicar is tryable at Common law 33 Prohibition where the thing might be tryed and proved at Common law 15 Where Prohibitions shall be granted and where not 19 27 28 49 50 51 60 68 69. Parson cannot discontinue 88 Prohibition upon words 94 A Protestando is no Answer 104 Symony a good suggestion for a Prohibition 116 Whether a Prohibition may be without alleging a Custom 117 Per minas pleaded 121 R VVHether the word Successive so makes a Limitation of a Remainder good matter and Cases thereupon 22 23 24 25 26 If a Feme sole Executrix of a Term mary him in reversion and dies the Term is not drowned 36 Release of Actions and Sutes substantive bars Debt 15 Nul tiel Record replyed where Recusancy convict is pleaded by the Defendant the Record must be shewn 18 Where a Reversion passes without Attornment 73 Where one Request may serve for several Debts 84 Whether on a Rescous the Action shall be brought by the Plaintiff against the Rescousor or against the Sheriff 95 Where no averment against a Record 107 Where a Feme shall be remitted and what makes a Remitter 110 No Rescous can be of Goods 145 Arrerages for rent upon an Estate for life cannot be forfeit for Outlawry 164 S TO grant a Supersedias there must be execution erronice emanavit alleged 30 Surrender determines the Interest of all parties but a Stranger 51 In Case of Symony the Statute makes the Church void 51 No fee due to the Sheriff for the executing of a cap. utlagat 52 That he might arrest the Kings Servant upon this Writ ibid. Quicquid plantatur solo cedit solo 57 T TRover and conversion brought for a load of wheat 22 A discharge of Tithes by the Parson for years runs with the Land and not with the person 31 Where toll ought to be pleaded in Trover and conversion 49 Trespass against Baron et feme dum sola fuit both shall be taken 53 If Part and Portion a like make joint tenancy or tenancy in Common 55 Trespass brought by Baron and Feme they must not say ad damnum ipsorum otherwise of Jointenants 2 Tithes of Fish due meerly by Custom 13 Tithes where due by the Common law of the Land no Prohibition ibid. Tithes of Limekills 14 The word Equally makes Tenancy in Common 64 No Trespass lies against a Disseisors Lessee 66 Where Tithes of young Cattel 85 93 Tithes for hedging Wood. 18 A Term evicted on Elegit is grantable upon a Statute Merchant or Staple not tithes for milk of Calves 100 No Composition for tithes for life without Deed. 107 No tithes for Estovers burnt in an House 110 V A Special Verdict may be amended according to the notes given to the Clark 52 A Verdict finding matter repugnant or which cannot come in question binds not the Court. 4 If a Scrivener not the party reserve more than just interest no Usury 11 Where the Visne and the return differ it is not good 83 If Defendant dies between Verdict and Iudgement Iudgement will be stayed 90 Whether Beer Brewers are within the Statute and intent of Victuallers 101 W VVAste committed by a Stranger the Lessee dies no remedy against the Seranger 97 Tenant for life and he in remainder may join in Waste 105 The Warden of the Fleet nor Westminster never may take Obligations for Dyet 146 REPORTS AND CASES TAKEN In the third fourth fifth sixth and seventh years of the Reign of the late King Charles c. Ralph Marsh against John Culpepper RAlph Marsh brought an action upon the
good and it shall be intended that the Parson is alwaies resident in his Parsonage as a Surrender or an Attournment shall be intended upon the Land and it is not requisite to name any place And it seemed to Harvey that the Arbitrement was good although that all the Parishioners had not submitted to it Because that these were bound for them 18 E. 4. 22. 1â—… 1. And Iudgement was afterwards in the next Term given for the Plaintiff Iohn Paston against William Manne IOhn Paston brought an Ejectione firm against Manne and a special verdict was given to this effect scilicet Edward Paston was seised of the Mannor of Bingham parcel whereof was the Land in question grantable by Copy And he by his Deed indented in consideration of a Mariage to be had between Tho. Paston his Son and the Daughter of I. S. covenanted with I.S. to stand seis'd of the Mannor to the use of his Son for life and after to Mary the wife for life the remainder to the first Son between them in tail with divers remainders over The Mariage was solemnised and they found moreover that there was a Custome that the Lord might have liberty of fould course for 100 Sheep throughout all the Copiholdland lying in the East and North field the Customary places and Lands in these Fields not being inclosed from the Feast of St. Michael to the Feast of the Annunciation if the grain was carried in by that time Or otherwise from the time of the carrying in to the Annunciation if it be not sowed with seed again and that those 15 acres in question be in the Corn-field And that Thomas Paston granted that Copihold to the Defendant in Fee and that in 14 Iacobi the Defendant enclosed the Land without Licence of the Lord and if Licence was obtained then he ought to have paid a Fine which the Lord would have assest And if any of the Tenents inclose without Licence they find that they have used to be punisht and pay those penalties which the Lord would assess And they also found that that incloser by the Copiholder was with a Ditch of six foot in breadth and 3 foot in depth and that the land which he digged out was but to make a Bank upon the Land upon which a hedge of quick thorn was set and that four gaps were left in the inclosure of nine feet in breadth And they found that the Defendant did not at any time compound for a Fine And then they find that the Copiholders which before this inclosed without Licence were amerced and commanded upon a pain before a certain day to throw up their inclosures And now for this inclosure Thomas enters for a forfeiture and dies his Wife makes a Lease of it and the Defendant ejects the Lessee Atthowe held that he had forfeited his Copihold for that inclosure is against the Custome of the Mannor which is found For the Custome is the life and soul of a Copihold as it is in the 4 Rep. 31. Brownes Case The breaking of that is a forfeiture and make the Copiholder have an Estate at will meerly whereas before he had an Estate not meerly at the will of the said Lord but secundum volunt domini And so by the inclosure the Lord cannot have his fould course and so the custome is broken 42 Ed. 3. 25. For not doing the services the Lord may enter and have the Emblements If a Copiholder makes a feoffment it is a disseisin for which there may be an Assise of novel disseisin de libero tenement of Lands whereof the profits or of the Rent issuing out of the Land there is a forfeiture And Littleton said that a rescous Replevin Enclosure and denying the Rent is a Disseisin And what is a Disseisin of a Freehold is a forfeiture of the Copihold Rescous by a Copiholder is a forfeiture for all the books say that a denial of a rent is a forfeiture And it is held that if a Copiholder brings a replevin it is a forfeiture and the Lord may enter presently But if he avow then perchance he hath dispensed with it And an inclosure is more strong than a denial 11 E. 3. Assise 88. cited in Taverners Case 4 Rep. The heir cannot have an Assise before entry but if the Defendant menaces him or stops up the way it is a Disseisin 14 Ass plac 19. 8 E. 2. As 374. A stopping up of the way is a disseisin but if he can go another way he can have nusance 29 Ass 49. But it will be objected that the Lord had another remedy for he might have an Action of the Case And for that not enter for a forfeiture But an Action of the Case does not restore him to the Freehold but give dammages only And if an Assise be brought it affirms the Disseisin and makes forfeiture and that agrees Taverners Case That where several Copiholds were granted by one Copy a rent denied of one forfeits that and not the others But admit it is a forfeiture if the leaving the Gaps dispence with it And it seem'd that not for he loses the profit of the Fould-course for 500 Sheep would tear their fleeces by such a narrow passage and the inclosure is an impediment to hinder their spreading in their feeding And so every one also may inclose and leave gaps and the Lord perhaps compell'd to put and remove the Shéep ten times in one day and so the Sheep worse at night than in the morning c. Secondly if the Lord had given Licence then he would have had a Fine but he would so be his own Carver And the Lord had no remedy for a Fine upon admittance after Surrender 4 Rep. 46. He had no remedy there by Action of debt nor by Action of the Case without promise to the Admittance c. Lord grants a Copihold Escheat he ought to improve his Fine before or he hath no remedy for he is not compelled to grant the Copihold again and therefore he shall have what Fine he will And it is not found also who may inclose paying his Fine A Lord admits a Copiholder for life with remainders the admittance of Tenent for life was the admittance of the remainder but he shall have his Antefine 4 Rep 23. And if they may inclose paying a Fine then the Lord had an Estate at the will of the Tenents Thirdly when it is found that the Lord amerced and commanded upon pain c. that is no mitigation or dispensation of the forfeiture For ruinous Houses pull'd down is a forfeiture without Custome to the contrary Because no waste lies against a Copiholder as against Lessee for years And yet the Lord in favour may amerce such a Copiholder if he will and that is no dispensaition but an affirmation of the forfeiture And so because the Lords were conscionable and would not take the forfeiture that does not prove that it is a Dispensation Fourthly the making of the gap and hedge of
convict DEbt is brought upon an Obligation And the Defendant pleads that the Plaintiff is Recusant and convicted according to the Statute of 21 Iac. cap. 5. and demanded Iudgement of the Action The Plaintiff replies Nul tiel Record And a day was given to bring in the Record Crowley Justice demanded what course he would take to make the Record come in And said that the Indictment was before the Iustices of Peace And the Court said that the Defendant ought to have pleaded the Iudgement if he shall be answered For the disability is not but quousque c As of an excommunicate Person 8 E. 3. Crook Iustice If a Plea be in disability of the Person and be pleaded in Bar it is peremptory And so was the opinion of the Court. And the Debt of a Recusant is not forfeited to the King as in Outlary But if he fail of payment of the Penalty imposed by the Statute Then c. And the Court said that if Nul tiel Record be pleaded in Bar it is an Issue and Iudgement shall be given upon failer of it And the direction of the Court for the bringing in of the Record was That a certiorari should be directed out of that Court to the Iustices of Peace where the Indictment was taken For Presidents were alleged that that Court sent a Certiorari to the Iustices of Assise a fortiori to certifie that in the Exchequer and so come by times into that Court c. Creedlands Case CReedland Administrator durante minori aetate of a Son of his Brother and the Son died and made the Wife of Hindman his Executor who called Creedland to account in the Spiritual Court for the Goods And he pleads an Agréement betwéen him and Hindman and that he gave 80 l. in satisfaction of all Accounts But they did not accept the Plea For that a Prohibition was prayed to be granted Richardson If the party had received the mony in satisfaction for which there shall not be Prohibition granted but if there had béen only an agreement without payment of mony then otherwise Crook It is a spiritual matter and they having Iurisdiction for to determine of all things concerning that But the agreement prevents that it cannot come into the Spiritual Court c. Giles against Balam GIles libells against Balam before the High Commissioners for an assault made upon him being a spirituall Person And Atthowe prayed a Prohibition For that although their Commission by express words gives them power in that Case yet that Commission is granted upon the Statute of 1 Eliz. And it is not within the Statute although it be within the Commission yet they have not Iurisdiction The words of the Statute are That such Iurisdictions and Privileges c. as by any Ecclesiastical power have heretofore been or may be lawfully exercised for the visitation of Ecclesiastical Estate and Persons and for reformations of the same and for all manner of Errors Heresies Schismes Abuses Offences Contempts and Enormityes c. Those words extend only to men who stir up Dissentions in the Churrh as Schismaticks or new-fangled Men who offend in that kind Henden Sergeant The Sute is there for reformation of Manners and before that new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of defamations But now by express words they have power of those matters And that matter is punishable by the Commissioners for two Causes First there is within the Act of Parliament by the words annexed all Iurisdictions Ecclesiastical c. Secondly It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Iurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said the Statute de Articulis Cleri gave Conusance to the Ordinary for laying violent hands on a Clerk But you affirm that all is given to the Commissioners And for that they should take all power from the Ordinary But by the Court The Commissioners cannot meddle for a stroke in Church-land nor pro substractione decimarum And yet they have express Authority by their Commission For by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christenmas day It was said by Richardson chief Iustice That upon arresting a man upon Christmas day going to Church in the Church-yard He who made the arrest may be censured in the Stat-chamber for such an Offence Quod nota It was also said by Richardson If a man submit himself out of the Diocess to any Sute that he can never have a Prohibition Because that the Sute was not according to the Statute 23 H. 8. commenced within the proper Diocess as it was adjudged Quod nota Manser against Lewes MAnser brought debt against Lewes the Bishop of Banger and had Iudgement and a fieri fac upon that to the Sheriff of Middlesex who returns That he was Clericus benefaciatus habens nullum Laicum feodum And Hitcham Sergeant to the King moved for direction of the Court what Process ought to issue or may have a Writ to the Metropolitan to make sequestration as it is 21 H. 6. 16 17. 34 H. 6. 29. Richardson said If you can satisfie us That the Sequestration ought to be against the Bishop as against a Clerk Then the Metropolitan shall do execution Hutton said A Bishop had Temporalties and for that the Sheriff ought not to return nollum habet Laicum feodum Richardson demanded whether the Statute of Westm the second which gives Elegit extends to the Temporalties of a Bishop Hutton not Harvey and Crook said That he ought to have first a Testatum est and then we may dispute of that But Hitcham doubted whether a Testatum est may issue to Wales Richardson an Elegit may issue and why not then a Testatum est And they in the Kings Bench grant it without doubt Stevens against the Bishop of Lincoln c. STevens and Crosse were Plaintiffs against the Bishop of Lincoln Holms Incumbent and Holsworth Defendents in a Quare impedit And the issue was where the Prochein avoydance It was given in evidence that a Feme was seized for life of the Advowson And he in reversion in Fee being an Infant grants the prochein avoydance And after when he in the remainder came to full age He reciting that grant concessit confirmavit praedictam advocationem habendam quando contigerit vacare And afterwards the Wife dies and the Church happens to be void And it was said by Davenport That that is not a new Grant but only a confirmation Crook Coo. lib. 6.14 Treports case Tenent for life and he in remainder makes a Lease if the Tenant for life dye the Declaration should be that he in the remainder made the Lease And so also by all
three lives to the Plaintiff And the Defendant took and converted the Grain c. Finch the Recorder for the Plaintiff who endeavoured to destroy the two first Leases And as to that the first Lease is not warrantable by the Statute 1 El. that depends upon consideration of two things First Whether the word Successive so makes a Limitation of a Remainder c. Secondly Whether the Lease in Remainder be out of the Statute 1 El. also that I ought to maintain That although the Lease is not warranted by the Statute yet it is not void but voidable by the Successor And that also contains two points First Whether it be void by the Common law scil When a Lease is made to two habendum a die datus and livery be 3 daies after by Attorney be not good Secondly Whether it be absolutely void by the Statute As to the first a Lease succcessively habendum viz. to A. and her Assigns for her life That Habendum well settles the Estate by way of remainder and it is not a Ioynt-estate 8 E. 3. There the doubt is first put but the difference is Where it is habendum successive generally then it is a Ioynt-estate But if it be with a reference and declaration it is a good remainder Br. 104. successive generally does not make any remainder unless in case of a copyhold sibi suis make an inheritance 30 El. in Banc. Roy. 8 Rot. 856. The Lord Sturton makes a Lease to Thomas Hubhard habendum to him and two others scilicet successive for their lives and to the longer liver of them And it was adjudged that none can take by that Déed but Thomas Hubbard only Who is only the party named and that it is no remainder for it is not made certain who begins to take by the Remainder Greenwood and Tilers Case in the Kings Bench. There such a Lease is made and the word Successive comes after the limitation of the Estate And the Iudges gave the difference between this Case and Hiliards Case But after in the Exchequer-Chamber it was agreed to the contrary So that Successive put generally does nothing But when it is shew'd who takes first then it makes a Remainder Dyer 361. habendum successive prout nominatur in Indentura It was ruled that that was a Remainder And this Case is more strong for every one is named in his order And then if it be not a Ioint-estate but in remainder it is not warrantable by the Statute of 1 El. 6. Rep. Dean and Chapters Case of Worcester And that Statute had relation to the Statute of 32 H. 8. of making of Leases For the Statute of 1 El. ought in reason and equity to have the same constructions as the Statutes aforesaid and so it had been adjudged in one Wheeler and Danbyes Case Then that Lease although it be void yet is not absolutely void but voidable c. And as to the point in Law the Livery is good as it seemed But now if there was a Lease for life or a Feoffment de die datus and Livery made the same day by the Feoffor himself or his Attorney that it should be void For the day of the date should be excluded and the Livery cannot operate in futuro For it is res ponderosa and it can never expect and be in suspence 2 Rep. 55. Bucklers Case But I confess in this last Case a favourable construction ought to be made where the Possession had long continued according to the letters Patents Which should intend that the Livery was in the same instant And in a thing that lies in Grant the same construction is made as if Rent in Common in esse should be granted de die to come the Grant is void Bucklers Case before H. 8 H. 7. 33. 8 H. 6. 35 coment 145. Throgmorton and Traceys Case agrees the difference of a Rent granted de novo and a Rent in esse 9 E. 2. tit Dower So that a thing granted cannot be to begin at a day to come But not by the reason only given that he cannot reserve a particular Estate to himself But because it is a Frank-tenement which ought to pass presently Pasc 5 Iac. Kings Bench Sir Robert Iames Case In a Replevin against him and Adams it was agreed That if a Reversion be bargained and sold at a day to come for years it is good And so also is Sir Rowland Haywards Case 2 Rep. 35. If a Feoffment or a Lease for life was a die datus If the Lessor or a Person the next day make Livery it is good without question For the absurdity that a Frank-tenement should be in suspence is not so for the life is given by the Livery after the date And there is a great difference between things that lye in Grant and a Feoffment For in Case of a Grant that is a die datus it cannot be made good In Case where a Feoffment is made the Deed is the evidence and all is not done before the Livery But in the other Case after the Livery nothing is to be done by the other And that is the reason of Buckleys Case That an attournment cannot make the Grant good or the form of a Deed. But where Livery is it passes by Livery only where no Estate is mentioned Also one Bowles and Smyths Case The Prebend of Bowe makes a Lease for 3 lives a die datus and makes Livery after the day Adjudged that the Lease and Livery were good as it is in Greenwood and Tilers Case in the Kings Bench Trin. 10 Iac. rot 1039. 18 Iac. Argued at Serjeants Inne One Will. Long and Alice his wife by Deeds makes a Lease to Fisher and Anne his Wife and Ioan his Daughter habendum at Michaelmas next after the date of the Indenture for lives successively The Lessor and his wife after the day past makes livery in person secundum formam chartae Longe dies and Alice receives the rent of Fisher Fisher and his wife die Alice makes a Feoffment to I. S. Greenwood the Lessee of Ioan brought an Eject firm against Tyler the lessee of I. S. And these points were resolved That the livery after the day made the lease good which is the point now single in question 2. Alice and Ioan cannot take jointly 3. That Ioan cannot take a greater Estate than for her own life and not pur autur vie For it was not the meaning of the Deed. But there they held that the Successor after the lives was the Remainder But afterwards in a Writ of Errror it was denied 4. That that acceptance of the rent tyes the Wife Which could not be unlesse the rent remain good For the assent ought to be manifest by Deed. So that the Deed is good to direct the estate and prove the Assent For otherwise the Feoffment so had avoided the lease But where the Person is disabled it is otherwise As if a Feoffment be made by a Feme Covert and livery made
to make it actually void For if the words are pursued strictly then it shall be void immediately against the Bishop himself Then the Successor in lieu of a benefit shall take an advantage of the Statute For he cannot make Leases but of things usually demised 32 Eliz. Sale and Sale against the Bishop of Coventry in a Quare impedit It was adjudged That a Quare impedit well lies by an Executor for disturbance made to the Testator And also that a Lease for years is good notwithstanding the Statute The Statute does not intend the benefit of the Lessee but of the Successor himself And the Successor had his Election to accept the Rent or the Land And if it should be voyd his Election is gone Tallengers and Dentons Case 4. Jac. A Lease is made by the Bishop of Carlisle of the Tithes which is out of the Statute And there it is void against the Successor For that that he hath no remedy for the Rent reserved upon it And that point is so adjudged upon the Statute of the 13 Eliz. Walters Case before resolved that a Lease made by Dean and Chapter not warranted by the Statute is but voydable against the Successor Pas 6 Iac. rot 1041. Wheeler and Danbies Case Robert Bishop of Glocester 30 Eliz. makes a Lease to Iasper habendum a die datus to him for life the remainder to William rendring the ancient Rent The first Lessee dies the Successor having notice of it and that divers Rents were behinde commanded his Bayliff that he should receive the Rents The Bayliff enters them and receives Rent of that Lessee the Bishop having notice of it And these points were resolved First the Iury finding a Lease a die datus might be intended good for that the Entry was made after the day yet the Iury finding a thing impossible does not conclude the Iudges Secondly that a Lease in remainder is not warranted by the Statute 1 Eliz. Thirdly that the Lease was but voydable by the Successor for the Statute was made for the benefit of the Successor but the grand Question was of the manner of acceptance and resolved Fourthly that the acceptance binds the Bishop and the Authority given to the Bayliff and also his receipt For it differs where the Bayliff of his own accord receives Rent Dyer And they also say that that was to perfect an estate setled And it differs from an Attournment which is to perfect an estate setled For there notice is requisite c. Gammons Case again HEndon said that a Scire facias does not lie upon that record because an action of debt well lies For no president can be shewn that a Iudgement given in an inferiour Court may be executed so For first that Court shall not make an Instrument to execute Iudgement given in another Court It is seen that an Attaint lies of false Iudgement given in an inferiour Court Take the Case in 14 H. 4.4 And so if issue be joyned in an inferiour Court without custom It shall not be removed to be tryed so And so it is our Case c. Secondly the Statutes do not give them power viz. 26 H. 8. 34 H. 8. makes the matter clear that it cannot be Error in an Assize before the Iustices of Assize will not lye in this Court. For Iudges Itinerant are superior And those Iudges are appointed by Act of Parliament and so the Iudges also in Wales are by Act of Parliament And having power a Oyer et terminer It is not found that after Iudgement a Certiorari had been received to remove the Record out of an Inferiour Court And the mischief would be if Iudgement should be given for 20. l. it should be executory through all the Realm where they have but a special Iurisdiction And also the tenor of the Record is only removed and execution cannot be out of the tenor of the Record Dyer 369. Plow 52. Richardson The question is whether when the Record is so removed whether it shall be idle If Iudgement be given in an Inferiour Court which holds Plea by prescription or by grant and removed by Writ of Error if the Iudgement be affirmed we may award Execution 16 Iac. There is an express president of a Iudgement in an Inferiour Court and a Scire facias is granted so And also a Scire facias is granted in lieu of an action of debt For by the Common Law he might not have a Scire facias after the year but an action of debt And by the Common Law debt lies in that Case Harvey and Crook Iustices said that Court shall not be an Instrument to execute Iudgement in an inferiour Court which they cannot And also the Land of the Defendant shall be lyable to an execution in any place in England where before only the Land within the place was lyable And also the purchaser could never finde out what executions might be upon the Land Richardson said that the mischief would be great on both sides For otherwise what Iudgement was given The Defendant would remove his goods out of the Iurisdiction of the Court and then the Plaintiff had no remedy but by new original And Crook Iustice If a man brings an action in a Court he ought to examine what the end of that will be For it is a president a man ought to respect things in their end For it is his own folly to commence an action where he cannot have execution For that he may commence his action and have execution in any place in England And although that a forrain Plea in an Inferiour Court may be tryed so yet it is by Act of Parliament viz. 6 E. 1. 12. which proves by the Common Law there was no remedy Tithes of Pidgeons and Acorns A Parson Libels in the Spiritual Court for Tithes of Pidgeons and Acorns And the Defendant prayed a prohibition Because the Pidgeons were spent in his own house and the Acorns dropt from the Tree and his Hogs eat them And it was said by the Court Acorns are Tithable 11 Rep. 49. But then they ought to be gathered and also sold And a prohibition was clearly granted Thomas Wilcocks Case MOre of the Case of the Vniversity of Oxford Thomas Wilcocks Mr. of Arts in St. Mary Hall in Oxford was sued in the Chancellors Court there by Anne wife of Ralph Bradwell and Christian her daughter For calling the wife Bawd and old Bawd and the daughter Whor. and scurvey pockey-faced whore And they procured two Sentences against Wilcocks and upon them he had two prohibitions And Davenport moved for a Procedendo for that that by their Charter which was confirmed by Parliament The Chancellor or his Deputy shall have Conusans of all causes personal where one of the parties is a Scholar And the Charter was shewed in Court which was to this purpose That they shall hold Pleas c. or Secundum morem Universitatis or Secundum legem terre And the custom was to proceed according to
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
have come to full age the fourth day after The Court agreed that one may be non-suited the Essoyn day and if he confess an Action that day it shall be good And thereupon Iudgement was given that by the relation the Statute should be avoided c. Crookes Case A Feme sole leases at the will of the Lessor and after the Feme takes an husband If by the taking of the Baron the will of the Feme be determined and it was thought not Fenne against Thomas Hil. 3 Car. Com. Banc. A Man inhabiting in the most remote part of England was arrosted eight times by Latitat and no Declaration is put in Banco Reg. And the Counsell prayed Costs for the Defendant The Prothonotary said that he shall not have Costs unless he come in person But Richardson said on the contrary and he shall have Costs for it appears that he had been put to travell and a day given to shew cause why the Costs shall not be given Spark against Spark SPark brought an Ejectione firmae against Spark for lands in Hawkschurch in the County of Dorset The Case was a Copy was leased for a year except one day and that was found in the Verdict to be warranted by the Custome The sole Question is if an Ejectione firmae lyes And by Hutton If Tenant at will makes a Lease for years an Ejectione firma lyes but if it be a Copy-hold for years an Ejectione firmae will not be maintained Deakins's Case IT was said at the Bar and not gain-sayed If a man perjure himself against two the one by himself cannot have an Action upon the Statute but they ought to joyn for he is not the only party grieved Bentons Case A Man Leases for life and afterwards Leases for years to commence after the death of the Lessee for life rendring Rent the Reversion is granted Tenant for life dyes Lessee for years does not attourn And it seemed That the reversion passes without Attournment And he shall have Debt or shall Avow Williams against Thirkill AN â—…ion of Debt was brought by Williams against Thirkill Executor of I. S. who pleads a Receipt against him of 300. l. over and above which non c. The Plaintiff replies that the receipt was by Covin And so they are at issue and it was found for the Plaintiff and judgement was entred de bonis Testatoris And it was said by the by in this Case That Debt by Paroll may be forgiven or discharged by Paroll Ploughman a Constables Case PLoughman a Constable suffers one who was arrested pro quadam felonia antea fact to Escape And because it is not shewed what Felony it was and when it was done for it may be it was done before the Generall Pardon the party was discharged Hobsons Case VPon an Indictment of Forcible Entry Quod ingress est unum Messuag inde existens liberum Tenement I. S. And because he does not say Adtunc existens and without that it cannot refer to the present time scilicet of the Indictment He was discharged Sir Thomas Holt against Sir Thomas Sandbach SIr Thomas Holt brought Trespass against Sir Thomas Sandbach quare vi armis Because whereas the Plaintiff had used time out of mind c. to have a Water-course by the Land of the Defendant So that the water run through the Land of the Defendant to the Land of the Plaintiff The Defendant he said had vi armis made a certain Bank in his own Land so that the water could not have his direct course as it was wont to have Harvey It séems to me that the Action does not lye For a man cannot have an action of Trespass against me vi armis for doing of a thing in my own Soyl. But Trespass vi armis lyes against a Stranger who comes upon the Land and takes away my Cattell And such like things but not in this Case But he may have an Assise of Nusance As in Case where one makes an House joyning to my House So that it darkens my House by the erection of a new House I may have an Assise of Nusance against him who does it But Crook was on the contrary But it séemed to Richardson that he shall have Trespass on his Case but not vi armis And to that which hath been said That if one build a House to the nusance of another upon his own Land That he to whom the nusance is done may have an Assise of Nusance that is true And also if he will he may pull and beat down such an House so built to his Nusance if he can do if upon his own Land But he cannot come upon the Land of the other where the Nusance is done to beat it down per que c. Hutton of the same opinion By which it was awarded that the Writ shall abate And he put to his Action upon the Case Hitcham moved a Case to the Iustices One I. by Indenture covenants with an other that he should pay him annually during his life 20 l. at the Feast of St. Michael or within 20 daies after 10 l. and at the Feast of our Lady or within 20 daies after 10 l. The Grantée before the 20 daies passe and after the Feast of our Lady dies If the Executors of the Grantee shall have the Rent or not And the Iustices Hutton being absent said That it was a good Case And said that the Executors shall not have it Because it is not at all due untill the 20th day be past Fawkners Case A Lease was made to one for 40 years the Lessee makes his Testament and by that devises it the term to I. S. for term of his life if he shall live untill the said term be expired And if he dies before the years expire then the remainder of the years to F. for term of his life and if he die before the term be expired the remainder of the years to the Churchwardens of S. I. If the remainder to the said Church shall be good or not was the Question Because that the Wardens of the Church are not coporate so that they may take by that Grant Hutton and Harvy said that the Remainder was not good to them And said that the first Remainder was not good Peters against Field A Bill obligatory was shewed to the Court in Debt brought upon it And in the end of the Bill were these words In witnesse whereof I have hereunto set my hand and he had writ his name and put to his Seal also And because no mention was made in the Bill of no Seal to be put to the Bill It was moved to the Iustices If the Bill be good or not And it was agreed by the whole Court that the Bill was good enough Tomlinsons Case A Parson makes a Lease for 21 years The Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that confirmation made the Lease good for 21
rescous there is no remedy against him as it was adjudged And the difference is that when he goes to make execution it is at his peril if he does not take power enough with him so that he may do it And if the Gaol be broken it is no excuse for the Sheriff Also if the party taken before he come to the Gaol is rescued there is no remedy against the executors of the Sheriff If debt be brought against the Sheriff for an escape and in that a recovery the Plaintiff shall never take the party again And so also if he brought an action against the party and recovered the Sheriff may plead that And for the book in Fitzh Nat. brev cited it remains doubtfull Hutton a Stranger commits waste and the Lessee dies yet no remedy against the party who committed the waste for the Lessee is charged of waste And so also the Sheriff of an escape But after as it was told me by one who was present Iudgement was given for the Plaintiff Humbertons Case IT was said by Richardson and agreed by Hutton That a term evicted upon an Elegit is grantable but upon a Statute Staple or Merchant not And Richardson said That Fillwoods case in the 4 rep 66. if it be well observed will prove that difference Isham and Lawnes Case NOte in evidence to the Iury in an Ejectione firm betwéen Isham and Lawne It was said by Richardson and Hutton and by divers Serjeants at the bar and not denyed by any If a Son disseise his father and levy a fine with proclamations to a Stranger upon whom the Father enters and dies The son may re-enter against his own fine Allen against Westley IN evidence to the Iury betwéen Robert Allen and Isaac Westley upon the 5. Eliz for perjury Richardson there remembred that there was one charged with perjury and it was layed that one swore that he drew his dagger and beat and wounded another And it was found to be with a staff and it was agréed not to be perjury for the beating was only material It was one Styles's his case and it was agréed by the Court in that case that although a witness swears the truth yet if it be not truth of his own knowledge as if he shews how one revoked a will by paroll in his hearing when the words were spoken to another in his absence he does not swear truly and it is a corrupt oath within the Statute And it appears in the case in which this perjury was supposed to be committed which was between Allen and Westley also that these words were good words of revocation of a will I utterly renounce and detest that Will and will make a new one But if they were That Will shall not stand I will make a new one they are not For the first shews a present purpose of revocation the last a fortiori but more afterwards Thomas and Kennis's Case before DAvenport argued for the Plaintiff And the Question here is Whether there was any Estate in Edward and Walter setled at the time of the Fine levyed Or their Estate was only in contingency Because that Richard was then living For I agrée that if at the time of the Fine levyed Edward and Walter had not any Estate setled or vested but all in contingency That then the Fine destroyed all the Remainders For it is clear when Tenant for life is and the Remainder in contingency levy a Fine That is a forfeiture and destroys all the contingent Remainders 1 Rep. 131. I hope that they will agrée that if there be an Estate setled in them that Tenant for life levies that Fine Although that they in the Remainder do not enter within 5 years after the death of Tenant or after the estate escheated And that was adjudged 21 Jac. Tooker Lawns Case in the Kings Bench. But the Case was Mich. 33 34 Eliz. The Question then is whether Edward and Walter having any Estates setled in them two Estates are so limited to them joyntly for their lives so long as Richard and Anne shall have issue male of their bodies living Secondly The Estate to them was to their own use and that was not joyntly but successive And if any of those uses were in esse at that time of the Fine then they fall out clearly with the Plaintiff I conceive that both their Estates were in them First concerning the first Remainder limited to their joynt use in which it is to be considered Where the not setting forth of the Lands makes it contingent It is a strange Case That if the directions for the setting out had been observed that then there might have been a present Estate setled upon a subsequent Condition and not upon a precedent Condition Where it ought to be agréed when the Indenture is made with a Covenant to levy a Fine That no use will rise before the Fine Coment 302. Then although some things ought to be done before the uses will rise If those things had been done the use ought to be raised For certum est quod certum reddi potest 17 E. 4. 1. When contracts are upon incertainties when the thing uncertain is become certain when the Indenture was sealed that made a contingent use in the limitation but when the thing had been done it shall make a perfect use in the limitation But now it is become impossible by the non-performance c. It had been urged that so there shall be a double contingent which is concerning the Houses c. I say there is a great difference between a Collateral use which does not depend upon the other Estates and an Estate limited in course of a Remainder I agree if they be contingent Remainders the Fine will destroy and overthrow them but if there be a collateral clause by which a use is limited As if there be a Proviso that if such mony be not payed it shall be to such an use That contingent use is not destroyed by Fine 1 Rep. 130 134. Chidleys Case where the difference is directly taken If a Feoffment be made to the use of the Feoffee for life with divers contingent Remainders over If Tenant for life makes a Feoffment all the contingent Remainders are destroyed But where the contingent came in by a collateral Clause and not by way of Remainder otherwise it is As a Feoffment to the use of a man and his wife which shall be a Remainder over That is a good use to the wife and cannot be destroyed by feoffment Dyer 274. and Bracebridges Case cited in Chudleys Case 133. It was adjudged accordingly In the third branch here it is If he dies then she should have the Houses during widdowhood But the course of the Remainder came in the fourth clause And that had relation to the first And as to the second as it is shewn that at the time of the limitation it was not the intent that the Remainder shall be contingent to Edward and Walter
If I grant to a man that if he mary my Daughter he shall have my Mannor of Dale for years the mariage ought to be before he shall have any thing in the Mannor But if it had been that he should have had my Mannor for 7 years if he mary my Daughter Then the mariage is conditional subsequent that if he does not mary I shall have my Mannor again 10 E. 3. 44. The Abbot of Bosneys The difference is there put by Brerewood Trin. 4 Car. Com. Banc. 36. H. 6. An Annuity granted untill he was promoted to a benefice That is conditional from the Defeasance But if it was that the Grantée did such an Act that he should have an Annuity And ex vi termini there is a perfect Estate before the if and the former if is well explained by the last That if there be not issue male then the Estate shall cease 10 Rep. 41. A Condition in its nature is not to precede an Estate As if the Lands be given to a woman for years si tam diu vixerit 35 Assise plo 14. The Case in point of a Remainder which comes to our Case and conteyns both the parts of that difference As it is in Colthursts and Binshams Case The Prior and Covent of Bath leases Land for life the Remainder to W. Si ipse inhabitare et residens esse velit infra praedict terram And if it shall happen that the said W. should mary before H. Then the Remainder to P. And the Question is whether it is a Condition precedent or subsequent Resolved that the second is precedent For that that the Si precedes and for that makes the Estate contingent But for the other Si after the Estate limited Si ipse inhabitare vellet They were the very words of Mountague Chief Iustice It cannot be denyed but that it is subsequent and then goes in Defeasance and the other ought to shew the non-performance of it And that Case is more strong than our Case is For that Estate is by way of Livery not by use For in Case of Livery there he ought to have a time to do the thing And our Case then he should have for life determinable upon the Si c. And that construction of Vses shall be clear by the intent which appears that there ought to be a present Estate Where uses are by Indenture if by one construction the Intent is frustrate and if by another upheld That ought to be taken ut res magis valeat c. The Lord Sturtons Case Where a Lease was made of a Mannor to two Hubbards to have to them and to two others for their lives the first two dye And it was ruled that it was good but to the first two for their lives and not for the lives of the four Because they shall take but in point of Estate See more after Termino Trin. 4 Car. Com. Banc. The King against the Bishop of Canterbury THe King brought a Quare impedit against the Bishop of Canterbury Sir John Hall and Richard Clark for the Church of Marleborough in Northamptonshire And declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6 Iac. by Indenture he covenanted to stand seised to the use of himself and his wife for their lives and to the Heirs of Richard White And after White presents one Boynton and dies and his wife maries with Sir Iohn Hall The first of Iune 6th Iacob by Deed grants proximam advocationem to two to this intent that he might receive of such a Parson that he presented all mony as should be agréed betwéen Grantor and Grantee And that this was done Boynton lying in extremis And then the 26 Ian. 16 Iacob there was a corrupt agreement between Sir Iohn Hall and one of the Grantees That for 200 l. to be paid by the Clark Blundell That the other Grantee should present him And the first of February Blundell pays Sir Richard the mony and the second day he was presented instituted and inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sir Iohn Hall makes a Title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alleged and not answers whether the mony was paid or not But that he is Parson imparsonee of the presentment of But 16 Iacob after such an agreement scil 17 Feb. he was presented by the Letters Patents of the King to this Church and never answers to the Symony And it was held by the Court to be naught and only pleaded to hinder the Execution before the Iustices of Assise If the Tryal went against the Patron Upon a Prohibition ONe libells against another in the Spiritual Court for the tithe of two pecks of Apples and for feeding the Cattel upon the Ground And the Defendant for the Apples answered That there were two Pecks only growing in his Orchard and that they were stollen and never came to his use and for the Cattel that they were antient Milch-beasts and that they growing old were dry And that for a month they depastured with other Heyfars and that after they put them in a Meadow out of which the Hay was carried And afterwards he fed them with hay in his House Atthowe Because that the Answers were not admitted prayed a Prohibition Hutton If Appples are upon the Trees and taken by a Stranger shall the Parson be hindred of his tithe Yelverton If I suffer one to pull my Apples the Parson shall have tithes But if they be taken by Persons not known the Parson shall not have tithes of them Which was granted For they are not tithable before plucking And for that if he suffer them to hang so long by negligence after the time that they are imbessed By Yelverton he shall pay tithes For the second matter it was agreed by the Court and for the depasturing in the Meadow and for the Hay with which they were fedd afterwards tithe shall not be paid Because that the Parson had tithes of them before But if the Question is for the tithes when he went with the other Heyfars By Crook that is no cause to excuse the tithe Harvey If I have ten Milch-kine which I purpose to reserve for Calves and they are dry The Parson shall not have tithe for their Pasture But if I sell them by which it appears I kept them for fatting There tithes shall be paid Hutton agreed That although that there was so small time yet when they went with the Heyfars he shall pay tithes for them Goddard and Tilers Case GOddard against Tiler in a Prohibition Tiler sued for tithes of Milk and Calves upon which modus decimandi surmised A Prohibition was granted viz. That every Inhabitant should pay 4 d. for every Cow and 2 d. for every Calf which they proved that there was never tithe paid in specie But
reference to the Authority for otherwise the Lessee shall not be attendant to the Tenant for life As suppose at the first the limitation was to the Lessee for life the Remainder to Iacinth c. rendring Rent he in the Remainder shall never have the Rent But in this Case it is otherwise Holmes against Chenie IN an Assumpsit the Plaintiff declares that there was an account between him and the Plaintiff of divers sums of mony And it was found that the Defendant owed to the Plaintiff 3 l. And upon that he promised being required he would pay it And in arrest of Iudgement it was said Because the Plaintiff does not shew for what thing the mony was due the Declaration was naught To which Atthowe answered That if it was upon an indebitatus Assumpsit generally that the Action will not lye although there had been many Presidents ante hac to the contrary But in Case you will give a years day to pay upon which the Defendant assumes the Action will lye But there is a difference upon that and our Case put That one was indebted upon a reall contract and other things and appears by account that upon all Debts 40 l. is due c. Now by that the promise is upon the Account and that had made all certain Yelverton There cannot be a debt upon an Insimul computassir without shewing of what nature the Debts were Richardson An account cannot be of a thing certain Debt upon an Obligation is and rent certain And if those with other things come in Account and upon that an Action is brought what shall be pleaded by the party upon the specialty Crook Debt certain does not lye in Account But suppose that part of the Obligation is payed And afterwards by an Account it appears what is payed and what not and then he promises to pay the arrerages which is proved as he ought For although Debt implies a promise yet an Account not Now when things are truly in certainty he may have an Action upon a general Insimul compurassit For the Law avoids prolixity of the Declaration which would be infinite if all petit Debts were named And he agreed that the difference put by Atthowe in the Case of an Action c. upon an Indebitat Assump Richardson and Yelverton also agreed Atthowe It is sufficient in an Action of the Case upon an Account to prove the Account without shewing what the Debt was And he cited 3 H. 4. That a Debt certain with other things incertain may lye in Account as in our Case there may be double charge prevented by a verment Although all the things in special by which the debts did arise shall not be shewn yet he ought to shew of what nature the debts were as upon contracts so much or upon mutat so much c. and so infiniteness shall be avoided c. Moyle Pregnotary That 22 Jac. That a general indebitatus is now in peace For it was ruled by all the Iustices in the Exchequer Chamber to be naught Et adjournatur Walsingham and Stones Case IT was said by Huttnn in this case That a Parishioner compounding for his tithes for his life was naught without déed And it was said by Yelverton That the use in the Kings Bench is That if a Defendant in a prohibition dies his Executors may procéed in the spiritual Court And it may be a rule for the Iudges in the Ecclesiastical Court to procéed also And then the Plaintiff may if he will have a new prohibition against the Executors c. Binge and Hodges IN Binge and Hodges case one of the Iurors was named Richard Smith in all the process against the Iurors And after the tryal Ward moved in arrest of Iudgement for that that Rise Smith was sworn upon the tryal and not Richard And by the Court he cannot make such an averment against a Record For then an Affidavit overthrowes a tryal And that which is aided by 21 Jac. cap. 13. is when a Iuror is named by one name in one place of the of the Record and by another name in an other place of the record There now it shall be aided upon this Statute by averment that he is the same man c. Bristowes Case IN the case of one Bristowe The sute was in the Court of Requests for that that the Plaintiff and the Father of the Defendant had made such an agréement to pay money c. And it was moved for a prohibition And by the Court it was granted for that that a mutual agreement is a sufficient consideration upon which an action upon the case will lie And that notwithstanding that there was a decrée in the Court of Requests against the Defendant there And for that the sute is against the heir which is against the rule of Law that the heir shall be charged in the place of his father Whatsoever agréement the father makes is nothing to the purpose to charge the heir although he had assets either by Law or equity And the Court of Equity ought to give relief in such cases For this agreement although it be in writing being without Seal It is not but an Ecclesiastical agreement Mrs. Peeles Case MRs. Peele moved for a prohibition to the High Commissioners King Charles 15 Feb. anno primo regni sui granted a Commission to divers to enquire Dyer and Terminer of all incests adulteries and misbehaviours and all other crimes punishable by the Ecclesiastical Law Afterwards there were divers articles exhibited to them against the Lady Purbeck for adultery and Mrs Peele and others That she in Annis Domini 1621 1922 1623 or 1624. in some one or all of these was an Abettor of this Adultery For which she was sentenced to pay 200 l. c. and that she made a poenitential acknowledgement of her offence and farther that she shall be imprisoned untill she found security for the performance of that order And upon the Articles and the sentence the general pardon of 21 Iac. was pleaded Henden prayed a prohibition and agreed that they might aver that the whole offence was committed before the pardon And he cited a case in the Common Bench 6 Iac. rot 142. Longdale was charged with adultery and the charge was laid after the pardon Yet that charge did not so conclude him but that he might aver that to be before to have the benefit of the pardon It was urged on the other side that such averments would overthrow infinite sentences given before Bramston It is pretended to be done after for the averment is not but a monstrans of the truth of the matter and the Subject shall never have benefit of the pardon without such averments Atthowe it appears that there was an offence and it was proved also And if you allow a prohibition you overthrow all sentences there And also a prohibition ought not to be grounded upon several matters but one only Yelverton said that a prohibition may be grounded
and Yelverton And a prohibition was granted Holmes against Chime before PResidents were shewn that such actions were brought scil Hill 3. Car. Elwin against Atkins and Hill 1. Car. Cophin against Cophin both in this Court. And Richardson said although the book makes a doubt of it yet his opinion was that the action would lie For it would be a miserable thing that all things should be shewed precisely And so Iudgement was given for the Plaintiff Port against Yates IN a replevin the case was The Defendant was known as Bayliff to Thomas Kett and the land was Copyhold land And 10 Maii. 3 Car. When it was granted by the Lord of the Mannor to the wife of Thomas Kett. The Plaintiff confesses that the Land is Copyhold land but that the Lord granted 1 Iacob to Robert Salter in Fée who had two daughters the wife of the Plaintiff and the wife of Thomas Kett and dyed seised and that the land descended to them upon which they demurred Berkely The first grant shews that the Defendant was in of all and the descent to the wife but for the moyety whereupon the grant of the whole is not traversed nor confessed and avoided And he cited Dyer 171. Pl. 8. to be the same case in effect and so ruled But Hutton Harvey and Crooke held what difference there was betwéen this case and the case in question Hutton the descent here which is pleaded makes the second grant void But by Richardson although that it be avoided Yet it is not confessed And afterwards for that that upon the whole truth of the matter disclosed It appears that a Copartener cannot distrein the lands of another damage feasant and the matter of form in pleading ought not to be regarded by the Iudges upon the Statute of 21 Eliz. cap. 5. Iudgement was given for the Plaintiff Cockett against Delayhay COcket brought an action upon the case in Bristow against Delahay for these words Cockett hath forged a deed and because of that came out of his own Country And the Defendant justifies that he did forge a Déed in Middlesex of lands in Hartfordshire without that that he spoke in Bristowe Richardson said that that plea was naught either with traverse or without the Traverse Whereupon Henden altered his plea scil That he forged a déed of those lands at South Mimms in Middlesex where the lands lie By vertue of which he justified the words at Bristowe Richardson It is a good plea for now the other can plead nothing but de injuria sua propria And then the tryal shall be in Middlesex And by Crooke if there be a Demurrer there shall be a writ of inquiry of damages issue to Bristowe Issue IF the issue be not made up it may be tryed by Proviso But if the Plaintiff neglect that there may be called a non-sute upon the roll for there it shall be discontinued quod nota Page against Tayler PAge brought an Action against Tayler as Receiver c. which was found against him c. And Iudgement was given that he accounted and before the Auditors he pleaded that before the Action brought there was an arbirement that he should pay to the Plaintiff 11 l. in satisfaction of all accounts and demands which he had performed And it was ruled by the whole Court that that was not a good plea in discharge before Auditors but a plea in bar of the account And by Crooke an accord with satisfaction may be pleaded in Bar not in discharge Which the Court seemed to agree And by Crooke If the Defendant had any other matter to shew on the Declaration before Auditors it might be shewn c. Richardson Although that the Arbitrament was made after the action brought it cannot now be pleaded but he ought to have his Andita querela Manninghams case In Manninghams case The doubt was this A condition of an obligation made to Manningham was that he should pay after his death to his Executors after his death 10 l. per annum to the use of the Children of Manningham And Manningham dyed and there was no Executor whether the payment should be to the Administrator and so the obligation forfeited Berkly said that it ought to be payed to the Administrator for an Executor includes an Administrator And this money is as assets if not to satisfie debts yet to perform this case which is illsgal 5 H. 7. 12. 26 H. 8. 7. And also if a man limit a thing to be done to his Executors that may be done to his Administrators So that the nominating of the Executor is not but an expresse intention to whom the money shall be paid viz. to him who presents his person And he compares that to the case of 46. E. 3. 18. A rent upon a condition reserved to the Executors goes to the Administrators 15 E. 4. 14. Dy. 309. Cranmers case Where it seemed that if a lease be made to one for life and after to his Executors for years that the Executors shall not have the term as assets 32. E. 3. A quid juris clamat Fitzharb A Lease for life to his Executors for years in remainder Lessee for life atturns saving the term which proves that the Executor had that as privy not as strangers And he cited Chapmans and Daltons case the principall So that the Infant and the Executors shall have the money in right of the testator and therefore it goes to the Administrator Secondly The Executor extends to an administrator 8. rep 135. there kindes of Executors and an Administrator is an Excecutor datinus 3 H. 6. An action is brought against divers executors by the Statute when some appears upon the distresse it answers that extends to an Administrator although the Statute names only Executors Thirdly It does not appear here that Manningham made not Executors for it may be that he made Executors and that they dyed intestate or before probate And he cited 18. H. 8. And Shelleyes case 1. rep and 33. Eliz. If Executors dye before probate It is in Law a dying intestate Richardson Here is but meer trust and as it hath been said It doth not appear whether he had made Executors or not For if he dye and makes Executors and they dye before probate or refuse he dyes ab intestato but not intestate Nor shall it be questioned if the obligation had been to pay to Manningham only or to him and his Executors But it goes to the administrators But because that he had specially put his Executor Whether he ought to have the forfeiture of the obligation or whether he ought to have the sum to be annually payed to the Administrator Berkley the letters of administration make mention that he dyed ab intestaro Atthow That is matter de hors but by the declaration it is clear that he dyed intestate And the action brought by Administrator who who had not any cause of action Secondly admitt that there was an Executor and the money payed to him that
agreed clearly that a Covenant to stand seised of as much as should be worth 20 l. per annum is méerly void And so by the Court it was lately adjudged Flower against Vaughan FLower sued Vaughan for tithes of hay which grew upon Land that was heath ground and for tithes of Pidgeons And by Richardson If it was mere waste ground and yeeld nothing it is excused by the Statute of payment of tithes for 7 years But if sheep were kept upon it or if it yeeld any profit which yeeld tithes then tithe ought to be payed As the case in Dyer And for the Pidgeons which were consumed in the house of the Owner he said that for Fish in a Pond Conies Deer it is clear that no tithes of them ought to be paid of right wherefore then of Pidgeons Felony to take Pidgeons out of a Dove-coat quod nemo dedixit and a day was given to shew wherefore a Prohibition should not be granted And the Court agreed that it was Felony to take Pidgeons out of a Dovecoat And afterwards a Prohibition was granted but principally that the Pidgeons were spent by the Owner But by Henden they shall be tithable if they were sold Clotworthy against Clotworthy IN Debt upon Obligation against the Defendant as Heir to Clotworthy scil son of Clotworthy without shewing his Christian name And Iudgement was given against the Defendant upon default and upon that Error brought and that assigned for error and after in nullo est erratum pleaded But Henden moved that it might be amended and he cited one Wosters and Westlys Case Hil. 19. Iac. rot 673. where in a Declaration in Debt upon an Obligation there was omitted obligo me haeredes and after was amended And he said that in this Case the Plea roll was without Commission of the Christian name then by the Court the Plea roll may be amended by the Imparlance roll but not è converso And the Case of the Obligation is the misprision of the Clark But here there was want of instructions Dennes Case IN Dennes Case of the Inner Temple issue was joyned in a Prohibition whether the Will was revoked or not and for a year the Plaintiff does not prosecute nor continue it upon the Iury roll And by the Court now it is in our discretion to permit it to be continued or not which the Prothonotaries agréed Mosses Case IN one Mosses Case in an Assumpsit for debt which was out of the 6 years limited by the Statute of 21 Iac. part within the time If the Iury found for the Plaintiff and taxed dammages severally The Plaintiff recovered for that that is within the time and not for that that was without But if dammages are intirely taxt the Plaintiff cannot have Iudgement of some part Which was granted by the Court. And by Richardson where an Action is brought upon an Assumpsit in Law and the Request is put in which is not more than the Law had done the Request there is not material But where a Request is collateral as in Pecks case there it is material Hutton said that in Pecks Case it was agréed by the whole Court that a Request was material but they conceived that the postea requisitus was sufficient For which afterwards it was reversed in the Kings Bench. Richardson said if one sells an Horse for money to be paid upon Request and no Request is shewn he can never have Iudgment which was not denied Boydens Case BOyden Executer of Boyden brought a scire facias to execute Iudgment given against Butler for the Testator which was directed to the Sheriff upon nihil habet returned testatum a scire fac is directed to the Sheriff of S. who returns Ployden terretenant of the Mannor which Butler was seised of at the time of the Iudgement Ployden appears and demands Oyer of the scire fac and of the return and pleads that long time before A. B. and C. were seised of the Mannor in fee and before the first return makes a feoffment to the use of one Francis Boyden for life who makes a Lease to the Defendant for 80 years And because that Francis Boyden aforesaid is not returned terretenant demanded Iudgement of the writs aforesaid Bramston said that the conclusion here to the writ is naught for a writ shall never be abated where we cannot have a better The matter here is the return of the Sheriff that Mr. Ployden is terretenant to which he makes no answer but by Argument And in all Cases where a special non tenure is pleaded it is used to be a Traverse upon which issue may be taken 8 E. 4. 19. 7 H. 6.16.17 But in our case no issue was taken and here all the matter alleged may be found c. For the matter although general non tenure is no plea yet a special non tenure may be pleaded 7 H. 6. 17. 25. 8 H. 6. 32. In real actions non tenure of a Franktenement is good But here a Chattel is only in question 2ly he may plead non tenure of Franktenement where the Lessee shall be concluded and bound But here here Edw. Boyden is not bound Crawly said that the plea is good and for the matter the difference is between the general and the special non tenure The general non tenure is no plea but in a praecipe quod reddat as it is But a special non tenure is a good plea in a scire facias nomina praecipe 31 H. 6. non tenure 21 Statham scire fac The Plaintiff in a scire fac does not demand Land but execution Yelverton In Holland and Lees Case in the Kings Bench this point It was adjudged that the Writ shall abate Richardson This Writ is a judicial Writ and by that Plea a better Writ given you For where before it was against the Terre-tenants generally he might have now a particular scire fac against Francis Boyden and both waies are good either to demand Iudgement of the Writ or Iudgement of the Court if execution ought to be against him quod concessum per totam curiam And agreed also by the Prothonotaries that a special scire facias might issue against Francis Boyden Turner against Disbury TUrner against Disbury in Trespass Where the Writ was quare domum clausum fregit but the Declaration was quare domum clausum canem molossum cepit which was found for the Defendant And it was moved by Hitcham for the Plaintiff in arrest of Iudgement to prevent costs for it That there is not a material difference between the Original and the Declaration For that that there is more in the Declaration than in the Original And then here is no Original to warrant part of the Declaration But this variance was between the Original it self which remained with the custos brevium and the Declaration For the Original as it was recited in the Declaration according to the usage in this Court agreed with the Declaration
all was false and written of set purpose and that for that the Lord displaced him it would be more difficult But for any thing as appears to us there is not any thing for which he might be justly displaced And also it was not said in the Declaration that the Defendant had any fee for his Office And Richardson also said That if it had been found as my Brother Hutton said Yet it is known that it should be more strong But then I conceive that the Action does not lye For it is apparent that nothing in the Letter may be applyed to a particular misbehaviour in his Office And by the Court Although the Declaration be laid falsely and maliciously Yet if the words be nâ—…t scandalous yet it ought to be laid falsely and maliciously And he said that it was adjudged in this Court Where an Action upon the Case was brought for conspiracy to indict a man and upon the Indictment the Iury found Ignoramus There the Indictee was clear And yet for the conspiracy the Action laid which was Blakes Case And it was said by Hutton If I have Land which I intended to sell and one came and says maliciously and on purpose to hinder my sale that he had a Title to it That that is actionable Which Harvey agreed without Question if he does not prove that he had a Title If one says of an Inue Go not to such an House for it is a very cutting House Agreed by the Court not Actionable Mich. 5 Car. Com. Banc. And Iudgment was given quod querens nil cap. per bil Pasc 6 Car. Com. Banc. THis Term there was nothing worthy the reporting as I heard of others For I my self was not well and could not hear any thing certum referre c. Trin. 6 Car. Com. Banc. Tomlins's Case IF the Husband makes a Feoffment to the use of himself for life the Remainder to his Son in tayl By the Court That is a dying seised in the Husband For the Wife shall have dammages in Dower And so it was adjudged in the Lady Egertons Case But the Husband ought to dye seised of an Estate tayl or Fée simple which might descend to his Heir Mich 6 Car. Com. Banc. MEmorandum That Sergeant Atthowe died at his House in Northfolk who was a man somewhat defective in Elocution and Memory but of profound Judgement and Skill in pleading NOte it was was said by Hutton and Davenport That if an Inferiour Court prescribe to hold Pleas of all manner of Pleas except Title to Freehold That that is no good prescription For then it may hold Plea of Murther which cannot be c. Note It was said by Richardson chief Iustice that if two conspire to indict an other of a Rape and he is indicted accordingly If the Iury upon the Indictment find Ignoramus Yet that Conspiracy is not punishable in the Starchamber Father purchases Lands in his Sons name who was an Infant at the age of seaventeen years and he would have suffered a Common recovery as Tenant to the Praecipe But the Court would not suffer him Rawling against Rawling THe Case was thus A man being possessed of a Lease for 85 years devises it as follows viz. I will that R. Rawling shall have the use of my Lease if he shall so long live during his life he paying certain Legacies c. And after his decease I devise the use thereof to Andrew Rawling the residue of the term with the Lease in manner and form as R. Rawling should have it Crew said That after the death of R. Rawling and Andrew the term shall revert to the Executors of the Devisor But by the Court not But it shall go to A. Rawling the last Devisée and in manner and form shall go to pay Legacies And by all a strong Case And together with the Lease be by strong words The Archbishop of Canterbury against Hudson of Grays-Inne THe Archbishop of Canterbury prosecuted against Hudson of Grays-Inne in an Information upon the Statute of E. 1. of Champerty Henden Sergeant for the Plaintiff moved upon the Plea that it was insufficient Because that the Defendant had prayed Iudgement of the Writ when he ought to have pleaded in Bar For the Statute of E. 1. had appointed a special Writ in this Case as the Defendant said But by him the Information is upon the Statute of 32 H. 8. which gives that Action by sute in Chancery which before was only by sute at Common Law Richardson chief Iustice said That the Plea is not to the matter but to the manner for the Plaintiff had mistaken his Action For the Action is given to the King only And therefore said to Henden demur if you will The Case was that the Defendant purchased Lands in anothers Name hanging the Sute in Chancery for it And after rules for Publication was given in the Cause Malins Case AYliff moved in arrest of Iudgement in an action of Battery c. And the cause that he shewed was An issue mistaken cannot be amended It was brought against William Malin of Langlee and in the Record of nisi prius It was William Langley of Malin But by the Court it ought to be amended For it is a misprision apparently of the Clark For the whole Record besides is right And the Record of nisi prius ought to be amended by the Record in the Bench according to the 44 E. 3. But if the issue had been mistaken otherwise it had been Arrerages for rent upon an estate for life cannot be forfeit by Outlawry NOte That it was agreed by the whole Court That arrerages of rent reserved upon an Estate for life are not forfeited by Outlawry because that they are real and no remedy for them but a distress Otherwise if upon a Lease for years c. Hill 6 Car. Com. Banc. MEmorandum that this term Sir Humfrey Davenport puisne Iudge of the Common Bench was called into the Exchequer to be Chief barron Browns Case AN Information upon the Statute of 5 Eliz. pro eo that one Brown was retained an Apprentice in Husbandry until the 21 year of his age and that he before his age of 21 years went away And the Defendant absque ullo testimonio detained him contra formam Statuti And by Hutton and Harvey Iustices only shewed the branch of the said Statute which says And if any servant retained according to the form of this Statute depart from his Master c. Hil. 6 Car. Com. Banc. And that none of the said reteined persons in Husbandry until after the time of his reteiner be expired shall depart That is not to be intended of an Apprentice in Husbandry but of an hired servant For the Statute did not intend to provide for the departure of an Apprentice because that an Apprentice ought to be by Indenture And then a writ of Covenant lies upon his departure to force him to come again And by the Common Law an